Monaco v. Commissioner of Social Security

Filing 27

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner, and close the file. Signed by Magistrate Judge Carol Mirando on 2/16/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DEBORAH MONACO,
Plaintiff,
v.

Case No: 2:15-cv-685-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Deborah Monaco seeks judicial review of the denial of her claim for
disability, 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 AFFIRMED.
I.

Issues on Appeal 1

Plaintiff raises two primary issues on appeal: (1) whether the Administrative
Law Judge (“ALJ”) properly evaluated the opinion of Plaintiff’s treating physician;
(2) whether substantial evidence supports the determination of the ALJ concerning
Plaintiff’s Residual Functional Capacity (“RFC”), specifically that she can perform a
full range of light work with no mental limitations; and (3) whether the ALJ’s decision
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.”).

at step two that Plaintiff’s mental limitations are not severe is supported by
substantial evidence.
II.

Procedural History and Summary of the ALJ’s Decision

On August 11 and August 15, 2011, respectively, Plaintiff filed applications for
disability, DIB and SSI alleging a disability onset date of July 20, 2009.
170-78.

Tr. 165-69,

Plaintiff alleged disability due to arthritis in her left hand, knee and foot;

lower back pain; fibromyalgia; anxiety and depression; lack of memory and restless
leg syndrome.

Tr. 198.

The applications were denied initially and upon

reconsideration.

Tr. 105-17, 119-30.

Plaintiff requested and received a hearing,

which was held before ALJ M. Dwight Evans on November 13, 2013.

Tr. 44-64.

Plaintiff was represented by counsel during the hearing, and Plaintiff and a
vocational expert (“VE”) testified at the hearing.

Tr. 46.

On April 18, 2014, the ALJ issued a decision finding Plaintiff not disabled from
July 20, 2009 through the date of the decision.

Tr. 30-39.

At step one, the ALJ

determined that Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2014, and had not engaged in substantial gainful activity
since July 20, 2009, the alleged onset date.

Tr. 32.

At step two, the ALJ

determined that Plaintiff has the following severe impairments: fibromyalgia and low
back pain with degenerative changes. 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. 35.

The ALJ then determined that Plaintiff has the

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RFC to perform the full range of light work, finding she 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.”

Tr. 35-36. Next,

the ALJ found Plaintiff is capable of performing her past relevant work as an
accountant, which is a sedentary position with a specific vocational preparation
(“SVP”) level of 8, considered skilled work. Tr. 38.

The ALJ noted that this work

“does not required the performance of work-related activities precluded by the
claimant’s residual functional capacity.” Id.

He therefore concluded she has not

been under a disability from July 20, 2009 through the date of the decision.

Tr. 39.

The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision.
Tr. 1-7.

Accordingly, the ALJ’s decision is the final decision of the Commissioner.

Plaintiff filed a Complaint in this Court on November 3, 2015. Doc. 1. Both parties
have consented to the jurisdiction of the United States Magistrate Judge, and this
matter is now ripe for review. Docs. 17, 18.
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.
423(d)(1)(A); 20 C.F.R. § 404.1505(a).

42 U.S.C. §§ 416(i)(1),

The Commissioner has established a five-step

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sequential analysis for evaluating a claim of disability.

See 20 C.F.R. §416.920.

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.
616 F. App’x at 933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

Atha,

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, 1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence

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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,

2015 WL 1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656
(5th Cir.1971)).

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IV.

Discussion

a. Whether the ALJ properly evaluated the opinion of Plaintiff’s
treating physician
Plaintiff first argues that the ALJ did not provide good cause for rejecting the
opinion of Plaintiff’s treating physician, Sebastian Draulans, M.D., with respect to
both her physical and mental impairments.

Doc. 25 at 8.

The Commissioner

responds that substantial evidence supports the weight the ALJ gave to the treating
physician’s opinion, and he properly articulated his reasons for not accepting the
“extreme and myriad” limitations opined by Dr. Draulans.

