Beaird v. Commissioner of Social Security
Filing
22
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 9/23/2017. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JEREMY BEAIRD,
Plaintiff,
v.
Case No: 2:16-cv-430-FtM-CM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Plaintiff Jeremy Beaird seeks judicial review of the denial of his claim for
disability and supplemental security income (“SSI”) by the Commissioner of the
Social Security Administration (“Commissioner”).
record, the briefs and the applicable law.
The Court has reviewed the
For the reasons discussed herein, the
decision of the Commissioner is AFFIRMED.
I.
Issues on Appeal 1
Plaintiff raises two issues on appeal: (1) whether the administrative law judge
(“ALJ”) properly evaluated the opinions of Plaintiff’s treating psychiatrist; and (2)
whether substantial evidence supports the ALJ’s determination of Plaintiff’s residual
functional capacity (“RFC”).
Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now,
Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or
argument that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.”).
1
II.
Procedural History and Summary of the ALJ’s Decision
Plaintiff filed an application for SSI on October 24, 2011.
Tr. 153-58.
Plaintiff alleged that his disability began March 1, 2010 due to bipolar disorder.
69, 174.
Tr.
Plaintiff’s claim initially was denied on January 9, 2012 and upon
reconsideration on May 10, 2012.
Tr. 92-97, 102-06.
Plaintiff requested a hearing
before an ALJ and received a hearing before ALJ T. Whitaker 2 on July 22, 2014.
26, 107-109.
Tr.
Plaintiff appeared and testified at the hearing, during which Plaintiff
was represented by counsel.
Tr. 26, 31-52.
Vocational expert (“VE”) Robert L.
Lessne appeared by telephone and testified at the hearing.
Tr. 26, 52-67.
On October 27, 2014, the ALJ issued a decision finding Plaintiff not disabled
since October 24, 2011, the date he filed his application.
Tr. 12-21.
At step one, the
ALJ found that Plaintiff has not engaged in substantial gainful activity since October
24, 2011, the application date.
Tr. 14. At step two, the ALJ found that Plaintiff
has the following severe impairments: bipolar disorder, anxiety disorder, impulse
control disorder, and a history of substance abuse including alcohol, cocaine and
cannabis abuse.
Id.
Next, the ALJ concluded that Plaintiff does not have “an
impairment or combination of impairments that meets or medically equals the
severity of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.”
Id.
The ALJ then determined that Plaintiff has the RFC to perform a full range of work
at all exertional levels, subject to the following limitations:
The hearing notices in the record indicate that the hearing was to be held before the
ALJ Larry J. Butler. Tr. 121-24. For reasons not specified in the record, the hearing was
held before ALJ T. Whitaker instead. Tr. 26.
2
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his work is limited to simple, routine, and repetitive tasks in a work
environment free of fast paced production requirements; his work is
limited to work involving only simple work related decisions and only
occasional workplace changes; he is limited to work with no interaction
with the public; and he is limited to work with only occasionally [sic]
interaction with co-workers and supervisors with no tandem tasks with
coworkers and supervisors.
Tr. 16.
Subsequently, the ALJ determined that Plaintiff can perform his past
relevant work as an industrial cleaner because this work does not require the
performance of work-related activities precluded by Plaintiff’s RFC.
Tr. 19.
Alternatively, the ALJ found that based on Plaintiff’s age, education, work experience
and RFC, there are jobs existing in significant numbers in the national economy that
Plaintiff can perform.
Tr. 20.
Thus, the ALJ concluded that Plaintiff has not been
under a disability since October 24, 2011, the date Plaintiff filed his application. Id.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on April 1, 2016.
Tr. 1-3.
Accordingly, the October 27,
2014 decision is the final decision of the Commissioner.
this Court on June 2, 2016.
Doc. 1.
Plaintiff filed an appeal in
Both parties have consented to the jurisdiction
of the United States Magistrate Judge, and this matter is now ripe for review.
Doc.
11.
III.
Social Security Act Eligibility and Standard of Review
A claimant is entitled to disability benefits when he 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.
-3-
42 U.S.C. §§ 416(i)(1),
423(d)(1)(A); 20 C.F.R. § 404.1505(a). 3 The Commissioner has established a fivestep 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.
933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Id. at
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,
The Court notes that after Plaintiff filed his application and the ALJ issued the
decision, certain Social Security rulings and regulations have been amended, such as the
regulations concerning the evaluation of medical opinions and evaluation of mental
impairments. See e.g., 20 C.F.R. §§ 404.1520a, 404.1520c and 404.1527 (effective March 27,
2017); SSR 16-3p, 2016 WL 1119029 (March 16, 2016). The Court will apply rules and
regulations in effect at the time of the ALJ’s decision, unless regulations specify otherwise.
