Hill v. Commissioner of Social Security

Filing 18

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is REVERSED and this matter be REMANDED. See Opinion and Order for details. The Clerk of Court is directed to enter judgment accordingly, and close the file. Signed by Magistrate Judge Carol Mirando on 3/31/2016. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CAROLINE HILL,
Plaintiff,
v.

Case No: 2:14-cv-708-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Plaintiff Caroline Hill seeks judicial review of the denial of her claim for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”) by the
Commissioner of the Social Security Administration (“Commissioner”). The Court
has reviewed the record, the briefs and the applicable law. For the reasons discussed
herein, the decision of the Commissioner is reversed, and this matter is remanded to
the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four.
I.

Issues on Appeal

Plaintiff raised three issues: 1 (1) whether substantial evidence supports the
finding of Administrative Law Judge Larry J. Butler (the “ALJ”) that Plaintiff does
not have a severe mental impairment; (2) whether the ALJ erred by failing to consider
Plaintiff’s mental impairments, fibromyalgia, and carpal tunnel syndrome in the
Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now, Inc.
v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) ([A] legal claim or argument
that has not been briefed before the court is deemed abandoned and its merits will not be
addressed.”), cited in Sanchez v. Comm'r of Soc. Sec., 507 F. App'x 855, 856 (11th Cir. 2013).
1

assessment of Plaintiff’s residual functional capacity (“RFC”); 2 and (3) whether
substantial evidence supports the ALJ’s finding that Plaintiff’s allegations of
disabling limitations were not credible.
II.

Procedural History and Summary of the ALJ Decision

On September 5, 2010, Plaintiff filed applications for DIB and SSI, alleging a
disability onset date of August 23, 2010. Tr. 71-72, 128-130. The claims initially
were denied on January 4, 2011 and upon reconsideration on March 18, 2011. Tr.
71-74, 95, 97-98, 100. Plaintiff requested and received a hearing before the ALJ on
September 19, 2012, during which she was represented by an attorney. Tr. 31-70.
As of the date of the hearing, Plaintiff was forty-seven years old. Tr. 34. Plaintiff
testified at the hearing. Tr. 31-70. The ALJ issued an unfavorable decision on May
6, 2013. Tr. 25.
The ALJ found Plaintiff met the insured status requirements of the Social
Security Act through June 30, 2014. Tr. 15. At step one, the ALJ concluded that
Plaintiff has not engaged in any substantial gainful activity since the alleged onset
date, August 23, 2010.

Id. At step two, the ALJ found that Plaintiff “has the

following severe impairments: atypical chest pain, cardiomyopathy, hypertension,

In her first enumerated argument, Plaintiff argues that the ALJ erred in finding
Plaintiff’s mental impairments to be non-severe and in failing to consider her mental
impairments in the evaluation of her RFC. Doc. 13 at 7. In her second enumerated
argument, Plaintiff argues that the ALJ erred in failing to consider Plaintiff’s fibromyalgia
and her carpal tunnel syndrome in the evaluation of Plaintiff’s RFC. Id. at 12. For better
organization and clarity, the Court will separately discuss whether the ALJ erred in finding
Plaintiff’s mental impairments to be non-severe and will discuss whether ALJ erred in
omitting Plaintiff’s mental impairments from his evaluation of Plaintiff’s RFC together with
Plaintiff’s second enumerated argument.
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cervical spinal stenosis, cervical radiculopathy, degenerative disc disease of the
cervical and lumbar spine, neck and back pain, and obesity.” Tr. 15. 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 B, Appendix 1 . . .” Tr. 18. The ALJ
determined that Plaintiff had the RFC to perform a full range of light work. 3 Tr. 19.
He found that Plaintiff is able to occasionally lift/carry twenty pounds, frequently
lift/carry ten pounds, stand/walk about six hours in an eight-hour workday, sit about
six hours in an eight-hour workday, and has unlimited ability to push and pull
including operation of hand and/or foot controls. Id. He further found that Plaintiff
can frequently balance; and she can occasionally climb ramps and stairs, stoop, kneel,
crouch, and crawl. Id. He also found that Plaintiff can never climb ladders, ropes,
and scaffolds. Id. The ALJ noted that “frequently” is defined as less than twothirds of an eight hour workday and “occasionally” is defined as less than one-third
of an eight hour workday. Id.

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The regulations define “light work” as follows:
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. If someone can
do light work, we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or inability to sit for long
periods of time.

20 C.F.R. §§ 404.1567(b); 416.967(b).

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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 the limiting effects of the symptoms are not
fully credible. Tr. 20. Next, the ALJ found that Plaintiff is capable of performing
her past relevant work as cashier (general), Department of Transportation (“DOT”)
#211.462-010, light exertion and unskilled with an SVP of 2. Tr. 24. In comparing
Plaintiff’s RFC with the physical and mental demands of this work, the ALJ found
that Plaintiff is able to perform it as generally performed.

Id.

Thus, the ALJ

concluded that Plaintiff has not been disabled through the date of the decision. Id.
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. Tr.
1-7.

