Ackerman v. Commissioner of Social Security

Filing 27

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment in favor of the Commissioner, and close the file. Signed by Magistrate Judge Carol Mirando on 6/4/2015. (ALB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ABBE ACKERMAN,
Plaintiff,
v.

Case No: 2:14-cv-207-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Abbe Ackerman appeals the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying her claim for a period of
disability, disability insurance benefits (“DIB”) and Supplemental Security Income
(“SSI”).

For the reasons discussed herein, the decision of the Commissioner is

affirmed.
I.

Issues on Appeal

Plaintiff raises three issues on appeal: (1) whether the Administrative Law
Judge (“ALJ”) assigned appropriate weight to the opinion of Dr. Abraham, a
psychiatrist; (2) whether the ALJ erred in his assessment of Plaintiff’s credibility;
and (3) whether the ALJ’s disability determination is supported by substantial
evidence in light of new evidence submitted directly to the Appeals Council.
II.

Procedural History and Summary of the ALJ’s Decision

On August 13, 2008, Plaintiff filed an application for a period of disability, DIB
and SSI alleging that she became disabled and unable to work on October 1, 2007.

Tr. 270-280. The Social Security Administration (“SSA”) denied her claim initially
on September 10, 2010 and upon reconsideration on January 28, 2011. Tr. 181, 183,
208-213; Tr. 182, 184, 216-219. Plaintiff requested and received a hearing before
ALJ Charles Reite on January 10, 2011. Tr. 132-73. ALJ Reite issued an opinion
dated March 23, 2011 in which he found that Plaintiff became disabled on January
19, 2011 and continued to be disabled through the date of his decision. Tr. 190-99.
Plaintiff requested review of ALJ’s Reite’s decision. Tr. 254. On October 13,
2011, the Appeals Council issued an order vacating the order and remanding the case
to an ALJ to further evaluate Plaintiff’s mental impairments in accordance with the
regulations; give further consideration to treating source opinions and explain the
weight given to each; give further consideration to Plaintiff’s maximum residual
functional capacity (“RFC”); and, if warranted, obtain evidence from a vocational
expert (“VE”) to clarify any limitations on Plaintiff’s occupational base. Tr. 206.
Plaintiff received a hearing before ALJ M. Dwight Evans (hereinafter “the ALJ”) on
February 9, 2012, during which she was represented by the same attorney who
represented her at the initial ALJ hearing. Tr. 33-53, 49-88; Tr. 220-21. Plaintiff
and VE Ruth Horvath testified at the second hearing. Tr. 49-88.
On July 27, 2012, the ALJ issued a decision finding that Plaintiff is not
disabled and denying her claim. Tr. 23-43. The ALJ first determined that Plaintiff
met the insured status requirements of the Social Security Act through June 30, 2012.
Tr. 26. At step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since October 1, 2007, the alleged onset date (“AOD”). Id. At step

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two, the ALJ determined that Plaintiff has the following severe impairments: status
post cervical spine surgeries, status post left shoulder surgeries and status post
carpal tunnel syndrome surgery. Tr. 27. At step three, the ALJ concluded that
Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.” Tr. 28.
Taking into account the effects from all of Plaintiff’s impairments, the ALJ
determined that Plaintiff has the RFC to perform light work, with additional
limitations.

Tr. 29.

The ALJ found that Plaintiff’s medically determinable

impairments reasonably could be expected to cause the alleged symptoms, but her
statements concerning the intensity, persistence and limiting effects of the symptoms
are not credible to the extent they are inconsistent with the ALJ’s RFC
determination.

Tr. 32.

The ALJ then found that Plaintiff was capable of

performing her past relevant work (“PRW”) as a receptionist, combination
stenographer/secretary/transcriber, and secretary.

Tr. 41.

Thus, the ALJ found

that Plaintiff was not disabled and denied her claim. Tr. 43.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on January 31, 2014. Tr. 4-9, 19. Accordingly, the ALJ’s
July 27, 2012 decision is the final decision of the Commissioner. Plaintiff filed an
appeal in this Court on April 11, 2014. Doc. 1.

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III.