Green v. Soc. Sec. Admin., Comm’r, — F. App’x —, 2017 WL 3187048, at *4 (11th Cir. July
27, 2017) (in reviewing the ALJ’s decision, refusing to apply SSR 16-3p retroactively because
“administrative rules are not generally applied retroactively.”); Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988) (“[C]ongressional enactments and administrative rules will
not be construed to have retroactive effect unless their language requires this result.”); 20
C.F.R. § 404.1527 (effective March 27, 2017) (“For claims filed . . . before March 27, 2017, the
rules in this section apply.”). See also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)
(holding that when the Appeals Council denies review of the ALJ’s decision, appellate courts
review the ALJ’s decision as the Commissioner’s final decision).
3
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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 is something more than a
mere scintilla, but less than a preponderance”) (internal citation omitted).
The Eleventh Circuit 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).
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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, Soc. Sec. Admin., 606 F.
App’x 520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971)).
The Court reviews the Commissioner’s conclusions of law under a de
novo standard of review. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260
(11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
IV.
Discussion
a. Whether the ALJ properly evaluated the opinions of Plaintiff’s
treating psychiatrist.
At issue here is the July 2014 opinion of Plaintiff’s treating psychiatrist, O.H.
Bernadotte, M.D.
Doc. 17 at 9-14; Tr. 272-75.
Dr. Bernadotte, who practices at
Hendry Glades Behavioral Center (“Hendry Glades”), treated Plaintiff from February
2012 to June 2014.
Tr. 231-70.
Plaintiff’s treatment records at Hendry Glades
begin on November 4, 2011 when he sought treatment for his depression and mood
swings.
Tr. 243.
Although Plaintiff visited the center prior to November 2011, the
record does not contain any treatment notes from previous visits.
Tr. 245, 250.
On November 4, 2011, Plaintiff met with Roberta F. Moot, M.S.
Tr. 249.
Plaintiff reported that he was depressed and paranoid, had mood swings and did not
trust anyone.
Tr. 243.
He noted that he got angry easily and isolated himself. Id.
With regard to his childhood history, Plaintiff indicated that although his
development was normal, he was raised by his mother and step-father, who abused
him physically and mentally, and was diagnosed with bipolar disorder when he was
a teenager.
Tr. 243, 46.
Plaintiff reported that he was sent to foster care at the age
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of eleven, went through sixteen foster care homes until the age of eighteen and
remained not close to anyone.
Tr. 244.
He also noted that he stopped his high
school education in his tenth grade, but later obtained a GED. Id.
At this time, he
indicated that he lived with his boyfriend in safe conditions and was in a good health,
although he had problems sleeping.
Tr. 243-44.
Plaintiff also reported that he
watched TV and enjoyed reading and used to play football and video games as a
teenager.
Tr. 244.
The counsellor indicated that Plaintiff had a sporadic work history.
Id.
Plaintiff noted that he joined the military, but was discharged for medical reasons
during the training. Id.
to take care of himself.
Nonetheless, Plaintiff had no legal problems and was able
Tr. 245.
The counsellor found that he was smart, had a
good sense of humor, was a good friend and loved animals.
that his boyfriend supported him.
Id. Plaintiff indicated
Id. The counsellor noted that during this visit,
Plaintiff was open to treatment and also “was fairly open” during the interview.
Tr.
249.
During this visit, Plaintiff appeared neat and clean and exhibited an
appropriate attitude and normal affect.
Tr. 255.
Although his mood was anxious
and depressed, and his speech was hyper verbal, his motor behavior was normal and
he was alert and oriented to person, place, situation and time.
thought was organized, and he had coherent thought content.
Id.
Plaintiff’s
Id. Plaintiff had
average intelligence and normal memory, despite having poor insight.
Id. Plaintiff
had normal perception and denied any suicidal or homicidal ideation, although he
-7-
had impulsive judgment, a medium level of impulsivity and a moderate risk for
violence.
Id.
Furthermore, Plaintiff reported that he started using marijuana and alcohol
and had tried cocaine once or twice.
also smoked tobacco.
Tr. 246.
He continued to use marijuana and
Id. The counsellor noted that Plaintiff was a candidate for
outpatient treatment because his substance abuse was mild and he was in the stage
of pre-contemplation.
Id.
Based on her observations, the counsellor diagnosed
Plaintiff with bipolar disorder and provided a differed diagnosis on Axis II.
Tr. 249.
The counsellor indicated that Plaintiff was isolated and needed financial help and
medications.
Id.
She noted that Plaintiff’s Global Assessment of Functioning
(“GAF”) 4 score was 52. 5 She recommended Plaintiff for a psychological evaluation.
Id.
Dr. Bernadotte first examined Plaintiff on February 2, 2012.
Tr. 250-54.
Dr.
Bernadotte noted that Plaintiff had a long history of mental illnesses dating back to
his childhood, including attention-deficit/hyperactivity disorder, mood swings,
paranoid ideation, irritability and anxiety. Tr. 250. Plaintiff reported that he was
admitted to a psychiatric hospital when he was sixteen years old.
Id.
Dr.
Bernadotte indicated that Plaintiff had sought treatment at Hendry Glades first in
2005 and later in 2009, but eventually stopped his treatment.