Doc. 26 at 9-10.

On this

point, the Court agrees with the Commissioner.
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.
404.1527(c)(1)-(6).

20 C.F.R. §

Under the regulations, 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).

Medical source opinions may be discounted, however,

when the opinion is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if the opinion is inconsistent with the record as a

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whole.

SSR 96-2p; Crawford v. Comm’r, 363 F.3d 1155, 1159-60 (11th Cir. 2004).

Accordingly, “[a]n ALJ must give a treating physician’s opinion substantial weight,
unless good cause is shown.”

Castle v. Colvin, 557 F. App’x 849, 854 (11th Cir. 2014)

(citing Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004)); Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir. 1997); Sabo v. Chater, 955 F. Supp. 1456, 1462 (M.D.
Fla. 1996).

“Good cause exists when the ‘(1) treating physician’s opinion was not

bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.’”

Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d at 1241).

Dr. Draulans was Plaintiff’s primary care/family doctor, who the record shows
began treating Plaintiff for her alleged impairments beginning in 2010.
70.

Tr. 34, 266-

The only opinion at issue here, however, is an RFC assessment completed by Dr.

Draulans on October 22, 2013, in which Dr. Draulans opined that Plaintiff had
numerous and extensive physical and mental limitations that affected her ability to
work.

Tr. 442-43; Doc. 25 at 9.

Specifically, Dr. Draulans indicated on the form

that Plaintiff cam never lift and/or carry any weight (including less than 10 pounds),
she can stand and/or walk less than 2 hours in an 8-hour workday, she can sit less
than 2 hours in an 8-hour workday; except for kneeling, which she can perform 1/3 or
the workday, she can perform other postural limitations (climbing, balancing,
stooping, bending, crouching and crawling) less than 1/3 of the workday; and she can
reach in all directions, finger and feel less than 1/3 of the workday in her left hand
because of her carpal tunnel syndrome.

Tr. 442.

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The ALJ gave this opinion little weight, noting it was not supported by the
medical evidence of record as a whole.

Tr. 34. Throughout his opinion, the ALJ

outlined the medical evidence Plaintiff provided to support her physical limitations,
noting significant gaps in her treatment history and relatively infrequent visits to
her doctors considering her allegedly disabling symptoms at the time of alleged onset
date, July 20, 2009.

Tr. 36.

The ALJ noted that Plaintiff’s earliest treatment

record for her fibromyalgia pain was with Dr. Draulans on May 11, 2010. 2 Tr. 36,
261-65.

During this visit, Plaintiff had symptoms of soft tissue pain, fatigue,

depression and anxiety.

Tr. 262. Dr. Draulans noted these symptoms “are severe

and have been present for many years.”

Id.

Plaintiff had been taking Vicodin,

which Dr. Draulans noted was somewhat effective; she stopped taking it and began
feeling worse.

Id.

Plaintiff’s physical examination was normal, and she was

ordered to continue with her pain medications, Baclofen and Vicodin, as needed and
continue with her Cymbalta.

Tr. 263.

Plaintiff returned several months later, on October 26, 2010, complaining of
generalized body aches and anxiety.

Tr. 257.

Dr. Draulans added Soma and

Naproxen to Plaintiff’s regimen, and in her next visit to him in January 2011, her
fibromyalgia and back pain were stable.

Tr. 249-50.

During that visit, Plaintiff

reported the sudden death of her husband, which exacerbated her anxiety disorder.

There is a treatment record in February 2010, but the reason for the visit was a
cough. Tr. 266-27. Plaintiff’s neurological and musculoskeletal examinations were
normal. Tr. 267.
2

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Id. Nonetheless, Dr. Draulans noted Plaintiff’s general anxiety disorder was stable,
and she should continue her current regimen.

Tr. 250.

Plaintiff’s next visit to Dr. Draulans was in July 2011, during which it was
noted her fibromyalgia, fatigue and back pain had worsened; Carisoprodol 3 was
added to her regimen.

