Gladden v. Commissioner of Social Security

Filing 21

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 2/22/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DAWNE GLADDEN,
Plaintiff,
v.

Case No: 3:15-cv-1367-J-DNF

CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Dawne Gladden, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying her claim for a period of disability and
Disability Insurance Benefits (“DIB”). The Commissioner filed the Transcript of the proceedings
(hereinafter referred to as “Tr.” followed by the appropriate page number), the parties legal
memoranda setting forth their respective positions, and Plaintiff filed a reply to Defendant’s
memorandum. For the reasons set out 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, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act Eligibility
The law defines disability as the inability to do 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 twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The

impairment must be severe, making the claimant unable to do her previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that she is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit her physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, she will be found not disabled. Id.

In

determining whether the Commissioner has met this burden, the ALJ must develop a full and fair
record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d

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1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination.
The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the
use of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Only after the Commissioner meets this burden does the burden shift back to the claimant to show
that she is not capable of performing the “other work” as set forth by the Commissioner. Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for a period of disability and DIB on June 21, 2011, alleging
disability beginning as of June 1, 2010. (Tr. 166-67). Plaintiff’s claim was denied initially on
June 11, 2012, and upon reconsideration on September 13, 2012. (Tr. 95-99, 104-08). Plaintiff
requested a hearing and on December 18, 2013, an administrative hearing was held before
Administrative Law Judge (“ALJ”) Kelley Fitzgerald. (Tr. 31-65). On March 28, 2014, the ALJ
entered an unfavorable decision finding that Plaintiff was not disabled. (Tr. 12-30).

Plaintiff

appealed the ALJ’s decision and, on October 9, 2015, the Appeals Council denied Plaintiff’s
request for review. (Tr. 1-7). Plaintiff initiated the instant suit by Complaint (Doc. 1) filed on
November 16, 2015.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since June 1, 2010, the alleged onset date. (Tr. 17). At step two, the
ALJ found that Plaintiff had the following severe impairments: disorders of the spine and
fibromyalgia. (Tr. 17). At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 19).

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Before proceeding to step four, the ALJ found that, through the date last insured, Plaintiff
had the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) with limitations.
The claimant is limited to no more than frequent stooping, kneeling,
crouching, crawling, and climbing ramps/stairs; no more than occasional
climbing of ropes, ladders or scaffolds; and she must avoid concentrated
exposure to extreme heat, cold, wetness, vibrations, or work hazards (e.g.,
dangerous machinery, unprotected heights, etc.).
(Tr. 19). At step four, the ALJ found that Plaintiff was capable of performing her past relevant
work as a paralegal or legal secretary. (Tr. 25). The ALJ concluded that Plaintiff was not under a
disability from June 1, 2010, through the date of the decision, March 28, 2014. (Tr. 25).
II.

Analysis
Plaintiff raises four issues on appeal: (1) whether the ALJ erred by failing to find that

Plaintiff’s mental impairments were severe impairments and by failing to include any limitations
in Plaintiff’s RFC that were caused by Plaintiff’s mental impairments; (2) whether the ALJ erred
by failing to properly consider Plaintiff’s non-severe mental impairments in formulating Plaintiff’s
RFC; (3) whether the ALJ erred by failing to adequately evaluate the medical opinions of
Plaintiff’s treating physician, Dr. Carnevale; and (4) whether the Appeals Council erred by
refusing the review the decision of the ALJ following the submission of new and material evidence
by Plaintiff. (Doc. 13 p. 1). The Court will address the first two issues together and the rest in
turn.
a) Whether the ALJ erred by failing to find that Plaintiff’s mental impairments were
severe impairments, by failing to include any limitations in Plaintiff’s RFC that
were caused by Plaintiff’s mental impairments and by failing to properly consider
Plaintiff’s non-severe mental impairments in formulating Plaintiff’s RFC.
Plaintiff argues that the medical record, as well as her own testimony, supports the
determination that her mental impairments have more than a de minimus effect on her ability to

