Mayer v. Commissioner of Social Security

Filing 21

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 7/25/2016. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMANDA MAYER,
Plaintiff,
v.

Case No: 2:15-cv-315-FtM-38CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Amanda Mayer appeals the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying her claim for disability
insurance benefits, period of disability, and supplemental security income. For the
reasons discussed herein, the decision of the Commissioner is affirmed.
I.

Issues on Appeal 1

Plaintiff raises two issues on appeal: (1) whether the residual functional
capacity (“RFC”) finding of Administrative Law Judge (“ALJ”) Larry J. Butler is
supported by substantial evidence; and (2) whether the ALJ erred in failing to obtain
a vocational expert (“VE”).

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

1

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 n.1 (11th Cir.
2013).

II.

Procedural History and Summary of the ALJ’s Decision

Plaintiff protectively filed an application for disability insurance benefits, a
period of disability, and supplemental security insurance on November 15, 2010. Tr.
138, 142. The Social Security Administration denied her claim initially on May 6,
2011 and upon reconsideration on July 14, 2011. Tr. 92, 98, 107, 110. Plaintiff
requested and received a hearing before ALJ Larry J. Butler on February 11, 2013,
during which she was represented by an attorney. Tr. 40-77. Plaintiff testified at
the administrative hearing. Id.
The ALJ issued an unfavorable decision on January 6, 2014.

Tr. 21-32.

Initially, the ALJ determined that Plaintiff met the insured status requirements of
the Social Security Act on June 30, 2012. Tr. 23. At step one, the ALJ determined
that Plaintiff has not engaged in substantial gainful activity since January 1, 2008,
the alleged onset date. Id. At step two, the ALJ determined that Plaintiff has the
following severe impairments: status post carcinoma of the thyroid; a history of
Keinbock [sic] 2 syndrome of the right wrist; left wrist and thumb pain; and arthralgia.

Id. 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. 26.
Taking into account the effects from all of Plaintiff’s impairments, the ALJ
determined that Plaintiff has the RFC to:

As defined by Plaintiff using the proper spelling, “Kienböck’s disease is a condition where the blood
supply to one of the small bones in the wrist, the lunate, is interrupted.” Doc. 19 at 2. See
http://www.assh.org/handcare/hand-arm-conditions/kienbocks-disease.
2

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perform the full range of light work as defined in 20 CFR 404.1567(b)
and 416.967(b). [Plaintiff] is able to occasionally lift/carry 20 pounds,
frequently lift/carry 10 pounds, stand/walk about 6 hours in an 8-hour
workday, sit about 6 hours in an 8-hour workday, and has unlimited
ability to push and pull including operation of hand and/or foot controls.
[Plaintiff] has a mild restriction with use of the wrists but can still
frequently use the wrists to perform manipulative actions such as
reaching in all directions, gross and fine manipulation and feeling.

Id. 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 were not fully credible.
Tr. 27. At step four, the ALJ found that Plaintiff is unable to perform any past
relevant work.

Tr. 31.

At step five, however, the ALJ determined that in

“[c]onsidering [Plaintiff’s] age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
[Plaintiff] can perform. . . .” Tr. 32. Thus, the ALJ found that Plaintiff is not disabled
and denied her claim. Id.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on April 20, 2015. Tr. 1-3. Accordingly, the January 6,
2014 decision is the final decision of the Commissioner. Plaintiff filed an appeal in
this Court on May 21, 2015. 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 to either result in death or last for a
continuous period of not less than twelve months. 20 C.F.R. § 404.1505(a). The
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Commissioner has established a five-step sequential analysis for evaluating a claim
of disability. See 20 C.F.R. § 404.1520. The Eleventh Circuit has summarized the
five steps as follows:
(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 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
(11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206,

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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 fact
findings.” 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, 606 F. App’x
520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)).
IV.

Discussion

a. Whether the ALJ’s RFC finding is supported by substantial evidence
Plaintiff first contends that substantial evidence does not support the ALJ’s
RFC finding that Plaintiff’s mental limitations were non-severe impairments, and

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thus the RFC erroneously has no non-exertional mental limitations. Doc. 19 at 16.
She argues it is unclear what weight, if any, the ALJ gave to the opinions of licensed
psychologist Dr. Cheryl Kasprzak and instead relied mostly on the conclusions of the
two non-examining state agency consultants, neither of whom reviewed the records
from Plaintiff’s treating psychiatrist. Id. at 16-17.
Plaintiff further argues that the ALJ failed to consider the effects of Plaintiff’s
complaints of pain on the RFC, the ALJ wrongly found that Plaintiff’s surgery was
successful, and the ALJ minimized Plaintiff’s difficulties performing fine and gross
manipulation and reaching. Doc. 19 at 17. Plaintiff states that pain can be disabling
even when objective evidence does not support the allegedly disabling level of pain.

