Urquhart v. Commissioner of Social Security

Filing 23

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner. The Clerk of Court is further directed to close the file. Signed by Magistrate Judge Carol Mirando on 1/21/2015. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANA DUANE URQUHART,
Plaintiff,
v.

Case No: 2:13-cv-724-FtM-CM

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
Plaintiff, Dana Duane Urquhart, appeals the final decision of the
Commissioner of Social Security Administration (“Commissioner”) denying his claim
for Supplemental Security Income (“SSI”). As the decision of the Administrative Law
Judge (“ALJ”) was based on substantial evidence and employed proper legal
standards, the Commissioner’s decision is affirmed.
I.

Issues on Appeal

Plaintiff argues three inter-related issues on appeal: (1) whether the ALJ
properly considered the impact of Plaintiff’s visual impairment in assessing his
residual functional capacity (“RFC”) for work; (2) whether the ALJ erred in finding
Plaintiff’s major depressive disorder and anxiety non-severe limitations; and (3)
whether the ALJ failed to complete an accurate function-by-function analysis in
assessing Plaintiff’s RFC.
II.

Procedural History and Summary of the ALJ’s Decision

On March 22, 2010, Plaintiff filed an application for SSI, alleging he became

disabled and unable to work on January 30, 2010, due to cirrhosis of the liver and
gout.

Tr. 148-60. The Social Security Administration (“SSA”) denied his claim

initially on September 9, 2010, and upon reconsideration on December 9, 2010. Tr.
104, 113. Plaintiff then requested and received a hearing before an ALJ on March
21, 2010, during which she was represented by an attorney. Tr. 31-52. Plaintiff
testified at the hearing.
On June 8, 2012, the ALJ issued a decision, finding Plaintiff not disabled and
denying his claim. Tr. 13-24. At step one, the ALJ found Plaintiff had not engaged
in substantial gainful activity since March 22, 2010, the application date. Tr. 15. At
step two, the ALJ determined that Plaintiff had the following severe impairments:
alcoholic cirrhosis; renal insufficiency; gout and associated ankle, elbow, knee, and
hands; back and neck pain; breathing disorder; coronary artery disease; and obesity.

Id. The also ALJ found that Plaintiff’s mental impairments of anxiety and depression
were non-severe impairments.

Tr. 15-18.

In doing so, the ALJ considered the

“paragraph B” criteria, and found that the criteria were not satisfied. Tr. 17-18. At
step three, the ALJ concluded that Plaintiff did “not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” 1 Tr. 13.

Appendix 1 is the listing of impairments (“Listing”) that “describes for each of the
major body systems impairments that we consider to be severe enough to prevent an
individual from doing any gainful activity, regardless of his or her age, education, or work
experience.” 20 C.F.R. § 405.1525(a).
1

2

Taking into account the effects from all of Plaintiff’s impairments – both severe
and non-severe – the ALJ then determined that Plaintiff had the RFC to perform the
full range of light work, as defined in 20 C.F.R. § 416.967(b), 2 with some additional
limitations. Tr. 18. The ALJ also found that Plaintiff’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 [ALJ’s
RFC] assessment.” Tr. 20. In making this finding, the ALJ considered Plaintiff’s
allegations regarding his physical limitations, including disabling joint pains, renal
insufficiency, congestive heart failure, coronary artery disease, breathing disorder,
vision problems, chronic obstructive pulmonary disease, decreased vision in left eye,
and obesity. Tr. 19-23. Taking into consideration his RFC determination, the ALJ
found that jobs exist in significant numbers in the national economy that Plaintiff
can perform according to the Medical Vocational Guidelines. Tr. 23-24.
Following the ALJ’s decision, Plaintiff filed a Request for Review by the
Appeals Council. After considering the ALJ’s decision, the Appeals Counsel denied
the request on August 27, 2013. Tr. 1-6. Accordingly, the ALJ’s June 8, 2012 decision

2

The regulations define “light work” as follows:

(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may
be very little, a job is in this category when it requires a good deal of walking or standing,
or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities. . . .
20 C.F.R. § 404.1567(b).

3

is the final decision of the Commissioner. On October 15, 2013, Plaintiff timely filed
his Complaint with this Court under 42 U.S.C. §§ 405(g), 1383(c)(3). Doc. 1.
III.

