Dixon v. Commissioner of Social Security

Filing 24

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 12/1/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PRISCILLA LYNN DIXON
Plaintiff,
v.

Case No: 2:16-cv-679-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Priscilla Lynn Dixon seeks judicial review of the denial of her claim
for a period of disability and disability insurance benefits (“DIB”) by the
Commissioner of the Social Security Administration (“Commissioner”). The Court
has reviewed the record, the briefs and the applicable law. For the reasons discussed
herein, the decision of the Commissioner is AFFIRMED. 1
I.

Issues on Appeal 2

Plaintiff raises three issues on appeal: (1) whether the residual functional
capacity (“RFC”) findings of the Administrative Law Judge (“ALJ”) adequately
account for Plaintiff’s moderate limitations in concentration, persistence and pace;

Both parties have consented to the jurisdiction of the United States Magistrate
Judge. Docs. 21, 23.
1

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.”).
2

(2) whether the ALJ properly relied upon the testimony of the Vocational Expert
(“VE”) at step five; and (3) whether substantial evidence supports the ALJ’s
assessment of Plaintiff’s credibility.
II.

Summary of the ALJ’s Decision

Plaintiff was 53 years old at the time of the hearing before ALJ Hortensia
Haaversen on January 21, 2015.

Tr. 13, 18.

Plaintiff alleged disability due to

arthritis and chronic pain in her back, anxiety and depression. Tr. 18, 199. On
April 16, 2015, the ALJ issued a decision finding Plaintiff not disabled from
November 23, 2010, the alleged disability onset date, through December 31, 2011, the
date last insured. Tr. 13-23. In her decision, at step two of the sequential process, 3
the ALJ found that Plaintiff had the severe impairments of “lumbosacral myofascial
pain syndrome status post a history of two lumbar spinal surgeries on June 23, 2003
for an L4-5 disc herniation and November 23, 2010 for recurrent herniation with
hemilaminectomy, medial facetectomy, foraminotomy, and removal of the extruded
disc; depression; and anxiety.”

Tr. 15-16.

At step three, the ALJ found that

Plaintiff did not have an impairment or combination of impairments that met or
medically equaled a listing. Tr. 16-17. In doing so, she found that Plaintiff had
mild restrictions in activities of daily living and social functioning and a moderate
limitation in concentration, persistence or pace. Tr. 16-17. Prior to step four, the
ALJ then determined that during the relevant period Plaintiff had the RFC to

3

The sequential evaluation process is described in the ALJ’s decision. Tr. 14-15.

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perform light work 4 with additional physical restrictions. Tr. 17. To account for
Plaintiff’s mental limitations, the ALJ limited Plaintiff to jobs that required her to
perform simple, routine tasks.

Tr. 17.

Next, at step four the ALJ found that

Plaintiff could not perform her past relevant work as a meat wrapper, because the
job is generally performed at the medium exertional level. Tr. 21-22. At step five,
however, based on Plaintiff’s age (49 on the alleged disability onset date and 50 as of
the date last insured), education, work experience and RFC, and based on the
testimony of the VE, the ALJ found there were unskilled jobs at the light exertional
level existing in significant numbers in the national economy that Plaintiff could
perform. Tr. 22-23. As a result, she found Plaintiff was not disabled. Tr. 23.
III.

Standard of Review

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)).

4

The Commissioner’s

The regulations define light work as work that involves:

lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, [a claimant] must have the ability to do
substantially all of these activities. If someone can do light work, [it is
determined] that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or inability to sit for
long periods of time.
20 C.F.R. §§ 404.1567(b), 416.967(b).

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findings of fact are conclusive if supported by substantial evidence.

42 U.S.C. §

405(g). 5 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).
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) (citation
omitted).

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 or found 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); 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).

The Court

reviews the Commissioner’s conclusions of law under a de novo standard of review.