Id.

Further, her extensive treatment with a pain management physician and

rheumatologist contradicts the ALJ’s finding that surgery was successful, and the
records establish significant difficulties using her hands. Id.
In response, the Commissioner argues that the ALJ’s determination of
Plaintiff’s RFC was supported by substantial evidence.

Doc. 20 at 3, 11.

The

Commissioner states that there is a lack of medical records to support a finding of
severity with regard to the alleged mental impairments. Id. at 5. Additionally, the
Commissioner states that the ALJ properly assessed the intensity, persistence, and
limiting effects of Plaintiff’s symptoms to determine that Plaintiff’s complaints about
pain, surgery, and difficulty using her hands were not entirely credible. Id. at 11-12.
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

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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).
In this case, the ALJ determined Plaintiff’s RFC by taking into account
Plaintiff’s testimony regarding her education, work experience, and daily activities.
Tr. 27. The ALJ considered Plaintiff’s medical records from 2007 through 2013 and
discussed them in detail. Tr. 27-30. In terms of Plaintiff’s mental impairments,
physical impairments and pain, the ALJ found that objective evidence did not support
her allegations of the severity of the pain and the degree of limitation she alleged.
Tr. 30-31. This was proper for the ALJ to do. See 20 C.F.R. § 404.1529(c)(2).

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i.

Non-severe mental impairments

At the second step in the sequential evaluation process, the ALJ determines
whether the claimant has a severe impairment.

20 C.F.R. § 404.1520(a)(4)(ii).

Plaintiff bears the burden of establishing that her impairments are severe. Bowen,
482 U.S. at 146 n.5. A severe impairment is an impairment or combination of
impairments that significantly limits a claimant’s physical or mental ability to do
basic work activities. 20 C.F.R. § 404.1520(c). “A non-severe impairment is a slight
abnormality which has such a minimal effect on the individual that it could not be
expected to interfere with the individual’s ability to work, irrespective of age,
education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984).
“The ALJ must consider every impairment alleged.” Gibson v. Heckler, 779 F.2d 619,
623 (11th Cir. 1986). When determining a claimant’s RFC, the ALJ “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); SSR 96-8p. 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).
Here, at step two, the ALJ considered the four broad functional areas (the
“paragraph B criteria”) set out in the disability regulations for evaluating mental
disorders and in section 12.00C of the Listing of Impairments (20 C.F.R., Part 404,
Subpart P, Appendix 1) to determine that Plaintiff’s medically determinable mental
impairments of anxiety disorder and affective disorder do not cause more than

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minimal limitations in Plaintiff’s ability to perform basic mental work activities and
are therefore non-severe. Tr. 24. The ALJ reviewed the medical evidence discussed
herein (including Dr. Kasprzak’s February 7, 2011 evaluation) and questioned
Plaintiff extensively at her February 11, 2013 administrative hearing to establish
what limitations exist in each functional area contained in the paragraph B criteria.
Tr. 25-27. The first functional area is activities of daily living. Tr. 25. According to
Dr. Kasprzak’s evaluation records, Plaintiff showers and dresses daily without
assistance, cooks and feeds herself simple meals, and is able to do a variety of
household chores. Tr. 585. At the hearing, Plaintiff testified that she is able to dress
herself, make simple meals, and do certain household chores with some assistance.
Tr. 70. Therefore, the ALJ found that Plaintiff has only mild limitations in this area.
Tr. 25.
The second functional area is social functioning. Tr. 26. The ALJ found that
Plaintiff has no limitation in this area as she is in a romantic relationship and
participates in activities such as camping with her friends twice a month. Id. The
next functional area is concentration, persistence, or pace. Id. Dr. Kasprzak’s mental
status examination reported that Plaintiff’s immediate memory was mixed, her
recent memory was within normal limits, her remote memory was adequate, her
attention and concentration were adequate, and she was able to follow written and
spoken instructions. Tr. 585. Therefore, the ALJ determined that Plaintiff has mild
limitations in this area. Tr. 26. The fourth and final functional area is episodes of
decompensation. Id. In reviewing the medical evidence, the ALJ determined that

