Delarosa v. Commissioner of Social Security

Filing 23

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 2/21/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DAISY DELAROSA,
Plaintiff,
v.

Case No: 6:15-cv-1232-Orl-DNF

CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Daisy Delarosa, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying her claim for a period of disability,
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).

The

Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by
the appropriate page number), and the parties filed legal memoranda setting forth their respective
positions. 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 applications for a period of disability, DIB and SSI on May 19, 2011, alleging
disability beginning December 31, 2008. (Tr. 20, 425, 429). Plaintiff’s claims were denied initially
on July 13, 2011, and on reconsideration on February 2, 2012. (Tr. 194, 199, 209, 214). Plaintiff
requested a hearing and on August 5, 2013, a hearing was held before Administrative Law Judge
Ken B. Terry (the “ALJ”). (Tr. 45-57). The hearing was continued because Plaintiff was not
represented by counsel and there was outstanding medical evidence. A second hearing was held
before the ALJ on December 16, 2013. (Tr. 58-108). On March 24, 2014, the ALJ issued a decision
finding that Plaintiff not disabled. (Tr. 17-44). Plaintiff filed a request for review of the decision
and, on May 27, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. 1-3).
Plaintiff initiated this case by Complaint (Doc. 1) on July 30, 2015.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since December 31, 2008, the alleged onset date. (Tr. 22). At step two,
the ALJ found that Plaintiff had the following severe impairments: diabetes mellitus with evidence
of some peripheral neuropathy; generalized osteoarthritis; mild degenerative disc disease of the
lumbar spine; mild obesity; and a calcaneal spur in the right heel. (Tr. 22). At step three, the ALJ

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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. 24).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b).
Specifically, she has the ability to lift/carry and push/pull 20 pounds
occasionally, and 10 pounds frequently; sit for four hours at a time and a
total of eight hours during an eight-hour day, and stand and/or walk for
two hours at a time and a total of six hours during an eight-hour day.
While she is precluded from climbing ropes, ladders and scaffolds, she can
perform occasional climbing of stairs and ramps and occasional balancing,
stooping, kneeling, crouching and crawling. She has no limitations
regarding manipulation, vision or communication. She has environmental
limitations precluding concentrated exposure to temperature extremes,
vibration, and work hazards.
(Tr. 24-25). At step four, the ALJ relied on the testimony of a vocational expert to find that
Plaintiff was incapable of performing her past relevant work as a babysitter. (Tr. 30).
At step five, the ALJ found that considering Plaintiff’s age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can
perform. (Tr. 31). Relying on the testimony of the vocational expert, the ALJ found that Plaintiff
could work the jobs of laundry worker, retail marker, and ticket taker. (Tr. 31). The ALJ
concluded that Plaintiff had not been under a disability from December 31, 2008, through the date
of the decision, March 24, 2014. (Tr. 32).
II.

Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ erred by failing to explain why

the mental limitation findings of two consultative examiners were not included in the ALJ’s RFC
finding; (2) whether the ALJ’s credibility determination is supported by substantial evidence; and