After the ALJ issued the decision, certain Social Security rulings and regulations
were 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. Hargress
v. Soc. Sec. Admin., Comm’r, 874 F.3d 1284, 1290 (11th Cir. 2017) (declining to apply SSR
16-3p retroactively to the ALJ’s decision); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
208 (1988); 20 C.F.R. § 404.1527 (effective March 27, 2017) (“For claims filed . . . before March
27, 2017, the rules in this section apply.”).
5

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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. Plaintiff’s RFC
In finding Plaintiff could perform light work, the ALJ restricted Plaintiff to
jobs requiring no more than simple, routine tasks based on nonexertional limitations.
Tr. 17, 21.

Plaintiff first argues this restriction did not adequately account for the

ALJ’s finding that Plaintiff had moderate limitations in sustaining concentration,
persistence and pace and moderate limitations in social functioning. 6 Doc. 19 at 7
(citing Tr. 17, 21). Moreover, she argues the ALJ failed to sufficiently explain how
this restriction accommodated these limitations, and instead the ALJ should have
performed a “function by function assessment of limitations stemming from Plaintiff’s
mental impairments” and included them in the hypothetical to the VE.

Id. at 7-8

(citing to Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)).

The

Commissioner responds that the ALJ’s RFC finding and hypothetical adequately
account for Plaintiff’s moderate difficulties with concentration, persistence and pace.
Doc. 20 at 5 (citing Tr. 17, 49-50).

The Court finds the ALJ properly considered

Plaintiff’s mental limitations and included them in her hypothetical to the VE; and
thus substantial evidence supports the RFC.

Plaintiff erroneously states the ALJ found moderate restrictions in social
functioning. Doc. 19 at 7. Instead, the ALJ found only a mild restriction in this area. Tr.
16.
6

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After the ALJ found Plaintiff’s anxiety and depression, among other physical
impairments, to be severe, she discussed whether Plaintiff’s impairments or
combination of impairments met or equaled a listing.

Tr. 15-16.

In doing so, the

ALJ considered four broad functional areas for evaluating mental disorders known
as the “paragraph B” criteria. 7 Tr. 16-17. The ALJ determined Plaintiff had mild
restrictions in activities of daily living and social functioning and moderate
difficulties in concentration, persistence and pace.

Tr. 16-17. The ALJ discussed

her reasoning for these findings:
In activities of daily living, [Plaintiff] had mild restriction. The medical
records show that during the period at issue, [Plaintiff] was able to
perform activities of daily living with minimal limitation. Even after the
period at issue, [Plaintiff] was able to care for her ill mother, perform
household chores, and take care of pets and horses. Furthermore, any
limitation in this domain would appear to be from her physical
impairments, and not due to any mental impairment
In social functioning, [Plaintiff] had mild difficulties. [Plaintiff] reported
that after her daughter’s passing, she isolated herself and stopped
socializing. In her function report, she states that she has no social
activity whatsoever. (Exhibit 5E/5) However, the undersigned notes that
[Plaintiff] reported that a neighbor helps her with chores on a weekly
basis. [Plaintiff] is close to her mother, and has reported spending
extensive time caring for her mother during illnesses. [Plaintiff] is able
to go to public places without difficulty, and has no history of violence.
She admits to her treating physicians that her panic attacks are wellcontrolled with medication. At most, any limitation in this domain is
only mild.
With regard to concentration, persistence or pace, [Plaintiff] had
moderate difficulties. In her function report, [Plaintiff] states that she
is only able to pay attention for about ten minutes. However, she admits
that she is able to follow instructions well. As will be discussed in full
later in this decision, [Plaintiff] has admitted being able to drive long
distances and care for her ill mother without any particular assistance.
7

20 C.F.R., Part 404, Subpart P. Appendix 1.

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The medical records reflect no significant limitation in this domain. The
undersigned finds that [Plaintiff] has, at the very most, a moderate
limitation in this domain.

Id.
In her later analysis of Plaintiff’s RFC, the ALJ discussed the relevant records
during the approximate one-year time period at issue, 8 noting that most of the
medical records submitted were not from that time frame but nonetheless considering
those records to “understand the extent of [Plaintiff’s] symptoms and limitations
during the period at issue.”

