Olney v. Commissioner of Social Security

Filing 27

OPINION AND ORDER accepting and adopting 24 Report and Recommendations; overruling 25 Objection. The Decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 9/13/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICHARD OLNEY,
Plaintiff,
v.

Case No:

COMMISSIONER
SECURITY,

OF

2:17-cv-349-FtM-29CM

SOCIAL

Defendant.
OPINION AND ORDER
This

matter

is

before

the

Court

on

consideration

of

Magistrate Judge Carol Mirando’s Report and Recommendation (Doc.
#24), filed on July 30, 2018, recommending that the Decision of
the Commissioner be affirmed.

Plaintiff filed Objections to the

Report and Recommendation (Doc. #25) on August 13, 2018, and the
Commissioner filed a Response (Doc. #26) on August 17, 2018,
adopting its arguments in the Joint Memorandum (Doc. #22) filed on
February 14, 2018.
I.
The Court reviews the Commissioner’s decision to determine if
it is supported by substantial evidence and based upon proper legal
standards.

Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158

(11th Cir. 2004)(citing Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997)).

Substantial evidence is more than a scintilla

but less than a preponderance, and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)(citing
Crawford,

363

F.3d

at

1158-59).

Even

if

the

evidence

preponderates against the Commissioner’s findings, the Court must
affirm

if

the

evidence.

decision

Crawford,

reached

363

F.3d

is
at

supported
1158-59

by

(citing

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

substantial
Martin

v.

The Court does

not decide facts anew, make credibility judgments, reweigh the
evidence, or substitute its judgment for that of the Commissioner.
Moore, 405 F.3d at 1211 (citing Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983)); Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005)(citing Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004)).

The Court reviews the Commissioner’s

conclusions of law under a de novo standard of review.
Comm’r

of

Soc.

Sec.

Admin.,

496

F.3d

1253,

1260

Ingram v.
(11th

Cir.

2007)(citing Martin, 894 F.2d at 1529).
II. ALJ Findings and Conclusions
The Administrative Law Judge (ALJ) found that plaintiff had
not engaged in substantial gainful activity since the alleged
disability onset date of September 1, 1999, when he was 21 years
old.
old

(Doc. #16-2, Tr. 18, 21.)
man

who

completed

a

two

In 2016, plaintiff was a 38 year
year

associates

degree

program.

Plaintiff claims disability due to anxiety, panic disorder, ADHD,
obsessive compulsive disorder, and anger issues.

- 2 -

(Id., Tr. 24.)

The ALJ found that plaintiff has attention deficit hyperactivity
disorder,

anxiety

disorder,

personality

disorder,

obsessive-

compulsive disorder, panic disorder, affective disorder.

The ALJ

found that these impairments cumulatively cause more than a minimal
effect on the claimant’s ability to perform basic work activities,
and therefore make for a severe combination of impairments.
Tr. 22.)

(Id.,

The ALJ found that plaintiff’s physical issues did not

restrict functioning.

(Id.)

The ALJ found that treatment notes indicate that plaintiff is
doing well on prescribed medications.

Numerous Global Assessment

of Function (GAF) scores ranged from mild to moderate limitations.
(Id.,

Tr.

25.)

Dr.

David

Rawlings,

Ph.D.,

a

consultative

examiner, indicated that plaintiff could function adequately in
college even though he had some problems operating with time
pressures and has a degree of social deficit.

(Id., Tr. 25.)

In

an opinion approximately 12 years previous, Dr. Rawlings found
plaintiff had some problems operating with time pressures and a
degree of social deficit, but could function in a college based
curriculum.

The ALJ gave this opinion some weight.

(Id., Tr.

26.)
Dr. Lori Chang, Psy.D., a consultative examiner, found that
plaintiff’s concentration and attention were within normal ranges.
(Id., Tr. 23, 26.)
intellect,

normal

Dr. Chang found that plaintiff had average
concentration,

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logical/coherent

thought

processes, and no apparent memory deficit.

(Id., Tr. 25.)

Dr.

Chang found intact recent and remote memory, mild anxiety, and
fair judgment and insight.

Dr. Chang’s opinion was based upon a

comprehensive

of

examination

significant weight.
Dr.

Leigh

plaintiff

and

therefore

(Id., Tr. 26.)

Ann

Wong,

Ph.D.

stated

that

plaintiff

was

(Id., Tr. 23.)

distrustful and unsympathetic towards others.

Dr.

Wong examined plaintiff at his attorney’s request.
that

he

had

an

given

unstable

sense

of

self,

and

Dr. Wong found
was

emotionally

reactive.