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work. (Doc. 13 p. 9). Thus, Plaintiff contends, the ALJ erred by failing to determine that these
impairments were “severe” at step two of the sequential evaluation process. (Doc. 13 p. 9).
Further, Plaintiff contends that the ALJ erred by failing to include a limitation for Plaintiff’s mental
impairments in the RFC determination. (Doc. 13 p. 10-12). Plaintiff argues that the ALJ
mischaracterized the evidence, specifically the opinions of treating physician Johann Prewett,
Ph.D., in order to support her finding that Plaintiff’s mental impairments did not require limitations
greater than those found in the ALJ’s RFC determination. (Doc. 11-12). Plaintiff contends that
even if the ALJ properly found that Plaintiff’s mental impairments were not severe, the ALJ still
erred because he did not consider Plaintiff’s mental impairments in formulating the RFC
determination. (Doc. 13 p. 12).
In response, Defendant argues that Plaintiff failed to prove that her mental impairments
were severe or that the ALJ should have included mental work-related limitations in the RFC
determination. (Doc. 14 p. 6-9). Defendant contends that the ALJ properly accorded little weight
to Dr. Prewett’s opinion and that substantial evidence supports the ALJ’s RFC determination.
(Doc. 14 p. 13-14).
The Court begins with Plaintiff’s contention that the ALJ erred at step two. At step two,
“[a]n impairment is not severe only if the abnormality is so slight and its effect so minimal that
it would clearly not be expected to interfere with the individual's ability to work, irrespective of
age, education or work experience.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).
A severe impairment must bring about at least more than a minimal reduction in a claimant’s
ability to work, and must last continuously for at least twelve months. See 20 C.F.R. §§
404.1505(a). This inquiry “acts as a filter” so that insubstantial impairments will not be given
much weight. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). While the standard for

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severity is low, the severity of an impairment “must be measured in terms of its effect upon
ability to work, and not simply in terms of deviation from purely medical standards of bodily
perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
According to the Eleventh Circuit, “[n]othing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe,” but only that the ALJ considered
the claimant’s impairments in combination, whether severe or not. Heatly v. Comm’r of Soc. Sec.,
382 F.App’x 823, 825 (11th Cir. 2010). If any impairment or combination of impairments
qualifies as “severe,” step two is satisfied and the claim advances to step three. Gray v. Comm’r
of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013) (citing Jamison v. Bowen, 814 F.2d 585,
588 (11th Cir. 1987)).
In this case, the ALJ found that Plaintiff had two severe impairments at step two, disorders
of the spine and fibromyalgia, thus satisfying the requirements of step two. (Tr. 17). Thus, the
Court need not determine whether the ALJ erred by failing to include any mental impairments as
“severe impairments” because any such error would be harmless.
It must still be determined, however, whether the ALJ erred by failing to include any
limitations reflecting Plaintiff’s mental impairments in formulating Plaintiff’s RFC. In making
an RFC determination, the ALJ must consider all the record evidence, including evidence of nonsevere impairments. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). Here, the ALJ’s
opinion demonstrates that he considered Plaintiff’s mental impairments in formulating his RFC
determination. The ALJ determined that Plaintiff had no more than mild limitations in activities
of daily living, social functioning, and concentration, persistence, or pace; and no extendedduration episodes of decompensation. (Tr. 18-19).