Tr. 18.

She first discussed Plaintiff’s earliest medical

record in November 2006 from Rodolfo Saludo, M.D., Plaintiff’s primary care
physician, in which Plaintiff reported anxiety, occasional panic attacks and difficulty
sleeping.

Tr. 19, 392.

Plaintiff was diagnosed with anxiety and depression and

prescribed Lexapro and Alprazolam.

Tr. 393.

Plaintiff testified at her hearing that

her daughter had passed away in 2005, and she had been taking medications since
that time. Tr. 41. The ALJ summarized a subsequent visit in November 2008, in
which Plaintiff reported that she had more difficulty around the holidays because she
missed her daughter.

Tr. 19, 386.

She was still on the same medications at that

time, but she reported they were working fine.

Tr. 387.

As noted by the ALJ, by 2010 to 2011 Plaintiff’s examinations with Dr. Saludo,
for the most part, showed normal mental status.

Tr. 19, 381. In a record from June

2011, Plaintiff’s judgment and insight were noted as intact, and she was oriented as

As noted, the time period is from November 23, 2010, the onset of disability, through
the date Plaintiff was last insured, December 31, 2011. Tr. 13, 18.
8

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to person, place and time and was stable. Tr. 365.
dementia.

Her memory showed no sign of

Id. As to Plaintiff’s mood and affect, however, Dr. Saludo noted that

Plaintiff was experiencing anxiety and depression, especially during the anniversary
of her daughter’s death, or the sudden death of friends or family.

Id.

But two

months later, in a visit in August 2011, Plaintiff’s psychiatric examination was within
normal limits as to her judgment and insight; her orientation to time, person and
place; her memory; and her mood and affect.

Tr. 362.

The ALJ discussed in her

opinion that although the medical records indicate “little mental status abnormalities
with appropriate medication,” she gave Plaintiff “the benefit of the doubt” and limited
her RFC to simple, routine tasks.

Tr. 21.

First, as noted by the Commissioner and discussed by the ALJ, the paragraph
B ratings are not an RFC assessment.

Doc. 20 at 5; Tr. 17.

Instead, they are used

to rate the severity of Plaintiff’s mental impairments at steps two and three of the
evaluation process.

See 20 C.F.R. §§ 404.1520(a)(4)(ii), (a)(4)(iii), 404.1520a(d)(1),

(2); SSR 96-8p, 1996 WL 374184 (July 2, 1996).

The ALJ acknowledged the mental

RFC assessment in steps four and five require a more detailed assessment, made that
assessment in her decision and concluded the RFC “reflects the degree of limitation .
. . found in the ‘paragraph B’ mental function analysis.”

Tr. 17-23.

Contrary to

Plaintiff’s argument, the Court’s review of the record reveals that the ALJ sufficiently
considered and assessed Plaintiff’s functional limitations caused by her mental
impairments.

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Second, the Court finds the ALJ’s limiting Plaintiff to simple, routine tasks
sufficiently accounted for Plaintiff’s moderate limitations in concentration,
persistence and pace given the evidence in the record.

Tr. 51.

After the ALJ

presented an initial hypothetical to the VE, the VE identified three jobs Plaintiff
would be capable of performing that were light, unskilled jobs:
attendant, cafeteria helper and cashier.

Tr. 50.

counter/food

The ALJ then added to the

hypothetical the assumption that the individual would be limited to simple, routine
tasks, and asked if such a person still would be capable of performing the jobs
indicated by the VE.

Tr. 50-51.

The VE responded in the affirmative.

Tr. 51.

Furthermore, the medical evidence summarized above and considered by the ALJ
shows that Plaintiff can engage in such simple, routine tasks or unskilled work
despite her moderate limitations in concentration, persistence or pace.

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); see Hurst v. Comm’r of Soc. Sec., 522
F. App’x 522, 525 (11th Cir. 2013); 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).

