Gersic v. Commissioner of Social Security

Filing 21

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment 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 8/28/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LINDA GERSIC,
Plaintiff,
v.

Case No: 2:16-cv-631-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Linda Gersic appeals the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying her claim for disability
insurance benefits (“DIB”). For the reasons discussed herein, the decision of the
Commissioner is AFFIRMED.
I.

Issues on Appeal

Plaintiff raises two issues on appeal: 1 (1) whether substantial evidence
supports the determination of the Administrative Law Judge (“ALJ”) concerning
Plaintiff’s residual functional capacity (“RFC”) with respect to her (a) need for a handheld assistive device, (b) chronic pain, (c) obesity, (d) mental impairment and (e)

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

allergy impairment; and (2) whether there is sufficient evidence of bias by the ALJ to
warrant remand.
II.

Procedural History and Summary of the ALJ’s Decision

Plaintiff filed an application for DIB 2 on September 5, 2011.

Tr. 133.

Plaintiff’s application alleges disability beginning on June 30, 2008, the same date as
her date last insured, due to ankle injury, knee injury, neck injury, dyslexia, anxiety
and manic depressive disorder. Tr. 133, 180. The Social Security Administration
denied the claim initially on October 20, 2011 and upon reconsideration on November
29, 2011. Tr. 95-99, 105-10. Plaintiff then requested a hearing before an ALJ, and
she received a hearing before ALJ Larry J. Butler on August 7, 2013, during which
she was represented by an attorney. Tr. 31-58, 111-12. Plaintiff testified at the
hearing. See Tr. 33-58.
On November 12, 2014, the ALJ issued a decision finding Plaintiff was not
disabled from June 30, 2008, the alleged onset date, through June 30, 2008, the date
last insured, and denying her claim. Tr. 14-25. The ALJ first discussed in detail
Plaintiff’s motion for recusal, denied the motion and declined to withdraw. Tr. 1417. Next, the ALJ found that Plaintiff met the insured status requirements of the
Social Security Act on June 30, 2008. Tr. 19. At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity from June 30, 2008 through

Plaintiff also filed an application for Supplemental Security Income (“SSI”) on
September 23, 2011 (Tr. 141-46), but she does not appear to have appealed any determination
concerning her SSI application to the Commissioner; thus it is not before this Court. See
generally, record.
2

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June 30, 2008. Id. At step two, the ALJ found Plaintiff had the following severe
impairments: status post right ankle fracture with open reduction internal fixation
surgery, status post cervical spine fusion, left knee osteoarthritis and tear and
allergies. Tr. 19, 22. The ALJ also discussed whether Plaintiff’s depression met the
definition of a severe impairment and determined it did not. Tr. 19-20. At step
three, the ALJ found that through the date last insured, June 30, 2008, Plaintiff “did
not have an impairment or combination of impairments that met or medically equaled
the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” Id.
Taking into account all relevant evidence, the ALJ then determined that
through the date last insured, June 30, 2008, Plaintiff had the RFC to perform light
work, 3 except that she could “lift and/or carry 20 pounds occasionally and 10 pounds
frequently, stand and/or walk 6 hours in an 8-hour workday, and sit 6 hours in an 8hour workday. She could frequently climb ramps or stairs, balance, stoop, kneel,
crouch, and crawl and occasionally climb ladders, ropes, or scaffolds.” Tr. 20, 24.

The regulations define light work as follows:
Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job
is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities.
If someone can do light work, we determine that he or she can
also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long
periods of time.
20 C.F.R. §§ 404.1567(b), 416.967(b).
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The ALJ concluded that through the date of last insured, Plaintiff was capable of
performing her past relevant work as an auditor, real estate agent or salesperson,
none of which required performance of work-related activities precluded by Plaintiff’s
RFC. Tr. 23. Accordingly, the ALJ found Plaintiff was not under a disability from
June 30, 2008, the alleged onset date, through June 30, 2008, the date last insured.
Tr. 24.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which also considered Plaintiff’s allegations of bias. Tr. 1-10. The Appeals
Council denied Plaintiff’s request for review on June 13, 2016. Tr. 1-7. Accordingly,
the ALJ’s November 12, 2014 decision is the final decision of the Commissioner.
Plaintiff filed an appeal in this Court on August 12, 2016. Doc. 1. Both parties have
consented to the jurisdiction of the United States Magistrate Judge, and this matter
is now ripe for review. Docs. 10, 11.
III.

Social Security Act Eligibility and Standard of Review

A claimant is entitled to disability benefits when she is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months.

42 U.S.C. §§ 416(i)(1),

423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability. See 20 C.F.R. § 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

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

Atha v. Comm’r Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion
through step four; and, at step five, the burden shifts to the Commissioner. Id. at
933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court’s review
is limited to determining whether the ALJ applied the correct legal standards and
whether the findings are supported by substantial evidence. McRoberts v. Bowen,
841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390
(1971)).