Tr. 245.

During her follow up visit to Dr. Draulans in late

October 2011, Plaintiff reported that her low back pain and fibromyalgia were stable.
Tr. 490-91.

She was continued on the same medication regimen. Id.

As noted by the ALJ, because of Plaintiff’s lack of medical records and
treatment for her impairments, she was sent for an internal medicine examination
by Munir Rizkallah, M.D., on October 4, 2011.

Tr. 37, 277-79.

At that time,

Plaintiff’s fibromyalgia pain was under control, and she reported zero pain intensity
on a scale of zero to ten with her medication.

Tr. 277.

Dr. Rizkallah noted that

Plaintiff has been a chronic smoker, but she was trying to reduce her smoking and
was at the time smoking five cigarettes per day.

Tr. 277-78.

She does her laundry

twice weekly, showers and dresses herself, but gets fatigued easily.

Tr. 278.

Plaintiff appeared in no acute distress, her gait was normal, and she could walk on
her heels and toes without difficulty and fully squat.

Id. Her stance was normal,

and she needed no help changing for her exam or getting on and off the examination

Id. Plaintiff was able to rise from a chair without difficulty. Id. She had

table.

full range of motion in all her joints and spine, her joints were stable and non-tender

Carisoprodol is a muscle relaxer that blocks pain sensations between the nerves and
the brain. https://www.drugs.com/carisoprodol.html (last visited 2/14/2017).
3

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and she had no trigger points.
lower extremities.
scoliosis.

Id.

Tr. 279. Plaintiff had 5/5 strength in her upper and

An x-ray of Plaintiff’s lumbar spine showed minimal

Tr. 280. Dr. Rizkallah reported her prognosis as stable.

Tr. 279.

Based on the evidence of record, the ALJ properly discounted Dr. Draulans’
October 2013 RFC opinion, because it was inconsistent with the record as a whole,
including Dr. Draulans’ earlier treatment notes, physical examination findings and
objective diagnostic testing results.

See SSR 96-2p; Crawford, 363 F.3d at 1159-60.

As noted by the Commissioner and discussed by the ALJ, substantial evidence of
record showed that Plaintiff’s fibromyalgia was stable and controlled with
medication.

Doc. 26 at 12; Tr. 37.

Dr. Rizkallah found in his October 2011 examination that Plaintiff exhibited
no trigger points, she appeared in no acute distress and her pain was controlled by
medication (Tr. 277-80), inconsistent with a finding that fibromyalgia is a medically
determinable impairment.

See SSR 12-2p, 2012 WL 3104869, at *3 (requiring

evidence of widespread pain or at least 11 trigger points for a finding of a medically
determinable impairment).

Plaintiff’s last visit to Dr. Draulans in October 2011 also

indicated that her fibromyalgia and low back pain were stable on Plaintiff’s current
medication regimen. Tr. 249-50.
Furthermore, Dr. Rizkallah’s physical examination performed in October 2011
showed that plaintiff had a normal gait, could heel and toe walk without difficulty,
could fully squat, and had full range of motion in all joints, no trigger points, normal
reflexes and sensation, and full strength in all extremities.

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Tr. 37, 277-79.

Her

lumbar x-ray taken at that time also showed minimal scoliosis with degenerative
changes in the lower spine.

Tr. 280-81. Such objective findings support the ALJ’s

decision to accord the extreme limitations opined by Dr. Draulans little weight, and
he properly explained his reasons for doing so.

Tr. 36-38.

Plaintiff also takes issue with the weight given to Plaintiff’s mental limitations
in Dr. Draulans’ RFC assessment.

Doc. 25 at 13.

Dr. Draulans opined that

Plaintiff had nonexertional limitations of anxiety, panic and depression that would
limit her ability to concentrate; and follow, carry out, remember and understand
simple instructions less than one-third of the workday and use judgment, respond to
supervision and deal with changes in a routine work setting only one-third of the
workday.