Social Security Act Eligibility and Standard of Review

A claimant is entitled to disability benefits when he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A);
20 C.F.R. § 404.1505(a). The Commissioner has established a five-step sequential
analysis for evaluating a claim of disability. See 20 C.F.R. § 404.1520. The claimant
bears the burden of persuasion through step four, and, at step five, the burden shifts
to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings are supported by
substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988)
(citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). The district court must
consider the entire record, including new evidence submitted to the Appeals Council
for the first time, in determining whether the Commissioner’s final decision is
supported by substantial evidence. Ingram v. Astrue, 496 F.3d 1253, 1265 (11th Cir.
2007). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a scintilla, i.e.,
evidence that must do more than create a suspicion of the existence of the fact to be
established, and such relevant evidence as a reasonable person would accept as

4

adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a mere
scintilla, but less than a preponderance”) (internal citation omitted).
Where the Commissioner’s decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result
as finder of fact, and even if the reviewer finds that the preponderance of the evidence
is against the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). “The
district court must view the record as a whole, taking into account evidence favorable
as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v.

Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the factual findings).
IV.

Discussion

A.

Residual Functional Capacity Assessment
1.

Visual Impairments

Plaintiff first argues on appeal that the ALJ failed to consider the impact his
visual impairments would have on Plaintiff’s RFC. Specifically, Plaintiff argues that
the ALJ did not address Plaintiff’s visual impairments in his decision and did not
consider Plaintiff’s testimony regarding his visual limitations, wherein he testified
that he is almost completely blind in his right eye. Tr. 37. Thus, Plaintiff believes a
more limited RFC is reasonable.

In response, Defendant argues that the ALJ

5

properly considered Plaintiff’s decreased vision in in assessing Plaintiff’s RFC and
properly found Plaintiff’s decreased vision did not limit his ability to perform workrelated activities. The Court agrees with the Commissioner.
When an impairment does not meet or equal a listed impairment at step three,
as in this case, the ALJ will proceed to step four to assess and make a finding
regarding the claimant’s RFC based upon all the relevant medical and other evidence
in the record. 20 C.F.R. § 404.1520(e). Here, the ALJ found that Plaintiff did “not
have an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1.” Tr. 18. The ALJ then proceeded to assess and make a finding regarding
the claimant’s RFC.
limitations.

The RFC is the most that a claimant can do despite his

See 20 C.F.R. § 404.1545(a)(1).

The ALJ is required to assess a

claimant’s RFC based on all of the relevant evidence in the record, including any
medical history, medical signs and laboratory findings, the effects of treatment, daily
activities, lay evidence and medical source statements. Id. At the hearing level, the
ALJ has the responsibility of assessing a claimant’s RFC. See 20 C.F.R. § 404.1546(c).
The determination of RFC is within the authority of the ALJ; and the claimant’s age,
education and work experience are considered in determining the claimant’s RFC and
the claimant’s ability to return to past relevant work. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1520(f)). The RFC assessment is
based upon all the relevant evidence of a claimant’s remaining ability to do work

6

despite impairments. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004);

Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1545(a)).
In his decision, the ALJ found that Plaintiff retained the ability to perform
light work, with specific limitations. Tr. 18. In doing so, he noted he considered the
“entire record” (Tr. 18), including Plaintiff’s physical and mental limitations.
Contrary to Plaintiff’s assertions, the ALJ considered Plaintiff’s visual impairments
in his opinion. Tr. 19, 21. The ALJ noted that Plaintiff had a visual acuity of 20/300
in the right eye and 20/25 in the left eye, along with a prescription for corrective
lenses, which Plaintiff stated he could not afford. Tr. 19, 21. In doing so, the ALJ
cited the prescription for corrective lenses that Plaintiff testified he did not pick up
yet because he could not afford them. Tr. 21, 418. The ALJ also noted that Plaintiff
spent his day watching television. Tr. 20, 22. Notably, no restrictions have been
placed on Plaintiff by his doctors due to his visual impairments. The record reveals
that his vision can be improved with correction, which belie Plaintiff’s contentions
that he has a debilitating vision problem that precludes him from working. Tr. 21.
Thus, the Court finds that the ALJ properly considered Plaintiff’s visual impairments
when determining his RFC, and his decision that these impairments do not preclude
Plaintiff from working is supported by substantial evidence in the record.

2.