The Commissioner’s findings of fact are conclusive if supported by

substantial evidence.

42 U.S.C. § 405(g).

Substantial evidence is “more than a

scintilla, i.e., evidence that must do more than create a suspicion of the existence of
the fact to be established, and such relevant evidence as a reasonable person would
accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560
(11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206,
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

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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, 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 substantial evidence supports the determination of the
ALJ concerning Plaintiff’s RFC

Plaintiff’s sole substantive issue on appeal concerns whether the ALJ’s RFC
finding is supported by substantial evidence. See generally Doc. 16. Specifically,
Plaintiff alleges the ALJ erred by failing to account for her limitations arising from
her need for a hand-held assistive device (“HHAD”), chronic pain, obesity, mental

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impairments and severe allergies. Docs. 16 at 15-25, 20 at 3-7. The Commissioner
responds that as of the date Plaintiff was last insured, June 30, 2008, Plaintiff did
not provide time-relevant evidence to support her disability, and substantial evidence
supports the ALJ’s decision. Doc. 17 at 9.
In DIB cases such as the case under review here, a claimant must show she
was disabled before the expiration of her insured status, which here is June 30, 2008,
the same date as Plaintiff alleges her disability began. See 42 § U.S.C. §§ 416, 423;
Tr. 14; Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (“For DIB claims, a
claimant is eligible for benefits where she demonstrates disability on or before the
last date for which she [was] insured.”) (citing 42 U.S.C. § 423(a)(1)(A); Ware v.

Schweiker, 651 F.2d 408, 411 (5th Cir. 1981)); see also, Jenkins v. Comm’r of Soc.
Sec., No. 6:14-cv-377-Orl-41DAB, 2015 WL 413112, at *13 (M.D. Fla. Jan. 30, 2015)
(“To be eligible for DIB, a claimant must show that he became disabled prior to the
expiration of his insured status.”) “In order to be entitled to disability benefits, [a
claimant] must have applied for benefits while disabled or no later than twelve
months after the month in which [her] period of disability ended.”

Wilson v.

Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002). See 20 C.F.R. §§ 404.315(a)(3),
404.320(b)(3), 404.621(d). See also 20 C.F.R. §404.320(a) (“A period of disability is a
continuous period of time during which you are disabled.”)
Although here the alleged onset date and date last insured are the same, the
Court does not take the narrow view the Commissioner appears to urge, that the sole
date to consider is June 30, 2008; and if Plaintiff did not provide any records for that

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date or there was no traumatic event that occurred on that date, she cannot prove
she was disabled. Doc. 17 at 1. Nor did the ALJ do so in this case. As noted,
Plaintiff’s date last insured is June 30, 2008. Tr. 19. She applied for disability on
September 5, 2011. Tr. 133. Accordingly, she would need to show she was disabled

as of her insured status date and continuously through September 5, 2011. See
Wilson, 284 F.3d at 1226.

The ALJ properly considered whether the record

supported that Plaintiff was disabled as of her date last insured, and determined she
was not. Tr. 17-25.
The RFC refers to the most that a claimant can do despite her limitations. See
20 C.F.R. § 404.1545(a). The ALJ is required to assess a claimant’s RFC based on
all of the relevant evidence in the record, including any medical history, medical signs
and laboratory findings, the effects of treatment, daily activities, lay evidence, and
medical source statements. Id. At the hearing level, the ALJ has the responsibility
of assessing a claimant’s RFC. See 20 C.F.R. § 404.1546(c). The determination of
RFC is within the authority of the ALJ, and the claimant’s age, education, and work
experience is considered in determining the claimant’s RFC and whether she can
return to her past relevant work. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (citing 20 C.F.R. § 404.1520(f)). The RFC assessment is based upon all the
relevant evidence of a claimant’s remaining ability to do work despite her
impairments. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004); Lewis, 125
F.3d at 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1545(a)).

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Here, the ALJ discussed Plaintiff’s testimony, reports and medical records, and
determined that during the period at issue, there was “insufficient medical evidence
in the record to establish that [Plaintiff’s] impairments were severe enough to prevent
her from performing substantial gainful activity.”

Tr. 22.

With respect to the

relevant time period, the ALJ stated:
The undersigned notes that there is considerable evidence showing that
[Plaintiff] received treatment for her impairments after the expiration
date of her date last insured, which was June 30, 2008. [Plaintiff] alleged
that her disability began on the same date as her date last insured for
Title II benefits. [Plaintiff] has reported that her medical conditions
have worsened since June 30, 2008. However, [Plaintiff] must establish
that her impairments reached disabling severity prior to the expiration
of her insured status.
...
The bulk of the evidence provided is for treatment subsequent to
[Plaintiff’s] date last insured. [Plaintiff] needed to establish that her
impairments reached disabling status prior to the expiration of her
insured status, which is not the case.