Id.
Plaintiff
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”).
4
A GAF score of 51 to 60 indicates moderate symptoms or impairments in social,
occupational or school functioning. See DSM IV.
5
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returned for treatment because he continued to have mood swings, paranoid ideation,
difficulty sleeping and anxiety. Id.
Plaintiff reported that he had tried various psychiatric medications, such as
Prozac and Wellbutrin, and denied making any suicidal attempts.
Id. He noted his
history of marijuana, cocaine, alcohol and acid, although he denied any substance
abuse at this time. Tr. 251.
In addition to Plaintiff’s childhood history described
above, Dr. Bernadotte indicated that Plaintiff “ha[d] no history of being employed,”
and was living with a male roommate, who was helping him financially.
Plaintiff reported that he currently was not taking any medications.
Id.
Tr. 253.
During this visit, Plaintiff appeared his stated age and appropriately dressed
and groomed and was alert and cooperative.
Tr. 252.
He maintained good eye
contacts, and his speech was articulate and goal-directed with normal tone, rate and
volume.
Id. Although Plaintiff’s mood was anxious and depressed, his affect was
appropriate to ideation and situation. Id.
Plaintiff admitted having some paranoid
ideation, thinking that people were looking at and talking about him.
Id.
Nonetheless, Plaintiff denied any auditory or visual hallucinations, and his
intelligence was clinically average.
Id. His insight and judgment were fair, and he
was aware of his emotional condition and was seeking help at this time.
Id.
Dr. Bernadotte diagnosed Plaintiff with bipolar disorder not otherwise
specified and anxiety disorder not otherwise specified and a history of alcohol abuse
and cocaine abuse and provided a deferred diagnosis on Axis II. Tr. 241, 253.
He
noted that Plaintiff was unemployed, had a long history of emotional problems and
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lacked social support.
51.
Tr. 253.
Dr. Bernadotte noted that Plaintiff’s GAF score was
Id. He recommended that Plaintiff take a mood stabilizer, an anti-psychotic
medication and a sleeping aid.
weeks.
Id.
Id. Dr. Bernadotte asked Plaintiff to return in six
The ALJ considered and assigned substantial weight to Dr.
Bernadotte’s GAF score of 51 because “it derive[d] from a treating source.”
Plaintiff returned to Dr. Bernadotte on March 30, 2012.
Tr. 242.
Tr. 18.
Plaintiff
reported that he was experiencing no side effects from the medications and had fewer
mood swings and angry outbursts, although he still was having difficulty falling
asleep at times. Id.
Plaintiff noted that he was feeling much better.
Id. During
this visit, Plaintiff appeared neat, clean and cooperative and had normal affect and a
stable mood.
articulate.
Id.
Id.
Plaintiff’s motor behavior was normal, and his speech was
Dr. Bernadotte opined that Plaintiff’s thought process was
organized, and his thought content was coherent and logical.
Id.
Plaintiff’s
judgment was age-appropriate, and his memory and perception were normal.
Id.
Plaintiff also exhibited average intelligence and fair insight and was alert and
oriented to person, place, situation and time.
Id.
Plaintiff did not pose any
homicidal or suicidal risks and showed a low risk for violence, although he had a
medium level of impulsivity.
Id. Dr. Bernadotte adjusted Plaintiff’s medications
and ordered another follow-up appointment in eight weeks.
Id.
On May 24, 2012, Plaintiff reported to Dr. Bernadotte that he was doing well
with his medications and experienced no side effects.
Tr. 236.
Dr. Bernadotte
indicated no change in Plaintiff’s condition from the previous visit, except that
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Id. Dr. Bernadotte
Plaintiff had a low level of impulsivity and normal insight.
reported that Plaintiff’s mood was stable, his anxiety was “fairly under control” and
he was sleeping well with medications.
Id.
Plaintiff next saw Dr. Bernadotte on August 16, 2012.
Tr. 235.
Plaintiff
reported that although he was sleeping with medication and had no side effects from
his medications, he had low anxiety around people and some paranoid thoughts.
Id.
Dr. Bernadotte opined that Plaintiff experienced delusions, despite having fair
insight.
Id.
The doctor adjusted Plaintiff’s medications and scheduled another
follow-up visit in twelve weeks.
Plaintiff’s condition.
Id. Dr. Bernadotte indicated no further changes in
Id.
On November 8, 2012, Plaintiff noted to Dr. Bernadotte that he continued to
do well with his medications, had no side effects and was sleeping well. Tr. 234.
Dr. Bernadotte opined that Plaintiff was not experiencing any acute psychosis and
had a stable mood.
Id. Plaintiff’s perception was normal without any delusions.
Id. Otherwise, Dr. Bernadotte indicated no changes. Id.
On January 31, 2013, Plaintiff once again reported experiencing mood swings,
but denied any hallucinations.
Tr. 233. Plaintiff reported for the first time having
hand tremors as a side effect of his medications.
Id. Based on Plaintiff’s report, Dr.