Tr. 443. In his detailed discussion of Plaintiff’s mental health treatment

records, which the ALJ pointed out were sparse, he addressed Dr. Draulans’ mental
RFC assessment as well as his psychiatric review technique (“PRT”) forms. 4 The ALJ
accorded Dr. Draulans’ opinions little weight,
as they are not supported by the medical evidence as a whole. Dr.
Draulans is [a] family primary care physician and any opinions
relating to the claimant’s mental abilities are outside his area of
expertise. Moreover, the mental status examinations in the record
do not support his opinion. Consequently, the opinions are not
accepted (Ex. 8F).

Plaintiff only challenges the weight given to Dr. Draulans’ RFC assessment, not his
PRT forms. See generally, Doc. 25. Nonetheless, the Court finds no error with the ALJ
likewise giving little weight to Dr. Draulans’ PRT forms.
4

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Tr. 34.

The Court finds substantial evidence supports the ALJ’s decision as to the

weight given both to Dr. Draulans’ physical and mental RFC, the latter of which is
discussed in more detail in the following section of this opinion.

b. Whether substantial evidence supports the determination of the ALJ
at step four that Plaintiff can perform her past relevant work
Plaintiff next argues that at step four of the five-step sequential evaluation
process, the ALJ “failed to determine the effect Plaintiff’s limitations in
concentration, persistence, and pace [have] on her RFC given the evidence that these
limitations have more than a minimal impact on [] [Plaintiff’s] past relevant work as
[an] accountant, which is a highly skilled job with a specific vocational preparation
level of eight.”

Doc. 25 at 14.

Plaintiff makes several arguments on this issue:

(1)

the evidence of Plaintiff’s mental limitations, opined by Dr. Kelly and others,
precludes her ability to perform her “highly skilled past work” as an accountant (Id.
at 15-16); (2) the ALJ’s conclusion that Plaintiff has mild limitations in concentration
persistence and pace suggests she cannot perform her past relevant work (Id. at 168); and (3) the ALJ failed to weigh and explain whether he rejected or accepted Dr.
Kelly’s opinion concerning Plaintiff’s limitations in her ability to deal with complex
instructions (Tr. 18-20).
It is important to note that at the fourth step of the sequential evaluation
process, it is the claimant who bears the burden of demonstrating that she cannot
return to her past relevant work.

Battle v. Astrue, 243 F. App’x 514, 522 (11th Cir.

2007) (citing Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir.1990)).

The ALJ

assesses the claimant's RFC to determine whether the claimant can perform past

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relevant work despite her alleged impairments.
416.920(f).

See 20 C.F.R. §§ 404.1520(f),

To support a conclusion that the claimant is able to return to her past

relevant work, the ALJ must consider all the duties of that work and evaluate the
claimant's ability to perform them in spite of her impairments. See Lucas, 918 F.2d
at 1574.

An ALJ may consider a VE's opinion when making this determination. 20

C.F.R. § 404.1560(b)(2). “In order for a [VE's] testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which comprises all of the
claimant's impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)
(citation omitted).

Errors may be harmless if they do not prejudice the claimant.

See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1983).
Here, the ALJ found that Plaintiff was capable of performing her past relevant
work as an accountant, Dictionary of Occupational Titles (“DOT”) #160.162-018,
which is considered sedentary in exertional level with an SVP of 8 – skilled work.
Tr. 38. The ALJ found that this work “does not require the performance of workrelated activities precluded by the claimant’s residual functional capacity.”

Id.