Social Security Act Eligibility and Standard of Review

A claimant is entitled to disability benefits when she is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected either to 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); 20 C.F.R. § 416.905(a). The Commissioner has
established a five-step sequential analysis for evaluating a claim of disability. See
20 C.F.R. § 404.1520; 20 C.F.R. § 416.920.

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. Comm’r of Soc. Sec. Admin., 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 adequate to support the conclusion.” Foote v. Chater, 67 F.3d

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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

Plaintiff raises three overarching arguments on appeal. Each is addressed
separately.

a. Whether the ALJ properly considered the opinion of Dr. Abraham
Plaintiff argues that the ALJ erred by according little weight to the opinion of
psychiatrist Dr. Gerald Abraham, which in turn resulted in erroneous determinations
at step two that Plaintiff’s mental impairments were nonsevere; at step three that
they did not meet the Listing criteria; and at steps four and five, by failing to include
any mental limitations in Plaintiff’s RFC and finding that Plaintiff can perform her

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PRW.

Doc. 21 at 10-11.

The Commissioner contends that substantial evidence

supports the ALJ’s evaluation of Plaintiff’s mental impairments. She argues that
the ALJ properly assigned Dr. Abraham’s opinion little weight because it was not
clear whether he actually examined Plaintiff; he failed to explain the basis for his
opinion; and his opinion is inconsistent with other evidence, including an opinion of
Plaintiff’s treating physician. Doc. 25.
Under the Regulations, opinions of examining sources usually are given more
weight than nonexamining source opinions. 20 C.F.R. § 404.1527(c)(1); 20 C.F.R. §
416.927(c)(1). Examining source opinions are evaluated based upon the degree to
which they consider all relevant evidence in the record, including the opinions of other
medical sources. 20 C.F.R. § 404.1527(c)(3); 20 C.F.R. § 416.927(c)(3). By contrast,
“because nonexamining sources have no examining or treating relationship with [a
plaintiff], the weight [the SSA] will give their opinions will depend on the degree to
which they provide supporting explanations for their opinions.”
404.1527(c)(3); 20 C.F.R. § 416.927(c)(3).

20 C.F.R. §

Any medical source opinion may be

discounted when the opinion is not well-supported by medically acceptable clinical
and laboratory diagnostic techniques or if the opinion is inconsistent with the record
as a whole. SSR 96-2p; Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159-60
(11th Cir. 2004).
Here, the ALJ’s opinion provides a detailed description of the pertinent medical
evidence and a lengthy discussion of the weight assigned to each medical source and
the reasons therefor. The ALJ discussed Dr. Abraham’s January 19, 2011 statement

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in which he evaluated whether Plaintiff met the criteria for Listing 12.04. Tr. 44647.

Dr. Abraham indicated that there was medically documented persistence of

depressive syndrome characterized by anhedonia or pervasive loss of interest in
almost all activities, appetite disturbance with change in weight, sleep disturbance,
psychomotor agitation or retardation, decreased energy, difficulty concentrating or
thinking and thoughts of suicide. Tr. 446. Dr. Abraham stated that the depressive
syndrome resulted in marked restriction in activities of daily living; marked
difficulties in maintaining social functioning; and marked difficulties in maintaining
concentration, persistence, or pace. Id. Dr. Abraham further stated that Plaintiff
met the Listing criteria for the past “10+ years.” Tr. 447.
Dr. Abraham also included the following commentary:
Essentially helpless, tearful, histrionic, pitiful acting lady,
complaining of severe pain with no medical care beyond the
family doctor, and need for pain medication. She cries
here, develops a high pitched voice acting in childlike
fashion, and cannot understand simple explanations.
Multiple depressive symptoms with suicidal thoughts
(chronic). [Plaintiff] has been successful at many jobs in
the past but multiple falls and surgeries have taken their
toll. No substance abuse. “My mind doesn’t work.” “I’m
no longer a person.” This is clearly a disabled person who
needed direction here, and is close to full dysfunction.

