Martin v. Commissioner of Social Security

Filing 28

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 3/24/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SHERRI MARTIN,
Plaintiff,
v.

Case No: 2:15-cv-753-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Sherri Martin seeks judicial review of the denial of her claim for
supplemental security income (“SSI”) by the Commissioner of the Social Security
Administration (“Commissioner”).
and the applicable law.

The Court has reviewed the record, the briefs,

For the reasons discussed herein, the decision of the

Commissioner is AFFIRMED.
I.

Issues on Appeal 1
Plaintiff raises four issues on appeal: (1) whether the Administrative Law

Judge (ALJ) properly evaluated the severity of Plaintiff’s mental impairment; (2)
whether the ALJ properly considered Plaintiff’s non-exertional limitations in
assessing her Residual Functional Capacity (“RFC”); (3) whether the ALJ properly
found that Plaintiff is capable of performing her past relevant work; and (4) whether

Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (holding that “a legal claim or argument
1

that has not been briefed before the court is deemed abandoned and its merits will not be
addressed.”).

Plaintiff received a full and fair hearing before the ALJ.
II.

Procedural History and Summary of the ALJ’s Decision
On January 11, 2011, Plaintiff filed an application for SSI alleging that she

became disabled and unable to work on February 1, 2010.

Tr. 137, 156.

Plaintiff

alleged disability due to high blood pressure, fibromyalgia and depression.

Tr. 160.

The application initially was denied on June 2, 2011 and upon reconsideration on
August 10, 2011.

Tr. 98, 108. Plaintiff requested and received a hearing before

ALJ Larry J. Butler on May 15, 2013, during which she was represented by an
attorney.

Tr. 51-79. Plaintiff testified at the hearing.

Id.

On April 21, 2014, the ALJ issued a decision finding Plaintiff not disabled from
January 11, 2011 through the date of the decision.

Tr. 36-44.

At step one, the ALJ

determined that Plaintiff had not engaged in substantial gainful activity since
January 11, 2011.

Tr. 38.

At step two, the ALJ determined that Plaintiff has the

following severe impairments: fibromyalgia and hypertension.

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. 40.

The ALJ then

determined that Plaintiff had the RFC to perform the full range of light work as
defined in 20 C.F.R. § 404.1567(b). 2

2

Id.

Next, the ALJ found that Plaintiff is

The regulation defines light work as work that 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

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capable of performing her past relevant work as a secretary/office worker because
this work does not require the performance of work-related activities precluded by
Plaintiff’s RFC.

Tr. 42.

Alternatively, based on the Medical Vocational Rules (the

“Grids”), the ALJ found that there are a significant number of other jobs in the
national economy Plaintiff can perform.
Plaintiff is not disabled.

Tr. 43.

As a result, the ALJ found that

Tr. 43.

Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on October 23, 2015. Tr. 1-4.

Accordingly, the April 21,

2014 decision is the final decision of the Commissioner.

Plaintiff filed an appeal in

this Court on December 30, 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. 19, 20.

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

pulling of arm or leg controls. To be considered capable of performing a full or
wide range of light work, [a claimant] must have the ability to do substantially
all of these activities. If someone can do light work, [it is determined] 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).

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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. Comm’r, 606 F.

App’x 520, 525 (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 severity of Plaintiff’s
mental impairment

At step two, the ALJ acknowledged that Plaintiff has a medically determinable
impairment of adjustment disorder.

Tr. 39.

The ALJ, however, determined that

Plaintiff’s adjustment disorder “does not cause more than minimal limitation in
[Plaintiff’s] ability to perform basic mental work activities.”

Id. In his evaluation,

the ALJ considered the degree of limitations imposed by Plaintiff’s mental
impairments in four functional areas and found that Plaintiff has mild limitations in
activities of daily living, social functioning, and concentration, persistence, or pace.

Id. The ALJ also noted that Plaintiff has experienced no episodes of decompensation
of extended duration.

Id. Because Plaintiff’s adjustment disorder causes no more

than mild limitations in the three functional areas and Plaintiff has experienced no
episodes of decompensation of extended duration, the ALJ found that Plaintiff’s
adjustment disorder is non-severe.

Tr. 40.

Plaintiff argues that in assessing the severity of Plaintiff’s mental impairment,
the ALJ applied a stricter standard than one required under the law.
16.

Doc. 26 at 15-

Plaintiff specifically argues that the ALJ erred by not considering Plaintiff’s

global assessment of function (“GAF”) score. 3

Id. at 17.

The Commissioner

responds that substantial evidence supports the ALJ’s decision.

Doc. 27 at 5-7.

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).
3

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The Commissioner also asserts that she does not endorse GAF scores for use in the
agency’s disability programs, and GAF scores have no direct correlation to the
severity requirements of the mental disorders listings.

Id. at 7-9.

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.
482 U.S. at 146 n.5.

Bowen,

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,

Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.

education, or work experience.”
1984).

“The ALJ must consider every impairment alleged.”

F.2d 619, 623 (11th Cir. 1986).