The ALJ found that in comparing Plaintiff’s RFC with the physical and mental
demands of this work, Plaintiff is able to perform it as generally performed.
Specifically, he stated:
The claimant’s ability to perform light work allows her to perform
work at an equal or lesser exertional level, and she does not have a
mental impairment or other nonexertional limitations that preclude
her from performing skilled work.
Tr. 39. In making this finding, the ALJ presented the following hypothetical to the
VE:

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Assume, if you would, a hypothetical individual who was 51 years old
at time of her alleged onset date; who is currently 55 years of age. She
has an exertional RFC, essentially, of light -- the full range of light.
That is the ability to lift and carry up to 20 pounds occasionally, 10
pounds frequently; can stand and/or walk about six hours in an eighthour work day and can sit for about six hours in a[n] eight-hour work
day. Ability for pushing and/or pulling would be unlimited except up
to the extent of her ability for lifting and/or carrying.
Would such a hypothetical individual as that be able to perform any
of the past work of Mrs. Monaco?
Tr. 61. The VE answered in the affirmative.

Id. Next, the ALJ asked whether

her response to his question is inconsistent with the information in the DOT, to which
the VE replied that it is consistent.

Id. at 62.

Plaintiff first argues that the ALJ’s conclusion is inconsistent with the mental
status findings of the consultative examiner, Nancy Kelly, Ph.D., in that during that
examination Plaintiff could remember none of three objects after five minutes, could
not count five digits backward and could not count serial threes.
274.

Doc. 25 at 14; Tr.

She also asserts that the ALJ’s finding is “likely inconsistent” with his

conclusion that Plaintiff has mild limitations in concentration, persistence and pace,
because the accountant job is “highly skilled.”

Doc 25 at 14, citing Tr. 33.

Plaintiff

also argues that the ALJ failed to weigh Dr. Kelly’s opinion concerning her ability to
deal with complex instructions and failed to include these limitations in the RFC.
Doc. 25 at 14-15.
As to Plaintiff’s first argument, the Court finds that substantial evidence in
the record, including Dr. Kelly’s opinion, supports the ALJ’s determination that
Plaintiff’s mental limitations were not severe and did not preclude her from

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performing her past relevant work.

At step two of the sequential evaluation process,

the ALJ found that Plaintiff’s alleged mental impairments were not severe, as they
did not significantly limit her mental ability to perform basic work activities.
33, citing 20 C.F.R. §§ 404.1521 and 416.921.

Tr.

As such, the ALJ found “that

[Plaintiff’s] medically determinable mental impairments of affective and anxiety
disorders considered singly and in combination, do not cause more than minimal
limitation in [Plaintiff’s] ability to perform basic mental work activities and are
therefore nonsevere.”

Tr. 33.

In doing so, the ALJ noted the lack of medical records

with respect to the alleged mental impairments to support a finding of severity.

Id.

The ALJ first discussed Plaintiff’s admission to the hospital for an overdose in
May 2011, in which she was involuntarily placed in inpatient mental health
treatment under Florida’s Baker Act 5 and hospitalized for several days.
317-28.

Tr. 33,

Plaintiff denied feeling suicidal and instead said the overdose was due to

memory problems, reporting that she had been depressed since she lost her husband
suddenly the previous January.
depression since childhood.

Tr. 321.

Tr. 436.

Plaintiff stated that she has battled

Plaintiff was stabilized on Cymbalta, and

later that month described that her crisis unit admission was an “overreaction,” and
she did not intentionally overdose.

Tr. 33, 317-28, 429.

Because of her lack of mental health treatment records, Plaintiff was referred
to Nancy Kelly, Ps.D., for a consultative psychological evaluation in October 2011.
Tr. 33, 272-75. Plaintiff drove herself to the examination.

5

Fla. Stat. § 394.467.

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Tr. 272. Other than

the hospitalization for her inadvertent overdose, Plaintiff had received no outpatient
treatment after that time and denied any suicidal ideations or plans.

Id. With

respect to her current functioning, Plaintiff described:
her sleep patterns as normal with the use of medication. She
describes symptoms related to depression and anxiety including
dysphoric moods, crying spells, irritability, difficulties with
concentration, and a general fear of being overwhelmed when
speaking with too many people. No symptoms reported related to
panic attacks, mania or thought disorder by the claimant. Cognitive
symptoms include difficulties with concentration and short-term
memory deficits.