Accordingly, the ALJ’s May 6, 2013 decision is the final decision of the

Commissioner. Plaintiff filed an appeal in this Court on December 5, 2015. Doc. 1.
Both parties have consented to the jurisdiction of the magistrate judge, and this
matter is now ripe for review. Doc. 9.
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 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;
416.920. The Eleventh Circuit has summarized the five steps as follows:

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(1) whether the claimant is engaged in substantial gainful activity; (2)
if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform his
past relevant work; and (5) if not, whether, in light of his age, education,
and work experience, the claimant can perform other work that exists
in “significant numbers in the national economy.”

Atha v. Comm'r, Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion
through step four; and, at step five, the burden shifts to the Commissioner. Id.;

Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The Eleventh Circuit has noted that
the Commissioner’s burden at step five is temporary, because “[i]f the Commissioner
presents evidence that other work exists in significant numbers in the national
economy, ‘to be considered disabled, the claimant must then prove that he is unable
to perform the jobs that the Commissioner lists.’” Atha, 616 F. App'x at 933 (citing

Doughty v. Apfel, 245 F.3d 1274, 1278 n. 2 (11th Cir.2001)). 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 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 1553, 1560

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(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).
The Eleventh Circuit recently has restated that “[i]n determining whether
substantial evidence supports a decision, we give great deference to the ALJ’s
factfindings.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir.
2015) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th
Cir. 1996). 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).
It is the function of the Commissioner, and not the courts, to resolve conflicts in the
evidence and to assess the credibility of the witnesses. Lacina v. Commissioner,
2015 WL 1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656
(5th Cir.1971)).

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IV.

Analysis

a.

Whether substantial evidence supports the ALJ’s finding that Plaintiff
does not have a severe mental impairment

Plaintiff argues that the ALJ erred in finding that Plaintiff’s anxiety and
depression were not severe mental impairments. Doc. 13 at 7-10; Doc. 17 at 1-4.
As a result, the ALJ also did not incorporate any mental limitations in evaluating
Plaintiff’s RFC.

Doc. 13 at 7.

The Commissioner responds that substantial

evidence supports ALJ’s decision to find Plaintiff’s mental impairments non-severe.
Doc. 14 at 5-6.
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);

416.920(a)(4)(ii). Plaintiff bears the burden of establishing that her impairments are
severe and prevent the performance of her past relevant work. Bowen, 482 U.S. at
146 n.5. If the ALJ determines a claimant has a severe impairment, as here, the
analysis moves to step three. See 20 C.F.R. § 404.1520(a)(4). “An impairment is
not severe only if the abnormality is so slight and its effect so minimal that it would
clearly not be expected to interfere with the individual’s ability to work, irrespective
of age, education, or work experience.” McDaniel v. Bowen, 800 F.2d 1026, 1031
(11th Cir. 1986).
The Social Security Regulations provide that an “impairment or combination
of impairments is not severe if it does not significantly limit your physical or mental
ability to do basic work activities.” 20 C.F.R. § 404.1521(a), 416.921(a). Basic work
activities mean “the abilities and aptitudes necessary to do most jobs.”

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Id. §

404.1521(b), 416.921(b).

Examples of mental requirements set forth in the

regulations include understanding, carrying out, and remembering simple
instructions; use of judgment; responding appropriately to supervision, co-workers
and usual work situations; and dealing with changes in a routine work-setting. Id.
§ 404.1521(b)(3)-(6), 416.921(b)(3)-(6).
In order to evaluate the severity of a mental impairment, the Commissioner’s
regulations require the application of a “special technique,” which the ALJ applied in
this case.

20 C.F.R. §§ 404.1520a, 416.920a; see Tr. 17-18.

Under the special

technique, the ALJ will rate the degree of functional limitation in four broad
functional areas: activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3),
416.920a. The degree of limitation in the first three areas are rated on a five point
scale of none, mild, moderate, marked, and extreme; and the fourth area is rated as
none, one or two, three, four or more. 20 C.F.R §§ 404.1520a(c)(4), 416.920a(c)(4).
Once the degree of limitation in each area is determined, if the degree of limitation in
the first three functional areas is none or mild and the fourth area is none, the ALJ
generally will find, as he did here, the impairment is not severe, unless the evidence
otherwise indicates more than a minimal limitation in ability to do basic work
activities. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). The ALJ’s decision must
incorporate findings and conclusions based on the special technique. 20 C.F.R. §§
404.1520a(e)(4), 416.920a(e)(4). Moreover, “a claimant whose claim is based on a
mental condition does not have to show a 12-month period of impairment unmarred

