Costello v. Commissioner of Social Security
Filing
23
OPINION AND ORDER affirming the decision of the Commissioner. See the Opinion and Order for details. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 8/2/2019. (ATC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARION COSTELLO,
Plaintiff,
v.
Case No.: 2:18-cv-299-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is the Complaint, filed on May 1, 2018. (Doc. 1). Plaintiff seeks
judicial review of the final decision of the Commissioner of the Social Security Administration
(“SSA”) denying her claim for supplemental security income (“SSI”). The Commissioner filed
the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by the appropriate
page number), and the parties filed a joint memorandum detailing their respective positions. For
the reasons set forth herein, the decision of the Commissioner is AFFIRMED pursuant to §
205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A.
Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the Plaintiff unable to do her previous work or any other
substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505-.1511, 416.905-.911.
B.
Procedural History
On December 15, 2010, Plaintiff filed an application for disability insurance benefits and
supplemental security income. (Tr. at 93). Plaintiff alleged an onset date of March 16, 2005.
(Id. at 927). Her application was denied initially on February 11, 2011 and again on
reconsideration on July 14, 2011. (Id. at 93-94). A hearing was held before Administrative Law
Judge (“ALJ”) John Murdock on April 22, 2013. (Id. at 54). ALJ Murdock issued an
unfavorable decision on June 27, 2013, finding Plaintiff not to be under a disability. (Id. at 2324). Plaintiff requested a review of the decision, which the Appeals Council denied. (Id. at 1).
Plaintiff then appealed to the United States District Court, which remanded the claim on
March 17, 2015. (Id. at 1049-50). The Appeals Council vacated the Commissioner’s final
decision and remanded the claim to an ALJ for further proceedings. (Id. at 1043-45). A second
hearing was held before ALJ Maria C. Northington in Fort Myers, Florida, on November 7,
2016. (Id. at 947). ALJ Northington issued an unfavorable decision on February 23, 2017. (Id.
at 940). Plaintiff requested a review of that decision, and on March 16, 2018, the Appeals
Council denied Plaintiff’s request for review. (Id. at 918-20). Plaintiff filed a Complaint in the
United States District Court on June 28, 2018. (Doc. 1). This case is ripe for review. The
parties consented to proceed before a United States Magistrate Judge for all proceedings. (Doc.
15).
C.
Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a Plaintiff
has proven that he is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
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2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must determine
whether the Plaintiff: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can perform
other work found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th
Cir. 2004). The Plaintiff has the burden of proof through step four, and then the burden shifts to
the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913, 915 n.2
(11th Cir. 2013).
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since December 15, 2010, the application date. (Tr. at 929). At step two, the ALJ determined
that Plaintiff suffered from the following severe impairments: “bipolar disorder, schizoaffective
disorder NOS, depressive disorder NOS, and borderline intellectual functioning (BIF).” (Id. at
930 (citing 20 C.F.R. 416.920(c))). At step three, the ALJ determined that 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 C.F.R. pt. 404, subpt. P, app. 1. (Id. (citing 16 C.F.R. §
416.920(d), 416.925, 416.926)). At step four, the ALJ determined the following as to Plaintiff’s
residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform a wide range of work at all exertional levels that implicitly
include the performance of sedentary to heavy work, but with the
following non-exertional limitations.
She has no postural
limitations with the exception that [she] should avoid climbing ropes
and scaffolds, but her ability to climb ladders is not affected. She
1
Unpublished opinions may be cited as persuasive on a particular point. The Court does not
rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January
1, 2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
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retains the capacity to understand, remember, and carry out simple
instructions and perform simple, routine, and repetitive tasks as
consistent with unskilled work. In the course of work, she is to have
no in-person contact with the public, except for incidental contact
and telephonic contact. She is capable of only occasional contact
with coworkers and supervisors. In this instance, occasional is
defined as interaction and coordination but not necessarily
proximity to the same.
(Id. at 932).
The ALJ further found that Plaintiff had no past relevant work and that considering her
“age, education, work experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that [she] can perform.” (Id. at 938 (citing 20
C.F.R. § 416.969(a)). Thus, the ALJ concluded that Plaintiff had not been under a disability
since December 15, 2010. (Id. at 939).
D.