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Plaintiff had experienced no episodes of decompensation. Id. The ALJ noted that the
RFC assessment reflects the degree of limitation that was found in the “paragraph
B” mental function analysis. Id.
Although the ALJ found that Plaintiff’s mental impairments were non-severe,
the ALJ found that Plaintiff suffered from severe impairments (Tr. 23) and continued
through the sequential evaluation to step five. Tr. 26-32. The Eleventh Circuit has
noted that the finding of any severe impairment is enough to satisfy step two,
“because once the ALJ proceeds beyond step two, he is required to consider the
claimant’s entire medical condition, including impairments the ALJ determined were
not severe.” Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 902 (11th Cir. 2011).
Thus, even assuming the ALJ erred when he concluded that Plaintiff’s mental
impairments were non-severe, that error was harmless, because the ALJ considered
all of her impairments, including those she deemed non-severe, when determining
Plaintiff’s RFC.

ii.

Non-exertional mental limitations in the RFC

Plaintiff states that substantial evidence does not support the ALJ’s finding in
the RFC that Plaintiff has no non-exertional mental limitations. Doc. 19 at 16.
Specifically, Plaintiff argues that despite Dr. Kasprzak’s examinations revealing
memory abnormalities, diagnosis of panic disorder without agoraphobia, depressive
disorder not otherwise specified, obsessive compulsive disorder, a Global Assessment
of Functioning (“GAF”) score of 52, and a prognosis that Plaintiff was “guarded for
gainful employment,” the ALJ found that Plaintiff’s depressive and anxiety disorders

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were non-severe impairments that would “clearly not be expected to interfere with
[Plaintiff’s] ability to work.” Doc. 19 at 16. The Commissioner responds that the ALJ
properly considered Dr. Kasprzak’s notes, and Dr. Kasprzak’s findings provide
substantial evidence to support the ALJ’s finding that Plaintiff’s mental impairments
were not severe. Doc. 20 at 9. Additionally, the Commissioner states that the ALJ
also properly considered and relied upon the opinions of Dr. Holmes and Dr. Grubbs.

Id. at 10.
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. 26. The ALJ then proceeded to assess and make a finding regarding
the claimant’s RFC. Tr. 26-31. The RFC is the most that a claimant can do despite
his limitations. See 20 C.F.R. § 404.1545(a)(1); Phillips v. Barnhart, 357 F.3d 1232,
1238 (11th Cir. 2004). 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). Furthermore, the

claimant’s age, education, work experience and whether he can return to past

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relevant work are considered in determining his RFC. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1520(f)).
After evaluating the medical records discussed below, the ALJ noted there was
a lack of evidence to support a finding that Plaintiff’s non-severe mental impairments
caused non-exertional limitations in the RFC. Tr. 24. On May 20, 2008, at an
appointment for her right wrist pain, Plaintiff denied symptoms of depression and
anxiety. Tr. 348. Again on May 1, 2009, during a prenatal visit, Plaintiff had no
depression present, and her mental status was alert. Tr. 440. At various doctors’
visits on August 26, 2010, September 21, 2010, and November 10, 2010, Plaintiff had
a normal affect and mood with no anxiety or depression present. Tr. 449, 563, 567.
The first mention of mental limitations in the record appears to be on November 23,
2010, when Plaintiff saw ear, nose, and throat specialist Howard N. Barrow, M.D. for
a post thyroidectomy follow-up and described symptoms of anxiety. Tr. 527. On
December 7, 2010, Plaintiff saw Dolores Y. Delgado, M.D., a family practitioner, and
reported feeling depressed and fatigued. Tr. 569.
On February 7, 2011, Plaintiff submitted to a consultative examination with
psychologist Dr. Kasprzak. Tr. 583. During the examination, Plaintiff told Dr.
Kasprzak she was seeking disability because in 2002 she was diagnosed with
depression, anxiety, and OCD by physician Susan Youngsman. Id. Additionally,
Plaintiff stated that she is unable to work because she has experienced anxiety
attacks since she was a teenager and experiences anxiety attacks two to three times
weekly when she is not on medication. Id. Plaintiff reported that the scar tissue from

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her thyroidectomy makes her feel like she is out of breath, leading to anxiety. Tr.
583-84. Plaintiff rated her current anxiety level at five on a ten-point scale and her
depression at four. Tr. 585. Dr. Kasprzak reported that Plaintiff’s mood and affect
were within normal limits, she was oriented “x3,” 3 she had a cooperative attitude, her
speech quality was within normal limits, and her intellectual ability was in the below
average range. Tr. 585-86. The psychologist further noted that Plaintiff’s immediate
memory was mixed, her recent memory was within normal limits, her remote memory
was adequate, and her attention, concentration, judgment, and insight were
considered adequate. Id.

