Johnson v. Commissioner of Social Security

Filing 29

OPINION AND ORDER affirming the Commissioner's decision. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 2/15/2017. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
YOLANDA JOHNSON,
Plaintiff,
v.

CASE NO. 3:15-cv-975-J-MCR

ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for supplemental security income (“SSI”),
alleging disability beginning March 3, 2009. (Tr. 179.) A hearing was held before
the assigned Administrative Law Judge (“ALJ”) on January 23, 2014, at which
Plaintiff was represented by an attorney. (Tr. 30-71.) The ALJ found Plaintiff not
disabled since February 13, 2012, the date the application was filed. (Tr. 11-22.)
In reaching the decision, the ALJ found that Plaintiff had “the following
severe impairments: lymphoma in remission, osteoarthritis, Crohn’s disease,
gastroesophageal reflux disease (GERD), obesity, and an affective mood
disorder.” (Tr. 13.) The ALJ also found that Plaintiff had the residual functional
capacity (“RFC”) to perform a reduced range of light work. (Tr. 15.) After finding

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The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 19, 21.)

that Plaintiff had no past relevant work, the ALJ found that there were jobs
existing in significant numbers in the national economy that Plaintiff could
perform. (Tr. 20-21.)
Plaintiff is appealing the Commissioner’s decision that she was not
disabled since February 13, 2012. Plaintiff has exhausted her available
administrative remedies and the case is properly before the Court. The Court has
reviewed the record, the briefs, and the applicable law. For the reasons stated
herein, the Commissioner’s decision is AFFIRMED.
I.

Standard

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). 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 decision. Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
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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 v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
II.

Discussion

Plaintiff raises three issues on appeal. First, Plaintiff argues that in
determining her RFC, the ALJ failed to weigh and adequately consider the
opinions of her treating physicians, Dr. J. Wynn Sullivan, Dr. Cordero, Dr. Howard
Sullivan, and the practitioners at Family Medical & Dental Center/Azalea Health.
Specifically, with respect to Dr. Wynn Sullivan, Plaintiff argues that the ALJ failed
to weigh his opinions in the questionnaire and the progress notes, including his
notations of Plaintiff’s delayed nausea and fatigue, which were side effects of the
chemotherapy, and continuing night sweats and fatigue, and that the ALJ failed to
include Dr. Sullivan’s opinion that Plaintiff must get up and move around every
hour for 15 minutes in the RFC assessment. Second, Plaintiff argues that the
ALJ improperly relied on the testimony of the Vocational Expert (“VE”) because
his hypothetical question did not adequately reflect all of Plaintiff’s limitations.
Finally, Plaintiff argues that the ALJ erred in finding her “not entirely credible”
when the record “clearly reveals” that she “suffered from documented
impairments causing significant limitations,” and that the ALJ’s alleged failure to
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make accurate and specific findings regarding Plaintiff’s credibility amounted to a
failure to develop a full and fair record. (Doc. 25 at 22.)
The Court does not find any reversible error. First, although Plaintiff
argues that the ALJ did not weigh the opinions of Dr. Wynn Sullivan, it appears
that the ALJ gave Dr. Sullivan’s opinions significant weight. (See Tr. 20
(“Significant weight is given to these opinions, as they are consistent with each
other and are consistent with the other objective medical evidence of record
which establishes that while the claimant has limitations as a result of her
impairments, these limitations are not disabling in nature and do not completely
preclude her from performing all basic work activities.”).)
Plaintiff also argues that the ALJ failed to include in the RFC assessment
Dr. Wynn Sullivan’s opinion that Plaintiff must get up and move around every
hour for 15 minutes, which was included in the Cancer Impairment Questionnaire
he completed on August 16, 2013. (Tr. 808-14.) The ALJ discussed and
considered the opinions included in the questionnaire as follows:
In this questionnaire, Dr. Sullivan opined that the claimant’s cancer
had not persisted, progressed, or recurred following antineoplastic
surgery. Dr. Sullivan further opined that she could sit for 4 hours and
stand/walk for 3 hours in an 8-hour day, could frequently lift and
carry up to 20 pounds and occasionally lift and carry more than 20
pounds, and was capable of tolerating moderate work stress. Her
symptoms would periodically interfere with her attention and
concentration, and she would be absent from work less than once a
month as a result of her impairments or treatment[.]
(Tr. 18 (citing Tr. 808-14).) Dr. Sullivan also opined that Plaintiff must get up and
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move around every hour for 15 minutes. (Tr. 811.) Although it does not appear
that the ALJ discussed this part of Dr. Sullivan’s questionnaire, the ALJ was not
required to refer to every piece of evidence in his decision. Importantly, however,
the ALJ apparently considered this evidence because he noted in the RFC
assessment that Plaintiff must “have the option of performing job duties either
sitting or standing at will.” (Tr. 15.)
Plaintiff further argues that the ALJ failed to weigh the medical records of
Dr. Wynn Sullivan noting Plaintiff’s delayed nausea and fatigue, as side effects of
her chemotherapy, and night sweats,2 as well as the opinions of Dr. Cordero, Dr.
Howard Sullivan, and the practitioners at Family Medical & Dental Center/Azalea
Health.3 However, as Defendant points out, the notes by these doctors are not
“medical opinions” because they do not reflect judgments about the nature and
severity of Plaintiff’s impairments, including her symptoms, diagnoses and
prognosis, what she could still do despite her impairments, and her physical or
mental restrictions. 20 C.F.R. § 416.927(a)(2). As such, the ALJ was not
required to explicitly weigh these opinions. Also, as stated earlier, the ALJ was
2