Id.
The ALJ discussed evidence that Plaintiff fractured her right ankle in
February 2008, which required surgery. Tr. 22, 363-64, 392-99. Medical records
within one month after Plaintiff’s surgery showed that she recovered well, except that
she was having some problems with her knee. Tr. 362. In late April 2008, her ankle
was doing very well, and she was walking normally. Tr. 22, 361.
Earlier in April 2008, Plaintiff had had cervical spine surgery because of
bulging discs in her neck.

Tr. 22, 384-88.

The medical record from that date

indicates that Plaintiff had a history of two previous neck injuries, the first of which

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was a diving injury in 1987. Tr. 385. She reported x-rays of her neck were never
taken, but Plaintiff did not recall having much neck pain after this injury. Id. Six
years later in 1993 she was involved in a motor vehicle accident, and Plaintiff recalls
having neck pain associated with that accident and, according to x-rays taken at the
time, Plaintiff was told she had many bone spurs. Id. The record next notes that
Plaintiff had not sought treatment since that time until her neck surgery.

Id.

Plaintiff also recovered well from this surgery and had no complaints about her neck
until March 2010, when she slipped on wet tile and hit her neck on the windowsill.
Tr. 22, 406-09. 4
With respect to Plaintiff’s knee impairments, evidence in August 2008 showed
that Plaintiff had good range of motion in her left knee, no evidence of joint effusion
and no complaints of pain. Tr. 22, 361. The ALJ noted that there is no evidence
during that time period that Plaintiff needed a cane or wheelchair for ambulation
after she healed from her surgeries, and in April 2008 she was reported to be walking
normally.

Tr. 22, 361.

With respect to Plaintiff’s allergies, the ALJ noted that

while the record shows she was treated for her allergies, Plaintiff’s symptoms
appeared to have been well controlled with treatment. Tr. 23, 332-59.
In terms of Plaintiff’s alleged mental impairments, the ALJ determined at step
two that Plaintiff’s depression was not a severe impairment, as there are no records

Notably, this record also reports that postoperatively, Plaintiff stated “she was doing
wonderfully.” Tr. 406. The physician, Wesley Faunce, Ph.D., M.D., stated he last saw her
in August 2008, and “[s]he was in her usual state of health until Wednesday night” when she
slipped and fell on her neck. Id.
4

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of any alleged mental health treatment prior to Plaintiff’s date last insured and no
evidence that prior to June 2008 Plaintiff’s alleged mental impairments produced
more than a minimal effect on her ability to perform basic work activities. Tr. 1920.

The ALJ also found that Plaintiff’s alleged mental impairments caused no

limitation in her activities of daily living, social functioning or concentration,
persistence or pace. Tr. 20. Although she appears only to be challenging the ALJ’s
RFC decision (Doc. 16 at 2, 15), the Court also will address whether substantial
evidence supported the ALJ’s step two decision with respect to Plaintiff’s mental
impairments, as that issue briefly was raised by Plaintiff. Doc. 16 at 21.
1.

Hand-held assistive device.

Plaintiff first argues that the ALJ erred by failing to consider in his RFC
assessment and make an explicit determination whether Plaintiff required a HHAD.
Docs. 16 at 15-17, 20 at 3-5. Following Plaintiff’s ankle surgery on February 24,
2008, Plaintiff visited her surgeon, Donn Owen Fuller, M.D., on March 6, 2008. Tr.
362-64. Dr. Fuller removed the splint and staples and fit Plaintiff with a Bledsoe
boot for support. Tr. 362. In that visit, Dr. Fuller also noted Plaintiff’s continued
problems with her left knee and that Plaintiff had undergone an MRI.

Id. He

recommended Plaintiff return for a follow-up visit in one month, during which time
Dr. Fuller would review Plaintiff’s MRI and order an x-ray of her right ankle upon
return. Id. On March 31, 2008, Plaintiff returned for her follow-up visit. Id. Dr.
Fuller reported that five weeks after surgery Plaintiff was doing “quite well.” Id.
He also discussed the findings from Plaintiff’s MRI of her left knee, taken on February