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(3) whether the ALJ’s step five determination is supported by substantial evidence. The Court will
address each issue in turn.
a) Whether the ALJ erred by failing to explain why the mental limitation findings of
two consultative examiners were not included in the ALJ’s RFC finding.
Plaintiff argues that the ALJ erred by failing to indicate the weight accorded the opinions
of consultative examining physicians Kamir Marrero, Psy.D. and Dmitri Bougakov, Ph.D. (Doc.
18 p. 15). Plaintiff contends that while the ALJ outlined these opinions in his severity analysis, he
offered no indication of the weight accorded these opinions and offered no explanation as to why
these opinions were not included in the RFC determination. (Doc. 18 p. 15). In addition, Plaintiff
argues that the ALJ’s severity analysis shows that the ALJ improperly discounted the opinions and
did not weigh the mental health evidence fairly. (Doc. 18 p. 16).
Defendant argues that remand is not required due to the ALJ’s failure to state the weight
accorded to the opinions of Dr. Marrero and Dr. Bougakov. (Doc. 21 p. 5). Defendant notes that
Dr. Marrero and Dr. Bougakov were not treating physicians whose opinions were entitled to any
deference and the ALJ was not required to show good cause for discounting their opinions. (Doc.
21 p. 5). Defendant contends that the ALJ recognized that he must consider all of Plaintiff’s
impairments and considered Plaintiff’s non-severe mental impairments when she had no
impairments. (Doc. 21 p. 6-7).
The record shows that Plaintiff presented to Dr. Marrero by request of the Disability
Determination Services for a psychological consultative examination on September 23, 2010. (Tr.
835-37). Plaintiff reported symptoms of shakiness, heart palpitations, restlessness, irritability,
problems with sleep, and worry. (Tr. 835). She stated symptoms were due to multiple stressors as
she was constantly in fear as her mother died of diabetes and she has diabetes. (Tr. 835). It was
indicated her primary care physician had been prescribing Paxil and Klonopin for the previous two
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months. (Tr. 835). It was further reported Plaintiff has a tenth grade education with a completion
of a GED and a nursing certificate. (Tr. 836). She indicated leaving her past job due to pain. (Tr.
836). On examination, Dr. Marrero found affect and mood anxious, and she had some difficulty
with cognition but her intelligence was estimated to be in the average range. (Tr. 836). Dr. Marrero
diagnosed generalized anxiety disorder. (Tr. 836). She opined “[f]unctional ability is mildly to
moderately impaired based on her symptomatology.” (Tr. 836).
On January 23, 2013, Plaintiff presented to Dr. Bougakov for a consultative psychiatric
evaluation. (Tr. 995). Plaintiff reported difficulty sleeping, a poor appetite, being restless, and
excessive worrying. (Tr. 995). Plaintiff reported her children help her with cleaning, laundry, and
shopping, and that she could do some light cooking. (Tr. 997). Examination revealed Plaintiff
walked with a right limp. (Tr. 996). Her affect was dysphoric and mood dysthymic. (Tr. 998).
Her attention and concentration and recent and remote memory skills were mildly impaired. (Tr.
996). Dr. Bougakov diagnosed “adjustment disorder with mixed anxiety and depressed mood.”
(Tr. 997). Dr. Bougakov opined Plaintiff “can follow and understand simple directions and
instructions. She can perform simple tasks, maintain attention and concentration, and maintain a
regular schedule.” (Tr. 997). Dr. Bougakov opined Plaintiff “is somewhat limited in ability to
learn new tasks and perform complex tasks.” (Tr. 997). Dr. Bougakov opined Plaintiff has mild
limitations in ability to deal with stress,” though he further opined Plaintiff’s psychiatric problems
do “not appear to be significant enough to interfere with [Plaintiff’s] ability to function on a daily
basis.” (Tr. 997).
At step two in his decision, the ALJ addressed the records from Dr. Marrero and Dr. Dmitri
at length, summarizing their examination findings and opinions as to Plaintiff’s mental
impairment. (Tr. 23-24). After reviewing the opinions, as well as other evidence pertaining to

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Plaintiff’s mental impairments, the ALJ explained “that while the claimant may have mental
impairments, they are not believed to be of disabling proportions.” The ALJ did not mention or
state the weight he accorded Dr. Marrero and Dr. Dmitri’s opinions when he subsequently
explained his RFC determination. (Tr. 24-30).
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 Soc. Sec.,
631 F.3d 1176, 1178-79 (11th Cir. 2011). Without 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 supported by substantial evidence.” Id. (citing Cowart v. Shweiker, 662 F.2d 731, 735 (11th
Cir. 1981)).
Here, after reviewing the ALJ’s opinion in its entirety, the Court finds that it would be
inappropriate to remand the case due to the ALJ’s failure to specify the weight accorded to the
opinions of Dr. Marrero and Dr. Dmitri. Although an ALJ’s failure to explain the particular weight
given to the different medical opinions provided is reversible error, when the ALJ’s error did not
affect its ultimate findings, the error is harmless and the ALJ’s decision will stand. Tillman v.
Comm’r of Soc. Sec. Admin., 559 F. App’x 975 (11th Cir. 2014). While Plaintiff is correct that
the ALJ did not specify the weight accorded to these opinions, the ALJ’s lengthy treatment of these
opinions at step two, as well as the ALJ’s recognition that in determining Plaintiff’s RFC all
impairments, severe and non-severe must be considered, demonstrates that the ALJ considered
these opinions in formulating his RFC finding. To the extent that the ALJ did not include the

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mental limitations opined by Dr. Marrero and Dr. Dmitri, it is clear that the ALJ assigned these
limitation findings little weight. Thus, it is not the case, here, that it is impossible for a reviewing
court to determine whether the ALJ’s decision is rational and supported by substantial evidence.
The Court therefore declines Plaintiff’s request to remand the case for the ALJ to state the weight
accorded to the opinions of Dr. Marrero and Dr. Dmitri.
b) Whether the ALJ’s credibility determination is supported by substantial evidence.
Plaintiff argues that the ALJ erred by failing to make proper credibility findings. (Doc. 18
p. 18). Plaintiff contends that the ALJ mischaracterized the medical evidence of record and that
Plaintiff’s daily activities support, rather than detract from, her claim of disability. (Doc. 18 p.
18).