Gibson v. Heckler, 779

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

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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
impairment of anxiety disorder does not cause more than minimal limitations in
Plaintiff’s ability to perform basic mental work activities and is therefore non-severe.
Tr. 39-40.
The first functional area is activities of daily living.

Tr. 39.

The ALJ

considered Plaintiff’s report to the Social Security Administration (“SSA”) on April
12, 2011 that she walks independently, dresses herself, bathes herself, and does her
own personal grooming without assistance or reminders.

Tr. 174.

Plaintiff also

noted that she does all the household chores for her home, prepares complex and
simple meals as needed, runs errands, and goes grocery shopping as needed.

Id.

Furthermore, Plaintiff reported that she leaves home twice a week to run errands
and shop.

Id. In addition, Plaintiff kept track of her own doctors’ appointments

and medication without assistance or reminders, receives food stamps and maintains
her own account, handles the household finances without assistance, and purchases
in a store without assistance.

Id. Plaintiff does not allege at all that her daily

activities have changed from what she reported.
functional area is social functioning.

Tr. 39.

Doc. 26 at 15-17.

The second

The ALJ found that Plaintiff has mild

limitation in this area because she is able to initiate and maintain friendships, run
errands, and appear in public as necessary. Id.
The next functional area is concentration, persistence, or pace.

Id. Claudia

Zsigmond, Psy.D., who evaluated Plaintiff at the referral of the Office of Disability

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Determination, noted that Plaintiff watches television and cares for her dogs.
255.

Tr.

Dr. Zsigmond determined that Plaintiff has appropriate attention and

concentration and no short-term or long-term memory impairment.

Tr. 254.

After

considering Dr. Zsigmond’s examination, the ALJ determined that Plaintiff has mild
limitation in this area.
decompensation.

Tr. 39.

The fourth and final functional area is episodes of

Id. After reviewing the medical evidence, the ALJ determined

that Plaintiff has experienced no episodes of decompensation.

Id.

Although the ALJ found that Plaintiff’s mental impairment is non-severe, the
ALJ determined that Plaintiff suffered from severe impairments (Tr. 38) and
continued through the sequential evaluation to step five. Tr. 40-43.

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 by concluding that Plaintiff’s mental impairment
is non-severe, that error was harmless because the ALJ considered all of her
impairments, including those he deemed non-severe, when determining Plaintiff’s
RFC.

Tr. 40-42.
To the extent that the ALJ did not discuss Plaintiff’s GAF score, it was at most

a harmless error.

As the Commissioner correctly asserts, 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.”

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Lacina,

606 F. App’x at 527; Doc. 27 at 8-9.

Instead, Plaintiff must show the effect of her

mental impairment on her ability to work. Wind v. Barnhart, 133 F. App’x 684, 690
(11th Cir. 2005).

As a result, the Court finds that the ALJ properly evaluated the

severity of Plaintiff’s mental impairment. Tr. 39.

B.

Whether the ALJ properly considered Plaintiff’s non-exertional
limitations in assessing her RFC

Plaintiff argues that in evaluating her RFC, the ALJ failed to consider her nonexertional limitations imposed by her mental impairment and fibromyalgia.
at 22-23.

Doc. 26

The Commissioner asserts that substantial evidence supports the ALJ’s

RFC findings, and the ALJ properly considered Plaintiff’s fibromyalgia in assessing
Plaintiff’s RFC.

Doc. 27 at 9-12.

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. 40.

The ALJ then proceeded to assess and make a finding regarding the claimant’s
RFC.

Tr. 40-42.

limitations.

The RFC is the most that a claimant can do despite her

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

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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 she can return to past
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)).
Contrary to Plaintiff’ assertion, the ALJ considered the effect of Plaintiff’s
mental impairment and fibromyalgia on her daily activities in assessing Plaintiff’s
RFC.

Tr. 40-41.

The ALJ discussed Plaintiff’s testimony that Plaintiff has

fibromyalgia and also “feels depressed because she cannot get out and do things she
enjoys.”

Tr. 41.

The ALJ also noted that Plaintiff “takes antidepressants,” and

“has a history of cocaine abuse,” but “has never been hospitalized for mental illness.”

Id.
Furthermore, as the Commissioner correctly argues, substantial evidence
supports that Plaintiff’s mental impairment does not impose limitations on Plaintiff’s
ability to work.

Dr. Zsigmond, who evaluated Plaintiff on May 12, 2011, noted that

Plaintiff’s depression began in 2009 when she discovered that her husband was
having an affair.

Tr. 253.

Dr. Zsigmond discussed that although Plaintiff had

frequent crying episodes, anhedonia, avolition, social isolation and feelings of
hopelessness “prior to medication,” Plaintiff denied any history of suicidal ideation,
and Zoloft 4 has helped Plaintiff.

4

Zoloft is an antidepressant.

Id. Furthermore, Plaintiff reported that despite

Drugs.com, http://www.Drugs.com/zoloft.html (last

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having abused cocaine from the mid-1990s until January 2010, she completed a courtmandated substance abuse program in April 2010 and continues to speak with her
counselor to prevent relapse.

Id.

During Dr. Zsigmond’s interview with Plaintiff, Plaintiff was appropriately
dressed and groomed with good basic functioning and hygiene. Tr. 254.

