Wilson v. Commissioner of Social Security

Filing 22

OPINION AND ORDER affirming the Commissioner's final decision and directing the Clerk to close the file. Signed by Magistrate Judge James R. Klindt on 9/18/2015. (CLR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JEFFERY SCOTT WILSON,
Plaintiff,
Case No. 3:14-cv-840-J-JRK
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
_____________________________________/
OPINION AND ORDER1
I. Status
Jeffery Scott Wilson (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying his claim for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). Plaintiff’s alleged inability to work is the result of
hepatitis C, glaucoma in his right eye, diabetes, high blood pressure, high anal hernia, and
irritable bowel syndrome. See Transcript of Administrative Proceedings (Doc. No. 12; “Tr.”
or “administrative transcript”), filed October 2, 2014, at 176. On November 15, 2010, Plaintiff
protectively filed an application for DIB, and on November 17, 2010, he protectively filed an
application for SSI. Tr. at 12, 76-79, 152-53.2 The initially alleged onset date of September

1

The parties consented to the exercise of jurisdic tion by a United States Magistrate
Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 11), filed
October 2, 2014; Reference Order (Doc. No. 13), entered October 3, 2014.
2
The administrative transcript does not include Plaintiff’s application for SSI, and the
Application Summary for Disability Insurance Benefits included in the transcript states that Plaintiff
applied for DIB on November 18, 2010. Tr. at 152. Other documents, however, such as the Decision
of the Administrative Law Judge and the Disability Determination and Transmittal forms, indicate that
(continued...)

27, 2007 was later amended to January 1, 2010. Tr. at 33, 152-53.3 Plaintiff’s applications
were denied initially, Tr. at 76, 91-95 (DIB); 77, 96-101 (SSI), and were denied upon
reconsideration, Tr. at 78, 106-10 (DIB), 79, 111-15 (SSI).
On November 27, 2012, an Administrative Law Judge (“ALJ”) held a hearing at which
the ALJ heard testimony from Plaintiff, who was represented by a non-attorney,4 and a
vocational expert (“VE”). Tr. at 31-54. At the time of the hearing, Plaintiff was forty-seven
(47) years old. Tr. at 35. On January 24, 2013, the ALJ issued a Decision finding Plaintiff
not disabled since January 1, 2010. Tr. at 12-25. Plaintiff then requested review by the
Appeals Council, Tr. at 7, and he submitted evidence to the Council in the form of a brief
from his representative, see Tr. at 5; see also Tr. at 249-51 (representative’s brief). On May
30, 2014, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
Decision the final decision of the Commissioner. Tr. at 1-3. On July 21, 2014, Plaintiff
commenced this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) by timely filing
a Complaint (Doc. No. 1), seeking judicial review of the Commissioner’s final decision.
Plaintiff raises three issues on appeal: (1) whether the ALJ “failed to articulate good
cause for not crediting the opinions of the treating cardiologist’s ([Sumant Lamba, M.D.])
opinion and the treating psychiatrist’s ([Alberto de la Torre, M.D. ]) opinion”; (2) whether the
2

(...continued)
Plaintiff filed a DIB application on November 15, 2010, and an application for SSI on November 17, 2010.
Tr. at 12, 76-79.
3

Plaintiff previously had been granted an application for SSI filed on September 24, 2008,
based on which he was determined to be disabled between October 5, 2007, and December 1, 2009,
when his disability was determined to have ended. See Tr. at 66-75 (Administrative Law Judge Decision
dated August 26, 2010).
4