Dr. Kasprzak diagnosed Plaintiff with panic disorder

without agoraphobia, depressive disorder not otherwise specified, and obsessivecompulsive disorder. Tr. 586. She gave Plaintiff a GAF score of 52. Id.
On February 17, 2011, Dorothy Holmes, Ph.D., a non-examining state agency
consultant, opined that based on the medical evidence, Plaintiff’s mental
impairments do not interfere with her abilities of daily functioning, social functioning
or concentration skills.

Tr. 600.

Dr. Holmes therefore found Plaintiff’s mental

impairments to be non-severe. Id. On April 19, 2011, family practitioner Rajan
Sareen, M.D., diagnosed Plaintiff with anxiety after Plaintiff described ongoing
problems with anxiety, feeling edgy, problems sleeping, and occasional palpitations.
Tr. 632. On April 28, 2011, Adam M. Shuster, D.O., a pain management specialist, 4
reported that Plaintiff scored nine on the Beck Depression Inventory, which is
“consistent with normal everyday ups and downs.” Tr. 642. On July 1, 2011, George
3
4

Oriented to person, place, and time. www.behavenet.com.
www.healthgrades.com.

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Grubbs, Psy. D., reviewed the medical evidence and supported Dr. Holmes’ finding
that Plaintiff’s mental impairments are non-severe. Tr. 657.
On April 16, 2012, Plaintiff underwent a psychiatric evaluation at Lee Mental
Health Center. Tr. 660. Plaintiff complained that Prozac was not working anymore
to relieve her anxiety. Id. The evaluation revealed that Plaintiff’s judgment and
insight were fair, and her mood and affect anxious. Tr. 663. Psychiatrist Mirian Ajo,
M.D., increased Plaintiff’s Prozac dosage and prescribed Vistaril and Trazodone. Tr.
664. Dr. Ajo diagnosed Plaintiff with acute reaction to stress. Tr. 666. On June 12,
2012, Plaintiff returned to Lee Mental Health Center to refill her Prozac and reported
she was doing well. Tr. 732. As a result, psychiatrist Felix Nwokolo, M.D., continued
her medications. Tr. 733. On September 5, 2012, Plaintiff told her psychiatrist, Paul
Zislis, M.D., that her medications were helping with her depression and insomnia,
but not with her anxiety. Tr. 728. As a result, Dr. Zislis increased Plaintiff’s dosage
of Trazodone, discontinued Vistaril, and started Plaintiff on Xanax. Tr. 730. On
November 26, 2012, and again on November 29, 2012, Louis J. Scala, M.D., board
certified in internal medicine and cardiology, reported that Plaintiff denied agitation,
anxiety, confusion, and crying spells. Tr. 771, 781. On December 3, 2012, in a follow
up appointment at Lee Mental Health Center, Plaintiff reported that her medications
helped reduce her anxiety attacks. Tr. 805. Her mood was charted as “euthymic.”
Tr. 804. On January 11, 2013, psychiatrist Rahul K. Challapalli, M.D., noted that
Plaintiff had a normal mood and affect with normal behavior. Tr. 837.
Based on the evidence in the record, the Court finds that there is substantial

