McDole v. Commissioner of Social Security

Filing 30

OPINION AND ORDER. The Report and Recommendation of the Magistrate Judge Recommending the Decision of the Commissioner be Affirmed 26 is ACCEPTED and ADOPTED as modified and supplemented herein. The Decision of the Commissioner of Social Security is AFFIRMED. The Clerk of the Court shall enter judgment accordingly, terminate any pending motions and close the file. Signed by Judge Sheri Polster Chappell on 7/28/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MILDRED MCDOLE,
Plaintiff,
v.

Case No: 2:13-cv-136-FtM-38CM

COMMISSIONER
SECURITY,

OF

SOCIAL

Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on the Report and Recommendation of the
Magistrate Judge Recommending that the Decision of the Commissioner be Affirmed
(Doc. #26) filed on June 16, 2014. The Plaintiff, Mildred McDole, filed her Objections
(Doc. #27) on June 30, 2014. McDole then filed Amended Objections (Doc. #28) on July
1, 2014. The Commissioner filed a Response to the Objections (Doc. #30) on July 15,
2014. The Report and Recommendation is now fully briefed and ripe for the Court’s
review.
STANDARD OF REVIEW
The Court reviews the Commissioner's decision to determine if it is supported by
substantial evidence and based upon proper legal standards. Scuilla v. Astrue, 2013 WL

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525789, *1 (M.D. Fla. February 11, 2013) (citing Crawford v. Comm'r of Soc. Sec., 363
F.3d 1155, 1158 (11th Cir.2004)). Substantial evidence is more than a scintilla but less
than a preponderance, and is such relevant evidence as a reasonable person would
accept as adequate to support a conclusion. Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir.2005); Crawford, 363 F.3d at 1158. Even if the evidence preponderates against
the Commissioner's findings, the Court must affirm if the decision reached is supported
by substantial evidence. Id. at 1158–59. The Court does not decide facts anew, make
credibility judgments, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Moore, 405 F.3d at 1211; Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir.2005). The magistrate judge, district judge and appellate judges all apply the same
legal standards to the review of the Commissioner's decision. Id.; Shinn v. Comm'r of Soc.
Sec., 391 F.3d 1276, 1282 (11th Cir.2004); Phillips v. Barnhart, 357 F.3d 1232, 1240 n.
8 (11th Cir. 2004).
DISCUSSION
The Plaintiff McDole objects to Magistrate Judge Mirando’s Report and
Recommendation arguing she erred in affirming the decision of the Commissioner
because the Administrative Law Judge (ALJ) erred by: (1) finding McDole did not have
any severe mental impairments; (2) by failing to consider the impact of the Plaintiff’s
obesity on her RFC; (3) by failing to consider her depression, anxiety, and memory loss
in his assessment of her RFC; and (4) by failing to consult with a vocational expert (VE)
as to whether Plaintiff was able to perform her past relevant work. The Court will address
each argument in turn.

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(1) Whether McDole had Severe Psychological or Mental Impairments
McDole claims that her psychological impairments are serve and would prevent
her from performing the mental demands of basic work. McDole also claims the ALJ
erred by not finding that her anxiety, depression and memory issues are severe.
An impairment is severe if it significantly limits a claimant’s physical or mental
ability to perform basic work activities, but an impairment is not severe if it is merely a
slight abnormality or a combination thereof that does not have more than a minimal effect
on the claimant’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).

The ALJ found the Plaintiff’s psychological

impairments were not severe.
The ALJ found the Plaintiff’s complaints were simply not credible. The ALJ noted:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity.
(Tr. 17). The ALJ found no medical records to support the Plaintiff’s claims that her
psychological or mental conditions would prevent her from performing basic work
activities and therefore he found they were not severe.
In his decision the ALJ relied on the consultant opinion of Dr. Zsigmond to support
his decision. Dr. Zsigmond opined:
On examination, claimant appeared alert and well oriented. Testing showed
no short or long-term memory impairment. Attention and concentration also
appeared normal. She had appropriate judgment, insight, and was able to
complete simple mathematical calculations. She appeared in no acute
mental distress.
(Tr. 13).

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The ALJ concluded:
A review of the medical record suggests that claimant’s alleged impairments
are also not as limiting as is alleged. Subsequent to her alleged onset date,
claimant was able to respond, read, concentrate, and comprehend
coherently at a field office interview. The physical consultative examiner
found normal mental activity, understanding, no memory impairment and
normal attention and concentration. Claimant had a normal affect and was
judged able to maintain her own funds. Claimant received no specific
mental health treatment or evaluation until her consultative interview which
further suggest that her condition is not as severe as is alleged. In early
2011, Claimant appeared in no acute distress and her mood affect were
good. No depression, anxiety, changes in mood, or insomnia were noted,
Claimant was not seen again for several months. . . . While a memory test
showed claimant’s memory may be impaired, the record contains no further
analysis or findings by a competent physician detailed any specific memory
impairment.
(Tr. 17-18).
The Plaintiff attempts to support her position with records submitted from Lee
Memorial Hospital dating from August 30, 2012 to September 1, 2012. However, as noted
by the Commissioner, those Lee Memorial Hospital records were submitted to the
Appeals Council and not the ALJ. The subject 2012 records were not before the ALJ and
the Plaintiff did not appeal the decision of the Appeals Council, but only the decision of
the ALJ. The Court is not required to consider evidence submitted to the Appeals Council
for purposes of reviewing the ALJ’s decision for substantial evidence. Ingram v Comm’r
of Soc. Sec., 496 F. 3d 1253, 1266 (11th Cir. 2007) (holding “[W]hen a claimant
challenges the [ALJ’s] decision to deny benefits, but not the decision of the Appeals
Council to deny review of the [ALJ], we need not consider evidence submitted to the
Appeals Council.”). Thus, based upon the evidence in the record and the ALJ’s decision,
the Court finds the ALJ supported his determination that the Plaintiff’s psychological and