The hearing transcript does not indicate that Plaintiff’s representative, Karen Hardcastle,
was a non-attorney, but in a letter she identified herself as a paralegal. Tr. at 8 (copy of letter).
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ALJ “erred in finding that Plaintiff’s hepatitis C and gastrointestinal conditions were stable
throughout the relevant time period”; and (3) whether the ALJ’s “credibility finding is flawed
because the [ALJ] failed to realize that [Plaintiff] was legally disabled . . . during the period
when the [ALJ] faulted [Plaintiff] for not working.” Plaintiff’s Brief (Doc. No. 18; “Pl.’s Br.”),
filed December 24, 2014, at 1, 13-25. Defendant filed a Memorandum in Support of the
Commissioner’s Decision (Doc. No. 21; “Def.’s Mem.”) on April 6, 2015. After a thorough
review of the entire record and the parties’ respective memoranda, the undersigned finds
that the Commissioner’s final decision is due to be affirmed for the reasons stated herein.
II. The ALJ’s Decision
When determining whether an individual is disabled,5 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
past relevant work; and (5) retains the ability to perform any work in the national economy.
20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004). The claimant bears the burden of persuasion through step four, and at step five,
the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

5

“Disability” is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

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Here, the ALJ followed the five-step sequential inquiry. See Tr. at 14-24. At step
one, the ALJ determined that Plaintiff “ha[d] not engaged in substantial gainful activity since
January 1, 2010, the amended alleged onset date.” Tr. at 14 (emphasis and citation
omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments:
status post heart stents, ischemia, hepatitis C, obesity, irritable bowel syndrome, sleep
apnea, shortness of breath, angina, and affective disorder.” Tr. at 14 (emphasis and citation
omitted). At step three, the ALJ ascertained that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
impairments listed in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. at 14 (emphasis and
citation omitted).
The ALJ determined that Plaintiff has the following residual functional capacity
(“RFC”):
[Plaintiff can] perform sedentary work . . . . He needs the option to sit or stand
within his assigned workstation. He must avoid ladders and unprotected
heights. He must avoid the operation of heavy, moving machinery. He must
avoid concentrated[] dust, fumes and gases. He needs a low stress position
with no production lines. He needs simple tasks. He is able to occasionally
bend, crouch, kneel, stoop, squat and crawl. He must avoid push and pull arm
controls. He needs a monocane for ambulation.
Tr. at 16 (emphasis and citation omitted). At step four, the ALJ found that Plaintiff “is unable
to perform any past relevant work” as a “[b]alancer,” “[t]ruck [d]river,” or “[q]uality [c]ontrol”
inspector. Tr. at 23 (emphasis omitted). At step five, the ALJ considered Plaintiff’s age
(forty-four (44) years old on the alleged disability onset date), education (“at least a high
school education”), work experience, and RFC, and determined that “there are jobs that exist
in significant numbers in the national economy that [Plaintiff] can perform.” Tr. at 23

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(emphasis and citation omitted). Relying on the testimony of the VE, the ALJ identified as
representative jobs an “order clerk,” a “surveillance system monitor,” and a “document
preparer.” Tr. at 24 (capitalization omitted). The ALJ concluded that Plaintiff “has not been
under a disability . . . from January 1, 2010, through the date of th[e] [D]ecision.” Tr. at 24
(emphasis and citation omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence.’” Doughty
v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322
(11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but less
than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting
Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard
is met when there is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire
record is reviewed to determine whether “the decision reached is reasonable and supported
by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)
(citation omitted); see also McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988);
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision reached by the
Commissioner must be affirmed if it is supported by substantial evidence–even if the

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evidence preponderates against the Commissioner’s findings. Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
IV. Discussion
As indicated above, Plaintiff raises three issues before this Court. The first concerns
the ALJ’s analysis of two different medical opinions; the second concerns the ALJ’s analysis
of Plaintiff’s hepatitis C and gastrointestinal conditions; and the third concerns the ALJ’s
credibility finding. Pl.’s Br. at 1, 13-25. These issues are addressed in turn below.
A. Medical Opinions
Plaintiff argues that the ALJ “failed to articulate good cause for not crediting” two
medical opinions, those of Drs. Lamda and de la Torre. Pl.’s Br. at 1, 13-20. The
undersigned first summarizes the applicable law with respect to medical opinions and then
addresses the ALJ’s analysis of each of the medical opinions at issue.
1. Applicable Law
The Regulations establish a “hierarchy” among medical opinions6 that provides a
framework for determining the weight afforded each medical opinion: “[g]enerally, the
opinions of examining physicians are given more weight than those of non-examining
physicians[;] treating physicians[’ opinions] are given more weight than [non-treating
physicians;] and the opinions of specialists are given more weight on issues within the area
of expertise than those of non-specialists.” McNamee v. Soc. Sec. Admin., 164 F. App’x