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by any symptom free interval.” Henning v. Colvin, 2015 WL 248413, at *19 (N.D.
Fla. 2015).
Here, the ALJ applied the proper legal standards in step two of the sequential
evaluation process, and his findings are supported by substantial evidence. After
determining that Plaintiff had severe impairments of atypical chest pain,
cardiomyopathy, hypertension, cervical spinal stenosis, cervical radiculopathy,
degenerative disc disease of the cervical and lumbar spine, neck and back pain, and
obesity, the ALJ stated, “[t]he claimant’s medically determinable mental impairment
of major depression/mood disorder does not cause more than minimal limitation in
[her] ability to perform basic mental work activities and is therefore nonsevere.” Tr.
16. The ALJ found that Plaintiff’s mental impairments were not severe so long as
she complied with her medication and treatment regimen. Tr. 17.
The ALJ considered Plaintiff’s mental impairments in his analysis of whether
they qualified as severe impairments by examining both the medical records and
opinion evidence. Tr. 16-17. The ALJ considered Plaintiff’s records from the David
Lawrence Center (the “DLC”) where she first presented in August 17, 2010. Tr. 1617, 414-15. Plaintiff was referred to the DLC by her treating chiropractor due to
symptoms of depression. Tr. 414. During her evaluation, Plaintiff identified that
she experienced extreme situational anxiety and stress in the previous two to three
years and that she had worsening symptoms of anxiety, was socially isolated,
experienced crying spells, memory loss, and had difficulty controlling ruminations in
the past several months. Id. Tr. 415. During her mental status examination, her

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behavior was appropriate; her intelligence, insight, and judgment were normal; and
she appeared competent to consent to medications.

Id.

While she had some

difficulty remaining quiet, she was able to redirect herself and listen to recommended
changes in medication. Id. There was no evidence of psychosis, and she denied
suicidal or homicidal and assaultive ideas.
disorder, not otherwise specified.

Id.

Id.

She was diagnosed with mood

She was prescribed Lexapro and

Clonazepam 4 and agreed to follow-up within the next four weeks. Id. The ALJ
noted that “[s]he does not appear to have returned to the [DLC] for further treatment
or medication management despite her allegedly disabling complaints from mental
impairments.” Tr. 17. The record does not contain any additional treatment notes
from DLC.

Moreover, when requested by the Social Security Administration to

complete a Treating Source Mental Status report, the psychiatrist at the DLC
returned an unsigned and blank report with a notation on the cover that read “[c]an
not complete documents per Dr[.]” Tr. 17, 507-09.
The ALJ specifically discussed two treatment notes from Plaintiff’s
neurologist, Dr. Ron Howard, M.D., in 2010, 5 in which Dr. Howard noted that
Plaintiff’s mood, sleeping, and activities of daily living were okay while she was on
Lexapro and that she was feeling better with Klonopin. Tr. 17, 447, 450. Next, the

Clonazepam is a generic name for Klonopin, and is used to treat seizure disorders
or panic disorder. http://www.drugs.com/clonazepam.html
4

The ALJ cited specific pages in the transcript for those treatment notes. While the
month and days are not legible on the specific pages referenced by the ALJ, one of them is a
duplicate of a treatment note in page 441 of the transcript, which shows a date of September
27, 2010. Tr. 441.
5

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ALJ considered a psychological evaluation of Plaintiff performed by David B.
Rawlings, Ph.D., on December 6, 2010.

Tr. 17, 422-26.

During the evaluation,

Plaintiff stated that she had been depressed for the previous three years and was
seeking psychiatric consultation at DLC once per month.

Tr. 422-23.

Plaintiff

reported memory problems: She reported misplacing her items, forgetting
appointments, forgetting to take her medication on time, and repeating questions or
stories.

Tr. 423.

Plaintiff acknowledged feelings of apathy, helplessness, and

hopelessness and stated that she stays in her bedroom most of the day. Id. She
reported weight loss due to a decline in her appetite. Id. Plaintiff denied homicidal
or suicidal intent or ideation. Id. Plaintiff appeared slightly disheveled and her
mood and affect were sullen, flat, and depressed. Id. She was emotionally liable
throughout the interview, spent a considerable amount of time crying and blowing
her nose, and used up an entire box of Kleenex. Tr. 424-25. Plaintiff’s behavior
suggested full cooperation and her speech was generally coherent and prosodic. Tr.
423, 425. Plaintiff was administered the Folstein MMSE, which yielded a score of
27 out of 30, which was determined to be a “mild impairment” compared to
individuals of similar age and years of education. Id. She had slight problems with
serial 7s.

Id.

Moreover, Plaintiff “was administered the Beck Depression

Inventory-II, which yielded a score of (44) suggestive of severe depressive
symptomology. Endorsements on the Beck Anxiety Inventory (17) suggested
moderate levels of anxiety symptomatology.” Id. She was diagnosed with major
depression, superimposed on a dysthymia, sleep disturbance, and hypoactive sexual