In response, Defendant argues that the ALJ properly evaluated Plaintiff’s subjective

allegations and credibility. (Doc. 21 p. 7).
To establish disability based on testimony of pain and other symptoms, a plaintiff must
satisfy two prongs of the following three-part test: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain;
or (b) that the objectively determined medical condition can reasonably be expected to give rise to
the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v.
Sullivan, 921 F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s
complaints of pain, the ALJ may reject them as not credible, and that determination will be
reviewed to determine if it is based on substantial evidence. Moreno v. Astrue, 366 F. App’x 23,
28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). If an ALJ
discredits the subjective testimony of a plaintiff, then he must “articulate explicit and adequate
reasons for doing so. [citations omitted] Failure to articulate the reasons for discrediting subjective
testimony requires, as a matter of law, that the testimony be accepted as true.” Wilson v. Barnhart,

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284 F.3d at 1225. “A clearly articulated credibility finding with substantial supporting evidence
in the record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562
(11th Cir. 1995)).

The factors an ALJ must consider in evaluating a plaintiff’s subjective

symptoms are: “(1) the claimant's daily activities; (2) the nature and intensity of pain and other
symptoms; (3) precipitating and aggravating factors; (4) effects of medications; (5) treatment or
measures taken by the claimant for relief of symptoms; and other factors concerning functional
limitations.” Moreno v. Astrue, 366 F. App’x at 28 (citing 20 C.F.R. § 404.1529(c)(3)).
In his decision, the ALJ found that Plaintiff’s “statements concerning her impairments and
their impact on her ability to work are not fully credible in light of the medical history, the reports
of treating and examining practitioners, the degree of medical treatment required and the
claimant’s own description of her activities and lifestyle, see below.” (Tr. 26). The ALJ proceeded
to review the medical evidence of record at length, explaining his credibility finding and RFC
determination across approximately five pages of the decision. (Tr. 25-30). The Court finds that
the ALJ’s analysis constitutes substantial evidence supporting his credibility finding.
The Court disagrees with Plaintiff’s contention that the ALJ improperly mischaracterized
the evidence in making his credibility finding. While there is evidence in the record that tends to
support Plaintiff’s contention that she is disabled, this evidence does not mean substantial evidence
does not support the ALJ’s finding. The Court must affirm the ALJ’s decision even if the proof
preponderates against it, so long as substantial evidence, i.e., such relevant evidence as a
reasonable person would accept as adequate to support a conclusion. Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996). Here, the ALJ’s credibility finding is supported by substantial
evidence and the Court affirms the ALJ’s finding that Plaintiff was not fully credible.

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c) Whether the ALJ’s step five determination is supported by substantial evidence.
The third issue raised by Plaintiff is related to the first two. Plaintiff argues that the ALJ’s
errors in his treatment of Drs. Marrero and Bougakov’s opinions and in analyzing Plaintiff’s
credibility caused the hypothetical question to the vocational expert to be incomplete. (Doc. 18 p.
20). Thus, Plaintiff contends that the vocational expert’s testimony does not constitute substantial
evidence at step five that there are other jobs Plaintiff could perform in the national economy.
(Doc. 18 p. 20).
In order for the testimony of a vocational expert to “constitute substantial evidence, the
ALJ must pose a hypothetical question which comprises all of the claimant’s impairments.” Jones
v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). In this case, as explained above, Plaintiff has failed
to show that the ALJ erred in his treatment of Drs. Marrero and Bougakov or in his finding that
Plaintiff was not fully credible. The hypothetical question posed by the ALJ to the vocational
expert accurately reflected Plaintiff’s RFC and the ALJ properly relied on the vocational expert’s
testimony in finding that there was other work Plaintiff could perform. (Tr. 24-24, 104-05). The
Court finds no reversible error in the ALJ’s reliance on the vocational expert’s testimony.
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 21, 2017.

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Copies furnished to:
Counsel of Record
Unrepresented Parties

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