The form reports by Dr. Wong were given little weight.

Dr.

opined

Wong

that

plaintiff

had

mostly

mild

to

moderate

limitations in understanding and memory, sustained concentration
and persistence, social interaction, and adaption.

Dr. Wong also

stated that plaintiff had marked limitations in concentration and
social functioning.

The ALJ found this was inconsistent with the

treating source assessments and other forms filled out by Dr. Wong.
The ALJ also noted that Dr. Wong did not read plaintiff’s medical
records from before and after the alleged disability onset date.
(Id., Tr. 25-26.)
The State agency psychological consultants’ assessments were
given significant weight as the opinions were consistent with the
record as a whole, and based upon a comprehensive review of the
record uncontradicted by plaintiff’s treating sources.
26.)

- 4 -

(Id., Tr.

The ALJ found plaintiff had only a mild restriction in daily
activities.

Plaintiff reported that he could take care of his

personal care but sometimes needed to be reminded to bathe, and he
could make simple meals, drive, ride in a car, shop for groceries,
play interactive video games, do his laundry, and watch TV.
Tr. 22.)

(Id.,

Plaintiff also told doctors that he helped around the

house, does laundry, shops for groceries, and occasionally goes to
the movies.

(Id., Tr. 22-23.)

The ALJ found plaintiff had moderate difficulties in social
functioning.

Plaintiff reported having no friends or socializing,

but he plays interactive multiplayer video games.
The

ALJ

found

plaintiff

had

concentration, persistence, or pace.

moderate

(Id., Tr. 23.)

difficulties

with

The ALJ noted that plaintiff

remained focused and engaged throughout the 50 minute hearing.
More

specifically,

that

plaintiff

testified

coherently,

with

understanding of the questions posed, in an organized fashion, and
formulated concise responses while maintaining decorum appropriate
for

the

setting.

Plaintiff

was

viewed

by

an

examining

psychologist as being capable of functioning at a college-based
curriculum.

(Id., Tr. 23.)

The ALJ found that plaintiff’s

statements concerning the intensity, persistence, and limiting
effects of the symptoms was not entirely credible.

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(Id., Tr. 25.)

The ALJ noted that plaintiff had not been psychiatrically
hospitalized,

nor

had

he

experienced

a

similar

decompensation for the required durational period.

episode

of

(Id., Tr. 23.)

The ALJ noted that plaintiff had no past relevant work, and
was 21 years old on the disability onset date.

Plaintiff had at

least a high school education and could communicate in English.
Considering

plaintiff’s

age,

education,

work

experience,

and

residual functional capacity, the ALJ found that there exist jobs
in significant numbers in the national economy that plaintiff could
perform.

(Id., Tr. 26-27.)

A vocational expert testified that plaintiff would be able to
perform the requirements of a laundry worker (medium, unskilled)
of which there are approximately 118,000 such jobs; a cleaner
(medium, unskilled) of which there are approximately 150,000 such
jobs; and table worker (light, unskilled) of which there are
approximately 92,000 such jobs.

(Id., Tr. 27.)

The ALJ found

that the testimony was consistent with the information contained
in the Dictionary of Occupational Titles.
of

“not

disabled”

because

adjustment to other work.

plaintiff

The ALJ made a finding

could

make

a

successful

(Id., Tr. 27.)

III. Magistrate Findings and Conclusions
The Magistrate Judge considered five issues on appeal: (1)
whether

the

ALJ

improperly

engaged

in

“sit

and

squirm

jurisprudence”; (2) whether the ALJ’s determination of plaintiff’s

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residual

functional

capacity

(RFC)

failed

to

incorporate

the

opinions of the state agency psychologists; (3) whether the ALJ
properly evaluated the opinion of Dr. Wong; (4) whether the jobs
cited by the ALJ comply with plaintiff’s RFC; and (5) whether
substantial

evidence

supports

the

existence

number of jobs that plaintiff can perform.
The

Magistrate

Judge

found

that

of

a

substantial

(Doc. #24, p. 2.)

the

ALJ

properly

noted

plaintiff’s appearance and demeanor in assessing the extent of
plaintiff’s limitations as to concentration, persistence or pace.
The Magistrate Judge noted that the ALJ is permitted to rely on
the fact that plaintiff did not appear to be as limited in his
ability to concentrate at the hearing.

The Magistrate Judge found

that the ALJ did not make a medical assessment based on plaintiff’s
appearance at the hearing, and therefore the ALJ did not engage in
sit and squirm jurisprudence.