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, 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., the evidence
must do more than merely create a suspicion of the existence of a fact and must include 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) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
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 evidence preponderates against” the Commissioner’s
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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 evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (noting that court must scrutinize
entire record to determine reasonableness of factual findings).
II.
Analysis
On appeal, Plaintiff raises one issue: Whether the ALJ evaluated the medical opinion
evidence consistent with the regulations and Eleventh Circuit precedent. (Doc. 22 at 16).
Contained within that issue, however, are two allegations of error. First, Plaintiff contends that
the ALJ failed to provide sufficient reasons for rejecting the treating source opinions of
psychiatrist Dr. Omar Rieche and nurse practitioner Susan Samerdyke. (Id. at 20-24). Second,
she argues that despite giving great weight to the opinion of Dr. Kasprzak, an Agency
consultative examiner, the ALJ failed to include work-related limitations related to Dr.
Kasprzak’s opinion regarding Plaintiff’s marked limitations. (Id. at 24). The Court first
addresses Plaintiff’s argument related to the ALJ’s treatment of Dr. Rieche and Nurse
Samerdyke’s opinions and then turns to the issue of the ALJ’s treatment of Dr. Kasprzak’s
opinion.
Dr. Rieche began providing mental health treatment to Plaintiff in January 2006, while
Nurse Samerdyke, who worked with Dr. Rieche, began treating Plaintiff in December 2011. (Tr.
at 646-48, 902-04; see also id. at 596-665, 872-905). On November 30, 2012, Dr. Rieche and
Nurse Samerdyke completed a treating source opinion questionnaire related to Plaintiff’s mental
impairments. (Id. at 867-70). They opined that Plaintiff had extreme impairments, meaning that
she was “[u]nable to function . . . over 50% of the work day or work week,” in the following
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areas: (1) “ability to accept instruction from or respond appropriately to criticism from
supervisors or superiors;” (2) “ability to respond appropriately to co-workers or peers;” (3)
“ability to relate to general public and maintain socially appropriate behavior;” (4) “ability to
work in cooperation with or in proximity to others without being distracted by them;” (5) “ability
to carry through instructions and complete tasks independently;” (6) “ability to behave
predictably, reliably and in an emotionally stable manner;” and (7) “ability to tolerate customary
work pressures.” (Id. at 867-69). They opined that Plaintiff had marked impairments, meaning
that she was “[u]nable to function . . . from 26% to 50% of the work day or work week,” in the
following areas: (1) “ability to work in coordination with or in proximity to others without
distracting them or exhibiting behavioral extremes;” (2) “ability to perform and complete work
tasks in a normal work day or week at a consistent pace;” (3) “ability to process subjective
information accurately and to use appropriate judgment;” (4) “ability to maintain attention and
concentration for more than brief periods of time;” (5) “ability to perform at production levels
expected by most employers;” and (6) “ability to remember locations and workday procedures
and instructions.” (Id.). They also opined that Plaintiff had moderate impairments, meaning that
she was “[u]nable to function . . . from 11% to 25% of the work day or work week,” in her
ability to respond appropriately to changes in work setting,” “to be aware of normal hazards and
take necessary precautions,” and “to maintain personal appearance and hygiene.” (Id. at 869).
Finally, they opined that Plaintiff’s condition would likely deteriorate if she was placed under
stress. (Id.).
The ALJ gave Dr. Rieche and Nurse Samerdyke’s opinions little weight. (Id. at 937). In
so doing, the ALJ reasoned that the definitions contained within the questionnaire were
“inconsistent with the Agency’s standards and [did] not fall within the applicable regulations.”
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(Id.). Moreover, the ALJ determined that there was no support for Plaintiff’s alleged “level of
debility in the objective medical record.” (Id.). The ALJ noted that mental status examinations
generally reflected unremarkable or positive findings and that there were numerous instances
over the years in which she went to the emergency room with minor physical complaints but
never complained of mental issues. (Id.). Finally, the ALJ relied on the hearing testimony of
medical expert Dr. Ricardo Buitrago, who testified at the hearing that Dr. Rieche’s and Nurse
Samerdyke’s assessment was not supported by the objective evidence. (Id.).