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b. VE testimony
The Court further finds the VE’s testimony constitutes substantial evidence to
support the RFC, as it sufficiently accounted for Plaintiff’s moderate difficulties in
maintaining concentration, persistence and pace.

“In order for a [VE’s] testimony to

constitute substantial evidence, the ALJ must pose a hypothetical question which
comprises all of the claimant's impairments.” Wilson v. Barnhart, 284 F.3d 1219,
1227 (11th Cir. 2002) (citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir.1999)). As
noted, during the hearing, the VE identified three jobs at the light, unskilled work
level that a hypothetical person with Plaintiff’s RFC and additional functional
limitations can perform.

Tr. 50-51.

Two of the jobs identified by the VE – the

cashier and the cafeteria worker – have a specific vocational preparation (“SVP”) level
of 2, and the other job an SVP of 3, which corresponds to unskilled work.

See

Dictionary of Occupational Titles §§ 211.462-010, 311.677-010 (4th ed. 1991); SSR 004p, 2000 WL 1898704 at *3 (Dec. 4, 2000).
judgment to do simple duties.”

Unskilled work requires “little or no

20 C.F.R. § 416.968(a).

Thus, these positions do not

exceed Plaintiff’s mental limitations in the RFC to perform simple, routine, repetitive
work.

Tr. 22.
Accordingly, the ALJ discussed in her decision:
[Plaintiff’s] ability to perform all or substantially all of the requirements
of [light] work was impeded by additional limitations. To determine the
extent to which these limitations erode the unskilled light occupational
base, through the date last insured, the [ALJ] asked the [VE] whether
jobs existed 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 have been able to perform
the requirements of representative occupations such as: counter

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attendant (DOT #311.677.014) with 15,000 jobs in Florida and 235,000
jobs nationwide; cafeteria helper (DOT #311.677-010), with 7,500 jobs in
Florida and 112,000 jobs nationwide; and cashier (DOT #211.462-010),
with 81,000 jobs in Florida an 1,300,000 jobs. All of the jobs cited are the
light exertional level, and are unskilled. The undersigned notes that
even if the additional limitation of [Plaintiff] being able to sit for no more
than one hour at a time, [Plaintiff] would still be able to perform the jobs
cited above.
Tr. 22-23.
Plaintiff argues that the VE’s testimony is not supported by substantial
evidence because the reasoning level of each of the identified jobs is two or higher,
which exceeds Plaintiff’s limitation to simple, routine work.

Doc. 19 at 10.

Thus,

Plaintiff argues a conflict exists between the VE’s testimony and the Dictionary of
Occupational Titles (“DOT”), in spite of the VE’s testimony to the contrary.
(citing Tr. 52).

Id.

The Commissioner responds, and the Court agrees, the jobs

identified by the VE are consistent with the RFC, which limited Plaintiff to no more
than simple, routine tasks.

Doc. 20 at 9. The Commissioner thus asserts the Court

need not reach the issue of whether the VE’s testimony was consistent with the DOT.

Id. And, if there was a conflict, the ALJ was not required to resolve it because she
was not made aware of one.

Id.

Under SSR 00-4p, “[w]hen a VE . . . provides evidence about the requirements
of a job or occupation, the adjudicator has an affirmative responsibility to ask about
any possible conflict between that VE or VS evidence and information provided in the
DOT.”

SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000). If there is a conflict, the

ALJ is to “obtain a reasonable explanation for the apparent conflict.”

Id.

Furthermore, she must resolve the conflict before relying on the VE and explain in

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her decision how she resolved the conflict.

Id. The Eleventh Circuit has held that

“when the VE’s testimony conflicts with the DOT, the VE’s testimony ‘trumps’ the
DOT.”

Jones, 190 F.3d at 1230.
In this case, the ALJ properly complied with SSR 00-4p.

See SSR 00-4p, 2000

WL 1898704, at *4 (Dec. 4, 2000). The ALJ limited Plaintiff’s RFC to simple and
routine tasks and included this limitation in her hypothetical to the VE.

Tr. 51.