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desire disorder. The report concluded: “Should this patient be granted benefits, she
would be unlikely at this time to be able to manage her finances well because of her
severe depression.” Tr. 426.
The ALJ also consulted the psychiatric review technique form completed by
Dr. Nancy Dinwoodie on December 14, 2010 and accorded it great weight. Tr. 17,
427-28. Dr. Dinwoodie opined that Plaintiff had only a mild limitation in restriction
of activities of daily living; difficulties in maintaining social functioning; and
difficulties in maintaining concentration, persistence, or pace. Tr. 437. She found
no episodes of decompensation. Id. Dr. Dinwoodie determined Plaintiff’s alleged
mental impairments to be “not severe” and opined that Plaintiff was taking her pain
medications and performing well with all of her activities of daily living. Tr. 427,
439. The ALJ further discussed the opinion of a different state agency psychological
consultant, Michael Zelenka, Ph.D., from March 18, 2011, who reviewed the evidence
in the file at the time and reviewed and affirmed Dr. Dinwoodie’s psychiatric review
form. Tr. 510. The ALJ also gave this opinion great weight, as he found that this
and Dr. Dinwoodie’s opinion were supported by the totality of the medical evidence.
Tr. 17. Based on the foregoing discussion and “the totality of evidence,” the ALJ
found that Plaintiff “appears to be primarily limited by her physical difficulties and
there is no indication of a severe [mental] impairment at this time.” Tr. 17.
Additionally, upon applying the special technique and considering the four
broad functional areas for evaluating mental disorders, the ALJ found only mild
limitations in Plaintiff’s activities of daily living; social functioning; and

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concentration, persistence or pace.

Tr. 17-18.

He found no episodes of

decompensation of extended duration. Tr. 18. With regard to her activities of daily
living, the ALJ found that they were primarily affected by her alleged physical
impairments. Id. In determining her mild limitation in social functioning, the ALJ
considered the Social Security Administration’s Function Report completed by
Plaintiff on October 29, 2010. Tr. 18, 255-62. In the report, Plaintiff stated that
people visit her and she sits and talks with her guests; however, she dislikes being
around people, including her children. Tr. 259. She stated that everyone makes
her angry, even her husband, and she just wants to be alone. Tr. 260. The ALJ
found that Plaintiff was “consistently noted as being cooperative, pleasant, and
without abnormal behavior. . . . She spends time with others.” Tr. 18. He also found
that her “mental status examinations have essentially been within normal limits or
showed only slight limitations.” Id. The ALJ noted that the evidence of record did
not indicate that Plaintiff had ever experienced an episode of decompensation. Id.
Based on these findings, the ALJ found that Plaintiff’s mental impairments were nonsevere. Tr. 18.
Plaintiff first argues that the ALJ erred in relying upon the opinions of the
state agency medical consultants, which were issued more than two years prior to the
ALJ’s decision, and in disregarding the “overwhelming weight of the medical
evidence” when he found that Plaintiff’s mental impairments were de minimis and
trivial. Doc. 13 at 7-10. As stated, in his May 6, 2013 decision, the ALJ gave great
weight to the opinions of two state agency psychological consultants, dated December

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14, 2010 and March 18, 2011. Tr. 17. When determining how much weight to afford
an opinion, the ALJ considers whether there is an examining or treatment
relationship and the nature and extent thereof; whether the source offers relevant
medical evidence to support the opinion; consistency with the record as a whole; the
specialization of the source, if any; and any other factors that tend to support or
contradict the opinion. 20 C.F.R. § 404.1527(c)(1)-(6). Findings of fact made by
state agency medical and psychological consultants as to the nature and severity of a
claimant’s impairments must be treated as expert opinion evidence of nonexamining
sources by the ALJ; but the ultimate opinions as to whether a claimant is disabled,
the severity of a claimant’s impairments, the claimant’s RFC and the application of
vocational factors are exclusively reserved to the Commissioner.

SSR 96-6p; 20

C.F.R. § 404.1527(d)(1)-(2). Unless a treating source’s opinion is given controlling
weight, the ALJ must explain the weight given to the opinions of other consultants,
doctors or medical specialists. 20 C.F.R. § 404.1527(e)(2)(ii); Vuxta v. Comm’r of Soc.

Sec., 194 F. App’x 874, 877 (11th Cir. 2006).
Here, the ALJ gave great weight to the opinions because they were supported
by the “totality of the medical evidence.” Tr. 17. The Court has reviewed the record
as a whole, taking into account evidence favorable as well as unfavorable to the
decision, and agrees with the Commissioner that substantial evidence supports the
ALJ’s decision not to include Plaintiff’s mental impairments as severe impairments.
As discussed below, the record reveals that Plaintiff’s anxiety and depression were
controlled with medication. On August 30, 2010, one week after the alleged onset

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date, Dr. Howard noted that Dr. Robert Allen had prescribed Plaintiff Klonopin and
Lexapro; Plaintiff had been taking Lexapro for nine days, but her mood had been
about the same. 6 Tr. 451. On September 27, 2010, she reported to Dr. Howard that
she was taking Lexapro but there was no improvement in her mood; however, she
was able to perform her activities of daily living well.

Tr. 441, 450.

On a

subsequent visit, the date of which cannot be determined due to the image of the
treatment note, her mood was described as “okay,” and she was able to perform her
activities of daily living. Tr. 447.
On November 8, 2010, Plaintiff was referred to Dr. Esham M. Kibria for an
independent medical examination. Tr. 417-18. She reported a history of depression
and that she was taking medications for it.

Tr. 418.