The Magistrate Judge also noted

that the ALJ articulated reasons for discrediting the severity of
plaintiff’s alleged symptoms unrelated to plaintiff’s demeanor at
the hearing.
The Magistrate Judge found that the ALJ properly weighed the
opinions of the state agency psychologists, and incorporated their
opinions in limiting plaintiff’s work.

The Magistrate Judge noted

that the ALJ included all of plaintiff’s mental limitations in his
hypothetical
identified,

to

the

vocational

expert,

and

after

the

ALJ

further

questioned

Dr.

Newton

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jobs

were

regarding

plaintiff’s off task percentage based on plaintiff’s difficulty
concentrating.
The Magistrate Judge found that the ALJ properly weighed the
opinions of Dr. Ann Adams Psy.D. and Jennifer Meyer, Ph.D., the
agency consultants.
properly

assessed

The Magistrate Judge found that the ALJ
plaintiff’s

RFC

because

the

ALJ

included

limitations attributable to the moderate difficulties Drs. Adams
and

Meyer

found

with

regard

to

plaintiff’s

concentration,

persistence and pace.
The Magistrate Judge found that the ALJ erred in failing to
state the weight he gave to the first part of Dr. Wong’s opinion,
but that it was harmless because it was not error to give little
weight to the remainder of Dr. Wong’s opinions contained within
the forms.

The Magistrate Judge noted that plaintiff had not

established that he had greater limitations than the ALJ found,
and the limitations Dr. Wong identified were accounted for in
plaintiff’s RFC.
The Magistrate Judge found that the ALJ properly weighed Dr.
Wong’s opinion with regard to the mental RFC and mental disorders
checklists, and substantial evidence supported the reasoning.

The

Magistrate Judge found that the ALJ articulated sufficient reasons
for discounting Dr. Wong’s opinions in the forms, and substantial
evidence supported the weight given this portion of her opinions.

- 8 -

The
supported

Magistrate
the

ALJ’s

Judge
step

found
five

that

substantial

determination.

The

evidence
ALJ’s

RFC

determination mirrored the hypothetical posed to the vocational
expert, the vocational expert testified that his opinions were
consistent with the Dictionary of Occupational Titles, and the ALJ
found

that

the

vocational

expert

was

qualified

to

testify.

Therefore, the Magistrate Judge found that the ALJ’S finding that
plaintiff could perform the jobs of laundry worker, cleaner and
table worker was supported.

The Magistrate Judge found that the

ALJ’s determination that a significant number of jobs exist in the
national economy and reliance on the vocational expert was also
supported by substantial evidence.
IV. Medical Objections to the Report and Recommendation
A. State Agency Psychologists
Plaintiff

argues

that

Dr.

Adams

found

plaintiff

to

be

moderately limited in the ability to complete a normal workday and
workweek

without

interruptions

from

symptoms,

and

perform

consistent

to

at

a

psychologically

unreasonable number and length of rest periods.

pace

based

without

an

Plaintiff argues

that Dr. Meyer also found plaintiff moderately limited.

Plaintiff

argues that he could not perform work on a regular and continuing
basis due to these interruptions and rest periods.

Plaintiff

objects that the ALJ failed to discuss theses RFC limitations found
by the State agency psychologists.

- 9 -

Dr. Adams found that the restrictions on daily living were
mild, and that plaintiff had moderate difficulties in maintaining
social functioning, concentration, persistence or pace.
#16-3, Tr. 75.)

(Doc.

Dr. Adams found no significant understanding or

memory limitations, and found that plaintiff was not significantly
limited

in

his

ability

to

carry

out

very

short

and

instructions, or to carry out detailed instructions.

simple

Dr. Adams

found plaintiff was moderately limited in his ability to maintain
attention

and

concentration

for

extended

periods,

but

not

significantly limited in the ability to perform activities within
a schedule, maintain regular attendance, and be punctual within
customary tolerances.

(Id., Tr. 77.)

Dr. Adams noted plaintiff

was not significantly limited in his ability to sustain an ordinary
routine without special supervision, or the ability to make simple
work-related decisions, but plaintiff was moderately limited in
the ability to work in coordination with or in proximity to others
without

being

plaintiff

distracted

would

have

by

them.

moderate

Dr.

Adams

limitations

explained

working

in

that
close

proximity to others, and therefore moderate difficulty completing
work

days

without

interruptions

but

that

plaintiff

could

concentrate with regular breaks throughout the day if close or
frequent interactions with the public or with coworkers is limited.
(Id., Tr. 78.)

As to social interaction limitations, Dr. Adams

found that plaintiff was moderately limited in his ability to

- 10 -

accept instructions and respond appropriately to criticism from
supervisors.

