Dovico v. Commissioner of Social Security

Filing 17

OPINION AND ORDER affirming the Commissioner's final decision; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James Klindt on 8/28/2024. (KAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ALLEN L. DOVICO,
Plaintiff,
v.

Case No. 5:23-cv-329-JRK

MARTIN J. O’MALLEY,
1
Commissioner of Social Security,
Defendant.

/

OPINION AND ORDER 2
I. Status
Allen L. Dovico (“Plaintiff”) is appealing the Commissioner of the Social
Security Administration’s (“SSA(’s)”) final decision denying his claims for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”).
Plaintiff’s alleged inability to work is the result of a torn medial meniscus in his
right knee, degenerative disc disease in the spine, arthritis in all of his joints,
nerve damage, limited range of motion in his neck and shoulders, frequent

Mr. O’Malley was sworn in as Commissioner of the Social Security
Administration on December 20, 2023. Pursuant to Rule 25(d)(1), Federal Rules of Civil
Procedure, Mr. O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit.
No further action need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. ' 405(g).
1

The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge
(Doc. No. 9), filed July 24, 2023; Reference Order (Doc. No. 11), entered July 28, 2023.
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headaches, tinnitus, insomnia, frequent heart burn, severe acid reflux, and
depression. Transcript of Administrative Proceedings (Doc. No. 8; “Tr.” or
“administrative transcript”), filed July 24, 2023, at 82-83, 94-95, 111, 123, 290.
On June 25, 2018, Plaintiff protectively filed applications for DIB and
SSI, alleging a disability onset date of April 7, 2018. Tr. at 258-59 (DIB). 3 The
applications were denied initially, Tr. at 80, 82-93, 106, 136-38 (DIB); Tr. at 81,
94-105, 107, 139-41 (SSI), and upon reconsideration, Tr. at 108, 110-21, 134,
145-50 (DIB); Tr. at 109, 122-33, 135, 151-56 (SSI).
On May 27, 2020, an Administrative Law Judge (“ALJ”) held a hearing,
during which she heard from Plaintiff (who appeared with a non-lawyer
representative) and a vocational expert (“VE”). 4 Tr. at 45-78. At the time of the
hearing, Plaintiff was forty-eight (48) years old. Tr. at 51. On June 9, 2020, the
ALJ issued a Decision finding Plaintiff not disabled through the date of the
Decision. See Tr. at 26-37.
Thereafter, Plaintiff requested review of the Decision by the Appeals
Council and submitted argument in support of the request. Tr. at 14-15

The SSI application was not located in the administrative transcript. The DIB
application was actually completed on August 24, 2018. See Tr. at 258. The protective filing
date for both the DIB and SSI applications is listed elsewhere in the administrative transcript
as June 25, 2018. Tr. at 82, 111 (DIB), 94, 123 (SSI).
3

The hearing was held via telephone, with Plaintiff’s consent, because of
extraordinary circumstances caused by the initial stages of the COVID-19 pandemic. Tr. at
47.
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(Appeals Council exhibit list and order), 255-57 (request for review). On
November 13, 2020, the Appeals Council denied Plaintiff’s request for review,
Tr. at 11-13, making the ALJ’s Decision the final decision of the Commissioner.
On May 25, 2023, Plaintiff commenced this action under 42 U.S.C. §§ 405(g)
and 1383(c)(3) by timely filing a Complaint 5 (Doc. No. 1), through counsel,
seeking judicial review of the Commissioner’s final decision.
Plaintiff on appeal argues the ALJ erred at step two by failing to find
Plaintiff’s depressive disorder and anxiety are severe impairments, and then in
assessing the relevant mental functioning criteria set forth in the Regulations,
and at later steps, by failing to account for the impairments as part of the
residual functional capacity (“RFC”). Plaintiff’s Social Security Brief (Doc. No.
13; “Pl.’s Br.”), filed August 23, 2023, at 11-17. On September 19, 2023,
Defendant filed a Memorandum in Support of the Commissioner’s Decision
(Doc. No. 14; “Def.’s Mem.”) addressing Plaintiff’s argument. Then, Plaintiff on
October 3, 2023 filed Plaintiff’s Reply to Defendant’s Brief (Doc. No. 15;
“Reply”). After a thorough review of the entire record and consideration of the
parties’ respective arguments, the undersigned finds that the Commissioner’s
final decision is due to be affirmed.