A mental status exam

revealed that her “[w]ork related mental activities, understanding, memory,
concentration, social interaction and adaptation [were] intact.” Tr. 418. She was
“[o]riented to time, place, and person. Historical events were related in a coherent
organized manner. There was a normal fund of general information and [she had]
normal speech pattern.”

Tr. 418.

The impression diagnosis from this medical

examination included depression. Tr. 418. On a December 20, 2010 visit with Dr.
Howard, her mood was described as “fair.” Tr. 446. Subsequently, on January 1,
2011, Dr. Howard noted that “[h]er mood has been ok,” and Plaintiff was “sleeping
fairly well.” Tr. 444. On February 14, 2011, Dr. Howard also noted that “her mood

On the previous visit, on August 2, 2010, Dr. Howard explained that Plaintiff’s mood
was “down,” but she denied suicidal ideation. Tr. 452.
6

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has been good.”

Tr. 442.

During these visits with Dr. Howard and Dr. Allen,

Plaintiff was using Lexapro for her depression. See 417, 441-42, 444, 446-47, 45051.
During the times when Plaintiff presented to her medical appointments tearful
or distressed, the relevant medical records do not reveal that she was taking any
medication for her anxiety and depression. For instance, on June 2, 2011, Plaintiff
presented to Donald D. Newman, M.D., at the Naples Medical Center, P.A. Tr. 516.
She was upset and very tearful, and reported that she needed a new pain
management doctor because Dr. Howard was no longer providing pain management
services to patients.

Id.

Dr. Newman prescribed Celexa to Plaintiff for her

depression. Id. Dr.
On June 10, 2011, Plaintiff presented to Neuroscience and Spine Associates.
Tr. 591-95. Her mental status exam showed Plaintiff to be alert and oriented to
person, place, and time. Tr. 594. Her language and cortical functions appeared
intact.

Id.

Her spontaneous speech, repetition, naming, attention and

concentration were intact.

Id.

Dr. F. Desmond Hussey, M.D., commented that

“[s]he does have some depression for which she has been started on new medication,
and she is going to bring that medication to us in the next visit. She has not picked it
up from her primary care doctor.” Tr. 595. Dr. Hussey suggested Plaintiff should
try Cymbalta. Id. A list of the medications that Plaintiff was taking during this
visit does not include Lexapro or any other medication for her depression as of the
date of this visit. See Tr. 593.

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On July 11, 2011, she presented again to Dr. Hussey with symptoms of
depression and anxiety. Tr. 564-67. Again, a list of the medications that Plaintiff
was taking during this visit does not include Lexapro or any other medication for her
depression as of the date of this visit. Id. On August 9, 2011, Dr. Hussey discussed
with Plaintiff her depressive issues and recommended starting her on Wellbutrin at
150 milligrams for a week, and then increasing her dosage. Tr. 563. On December
5, 2011, Dr. Hussey noted that Plaintiff’s depression was “better.”

Tr. 544.

A

review of the medical record from this visit does not list which medications Plaintiff
was taking at the time. See Tr. 544-47.
Alternatively, when Plaintiff was taking her prescribed medication, she
presented well; and her doctors opined that the medications were helping her. On
February 1, 2012, Plaintiff’s symptomology for depression was present; but a mental
status exam with Dr. Hussey showed her to be alert and oriented to person, place,
and time. Tr. 536-39. Her language and cortical functions appeared intact. Tr. 538.
Her spontaneous speech, repetition, naming, attention, and concentration were
intact. Id. During this visit, she was taking Lexapro. Id. On February 29, 2012,
Dr. Hussey noted that Plaintiff’s “depression is stable. The medication does help her.”
Tr. 535.

On March 28, 2012, Dr. Hussey noted Plaintiff’s history of depression;

however, and stated that “[s]he is stable on medications. They seem to afford her
benefits.” Tr. 569, 571-72. On April 25, 2012, Dr. Hussey noted that Plaintiff’s
depression had been her main issue, so he increased her medication dosage. Tr. 580.
The following month, during her May 23, 2012 visit with Dr. Hussey, a review of the

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checked-off symptoms shows “negative” for depression and anxiety. Tr. 573. On
June 13, 2012, Plaintiff appeared at the North Collier Hospital due to a fall six days
earlier. Tr. 527. Her general appearance was pleasant, alert, and cooperative. Tr.
528.

Thus, substantial evidence supports the finding of the ALJ that Plaintiff’s

depression seemed to be controlled with medications.
Plaintiff next argues that the ALJ failed to cite any evidence in support of his
finding that Plaintiff has only mild limitations in activities of daily living and
sustaining concentration, persistence, or pace. Doc. 13 at 7-10; Doc. 17 at 1-4. As
previously stated, with regard to her activities of daily living, the ALJ found that they
were primarily affected by her alleged physical impairments. Tr. 17. While the
ALJ did not elaborate any further with respect to Plaintiff’s activities of daily living
in the same paragraph, his opinion specifically referenced two treatment notes from
Dr. Howard that Plaintiff was able to perform her activities of daily living. Tr. 17,
447, 450. Plaintiff also argues that the ALJ erred in evaluating Plaintiff’s social
functioning when he ignored Plaintiff’s hearing testimony but relied on a single
disability report completed by Plaintiff in October 2010, more than two and a half
years before the ALJ issued his opinion.