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2, 2008, which showed that Plaintiff previously had lateral patellar retinacular
release surgery. Id. The physician recommended physical therapy for Plaintiff’s
knee and right ankle. Id. Plaintiff returned to Dr. Fuller on April 28, 2008 for a
recheck of her right ankle fracture. Tr. 361. Dr. Fuller reported that Plaintiff was
“doing very well in regards to the ankle. She has no complaints of pain. She is
normally ambulatory.” Id. He further observed that Plaintiff had cervical spine
surgery ten days earlier and was recovering from it. Id. Finally, he stated that
Plaintiff would like to have her knee surgery for her lateral meniscal tear, perhaps
in July, and he would see her back at that time. Id. Plaintiff returned to see Dr.
Fuller on August 28, 2008, during which her examination revealed good range of
motion, no evidence of knee joint effusion and “really no complaints of pain.” Id.
Dr. Fuller observed Plaintiff did have some “slight crepitation” in her knee joint, but
it was not bothering her at that time. Id. Plaintiff asked if she should proceed with
surgery, even though she was not having pain, and Dr. Fuller suggested she hold off
as long as she was not in any discomfort. Id.
There are no notations in Dr. Fuller’s records of Plaintiff’s use of a cane,
crutches or wheelchair, although Plaintiff testified that Dr. Fuller prescribed her a
cane when she broke her ankle, and she has continued its use since then. Tr. 39. A
third-party function report completed by Plaintiff’s daughter in October 2011 also
noted Plaintiff’s use of a cane. Tr. 198. Otherwise, Plaintiff’s use of a cane was
reported by Lee Mental Health Center in September and October 2012 (Tr. 436, 440,
445) and in a visit to Michele Candelore, D.O., in November 2012 for follow-up for her

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hypertension and depression, during which the physician noted Plaintiff’s gait was
unsteady and her mobility was limited. Tr. 461.
Social Security Ruling (“SSR”) 96-9p states that to determine if an assistive
device is medically required, “there must be medical documentation establishing the
need for a hand-held assistive device to aid in walking or standing, and describing
the circumstances for which it is needed (i.e., whether all the time, periodically, or
only in certain situations; distance and terrain; and any other relevant information).”
SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996).

Other than Plaintiff’s 2013

hearing testimony that she was prescribed a cane after she broke her ankle in 2008
and medical records in 2012 and 2013 that she still was using the cane, there is no
medical documentation establishing a need for a hand-held assistive device as of the
date last insured. Indeed, as noted by the ALJ and summarized in his opinion, a
short time after her ankle surgery Plaintiff’s surgeon reported she was doing well;
and as of April 2008, she reported no complaints of pain and was normally
ambulatory. Tr. 22, 361. Plaintiff’s August 2013 hearing testimony and records
from 2012 and 2013 that she still was using a cane are not time-relevant to whether
she was disabled in June 2008. Substantial evidence supports the ALJ’s failure to
include this limitation in Plaintiff’s RFC.
2. Chronic pain.
Plaintiff argues the ALJ applied incorrect legal standards when he evaluated
Plaintiff’s complaints of pain. Docs. 16 at 17 (citing 20 C.F.R. § 404.1529(c) and SSR
96-7P), 20 at 5-6. Accordingly, Plaintiff asserts the ALJ’s credibility assessment is

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not supported by substantial evidence.
When assessing the credibility of subjective complaints, an ALJ considers: (1)
evidence of an underlying medical condition; and (2) objective medical evidence either
(a) confirming the severity of alleged symptoms, or (b) indicating that the medical
condition could be reasonably expected to cause symptoms as severe as alleged. See
20 C.F.R. §§ 404.1529, 416.929; Wilson, 284 F.3d at 1225-26; Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991). This so-called pain standard “is fully consistent with the
Secretary’s regulations.” Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991).
The Eleventh Circuit has long recognized that “credibility determinations are the
province of the ALJ.” Moore, 405 F.3d at 1212 (citing Wilson v. Heckler, 734 F.2d
513, 517 (11th Cir. 1984)). If the objective medical evidence does not confirm the
severity of the alleged symptoms but indicates that the claimant’s impairments could
reasonably be expected to produce some degree of pain and other symptoms, the ALJ
must evaluate the intensity and persistence of a claimant’s alleged symptoms and
their effect on the claimant’s ability to work. See 20 C.F.R. §§ 404.1529(c)(1); Wilson,
284 F.3d at 1225-26; Foote, 67 F.3d at 1561.

The ALJ compares the claimant’s

statements with the objective medical evidence, the claimant’s daily activities,
treatment and medications received, and other factors concerning limitations and
restrictions the symptoms cause. See 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). “If
the ALJ discredits subjective testimony, he must articulate explicit and adequate
reasons for doing so. Failure to articulate the reasons for discrediting subjective
testimony requires, as a matter of law, that the testimony be accepted as true.”

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Wilson, 284 F.3d at 1225 (internal citations omitted).
With respect to Plaintiff’s subjective complaints, the ALJ stated:
After careful consideration of the evidence, the undersigned finds that
[Plaintiff’s] medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, [Plaintiff’s]
statements concerning the intensity, persistence, and limiting effects of
these symptoms are not entirely credible. The objective medical findings
contained in [Plaintiff’s] medical records simply do not support a finding
of severe symptoms as she alleged. While [Plaintiff’s] impairments are
documented in her medical records, the severity required to necessitate
a finding of disability is not present. [Plaintiff’s] subjective allegations
are contradicted by the objective findings.
Tr. 21-22. As noted, the ALJ discussed that while there is “considerable evidence”
showing Plaintiff received treatment for her impairments after her insured status
expired, there was insufficient medical evidence that her impairments were of a
severity to preclude her from performing substantial gainful activity prior to that
time. Tr. 22.
Based on the Court’s review of the record and the reasoning of the ALJ, the
undersigned finds the ALJ considered the relevant evidence and Plaintiff’s testimony
regarding the effects of her alleged symptoms on her activities and provided adequate
reasons for discrediting her testimony.