Mental Impairments

Plaintiff second point of contention with regard to the ALJ’s RFC
determination is that the ALJ erred in finding that Plaintiff’s major depressive
disorder and anxiety did not constitute severe impairments at step two, asserting

7

substantial evidence supports otherwise. Plaintiff states that his mental health
impairments are well-documented in the record, and the record shows that his mental
impairments would significantly limit his ability to perform basic work-related
activities. Defendant responds that the ALJ properly considered Plaintiff’s mental
impairments in assessing his RFC and that Plaintiff failed to meet his burden of
proving that he had actual, specific limitations, corroborated by the evidence, caused
by his mental impairments. The Court agrees with the Commissioner.
At the second step in the sequential evaluation process, the ALJ determines
whether the claimant has a severe impairment.

20 C.F.R. § 404.1520(a)(4)(ii).

Plaintiff bears the burden of establishing that his impairments are severe and
prevent the performance of his past relevant work. Yuckert, 482 U.S. at 146 n.5. A
severe impairment is an impairment or combination of impairments that
significantly limits a claimant’s physical or mental ability to do basic work activities.
20 C.F.R. § 404.1520(c). “A non-severe impairment is a slight abnormality which has
such a minimal effect on the individual that it could not be expected to interfere with
the individual’s ability to work, irrespective of age, education, or work experience.”

Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). “Claimant need show only that
her impairment is not so slight and its effect is not so minimal.” McDaniel v. Bowen,
800 F.2d 1026, 1031 (11th Cir. 1986). “Severity of a medically ascertained disability
must be measured in terms of its effect upon ability to work, and not simply in terms
of deviation from purely medical standards of bodily perfection or normality.”

McCruther v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

8

Concerning Plaintiff’s “medically determinable” mental impairments of major
depressive disorder and anxiety, the ALJ found it did not cause more than “minimal
limitation in the claimant’s ability to perform basic mental work activities” and thus
determined it to be non-severe. Tr. 15. He acknowledged that although Plaintiff had
been prescribed Wellbutrin, he had been prescribed the medication by his primary
care physician, and his doctors continually reported that his anxiety was stable and
controlled by his medication. Id. Notably, the ALJ stated that treatment notes do
not report any severe mental health symptoms that resulted in hospitalization or
emergency room visits.

Id.

Moreover, Plaintiff was not under the care of a

psychiatrist, nor was he receiving any psychological counseling or therapy. Id.
Supporting this finding, the ALJ cited a mental consultative examination
performed by psychologist Nilsa Rivera, Ph.D, in May 2010, in which Plaintiff was
diagnosed with major depressive disorder. See Tr. 471-73. Dr. Rivera noted on
mental status examination that Plaintiff was fully oriented to all spheres and had
intact memory, logical and organized thought processes, no delusions, no
hallucinations, accurate general knowledge, average intelligence, fair insight, and
fair judgment. Tr. 16, 472-73. The ALJ further discussed the psychiatric review
technique forms completed by state agency psychological consultants Kristin Adams,
Psy.D on June 14, 2010, and Elizabeth Michalec, Ph.D. on November 18, 2010. Tr.
16-17.

Dr. Adams opined that Plaintiff’s mental impairments were not severe

because he had no history of significant mental health issues, no formal treatment
history, and was prescribed mental medications by his primary care physician

9

secondary to medical issues and was noted to be stable. Tr. 16, 294. Dr. Michalec
also concluded that Plaintiff’s mental impairments were not severe because the
majority of his functional limitations were due to physical, not psychiatric reasons,
and that he is stable and able to engage in activities of daily living. Tr. 17, 316. The
ALJ gave the consultants' opinions great weight because they gave specific reasons
for their opinions and were supported by the evidence of record, including
consideration of Plaintiff’s doctor’s opinions and Plaintiff’s allegations concerning his
symptoms and limitations. Id.
In finding that Plaintiff’s mental impairments were not severe, the ALJ
considered the four broad functional areas for evaluating mental disorders – the socalled “paragraph B” criteria – and section 12.00C of the Listings. See Tr. 17-18. In
the first area of daily living, the ALJ found that Plaintiff has mild limitation. Tr. 17.
He takes care of his personal hygiene, cooks, does laundry, washes dishes, and
watches television. Id. In the area of social functioning, the ALJ found Plaintiff has
no limitation. Id. The ALJ noted that Plaintiff maintains a relationship with his
live-in girlfriend and often socializes with his children and former boss. Id. He also
has no problem getting along with others.