Id.
The ALJ determined that the opinion was entitled to little weight because Dr.
Abraham did not indicate in what capacity he issued his opinion or the basis for it.
Tr. 40. The ALJ determined that Dr. Abraham’s opinion that Plaintiff’s depression
met the criteria of Listing 12.04 for the past ten years was not supported by the
medical evidence. Id. The ALJ also stated that he accorded Dr. Abraham’s opinion
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little weight because there was no indication that Dr. Abraham reviewed Plaintiff’s
medical records, and his opinion was inconsistent with Plaintiff’s own reports of her
daily activities and abilities. Id.; see, e.g., Magill v. Comm’r of Soc. Sec., 147 Fed.
Appx. 92, 94 (11th Cir. 2005) (“[A]n ALJ need not give a treating physician’s opinion
considerable weight if the applicant’s own testimony regarding her daily activities
contradicts that opinion.”) (citing Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir.
2004)). The ALJ also stated that he gave Dr. Abraham’s opinion that Plaintiff is
disabled limited weight and his opinion that Plaintiff meets a listing no weight,
because those are issues reserved exclusively for the Commissioner. Tr. 40.
By contrast, the ALJ assigned “great weight” to the opinions of two state
agency doctors, psychiatrist Dr. Nancy Dinwoodie and psychologist Dr. Carol
Deatrick, because these doctors “had the opportunity to review the evidence of record
and [their] opinions are consistent with and are supported by the evidence and the
record as a whole.” Tr. 41; see also Tr. 38. Dr. Dinwoodie completed a Psychiatric
Review Technique form (“PRT”) on December 3, 2008 on which she indicated that
Plaintiff’s affective disorders are not severe. Tr. 394. Specifically, Dr. Dinwoodie
noted that Plaintiff had “depression secondary to chronic pain” and that she primarily
alleged functional limitation related to the pain, but determined that it did not cause
more than mild limitation in any of the four broad functional areas and the evidence
did not establish the presence of the “C” criteria. Tr. 397, 404-06.
Dr. Deatrick completed a PRT on April 9, 2009 on which she identified that
Plaintiff’s affective disorder, specifically “depression due to pain,” was nonsevere.

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Tr. 428, 431. Dr. Deatrick also found no more than mild limitation in any of the four
broad functional areas and that the evidence did not establish the presence of the “C”
criteria.

Tr. 438-39.

Dr. Deatrick noted that Plaintiff alleged worsening of her

condition since 2007, but the December 2008 mental status examination by Plaintiff’s
primary care provider was normal and the January 2009 consultative examination
was normal in terms of Plaintiff’s mental functioning.

Tr. 440.

Dr. Deatrick

concluded that, overall, the medical evidence of record did not support significant
limitations due to mental issues. Id.
Here, the ALJ sufficiently explained his reasons for assigning reduced weight
to Dr. Abraham’s opinion. He found it was inconsistent with the overall evidence
and the opinions of other medical sources, like Drs. Dinwoodie and Deatrick, and
under the Regulations he could assign it less weight. 20 C.F.R. § 404.1527(c)(3); 20
C.F.R. § 416.927(c)(3); SSR 96-2p; Crawford, 363 F.3d at 1159-60.

The ALJ’s

decision in this regard therefore is supported by substantial evidence.

b. Whether the ALJ properly assessed Plaintiff’s credibility
Plaintiff also argues that the nine specific reasons articulated by the ALJ for
finding Plaintiff’s reports and testimony less than fully credible are not supported by
substantial evidence.

Specifically, Plaintiff contends that her activities of daily

living were not properly considered and are not inconsistent with Plaintiff’s alleged
impairments, as found by the ALJ.

The Commissioner contends that the ALJ

applied the proper legal standards, properly determined that Plaintiff’s testimony