Tr. 21-23.

The ALJ acknowledged

Plaintiff’s testimony that her medical conditions had worsened since June 30, 2008.
Tr. 22.

He noted, however, that Plaintiff must “establish that her impairments

reached disabling severity prior to the expiration of her insured status.” Id. The
ALJ continued, “[d]uring the period at issue, there is insufficient medical evidence in
the record to establish that [Plaintiff’s] impairments were severe enough to prevent
her from performing substantial gainful activity.” Id. The ALJ discussed that his

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opinion is consistent with that of the agency consultant, Reuben Brigety, M.D, who
opined that Plaintiff could perform light exertional level work with some limitations,
and accorded it great weight. Id. Plaintiff did not challenge this determination.
“A clearly articulated credibility finding with supporting evidence in the record will
not be disturbed by a reviewing court.” Foote, 67 F.3d at 1562. Here, the Court
finds that the ALJ clearly articulated the reasons for his credibility findings.
3. Obesity
Plaintiff next argues the ALJ erred by failing to consider Plaintiff’s medically
determinable impairment of obesity.

Docs. 16 at 20-21, 20 at 6.

As an initial

matter, the Court notes that Plaintiff herself did not allege her obesity as an
impairment or provide evidence that her weight was a medically determinable
impairment.

Tr. 180.

Nor is there a diagnosis in the record of obesity 5 or

treatment notes that indicate Plaintiff’s weight caused work-related functional
limitations or significantly limited her daily activities. Most of the records cited by
Plaintiff and other medical records she did not cite indicate Plaintiff’s weight or, in
limited cases, also her BMI, but include no recommendation or treatment advice
concerning her weight. 6 See, e.g., Tr. 365, 394, 396, 411, 417-20. In one record
dated September 23, 2010 in which Plaintiff visited Dr. Candelore complaining of

Indeed, the Court did not locate anywhere in the entire record in which the word
“obesity” even was used. There are records from July and October 2013 in which Plaintiff
was diagnosed as “overweight” or counselled to lose weight, but these records are not time
relevant here. Tr. 490, 495; see generally, record.
5

The Court also notes some of the records cited by Plaintiff did not contain any weight
information. See, e.g., Tr. 369, 397, 399 (cited in Doc. 16 at 20).
6

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insomnia, Dr. Candelore noted that Plaintiff’s treatment for insomnia and anxiety
hopefully would “give her more energy to get more exercise. . . .” Tr. 413. First,
that is not close to a diagnosis or even a recommendation; second, it is not timerelevant to Plaintiff’s period of disability. In addition, the Court located records from
Lee Mental Health from September 2012 and later in which Plaintiff was
recommended to eat a balanced diet low in fats and referred to her primary care
physician for weight management and nutritional concerns (Tr. 435, 444, 449, 487),
but, again, these records are not time-relevant.
Contrary to Plaintiff’s assertion that the ALJ has the burden to determine
whether Plaintiff’s obesity affects her ability to perform basic work activities, this
instead is Plaintiff’s burden. Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir.
2005) (“[A] diagnosis or a mere showing of a ‘deviation from purely medical standards
of bodily perfection or normality’ is insufficient; instead, the claimant must show the
effect of the impairment on her ability to work.”). SSR 02-1p describes how obesity
is considered during the evaluation process. Adjudicators are reminded that the
combined effects of obesity with other impairments can be greater than the effects of
each medical impairment considered separately. SSR 02-1p, 2002 WL 34686281, at
*1. Specifically, the ruling notes that obesity can cause functional limitations. Id.
at *3.
The functions likely to be limited depend on many factors, including
where the excess weight is carried. An individual may have limitations
in any of the exertional functions such as sitting, standing, walking,
lifting, carrying, pushing, and pulling. It may also affect ability to do
postural functions, such as climbing, balance, stooping, and crouching.
The ability to manipulate may be affected by the presence of adipose

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(fatty) tissue in the hands and fingers. The ability to tolerate extreme
heat, humidity, or hazards may also be affected.
....
RFC assessments must consider an individual's maximum remaining
ability to do sustained work activities in an ordinary work setting on a
regular and continuing basis. A “regular and continuing basis” means 8
hours a day, for 5 days a week, or an equivalent work schedule.

Id. at 6.

The ruling provides that each case will be evaluated “based on the

information in the case record.” Id.
Here, Plaintiff did not meet her burden.