Doc. 13 at 8-9.

The Commissioner

responds, and the Court agrees, that the regulations permit the ALJ to consider
Plaintiff’s function report in evaluating her mental impairments. Doc. 14. at 9. See
20 C.F.R. 404.1529(c)(4). Moreover, it is the function of the Commissioner, and not
the courts, to resolve conflicts in the evidence and to assess the credibility of the
witnesses. Lacina v. Commissioner, 2015 WL 1453364, at *2 (11th Cir. 2015) (citing

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Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)).
The ALJ’s findings at step two are consistent with the medical records and the
state agency’s psychologists’ opinions, and are therefore supported by substantial
evidence.

Additionally, this circuit holds that the ALJ’s finding “of any severe

impairment, whether or not it qualifies as a disability and whether or not it results
from a single severe impairment or a combination of impairments that together
qualify as severe, is enough to satisfy the requirement of step two.” Jamison v.

Bowen, 814 F.2d 585, 588 (11th Cir. 1987). This is because after proceeding beyond
step two of the process, the ALJ must consider all of the claimant’s impairments
taken as a whole when determining whether her impairments qualify as a disability
(step three) and whether she can return to her past work (step four) or, if not, whether
she can perform other work available in the national economy (step five). Id., see 20
C.F.R. § 404.1520(a)(4). As the Eleventh Circuit has stated, “[n]othing requires the
ALJ must identify, at step two, all of the impairments that should be considered
severe.”

Heatly v. Comm’r of Soc. Sec., 832 F. App’x 823, 825 (11th Cir. 2010).

Thus, even if the ALJ committed an error at step two, it is a harmless error, because
the ALJ complied with the sequential evaluation process and proceeded to step
three. 7
In her second enumerated argument, in a very brief summary, Plaintiff argues, “the
ALJ failed to explain whether [Plaintiff’s carpal tunnel syndrome] was severe or not severe
at step two and failed to consider the impairment when formulating the RFC.” Doc. 13 at
12. Pursuant to this circuit’s precedent that nothing requires the ALJ to identify every
severe impairment at step two, and the Court’s finding that the ALJ considered Plaintiff’s
carpal tunnel syndrome in the RFC analysis, as will be discussed infra, the Court finds the
ALJ’s omission of Plaintiff’s carpal tunnel syndrome as a severe impairment to be a harmless
error. See e.g. Jamison, 814 F.2d at 588.
7

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b.

Whether the ALJ erred by failing to consider Plaintiff’s mental
impairments, fibromyalgia and carpal tunnel syndrome in the
assessment of Plaintiff’s RFC

Plaintiff argues that the ALJ erred in failing to incorporate Plaintiff’s
medically determinable impairments of anxiety, depression, and carpal tunnel
syndrome in her RFC.

Doc. 13 at 7, 11-12.

Plaintiff also argues that she was

diagnosed with fibromyalgia, which is a recognized medically determinable
impairment, pursuant to Social Security Ruling (“SSR”) 12-2p, and the ALJ erred in
failing to incorporate this into Plaintiff’s RFC. Doc. 13 at 10-12. The Commissioner
argues that while the records indicate that Plaintiff was diagnosed with these
impairments, diagnosis alone does not prove the severity or limiting effects of these
impairments. Doc. 14 at 8-11. According to the Commissioner, Plaintiff has not
advanced any evidence to show her impairments resulted in any restrictions affecting
her ability to work in excess of her RFC. Id.
When the ALJ finds that an impairment does not meet or equal a listed
impairment at step three, as in this case, the ALJ then 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.
416.920(e).

Tr. 18-19; 20 C.F.R. §§ 404.1520(e),

The ALJ is required to assess a claimant’s RFC based on all of the

relevant evidence in the record, including any medical history, daily activities, lay
evidence and medical source statements.
416.945(a), 416.946(c).

20 C.F.R. §§ 404.1545(a), 404.1546(c),

The claimant’s age, education and work experience, and

whether she can return to her past relevant work are considered in determining her

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RFC. 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 relevant evidence of a

claimant’s ability to do work despite her 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)). The ALJ also “must consider all allegations of physical and mental
limitations or restrictions,” not just those determined to be severe. 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2); SSR 96-8p; Gibson v. Heckler, 779 F.2d 619, 623 (11th
Cir. 1986). The ALJ is required to consider the combined effects of a claimant’s
alleged impairments and make specific, well-articulated findings as to the effect of
the impairments and whether they result in disability. Walker v. Bowen, 826 F.2d
996, 1001 (11th Cir. 1987).
With respect to Plaintiff’s mental impairments, despite the objective evidence
indicating that Plaintiff suffers from depression and anxiety, the ALJ failed to discuss
these impairments and how they affect Plaintiff’s RFC. While the ALJ concluded
that these impairments were non-severe at step two, the ALJ still was required to
evaluate how the impairments affect Plaintiff’s RFC. 20 C.F.R. §§ 404.1545(a)(2),
416.945(a)(2); SSR 96-8p; Gibson, 779 F.2d at 623.