Bernadotte adjusted Plaintiff’s medications and added a medication to stop Plaintiff’s
hand tremors.
Id. Dr. Bernadotte rated Plaintiff’s impulsivity level as medium
and noted that Plaintiff had a restricted affect.
Id.
Dr. Bernadotte’s opinion
remained otherwise the same as one from the previous visit.
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Id.
On April 11, 2013, Dr. Bernadotte noted that Plaintiff was doing okay and had
minimal hand tremors and a stable mood. Tr. 232.
with medications. Id.
Plaintiff was sleeping “okay”
Dr. Bernadotte’s opinion from this visit was substantially
similar to the previous one, except that Plaintiff’s affect was normal again.
Id.
Plaintiff’s August 29, 2013 follow-up visit was equally unremarkable, and Dr.
Bernadotte noted that Plaintiff’s mood was stable and he was sleeping well.
Plaintiff’s impulsivity level was decreased to a low level.
Tr. 231.
Id.
On November 21, 2013, Plaintiff reported to Dr. Bernadotte that he was doing
okay and experienced no side effects from his medications, although he was waking
up at two-hour intervals throughout the night.
Tr. 267.
Dr. Bernadotte observed
that Plaintiff’s mood was fairly stable, and he prescribed a new medication, Remeron,
Id.
to add to Plaintiff’s medication regimen.
Except that Plaintiff’s affect was
restricted, Dr. Bernadotte’s findings were otherwise consistent with the doctor’s
previous ones.
Id.
At Plaintiff’s two subsequent appointments with Dr. Bernadotte on February
13, 2014 and June 10, 2014, Plaintiff reported that he was doing well on his
medications, sleeping well and had no reported complaints.
Tr. 265-66.
On both
occasions, Plaintiff’s mood was stable, although he exhibited a restricted affect.
Tr.
265-66.
Dr.
Plaintiff also exhibited slowed speech on June 10, 2014.
Tr. 265.
Bernadotte’s opinions from these visits were otherwise unremarkable and
substantially similar to the previous ones.
Tr. 265-66.
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On July 3, 2014, Dr. Bernadotte completed a questionnaire regarding
Plaintiff’s mental RFC.
Tr. 272-75.
Dr. Bernadotte opined that Plaintiff has
moderate 6 impairments in all aspects of his social interaction, including his abilities
to accept instructions from or respond appropriately to criticism from supervisors or
superiors, work in coordination with or in proximity to others without distracting
them or exhibiting behavioral extremes, respond appropriately to co-workers or
peers, relate to the general public and maintain socially acceptable behavior. Tr.
272-73.
Dr. Bernadotte indicated, however, that his answers would change if only
minimal contact or interaction with others is required because Plaintiff “would do
better with minimal stress.”
Tr. 273.
With respect to sustained concentration and persistence, Dr. Bernadotte
opined that Plaintiff is moderately impaired in his abilities to process subjective
information accurately, use appropriate judgment, carry through instructions,
complete tasks independently, maintain attention and concentration for more than
brief periods of time and perform at production levels expected by most employers.
Tr. 273-74.
Dr. Bernadotte further opined that Plaintiff has markedly 7 impaired
abilities to perform and complete work tasks in a normal work day or week at a
consistent pace and to work in cooperation with or in proximity to others without
being distracted by them.
Tr. 273.
A moderate degree of impairment was defined on the form as “[u]nable to function
in this area from 11% to 25% of the work day or week.” Tr. 272.
6
A marked degree of impairment was defined on the form as “[u]nable to function in
this area from 26% to 50% of the work day or work week.” Tr. 272.
7
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In the area of adaptation, Dr. Bernadotte opined that Plaintiff has no
limitations in being aware of normal hazards, taking necessary precautions or
maintaining personal appearance and hygiene.
Tr. 274.
Dr. Bernadotte opined
that Plaintiff has moderately impaired abilities to respond appropriately to changes
in a work setting and remember locations and workday procedures and instructions.
Id.
He further opined that Plaintiff has marked impairments in his abilities to
behave predictably, reliably and in an emotionally stable manner and tolerate
customary work pressures.
Id. Dr. Bernadotte noted that Plaintiff’s condition is
likely to deteriorate if he is placed under stress, particular that of a job, because of
Plaintiff’s mood disorder.
Tr. 275.
The doctor further opined that although
Plaintiff could manage his own funds, Plaintiff’s impairments have lasted or are
expected to last twelve months or more.
Id.
After the ALJ fully discussed Dr. Bernadotte’s treatment notes in her decision,
the ALJ accorded mixed weight to Dr. Bernadotte’s RFC assessment as follows:
Dr. Bernadotte opined [Plaintiff] possessed moderate limitations in
responding appropriately to co-workers/peers/the public, carrying out
instructions, maintaining attention/concentration, performing at
production levels, and responding appropriately to work-setting
changes. The undersigned assigns substantial weight to these parts of
Dr. Bernadotte’s opinions, since they are consistent with the medical
records from Hendry Glades [] and the opinion of the consultative
examiner. Dr. Bernadotte also concluded [Plaintiff] was markedly
restricted in his ability to perform/complete work tasks in a normal
workday/workweek at a consistent pace, to work in cooperation with or
in proximity of others, and to behave in an emotionally stable manner.