Plaintiff sought and received additional time from the Appeals Council
to file a civil action. Tr. at 1-2, 4, 5-6, 10.
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II. The ALJ’s Decision
When determining whether an individual is disabled, 6 an ALJ must
follow the five-step sequential inquiry set forth in the 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 Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094, 1101-02 (11th Cir. 2021)
(citations omitted); 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).
Here, the ALJ followed the five-step inquiry. See Tr. at 28-36. At step one,
the ALJ determined that Plaintiff “has not engaged in substantial gainful
activity since April 7, 2018, the alleged onset date.” Tr. at 28 (emphasis and
citation omitted). At step two, the ALJ found that Plaintiff “has the following

“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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severe impairments: degenerative disc disease, degenerative joint disease, and
obesity.” Tr. at 28 (emphasis and citation omitted). At step three, the ALJ found
that Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
[C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 29 (emphasis and citation
omitted).
The ALJ determined that Plaintiff has the following RFC:
[Plaintiff can] perform less than the full range of light work as
defined in 20 CFR [§§] 404.1567(b) and 416.967(b). He is able to
perform jobs where he is allowed standing or sitting without leaving
the workstation. He is able to occasionally climb stairs and ramps,
kneel, crouch and crawl, frequently able to balance and stoop and
never able to climb ladders, ropes or scaffolds. He must avoid
concentrated exposure to cold and to hazards.
Tr. at 30 (emphasis omitted).
At step four, the ALJ relied on the VE’s hearing testimony and found that
Plaintiff “is unable to perform any past relevant work” as a “Beekeeper,” a
“Forklift operator,” a “Kitchen manager,” an “Assistant retail manager,” a
“Cook,” and a “Janitor.” Tr. at 35 (some emphasis and citation omitted). The
ALJ then proceeded to the fifth and final step of the sequential inquiry. Tr. at
35-36. After considering Plaintiff’s age (“46 years old . . . on the alleged
disability onset date”), education (“at least a high school education”), work
experience, and RFC, the ALJ relied on the VE’s testimony and found that
“there are jobs that exist in significant numbers in the national economy that
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[Plaintiff] can perform,” Tr. at 35-36 (emphasis omitted), such as “Toll collector,”
“Ticket taker,” and “Ticket seller.” Tr. at 36. The ALJ concluded Plaintiff “has
not been under a disability . . . from April 7, 2018, through the date of th[e
D]ecision.” Tr. at 36 (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)); see also Biestek v.
Berryhill, 587 U.S. 97, 103 (2019); Samuels v. Acting Comm’r of Soc. Sec., 959
F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). 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
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omitted). The decision reached by the Commissioner must be affirmed if it is
supported by substantial evidence—even if the 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
Plaintiff argues the ALJ erred in assessing his mental impairments at
step two and in later steps. Pl.’s Br. at 11-17. According to Plaintiff, the ALJ
should have found at step two that he suffers from severe mental disorders, and
because the ALJ at later steps in the sequential inquiry did not sufficiently
account for his mental impairments, the matter must be remanded for the ALJ
to do so. 7 Id. Responding, Defendant argues Plaintiff did not meet his burden of
showing at step two that he has severe mental impairments. Def.’s Mem. at 69. Further, Defendant contends the ultimate RFC assigned is supported by
substantial evidence. Id. at 9-13.
Step two of the sequential evaluation process requires the ALJ to
determine whether a claimant suffers from a severe impairment. See 20 C.F.R.
§ 404.1520(a)(4)(ii). At this step, “[a]n impairment can be considered as not
severe only if it is a slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the individual’s ability
Plaintiff actually seeks reversal with benefits, or in the alternative,
remand. Pl.’s Br. at 17. This is not a reversal with benefits case.
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to work[.]” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). “This step is a
‘threshold inquiry’ and ‘allows only claims based on the most trivial
impairments to be rejected.” Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1265
(11th Cir. 2019) (per curiam) (quoting McDaniel v. Bowen, 800 F.2d 1026, 1031
(11th Cir. 1986)).
“[T]he ‘severity’ of a medically ascertained disability 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). In the context of a Social Security
disability benefits case, a condition is severe if it affects a claimant’s ability to
maintain employment. See id. A claimant has the burden of proving that
impairments are severe. See Bowen, 482 U.S. at 146 n.5 (recognizing the
claimant’s burden of proof at step two to show “a medically severe impairment