6

“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [a claimant’s] impairment(s ),
including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2); see also
20 C.F.R. § 404.1513(a) (defining “[a]cceptable medical sources”).
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919, 923 (11th Cir. 2006) (citing 20 C.F.R. § 404.1527(d)(1), (2), (5)). The following factors
are relevant in determining the weight to be given to a physician’s opinion: (1) the “[l]ength
of the treatment relationship and the frequency of examination”; (2) the “[n]ature and extent
of [any] treatment relationship”; (3) “[s]upportability”; (4) “[c]onsistency” with other medical
evidence in the record; and (5) “[s]pecialization.”

20 C.F.R. §§ 404.1527(d)(2)-(5),

416.927(d)(2)-(5); see also 20 C.F.R. §§ 404.1527(e), 416.927(f).
With regard to a treating physician or psychiatrist,7 the Regulations instruct ALJs how
to properly weigh such a medical opinion. See 20 C.F.R. § 404.1527(c). Because treating
physicians or psychiatrists “are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of [a claimant’s] medical impairment(s),” a treating physician’s
or psychiatrist’s medical opinion is to be afforded controlling weight if it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence” in the record. Id. When a treating physician’s or
psychiatrist’s medical opinion is not due controlling weight, the ALJ must determine the
appropriate weight it should be given by considering the factors identified above (the length
of treatment, the frequency of examination, the nature and extent of the treatment
relationship, as well as the supportability of the opinion, its consistency with the other
evidence, and the specialization of the physician). Id.

7

A treating physician or psychiatrist is a physician or psychiatrist who provides medical
treatment or evaluation to the claimant and who has, or has had, an ongoing treatment relationship with
the claimant, as established by medical evidence showing that the claimant sees or has seen the
physician with a frequency consistent with accepted medical practice for the type of treatment and/or
evaluation required for the medical condition. See 20 C.F.R. § 404.1502.
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If an ALJ concludes the medical opinion of a treating physician or psychiatrist should
be given less than substantial or considerable weight, he or she must clearly articulate
reasons showing “good cause” for discounting it. Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997). Good cause exists when (1) the opinion is not bolstered by the evidence;
(2) the evidence supports a contrary finding; or (3) the opinion is conclusory or inconsistent
with the treating physician’s or psychiatrist’s own medical records. Phillips, 357 F.3d at
1240-41; see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991); Schnorr v.
Bowen, 816 F.2d 578, 582 (11th Cir. 1987) (stating that a treating physician’s medical
opinion may be discounted when it is not accompanied by objective medical evidence). An
examining physician’s opinion, on the other hand, is not entitled to deference. See McSwain
v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per curiam) (citing Gibson v. Heckler, 779
F.2d 619, 623 (11th Cir. 1986)); see also Crawford, 363 F.3d at 1160 (citation omitted).
An ALJ is required to consider every medical opinion. See 20 C.F.R. §§ 404.1527(d),
416.927(d) (stating that “[r]egardless of its source, we will evaluate every medical opinion we
receive”). While “the ALJ is free to reject the opinion of any physician when the evidence
supports a contrary conclusion,” Oldham, 660 F.2d at 1084 (citation omitted); see also 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2), “the ALJ must state with particularity the weight
given to different medical opinions and the reasons therefor,” Winschel v. Comm’r of Soc.
Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279
(11th Cir.1987)); see also Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005); Lewis,
125 F.3d at 1440. “In the absence of such a statement, it is impossible for a reviewing court
to determine whether the ultimate decision on the merits of the claim is rational and

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supported by substantial evidence.”

