Menz v. Commissioner of Social Security

Filing 24

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 9/24/2015. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PENNY MENZ,
Plaintiff,
v.

Case No: 2:14-cv-485-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Penny Menz appeals the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying her claim for disability
insurance benefits (“DIB”). For the reasons discussed herein, the decision of the
Commissioner is affirmed.
I.

Issues on Appeal

Plaintiff raises two issues on appeal:

(1) whether substantial evidence

supports the Administrative Law Judge’s (“ALJ”) residual functional capacity
(“RFC”) finding; and (2) whether the ALJ erred by not including Dr. Nancy Kelly’s
RFC limitations in his findings while assigning great weight to the opinions of Dr.
Kelly.

II.

Procedural History and Summary of the ALJ’s Decision

On March 16, 2011, Plaintiff filed an application for DIB alleging that she
became disabled and unable to work on August 11, 2010.

Tr. 160. 1

The

Commissioner initially denied her claim on May 4, 2011 and upon reconsideration on
July 7, 2011. Tr. 65, 72. Plaintiff requested and received a hearing in front of ALJ
M. Dwight Evans on February 1, 2013, during which she was represented by an
attorney. Tr. 31. Plaintiff and vocational expert, Dr. Robert Lessne, testified at the
hearing.
On June 21, 2013, the ALJ issued a decision finding that Plaintiff is not
disabled and denying her claim. Tr. 13-25. The ALJ first determined that Plaintiff
met the insured status requirements of the Social Security Act through December 31,
2014.

Tr. 15.

At step one, the ALJ found that Plaintiff has not engaged in

substantial gainful activity since August 11, 2010, the alleged onset date. Id. At
step two, the ALJ determined that Plaintiff has the following severe impairments:
status post anterior cervical discectomy and fusion at C6-7, residual neck pain and
headaches, carpal tunnel syndrome of the left extremity (non-dominant hand), carpal
tunnel syndrome of the left hand, major depressive disorder (recurrent, moderate),
alcohol abuse and borderline intellectual functioning. Id. At step three, the ALJ
concluded that Plaintiff “does not have an impairment or combination of impairments

Citations to the administrative record filed at Doc. 15 are denoted “Tr.” followed by
the appropriate page number.
1

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that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1.” Id.
Taking into account the effects from all of Plaintiff’s impairments, the ALJ
determined that Plaintiff has the RFC to perform light work as defined in 20 C.F.R.
§ 404.1567(b) with additional limitations. Tr. 17. The ALJ found that Plaintiff’s
medically determinable symptoms reasonably could be expected to cause the alleged
symptoms, but her statements concerning intensity, persistence and limiting effects
of these symptoms are not entirely credible. Tr. 18. The ALJ found that Plaintiff
is unable to perform any of her past relevant work as a real estate agent, real estate
manager or door-to-door sales representative but found that there are other jobs
existing in significant numbers in the national economy that Plaintiff can perform
such as order clerk, telephone solicitor or checker. Tr. 23. Thus, the ALJ found that
Plaintiff is not disabled and denied her claim. Tr. 24.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on July 30, 2014. Tr. 1-3. Accordingly, the ALJ’s April
26, 2013 decision is the final decision of the Commissioner. Plaintiff filed an appeal
in this Court on August 21, 2014. Doc. 1.
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.

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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 district court must view the record as a whole, taking into account
evidence favorable as well as unfavorable to the decision.” Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995); 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). 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)).
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, 67 F.3d at 1560 (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).

The Commissioner’s findings of fact are conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g).
Accordingly, where the Commissioner’s decision is supported by substantial
evidence, the district court will affirm, even if the reviewer would have reached a

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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).
IV.

Discussion

a. Whether substantial evidence supports the ALJ’s RFC finding
Plaintiff first argues that the ALJ’s RFC finding is not supported by
substantial evidence because the record contains evidence from four physicians
opining that Plaintiff is disabled. Doc. 19 at 16. Plaintiff asserts that the ALJ
rejected those opinions and instead relied on his own lay evaluation of the evidence.

Id. The Commissioner counters that the ALJ considered the medical and other
evidence of record and assessed Plaintiff’s RFC using the sequential evaluation
process defined in the regulations.

Doc. 20 at 8.

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 “does 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. 15.