Id. Plaintiff’s overall demeanor was cooperative and her manner of relating was
adequate in her mental status examination, she was appropriately dressed and had
appropriate eye contact.

Tr. 273.

Her thought processes were coherent and goal

directed with no evidence of delusions, hallucinations or paranoia.

Id. Ms. Kelly

found Plaintiff’s attention and concentration to be “mildly impaired,” which Ms. Kelly
attributed to anxiety in the evaluation.

Tr. 274.

Plaintiff was able to complete a

simple counting exercise and perform simple calculations, but could not complete
serial 3s accurately.

Id.

Plaintiff’s recent and remote memory skills appeared

impaired, again which Ms. Kelly attributed to anxiety in the evaluation.

Id.

Plaintiff’s intellectual functioning appeared average and her general fund of
information was appropriate to her experience.

Id. Plaintiff reported to Ms. Kelly

that she was able to complete her activities of daily living independently, with some
limitations due to fatigue, and described her family relationships as “very
supportive.”

Id.

With respect to Plaintiff’s vocational capacity, Ms. Kelly

concluded:

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[I]t appears the claimant is able to understand and follow simple
directions, and perform simple tasks independently. It appears she
would be able to maintain attention, a regular schedule and learn new
tasks. She may have mild difficulties performing complex tasks
independently. It appears she is able to make appropriate decisions.
She may have mild difficulties relating adequately with others and
appropriately dealing with stress. Difficulties may be caused by
psychiatric symptoms.
Results of the present evaluation appear to be consistent with
psychiatric symptoms, but in itself this does not appear to be
significant enough to interfere with the claimant's ability to function
on a daily basis.
Tr. 274-75.

Ms. Kelly recommended that Plaintiff receive individual psychological

therapy, and noted her prognosis as fair, given her current level of functioning.

Id.

at 275.
The ALJ discussed this opinion in detail, and further noted that Plaintiff did
not return to Lee Mental Health until June 2013, when her lawyer sent her there for
an evaluation for depression.

Tr. 33-34, 430-35. During that visit, Plaintiff stated

that she really did not know why she was there.

Tr. 430. While the ALJ noted

during that visit Plaintiff’s mood and affect were depressed, anxious and despairing,
Plaintiff reported she experienced no difficulty in performing work or work-like
activity and her mental examination was otherwise normal, in that she was oriented
in all spheres and had no suicidal or homicidal thoughts. Tr. 431-34.
The ALJ also discussed the psychiatric review technique assessments
completed in October and November 2011 by the Social Security Administration’s
consultative examiners, Pamela D. Green. Ph.D., and Carlos Perez, Ph.D.

Tr. 34.

Both psychologists opined that Plaintiff had only mild limitations, at most, in

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activities of daily living and social functioning and in maintaining concentration,
persistence or pace; and neither doctor found Plaintiff to have experienced any
episodes of decompensation.

Tr. 34, 70-71, 79-80, 90.

Dr. Green also opined that

Plaintiff can perform her past relevant work, and her limitations would not prevent
her from performing her work as an accountant.

Tr. 73.

She opined that Plaintiff’s

nonexertional limitations “do not significantly erode the occupational base. . . .”

Tr.

74, 83. Furthermore, Dr. Perez opined that the “medical records show no evidence
of significant impairment in psychosocial functioning.
daily living] independent.
or pace].”

Tr. 90.

[Plaintiff] is [activities of

No significant difficulties in [concentration, persistence

The ALJ gave these opinions great weight, noting that “[b]ased

on the totality of evidence, [Plaintiff] appears to be primarily limited by her physical
difficulties and there is no indication of a severe mental impairment at this time.”
Tr. 34.

The Court finds no error in this decision.

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).
Next, the ALJ considered the opinions of Dr. Draulans when he completed
Plaintiff mental residual functional capacity assessment and psychiatric review
technique forms, and, as discussed above, gave these opinions little weight because

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they were not supported by the medical evidence as a whole.