First, the ALJ did not need to

consider Plaintiff’s obesity because Plaintiff did not identify obesity as an impairment
on her paperwork or during the hearing. Tr. 31-58, 180; see East v. Barnhart, 197
F. App’x 899, 902 (11th Cir. 2012) (“Although the ALJ must consider all the
impairments the claimant alleges in determining whether the claimant is disabled,
the ALJ need not scour the medical record searching for other impairments that
might be disabling, either individually or in combination, that have not been
identified by the claimant.”).

During the hearing, Plaintiff did not establish or

discuss at all how obesity impaired her functioning.

See Tr. 31-58. The record

simply does not support Plaintiff’s contention that her weight was a medically
determinable impairment, and the ALJ did not err in failing to include it in her RFC.
4. Mental impairments
Plaintiff next claims the ALJ erred by failing to find Plaintiff’s psychological
impairments to be severe and also by failing to incorporate any mental limitations in
his RFC finding. Docs. 16 at 21-24, 20 at 6-7. First, the Court will address the
severity argument.

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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). If
the ALJ determines a claimant has a severe impairment, as here, the analysis moves
to step three. See 20 C.F.R. § 404.1520(a)(4). This circuit holds that the ALJ’s
finding “of any severe impairment, whether or not it qualifies as a disability and
whether or not it results from a single severe impairment or a combination of
impairments that together qualify as severe, is enough to satisfy the requirement of
step two.” Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). This is because
after proceeding beyond step two of the process, the ALJ must consider all of the
claimant’s impairments taken as a whole when determining whether her
impairments qualify as a disability (step three) and whether she can return to her
past work (step four) or, if not, whether she can perform other work available in the
national economy (step five). Id., see 20 C.F.R. § 404.1520(a)(4). Plaintiff bears the
burden of establishing that her impairments are severe and prevent the performance
of her past relevant work. Bowen v. Yuckert, 482 U.S. 146 at 146 n.5 (1987). 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). “An impairment is not severe only if the abnormality is so
slight and its effect so minimal that it would clearly not be expected to interfere with
the individual’s ability to work, irrespective of age, education, or work experience.”

McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).

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Here, as noted above, the ALJ determined at step two that Plaintiff suffered
from at least one severe impairment. Tr. 19. Specifically, he found Plaintiff had
severe impairments of status post right ankle fracture with open reduction internal
fixation surgery, status post cervical spine fusion, left knee osteoarthritis and tear
and allergies.

Id.

In his step two discussion, the ALJ specifically addressed

Plaintiff’s records concerning her mental impairment of depression, including those
of Dr. Candelore. Tr. 19-20.
As with Plaintiff’s alleged impairment of obesity, the record is devoid of any
treatment records for Plaintiff’s alleged mental impairments during the relevant time
period. The ALJ addressed the November 20, 2012 letter from Plaintiff’s primary
care physician, Dr. Candelore, opining that Plaintiff had suffered from severe
depression the entire eight years she had treated Plaintiff (Tr. 429), and went on to
perform a psychiatric review technique, stating:
[Plaintiff] reported depression as a diagnosis and Michele Candelore,
D.O., provided a letter stating that [Plaintiff] has had severe depression
since 2008, but there are no records regarding any alleged mental health
treatment prior to her date last insured, which is June 30, 2008 (Ex. 6F).
Dr. Candelore’s assessment is given little weight because there are no
treatment progress notes to document [Plaintiff’s] symptoms or
responsiveness to treatment. Dr. Candelore did not provide any specific
mental functional limitations or a precise date to establish when
[Plaintiff] was diagnosed with depression (Ex. 6F). Dr. Candelore
mentioned that [Plaintiff] has been Baker Acted, but the evidence of
record only shows a recent hospitalization that occurred well after June
2008 (Ex. 7F, 11F).
Tr. 19-20. The ALJ also considered the four broad functional areas set out in the
disability regulations for evaluating mental disorders and found
[t]here is no evidence that prior to June 2008, [Plaintiff’s] alleged mental
impairments produced more than a minimal effect on her ability to
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perform basic work activities. [Plaintiff’s] alleged mental impairments
caused no limitation in her activities of daily living, no limitation in her
social functioning, and no limitation with her concentration, persistence,
or pace because there is no evidence available to show that [Plaintiff’s]
mental functioning was limited in any way.
Tr. 20. Thus, the ALJ determined Plaintiff’s mental impairments are nonsevere.

Id.
The undersigned has reviewed the record and concludes that substantial
evidence supports the ALJ’s decision not to include Plaintiff’s mental impairments as
severe impairments. The ALJ’s decision also is consistent with the state agency
examiners, who likewise found Plaintiff’s anxiety disorders to be nonsevere and
insufficient evidence that such disorders affected any of the four broad functional
areas.

Tr. 69-70, 79-80.