Plaintiff

also was alert and well-oriented and did not exhibit any symptoms of psychosis such
as hallucinations, delusions, or ideas of reference.

Id.

Plaintiff denied any

compulsions or obsessions and did not show suicidal or homicidal tendencies.

Id.

Furthermore, Plaintiff provided a reliable personal history, demonstrating no severe
short-term or long-term memory impairment.

Id.

In addition, Plaintiff had

appropriate attention and concentration, an ability to complete simple math
calculations, adequate judgment and insight into her difficulties, goal-directed,
logical, and coherent speech and thought processes, no evidence of a formal thought
disorder, no articulation problems, and a full range of appropriate affects.

Tr. 254-

55.
With regard to her functioning and activities, Plaintiff reported during the
evaluation that she is able to initiate and maintain friendships, and her social life is
limited due to her pain and lack of funds, not due to her psychological issues.

Tr.

255. Plaintiff also noted that she watches television, cares for her dogs, prepares
simple meals, and does minimal housecleaning.

Id. In efforts to lose her weight,

Plaintiff stated that she tries to swim two to three times a week. Id.

visited, Mar. 16, 2017).

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Based on her

interview with Plaintiff, Dr. Zsigmond opined that Plaintiff’s activities of daily living
“are appropriate, however slow and painful.”

Id.

As a result, although Dr.

Zsigmond diagnosed Plaintiff with chronic adjustment disorder with depressed mood,
nicotine dependence with physiological dependence, and cocaine abuse in early
remission, Dr. Zsigmond concluded that Plaintiff’s prognosis is fair with appropriate
services and simply recommended that Plaintiff obtain health insurance and continue
appropriate medical care.

Id.

As a result, Dr. Zsigmond did not opine that

Plaintiff’s mental disorder significantly limits Plaintiff’s ability to work.

Tr. 253-55.

The ALJ considered Dr. Zsigmond’s evaluation in assessing the severity of Plaintiff’s
mental disorder.

Tr. 38.

The ALJ also accorded great weight to her opinion in

evaluating Plaintiff’s RFC because it is consistent with the medical record as a whole.
Tr. 42.
On May 21, 2011, Stanley Rabinowitz, M.D., conducted a consultative physical
examination of Plaintiff.

Tr. 257.

Dr. Rabinowitz’s examination revealed that

Plaintiff was oriented as to time, place, and person, her memory was intact, and her
appearance was appropriate.

Tr. 259.

Plaintiff also exhibited no behavioral

difficulties during the interview with him, was able to relate, and appeared to be able
to handle her own funds.

Id. Similar to Dr. Zsigmond, Dr. Rabinowitz did not opine

that Plaintiff’s mental disorder causes any limitation on Plaintiff’s ability to work.

Id.
On June 1, 2011, Keith Bauer, Ph.D., completed a psychiatric review technique
of Plaintiff and confirmed that she has non-severe impairments of affective disorders

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and substance addition disorders.

Tr. 263.

He noted that Plaintiff did not report

mental health sources on her application except Dr. Zsigmond’s examination
conducted on May 12, 2011.

Tr. 275.

Plaintiff again reported to Dr. Bauer that she

had been on Zoloft for the past year, which has been helpful.

Id. Furthermore, Dr.

Bauer made a number of observations that indicated no restriction on Plaintiff’s
ability to perform work: Plaintiff drove herself to the examination, her memory was
intact, she had appropriate attention and concentration, her activities of daily living
were appropriate, she was able to maintain her personal care, she did household
chores and prepared meals, she kept track of her medication without reminders or
assistance, and she saw friends and family on a regular basis. Id.

Based on his

examination and interview with her, Dr. Bauer opined that she was “not psychotic,”
and neurocognitively intact.

Id.

He concluded that Plaintiff has “no significant

limitations due to her adjustment [disorder.]”

Id.

On August 6, 2011, Arthur

Hamlin, Psy.D., who reviewed all evidence in file, affirmed Dr. Bauer’s examination.
Tr. 277.
With regard to Plaintiff’s fibromyalgia, a claimant’s fibromyalgia is
“characterized primarily by widespread pain in the joints, muscles, tendons, or
nearby soft tissues that has persisted for at least 3 months.” Laurey v. Comm’r of

Soc. Sec., 632 F. App’x 978, 987 (11th Cir. 2015) (citing SSR 12-2p, 2012 WL 3017612
(July 25, 2012)).

Even if the record supports a diagnosis of fibromyalgia, “the mere

diagnosis does not establish functional limitations.” Santin v. Comm’r of Soc. Sec.,
No. 5:15-cv-392-Oc-18PRL, 2016 WL 5478017, at *2 (M.D. Fla. Aug. 12, 2016) (citing

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Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005)), adopted by 2016 WL
5477094 (M.D. Fla. Sept. 27, 2016).

Instead, “longitudinal records reflecting ongoing

medical evaluation and treatment from acceptable medical sources are especially
helpful in establishing both the existence and severity of fibromyalgia” because the
symptoms of fibromyalgia “can wax and wane so that a person may have ‘bad days
and good days.’”