The undersigned accords little weight to these portions of Dr.
Bernadotte’s medical opinions, since they are so restrictive that they are
not supported by the medical evidence as a whole, other medical
opinions, or the nature and extent of [Plaintiff’s] activities and social
functioning described throughout the decision. Of note, a medical record
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reflected [Plaintiff’s] hand tremors were merely minimal (see page 3 of
Exhibit 2F), and therefore do not cause any significant functional or
work-related limitations (Exhibits 2F, 3F, 4F, and 5F). Thus, I find that
hand tremors are not established as a severe impairment.
Tr. 18.
Plaintiff contends that the ALJ erred by rejecting portions of Dr. Bernadotte’s
RFC assessment.
Doc. 17 at 9-14.
The Commissioner responds that the ALJ
properly considered and weighed the opinion.
Doc. 18 at 6-15. The Court finds that
the ALJ properly considered Dr. Bernadotte’s RFC assessment, and substantial
evidence supports this decision.
First, Dr. Bernadotte provided his opinion by completing a form questionnaire.
Tr. 272-75.
Form questionnaires or so-called “checklist” opinions, such as that
completed by Dr. Bernadotte, generally are disfavored. Hammersley v. Astrue, No.
5:08-cv-245-Oc-10GRJ, 2009 WL 3053707, *6 (M.D. Fla. Sept. 18, 2009) (“[C]ourts
have found that check-off forms . . . have limited probative value because they are
conclusory and provide little narrative or insight into the reasons behind the
conclusions.”); Jones v. Comm’r of Soc. Sec., 478 F. App’x 610, 612 (11th Cir.
2012) (holding that the boxes checked by the doctors did not constitute their actual
RFC assessment because checking boxes did not indicate the degree and extent of the
claimant’s limitations).
Furthermore, Dr. Bernadotte assessed Plaintiff’s mental RFC, which is not a
medical opinion, but an issue reserved for the Commissioner.
Tr. 272-75.
RFC
assessments and the application of vocational factors are exclusively reserved to the
Commissioner.
SSR 96-6p, 1996 WL 374180 (July 2, 1996); 20 C.F.R. §
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404.1527(d)(2).
The Eleventh Circuit has held that “[a] claimant’s [RFC] is a matter
reserved for the ALJ’s determination, and while a physician’s opinion on the matter
Beegle v. Soc. Sec. Admin., Comm’r, 482 F.
will be considered, it is not dispositive.”
App’x 483, 486 (11th Cir. 2012).
The regulations provide that the Commissioner
“will not give any special significance to the source of an opinion on issues reserved
to the Commissioner. . . .” 20 C.F.R. § 404.1527(d)(2).
Accordingly, the Court finds
that the ALJ was not required to assign any particular weight to Dr. Bernadotte’s
mental RFC assessment.
Tr. 272-75.
In addition, the Court finds that substantial evidence supports the ALJ’s
reasons for rejecting Dr. Bernadotte’s findings of Plaintiff’s marked mental
impairments.
Tr. 18.
Dr. Bernadotte consistently noted that Plaintiff responded
well to his medications, slept well and had a stable mood.
66.
Tr. 231-32, 234, 236, 265-
Throughout the course of his treatment, Dr. Bernadotte indicated that Plaintiff
was neat, clean and cooperative and had normal motor behavior and articulate
speech.
Tr. 231-36, 242, 266-267.
Furthermore, Plaintiff had organized thought
process and coherent and logical thought content.
Tr. 232-33, 235-36, 242, 266-267.
In addition, Dr. Bernadotte found that Plaintiff’s judgment was age-appropriate, and
his memory and perception were normal.
Tr. 231-34, 236, 242, 266-267.
Plaintiff
consistently demonstrated average intelligence and fair or normal insight and was
alert and oriented to person, place, situation, and time.
Tr. 231-36, 242, 266-267.
Plaintiff’s impulsivity level consistently was rated as low.
Tr. 231, 234-36, 266-267.
Dr. Bernadotte’s unremarkable findings support the ALJ’s decision to accord little
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weight to Dr. Bernadotte’s opinion that Plaintiff has marked mental impairments.
Tr. 18.
Furthermore, the evaluation of Nancy Kelly, Psy.D., who performed a
consultative examination of Plaintiff on January 5, 2012, supports the ALJ’s findings.
Tr. 226-29.