Winschel, 631 F.3d at 1179 (quoting Cowart v.

Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
2. Dr. Lamba
Plaintiff contends that the ALJ “failed to articulate good cause for not crediting” the
opinion of treating cardiologist Dr. Lamba. Pl.’s Br. at 1, 13-18. Dr. Lamba treated Plaintiff
on a number of occasions between March 2011 and August 2012. Tr. at 439-40, 467-75,
480-83, 488-91, 496-501, 538-43, 545-55; see Tr. at 530 (phone message for Dr. Lamba
dated August 2, 2012). As a treating physician, Dr. Lamba’s opinions were entitled to
controlling weight unless the ALJ articulated reasons showing good cause for discounting
them. See Lewis, 125 F.3d at 1440. The undersigned notes that the ALJ gave controlling
weight to one opinion of Dr. Lamba, dated February 27, 2012, that Plaintiff “reported feeling
well, and Dr. Lamba said [Plaintiff] was asymptomatic.” Tr. at 21, 22. Two Dr. Lamba
opinions, brief questionnaires dated July 11, 2011,8 and November 14, 2011, are explicitly
given less than controlling weight. See Tr. at 21; see also Tr. at 428-30 (July 2011 opinion);
Tr. at 502-04 (November 2011 opinion). Plaintiff focuses on these two opinions in his
argument. Pl.’s Br. at 17-18.
The July 2011 questionnaire states that Plaintiff was “[u]nable to walk long distances
without rest” due to “severe [shortness of breath] [and] fatigue.” Tr. at 429. The November

8

The undersigned agrees with Defendant that the signature on this form, although
unclear, does not appear to be that of Dr. Lamba. See Def.’s Mem. at 5; Tr. at 430. However, despite
Defendant’s assertion that “it cannot be assumed to be the opinion of a treating physician,” Def.’s Mem.
at 5, the ALJ refers to the opinion’s author as “the claimant’s cardiologist,” Tr. at 21, which suggests to
the undersigned that the ALJ found the opinion to be that of a treating physician, even if it might not be
Dr. Lamba. Because the author’s particular identity is irrelevant to the matter at issue, the undersigned
refers to the author of the treating cardiologist’s opinion as Dr. Lamba.
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2011 questionnaire states that Plaintiff “suffers from significant shortness of breath [and]
fatigue on exertion,” as well as “intermittent chest pains.” Tr. at 503. The ALJ gave “some
weight” to both of these opinions because they were consistent with or did not contradict
Plaintiff’s treatment records. Tr. at 21. Immediately following this, the ALJ stated as follows:
“However, controlling weight is accorded to Dr. Lamba’s February 2012 treatment note in
which [Plaintiff] reported feeling well, and Dr. Lamba said [Plaintiff] was asymptomatic.” Tr.
at 21; see Tr. at 540, 542. The ALJ otherwise did not articulate reasons for giving less than
controlling weight to the treating physician opinions of July and November 2011.
The undersigned finds, however, that the ALJ’s RFC assessment is consistent with
these opinions.

The medical opinions indicate that, on exertion, Plaintiff experienced

shortness of breath, fatigue, and intermittent chest pains, and that he could not “walk long
distances without rest.” Tr. at 429, 503. The physical limitations suggested by these
opinions are accounted for in the ALJ’s finding that Plaintiff has the RFC to perform
“sedentary work,” Tr. at 16, which is work that generally involves sitting, very light lifting and
carrying, and when necessary, “occasional[]”

walking and standing, 20 C.F.R. §

404.1567(a), and thus does not require Plaintiff to exert himself or “walk long distances
without rest,” Tr. at 429. The ALJ also indicated that Plaintiff “needs the option to sit or stand
within his assigned workstation.” Tr. at 16. Nothing in Dr. Lamba’s opinions is inconsistent
with this ultimate finding. Any error in the ALJ’s failure to articulate with greater specificity
why he supposedly did not give certain opinions controlling weight is therefore harmless.
3. Dr. de la Torre