Plaintiff argues that the ALJ’s decision is flawed in two ways. First, she contends that
contrary to the ALJ’s conclusion, the questionnaire relied on by Dr. Rieche and Nurse
Samerdyke is not inconsistent with the Agency regulations. (Doc. 22 at 21). Second, Plaintiff
asserts that the ALJ improperly “reasoned that Dr. Rieche and Nurse Samerdyke’s own
examination findings did not support the limitations” and that rejecting their opinions on this
basis was “an impermissible substitution of the ALJ’s lay opinion for that of the medical expert.”
(Id. at 22).
An ALJ may give a treating source’s opinion controlling weight when it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in” the record. 20 C.F.R. § 416.927(c)(2). If an
ALJ concludes that the opinion should not be given controlling weight, he or she considers the
factors laid out in 20 C.F.R. § 416.927(c)(2)(i), (c)(2)(ii), and (c)(3) through (c)(6). 20 C.F.R. §
416.927(c)(2). An ALJ need not, however, “explicitly address each of those factors.” Lawton v.
Comm’r Soc. Sec., 431 F. App’x 830, 833 (11th Cir. 2011). The Court addresses each of
Plaintiff’s arguments in turn.
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First, the Court concludes that the ALJ did not err in finding that the questionnaire was
inconsistent with Agency regulations. As noted by Defendant, the questionnaire defined the
terms “mild,” “moderate,” “marked,” and “extreme” as a percentage of the work day or work
week during which the claimant was “[u]nable to function” in the relevant area. (Id. at 867).
This is in contrast to the Agency regulations’ terms – “mild,” “moderate,” “marked,” and
“extreme” – which “speak to the degree of severity,” rather than to a complete inability to
function. (Doc. 22 at 26 (quoting 20 C.F.R. § 416.920a(c)(2), (4); 20 C.F.R. pt. 404, subpt. P,
app. 1, § 12.00(C)). Thus, the ALJ did not err in concluding that the terms and definitions
contained within the questionnaire were inconsistent with the regulations. Even assuming,
arguendo, that the ALJ did err in this regard, the decision is nonetheless supported by substantial
evidence, as outlined below.
Plaintiff argues that the ALJ improperly “reasoned that Dr. Rieche and Nurse
Samerdyke’s own examination findings did not support the limitations.” (Id. at 22). Despite
Plaintiff’s claims to the contrary, an ALJ may properly discount a treating source’s opinion on
the basis that the opinion is inconsistent with the source’s own treatment notes. See Crawford v.
Comm’r Soc. Sec., 363 F.3d 1155, 1159-60 (11th Cir. 2004). As noted by the ALJ, numerous
treatment notes reflect that other than Plaintiff’s mood and affect, her mental exams throughout
the years were often unremarkable. For example, Dr. Rieche’s treatment notes from November
2008, December 2008, February 2009, May 2009, August 2009, and January 2010 similarly
reflect that Plaintiff was alert and oriented; had full-range and appropriate affect; had a pleasant
mood; was cooperative and demonstrated appropriate behavior; had a logical and goal-directed
thought process; had appropriate thought content; had fair insight and judgment; and had intact
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recent and remote memory. (Tr. at 597, 601, 603, 606, 608, 610). Nurse Samerdyke’s treatment
notes from 2011 through 2013 also reflect generally unremarkable assessments. (Id. at 872-905).
Moreover, other medical evidence relied on by the ALJ supports the decision. The ALJ
found it relevant that Plaintiff sought emergency room treatment for “minor physical complaints
on multiple occasions” but “never complained of mental issues, and mental status examinations
performed during the course of these visits were consistently normal.” (Id. at 937; see also 752865). As noted by Defendant, subsequent assessments typically revealed mental status findings
that were unremarkable. (Id. at 1171-72, 1175-76, 1181-82, 1185-87, 1190-91, 1193-95, 11981200, 1207-09, 1211-13, 1215-18, 1220-22, 1224-26). Finally, the ALJ relied on Dr. Buitrago’s
hearing testimony in giving Dr. Rieche’s and Nurse Samerdyke’s opinion little weight. (Id. at
937). Dr. Buitrago testified that the functional assessment was not supported by Dr. Rieche’s
and Nurse Samerdyke’s treatment notes. (Id. at 984-85, 991-92). A review of the assessment
and their notes, as outline above, confirms this determination.
It is the ALJ’s job to evaluate and weigh evidence and resolve any conflicts in the record.