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In her decision, the ALJ noted that while Plaintiff reported subjective complaints and
stated that she preferred to keep to herself, and that she avoided crowds and did not go out, the
record and hearing testimony also revealed that she had a close, supportive relationship with her
two sons, aged 17 and 22, who lived with her and with whom she did things daily; she visited
friends; she volunteered for her son’s school; she watched her grandson; she attended church;
and she helped care for her son’s mother-in-law. (Tr. 18, 41, 217, 583-84).
In addition, Plaintiff had been able to interact with treating and examining medical
sources, and these sources had consistently noted that Plaintiff presented in a “cooperative”
manner with appropriate responsiveness. (Tr. 18). Plaintiff also reported that she regularly went
to sporting events, church, grocery stores, her doctors’ offices, the pharmacy, and the library; she
got along “very well” with authority figures and had never been dismissed from a job because of
problems getting along with people; and she handled stress and changes in routine “very well.”
(Tr. 18, 217-19, 519-23, 533-34, 582-86).
Plaintiff takes issue with the ALJ’s decision to accord great weight to the opinion of nonexamining physician Jane Cormier, Ph.D., while giving little weight to the opinion of treating
physician Dr. Prewett. (Doc. 13 p. 11). In her decision, the ALJ stated that Dr. Cormier
“particularly referenced the claimant’s psychological treatment records received from Dr.
Prewett. . .” (Tr. 25). This statement appears to be false, as Plaintiff notes in her reply brief that
Dr. Prewett’s records were not entered into the record until after the time Dr. Cormier proffered
her opinion. (Doc. 20 p. 2). This error, however, does undermine the ALJ’s decision to accord
little weight to Dr. Prewett’s opinion, as the ALJ did not use Dr. Cormier’s opinion as grounds
to accord little weight to the opinion. The ALJ explained that Dr. Prewett’s progress notes reflect
that Plaintiff had not more than mild limitations in normal affect and ability to engage in a good

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range of activities of daily living. (Tr. 24). The ALJ noted that Plaintiff sees Dr. Prewett very
infrequently, for example only twice in 2013, and no indication of treatment in 2014. (Tr. 24).
The ALJ properly discounted the opinion of Dr. Prewett by providing good cause.
Plaintiff has failed to show that the ALJ committed reversible error at step two or in
formulating Plaintiff’s RFC. Accordingly, the Court affirms the ALJ’s step two finding and
treatment of Plaintiff’s mental impairments.

b) Whether the ALJ erred by failing to adequately evaluate the medical opinions of
Plaintiff’s treating physician, Dr. Carnevale.
Plaintiff argues that the ALJ erred in her decision to accord “little weight” to the opinion
of treating physician Philip Carnevale, M.D. (Doc. 13 p. 17). Plaintiff contends the ALJ failed
to provide good cause for her finding and requests the Court to remand the case for a proper
evaluation of Dr. Carnevale’s opinion. (Doc. 13 p. 21-22). Defendant argues that the ALJ
properly assessed Dr. Carnevale’s opinion and substantial evidence supports her decision to
accord the opinion “little weight.” (Doc. 14 p. 16-22).
“The Secretary must specify what weight is given to a treating physician’s opinion and any
reason for giving it no weight, and failure to do so is reversible error.” MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). The Eleventh Circuit has held that whenever
a physician offers a statement reflecting judgments about the nature and severity of a claimant’s
impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite
his or her impairments, and the claimant’s physical and mental restrictions, the statement is an
opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor.
Winschel v. Comm’r of Social Security, 631 F3d 1176, 1178-79 (11th Cir. 2011). Without such a
statement, “it is impossible for a reviewing court to determine whether the ultimate decision on

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the merits of the claim is rational and supported by substantial evidence.” Id. (citing Cowart v.
Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinions of treating physicians are entitled to substantial or considerable weight
unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir.
2004). The Eleventh Circuit has held that good cause exists when the: “(1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3)
treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Id. Where an ALJ articulates specific reasons for failing to accord the opinion of a
treating or examining physician controlling weight and those reasons are supported by substantial
evidence, there is no reversible error. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
The record shows that Dr. Carnavale completed a medical questionnaire in November
2012 regarding Plaintiff’s impairments and limitations. (Tr. 23). Dr. Carnavale opined that:
Plaintiff could sit no more than 20 minutes continuously; she could stand no more than 45
minutes continuously; in a normal 8-hour workday, Plaintiff could sit, stand or walk no more
than 2 hours total; during a normal workday, she would require unscheduled breaks at least once
every hour; during an 8-hour period, she would need to lie down at least 2-3 hours; she could lift
20 pounds rarely, 10 pounds occasionally, and less than 10 pounds frequently; she was limited
to only occasional overhead reaching with her upper extremities, and no more than frequent fine
manipulation, grasping and turning with her hands and fingers; and Plaintiff was expected to be
absent from work more than 4 days per month. (Tr. 544-46).
Here, the Court finds that the ALJ properly weighed Dr. Carnevale’s decision and
provided good cause for her finding. In her decision, the ALJ summarized the medical evidence
from Dr. Carnevale and restated his opinion as it appears in the November 2012 medical