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evidence to support the ALJ’s finding that Plaintiff’s mental impairments are not
severe and she has no non-exertional mental limitations. The ALJ gave significant
weight to Dr. Kasprzak’s opinion and properly considered other objective medical
evidence to determine that Plaintiff’s mental limitations are non-severe. Although
Dr. Kasprzak opined that Plaintiff’s immediate memory was mixed (“as she was able
to state 7 digits forward and 3 digits backward”) (Tr. 585), other records document a
lack of complaint of problems and normal memory. See Tr. 449, 563, 663, 714, 728,
803, 811, 866. On February 16, 2011, Plaintiff was diagnosed with panic disorder
without agoraphobia, depressive disorder not otherwise specified, and obsessive
compulsive disorder. Tr. 586. However, as the ALJ stated in his explanation of the
RFC, medications help Plaintiff tolerate her symptoms. Tr. 27. On September 5,
2012, Plaintiff reported that her medications were helping with depression and
insomnia, but not with anxiety, so her medications were adjusted. Tr. 728-730. Two
separate times in November, Plaintiff denied anxiety, confusion, and crying spells
(Tr. 781, 771), and on December 3, 2012, her mood was reported as “euthymic.” Tr.
805. On January 11, 2012, Plaintiff’s psychiatrists noted a normal mood and affect
with normal behavior. Tr. 837.
Despite Plaintiff’s contentions at her hearing that she still suffers from
anxiety, there is substantial evidence that proves otherwise. Plaintiff was given a
GAF score of 52 on February 16, 2011. Tr. 586. GAF scores, however, are no longer
endorsed for use in disability programs by the Commissioner. See Lacina, 606 F.
App’x at 527, Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, 201

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(“DSM-5”). Even if GAF scores are an adequate diagnostic tool, Plaintiff’s GAF score
is irrelevant because assessment occurred prior to the addition of antidepressant
medications and therapy. Tr. 584-85. Subsequent to the addition of medications and
the start of therapy, Plaintiff’s GAF scores improved to 65. Tr. 733. A GAF score of
61-70 is indicative of only some mild symptoms. See American Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. 2000, Text Rev.)
(DSM-IV-TR).
Finally, Dr. Kasprzak gave Plaintiff a prognosis of “guarded for gainful
employment”. Id. Even though the ALJ did not mention this particular statement
made by Dr. Kasprzak, the Court finds that this statement was properly discounted
in light of subsequent mental health treatment notes showing improvement with
medication. See Newberry v. Comm’r, Soc. Sec. Admin., 572 F. App’x 671, 672 (11th
Cir. 2014) (holding that “even if the ALJ erroneously failed to explicitly assign weight
to and discuss every aspect of [the doctor’s] opinion, this error was harmless because
it is still clear that the ALJ’s rejection of the portions of [the doctor’s] opinion that are
inconsistent with the ALJ’s ultimate conclusion was based on substantial evidence.”)
The ALJ has a responsibility to consider all of the relevant evidence of the record; but
there is no rigid requirement that the ALJ specifically refer to every piece of evidence
in his decision. 20 C.F.R. § 404.1545(a)(1); Dyer, 395 F.3d at 1211. In explaining the
RFC, the ALJ stated that Plaintiff reported depression, anxiety, and OCD in addition
to having crying spells and anxiety attacks. Tr. 27. The ALJ further stated that
Plaintiff’s medications help her tolerate her symptoms. Id. The Court finds that the

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ALJ’s decision is supported by substantial evidence from the medical records and the
extensive questioning by the ALJ at Plaintiff’s February 11, 2013 hearing.
iii.

Pain, Success of Surgery, and Fine and Gross Manipulation and
Reaching

Plaintiff next argues that the ALJ failed to properly consider the effects of
Plaintiff’s complaints of severe, intractable wrist pain and wrongly found that
Plaintiff’s right wrist surgery was successful in relieving her symptoms. Doc. 19 at
17. She further asserts that the ALJ minimized Plaintiff’s difficulties in performing
fine and gross manipulation and reaching. Id. The Commissioner responds that the
ALJ partially credited Plaintiff’s subjective complaints of wrist pain when he limited
Plaintiff to a reduced range of light work. Doc. 20 at 11. The Commissioner also
argues that objective medical evidence indicates that Plaintiff’s surgery was
successful, and Plaintiff’s argument that the ALJ minimized Plaintiff’s difficulties in
reaching and manipulation is meritless. Id. at 14.
A claimant’s complaints of pain are disabling if objective evidence establishes
an underlying condition and either (1) objective evidence confirms the severity of the
alleged pain arising from that condition or (2) the condition is of such severity that it
can reasonably be expected to give rise to the alleged pain. Foote v. Chater, 67 F.3d
at 1560-61.

In evaluating Plaintiff’s pain, the agency’s regulations state that

complaints of pain will not alone establish disability; medical signs or laboratory
findings must show that there is a medical impairment that could reasonably be
expected to produce the pain or other symptoms alleged.
404.1529(a), 416.929(a).