The ALJ then proceeded to assess and make a finding

regarding the claimant’s RFC. The RFC is the most that a claimant can do despite

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her limitations. 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 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)).
Under the regulations, the ALJ must weigh any medical opinion based on the
treating relationship with the claimant, the length of the treatment relationship, the
evidence the medical source presents to support his opinion, how consistent the
opinion is with the record as a whole, the specialty of the medical source and other
factors. See 20 C.F.R. § 404.1527(c)(2)-(6). Opinions of treating sources usually are
given more weight because treating physicians are the most likely to be able to offer
detailed opinions of the claimant’s impairments as they progressed over time and
“may bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations . . . .”
20 C.F.R. § 404.1527(c)(2). If the opinion of a treating physician as to the nature and

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severity of a claimant’s impairment is supported by acceptable medical evidence and
is not inconsistent with other substantial evidence of record, the treating physician’s
opinion is entitled to controlling weight. Id.
By contrast, if the ALJ does not afford controlling weight to a treating
physician’s opinion, he must clearly articulate the reasons for doing so. Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Although the regulations
require that the ALJ consider all factors set forth in 20 C.F.R. § 404.1527(c), the ALJ
is not required to expressly address each factor so long as he demonstrates good cause
to reject the opinion. Lawton v. Comm’r of Soc. Sec., 431 Fed. Appx. 830, 833 (11th
Cir. 2011). “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.’” Castle v. Colvin, 557 Fed. Appx. 849, 854 (11th Cir. 2014) (quoting Phillips

v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004)); Green v. Soc. Sec. Admin., 223
Fed. Appx. 915, 922 (11th Cir. 2007) (“Good cause to discount a treating physician
may arise where a report ‘is not accompanied by objective medical evidence or is
wholly conclusory.’”) (quoting Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159
(11th Cir. 2004) (per curiam)). “The ALJ may also devaluate the opinion of a treating
physician where the opinion is contradicted by objective medical evidence.” Green,
223 Fed. Appx. at 922.
In his decision, the ALJ found that Plaintiff retained the ability to perform
light work as defined in 20 C.F.R. § 404.1567(b), with specific limitations. Tr. 17.

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In doing so, he noted that he considered the entire record, including Plaintiff’s
physical and mental limitations. Tr. 17. Contrary to Plaintiff’s assertions, the ALJ
properly considered and rejected portions of the opinions of Dr. Jose Cabrera, Dr.
Eshan Kibria, Dr. George Adams and Dr. John Prater. Tr. 18-22. The ALJ properly
considered the opinions of these doctors along with the record as a whole and either
discounted the weight or rejected the opinions as being inconsistent with the record.

Id.
1. Dr. Jose Cabrera M.D.
Plaintiff first alleges that the ALJ improperly rejected the opinions of
Plaintiff’s treating neurosurgeon, Dr. Jose Cabrera M.D., that Plaintiff’s pain
precluded her from sitting for an extended period of time and that her pain was
disabling. Doc. 19 at 19. The ALJ gave little weight to the opinions of Dr. Cabrera
because he found they were unsupported by objective evidence, which shows no
abnormality, and treatment records from other physicians that indicate improvement
of Plaintiff’s pain. Tr. 21-22. Moreover, the ALJ found that the opinions were based
primarily on Plaintiff’s subjective complaints. Tr. 22.
Plaintiff sought treatment from Dr. Cabrera for neck, left shoulder and arm
pain from August 13, 2010 through February 24, 2011. Tr. 243, 348-353. An MRI
was performed on August 12, 2010, which revealed that Plaintiff had a herniated disk
at C6-C7. Tr. 244. Dr. Cabrera performed a discectomy and fusion at C6-C7 on
August 15, 2010. Tr. 250-54. Dr. Cabrera had a follow-up visit with Plaintiff on
February 24, 2011 and found that her extremity pain had improved but she still

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complained of neck pain. Tr. 348. Dr. Cabrera found: “[Plaintiff] appears to be
disabled on account that her pain, according to her, is significant and prevents her
from doing any kind of sitting for a long time or any other kind of work she used to
do before.” Id. (emphasis added). He noted that on February 3, 2011 she had a CT
scan of the cervical spine, which was consistent with an anterior cervical fusion at
C6-C7 and showed satisfactory alignment. Tr. 277, 348. Dr. Cabrera also noted
that the x-rays provided by Dr. Moyer, a neurosurgeon, revealed no abnormalities
that would require further surgery and suggested that Plaintiff return to Dr. Cabrera
with the CT scan. Tr. 348.
When Dr. Cabrera’s findings are compared with the other evidence of record,
the ALJ properly found his opinions to be inconsistent with the other evidence or
based largely on Plaintiff’s subjective complaints.