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was not entirely credible and offered several reasons in support of his credibility
determination that are supported by substantial evidence.
To establish disability based on pain, a plaintiff must show evidence of an
underlying medical condition and either objective medical evidence confirming the
severity of the alleged pain, or that the objectively determined medical condition
reasonably can be expected to produce the alleged symptoms. Wilson v. Barnhart,
284 F.3d 1219, 1225 (11th Cir. 2002). If the ALJ determines that the plaintiff’s
impairments reasonably can be expected to produce the alleged symptoms, then the
ALJ evaluates the evidence, including the plaintiff’s testimony as to the intensity and
persistence of the symptoms and whether they impact the plaintiff’s ability to work.
20 C.F.R. § 404.1529(c)(1); 20 C.F.R. § 416.929(c)(1).
The Regulations require the ALJ to consider specific factors when making
credibility determinations. Those factors include the claimant’s daily activities; the
location, duration, frequency and intensity of pain and other symptoms; precipitating
and aggravating factors; the type, dosage, effectiveness and side effects of any
medications; treatment other than medication; and any other measures to reduce
pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); 20 C.F.R. § 416.929(c)(3). SSR
96-7p further explains the process by which a claimant’s credibility must be
evaluated:
In determining the credibility of the individual’s
statements, the adjudicator must consider the entire case
record, including the objective medical evidence, the
individual’s own statements about symptoms, statements
and other information provided by treating or examining
physicians or psychologists and other persons about the

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symptoms and how they affect the individual, and any
other relevant evidence in the case record.
A claimant’s statements as to the intensity and persistence of pain or other
symptoms, or how they affect her ability to work, may not be disregarded simply
because they are not supported by objective medical evidence; instead, the ALJ must
state specific reasons for his credibility determination and the weight given to
subjective statements, which must be supported by the record.

20 C.F.R. §

404.1529(c)(4) (subjective complaints are evaluated in relation to other evidence); 20
C.F.R. § 416.929(c)(4) (same); SSR 96-7p; Wilson, 284 F.3d at 1225 (“If the ALJ
discredits subjective testimony, he must articulate explicit and adequate reasons for
doing so.”).
Here, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms but found that her statements
as to the intensity, persistence and limiting effects of the symptoms were not entirely
credible. Tr. 32. The ALJ discussed Plaintiff’s testimony that she stopped working
in 2007 because she could no longer perform her work due to pain; spends her days
taking medication, lying down and napping; and can no longer cook, clean, or drive.

Id. The ALJ also noted that Plaintiff testified that her condition worsened, but she
did not have any diagnostic tests such as an MRI or CT scan of her spine, see a
neurologist for her condition, or go to the emergency room. Id.
The ALJ acknowledged that “[w]hen the alleged impairments consist primarily
of subjective complaints, the claimant’s credibility is especially important.” Tr. 38.
The ALJ explained that he considered Plaintiff’s statements, but found it was

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appropriate to place greater emphasis on the objective evidence than Plaintiff’s
statements. Id. For example, the ALJ noted that Plaintiff reported caring for her
elderly mother and a dog, which he stated “can be quite demanding both physically
and emotionally,” and therefore concluded that her ability to perform these activities
is inconsistent with her allegations of severe disabling symptoms. Id. The ALJ also
discussed Plaintiff’s reports that she can perform household chores, drive, shop, read
and handle financial matters. Id. at 39.
Daily activities are properly considered when evaluating complaints of
disabling pain. 20 C.F.R. § 404.1529(c)(3)(i); 20 C.F.R. § 416.929(c)(3)(i). While the
performance of everyday tasks cannot be used as the sole evidence to determine that
a claimant is not disabled, Plaintiff’s participation in such activities supports the
ALJ’s determination that she is capable of working, with restrictions.

See, e.g.,

Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (noting that the ALJ
properly discredited a treating physician’s testimony by pointing out the contrasts in
the claimants daily activities and the physician’s diagnosis); Wilson, 284 F.3d at 1226
(upholding the ALJ=s finding that the claimant=s allegations of disabling pain were
not credible because her daily activities demonstrated otherwise).

The ALJ also

noted that Plaintiff was able to work for years after her surgeries, since Plaintiff’s
most recent back surgery was in 1990 and her last shoulder surgery occurred seven
or eight years prior to the hearing, which he found also is inconsistent with her
alleged chronic pain and disability. Tr. 38.

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The ALJ also stated that the record “reflects significant gaps” in Plaintiff’s
treatment history, noting that she did not seek treatment for her physical complaints
until December 2007 and there were “significant gaps” in between visits to her
treating physician from 2007 to 2012.