Of note, there are only minimal references in the record to side effects from
treatment and Plaintiff denied any side effects at the hearing before the ALJ. (Tr. 48,
542, 924.)
3

At Family Medical & Dental Center/Azalea Health, Plaintiff was treated almost
exclusively by a nurse practitioner or a licensed clinical social worker (see Tr. 319-53,
428-32, 475-76, 723-52, 776-86, 834-73), which are not acceptable medical sources,
as noted by the ALJ. (See Tr. 19 (“While the undersigned has considered this opinion
and finds that it is consistent with the other evidence of record, it is noted that this
opinion is not from an acceptable medical source within the regulatory definition . . . .”).)
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not required to refer to every piece of evidence in his decision. In fact, it would
have been nearly impossible to do so here because the record in this case is
close to one thousand pages. Moreover, Plaintiff does not show that these
medical records are somehow inconsistent with the RFC assessment and/or that
they support any additional limitations that have not been included in the RFC.
Plaintiff points to portions of the record, listing various diagnoses and/or
symptoms, such as urge incontinence, ulcerative colitis, reflux esophagitis,
Crohn’s disease, lymphoma in remission, painful/abnormal gait, limited joint
mobility, joint pain, stiffness, abnormal range of motion, swelling associated with
decreased mobility, anxiety, depressive disorder, mild mental retardation,
abnormal involuntary movements, nausea, fatigue, and some night sweats. (Tr.
542, 629, 723, 725, 797-98, 834, 836, 852, 856, 915-16, 919, 924-25.) However,
Plaintiff does not explain how these diagnoses, symptoms, or side effects support
greater restrictions than found by the ALJ. The ALJ considered these symptoms
and diagnoses (see Tr. 15-20), and found that Plaintiff had the RFC to perform
light work with the following limitations:
The claimant can balance, stoop, kneel, crouch, crawl, and climb
ramps and stairs no more than occasionally. The claimant can never
climb ladders, ropes, and scaffolds. The claimant must perform
tasks which are simple, repetitive, and routine in nature. The
claimant must not have a production rate for pace of work, but must
instead perform work which involves meeting goals. The claimant
must have only occasional interaction with co-workers and the
general public. The claimant must be exposed to only occasional
changes in the work setting. The claimant must also have the option
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of performing job duties either sitting or standing at will.4
(Tr. 15.)
The ALJ explained:
Upon review of the medical evidence set forth above, the
undersigned finds that such evidence does not establish that the
claimant’s impairments are disabling in nature or prevent her from
performing work in accordance with the [RFC] assessment set forth
above. Medical records establish that her lymphoma has resolved
and her wound has closed. Occasional groin pain is the only
residual suggested by the evidence, and this is not indicated as
being significant in nature. While the evidence establishes a history
of Crohn’s disease and GERD which are productive of occasional
abdominal pain, these impairments are not shown to produce
limitations with a level of intensity and frequency that precludes the
claimant from performing all basic work activities. Likewise, while
she has been seen for depression, the evidence does not establish
that her symptoms are work-preclusive in nature, and her GAF
scores have been suggestive of only moderate or mild impairment.
Further, the evidence indicates that she does not take any
medications for psychological issues.
(Tr. 19; see also Tr. 20 (“A limitation regarding only occasional interaction with
co-workers and the general public has been included to address the claimant’s
alleged incontinence issues.”).)
The ALJ properly considered the evidence of record and his conclusions
are supported by substantial evidence. To the extent Plaintiff argues otherwise,
the RFC assessment did not need to mirror or match the findings or opinions of