“In reviewing an ALJ’s decision, we may not decide the facts anew, make credibility
determination[s], or re-weigh the evidence, and we must affirm the ALJ’s findings if they are
supported by substantial evidence, even if the evidence preponderates against them.” Jones v.
Soc. Sec. Admin., Comm’r, 695 F. App’x 507, 508 (11th Cir. 2017) (citing Mitchell v. Comm’r,
Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014); Winschel v. Comm’r., Soc. Sec. Admin.,
631 F.3d 1176, 1178 (11th Cir. 2011)). Upon review of the record, the Court finds that the
ALJ’s decision is supported by substantial evidence.
Next, the Court turns to the issue of the ALJ’s allegedly erroneous treatment of Dr.
Kasprzak’s opinion. Dr. Kasprzak, an Agency consultative examiner, noted that Plaintiff’s mood
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and affect were within normal limits, that Plaintiff was cooperative, that she had normal thought
content, thought processes, speech quality, and speech content, and that Plaintiff had below
normal memory, abstract reasoning, attention, and concentration. (Tr. at 914). She opined, in
relevant part, that Plaintiff was able to understand and remember simple instructions and to carry
out simple instructions and that Plaintiff had a moderate limitation in her ability to make
judgments on simple work-related decisions. (Id. at 909). She also opined that Plaintiff had
marked limitations in the following areas: (1) ability to understand and remember complex
instructions; (2) ability to carry out complex instructions; (3) ability to make judgments on
complex work-related decisions; and (4) ability to respond appropriately to usual work situations
and to changes in a routine work setting. (Id. at 909-10). Dr. Kasprzak further noted that
Plaintiff’s activities of daily living indicated that she was capable of a repetitive task. (Id. at
909). The ALJ gave Dr. Kasprzak’s opinion great weight, finding that her opinion was
consistent with the record as a whole, which the ALJ found “shows that the claimant has at least
fair insight and judgment and generally clear, logical, and goal-directed thought processes.” (Id.
at 936).
Plaintiff contends that the ALJ failed to incorporate work-related limitations related to the
marked limitations in Plaintiff’s ability to respond appropriately to usual work situations and
changes in a routine work setting. (Doc. 22 at 24). She argues that the ALJ improperly offered
no explanation as to why the marked limitation was excluded. (Id.). Defendant responds that
although the ALJ did not specifically note that particular limitation in the RFC finding, the RFC
nevertheless accommodates the limitations. (Id. at 29).
The Court agrees with Defendant that the RFC accommodates Dr. Kasprzak’s opinion
regarding marked limitations in Plaintiff’s ability to respond appropriately to usual work
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situations and changes in a routine work setting because it restricts Plaintiff to simple, routine,
repetitive, unskilled work, with no in-person public contact. (Id. at 29 (citing Tr. at 910, 930)).
The decision reflects that in reviewing the opinion evidence that supported her RFC finding, the
ALJ explicitly took Dr. Kasprzak’s opinion regarding the relevant limitations into account. (Tr.
at 936). Although the ALJ did not specifically list that limitation in the RFC finding, “[t]he ALJ
is not required to use magic words in the RFC and ‘there is no requirement that the ALJ include
every limitation verbatim [in] her RFC determination.’” Philpot v. Comm’r of Soc. Sec., No.
6:16-cv-417-Orl-40TBS, 2017 WL 912122, at *3 (M.D. Fla. Feb. 14, 2017), report and
recommendation adopted, No. 6:16-cv-417-Orl-40TBS, 2017 WL 897342 (M.D. Fla. Mar. 7,
2017) (quoting Hilton v. Comm’r of Soc. Sec., Case No. 6:14-cv-1339-Orl-GJK, 2016 WL
561364, at *3 (M.D. Fla. Feb. 12, 2016)). The record reflects that the ALJ considered all the
medical evidence and all of Plaintiff’s limitations, including the marked limitations at issue, and
incorporated them into the RFC. For these reasons, the Court finds no merit in Plaintiff’s second
assignment of error.
III.
Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that substantial evidence supports the ALJ’s decision and that the decision was
decided upon proper legal standards. Accordingly, it is hereby ORDERED that the decision of
the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk
of Court is directed to enter judgment accordingly, terminate any pending motions and
deadlines, and close the case.
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DONE AND ORDERED in Fort Myers, Florida on August 2, 2019.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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