Id. The ALJ determined that Plaintiff’s

failure to seek treatment during those times “indicates that her condition was not as
severe as alleged.” Id. Indeed, “[a] claimant’s failure to seek medical treatment is
also relevant in assessing credibility.” Sheldon v. Astrue, 268 Fed. Appx. 871, 872
(11th Cir. 2008). Plaintiff contends that there were no significant gaps in Plaintiff’s
medical treatment because before she was terminated her employer was her treating
physician, but she offers no evidence other than her own testimony to support this
assertion.

Doc. 21 at 23 (citing Tr. 327, 343). Although the ALJ has a duty to

develop a full and fair record, “the ALJ is not required to act as counsel to develop a
claimant’s case.” Sindaco v. Colvin, No. 6:14-cv-164-Orl-DAB, 2015 WL 867917, at
*3 (M.D. Fla. Mar. 2, 2015). Indeed, “[i]t is Plaintiff’s burden to prove that [s]he is
disabled, and, consequently, [s]he is responsible for producing evidence in support of
[her] claim.” Id. (citing Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003));

see also 42 U.S.C. § 423(d)(5)(a); 20 C.F.R. §§ 404.1512(a), (c); 20 C.F.R. §§ 416.912(a),
(c).
The ALJ also discussed how “[t]he medical records reflect that all treatment
rendered since the [AOD] has been conservative and non-aggressive.”

Tr. 39.

Plaintiff contends she did not pursue additional treatment after her surgeries
because “it was unclear whether further procedures would be possible” and that her

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failure to see a neurologist was due to her inability to find one willing to accept
Medicaid.

Doc. 21 at 23.

Plaintiff also argues that the ALJ should not have

discredited her testimony based on her use of over the counter (“OTC”) medications,
because the OTC medications were used in addition to her prescription medication.

Id. Whatever the reason, and the Court will not speculate as Plaintiff invites it to
do, the ALJ cited Plaintiff’s conservative treatment as only one of many reasons for
finding Plaintiff’s testimony less than credible. This was entirely proper for the ALJ
to consider, as “[a] doctor’s conservative medical treatment for a particular condition
tends to negate a claim of disability.” Sheldon, 268 Fed. Appx. at 872.
The ALJ also noted that Plaintiff’s treating doctor did not impose specific
standing, sitting, lifting, or concentrating restrictions, and there is evidence that
Plaintiff stopped working because she was terminated, not because she could no
longer perform the work-related duties. Tr. 39. In her brief, Plaintiff invites the
Court to speculate that Plaintiff actually stopped working due to her impairments.
As the Commissioner states, however, the question before the Court is “whether
substantial evidence supports the ALJ’s finding, not whether it supports a different
one.” Doc. 25 at 22 (citing Crawford, 363 F.3d at 1158).
Because the record contains evidence suggesting Plaintiff may have stopped
working for reasons unrelated to disability, the ALJ properly considered this evidence
in making his credibility determination. See, e.g., Levie v. Comm’r of Soc. Sec., 514
Fed. Appx. 829, 831 (11th Cir. 2013) (noting evidence that showed the plaintiff was
fired from previous employment for reasons other than inability to work supported

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the ALJ’s finding that the plaintiff was not disabled); Ricker v. Comm’r of Soc. Sec.,
No. 5:13-cv-479-Oc-18PRL, 2014 WL 6610849, at *10 (M.D. Fla. Nov. 21, 2014)
(finding the plaintiff’s admission that he stopped working because he was laid off
rather than because he was unable to work properly was considered by the ALJ in
evaluating the plaintiff’s credibility); Everette v. Astrue, No. 8:12-cv-106-T-TGW,
2013 WL 461784, at *7 (M.D. Fla. Feb. 6, 2013) (“Additionally, the law judge noted
that the plaintiff stopped working due to personal reasons, and that the plaintiff
never had a significant work history, which suggested to the law judge that the
plaintiff’s unemployment was for reasons other than an inability to work due to her
physical and mental impairments.”).