The VE testified that a hypothetical individual with Plaintiff’s limitations would be
able to work as a counter/food attendant, cafeteria helper and cashier.

Tr. 50-51.

The ALJ inquired whether the VE testimony was consistent with the DOT.

Tr. 52.

The VE testified that it was, except that his discussion about employment practices
with respect to work absences was based on his 38 years of experience in the field.

Id.

The VE did not identify any further discrepancy, nor did Plaintiff’s counsel

identify or raise any conflicts by questioning the VE.
VE’s explanation in her decision.

See id. The ALJ noted the

Tr. 23.

The ALJ was not under an independent obligation to identify and resolve any
inconsistency aside from that identified by the VE. See Dickson v. Comm’r of Soc.

Sec., No. 5:13-CV-48-OC-DNF, 2014 WL 582885, at *1 (M.D. Fla. Feb. 13, 2014) (“No
conflicts were raised during the hearing by the vocational expert or by Plaintiff’s
representative. Neither case law nor SSR 00–4p require an ALJ to resolve a conflict
that was not identified and was not otherwise apparent.”); Leigh v. Comm'r of Soc.

Sec., 496 F. App’x 973, 975 (11th Cir. 2012). As a result, the Court finds that the
ALJ properly relied on the VE’s testimony at step five.

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c. Plaintiff’s credibility
With respect to Plaintiff’s credibility, the ALJ found “[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 fully credible” for the reasons explained in
the decision.

Tr. 18. After discussing Plaintiff’s medical evidence at length, the

ALJ summarized her reasons for discounting Plaintiff’s credibility in part as follows:
Overall, the medical records do not support [Plaintiff’s] allegations.
During the period at issue, [Plaintiff] did undergo spinal surgery.
However, within a month she reported almost complete improvement.
Subsequent medical records during the period at issue do not support
[Plaintiff’s] allegations that she had severe back and leg pain, or that
her depression and anxiety were so severe that she was unable to work.
The medical records do show exacerbation of her back pain shortly after
her date last insured. However, [Plaintiff] had a good response to
treatment with medication and injections. Notably, none of her doctors
has ever advised [Plaintiff] that she is disabled or filled out a medical
source statement indicating any significant limitations.
Tr. 21.
Plaintiff argues the ALJ improperly considered her performance of mundane
daily activities and her failure to obtain a medical source statement in assessing her
credibility, and thus substantial evidence does not support the ALJ’s credibility
assessment.

Doc. 19 at 10-12.

assessed Plaintiff’s credibility.

The Commissioner responds the ALJ properly

Doc. 20 at 14-20.

The Eleventh Circuit long has recognized that “credibility determinations are
the province of the ALJ.” Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)
(citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)). “If the ALJ discredits

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subjective testimony, he must articulate explicit and adequate reasons for doing so.”

Wilson, 284 F.3d R 1225 (internal citations omitted).

“The question is not . . .

whether the ALJ could have reasonably credited [a claimant’s] testimony, but
whether the ALJ was clearly wrong to discredit it.”
421 F. App’x 935, 939 (11th Cir. 2011).

Werner v. Comm’r of Soc. Sec.,

“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, based on the requirements of 20 C.F.R. § 404.1529, the ALJ considered
Plaintiff’s symptoms and the extent to which the symptoms reasonably can be
accepted as consistent with the objective medical and other evidence. Tr. 18-21.
After her extensive consideration of Plaintiff’s medical evidence, the ALJ articulated
explicit and adequate reasons for discounting Plaintiff’s credibility, primarily based
on Plaintiff’s lack of medical evidence. Tr. 21. Based on the foregoing, substantial
evidence supports the ALJ’s credibility determination.
V.

Conclusion

Upon review of the record, the Court concludes that the ALJ applied the proper
legal standards, and her determination that Plaintiff was not disabled is supported
by substantial evidence.
ACCORDINGLY, it is hereby
ORDERED:
1.

The decision of the Commissioner is AFFIRMED.

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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 1st day of December,
2017.

Copies:
Counsel of record

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