An ALJ properly discounts a

medical opinion when the opinion is conclusory or is largely based upon Plaintiff’s
subjective complaints. Crawford, 363 F.3d at 1159-60. Here, Dr. Cabrera explicitly
stated that “according to [Plaintiff]” she can no longer work due to her pain. Tr. 348.
He provided no objective evidence, however, to support this finding. Moreover, Dr.
Cabrera’s statement that Plaintiff “appears to be” disabled because of her pain is not
only conclusory but is a finding reserved for the Commissioner.

20 C.F.R. §

404.1527(d). The regulations provide that opinions that a claimant is disabled are
not medical opinions but are, instead, “opinions on issued reserved to the
Commissioner because they are administrative findings.” Id. “We will not give any
significance to the source of an opinion on issues reserved to the Commissioner….”

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20 CFR § 404.1527(d)(3). Accordingly, the ALJ properly discounted the opinions of
Dr. Cabrera.

2. Dr. Eshan Kibria
Plaintiff next alleges that the ALJ improperly rejected the portion of the
findings of the consultative examination of her treating neurologist, Dr. Eshan
Kibria, regarding how long Plaintiff can sit, stand and walk in an 8-hour day. Doc.
19 at 19; Tr. 22. Specifically, the ALJ rejected Dr. Kibria’s opinions in the Medical
Source Statement finding that Plaintiff could only sit, stand and walk for one hour at
a time without interruption, stand and walk for a total of one hour per day, and sit
for a total of two hours per day. Tr. 22, 551.
Dr. Kibria performed the physical examination of Plaintiff on December 20,
2012.

Tr. 545.

During the examination, Dr. Kibria noted that there was no

evidence of weakness, pronation or drift in any muscle group. Tr. 546. Plaintiff’s
graded motor strength in all four extremities was 5/5 including hand grips. Id. Dr.
Kibria noted that Plaintiff appeared comfortable sitting.

Tr. 545.

Dr. Kibria’s

examination also revealed that Plaintiff had a normal sensory examination. Tr. 546.
He further reported that Plaintiff’s gross and fine finger dexterity was normal, and
Plaintiff could hold a cup and pen/pencil, button and unbutton and open doors with
both hands. Id. Plaintiff had a normal station and gait. Id. Dr. Kibria noted in
the Medical Source Statement that Plaintiff could occasionally lift up to twenty
pounds and carry up to ten pounds; occasionally reach overhead with both hands;
frequently reach, handle, finger, and feel with both hands; occasionally push or pull

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and operate foot controls; occasionally perform all postural activities except climbing
ladders and scaffolding. Tr. 550-54. These findings are largely consistent with the
other evidence of record including the findings by Dr. Robert Mehrberg, Plaintiff’s
pain management doctor. Tr. 312-20.
The ALJ noted that Plaintiff underwent pain management services with Dr.
Mehrberg from January 11, 2011 through February 23, 2011 along with physical
therapy recommended by Dr. Mehrberg from March 7, 2011 through May 3, 2011.
Tr. 19, 312-20, 327-28, 418. Dr. Mehrberg noted Plaintiff continued to suffer from
residual neck pain but her range of motion improved with treatment. Tr. 312-20,
418. Moreover, Dr. Mehrberg performed a physical examination of Plaintiff and
found that Plaintiff was negative for joint and muscle pain as well as numbness and
tingling. Tr. 312-14. Dr. Mehrberg also found that Plaintiff had normal muscle
strength and tone, and her muscle strength was a 5/5 in the major muscle groups.
Tr. 312-14, 379-83. Dr. Mehrberg prescribed Nucynta for pain, but the ALJ noted
that Plaintiff never filled the prescription indicating that her pain was not as limiting
as alleged. Tr. 380, 19.
To the extent Dr. Kibria’s assessment of Plaintiff was consistent with the other
record evidence, the ALJ adopted the opinion. Tr. 22. The ALJ, however, found
that the objective medical evidence and physical examinations did not support Dr.
Kibria’s opinion in its entirety.

Id.

Accordingly, the ALJ rejected part of the

opinion. Id. Dr. Kibria noted in the Medical Source Statement that Plaintiff could
sit, stand and walk for one hour at a time without interruption, stand and walk for a

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total of one hour per day, and sit for a total of two hours per day, but these findings
appear to be based more on Plaintiff’s comment that she lays on the couch for 4 hours
per day. Tr. 551. Because a portion of Dr. Kibria’s opinions are conclusory, the
ALJ properly discounted that portion of Dr. Kibria’s opinion.