Furthermore, there was no error in the ALJ doing so

because the ALJ found other severe impairments and proceeded with the sequential
evaluation process. See Burgin v. Comm’r of Soc. Sec., 429 F. App’x 901, 902 (11th
Cir. 2011).
Likewise, substantial evidence supports the ALJ’s RFC assessment as to
Plaintiff’s mental impairments. As noted, the record contained no mental health
treatment records prior to Plaintiff’s date last insured. A review of the relevant
records do indicate that Plaintiff reported to her physicians treating her for her
physical impairments a history of hypertension and depression. For example, in
February 2008, Dr. Fuller noted Plaintiff’s history of “essential hypertension and
depression” and that she was taking Effexor, a medication used to treat depression.

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Tr. 365, Doc. 16 at 3 n.2. She still was taking this medication 7 on April 17, 2008,
when she went in for her cervical spine surgery. Tr. 384-85, 387-88. As noted by
the Commissioner, Plaintiff’s next record of any treatment for her mental health was
on October 5, 2009, over a year after her date last insured, when Plaintiff’s primary
care physician, Dr. Candelore, added Lexapro to Plaintiff’s regime for her depression.
Doc. 17 at 15; Tr. 419. Plaintiff’s summary of her medical history is consistent with
this fact.

See Doc. 16 at 3-4.

Other records discussing Plaintiff’s mental

impairments are well past Plaintiff’s date last insured. See id. at 4-6 (summarizing
records).

Notably, none of the time-relevant records contain even a diagnosis of

depression; they simply note the history. None is from a mental health professional.
The RFC assessment is based on relevant evidence of an individual’s
remaining ability to do work despite her impairments. Phillips, 357 F.3d at 1238.
Because there is little to no relevant evidence that Plaintiff’s mental impairments
affect her ability to work, the ALJ did not commit error by failing to include them in
his RFC assessment. Moreover, the ALJ considered, but gave little weight, to the
opinion of Dr. Candelore finding it was not consistent with the medical evidence of
record. Tr. 20.
When determining how much weight to afford an opinion, the ALJ considers
whether there is an examining or treatment relationship and the nature and extent
Plaintiff correctly indicates that this record also notes she was taking Amitriptyline,
and seems to suggest it was for depression, citing it as one of its treatment uses. Doc. 16 at
3 n.1. The record itself, however, states she was taking this medication for her insomnia,
and that she was taking the Effexor for perimenopausal symptoms. Tr. 385. Moreover, the
record further indicates Plaintiff’s past medical history was “significant for hypertension and
insomnia,” but makes no mention of a history of depression. See id.
7

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thereof; whether the source offers relevant medical evidence to support the opinion;
consistency with the record as a whole; the specialization of the source, if any; and
any other factors that tend to support or contradict the opinion.

20 C.F.R. §

404.1527(c)(1)-(6). Under the regulations, opinions of treating sources usually are
given more weight because treating physicians are the most likely to be able to offer
detailed opinions of the claimant’s impairments as they progressed over time and
“may bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations . . . .”
20 C.F.R. § 404.1527(c)(2). Medical source opinions may be discounted, however,
when the opinion is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if the opinion is inconsistent with the record as a
whole. SSR 96-2p; Crawford v. Comm’r, 363 F.3d 1155, 1159-60 (11th Cir. 2004).
Accordingly, “[a]n ALJ must give a treating physician’s opinion substantial weight,
unless good cause is shown.” Castle v. Colvin, 557 F. App’x 849, 854 (11th Cir. 2014)
(citing Phillips, 357 F.3d at 1240); Lewis, 125 F.3d at 1440; Sabo v. Chater, 955 F.
Supp. 1456, 1462 (M.D. Fla. 1996).

“Good cause exists when the ‘(1) treating

physician’s opinion was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.’”

Winschel, 631 F.3d at 1179 (quoting

Phillips, 357 F.3d at 1241).
Here, as acknowledged by Plaintiff, there is limited evidence in the record of
psychological treatment before Plaintiff’s date last insured, June 30, 2008. Doc. 16

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at 22-23.

Plaintiff asserts that Dr. Candelore’s 2012 opinion “contemplates her

relationship with Plaintiff for the prior eight years, thus encompassing the relevant
period at issue during 2008.” Id. at 23. This might be so if there were supporting
records of Dr. Candelore during that time period, which, as noted, there is not.
Moreover, as the ALJ noted, neither Dr. Candelore nor Plaintiff advanced any specific
mental functional limitations because of her depression or how they affected her basic
work activities. Tr. 19-20. The Court finds that the ALJ provided good cause for
discounting the opinion of Dr. Candelore, and thus substantial evidence supports his
decision to exclude any such mental limitations in his RFC assessment.