The ALJ discussed Dr. Kelly’s evaluation as follows:
Dr. Kelly consultatively examined [Plaintiff] in January of 2012, and
assessed [Plaintiff] with an impulse control disorder as well as an
anxiety disorder. [Plaintiff] reported he was able to accomplish activities
of daily living independently, care for his dog, to read, watch football,
and to perform chores. [Plaintiff’s] statements evidenced [Plaintiff] was
able to function and to concentrate within the assessed [RFC]. In
addition, [Plaintiff] exhibited a cooperative demeanor, unremarkable
motor behavior, fluent clear speech, adequate expressive/receptive
language skills, coherent/goal-directed thought processes, a full range of
affect, appropriate thought content, clear sensorium, and only mildly
impaired memory functions. Dr. Kelly also observed [Plaintiff] related
well. Dr. Kelly’s objective observations established [Plaintiff] was
basically able to mentally function and to interact. Furthermore, Dr.
Kelly opined [Plaintiff] possessed a [GAF score] of 60, which indicates
moderate symptoms. This GAF score buttresses the undersigned’s
contention that [Plaintiff] has moderate concentration and social
functioning difficulties. Dr. Kelly opined that [Plaintiff] is able to follow
and understand simple directions and perform simple tasks
independently; he is able to maintain attention and a regular schedule;
he is able to learn new tasks; he may have moderate difficulty
performing complex task independently and moderate difficulties
making appropriate decisions; and he may have moderate difficulties
relating adequately with others and moderate difficulties relating
adequately with others; and he may have moderate difficulty dealing
appropriately with stress. The undersigned gives significant weight to
Dr. Kelly’s medical opinions, since it is consistent with Dr. Kelly's
observations and the other evidence (Exhibit lF).
Tr. 17-18.
The ALJ correctly noted that Dr. Kelly’s evaluation is consistent with Dr.
Bernadotte’s findings of moderate impairments.
- 17 -
Tr. 18.
Based on the findings
above, the Court finds that substantial evidence supports the ALJ’s analysis of Dr.
Bernadotte’s RFC assessment.
b. Whether substantial evidence supports the ALJ’s determination of
Plaintiff’s RFC.
Plaintiff argues that the ALJ erred by not sufficiently incorporating Plaintiff’s
moderate mental limitations into the ALJ’s RFC assessment and not properly
assessing the VE’s testimony.
Docs. 17 at 14-17, 21 at 1-4.
The Commissioner
responds that substantial evidence supports the ALJ’s RFC assessment.
Doc. 18 at
15-19. The Court finds that the ALJ properly assessed Plaintiff’s RFC and the VE’s
testimony.
The RFC is the most that a claimant can do despite his limitations.
C.F.R. § 404.1545(a).
See 20
At the hearing level, the ALJ has the responsibility of
assessing a claimant’s RFC.
See 20 C.F.R. § 404.1546(c). The ALJ is required to
assess a claimant’s RFC based on all of the relevant evidence in the record, including
any medical history, daily activities, lay evidence and medical source statements.
20
C.F.R. § 404.1545(a). The claimant’s age, education, work experience, and whether
he can return to his 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)), and
the RFC assessment is based upon all relevant evidence of a claimant’s ability to do
work despite his impairments.
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir.
2004); Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1545(a)).
Here, the Court finds that the ALJ sufficiently accounted for Plaintiff’s mental
impairments.
As noted, the ALJ accorded substantial weight to Dr. Bernadotte’s
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findings of Plaintiff’s moderate limitations in the areas of social interaction, sustained
concentration
and
persistence
and
adaptation,
specifically
in
“responding
appropriately to co-workers/peers/the public, carrying out instructions, maintaining
attention/concentration,
performing
at
appropriately to work-setting changes.”
production
Tr. 18.
levels,
and
responding
The ALJ accounted for these
limitations by including the following limitations in her RFC assessment:
his work is limited to simple, routine, and repetitive tasks in a work
environment free of fast paced production requirements; his work is
limited to work involving only simple work-related decisions and only
occasional workplace changes; he is limited to work with no interaction
with the public; and he is limited to work with only occasionally
interaction with co-workers and supervisors with no tandem tasks with
coworkers and supervisors.
Tr. 16.
First, the limitation to simple, routine and repetitive tasks sufficiently
accounts for Plaintiff’s moderate limitations in the area of sustained concentration
and persistence.
Id.
The Eleventh Circuit has held, “when medical evidence
demonstrates that a claimant can engage in simple, routine tasks or unskilled work
despite limitations in concentration, persistence, and pace, courts have concluded
that limiting the hypothetical to include only unskilled work sufficiently accounts for
such limitations.”
Winschel, 631 F.3d at 1180 (citations omitted). Accordingly, the
Eleventh Circuit routinely has found that “a limitation to simple, routine tasks
adequately addresses a plaintiff’s moderate limitations in concentration, persistence,
or pace where the record shows that the plaintiff could perform such tasks.”
Davis
v. Comm’r of Soc. Sec., 11 F. Supp. 3d 1154, 1167 (M.D. Fla. 2014) (citations omitted);
- 19 -
see Hurst v. Comm’r of Soc. Sec., 522 F. App’x 522, 525 (11th Cir. 2013) (citing
Winschel, 631 F.3d at 1180); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876-77
(11th Cir. 2012); Jarrett v. Comm’r of Soc. Sec., 422 F. App’x 869, 872 n.1 (11th Cir.