3. Dr. George Adams
Plaintiff next alleges that the ALJ erred in rejecting Dr. George Adams’ clinical
findings and opinion that Plaintiff is disabled. Doc. 19 at 19; Tr. 22. Dr. Adams, a
consultative internist, examined Plaintiff on May 1, 2011. Tr. 571-75. During the
examination, Plaintiff complained of upper neck and back pain.

Tr. 571.

On

examination, Dr. Adams found that Plaintiff had decreased grip and muscle strength,
reduced range of motion in her neck and shoulders, and a slight loss of lumbar motion.
Tr. 574. Dr. Adams also found, among other things, that Plaintiff’s maximum ability
to stand was less than two hours during an eight hour day and that Plaintiff would
likely be absent from work more than three times per month due to her impairments.
Tr. 576-77. Dr. Adams opined that in his opinion Plaintiff was disabled. Tr. 575.
As previously noted, it is not an error for an ALJ to reject Dr. Adams’ opinion
to the extent the opinion was inconsistent with the other record evidence. Crawford,
363 F.3d at 1159. Dr. Adams’ opinion was inconsistent with opinions of Dr. Kibria,
Dr. Mehrberg and Dr. Adam Heller when Dr. Adams opined that Plaintiff had
decreased grip and muscle strength.

Tr. 574.

Dr. Mehrberg performed

examinations one month before and only three days after Dr. Adams’ May 1, 2011
examination and found that Plaintiff had 5/5 muscle strength in all of the major

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muscle groups. Tr. 383, 441. Dr. Kibria performed her examination of Plaintiff in
December 2012 and also found that Plaintiff had 5/5 muscle strength. Tr. 546. Dr.
Heller found that Plaintiff’s muscle strength was a 5/5 during his examinations
conducted throughout 2012. Tr. 480-81, 487, 498, 505-06, 512.
Moreover, Dr. Adams’ finding that Plaintiff is disabled is not entitled to any
special weight. 20 CFR § 404.1527(d). While the ALJ must consider and evaluate
Dr. Adams’ findings, the opinion of whether someone is disabled is reserved for the
Commissioner because it is an administrative finding that is dispositive of a case.

Id. “Giving controlling weight to such opinions would, in effect, confer upon the
treating source the authority to make the determination or decision about whether
an individual is under a disability, and thus would be an abdication of the
Commissioner’s statutory responsibility.” SSR 96-5p.

Here, the ALJ considered

the opinions Dr. Adams and properly gave it little weight as it was not consistent
with the other record evidence and a finding of disability is reserved for the
Commissioner.

4. Dr. John Prater
Plaintiff also alleges that the ALJ improperly rejected Dr. John Prater’s
opinions regarding Plaintiff’s physical and mental limitations. Doc. 19 at 20. Dr.
Prater is a psychiatrist who began treating Plaintiff beginning in 2012. Tr. 565.
Dr. Prater suggested that Plaintiff could have a permanent disability due to her
depression, chronic pain, hypothyroid disease and vitiligo. Id. The ALJ discounted
this opinion regarding Plaintiff’s physical limitations because it was outside the scope

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of Dr. Prater’s expertise, and Dr. Prater never performed a physical examination of
Plaintiff. Tr. 22. Moreover, the ALJ found that Dr. Prater’s opinions regarding
Plaintiff’s mental impairments were not consistent with the other record evidence.

Id. The Court agrees.
When determining how to accord weight a physician’s opinion, the physician’s
specialty is one of the factors the ALJ considers. 20 C.F.R. § 404.1527(c)(5). Here,
Dr. Prater specialized in psychiatry and never performed a physical examination of
Plaintiff.

Therefore, the ALJ properly reduced the weight given to Dr. Prater’s

opinions regarding Plaintiff’s physical impairments. Moreover, during Dr. Prater’s
psychiatric evaluations, he found that Plaintiff presented no acute distress, her
outlook tended to be generally upbeat, there was no cognitive impairment and no
gross impairments in judgment.

Tr. 518-20.