Laurey, 632 F. App’x at 987-88 (citing SSR 12-2p, 2012 WL 3017612

(July 25, 2012)).

Furthermore, as noted, it is Plaintiff’s burden to show the effect

fibromyalgia on her ability to work.

Wind, 133 F. App’x at 690.

Here, as the Commissioner correctly argues, the record does not show that
Plaintiff’s fibromyalgia significantly limits Plaintiff’s ability to work.

Doc. 27 at 12.

David Baldinger, M.D., a rheumatologist, began examining Plaintiff on March 12,
2010.

Tr. 250-51. During this visit, although he diagnosed Plaintiff with fibrositis,

Plaintiff’s neurological examination was stable, and there was no evidence of joint
inflammation. Tr. 250.

Dr. Baldinger examined Plaintiff again on March 31, 2010

and August 10, 2010, during which he also concluded that Plaintiff had no other signs
of inflammation than diffuse muscle tenderness.

Tr. 248-49. In fact, he noted on

August 10, 2010 that Plaintiff’s pain had some improvement with Tramadol 5 and
Gabapentin. 6 Tr. 248.

Tramadol is a narcotic-like pain reliever used to treat moderate to severe pain.
Drugs.com, https://www.drugs.com/tramadol.html (last visited, Mar. 16, 2017).
5

Gabapentin is an anti-epileptic medication used to treat nerve pain. Drugs.com,
https://www.drugs.com/gabapentin.html (last visited, Mar. 16, 2017).
6

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On November 8, 2012, Plaintiff saw Dr. Baldinger.

Tr. 327. Dr. Baldinger

noted that Plaintiff takes Ultram 7 and Gabapentin, which helps control Plaintiff’s

Id.

pain.

Plaintiff also denied having any chest pains and palpitations, cough,

dyspnea at rest, nausea, vomiting, and diarrhea.

Id.

Plaintiff appeared well

developed and nourished with no acute distress, and her neurological examination
was normal.

Tr. 328.

Dr. Baldinger’s medical records do not establish any

limitations caused by fibromyalgia.

The ALJ discussed these records in evaluating

the severity of Plaintiff’s impairments.

Tr. 39.

On August 5, 2011, James H. Taylor, D.O., examined Plaintiff for Plaintiff’s
hypertension and body pain.

Tr. 305.

Dr. Taylor noted that Plaintiff has a history

of body pain consistent with fibromyalgia, hypertension, and obesity and has seen Dr.
Baldinger in the past.

Id.

Dr. Taylor diagnosed her with benign essential

hypertension, morbid obesity, chronic major depression, and a risk of fibromyalgia.
Tr. 306.

He instructed her to follow up in one month.

Id. On December 9, 2011,

Plaintiff saw Dr. Taylor because of her boil and hypertension. Tr. 300.

Plaintiff’s

physical examination during this visit, however, was normal, and Dr. Taylor did not
note a treatment plan specific to Plaintiff’s fibromyalgia.

Tr. 300-01.

Plaintiff visited again Dr. Taylor on April 17, 2012.

During this visit,

although Plaintiff complained of her shoulder and hip pain and was taking Tramadol
for her fibromyalgia, her physical examination was normal, and Dr. Taylor did not

Ultram is narcotic-like pain reliever used to treat moderate to severe pain.
Drugs.com, https://www.drugs.com/ultram.html (last visited, Mar. 16, 2017).
7

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indicate any specific treatment plan for her fibromyalgia.

Tr. 294-96.

Furthermore, contrary to Dr. Taylor’s opinion on July 17, 2012 that Plaintiff’s chronic
pain may be increasing her fibromyalgia symptoms, on July 27, 2012, Plaintiff denied
any chills, chest pain or discomfort, dyspnea, nausea, vomiting, or urinary symptoms.
Tr. 288.
Dr. Rabinowtiz, who examined Plaintiff on May 23, 2011, noted that Plaintiff’s
chief complaint was fibromyalgia.

Tr. 257.

Dr. Rabinowitz, however, found that

despite complaining of being hurt “all over,” and having a nonrestorative sleep
pattern, depression, frequent headaches, and difficulty concentrating, Plaintiff
denied fatigue and her memory was intact. Id.

During this visit, Plaintiff also had

clear and understandable speech, normal hearing, and intact speech and
communication.

Tr. 258.

Dr. Rabinowitz found that Plaintiff walks normally

without the help of any assistive device and could dress and undress without
assistance.

Id.

In addition, Plaintiff’s physical examination was normal: all of Plaintiff’s joints
and spine had a full range of motion, and there was no evidence of active joint
inflammation, joint deformity, instability, contracture or paravertebral muscle
spasm.

Id. She also had no cyanosis or clubbing and edema in her extremities, and

her grip strength in both hands and digital dexterity were normal.

Id. She had no

difficulty getting on or off the examining table and was able to squat halfway down
with moderate difficulty.
intact.

Id.