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Plaintiff contends that the ALJ “failed to articulate good cause for not crediting” the
opinion of treating psychiatrist Dr. de la Torre. Pl.’s Br. at 1, 13, 18-20. Dr. de la Torre
treated Plaintiff as far back as 2008, including several occasions during the relevant period.
See Tr. at 388-413, 514-27. As a treating psychiatrist, Dr. de la Torre’s opinions were
entitled to controlling weight unless the ALJ articulated reasons showing good cause for
discounting them. See Lewis, 125 F.3d at 1440.
In discounting Dr. de la Torre’s opinion, the ALJ focused on a Psychiatric Evaluation
Form for Affective Disorder that Dr. de la Torre completed on January 23, 2012. Tr. at 20;
see Tr. at 514-20. Of particular note, Dr. de la Torre opined on this evaluation form that
Plaintiff had a “[m]edically documented history of a chronic affective disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to do basic work
activities,” as well as a “[c]urrent history of 1 or more years’ inability to function outside a
highly supportive living arrangement, with an indication of continued need for such an
arrangement.” Tr. at 515, 519. Dr. de la Torre also noted that Plaintiff suffers from various
symptoms, including anhedonia, sleep disturbance, decreased energy, difficulty “[g]etting
along with” family and friends, and impairments in concentration, decision making, and task
completion. Tr. at 514-18. Dr. de la Torre diagnosed Plaintiff with “[b]ipolar disorder,
depressed type,” and “adjustment disorder with anxiety and dysphoria.” Tr. at 515.
The ALJ gave “little weight” to this opinion for the following stated reasons:
First the opinion is internally inconsistent in that Dr. de la Torre said [Plaintiff]
was unable to function outside of a highly structured environment then Dr. de
la Torre said [Plaintiff] did not require a highly structured and supportive
environment within his home. These statements are diametrically opposed,
and Dr. de la Torre failed to explain the contradiction. The opinion is also

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inconsistent with the treatment records, which show that [Plaintiff]’s symptoms
are only moderate and well controlled.
Tr. at 20 (emphasis added); see Tr. at 514-520. Plaintiff takes issue with the ALJ’s two
stated reasons for discounting this opinion of Dr. de la Torre. Pl.’s Br. at 19-20.
As to the first reason, Plaintiff does not contest that Dr. de la Torre’s opinion contains
an inconsistency.9 See Pl.’s Br. at 19-20. Plaintiff contends, however, that what the ALJ
called an “internal[] inconsisten[cy]” is actually a mere “typographical error.” Pl.’s Br. at 19.
This contention is unavailing. The whole evaluation form consists of standardized questions,
which primarily required Dr. de la Torre to convey his medical opinion by responding simply
with a handwritten circle, check mark, or “yes” or “no.” Tr. at 514-20. To the extent the
opinion contains errors, typographical or otherwise, it gave the ALJ no clear means of
distinguishing errors from non-errors. A clear internal inconsistency within the opinion,
therefore, provided the ALJ with good cause to discount the opinion.
Plaintiff also disputes the ALJ’s finding that the opinion is “inconsistent with the
treatment records, which show that [Plaintiff's] symptoms are only moderate and well
controlled.” Tr. at 20; Pl.’s Br. at 19-20. The undersigned finds, however, that the treatment
records sufficiently support the ALJ. The ALJ noted in particular Dr. de la Torre’s record of
an April 2012 appointment that the ALJ discussed as follows:
[T]here was no evidence of depression, dysphoria or anxiety. [Plaintiff] said
he was sleeping well. Xanax was discontinued, and Dr. de la Torre noted that
[Plaintiff]’s bipolar disorder had improved. [Plaintiff]’s GAF scores were usually
in the mid 50's, which indicates that his symptoms were only moderate.
9
The “internal inconsistency” exists between one statement indicating Plaintiff has a
“[c]urrent history of 1 or more years' inability to function outside a highly supportive living arrangement,
with an indication of continued need for such an arrangement,” Tr. at 515, and a statement that Plaintiff
does not “require a highly structured and supportive setting within his . . . home,” Tr. at 519.