The ALJ also determined that many of

Plaintiff’s subjective complaints, such as decreased concentration, difficulty focusing,
memory problems, dizziness and her needs to lie down, elevate her legs and use an
assistive device are not supported to the degree alleged by competent medical
evidence. Tr. 39.
Credibility determinations, resolving conflicts in the evidence and drawing
inferences therefrom are functions of the Commissioner, not the Court. Parker v.

Colvin, No. 8:12-cv-1919-T-24-TGW, 2013 WL 3209443, at *2 (citing Grant v.
Richardson, 445 F.2d 656 (5th Cir. 1971) and Celebrezze v. O’Brient, 323 F.2d 989,
990 (5th Cir. 1963)). Instead, the Court’s role is limited to determining whether the
ALJ’s decision is supported by substantial evidence. To that end, “[t]the question is
not . . . whether [the] ALJ could have reasonably credited [the plaintiff’s] testimony,

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but whether the ALJ was clearly wrong to discredit it.” Werner v. Comm’r of Soc.

Sec., 421 Fed. Appx. 935, 939 (11th Cir. 2011).
Here, the ALJ determined that Plaintiff’s subjective complaints are not
entirely credible, and Plaintiff is not as limited as alleged. As set forth above, the
ALJ sufficiently explained his reasons for finding Plaintiff less than entirely credible,
and it is not for the Court to reweigh the evidence. Nor will it disturb a clearly
articulated credibility finding that is supported by substantial evidence. Hale v.

Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987); Foote, 67 F.3d at 1562 (same); Lawson
v. Astrue, No. 8:07-cv-243-T-TGW, 2008 WL 681097, at *2 (M.D. Fla. Mar. 7, 2008)
(“It is, moreover, the function of the Commissioner, and not the courts, to resolve
conflicts in the evidence and to assess the credibility of the witnesses.”) (citing Grant,
445 F.2d 656). The ALJ discussed in detail the specific portions of the record and
Plaintiff’s testimony that he found were inconsistent or exaggerated, and upon review
the Court finds that substantial evidence supports the ALJ’s credibility
determination.

c. Whether the Appeals Council erred by failing to remand this case to
an ALJ in light of new evidence
Finally, Plaintiff contends that a November 8, 2012 source statement
completed by Kenneth Miller, a physician’s assistant (“PA”), and Dr. Krishnan
undermines the ALJ’s findings and requires remand to the Commissioner.
Specifically, Plaintiff argues that the ALJ’s opinion identifies the failure to include
restrictions on standing, sitting, lifting or concentrating as a reason for assigning Dr.
Krishnan and PA Miller’s opinions reduced weight, and because the November 8

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statement includes such restrictions it is relevant to assessing both Plaintiff’s
credibility and the weight accorded to the opinions of Dr. Krishnan and PA Miller.
Doc. 21 at 19. Plaintiff acknowledges that the November 8 statement was submitted
to the Appeals Council, which considered it in conjunction with Plaintiff’s request for
review of the ALJ’s decision and made the statement part of the administrative
record.

Id. at 18; see Tr. 7-8. The Commissioner asserts that the November 8

statement does not establish that remand is warranted, because the opinion relies
mostly on Plaintiff’s subjective complaints and therefore still is entitled to little
weight. Doc. 25 at 18-19. Nor, the Commissioner argues, does it contradict the
ALJ’s opinion or show that it is more likely than not that the evidence would change
the ALJ’s disability determination. Id.
The Appeals Council will review an ALJ’s decision only if his action, findings,
or conclusion is contrary to the weight of evidence in the record. Ingram, 496 F.3d
at 1261 (citing 20 C.F.R. § 404.970(b)). The Eleventh Circuit has explained that
“[w]hen a claimant properly presents new evidence to the AC and it denies review,
we essentially consider the claimant’s evidence anew to determine whether ‘that new
evidence renders the denial of benefits erroneous.’” Burgin v. Comm’r of Soc. Sec.,
420 Fed. Appx. 901, 903 (11th Cir. 2011) (quoting Ingram, 496 F.3d at 1262). Thus,
it is for this Court to determine whether the new evidence renders the ALJ’s decision
erroneous. Ingram, 496 F.3d at 1262.
The new evidence in question is a Physical Capacity Evaluation (“PCE”) form
completed on November 8, 2012 and signed by both Dr. Krishnan and PA Miller. Tr.