Plaintiff’s cranial nerves II-XII also were grossly

Id. Plaintiff’s light touch and reflex testing were normal. Id. Plaintiff’s

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motor strength testing on her upper and lower extremities bilaterally showed full

Id. Similarly, Plaintiff’s cerebellar testing including finger

normal motor strength.

to nose testing and heel to shin testing was within normal limits.
tandem gait was intact.

Id. Plaintiff’s

Id. The ALJ discussed Dr. Rabinowitz’s examination in

assessing the severity of Plaintiff’s fibromyalgia. Tr. 39.

The ALJ accorded great

weight to Dr. Rabinowitz’s opinion in evaluating Plaintiff’s RFC because it is
consistent with the medical record as a whole.

Tr. 42.

On September 12, 2011, Dr. Baldinger completed a fibromyalgia RFC
questionnaire for Plaintiff.

Tr. 279-82. He indicated that Plaintiff’s fibromyalgia

meets the American College of Rheumatology criteria, and her prognosis is poor.
279.

Tr.

He listed as Plaintiff’s fibromyalgia symptoms: multiple tender points,

numbness and tingling, nonrestorative sleep, chronic fatigue, muscle weakness,
subjective

swelling,

frequent,

severe

Dysfunction, depression, and anxiety.

headaches,

Temporomandibular

Joint

Id. He opined that Plaintiff’s fibromyalgia

symptoms will interfere constantly with her attention and concentration needed to
perform simple work tasks, and she cannot perform even “low stress” jobs.

Tr. 280.

He noted that Plaintiff can walk only one block without rest or severe pain, sit and
stand each for thirty minutes at one time, and sit and stand/walk for less than two
hours in an eight-hour working day.

Tr. 281.

Dr. Baldinger further found that

Plaintiff needs a job permitting her to shift positions at will from sitting, standing, or
walking and to take unscheduled breaks during an eight-hour work day.

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Id.

In addition, Dr. Baldinger indicated that Plaintiff can rarely lift or carry less
than 10 lbs, 10 lbs, or 20 lbs and never lift or carry 50 lbs.

Tr. 282.

He also noted

that she can never climb ladders, rarely stoop (bend), crouch, and climb stairs, and

Id. He further opined that Plaintiff has significant limitations

occasionally twist.

in doing repetitive reaching, handling, or fingering.

Id. Dr. Baldinger opined that

Plaintiff is likely to be absent from work more than four days per month as a result
of her fibromyalgia.

Id.

The ALJ considered and accorded little weight to Dr.

Baldinger’s September 12, 2011 opinion in assessing Plaintiff’s RFC because
substantial medical evidence, treatment notes, or objective observation did not
support this opinion.

Tr. 42.

The ALJ noted that Plaintiff’s medical evidence

shows that Plaintiff was less limited than what Dr. Baldinger’s September 12, 2011
opinion provided.

Id. As a result, the review of the medical evidence shows that

Plaintiff’s fibromyalgia does not significantly limit Plaintiff’s ability to work.
Based on the analysis above, the Court finds that substantial evidence
supports the ALJ’s RFC findings, and Plaintiff’s mental disorder and fibromyalgia do
not impose significant limitations on her ability to work.

See Wind, 133 F. App’x at

690.

C.

Whether the ALJ properly determined that Plaintiff is capable of
performing her past relevant work

The ALJ found that Plaintiff is capable of performing her past relevant work
as a secretary/office worker because this work does not require the performance of
work-related activities precluded by Plaintiff’s RFC.
that:

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Tr. 42.

The ALJ explained

[the] Dictionary of Occupational Titles sets forth that this job is
generally performed at the sedentary exertional level, DOT #201.362030. In comparing [Plaintiff’s RFC] with the physical and mental
demands of this work, the undersigned finds that [Plaintiff] is able to
perform it as actually and generally performed.

Id. The ALJ also found that considering Plaintiff’s age, education, work experience,
and RFC, there are a significant number of other jobs in the national economy she is
able to perform.

Tr. 43.

Plaintiff argues that the ALJ erred by naming two different job titles and yet,
citing to only one DOT code.

Doc. 26 at 18. Plaintiff asserts that although the work

involves a composite of different DOT codes, the ALJ did not establish all of the
necessary findings to support that Plaintiff actually can perform the composite of
office worker/secretary.

Id.

According to Plaintiff, the state agency physicians

found that Plaintiff is incapable of performing her past relevant work.

Id. at 20.

Specifically, Plaintiff argues that the ALJ rejected Dr. Le’s opinion that Plaintiff
could not perform her past relevant work. Id. at 21.

Lastly, Plaintiff contends that

she did not work long enough as a secretary/office worker for it to constitute her past
relevant work.

Id. at 23-24.

The Commissioner asserts that Plaintiff did not meet her burden of proving
her inability to perform her past relevant work.

Doc. 27 at 12. The Commissioner

claims that contrary to Plaintiff’s argument, Dr. Le did not opine that Plaintiff could
not perform her past relevant work.

Id. at 16-17. The Commissioner also argues

that even if Plaintiff met her burden, she does not dispute the ALJ’s finding that she
could perform a significant number of jobs in the national economy.

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Id. at 13.