Thus, his opinion suggesting that

Plaintiff has a permanent disability is inconsistent with his treatment records.
Therefore, the ALJ properly discounted Dr. Prater’s opinion regarding Plaintiff’s
physical and mental disabilities. Moreover, as noted, a finding of disability is an
issued reserved for the Commissioner. 20 C.F.R. § 404.1527(d).
Upon review of the record, with respect to Plaintiff’s impairments, the ALJ
properly assessed Plaintiff’s RFC based upon Plaintiff’s medical history, daily
activities, lay evidence and medical source statements consistent with the
requirements of 20 C.F.R. § 404.1545(a). The ALJ discussed the relevant evidence
and found that despite her impairments, Plaintiff retained the ability to perform light
work, with limitations. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004);

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Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. §
404.1545(a)).

b. Whether the ALJ erred by not including Dr. Kelly’s RFC limitations
in his findings while assigning great weight to the opinions of Dr.
Kelly
Finally, Plaintiff argues that the ALJ improperly assigned great weight to Dr.
Kelly’s opinions while rejecting other portions of her opinions. Doc. 19 at 22-23.
Plaintiff states that the ALJ failed to include in the RFC Dr. Kelly’s opinion that
Plaintiff has marked limitation in her ability to deal with stress and a moderate
limitation in maintaining attention and concentration.

Doc. 19 at 22.

The

Commissioner responds that the ALJ accorded great but not controlling weight to Dr.
Kelly’s opinions. Doc. 20 at 15. The Commissioner also states that the regulations
place the final responsibility for determining a Plaintiff’s RFC with the ALJ, based
upon all of the evidence in the record, not just the relevant medical evidence. Id.
“An opinion on an applicant’s RFC is not a medical opinion, but rather a
decision reserved to the Commissioner, to be based on medical sources, and the
physician’s opinion in this respect is not entitled to deference.” Shaw v. Astrue, 392
F. App’x. 684, 681 (11th Cir. 2010) (citing 20 C.F.R. §§ 404.1527(e), 416.927(e).
While the ALJ must consider a medical source statement along with the other record
evidence, the determination regarding a Plaintiff’s RFC is reserved for the
Commissioner. 20 C.F.R. § 404.1527(d).
Dr. Kelly performed a psychological and intelligence evaluation on December
21, 2012. Tr. 556-61. Dr. Kelly found Plaintiff to be cooperative with a neutral

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mood and anxious affect. Tr. 557.

Dr. Kelly noted that Plaintiff’s attention,

concentration, and recent and remote memory skills appeared to be mildly impaired.
Tr. 558. Dr. Kelly also stated that during the examination, Plaintiff was able to
understand instructions and respond thoughtfully to presented tasks. Id. Dr. Kelly
performed the Wechsler Adult Intelligence Scale test, and the results revealed that
Plaintiff’s full-scale IQ is 76, placing her in the borderline range and indicating
significant intellectual defects. Tr. 558-59. Dr. Kelly opined in the medical source
opinion section of her report that Plaintiff may have moderate difficulties
maintaining attention and concentration and marked difficulties dealing with stress.
Tr. 560.
Plaintiff alleges that the ALJ, without explanation, failed to include in the RFC
limitations in handling stress and attention and concentration.

Doc. 19 at 23.

Plaintiff’s argument is misplaced because the regulations require only that the ALJ

consider the medical source opinion along with all of the other evidence. 20 C.F.R. §
404.1545(e); SSR 96-5p (emphasis added). “A medical source’s statement about what
an individual can still do is medical opinion evidence that an adjudicator must
consider together with all of the other relevant evidence when assessing an
individual’s RFC.” SSR 96-5p. An adjudicator may, but is not required to, adopt all
of the opinions expressed in a medical source statement. Id.
Here, the ALJ properly considered Dr. Kelly’s opinions included in the medical
source statement section of her examination report, despite that the information
related to Plaintiff’s difficulty dealing with stress, attention and concentration was

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not included on the Medical Source Statement of Ability to do Work-Related Activities
Form.

The ALJ considered this information when he found that Plaintiff has

moderate difficulties in social functioning. Tr. 16. He noted that Plaintiff does not
handle stress well.

Id.

The ALJ considered Dr. Kelly’s opinions regarding

Plaintiff’s difficulties with attention and concentration when he found that Dr. Kelly’s
extreme findings in understanding, remembering, and carrying out instructions were
not supported by the evidence of record.

Tr. 22.

While, the ALJ may not have

specifically included in the RFC Dr. Kelly’s findings regarding stress, attention and
concentration, the Court finds that the ALJ properly considered the opinions in
accordance with the regulations.
V.

Conclusion

Upon review of the record, the undersigned concludes that the ALJ applied the
proper legal standards, and his determination that Plaintiff is not disabled is
supported by substantial evidence. Where, as here, the Commissioner’s decision is
supported by substantial evidence, the Court must affirm, even if the reviewer would
have reached a contrary result as finder of fact, and even if the preponderance of the
evidence is against the Commissioner’s decision.

Barnes, 932 F.2d at 1358.

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Edwards, 937 F.2d at 584 n.3;

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 24th day of September,
2015.

Copies:
Counsel of record

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