See

Winschel, 631 F.3d at 1179.
As noted, the limited relevant records that indicate Plaintiff’s self-reported
history of depression or a diagnosis of depression are insufficient to show this
condition affected Plaintiff’s work activities. Moore, 405 F.3d at 1213 n.6. Plaintiff
also asserts the ALJ erred by failing to identify Plaintiff’s mental limitations as
“medically determinable.” Docs. 16 at 23, 20 at 6-7. The ALJ did not make such a
finding, as noted by the Commissioner. Doc. 17 at 16 n.6. Instead, he found they
were not severe, which the Court already has found was not in error.
5. Allergies
Finally, Plaintiff argues that although he found Plaintiff’s allergies to be severe
at step two, he erred by failing to include any corresponding limitations for them in
his RFC assessment. Docs. 16 at 24-25, 20 at 7. The Commissioner responds that
substantial evidence supports the ALJ’s finding that Plaintiff’s allergy symptoms

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were well controlled with treatment and any error at step two is harmless. Doc. 17
at 19-20. The Court agrees.
The ALJ discussed Plaintiff’s allergies in his RFC assessment.

Tr. 23.

Plaintiff’s records of allergy treatment from 2005 and 2006 – the only such records of
allergy treatment in the record – indicate that Plaintiff experienced food and
medication allergies. Tr. 335-59. In addition to noting that Plaintiff’s symptoms
appeared to be well controlled with treatment, the ALJ held that her medical records
“simply do not support a finding that she had significant functional limitations that
rendered her unable to perform basic work activities prior to June 30, 2008.” Tr. 23.
Clearly, the ALJ considered Plaintiff’s allergies in assessing her RFC. Id. Plaintiff
has not presented any evidence that they affected her basic work activities; thus the
ALJ’s RFC determination is supported by substantial evidence.

B.

Whether there is sufficient evidence of bias by the ALJ to warrant
remand

The Social Security Act requires that a claimant’s hearing is both full and fair.

Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam). The ALJ, of
course, plays a “crucial role in the disability review process” and has a duty to
“develop a full and fair record” and to “carefully weigh the evidence, giving
individualized consideration to each claim.” Id. at 1401. Accordingly, 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.” Id. at 1400 (quoting 20
C.F.R. § 404.040). A claimant who fears that a particular ALJ will not provide a fair
hearing must notify the ALJ at the “earliest opportunity.” 20 C.F.R. § 404.940. If

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the ALJ declines to withdraw, the claimant may seek reconsideration by raising the
issue before the Appeals Council. Id. In this case, Plaintiff did both these things,
and her request was denied both by the ALJ and the Appeals Council. Tr. 2, 14-17.
A court begins with the presumption that the administrative law judge is
unbiased, which “can be rebutted by a showing of conflict of interest or some other

specific reason for disqualification.” Schweiker v. McClure, 456 U.S. 188, 195-96
(1982) (emphasis added); see also Jarrett v. Comm’r of Soc. Sec., 422 F. App’x 869,
875 (11th Cir. 2011) (affirming determination of no bias in part because the claimant
failed to establish specific instances of bias in her case). Generalized assumptions of
possible conflict or interest are insufficient. Schweiker, 456 U.S. at 196.
The Court has reviewed the decision of the ALJ in this case, who addressed
this issue in considerable detail (Tr. 14-17), the determination of the Appeals Council
(Tr. 2) and Plaintiff’s and the Commissioner’s arguments and the cases cited therein,
and finds no evidence of bias in this case or that the separate pending litigation that
indirectly involved Plaintiff’s counsel influenced ALJ Butler’s decision in this case. 8

See 20 C.F.R. §§ 404.940, 416.1440; Docs. 16 at 14, 17 at 6-9, 20 at 1-3. Indeed,

The cases cited by Plaintiff are inapposite, as in those cases the Court reversed ALJ
Butler’s decisions because substantial evidence did not support his decisions, not because of
his actual bias against the plaintiffs. Docs. 16 at 9-10 (citing, among other cases, 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); 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)), 20 at 1-3. Only after finding remand appropriate on other grounds, the
undersigned directed the Commissioner to re-assign these cases for rehearing before a
different ALJ in order to avoid any appearance or risk of actual bias or prejudgment. Hill,
2016 WL 1253579, at *10; McCann v. Comm’r of Soc. Sec., No. 2:14-cv-265-FtM-CM, 2016
WL 1253576, at *11 (M.D. Fla. Mar. 31, 2016); Segui v. Comm’r of Soc. Sec., No. 2:15-cv-399FtM-CM, 2016 WL 5443673, at *8 (M.D. Fla. Sept. 29, 2016).
8

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Plaintiff has not cited to the record where such bias or prejudice against this Plaintiff
is evident, and the Court already has found that the ALJ applied the proper legal
standards and his decision is supported by substantial evidence. Accordingly, the
Court does not find any error in the ALJ failing to withdraw from hearing this case.
V.

Conclusion

The undersigned concludes that the ALJ applied the proper legal standards,
and his determination that Plaintiff was not disabled from June 30, 2008, the alleged
onset date, through June 30, 2008, the date last insured, is supported by substantial
evidence.
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 28th day of August, 2017.

Copies:
Counsel of record

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