Furthermore, the Commissioner responds that a secretary/office worker qualifies as
Plaintiff’s past relevant work.

Id. at 14-15.

First, as the Commissioner correctly argues, Dr. Le did not opine that Plaintiff
could not perform her past relevant work.

Id. at 16-17. On the contrary, on August

10, 2011, Loc Kim Le, M.D., reviewed all the evidence in the file and affirmed the
single decision maker’s 8 (“SDM”) RFC assessment of Plaintiff conducted on June 1,
2011.

Tr. 97, 278. Dr. Le’s opinion completed the medical portion of the disability

determination.

Tr. 278.

On June 1, 2011, the SDM opined that Plaintiff can lift

and/or carry occasionally 20 pounds and frequently 10 pounds, stand and/or walk
with normal breaks for a total of about six hours in an eight-hour workday, sit with
normal breaks for a total of about six hours in an eight-hour workday, and push
and/or pull unlimitedly.

Tr. 89. The SDM also found that Plaintiff has no postural,

manipulative, visual, communicative, or environmental limitations.

Tr. 90-92.

Based on her findings, the SDM noted that Plaintiff’s symptoms are
attributable to a medially determinable impairment, but the severity or duration of
the symptoms is disproportionate to the expected severity or expected duration on

Although a single decision maker is not an acceptable medical source and her
opinion is not entitled to any weight or consideration, the ALJ may consider the report
prepared by Dr. Le. See 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); SSR 96-6p. Dr. Le
reviewed and affirmed the SDM’s findings after reviewing the record. Tr. 278. 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).
8

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the basis of Plaintiff’s medically determinable impairments.

Tr. 93.

The SDM

indicated that the severity of the symptoms and its alleged effect on function are not
consistent with the total medical and non-medical evidence including statements by
Plaintiff and others, observations regarding activities of daily living, and alterations
of usual behavior or habits.
RFC assessment.

Tr. 278.

Id. Dr. Le reviewed the evidence and affirmed this
The ALJ gave great weight to the opinions of the state

agency medical examiners, including that of Dr. Le, finding these opinions were
consistent with the medical record as a whole.

Tr. 42.

As a result, the ALJ did not

reject Dr. Le’s opinion by concluding that Plaintiff could perform her past relevant
work. 9 Doc. 26 at 20-11; Tr. 42.
Next, Plaintiff argues that a secretary/office worker does not qualify as her
past relevant work. Doc. 26 at 23-24.

Plaintiff asserts that she earned in excess of

$10,000 only in 2007 and could not have spent up to two years to learn her work.

Id.

Step four of the sequential evaluation process requires the ALJ to determine
whether the Plaintiff’s RFC allows him to perform any of her past relevant work.

20

Plaintiff appears to argue that because Dr. Le’s signature, along with the signature
of a disability examiner, is on a state agency decision that noted Plaintiff was not disabled
because she could perform other work in the national economy (Tr. 97), Dr. Le was opining
that Plaintiff could not perform her past relevant work. Doc. 26 at 20-21. Thus, the
argument goes, because the ALJ found Plaintiff could perform her past relevant work, he was
rejecting, without explanation and contrary to the regulations, Dr. Le’s opinion that she could
perform “other work.” Id. at 21. Plaintiff’s argument is without merit. As discussed, in
affirming the RFC Dr. Le opined that Plaintiff could perform light work, and the ALJ afforded
his opinion great weight. Tr. 42, 89-95, 278. Also, Dr. Le was making findings of fact about
the medical issues, not the vocational issues such as whether Plaintiff can perform her past
work. See 20 C.F.R. § 416.927(e)(1)(i) (describing role). Finally, as noted by the
Commissioner, these two findings – that a claimant can perform other work and can perform
past relevant work – can be consistent when, as here, the claimant’s RFC allows for the
performance of both. Doc. 27 at 16.
9

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C.F.R. § 416.920(a)(4)(iv).

Plaintiff bears the burden of showing that her past work

experience is not past relevant work.

Barnes, 932 F.2d at 1359. Past relevant work

is defined as, “work that you have done within the past 15 years, that was substantial
gainful activity, and that lasted long enough for you to learn to do it.”

20 C.F.R. §

416.960(a)(1).

“Substantial gainful activity is work activity that is both substantial

and gainful.”

20 C.F.R. § 416.972.

mental and physical activities.

Substantial work activity involves doing both

20 C.F.R. § 416.972(a).

Work may be “substantial”

even “if it is done on a part-time basis or if you do less, get paid less, or have less
responsibility than when you worked before.”

20 C.F.R. § 416.972(a).

Work is

considered “gainful” if it is the kind of work that is typically done for pay or profit,
even if the profit is not realized.

20 C.F.R. § 416.972(b).

Earnings show that the claimant engaged in substantial gainful activity if a
claimant’s monthly earnings averaged more than:
the larger of the amount for the previous year or an amount adjusted for
national wage growth, calculated by multiplying $700 by the ratio of the
national average wage index for the year 2 calendar years before the
year for which the amount is being calculated to the national average
wage index for the year 1998.
20 C.F.R. § 404.974(b)(2)(ii).