Tr. 34.

The ALJ noted

that Dr. Draulans is a family/primary care practitioner, and opinions relating to
Plaintiff’s mental abilities are outside his area of expertise and are unsupported by
the mental status examinations in the record.

Id.

Finally, the ALJ considered the four broad functional areas set out in the
disability regulations for evaluating mental disorders, and found that Plaintiff has
mild limitation in activities of daily living, as she is able to drive and live alone, cooks
and does some housework and otherwise accomplishes activities of daily living
independently, with some limitations because of fatigue.

Tr. 34.

The ALJ next

opined that Plaintiff has mild limitation in social functioning and mild limitation in
concentration, persistence or pace.

Id. Although the ALJ noted Plaintiff alleges

difficulty with concentration and memory, during her mental status examination,
Plaintiff’s attention and concentration were mildly impaired due to anxiety in the
evaluation.

Id.

In the fourth functional area of decompensation, Plaintiff

experienced no episodes.

Tr. 35.

impairments to be nonsevere.

Id.

Accordingly, the ALJ found Plaintiff’s mental
The ALJ then considered all of Plaintiff’s

impairments, severe and nonsevere, in determining her RFC.

Tr. 35-38.

As noted,

the ALJ ultimately found that Plaintiff could perform a full range of light work
without any mental limitations.

Tr. 35-36.

Although Plaintiff asserts that the findings of Dr. Kelly that Plaintiff could
remember zero of three objects after five minutes, and could not count five digits
backward or serial threes are inconsistent with the ALJ’s opinion, the Court

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disagrees, as the overall record supports the ALJ’s decision.

First, as noted by the

ALJ, Dr. Kelly opined that Plaintiff’s memory skills during the evaluation appeared
impaired because of anxiety in the evaluation.

Tr. 33, 274.

perform simple calculations during the examination.

Plaintiff was able to

Tr. 274.

With respect to

Plaintiff’s vocational capacity, Dr. Kelly found that Plaintiff is able to “maintain
attention, a regular schedule and learn new tasks.”

Id. Additionally, the ALJ’s

opinion is supported by the opinions of the agency consultative examiners, who found
that Plaintiff’s limitations would not prevent her from performing her past work as
an accountant or significantly erode the occupational base, and the medical records
show no evidence of significant impairment in psychosocial functioning or significant
difficulties in concentration, persistence or pace.

Tr. 74, 83, 90, 430-35.

As noted

by the ALJ, there is a paucity of treatment records for Plaintiff’s mental health.
33.

Tr.

To the extent Plaintiff experienced mental health issues, apparently they did

not significantly affect her ability in the past to perform her work as an accountant,
as she admitted that she has experienced depression since childhood, and yet did not
experience difficulty in performing work.

Tr. 431, 436.

The Court also finds without merit Plaintiff’s argument that the ALJ’s opinion
that Plaintiff has mild limitations in concentration, persistence and pace “suggests”
she cannot perform her past work as an accountant.

Doc. 25 at 16.

As noted above,

the ALJ discussed Plaintiff’s mental impairments in detail at step two of the process
and found that Plaintiff’s mental impairments are not severe; the Court already has
found that substantial evidence supports this determination.

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Tr. 35.

After

considering the psychiatric review technique (“PRT”) evaluations performed by the
agency consultative examiners, he determined that Plaintiff had mild limitations in
concentration, persistence and pace.

Tr. 34.

An ALJ “must incorporate the results

of the PRT into his findings and conclusions,” and the ALJ did so here.

Winschel,

631 F.3d at 1180 n.1 (citing Moore v. Barnhart, 405 F.3d 1208, 1213-14 (11th
Cir.2005)).

Although the PRT and RFC evaluations are distinct, the Eleventh

Circuit specifically has rejected the argument that the ALJ cannot consider the
results of the “former in his determination of the latter.”

631 F.3d at 1180.

Provided the ALJ at least implicitly accounts for all of a claimant’s impairments in
his hypothetical question to the VE, substantial evidence will support his decision.