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[Plaintiff] seemed asymptomatic at his April 2012 appointment, which supports
the finding that his mental impairments are not work preclusive.
Tr. at 22; see Tr. at 523.
Other treatment records from Dr. de la Torre similarly support the ALJ’s finding. In
February and May 2011, Dr. de la Torre observed that Plaintiff’s emotional discomfort
appeared “moderate,” Tr. at 388,10 389, and on many visits from 2010 to 2012, there were
no signs of depression or dysphoria, Tr. at 391-92, 522-23, 526. Although earlier reports
indicate that Plaintiff had trouble sleeping, Tr. at 388-89, 391, later reports from January and
April 2012 indicate that medication appeared to resolve the problem, Tr. at 523-24. A few
reports between 2010 and 2012 state that Plaintiff was irritable, dysphoric, or anxious, but
Dr. de la Torre related these moods to difficulties Plaintiff was having with his daughter or
his Social Security application process. Tr. at 390, 524-25. All of Dr. de la Torre’s reports
from these years indicate that Plaintiff’s cognitive functioning appeared intact. Tr. at 388-93,
522-27.
The ALJ’s finding of moderate, well controlled symptoms is further supported by other
evidence in the administrative transcript. For example, in contrast to Dr. de la Torre’s
January 2012 opinion that Plaintiff has extreme difficulty concentrating and completing tasks,
Tr. at 518, examining psychologist Allison Keiter, Psy. D., opined in March 2011 that Plaintiff
is “able to follow and understand simple directions and instructions,” “to perform simple and
more complex tasks independently,” and “to maintain attention and concentration and a
regular schedule,” Tr. at 364. Dr. Keiter noted that Plaintiff is able independently to handle

10

The administrative transcript includes a duplicate of this treatment record from May 4,
2011. See Tr. at 388, 527.
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various tasks, such as bathing, dressing, cooking, cleaning, shopping, driving, and managing
money. Tr. at 363.11
The ALJ’s finding that Plaintiff’s symptoms are moderate and well controlled is
supported by substantial evidence. To the extent the ALJ found Dr. de la Torre’s opinion to
be internally inconsistent and inconsistent with other records, the ALJ articulated good cause
to discount it.
B. Plaintiff’s Hepatitis C and Gastrointestinal Conditions
Plaintiff argues that the ALJ “erred in finding that [Plaintiff’s] hepatitis C and
gastrointestinal conditions were stable throughout the relevant time period,” and that the ALJ
“failed to meaningfully analyze the severity” of these conditions. Pl.’s Br. at 1, 20-22. More
specifically, Plaintiff argues that the ALJ failed “to meaningfully evaluate the impact of
[Plaintiff’s] severe fatigue[12] and gastrointestinal pain on his ability to perform full-time
sustained employment.” Pl.’s Br. at 22.
Throughout the Decision, the ALJ addressed Plaintiff’s hepatitis C, gastrointestinal
issues, and related symptoms, including (as Plaintiff suggests, Pl.’s Br. at 22) fatigue,
depression, abdominal discomfort, and difficulty with concentration. The ALJ addressed, for
instance, the medical documentation of these conditions, such as the August 2012

11

Dr. de la Torre also had indicated no “marked or extreme difficulties” in Plaintiff's ability
to handle these daily living activities, Tr. at 517 (emphasis omitted), despite indicating that Plaintiff is
unable "to function outside a highly supportive living arrangement," Tr. at 515.
12