Regarding a non-blind person, the SSA recognizes as

the monthly substantial gainful activity amounts: for 2005, $830 per month; for 2006,
$860 per month; for 2007, $900 per month; for 2008, $940 per month; for 2009, $980
per month; and for 2010, $1,000 per month.

Substantial Gainful Activity, Social

Security, https://www.ssa.gov/oact/cola/sga.html (last visited, Mar. 17, 2017).

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Here, the Court finds that a secretary/office worker qualifies as Plaintiff’s past
relevant work.

During the hearing before the ALJ, Plaintiff testified that she

worked as an office worker, doing secretarial work for her husband’s tree servicing
company from January 2005 to February 2010.

Tr. 55, 62, 166. On her application,

Plaintiff indicated that she earned approximately $30,000 per year by working as an
office worker.

Tr. 161.

In fact, during the hearing before the ALJ, Plaintiff noted

that she earned more than $30,000 per year from her job with the tree servicing
company.

Tr. 69.

Plaintiff’s paperwork and testimony show that she made at least $2,500 per
month from January 2005 to February 2010, far exceeding the basic monthly
substantial gainful amounts required by the SSA.

Substantial Gainful Activity,

Social Security, https://www.ssa.gov/oact/cola/sga.html (last visited, Mar. 17, 2017).
The length of her work experience also contradicts her own argument that she had
less than two years to learn the work as a secretary/office worker.

Doc. 26 at 24.

As a result, based on Plaintiff’s length of time engaged in and income derived from
her work as an officer worker/secretary, the Court finds that she engaged in
substantial gainful activity.

20 C.F.R. §§ 416.960(a)(1), 404.974(b)(2)(ii).

In light of her testimony, Plaintiff’s argument that the only year her annual
income exceeded $10,000 has no merit.
reported income to the government.

Id. Plaintiff’s argument is based on her

Tr. 151.

Plaintiff, however, testified before the

ALJ that she did not receive a paycheck when she worked for her husband’s company
because she was self-employed.

Tr. 55. For a self-employed person, the regulation

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does not consider a claimant’s income alone because “the amount of income [a
claimant] actually receive[s] may depend on a number of different factors, such as
capital investment and profit-sharing agreements.”

20 C.F.R. § 416.975(a).

Based

on the analysis above, the Court finds that a secretary/office worker qualifies as
Plaintiff’s past relevant work because is it the “work that [she] ha[s] done within the
past 15 years, that was substantial gainful activity, and that lasted long enough for
[her] to learn to do it.”

20 C.F.R. § 416.960(a)(1).

Lastly, Plaintiff argues that the ALJ erred by classifying her past relevant
work under a single DOT code, although her job involves two composite jobs, the
secretary and the office worker.

Doc. 26 at 18.

Furthermore, according to Plaintiff,

the ALJ did not make all of the necessary findings to show that Plaintiff actually
could perform the jobs.

Id. Contrary to Plaintiff’ argument, however, Plaintiff, not

the ALJ, must show that she could not perform her past relevant work as it is
generally performed in the national economy as well as how she actually performed
it.

Doc. 27 at 12-13; SSR 82-61; SSR 82-62; Barnes, 932 F.2d at 1359.
Furthermore, even if the ALJ erred by finding that Plaintiff can perform her

past relevant work as actually and generally performed, the error was not prejudicial.
Tr. 43.

If “a claimant proves that she can no longer perform her past relevant work,

the burden shifts to the Commissioner to show the existence of other jobs in the
national economy which, given the claimant’s impairments, the claimant can
perform.”

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). Here, although the

ALJ found that Plaintiff is capable of performing her past relevant work, the ALJ

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proceeded to find that given Plaintiff’s age, education, work experience, and RFC,
there are a significant number of other jobs in the national economy Plaintiff also can
perform.

Tr. 43.

Nonetheless, Plaintiff argues that the ALJ erred in evaluating her nonexertional impacts on her ability to work because he did not call for a vocational
expert (“VE”).

Doc. 26 at 19-20.

In contrast, the ALJ may satisfy his burden at step

five by relying on the Grids rather than calling for a VE to testify if the ALJ
determines that the claimant is capable of performing a full range of work at a given
level of exertion or that the claimant’s non-exertional limitations do not significantly
limit basic work skills.

Jones, 190 F.3d at 1229. Here, the ALJ properly relied on

the Grids instead of calling for a VE because the ALJ found that Plaintiff is capable
of performing a full range of light work, and as noted, Plaintiff’s non-exertional
limitations imposed by her mental disorder and fibromyalgia do not significantly
limit her basic work skills.

Tr. 39, 41-42; Id.

As a result, even if the ALJ erred by

concluding that Plaintiff can perform her past relevant work, that error was not
prejudicial.

Hunter v. Comm’r of Soc. Sec., 609 F. App’x 555, 558 (11th Cir. 2015)

(citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).

Based on the above

reasons, the Court finds that substantial evidence supports the ALJ’s findings at step
four.

Tr. 42-43.

D.