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When asked which of the representative occupations would allow for a sit/stand
option at will, the VE testified that all of the representative occupations (addresser, table
worker, marker II, egg candler, and route clerk) would allow for a sit/stand option. (Tr.
68.) The VE also testified that the positions of addresser, table worker, marker II, and
call-out operator would allow for the use of a cane for ambulation. (Id.)
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any particular medical source because the responsibility for assessing the RFC
rests with the ALJ. Kopke v. Astrue, 2012 WL 4903470, *5 (M.D. Fla. Sept. 26,
2012) (report and recommendation adopted by 2012 WL 4867423 (M.D. Fla. Oct.
15, 2012)).
Turning to Plaintiff’s credibility argument, the Court finds that the ALJ
provided explicit and adequate reasons for finding Plaintiff’s credibility regarding
the limitations allegedly imposed by her impairments “not fully supported by the
evidence of record.” (Tr. 19.) The ALJ explained:
It is noted that [Plaintiff] worked only sporadically with minimal
earnings prior to the alleged disability onset date, which is a factor in
evaluating the credibility of her allegations that her current
unemployment is due solely to her medical impairments. The
evidence of record also demonstrates that she has the ability to
perform some activities of daily living, as set forth above,5 which are
consistent with an ability to perform competitive work. The
undersigned further notes that a prior unfavorable decision was
issued on March 2, 2009. This decision was not appealed, and the
evidence does not support a finding that she became disabled the
next day as alleged in her current application. While these factors
are not dispositive, they are considerations in evaluating the
credibility of the claimant’s allegation that her impairments preclude
her from currently maintaining employment.

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With respect to Plaintiff’s daily activities, the ALJ stated:
At the hearing, [Plaintiff] testified that she is able to do some cooking and
she can shop for groceries if she uses a motorized cart. She is also able
to do her own laundry, and she reads and does word searches and is able
to use her phone to play games and research houses and cars. At her
September 2012 consultative psychological examination, she reported
needing assistance with dressing and bathing. She was able to do dishes
and some laundry, and she could use a microwave oven. She used a
motorized cart when shopping . . . .
(Tr. 14.)
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(Id.)
As shown above, the ALJ provided explicit and adequate reasons for his
credibility determination. Moreover, these reasons are supported by substantial
evidence. (See, e.g., Tr. 37-38, 52-54, 192.) Plaintiff does not even
acknowledge the reasons provided by the ALJ for his credibility finding; as such,
she does not argue that these reasons are not supported by substantial evidence.
Because “credibility determinations are the province of the ALJ,” Moore v.
Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005), “[a] clearly articulated credibility
finding with substantial supporting evidence in the record will not be disturbed by
a reviewing court,” Foote, 67 F.3d at 1562.
Because the Court finds that the ALJ’s credibility determination and RFC
assessment are supported by substantial evidence, Plaintiff’s argument that the
ALJ improperly relied on the testimony of the VE because his hypothetical
question allegedly failed to adequately reflect all of Plaintiff’s limitations, also fails.
The ALJ was not required to include in the hypothetical question any limitations or
opinions that he properly rejected. See Crawford, 363 F.3d at 1161 (stating that
the ALJ is not required to include findings in the hypothetical question that the
ALJ has properly rejected as unsupported by the record). Based on the
foregoing, the Commissioner’s decision is due to be affirmed.
III.

Conclusion

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The Court does not make independent factual determinations, re-weigh the
evidence, or substitute its decision for that of the ALJ. Thus, the question is not
whether the Court would have arrived at the same decision on de novo review;
rather, the Court’s review is limited to determining whether the ALJ’s findings are
based on correct legal standards and supported by substantial evidence. Based
on this standard of review, the Court concludes that the ALJ’s decision that
Plaintiff was not disabled within the meaning of the Social Security Act for the
time period in question is due to be affirmed.
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment consistent with this

Order and close the file.
DONE AND ORDERED at Jacksonville, Florida, on February 15, 2017.

Copies to:
Counsel of Record

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