(Id.)

Dr. Adams found plaintiff was moderately

limited in his ability to respond appropriately to changes in the
work

setting

but

that

plaintiff

can

set

realistic

goals

independently, and can avoid normal hazards and adapt to infrequent
changes in a work setting.
On

reconsideration,

(Id., Tr. 79.)
Dr.

Meyer

also

found

only

mild

restriction of activities of daily living. (Id., Tr. 122.)

Dr.

Meyer found that plaintiff was moderately limited in his ability
to maintain attention and concentration for extended periods, the
ability to work in coordination with or in proximity to others
without being distracted by them, and moderately able to complete
a normal workday and workweek.
found

that

plaintiff

was

(Id., Tr. 125-126.)

capable

of

sustaining

Dr. Meyer

attention

to

complete simple, repetitive tasks for 2 hour segments over an 8
hour work day.

(Id., Tr. 126.)

Dr. Meyer determined that

plaintiff would respond best to non-confrontational supervision,
and would have difficulty appropriately responding to changes in
high stress and fast-paced work environments but that plaintiff
was capable of adapting to simple or gradual changes.

(Id., Tr.

127.)
The ALJ found that plaintiff had moderate difficulties in
social functioning, and concentration, persistence or pace.

The

ALJ stated that he gave the State agency psychological consultants

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significant weight, and stated that the limitations expressed by
Dr. Adams and Dr. Myer were reflected in plaintiff’s RFC.
#16-2, Tr. 26.)

(Doc.

The ALJ clearly reflected on the findings based

on the non-exertional limitations set for simple, routine, and
repetitive tasks, with few work place changes, and no required
interaction with members of the public, and no more than occasional
interaction with co-workers.

(Id., Tr. 24.)

The Court finds that

the decision is supported by substantial evidence.

The objection

is overruled.
B. Dr. Wong
Plaintiff argues that the ALJ failed to properly assess the
opinion

of

Dr.

Wong

because

he

overlooked

her

opinion

that

plaintiff had extreme limitations in the ability to complete a
normal workday and workweek without interruptions.

Plaintiff also

argues that the fact that Dr. Wong was arranged by counsel is not
reason to discount the opinion of the consultative examiner.
As a preliminary matter, there is nothing in the ALJ’s opinion
to support a conclusion that the ALJ considered and discounted Dr.
Wong’s opinion because she was arranged by counsel.

As further

discussed below, the ALJ gave little weight to the form reports,
but clearly considered the remaining findings.

This objection is

overruled.
Plaintiff

was

referred

to

LSW

Psychological

Services

by

counsel for a “limited focus psychological evaluation to determine

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his suitability for social security benefits.”
527.)

Dr.

Wong

examined

plaintiff,

and

(Doc. #16-10, Tr.

found

he

adequately

followed directions and appeared to answer candidly, but required
a slower pace and extra time throughout the evaluation.
529.)

(Id., Tr.

Dr. Wong found that plaintiff exhibited mild difficulties

with an atypically low threshold for frustration when he was
discouraged, perceived his answer to be incorrect, or when he
appeared flustered while pressed to respond.

(Id., Tr. 529-530.)

Dr. Wong observed some symptoms of anxiety.

Plaintiff’s IQ fell

in the high average range, indicating an ability to learn new
things

and

Plaintiff

perform
was

better

found

to

than

his

demonstrate

peers.

(Id.,

high

average

efficiency and average cognitive fluency skills.

Tr.

530.)

cognitive
Plaintiff’s

ability to process simple information quickly fell in the average
range, and his short-term memory was in the high average range.
(Id., Tr. 531.)

Plaintiff’s long-term memory was in the low

average range, and he struggles to organize and store visual
information into long-term memory, and to recall that information.
However, plaintiff could retrieve learned knowledge once stored.
Dr. Wong also administered a personality test and assessed his
anxiety, depression, and panic related symptoms.

(Id., Tr. 531-

532.)
Dr.

Wong

diagnosed

disorder

with

fair

plaintiff

insight,

with

generalized

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obsessive-compulsive
anxiety

disorder,

unspecified depressive disorder, unspecified personality disorder,
academic underachievement despite adequate cognitive potential,
and other problems related to psychosocial circumstances.
Tr. 533.)

(Id.,

The ALJ referenced the Summary of Results by Dr. Wong,

noting the finding that plaintiff tends to be distrustful and has
a tendency to be unsympathetic toward others.
532.)

(Id., Tr. 23, 25,

The ALJ further noted Dr. Wong found plaintiff had an

unstable sense of self and that he was emotionally reactive.