or combination of impairments”). Further, the impairment either “must have
lasted or must be expected to last for a continuous period of at least 12 months.”
20 C.F.R. § 404.1509; see also Walker v. Comm’r, Soc. Sec. Admin., 835 F. App’x
538, 542 (11th Cir. 2020) (unpublished).
A severe impairment interferes with a claimant’s ability to perform “basic
work activities.” See Bowen, 482 U.S. at 141; Simon v. Comm’r, Soc. Sec.
Admin., 7 F.4th 1094, 1101 (11th Cir. 2021) (citing 20 C.F.R. § 404.1520(c)). The
Regulations provide six examples of “basic work activities”: “(1) Physical
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functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3)
Understanding, carrying out, and remembering simple instructions; (4) Use of
judgment; (5) Responding appropriately to supervision, co-workers, and usual
work situations; and (6) Dealing with changes in a routine work setting.” 20
C.F.R. § 404.1522; see also Walker, 835 F. App’x at 541-52. “The finding of any
severe impairment, based on either a single impairment or a combination of
impairments, is enough to satisfy step two because once the ALJ proceeds
beyond step two, he is required to consider the claimant’s entire medical
condition, including impairments the ALJ determined were not severe.” Burgin
v. Comm’r of Soc. Sec., 420 F. App’x 901, 902 (11th Cir. 2011) (unpublished).
Any error in identifying severe impairments at step two is harmless if
“the ALJ considered all of [the] impairments in combination at later steps in
the evaluation process.” Burgin, 420 F. App’x at 903 (citation omitted); see
Schink, 935 F.3d at 1268 (a step two error “could be harmless if the ALJ
nevertheless proceeded in the sequential evaluation, duly considered [the
claimant’s] mental impairment when assessing his RFC, and reached
conclusions about [the claimant’s] mental capacities supported by substantial
evidence”); Heatly, 382 F. App’x at 825 (stating that an “ALJ is required to
demonstrate that [he or she] has considered all of the claimant’s impairments,
whether severe or not, in combination”); Bowen v. Heckler, 748 F.2d 629, 635
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(11th Cir. 1984) (finding that an ALJ must make “specific and well-articulated
findings as to the effect of the combination of impairments”).
The RFC assessment “is the most [a claimant] can still do despite [his or
her] limitations.” 20 C.F.R. § 404.1545(a)(1). It is used at step four to determine
whether a claimant can return to his or her past relevant work, and if necessary,
it is also used at step five to determine whether the claimant can perform any
other work that exists in significant numbers in the national economy. 20 C.F.R.
§ 404.1545(a)(5). In assessing a claimant’s RFC, the ALJ “must consider
limitations and restrictions imposed by all of an individual’s impairments, even
those that are not ‘severe.’” SSR 96-8P, 1996 WL 374184 at *5; see also Pupo v.
Comm’r, Soc. Sec. Admin., 17 F.4th 1054, 1064 (11th Cir. 2021) (citing Schink,
935 F.3d at 1268); Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990)
(stating that “the ALJ must consider a claimant’s impairments in combination”)
(citing 20 C.F.R. § 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir.
1984)).
Here, the ALJ recognized diagnoses of “anxiety and depressive disorder
due to another medical condition, learning disability in math, [and] specific
phobia” but found “[t]hese impairments did not impose any functional
limitations.” Tr. at 29. Then, the ALJ assessed the broad areas of mental
functioning set forth in the Regulations and 20 C.F.R. Part 404, Subpart P,
Appendix 1, and found Plaintiff has mild restriction in understanding,
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remembering, or applying information; mild restriction in interacting with
others; no restriction in concentrating, persisting, or maintaining pace; and no
restriction in adapting or managing oneself. Tr. at 29. At step two, the ALJ
concluded that because there is no more than mild limitation in the functional
areas, Plaintiff’s mental impairments are not severe. Tr. at 29.
Later, when addressing the medical evidence and assessing the RFC, the
ALJ noted Plaintiff’s relatively wide-range activities of daily living. Tr. at 33;
see Tr. at 385 (vocational evaluation dated October 30, 2019 indicating
activities of daily living), 471 (physical evaluation dated October 16, 2018
indicating no restrictions in almost all daily living activities). The ALJ further
observed that the physical consultative examiner, Samer Choksi, M.D.,
indicated on October 16, 2018 that Plaintiff did not exhibit signs of anxiety or
depression despite purporting to suffer from them. Tr. at 31; see Tr. at 471-72.
The ALJ then discussed, in detail, a consultative personality, learning
disability, and general intellectual assessment performed by Muhamed S.
Khan, a clinical psychologist. Tr. at 32-33; see Tr. at 524-36. According to the
ALJ:
On August 26, 2019 and August 28, 2019, [Dr.] Khan
conducted . . . personality, learning disability and
general intellectual assessments. [Plaintiff] was early
for the appointment. There were no grooming and