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516-20. The PCE asks the author to indicate whether the patient can lift and carry
various amounts of weight never, seldom, occasionally, or frequently. Tr. 516. Dr.
Krishnan and PA Miller indicated that Plaintiff can occasionally lift and carry up to
5 pounds, seldom carry 6-10 pounds and never lift or carry any amount greater than
10 pounds, because lifting or carrying would aggravate Plaintiff’s back pain and
exacerbate her fibromyalgia. Id. The PCE also states that Plaintiff can seldom
push/pull while seated or standing, bend, or climb; and never squat, crawl, or reach
above shoulder level. Tr. 517.
PA Miller and Dr. Krishnan also state that assuming an eight hour workday,
they would expect Plaintiff to be able to sit for less than one hour, stand for less than
one hour, walk for less than three hours and alternate sitting and standing less than
two hours, and she would require frequent position changes and excessive breaks
wherein it will be necessary for her to lie down and rest. Id. The PCE also includes
additional limitations, including that Plaintiff should totally avoid unprotected
heights and moving machinery, and states that she has moderate restrictions in
driving automobile equipment and mild restrictions in exposure to marked changes
in temperature/humidity and exposure to dust, fumes and gases. Id.
With respect to pain, the PCE states that Plaintiff has severe pain that is likely
to affect her ability to concentrate in a work-like setting. Id. Although the PCE
does not indicate that Plaintiff’s impairments interfere with use of her fingers, hands,
or arms, Dr. Krishnan and PA Miller checked the “mild” box with respect to whether
Plaintiff’s impairments interfere with her abilities to perform fine and gross

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dexterous movements of her left and right upper extremities. Tr. 518. The PCE
also states that Plaintiff has muscle spasms and tenderness of marked intensity,
numbness/tingling and weakness in her lower extremities of moderate intensity and
mildly decreased sensation.

Tr. 519.

The PCE notes Plaintiff’s depressive

syndrome characterized by anhedonia or pervasive loss of interest in almost all
activities, sleep disturbance, decreased energy, feelings of guilt or worthlessness,
difficulty concentrating or thinking and thoughts of suicide. Id.
Plaintiff was noted also only to have mild restriction in her abilities to
understand or remember short, simple instructions; make judgments based on simple
work related decisions; remember locations and/or work like procedures; accept
instructions and respond appropriately to criticism from supervisors; and set realistic
goals or make plans independently of others.

Tr. 519-20.

The PCE states that

Plaintiff has “extreme” limitation in her abilities to complete a normal workday or
workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest
periods; “marked” limitation in her abilities to perform activities within a schedule,
maintain regular attendance and be punctual within customary tolerances; and
“moderate” limitation in her ability to get along with co-workers or peers without
unduly distracting them or exhibiting behavioral extremes. Tr. 520. Finally, the
PCE provides an estimate that Plaintiff would, on average, be absent four or more
days per month as a result of her impairments. Id.

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Even if the content of the PCE were to bolster Dr. Krishnan’s prior statements
as to Plaintiff’s limitations, Dr. Krishnan offers no particular grounds and cites to no
new evaluations or treatment upon which the PCE is based. See Tr. 516 (listing
“past several” visits as the basis for the opinion, rather than any clinical findings,
medical test results, or laboratory results). Moreover, the limitations in the PCE are
in stark contrast to other record evidence, such as Dr. Thomas Renny’s April 6, 2009
Physical RFC Assessment, in which he opined that Plaintiff could occasionally lift
and/or carry up to 20 pounds, frequently lift and/or carry up to 10 pounds, stand or
walk about 6 hours in an 8 hour workday with normal breaks, sit about 6 hours in an
8 hour workday with normal breaks and was not limited in her ability to push and/or
pull, except as to the weight limitations for lifting and carrying. 1 Tr. 421.
Dr. Renny also found that Plaintiff never can climb ladders, ropes, or scaffolds,
but occasionally can climb ramps and stairs, balance, stoop, kneel, crouch and crawl.
Tr. 422. He determined that Plaintiff was limited to frequently reaching for her
right side, but could perform unlimited handling (gross manipulation), fingering (fine
manipulation) and feeling.