Id. at 1181. The ALJ did so here; in fact, after reviewing the evidence of record, he
explicitly found that Plaintiff does not have a mental impairment or other
nonexertional limitations that preclude her from performing skilled work.

Tr. 38.

Moreover, the VE testified that her opinion that Plaintiff could perform her past
relevant work was consistent with the DOT.
the ALJ to rely on the VE’s opinion.
973, 975 (11th Cir. 2012).

Tr. 39, 62. Thus, it was not error for

See Leigh v. Comm'r of Soc. Sec., 496 F. App'x

Furthermore, “[i]n order for a [vocational expert’s]

testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question to the vocational expert which comprises all of the claimant’s impairments.”

Phillips, 357 F.3d at 1240 n.7 (quotation marks omitted). “The hypothetical need
only include the claimant’s impairments, not each and every symptom of the
claimant.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir.

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2007) (citation and quotation marks omitted).

Although an ALJ’s hypothetical

question must take into account all of a claimant’s impairments, Wilson, 284 F.3d at
1227, the question need not include impairments that the ALJ has properly
determined to be unsupported by the evidence in the record, as the ALJ did here.

Crawford, 363 F.3d at 1161.
Finally, Plaintiff argues that the ALJ failed to properly weight Dr. Kelly’s
opinion.

Doc. 25 at 18-20. The Commission responds that the agency examiners

considered Dr. Kelly’s evaluation and opined that Plaintiff was only mildly limited in
the PRT domains. Doc. 26 at 19, citing Tr. 79, 90.

The ALJ gave these opinions

great weight (Tr. 34); as such, the Commissioner asserts the ALJ implicitly gave Dr.
Kelly’s opinion great weight.

Doc. 26 at 20.

As discussed in detail above, the Court

finds any error in the ALJ failing to specifically state the weight given to Dr. Kelly’s
opinion to be harmless, because the ALJ discussed in detail and considered Dr.
Kelly’s opinion in his step two analysis, and the opinion is consistent with his RFC
finding.

See Sarria v. Comm’r of Soc. Sec., 579 F. App’x 722, 723 (11th Cir. 2014)

(citing Diorio, 721 F.2d at 728).

c. Whether substantial evidence supports the ALJ’s determination at
step two that Plaintiff’s mental limitations are not severe
The Court already has addressed above the ALJ’s determination at step two,
and for the reasons stated finds substantial evidence supports the ALJ’s decision.
Contrary to Plaintiff’s assertion (Doc. 25 at 20-21), the ALJ properly performed a PRT
analysis.

Plaintiff’s argument that the ALJ erred in his analysis because he did not

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consider a single GAF 6 score of 55 7 in 2013 is not persuasive.

Doc. 25 at 22.

GAF

scores are no longer endorsed for use in disability programs by the Commissioner and
have no “direct correlation to the severity requirements of the mental disorders
listings.” Lacina v. Comm’r, 606 F. App’x 520, 527 (11th Cir. 2015).

Moreover, as

discussed, the ALJ considered the June 2013 psychological evaluation and noted that
although Plaintiff was depressed and anxious, her mental status examination
otherwise was normal.

Tr. 34, 430-34.

Furthermore, a diagnosis alone is

insufficient to prove the severity of an impairment.

Moore, 405 F.3d at 1208.

Instead, Plaintiff must show the effect the impairment has on her ability to work.

Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005). The ALJ’s findings on this
issue are supported by the record as a whole, and will not be overturned here.
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.

Global assessment of function (GAF) is a numeric scale (0 through 100) mental
clinicians use to rate social, occupational and psychological functioning. See American
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, 33 (4th ed. 1994)
(DSM IV).
6

A GAF score of 51 to 60 indicates moderate symptoms or moderate impairment in
social, occupational, or school functioning. DSM IV.
7

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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 16th day of February,
2017.

Copies:
Counsel of record

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