Surprisingly, the ALJ

acknowledges that the mental RFC assessment “requires a more detailed assessment
by itemizing various functions contained in the broad categories found in paragraph
B”; yet he fails to do so. 8 Tr. 18. The ALJ merely makes a mention of Plaintiff’s
The ALJ concludes his step two analysis as follows: “The mental residual functional
capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a
more detailed assessment by itemizing various functions contained in the broad categories
found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of
8

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testimony regarding her depression that “[s]he reported isolating herself in her room
and only coming out for meals or to use the bathroom.” Tr. 20. The ALJ failed to
include any well-articulated findings whatsoever as to how Plaintiff’s mental
impairments may impact her RFC. This utter lack of discussion renders the Court
unable to determine whether the ALJ even considered the limiting effects of these
impairments. Gibson, 779 F.2d at 623.
Similarly, despite the objective evidence that Plaintiff was diagnosed with
fibromyalgia, as the Commissioner concedes, the ALJ failed to discuss this
impairment and how it affects Plaintiff’s RFC. Doc. 14 at 9; Tr. 15-24, 536, 540, 550,
571, 579. SSR 12-2p provides guidance on how to evaluate fibromyalgia in disability
claims.

2012 WL 3104869. 9

Ruling 12-2p provides:

Relating to the RFC assessment, Social Security

“For a person with [fibromyalgia], we will consider a

longitudinal record whenever possible because the symptoms of [fibromyalgia] can
wax and wane so that a person may have ‘bad days and good days.’”

Id. at *6.

Plaintiff testified that she quit her job due primarily to her pain. Tr. 37-38, 40-45,
51. Dr. Hussey diagnosed Plaintiff with fibromyalgia after a physical exam showed
that Plaintiff had “fibromyalgia tender points in the upper back, neck, and
shoulders.”

Tr. 566.

As listed in SSR 12-2p, trigger points are one of the

Impairments (SSR 96-8p). Therefore, the following residual functional capacity assessment
reflects the degree of limitation the undersigned has found in the “paragraph B” mental
function analysis.” Tr. 18. It is unclear to the Court whether the last sentence in this
paragraph is an attempt by the ALJ to incorporate his step two findings in the RFC analysis.
The Court, however, declines to make this assumption.
SSRs are binding on all components of the Social Security Administration. See 20
C.F.R. 402.35(b)(1).
9

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paradigmatic symptoms frequently associated with fibromyalgia. Id. It has been
recognized that “[g]iven the nature of fibromyalgia, a claimant's subjective
complaints of pain are often the only means of determining the severity of a patient's
condition and the functional limitations caused thereby.” Somogy v. Comm'r of Soc.

Sec., 366 F. App'x 56, 64 (11th Cir. 2010). Because of the nature of this condition,
the Court is unable to accept the Commissioner’s argument in this case that diagnosis
alone does not does not speak to whether the condition affects a claimant’s ability to
work. Doc. 14 at 10. There is no discussion relating to Plaintiff’s fibromyalgia in
the ALJ’s opinion, thus the Court is unable to determine whether the ALJ applied
SSR 12-2p. The complete lack of discussion renders the Court unable to determine
whether the impairments were considered singly and in combination, and may have
an effect on Plaintiff’s credibility determination, as will be discussed infra. Gibson,
779 F.2d at 623.
Contrary to Plaintiff’s assertions, however, the ALJ considered Plaintiff’s
carpal tunnel syndrome in evaluating Plaintiff’s RFC.

Evidence in the record

regarding Plaintiff’s carpal tunnel syndrome includes Plaintiff’s testimony, medical
treatment notes, and EMG and nerve studies. Plaintiff testified that her hands go
numb, and she drops things all the time. Tr. 45. She testified that she is losing the
motor function in her right hand. Id. Dr. Hussey acknowledged that Plaintiff “does
have some carpal tunnel on the right [hand].” Tr. 532; see also Tr. 567. An EMG
and nerve study in 2011 indicated that she had “very mild median sensory
mononeurophathies bilaterally, consistent with compression of the median nerve at

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the wrist (carpal tunnel syndrome).” Tr. 614. Similarly, an EMG and nerve study
in February 2012, the findings were exactly the same, except, in addition, there were
“no findings to suggest a radial palsy on the right.” Tr. 603. The ALJ specifically
referenced Plaintiff’s testimony that “she could not even carry a gallon of milk,” that
“her hands and wrists go numb[, and that] she drops things and is losing motor
function in the right hand.” Tr. 20. He also noted that “she reported tenderness
and numbness and tingling in the arms” to Dr. Hussey.

Tr. 21.

The ALJ also

considered and referred to both findings from Plaintiff’s EMG and nerve studies in
June 2011 and February 2012. Tr. 21-22. The ALJ concluded that Plaintiff’s mild
findings do not support her testimony that she is unable to hold objects with the right
arm.