See 20 C.F.R. §§

When evidence documents an impairment that could
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reasonably be expected to produce the symptoms alleged by a claimant, the
Commissioner then evaluates the intensity and persistence of the symptoms to
determine how the symptoms limit the claimant’s capacity for work. See 20 C.F.R.
§§ 404.1529(c)(1), 416.929 (c)(1); see Foote, 67 F.3d 1553, 1561 (11th Cir. 1995).
When assessing the credibility of subjective complaints, such as pain or
fatigue, 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 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

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subjective testimony requires, as a matter of law, that the testimony be accepted as
true.” Wilson, 284 F.3d at 1225 (internal citations omitted).
Here, the ALJ evaluated Plaintiff’s complaints of pain and determined that
Plaintiff’s “medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible.
. . .” Tr. 27. As the Commissioner discussed in her brief, the ALJ questioned
Plaintiff’s credibility by noting that Plaintiff’s complaints were inconsistent with
evidence showing her right wrist surgery was generally successful, and Plaintiff
underwent conservative treatment following surgery (with periods of no treatment at
all). Tr. 30-31. The ALJ also relied upon the state agency experts’ opinions and
Plaintiff’s daily activities. Id.
Medical records show satisfactory post-operative appearance after Plaintiff
underwent right wrist surgery in 2007. Tr. 347, 350, 352. Additionally, after her
surgery Plaintiff often rated the severity of her pain as only a four to five out of ten.
Tr. 637, 644, 655, 752, 758, 761, 764, 767. Furthermore, examinations of both of
Plaintiff’s hands and wrists since the alleged onset date revealed normal findings
with no more than slight limitations. Tr. 349, 491, 568, 571, 582, 604, 607, 623, 632,
639, 642, 694, 743, 746, 749, 755, 761, 823, 837, 928. Also, in February 2011, Plaintiff
was observed to experience no difficulty in handling objects. Tr. 583.
The ALJ further explained his reasoning for questioning Plaintiff’s credibility
by noting the conservative treatment (with periods of no treatment) that Plaintiff

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received following surgery. Tr. 28-30. Despite an alleged onset date of January 1,
2008, there appears to be only one pain complaint in 2008 (Tr. 348) and no pain
complaints in 2009. See generally, Tr. 1-936. The Court therefore concludes that the
ALJ properly found Plaintiff’s mild objective treatment history and conservative care
was inconsistent with her complaints of disabling pain and supports the ALJ’s
credibility assessment.

See 20 C.F.R. §§ 404.1527(c)(4), 404.1529(c)(3)(v),

416.927(c)(4), 416.929(c)(3)(v); SSR 96-7p; Dyer, 395 F.3d at 1211 (finding that the
claimant’s mild treatment history supported the ALJ’s decision.)
Additionally, the ALJ gave great weight to the opinion of state agency
consultant, David Guttman, M.D., in assessing Plaintiff’s credibility. Tr. 31. State
agency consultant opinions can be given great weight if the evidence supports their
opinions. See 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); SSR 96-6p. Dr. Guttman
reviewed the evidence in the record and corroborated the findings of single decision
maker Melissa Humphries, who completed a Physical Residual Functional Capacity
assessment, and found that Plaintiff could perform light work with no manipulative
limitations. Tr. 78-85, 658. Therefore, the ALJ afforded Dr. Guttman’s opinion great
weight (Tr. 31), 5 and substantial evidence supports his finding that Plaintiff’s

The ALJ acknowledged that a single decision maker (“SDM”) is not an “acceptable medical
source and her opinion is not entitled to any weight or consideration.” Tr. 31. The ALJ
however, considered the case analysis report prepared by Dr. Guttman, as it was proper for
him to do. Id.; see 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); SSR 96-6p. Dr. Guttman
reviewed and affirmed the SDM’s findings after reviewing the record. Tr. 658. See Warren
v. Astrue, 830 F. Supp.2d 1369, 1272-73 (rejecting a claim that ALJ erred by giving weight
to the opinion of the SDM because a subsequent RFC assessment was performed by a medical
consultant with “virtually indistinguishable findings”); Patterson v. Astrue, 2011 WL
1790192, *5 (M.D. Fla. 2011) (holding that “while [the SDM] was not a doctor, his opinion
was subsequently concurred in by someone who is” and thus reversal was not warranted).
5