Plaintiff suggests that Plaintiff’s fatigue is a symptom of his hepatitis C condition. See
Pl.’s Br. at 22. Plaintiff also asserts that symptoms of hepatitis C include "depression, nausea, anorexia,
abdominal discomfort, and difficulty with concentration." Id. It is not clear that Plaintiff actually
experiences all of these listed symptoms, and Plaintiff only points out in the transcript evidence of fatigue
and abdominal discomfort. Id. at 21-22.
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assessment of Plaintiff’s treating gastroenterologist, Ana Corregidor, M.D., indicating irritable
colon, hepatitis C, gastroesophageal reflux disease, and a gallbladder polyp, and indicating
that Plaintiff was scheduled for a follow-up appointment in six months. Tr. at 18; see also
Tr. at 620 (Dr. Corregidor’s report). The ALJ noted Plaintiff’s hearing testimony that hepatitis
C cost him his last job and that his irritable bowel syndrome sometimes caused toileting
accidents when away from home. Tr. at 17; see also Tr. at 38, 43-44 (hearing testimony).
In addition, the ALJ found that Plaintiff’s “main complaints were shortness of breath and
fatigue,” Tr. at 21, and that Plaintiff “has moderate difficulties in concentration, persistence,
and pace,” Tr. at 19, and the ALJ addressed treatment reports related to depression, Tr. at
18, 20, 22.
Although the ALJ recognized Plaintiff’s conditions and related symptoms, the ALJ also
recognized that Plaintiff regularly performed various activities, such as shopping, cooking,
cleaning, and driving a car or motorcycle, that are “consistent with the ability to do sedentary
work.” Tr. at 20-22. The ALJ concluded, therefore, that “[t]he medical evidence of record
supports a finding that [Plaintiff] is able to perform a reduced range of sedentary work,” Tr.
at 22, and the ALJ specifically stated that Plaintiff’s “history of treatment for . . . hepatitis C”
is consistent with this finding, Tr. at 21.
This finding is generally supported by Plaintiff’s treatment records. See Tr. at 618-52.
In May 2011, Dr. Corregidor observed “no associated symptoms” of hepatitis C, Tr. at 626,
and a radiology analysis from September 2011 indicates “no significant abnormalities” in the
gastrointestinal tract, Tr. at 650. Although a radiology analysis in May 2011 reports a
“[p]rogression of increased hepatic echogenicity,” Tr. 652, later reports in September 2011

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and July 2012 consistently note only “[m]oderate hapatic steatosis,” Tr. at 648-50. In August
2012, Dr. Corregidor stated that a colonoscopy had revealed “some irritation.” Tr. at 618.
Also noted around this time was a “[g]allbladder polyp, essentially unchanged.” Tr. 648.
Plaintiff was scheduled for a follow-up appointment six months after his August 2012
assessment, Tr. at 620, that the ALJ acknowledged in concluding that Plaintiff’s
“gastrointestinal issues are stable.” Tr. at 22.
Overall, these records offer no indication that Plaintiff’s conditions are so serious as
to preclude employment. Therefore, notwithstanding Plaintiff’s contention that his medical
conditions are “not stable,” Pl.’s Br. at 22, the undersigned finds that the ALJ’s conclusion
that Plaintiff is capable of performing “a reduced range of sedentary work” in spite of his
hepatitis C and gastrointestinal conditions, Tr. at 22, is supported by substantial evidence.
C. Credibility Finding
Plaintiff argues the ALJ’s “credibility finding is flawed because the [ALJ] failed to
realize that [Plaintiff] was legally disabled . . . during the period when the [ALJ] faulted
[Plaintiff] for not working.” Pl.’s Br. at 1, 22-25. The undersigned finds, however, that the
ALJ’s credibility finding is supported by substantial evidence.
To establish a disability based on testimony of pain or other subjective symptoms, a
claimant must satisfy two parts of a three-part test showing: (1) evidence of any underlying
medical condition; and (2) either (a) objective medical evidence confirming the severity of the
alleged subjective symptoms; or (b) that the objectively determined medical condition can
reasonably be expected to give rise to the claimed subjective symptoms. Wilson v. Barnhart,
284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.