In

light of this evidence, the ALJ imposed limitations for simple,
routine and repetitive tasks in a work environment free of fastpaced production requirements, involving only simple work related
decisions with few if any work place changes and no required
interpersonal interaction.

(Id., Tr. 25.)

However, the form

reports completed by Dr. Wong were given little weight because
they are inconsistent with the treating source assessments – “which
are entitled to greater weight and are indicative of no more than
moderate limitations”, and inconsistent with Dr. Wong’s other
forms

showing

concentration.

slight

to

moderate

social

functioning

and

(Id., Tr. 25-26.)

The Mental Residual Functional Capacity Assessment (Doc. #1610, Tr. 538) checked off mostly moderate to mild for understanding
and

memory,

sustained

concentration

interaction, and adaptation.

and

persistence,

social

Dr. Wong checked extreme for only

one element of sustained concentration and persistence finding

- 14 -

that the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length of
rest periods.

It is this one inconsistent finding that plaintiff

argues the ALJ overlooked.

It is clear that the ALJ considered

the form but gave it little weight because of the inconsistency in
the one element with other findings.

The objection is overruled.

V. Vocational Objections to the Report and Recommendation
Plaintiff argues that the jobs identified by the vocational
expert do not comply with the RFC.

Plaintiff argues that the

three jobs require the ability to follow detailed instructions,
which conflicts with the RFC’s limitations.

Plaintiff argues that

the jobs carry a reasoning level of R2, and only jobs requiring a
reasoning level of R1 are limited to simple tasks.
The

ALJ

told

the

vocational

expert

that

plaintiff

had

testified to having difficulty at times concentrating, and that
his thoughts get scattered.

The ALJ asked the vocational expert

“[i]s there any degree of employer tolerance for an employee being
off task in unskilled, full-time competitive employment.”

The

vocational expert responded that it would be up to 10% of the
workday, so it would preclude full-time competitive employment.
(Doc. #16-2, Tr. 60.)

Counsel questioned the vocational expert

as to whether a reasoning level 2, which involves detailed but
involved written or oral instructions, would be inconsistent with

- 15 -

the limitation to simple instructions.

The vocational expert

testified “[n]ot necessarily” because of the type of work being
done, and that it would still be within the parameters of unskilled
and not detailed.
A

laundry

(Id., Tr. 62.)

worker,

a

cleaner,

and

all

have

a

specific

vocational preparation time (SVP) of 2, which ranges from anything
beyond

short

demonstration

up

to

and

including

1

month.

Dictionary of Occupational Titles (DOT), Appendix C: Components of
the Definition Trailer, § II, SVP).

All three jobs also are

unskilled work “which needs little or no judgment to do simple
duties that can be learned on the job in a short period of time”,
usually in 30 days.

20 C.F.R. § 404.1568(a).

Therefore unskilled

and a job with an SVP of 2 are consistent.
All three jobs also have a reasoning level of 2.

DOT,

Appendix C: Components of the Definition Trailer, § III, General
Educational Development (GED).

A reasoning level of 2 requires

the ability to “[a]pply commonsense understanding to carry out
detailed but uninvolved written or oral instructions.

Deal with

problems involving a few concrete variables in or from standardized
situations.”

(Doc. #22-1, Exh. A, p. 1.)

The vocational expert

addressed the reasoning level of 2 and stated that the occupations
would not be detailed because of the type of work involved.

The

Eleventh Circuit has noted that jobs with reasoning levels of 2 or
3 may also be jobs with simple tasks.

- 16 -

Chambers v. Comm'r of Soc.

Sec., 662 F. App'x 869, 873 (11th Cir. 2016).

The Court finds,

as in Chambers, that plaintiff has not shown that the jobs require
“more mental capacity than allowed for in the limitations outlined
by the ALJ.”

Id.

The objection is overruled.

Plaintiff also argues that the laundry worker job requires a
temperament level of V, but there was no testimony or apparent
conflict between the vocational expert’s testimony and the DOT,
which does not include temperament.
After

an

independent

review,

The objection is overruled.
the

Court

agrees

with

the

findings and recommendations in the Report and Recommendation.
Accordingly, it is now
ORDERED:
1.

The Report and Recommendation (Doc. #24) is accepted and

adopted by the Court.
2.

Plaintiff's Objection (Doc. #25) is OVERRULED.

3.

The Decision of the Commissioner of Social Security is

affirmed.
4.

The Clerk of the Court shall enter judgment accordingly

and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2018.

- 17 -

13th

day

Copies:
Hon. Carol Mirando
U.S. Magistrate Judge
Counsel of Record

- 18 -