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statements concerning the intensity, persistence, and limiting effects of her pain and
other symptoms were not entirely credible.
Plaintiff’s daily activities – personal care, caring for her young children,
performing a wide range of household chores, and social activities – further support
the ALJ’s finding of Plaintiff’s credibility. See 20 C.F.R. § 404.1529(c). The ALJ noted
that although Plaintiff now claims that she can only perform these activities
occasionally and with a great deal of pain, these self-reported difficulties were not
supported by the objective medical evidence. Tr. 26-31.
Thus, even though the evidence establishes an underlying condition, there is
neither objective evidence confirming the severity of the alleged pain arising from
that condition nor is the condition of such a severity that it can reasonably be expected
to give rise to the alleged pain. The Court finds that the ALJ articulated sufficient
reasons for questioning Plaintiff’s credibility, and substantial evidence supports the
ALJ’s credibility finding and his assessment of Plaintiff’s RFC.

b. Whether the ALJ erred in failing to obtain a VE
The ALJ determined that the Medical-Vocational Guidelines (the “guidelines”
or “grids”) support a finding that Plaintiff is not disabled. Tr. 31; see 20 C.F.R. pt.
404, subpt. P, app. 2. The ALJ found that considering Plaintiff’s age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform. Tr. 32.

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Plaintiff contends that the ALJ must obtain testimony from a VE, rather than
rely exclusively on the vocational rule grid, 6 when a claimant has non-exertional
limitations that significantly limit basic work skills.

Doc. 19 at 18.

The

Commissioner argues that the ALJ was not required to obtain a VE to support his
finding that Plaintiff was not disabled because the grids provided substantial
evidence to support the ALJ’s conclusion that Plaintiff could perform other work and
was not disabled within the meaning of the Social Security Act. Doc. 20 at 18.
When a claimant’s vocational characteristics coincide with the factors of a rule
in the grids, the existence of jobs in the national economy is established, and the
claimant is considered not disabled. See 20 C.F.R. §§ 404.1569, 404.1569a, 416.969,
416.969a, 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(b); Heckler v. Campbell, 461
U.S. 458, 461-462, 470 (1983); Phillips, 357 F.3d at 1242-43. When a claimant has
non-exertional limitations, the ALJ must determine if these limitations “significantly
limit her basic work skills.” Phillips, 357 F.3d at 1243. “Significantly limits basic
work skills” is defined as “prohibit[ing] a claimant from performing a wide range of
work at a given work level.”

Id. If the ALJ determines that the impairments

significantly limit the claimant’s basic work skills, then the ALJ should obtain
testimony of a vocational expert and not rely exclusively on the grids. Id. If, however,
an ALJ determines that the claimant’s non-exertional limitations do not significantly
limit her basic work skills at the work level, then the ALJ may rely on the grids to
A table to provide a grid work to help determine disability in various situations, grids are
used after the ALJ has determined the claimant’s (1) exertion level, (2) age, (3) education,
and (4) work experience. See 20 C.F.R. §§ 404.1569, 416.969; see also 20 C.F.R. pt. 404,
subpt. P, app. 2.
6

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determine if the claimant is disabled.

Id.

Use of the grids alone constitutes

substantial evidence sufficient to uphold the decision of the Secretary. See Heckler,
461 U.S. at 468.
Here, the ALJ evaluated the grids noting that section 202.21 of the guidelines
directs a finding of not disabled for someone of Plaintiff’s age, education, and work
experience who can perform the full range of light work. Tr. 32. See 20 C.F.R. pt.
404, subpt. P, app. 2, § 202.21. The ALJ then determined that Plaintiff’s mild
restriction of the use of her wrists would not significantly erode the occupational base
encompassed by the grids and thus did not preclude her from performing a wide range
of light work. Tr. 32. See SSR 85-15. Thus, the Court finds that the ALJ was not
required to obtain a VE to support his finding that Plaintiff was not disabled. The
grids provided substantial evidence to support the ALJ’s conclusion that Plaintiff
could perform other work and was not disabled within the meaning of the Social
Security Act. Heckler, 461 U.S. at 468.
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. Edwards, 937 F.2d at 584 n.3;

Barnes, 932 F.2d at 1358.
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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 25th day of July, 2016.

Copies to:
Counsel of record

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