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mental impairments were not severe and would not prevent the Plaintiff from performing
basic work activities with substantial evidence. The Plaintiff’s objection is overruled.
(2)Whether the ALJ Failed to Consider the Plaintiff’s Obesity
The Plaintiff states the ALJ failed to consider the effect of her obesity on her
residual functional capacity (RFC), however; the Plaintiff did not allege obesity as a cause
of her alleged disability. The Plaintiff has the burden of establishing that she is disabled.
Doughty v. Apfel, 245 F. 3d 1274, 1278 (11th Cir, 2001). Since the Plaintiff did not allege
that obesity prevented her from performing basic work activities, the ALJ did not err by
not considering her obesity as a severe impairment. See Robinson v Astrue, 365 Fed.
App’x 993, 995-96 (11th Cir. 2010) (holding that the ALJ had no duty to consider the
claimant’s chronic fatigue syndrome diagnosis where the claimant did not allege she was
disabled due to that diagnosis). Therefore, the ALJ did not err by not considering the
effects of Plaintiff’s obesity on her RFC.
(3)Whether the ALJ Failed to Consider Plaintiff’s Depression, Fatigue and
Memory Loss in His RFC Determination
The Plaintiff argues the ALJ did not consider the limitations caused by the Plaintiff’s
depression, anxiety, and memory loss in determining her RFC. Contrary to the Plaintiff’s
position, the ALJ did take into account the Plaintiff’s depression, anxiety, and memory
loss when he made her RFC determination. In his decision, the ALJ stated:
Claimant appeared in no acute distress and her mood affect were good. No
depression, anxiety, changes in mood, or insomnia were noted, Claimant
was not seen again for several months. . . . While a memory test showed
claimant’s memory may be impaired, the record contains no further analysis
or findings by a competent physician detailed any specific memory
impairment.

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(Tr. 17-18).

The ALJ relied on the consultative evaluation reports of Dr. Claudia

Zsigmond, and Dr. Eshan M. Kibria. See Milner v Barnhart, 275 Fed. App’x. 947, 948
(11th Cir. May 2, 2008) (holding the ALJ is required to consider the opinions of nonexamining state agency medical and psychological consultants because they are highly
qualified physicians and psychologists, who are also experts in Social Security disability
evaluations); SSR 96-6. Dr. Zsigmond opined the Plaintiff demonstrated good recall of
recent events and remote events, suggesting no severe short-term or long-term memory
impairment. (Tr. 13). Dr. Kibria observed that Plaintiff’s work-related mental activities,
understanding, memory, concentration, social interaction, and adaptation were intact. (Tr.
14). In his decision, the ALJ stated that he considered “the entire record” and “all
symptoms” in assessing the residual functional capacity. (Tr. 16).

Thus, the ALJ

considered the Plaintiff’s depression, anxiety, and memory loss issues when he made his
RFC determination and supported his RFC with substantial evidence from the record.
(4)Whether the ALJ should have Used a Vocational Expert
The Plaintiff argues the ALJ was required to call a VE due to her inability to return
to her past relevant work and due to the existence of non-exertional impairments.
Contrary to the Plaintiff’s arguments, the ALJ was not required to call a VE in this instance.
The ALJ found that Plaintiff could return to her past relevant work, and that she did not
have any non-exertional mental or psychological impairments that would prevent her from
performing basic work activities.
In cases where the ALJ finds Plaintiff can perform her past relevant work, it is not
necessary to call a VE. Hernandez v Comm’r of Soc. Sec., 433 Fed. Appx. 821, 823 (11th
Cir. 2011) (holding that “[g]enerally, vocational expert testimony is not necessary to

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determine whether a claimant can perform his past relevant work.”). At Step 4 of his
analysis, the ALJ found that Plaintiff was capable of performing her past relevant work as
a file clerk, receptionist, and phlebotomist. (Tr. 18).

Consequently, there was no

requirement for the ALJ to call a VE in this case.
CONCLUSION
After an independent review, the Court agrees with the findings and
recommendations of Magistrate Judge Mirando’s Report and Recommendation as
modified and supplemented herein.
Accordingly, it is now
ORDERED:
(1) The Report and Recommendation of the Magistrate Judge Recommending the
Decision of the Commissioner be Affirmed (Doc. #26) is ACCEPTED and
ADOPTED as modified and supplemented herein.
(2) The Decision of the Commissioner of Social Security is AFFIRMED.
(3) The Clerk of the Court shall enter judgment accordingly, terminate any pending
motions and close the file.
DONE and ORDERED in Fort Myers, Florida this 28th day of July, 2014.

Copies: All Parties of Record

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