2011).
Similarly, the ALJ’s limiting Plaintiff to only simple work-related decisions,
occasional workplace changes, no interaction with the public and occasional
interaction with co-workers and supervisors sufficiently accounts for Plaintiff’s
limitations in social interaction and adaptation.
Tr. 16; Washington v. Soc. Sec.
Admin., Comm’r, 503 F. App’x 881, 883 (11th Cir. 2013) (holding that the ALJ took
account of the claimant’s moderate limitations in social functioning by limiting the
claimant to jobs with only occasional interaction with the general public and
coworkers); Sheldon v. Comm’r of Soc. Sec., No. 8:15-cv-1831-T-JSS, 2016 WL
4120444, at *4-*5 (M.D. Fla. Aug. 3, 2016) (holding that the ALJ sufficiently
accounted for the state agency psychologist’s opinion that the plaintiff has moderate
limitations in adapting to changes in the workplace by restricting the plaintiff’s RFC
to adapting to gradual changes in the work setting); Stone v. Comm’r of Soc. Sec., 544
F. App’x 839, 843 (11th Cir. 2013) (“While the ALJ’s RFC assessment and
hypothetical to the VE did not use the same language as [the physician], they both
accounted for such limitations.”).
The Court also finds that the ALJ properly asked a hypothetical question to
the VE.
Tr.19-20, 53-68.
Step four of the sequential evaluation process requires
the ALJ to determine whether the claimant’s RFC allows him to perform any of his
- 20 -
past relevant work.
20 C.F.R. § 416.920(a)(4)(iv).
The claimant bears the burden
of showing that his past work experience is not past relevant work.
Barnes, 932
F.2d at 1359; 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 relevant work despite his
impairment.
See 20 C.F.R. §§ 404.1520(f), 416.920(f). To support a conclusion that
the claimant is able to return to his 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 his 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).
“[I]n 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.”
Phillips,
357 F.3d at 1240 n.7 (quotation marks omitted).
Here, the ALJ chose to obtain the VE’s testimony and determined that Plaintiff
could perform his past relevant work as an industrial cleaner, or in the alternative,
that there are a significant number of jobs in the national economy Plaintiff could
perform.
Tr. 19-20. In her decision, the ALJ discussed that:
The
[VE]
testified
a
person
with
[Plaintiff’s]
medical/vocational/educational/age profile and current [RFC] would be
able to perform [Plaintiff’s] past work as a cleaner, industrial. Based on
the testimony from the [VE] and, also a comparison between [Plaintiff’s]
past relevant work and the assessed [RFC], the undersigned finds that
[Plaintiff] could perform [h]is past relevant work as [a] cleaner,
industrial within the assessed [RFC] as generally performed in the
national economy.
Tr. 19.
- 21 -
The ALJ described the VE’s testimony in detail as follows:
To determine the extent to which these limitations erode the
occupational base of unskilled work at all exertional levels, the [ALJ]
asked the [VE] whether jobs exist in the national economy for an
individual with [Plaintiff’s] age, education, work experience, and [RFC].
The [VE] testified that given all of these factors the individual would be
able to perform the requirements of representative occupations such as
a mail clerk with DOT# 209 687 026 svp 2, light exertion with 68,345
jobs found in the national economy, a surveillance system monitor with
DOT# 379 367 010 svp 2, sedentary exertion with 16,055 jobs existing
in the national economy, and a floor waxer with DOT# 381687034 svp 2.
medium exertion with 22,059 jobs in the national economy.
Pursuant to SSR 00-4p, the undersigned has determined that the [VE’]s
testimony is consistent with the information contained in the Dictionary
of Occupational Titles (DOT). The [VE] testified that his opinions were
consistent with the information addressed by the DOT and those
portions of his opinion, such as off task time, that are not addressed in
[the] DOT were based on his professional experience and experiences
which included various studies. It is noted that the [RFC] asked of the
vocational expert included limitations for off task time and absenteeism
that are not included in the above ultimately assessed [RFC] because of
the absence of persuasive supporting evidence. I logically and
reasonably infer that the removal of the limitations regarding off task
time and absenteeism from the assessed [RFC] would not further reduce
the occupational base. Thus, I reasonable infer that [Plaintiff] could still
perform his past relevant work as a cleaner, industrial and,
alternatively, [Plaintiff] could adjust and perform the aforementioned
work of a mail clerk, surveillance system monitor, and floor waxed
within the above [RFC].
Tr. 20.
During the hearing, the ALJ asked a hypothetical question to the VE, which
comprised of the RFC limitations included in her decision and two additional
limitations: on average, being off-task 10 percent of the workday in addition to
regularly scheduled breaks and being absent from work once per month.
Tr. 54-55.
At first, the VE answered that a hypothetical person with the above limitations could
- 22 -
perform his past relevant work as an industrial cleaner.
Tr. 55.