In the third functional area –

concentration, persistence or pace – the ALJ determined Plaintiff has mild limitation.
Tr. 18. In the final functional area, the ALJ found that Plaintiff has experienced no
episodes of decompensation of extended duration. Tr. 18. Although not discussed at
length by the ALJ in addressing Plaintiff’s functional limitations, his findings are

10

consistent with those contained in the psychiatric review technique evaluations
conducted by Drs. Adams and Michalec.
Based on the foregoing, the Court finds that Plaintiff’s claim that the ALJ erred
in finding Plaintiff’s major depressive disorder and anxiety disorder as non-severe
impairments simply is without merit. The ALJ discussed his findings at length with
record evidence to support the great weight he accorded to the examining psychologist
and psychological consultants who opined that Plaintiff had no mental limitations
that would preclude his ability to work. Pursuant to the regulations, state agency
consultants are highly qualified specialists, expert in Social Security disability
programs, and their opinions may be entitled to great weight if the evidence supports
their opinions. Their opinions must be considered by the ALJ as opinion evidence, as
occurred here. See 20 C.F.R. § 416.927(e)(2)(i); SSR 96-6p. The regulations provide
that when evaluating opinion evidence, more weight is given an opinion that is
consistent with the record as a whole. See 20 C.F.R. § 404.1527(c)(4).
Thus, substantial evidence supports the ALJ’s RFC finding. Although the
record reveals diagnoses of major depressive disorder and anxiety (Tr. 335, 473),
there is no evidence in the record that demonstrates these conditions would
significantly limit Plaintiff’s ability to do basic work activities. Rather, the record
shows that Plaintiff’s doctors placed no restrictions on his activities or limitations
because of these conditions, nor that any treatment or therapy has been
recommended for these conditions, as noted by the ALJ.

11

Finally, although the ALJ found that Plaintiff’s mental conditions were nonsevere, the ALJ did find that Plaintiff suffered from severe impairments and
continued through the sequential evaluation to step five. The Eleventh Circuit has
noted that the finding of any severe impairment is enough to satisfy step two,
“because once the ALJ proceeds beyond step two, he is required to consider the
claimant’s entire medical condition, including impairments the ALJ determined were
not severe.” Burgin v. Comm’r of Soc. Security, 420 F. App’x 901, 902 (11th Cir. Mar.
30, 2011). Thus, even assuming the ALJ erred when he concluded that Plaintiff’s
mental conditions were not severe impairments, that error was harmless, because
the ALJ considered all of his impairments, including those he deemed non-severe,
when determining Plaintiff’s RFC, which is supported by substantial evidence,
discussed supra.

B.

Function-by-Function Assessment

Plaintiff last argues that the ALJ did not perform a function-by-function
assessment before finding that Plaintiff could perform light work. In so arguing,
Plaintiff asserts that the ALJ’s RFC assessment did not consider the objective
medical evidence in support of limitations caused by his visual impairment, major
depressive disorder, and anxiety. Doc. 18 at 20-21. Plaintiff argues that this matter
should be remanded for proper consideration of Plaintiff’s these impairments.
“The RFC assessment must first identify the individual’s functional limitations
or restrictions and assess . . . her work-related abilities on a function by function
basis. . . . Only after that may RFC be expressed in terms of exertional levels of work,

12

sedentary, light, medium, heavy, and very heavy.” SSR 96-8p, 1996 WL 374184.
Here, the ALJ specifically considered Plaintiff’s complaints related to his visual
impairments and found that his complaints were not supported by the record,
discussed supra. Tr. 19, 21. Further, although the ALJ determined that Plaintiff’s
mental impairments were “non-severe,” the ALJ specifically considered and
determined all of Plaintiff’s impairments – both severe and non-severe – in assessing
his RFC. Moreover, the determination of a claimant’s RFC is reserved exclusively to
the Commissioner and is not the province of Plaintiff’s physicians to determine. 20
C.F.R. § 404.1527(d); SSR 96-5p.
V.

Conclusion

After a thorough review of the entire record, the undersigned finds that the
ALJ’s decision is supported by substantial evidence.
Accordingly, it is
ORDERED:
1.

The decision of the Commissioner is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment pursuant to sentence
four of 42 U.S.C. § 405(g) in favor of the Commissioner.

3.

The Clerk of Court is further directed to close the file.

13

DONE and ORDERED in Fort Myers, Florida on this 21st day of January, 2015.

Copies:
Counsel of record

14