Tr. 22.

Thus, contrary to Plaintiff’s assertions, the ALJ considered and

specifically discussed the evidence of record with regard to Plaintiff’s carpal tunnel
syndrome, and this discussion amounted to more than “a rote recitation of [Plaintiff’s]
medical records,” as Plaintiff suggests. Doc. 13 at 12.
The ALJ’s failure to include any well-articulated findings as to how Plaintiff’s
mental impairments and fibromyalgia may impact her RFC and the lack of discussion
concerning these impairments renders the Court unable to determine whether the
ALJ considered their limiting and combined effects. Remand therefore is warranted
as to these issues. On remand, the ALJ should address and explain the limiting
effects, if any, of Plaintiff’s mental impairments and fibromyalgia. The ALJ should
consider these impairments singularly and in combination to determine disability.

See Gibson, 779 F. 2d at 623. If the ALJ determines on remand that Plaintiff’s

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mental impairments and fibromyalgia do not affect her RFC, the ALJ should include
the relevant evidence supporting that conclusion, as required by the regulations.

See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). Because he failed to do so here, the
Court finds that the ALJ’s determination of Plaintiff’s RFC is not supported by
substantial evidence.

c.

Whether substantial evidence supports the ALJ’s finding that Plaintiff’s
allegations of disabling limitations were not credible.

Plaintiff next argues that the ALJ’s credibility determination is not supported
by substantial evidence. Doc. 13 at 12-16. While the ALJ found that Plaintiff’s
“medically determinable impairments could reasonably be expected to cause the
alleged symptoms,” he concluded that the Plaintiff’s “statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
credible.” Tr. 20.
When assessing the credibility of subjective complaints, an ALJ considers: (1)
evidence of an underlying medical condition; and (2) objective medical evidence either
(a) confirming the severity of alleged symptoms, or (b) indicating that the medical
condition could be reasonably expected to cause symptoms as severe as alleged. See
20 C.F.R. §§ 404.1529, 416.929; Wilson v. Barnhart, 284 F.3d 1219, 1225-26 (11th Cir.
2002); Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The pain standard “is
fully consistent with the Secretary's regulations.” Elam v. R.R. Ret. Bd., 921 F.2d
1210, 1215 (11th Cir. 1991). If the objective medical evidence does not confirm the
severity of the alleged symptoms but indicates that the claimant’s impairments could
reasonably be expected to produce some degree of pain and other symptoms, the ALJ

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must evaluate the intensity and persistence of the claimant’s alleged symptoms and
their effect on his ability to work. See 20 C.F.R. § 404.1529(c)(1); Wilson, 284 F.3d at
1225-26; Foote, 67 F.3d at 1561. The ALJ compares the claimant’s statements with
the objective medical evidence, the claimant’s daily activities, treatment and
medications received, and other factors concerning limitations and restrictions the
symptoms cause.

See 20 C.F.R. § 404.1529(c). “If the ALJ discredits subjective

testimony, he must articulate explicit and adequate reasons for doing so. Failure to
articulate the reasons for discrediting subjective testimony requires, as a matter of
law, that the testimony be accepted as true.” Wilson, 284 F.3d at 1225 (internal
citations omitted).
Because it is unclear whether the ALJ considered all of the record evidence,
including the subjective nature of fibromyalgia, the Court finds that reconsideration
on remand is appropriate. Accordingly, the Court will direct the Commissioner to
reevaluate Plaintiff’s credibility when the Commissioner considers all of the record
evidence.
V.

CONCLUSION

Upon review of the record, the undersigned concludes that the ALJ failed to
apply the proper legal standards when he failed to make a specific finding as to
whether Plaintiff’s mental impairments and fibromyalgia significantly limit
Plaintiff’s ability to perform her PRW and affect her credibility. Therefore, the Court
finds that the ALJ’s decision is not supported by substantial evidence.

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Plaintiff requests that the Court remand the case to an administrative law
judge (“ALJ”) other than ALJ Larry Butler, as ALJ Butler is subject to ongoing
disciplinary proceedings by the Commissioner, some of which allegations concern
cases in which Plaintiff’s counsel was involved. Doc. 13 at 16-18. In order to avoid
any appearance or risk of actual bias or prejudgment, the case should be reheard by
a different ALJ. See Withrow v. Larkin, 421 U.S. 35, 47 (1975).
ACCORDINGLY, it is hereby
ORDERED:
1.

The decision of the Commissioner is REVERSED and this matter be

REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g),
for the Commissioner to:
A. sufficiently explain the effects of Plaintiff’s mental impairments and
fibromyalgia on her RFC, if any;
B. reevaluate Plaintiff’s credibility; and
C. make any further determinations consistent with this Opinion and
Order, or in the interests of justice.
2.

The Commissioner shall reassign the case for rehearing to an

Administrative Law Judge other than Administrative Law Judge Larry Butler.
3.

The Clerk of Court is directed to enter judgment accordingly, and close

the file.

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DONE and ORDERED in Fort Myers, Florida on this 31st day of March, 2016.

Copies:
Counsel of record

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