Tr. 423.

Dr. Renny also determined that Plaintiff

should avoid concentrated exposure to vibration and hazards such as machinery and
heights due to her medications, but otherwise had no environmental limitations. Tr.
424.

Similar limitations were identified in a Physical RFC Assessment completed by
Single Decisionmaker Jennifer Drieu, but the ALJ assigned no weight to this opinion because
“she is not an acceptable medical source.” Tr. 41; see Tr. 412-19.
1

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The Regulations provide that an ALJ may properly assign reduced weight to a
treating source opinion that is inconsistent with and unsupported by other evidence
in the record. 20 C.F.R. §§ 404.1527(c)(3), (4); 20 C.F.R. §§ 416.927(c)(3), (4); SSR
96-2p; Crawford, 363 F.3d at 1159-60. Generally, “[a]n ALJ must give a treating
physician’s opinion substantial weight, unless good cause is shown.”

Castle v.

Colvin, 557 Fed. Appx. 849, 854 (11th Cir. 2014) (citing Phillips, 357 F.3d at 1240);
20 C.F.R. § 404.1527(c)(2); 20 C.F.R. § 416.927(c)(2); Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Sabo v. Comm’r of Soc. Sec., 955 F. Supp. 1456, 1462
(M.D. Fla. 1996).

“Good cause exists when the ‘(1) treating physician’s opinion was

not bolstered by the evidence; (2) evidence supported a contrary finding; or (3)
treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.’” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir.
2011) (quoting Phillips, 357 F.3d at 1240).
Finally, although Plaintiff correctly contends that the ALJ identified Dr.
Krishnan’s failure to “provide the physical and/or mental work limitations that make
the claimant disabled” as a basis for assigning Dr. Krishnan’s opinion less than
controlling weight, the ALJ identified and enumerated a total of eight grounds that
he believed demonstrated good cause for according the treating doctor’s opinion
reduced weight. Tr. 40. Specifically, the ALJ found that Dr. Krishnan’s opinion
was entitled to reduced weight because he only had seen Plaintiff five times by
November 25, 2008, when he opined about her ability to work; the November 25, 2008
opinion was rendered without objective diagnostic testing; recent treatment records

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did not include a diagnosis of a spine disorder and reflect normal musculoskeletal
examinations; his opinion that Plaintiff is disabled does not include diagnoses of
conditions that form the basis of his opinion; Dr. Krishnan’s opinion is not “well
supported” by medically acceptable clinical and laboratory diagnostic techniques; and
the medical evidence of record failed to confirm the severity of Plaintiff’s conditions,
and Dr. Krishnan’s opinion is inconsistent with the medical evidence and the record
as a whole. Id.
Upon thorough review of the entire record, including the PCE submitted
directly to the Appeals Council, the ALJ identified good cause for according Dr.
Krishnan’s opinion reduced weight; and the November 8, 2012 PCE does not
undermine the ALJ’s disability determination. Instead, the Court concludes that
substantial evidence supports the ALJ’s decision. As such, the Appeals Council did
not err by failing to remand the case to the ALJ for further consideration.
V.

Conclusion

When reviewing the final decision of the Commissioner, the Court does not
“reweigh the evidence” or “decide the facts anew.”

Winschel, 631 F.3d at 1178.

Thus, much of what Plaintiff invites the Court to reconsider is beyond the limited
scope of the Court’s review, as it would require such reweighing.

Instead, upon

review of the record as a whole, the Court finds that the ALJ applied the proper legal
standards when determining that Plaintiff is not disabled, and his decision is
supported by substantial evidence. Moreover, because the new evidence submitted
for the first time to the Appeals Council does not render the ALJ’s actions, findings

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or conclusion contrary to the weight of evidence in the record, the Appeals Council
did not err by failing to remand the case to the ALJ for further consideration.
ACCORDINGLY, it is hereby
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, and close the file.
DONE and ORDERED in Fort Myers, Florida on this 4th day of June, 2015.

Copies:
Counsel of record

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