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questionnaire. (Tr. 21, 23). The ALJ then explained that she was accordingly “little weight” to
the opinion on the basis that the opinion was unsupported by the medical evidence as a whole as
well as Dr. Carnevale’s own treatment records. (Tr. 24). The ALJ noted that “Dr. Carnevale’s
records show the claimant demonstrating generally positive response to pain management
therapy and exhibiting normal results in routine physical exams.” (Tr. 24).
These findings are supported by the medical record. In summarizing Dr. Carnevale’s
treatment notes the ALJ had noted that recent progress notes dated March 2013, July 2013, and
December 2013, show that Plaintiff reported a pain level of “6” without medication and a pain
level of “1” with medication. (Tr. 21). In addition, the ALJ noted that in progress notes dated
December 2012 and January 2013, Dr. Carnevale concluded that Plaintiff “no complaints or
issues” in his final assessment and that a routine physical exam in February 2013, indicated
“normal” musculoskeletal and “normal” neurological examinations. (Tr. 21).
As stated above, substantial evidence is “such relevant evidence as a reasonable person
would accept as adequate support to a conclusion” and that “[e]ven if the evidence preponderated
against the Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004) (citing Lewis
v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)). Here, the ALJ’s decision to accord little
weight to Dr. Carnevale’s decision is supported by such evidence as a reasonable person would
find adequate to support a conclusion. The ALJ stated the weight she accorded Dr. Carnevale’s
opinion and provided good cause for doing so. Accordingly, the Court finds no error in the ALJ’s
treatment of Dr. Carnevale’s opinion.

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c) Whether the Appeals Council erred by refusing the review the decision of the
ALJ following the submission of new and material evidence by Plaintiff.
On May 19, 2014, Plaintiff requested the Appeals Council to review the ALJ’s decision.
(Tr. 9). Attached to the request for review was a memorandum (Tr. 240-41) and a letter from Dr.
Prewett dated May 12, 2014. The Appeals Council addressed the newly submitted evidence as
follows: “We also looked at the evidence from Parthenon Medical Center, Nicholas Prewett
Ph.D. dated May 12, 2014. The Administrative Law Judge decided your case through March 28,
2014. This new information is about a later time. Therefore, it does not affect the decision
whether you were disabled beginning on or before March 28, 2014.” (Tr. 2).
Plaintiff argues that the Appeals Council erred by finding that the new evidence was about
a different time and does not affect the ALJ’s decision. (Doc. 13 p. 23). Plaintiff contends that
the new evidence from Dr. Prewett applies to the time period at issue before the ALJ. (Doc. 13
p. 23). In response, Defendant argues that the newly submitted evidence is cumulative of
evidence already before the ALJ and that it does not undermine the substantial evidence
supporting the decision. (Doc. 14 p. 23).
A claimant is generally permitted to present new evidence at each stage of his
administrative process. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007),
and 20 C.F.R. § 404.900(b). Evidence submitted for the first time to the Appeals Counsel is
determined under a Sentence Four analysis. Id. An Appeals Council must consider new and
material evidence that “‘relates to the period on or before the date of the administrative law judge
hearing decision’ and must review the case if ‘the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record.’” Id. (20 C.F.R. §§
404.970(b), 416.1470(b)). New evidence is considered material and thereby warranting a remand

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if “‘there is a reasonable possibility that the new evidence would change the administrative
outcome.’” Id.
Here, the newly submitted letter from Dr. Prewett included a summary of Plaintiff’s
history with Dr. Prewett and a summary of Plaintiff’s subjective complaints at an appointment
on April 28, 2014, after the ALJ’s decision. (Tr. 11). The letter states that Plaintiff has social
anxiety, has difficulty being around others, and is unable to attend her son’s sporting events. (Tr.
11). This newly submitted information is cumulative and would not change the administrative
outcome. Accordingly, the Court finds no error in the Appeals Council’s decision to deny
Plaintiff’s request for review.
III.

Conclusion

The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to
enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on February 22, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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