hygiene deficits. Eye contact was minimal. His motor
activity was marked by discomfort over sitting for the
duration of the session resulting in him, getting up,
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walking, and stretching. On mental status exam, his
speech was mildly pressured with a wide vocabulary
and no observed expressive and/or receptive
communication deficits. He had no difficulty remaining
on task over the session but his attentiveness appeared
to be hampered by his reported pain experience. He was
oriented to person, place, time and situation. His mood
could be described as angry and truculent during the
session with a restricted range of effect. He reported a
history and current symptoms of depression and
anxiety. He denied a history or current suicidal
attempts and/or inpatient psychiatric care. [Plaintiff]
has no mental health treatment. There were issues
with memory retrieval. He reported sleeping about 3/24
hours. His thought processes were goal directed. His
insight and judgment were poor. Dr. Khan
administered The Wechsler Adult Intelligence Scale-IV
(WAIS IV). [Plaintiff] showed a Full Scale IQ score of
94, which is in the Average intellectual functioning
level. [Plaintiff’s] verbal reasoning abilities are much
better developed than his nonverbal reasoning
abilities. [Plaintiff’s] reasoning abilities on verbal tasks
are generally in the high average range (VCI=110),
while his nonverbal reasoning abilities are significantly
lower and in the average range (PRI=94). His ability in
processing simple or routine visual material without
making errors is in the borderline range when
compared to his peers (PSI=79). Based on the WRAT-V
test showed that he meets the criteria for learning
disability in the area of Mathematics. Dr. Khan
provided diagnoses for depressive disorder due to
another medical condition, anxiety disorder due to
another medical condition, specific phobia, situational,
learning disorder with impairment in Mathematics,
posttraumatic stress disorder (rule out), and antisocial
personality disorder (traits). Dr. Khan indicated that
[Plaintiff] denied a history of mental health treatment.
Tr. at 32-33 (citations omitted). Later, the ALJ found Plaintiff’s statements
about the intensity, persistence, and limiting effects of his symptoms are only
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partially supported. Tr. at 33. In so finding, the ALJ determined that Dr. Khan’s
report was “partially persuasive as not completely supported by medical
evidence of record.” Tr. at 34. The ALJ recognized that Plaintiff’s “mental
capacity was objectively evaluated,” but found that “there is no specific function
to function opinion and no mental health treatment of record, which makes it
less persuasive.” Tr. at 34-35. When assessing Plaintiff’s RFC, the ALJ did not
include any mental limitations. Tr. at 30.
Plaintiff particularly challenges the ALJ’s finding that he only has mild
restriction in interacting with others, citing instances of hostility and anger
during the examination by Dr. Khan. Pl.’s Br. at 13. Plaintiff also indicates that
the ALJ’s finding of no limitations in adapting or managing oneself is not
supported. Id. To be sure, there is documentation of Plaintiff’s frustration,
hostility and anger during the examination. See Tr. at 524-36. There is also
documentation of Plaintiff inaccurately representing his symptoms and
abilities during testing. See Tr. at 528-33. In light of this evidence, together
with Plaintiff’s representation to the evaluator that their interaction was
Plaintiff’s “first encounter with a mental health provider,” Tr. at 526, the ALJ
could reasonably have determined that Plaintiff’s mental functioning was
greater than Plaintiff alleged and that he had only mild restriction in
interacting with others. Moreover, the ALJ’s finding that Plaintiff has no

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limitations in adapting and caring for himself is supported by substantial
evidence.
Plaintiff also contends the ALJ should have further addressed the
matters at later steps, but the ALJ did so. The evidence on Plaintiff’s mental
impairments was scant, as the ALJ recognized. 8 Tr. at 31. The ALJ discussed,
in detail, the consultative evaluation of Dr. Khan (summarized above) but found
it only partially persuasive and lacking in function analysis. This finding is
supported by substantial evidence. The ALJ, then, was not obligated to include
mental restrictions in Plaintiff’s RFC.
V. Conclusion
The ALJ’s Decision is supported by substantial evidence. In light of the
foregoing, it is
ORDERED:
1.

The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), and § 1383(c)(3), AFFIRMING the
Commissioner’s final decision.

This fact alone distinguishes the instant case from an unrelated case decided by
the undersigned that Plaintiff cites in his Reply. See Reply at 1-2 (citing Patel v. Kijakazi, No.
8:22-cv-1082-JRK, 2023 WL 6173449, at *6 (M.D. Fla. Sept. 22, 2023)).
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2.

The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on August 28, 2024.

kaw
Copies:
Counsel of Record

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