The VE also
testified that there are other jobs in the national economy this hypothetical person
could perform, such as a mail clerk, a surveillance system monitor and a floor waxer.
Tr. 55-56.
Subsequently, Plaintiff’s counsel asked the VE whether a hypothetical person
with the RFC limitations determined by the ALJ could perform work if he has to be
off-task 10 percent of the workday and absent from work once per month on a
consistent basis.
Tr. 57-58.
The VE then responded that this person could not
perform work as an industrial cleaner or find other jobs in the national economy
because employers would not tolerate this off-task time and absenteeism.
Tr. 59, 62.
The ALJ clarified the VE’s responses as follows:
ALJ: Okay. But it’s your professional -- notwithstanding what the
literature says, it’s your professional opinion, based on your education,
training, and experience in your field, that my hypothetical person could
not do the stock clerk or the cleaner, industrial.
VE: That is correct.
ALJ: And would it likewise be your professional opinion, based on your
training, experience, and education, that my hypothetical person with
that combination of off-task time on average at [10] percent and . . . one
absence per month on average -- that that would also preclude the work
as a mail clerk, a surveillance system monitor, and a floor waxer?
...
VE: . . . Well, I just don’t think the person would be tolerated, no.
...
ALJ: Okay. What is, specifically, your opinion -- well, let me rephrase
that -- it’s your opinion, sir, that the reason they can’t do the past work
and any other work in our competitive work economy is the combination
- 23 -
of limitations to work that allows them to be off-task, on average, 10
percent of the workday and also work that allows them, on average, to
be absent once per month. Is that correct? So it’s a combination -- that
combination of limitations?
VE: Yes. . . .
Tr. 60, 62-63.
As the hearing transcript reveals, and the ALJ explicitly acknowledged in her
decision, “the [RFC] asked of the [VE] included limitations for off task time and
absenteeism that are not included in the above ultimately assessed [RFC] because of
the absence of persuasive supporting evidence.”
Tr. 20.
Nonetheless, the VE
clarified that the combined limitations of being off task and absent from work are
what precluded a hypothetical person with the RFC limitations assessed by the ALJ
from performing Plaintiff’s past relevant work or other jobs in the national economy.
Tr. 62-63.
Accordingly, the ALJ accurately determined that:
I logically and reasonably infer that the removal of the limitations
regarding off task time and absenteeism from the assessed [RFC] would
not further reduce the occupational base. Thus, I reasonabl[y] infer that
[Plaintiff] could still perform his past relevant work as a cleaner,
industrial and, alternatively, [Plaintiff] could adjust and perform the
aforementioned work of a mail clerk, surveillance system monitor, and
floor waxed within the above [RFC].
Tr. 20.
To rebut the ALJ’s findings, Plaintiff relies on Dr. Bernadotte’s findings of
moderate impairments to which the ALJ accorded substantial weight.
16, 21 at 1-4; Tr. 18.
Docs. 17 at
Plaintiff inaccurately describes, however, Dr. Bernadotte’s
findings of moderate impairments as more work-preclusive than being off task for 10
percent of the workday, arguing than moderate impairments would require Plaintiff
- 24 -
to be off task more than 10 percent of the workday.
Docs. 17 at 16, 21 at 1-4.
In
contrast, the form questionnaire completed by Dr. Bernadotte defined a moderate
impairment as an inability to “function in this area from 11% to 25% of the work day
or week,” and did not specify that an inability to function in one particular area would
require a person to be off task or absent from work.
Tr. 272 (emphasis added).
Neither did Dr. Bernadotte provide any opinion on whether Plaintiff’s mental
impairments would cause him to be off task or absent for a specific period of time.
Tr. 272-75.
Rather, the ALJ properly exercised her discretion not to include limitations for
being off task and absent from work once per month in Plaintiff’s RFC “because of the
absence of persuasive supporting evidence.”
Tr. 16, 20.
As noted, RFC
assessments and the application of vocational factors are exclusively reserved to the
Commissioner.
SSR 96-6p, 1996 WL 374180 (July 2, 1996); 20 C.F.R. §
404.1527(d)(2); Beegle, 482 F. App’x at 486 (“A claimant’s [RFC] is a matter reserved
for the ALJ’s determination.”).
Accordingly, the Court finds that the ALJ properly
assessed Plaintiff’s RFC and the VE’s testimony because the ALJ properly excluded
limitations for being off task and absent from work in assessing Plaintiff’s RFC, and
the VE testified that without these combined limitations, a hypothetical person with
Plaintiff’s RFC could perform his past relevant work or other jobs in the national
economy.
- 25 -
V.
Conclusion
Upon review of the record, the Court concludes that the ALJ applied the proper
legal standards, and her determination that Plaintiff is not disabled is supported by
substantial evidence.
ACCORDINGLY, it is hereby
ORDERED:
1.
The decision of the Commissioner be AFFIRMED.
2.
The Clerk of Court be 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 23rd day of September,
2017.
Copies:
Counsel of record
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