Whether Plaintiff received a full and fair hearing before the ALJ

Plaintiff argues that the ALJ here believed and acted contrary to the SSA’s
rules, regulations, and procedures, resulting in the SSA’s disciplinary proceedings

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against the ALJ and prejudice and bias against Plaintiff.

Doc. 26 at 11-13.

Plaintiff asserts that due to the ALJ’s personal beliefs against the SSA, this case
requires a remand to a new ALJ.

Id. at 13. Plaintiff also claims that the SSA’s

disciplinary proceedings against the ALJ involves Plaintiff’s counsel.

Id. at 15.

The Commissioner responds that Plaintiff does not demonstrate the ALJ’s actual bias
against her.

Doc. 27 at 18.

On the contrary, according to the Commissioner, the

review of the case shows that Plaintiff’s receipt of a full and fair hearing before the
ALJ here.

Id. at 18-19.

The ALJ must “not conduct a hearing if he or she is prejudiced or partial with
respect to any party or has any interest in the matter pending for decision.”

Jarrett

v. Comm’r of Soc. Sec., 422 F. App’x 869, 874 (11th Cir. 2011) (citing Miles v. Charter,
84 F.3d 1397, 1400 (11th Cir. 1996)).

If a claimant believes that “a particular ALJ

will not provide a fair hearing, she must notify the ALJ at the earliest opportunity.”

Id. (citing 20 C.F.R. § 404.940). If the ALJ refuses, then the claimant may raise this
issue before the Appeals Council. Id. at 874-75. To merit remand on the basis of
the ALJ’s bias, the court must find evidence of bias or unfair treatment by the ALJ.

See id. at 875. The claimant bear the burden to allege any specific instances of the
ALJ’s bias in her case.

See id.

Here, as the Commissioner accurately argues, Plaintiff does not present any
specific instances of the ALJ’s bias against her here.

Doc. 26 at 11-15; See id.

Instead, Plaintiff only alleges the ALJ’s general beliefs and acts against the SSA’s
rules and procedures without showing his specific acts of bias against her in this

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matter.

Doc. 26 at 11-15.

Furthermore, as noted, the Court’s review of the ALJ’s

decision shows that the ALJ properly followed the rules and procedures and analyzed
Plaintiff’s evidence on the record in rendering his decision.
In addition, in support of her arguments, Plaintiff cites to the cases issued by
this Court, misinterpreting the propositions for which the cases stand.
14-15.

Doc. 26 at

Specifically, Plaintiff argues that in these cases, the Court did not order re-

hearing by a new ALJ because the ALJ Butler’s lawsuit commenced only after the
ALJ issued his decisions.

King v. Comm’r of Soc. Sec., No. 2:14-cv-341-FtM-CM,

2015 WL 5234318, at *9 (M.D. Fla. Sept. 8, 2015); Ward v. Comm’r of Soc. Sec., No.
2:14-cv-419-FtM-CM, 2015 WL 5736177, at *7 (M.D. Fla. Sept. 29, 2015).

Plaintiff

asserts that in other instances, the Court ordered re-hearing before a new ALJ
instead of ALJ Butler in order to avoid any appearance or risk of actual bias or
prejudgment.

Hill v. Comm’r of Soc. Sec., No. 2:14-cv-708-FtM-CM, 2016 WL

1253579, at *10 (M.D. Fla. Mar. 31, 2016); McCann v. Comm’r of Soc. Sec., No. 2:14cv-265-FtM-CM, 2016 WL 1253576, at *11 (M.D. Fla. Mar. 31, 2016).
In all of the four cases, King, Ward, Hill, and McCann, however, the Court
reversed the ALJ’s decisions because substantial evidence did not support the ALJ’s
decisions, not because of the ALJ’s bias against the plaintiffs.

King, 2015 WL

5234318, at *9; Ward, 2015 WL 5736177, at *7; Hill, 2016 WL 1253579, at *10;

McCann, 2016 WL 1253576, at *11. Only after finding remand appropriate on other
grounds, the Court in Hill and McCann ordered re-hearing before a new ALJ on
remand to avoid any appearance or risk of actual bias or prejudgment because ALJ

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Butler’s disciplinary proceedings involved the plaintiff’s counsel.

Hill, 2016 WL

1253579, at *10; McCann, 2016 WL 1253576, at *11.
In King and Ward, the Court did not even order re-hearing before a new ALJ
because the plaintiffs had not “shown that ALJ Butler’s lawsuit, filed after his
opinion[s] in [these were] issued and which does not involve [the plaintiffs’ cases,]
resulted in actual bias.”
*7.

King, 2015 WL 5234318, at *9; Ward, 2015 WL 5736177, at

Here, unlike all of the four cases cited above, Plaintiff does not show grounds to

merit remand or the ALJ’s actual bias against her.

Jarrett, 422 F. App’x at 875.

Hence, the Court will not order re-hearing before a new ALJ.

Id.

ACCORDINGLY, it is hereby
ORDERED:
1.

The decision of the Commissioner is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment pursuant to sentence

four of 42 U.S.C. § 405(g) in favor of the Commissioner, and close the file.
DONE and ORDERED in Fort Myers, Florida on this 24th day of March, 2017.

Copies:
Counsel of record

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