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1991) (stating that “the standard also applies to complaints of subjective symptoms other
than pain”)). “The claimant’s subjective testimony supported by medical evidence that
satisfies the standard is itself sufficient to support a finding of disability.” Holt, 921 F.2d at
1223.
“[C]redibility determinations are the province of the ALJ.” Moore v. Barnhart, 405 F.3d
1208, 1212 (11th Cir. 2005). The ALJ “must articulate explicit and adequate reasons” for
finding a claimant “not credible.” Wilson, 284 F.3d at 1225. “When evaluating a claimant’s
subjective symptoms, the ALJ must consider things such as (1) the claimant’s daily activities;
(2) the nature, location, onset, duration, frequency, radiation, and intensity of pain and other
symptoms; (3) precipitating and aggravating factors; (4) adverse side effects of medications;
and (5) treatment or measures taken by the claimant for relief of symptoms.” Davis v.
Astrue, 287 F. App’x 748, 760 (11th Cir. 2008) (unpublished) (citing 20 C.F.R.
§ 404.1529(c)(3)(i)-(vi)). After considering the claimant’s subjective complaints, “the ALJ
may reject them as not credible, and that determination will be reviewed for substantial
evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing Wilson v. Heckler,
734 F.2d 513, 517 (11th Cir. 1984)).
Here, the ALJ found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms,” but the ALJ found that
Plaintiff’s “statements concerning the intensity, persistence and limiting effects of [his]
symptoms are not entirely credible.” Tr. at 17. In arguing that the ALJ’s credibility finding is
flawed, Plaintiff refers to the ALJ’s comment that Plaintiff “has no reported earnings for 2008
and 2009” and “did not explain his inconsistent earnings history.” Tr. at 22. Plaintiff correctly
observes that this was an error. In remarking on this gap in Plaintiff’s earnings history, the
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ALJ overlooked that the Administration previously had determined Plaintiff to be disabled
between October 5, 2007 and December 1, 2009, based on an earlier application for
benefits, see Tr. at 66-75 (ALJ Decision dated August 26, 2010), a fact that had been
addressed at Plaintiff’s hearing in this case, see Tr. at 33-35.
Notwithstanding this error, the ALJ’s credibility determination is supported by a
number of reasons other than Plaintiff’s earnings history. The ALJ found, for instance, that
Plaintiff’s statements were contradictory, in that Plaintiff said he “could not be around
people,” but elsewhere he said that he regularly attended church and visited family and
friends. Tr. at 22; see Tr. at 43 (Plaintiff’s hearing testimony that he is distractible around
people); Tr. at 517 (Dr. de la Torre’s report that Plaintiff has extreme difficulty “[g]etting along
with” family and friends); Tr. at 41 (Plaintiff’s hearing testimony about attending church and
visiting family and friends). The ALJ also found that Plaintiff exaggerated his symptoms. Tr.
at 22. On one occasion, Plaintiff told his physician, Mary Yoder, M.D., “that his pain was
10/10, but Dr. Yoder wrote that [Plaintiff] appeared normal.” Tr. at 22; see Tr. at 559. On
another occasion, Plaintiff “said his hip and leg pain was 8/10,” while his physician, Lynn
Harper-Nimock, M.D., “reported that [Plaintiff] was in no acute distress and had a normal
gait.” Tr. at 22; see Tr. at 334-35. Given these specific points addressed by the ALJ, the
undersigned finds that despite the ALJ’s error regarding Plaintiff’s earnings history, the ALJ’s
credibility finding is supported by substantial evidence.
V. Conclusion

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Based on a thorough review of the administrative transcript, and upon consideration
of the respective arguments of the parties, the Court finds that the ALJ’s Decision is
supported by substantial evidence.
In accordance with the foregoing, it is hereby ORDERED:
1.

The Clerk of Court is directed to enter judgment pursuant to sentence four of

42 U.S.C. § 405(g), and pursuant to § 1383(c)(3), AFFIRMING the Commissioner’s final
decision.
2.

The Clerk is directed to close the file.

DONE AND ORDERED at Jacksonville, Florida on September 18, 2015.

clr
Copies to:
Counsel of record

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