Shaw 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 2/21/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JASON SCOTT SHAW,
Plaintiff,
v.

Case No: 6:15-cv-1598-Orl-DNF

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Jason Scott Shaw, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying his 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 in support of their 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 his 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 he is not undertaking substantial gainful
employment.

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

-2-

404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he 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 his 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 his 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 he meets this burden, he 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 his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his 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 his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he 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, he 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 1200,

-3-

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. 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 he 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 protectively filed applications for DIB and SSI on February 28, 2014, alleging
disability beginning July 20, 2011.

(Tr. 159, 160, 199-202, 413-18, 425-33).

Plaintiff’s

applications were denied initially on June 18, 2014, and upon reconsideration on August 22, 2014.
(Tr. 292-97, 301-11). Plaintiff requested a hearing and, on February 13, 2015, an administrative
hearing was held before Administrative Law Judge Douglas A. Walker (“the ALJ”). (Tr. 44-80).
On March 17, 2015, the ALJ entered a decision finding that Plaintiff was not under a disability
from July 20, 2011, through the date of the decision. (Tr. 12-39). Plaintiff filed a request for review
on May 26, 2015, and the Appeals Council denied Plaintiff’s request on July 22, 2015. (Tr. 1-8).
Plaintiff initiated this action by filing a Complaint (Doc. 1) on September 25, 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 July 20, 2011, the alleged onset date. (Tr. 14). At step two, the
ALJ found that Plaintiff had the following severe impairments: ischemic heart disease, affective
mood disorder, anxiety disorder and substance abuse disorder. (Tr. 15). At step three, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that meets or

-4-

medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 16).
The ALJ found that Plaintiff had the residual functional capacity (“RFC”) from May 12,
2011, through August 28, 2012, to
perform less than the full range of light work as defined in 20 CFR
404.1567(b) and 416.967(b). He would require work that is simple and
unskilled. He can lift and carry 10 pounds frequently and 20 pounds
occasionally (from very little, up to 1/3 of an 8-hour workday). He can
stand and/or walk for six hours (with normal breaks) in an eight-hour
workday. He can sit for six hours (with normal breaks) in an eight-hour
workday. He should avoid frequent ascending and descending stairs. Due
to mild to moderate pain with medication side effects, he should avoid
hazards in the workplace such as protected areas of moving machinery,
heights, ramps, ladders, scaffolds; and on the ground, unprotected areas of
holes and pits. He can perform each of the following postural activities
occasionally: balancing, stooping, crouching, kneeling, and crawling, but
not climbing ropes, scaffolds or ladders exceeding 6 feet. He has nonexertional mental limitations which frequently affect his ability to
concentrate upon complex or detailed tasks but he would remain capable
of understanding, remembering, and carrying out simple job instructions;
making work related judgments and decisions; responding appropriately
to supervision, co-workers and work situations; and dealing with changes
in a routine work setting. He should avoid stressful situations such as
working frequently with co-workers in a team; working directly with the
public other than co-workers in a team; working directly with the public
other than co-workers where frequent interpersonal interaction or
discussion is required; making decisions, and using little judgment.
(Tr. 17). At step four, the ALJ found that Plaintiff is unable to perform his past relevant work as
a night auditor and hotel clerk. (Tr. 27).
At step five, the ALJ relied on the testimony of a vocational expert to find that considering
Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that he can perform. (Tr. 28). Specifically, the ALJ found that
Plaintiff can perform the jobs “cleaner/housekeeper,” “sorter, agriculture,” and “checker 1.” (Tr.

-5-

28). The ALJ concluded that Plaintiff had not been under a disability from July 20, 2011, through
the date of the decision, March 27, 2015. (Tr. 29).
II.

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

pertinent evidence and by failing to assign appropriate weight to the opinion of an examining,
consultative physician; (2) whether the ALJ erred by relying on the testimony of a vocational
expert elicited in response to a hypothetical question that did not adequately reflect Plaintiff’s
limitations; and (3) whether the ALJ erred in finding that Plaintiff “somewhat exaggerated” his
symptoms. The Court will address each issue in turn.
a) Whether the ALJ erred by failing to weigh all the pertinent evidence and by failing
to assign appropriate weight to the opinion of an examining consultative
physician.
Plaintiff argues that the ALJ erred by failing to state the weight assigned to the treatment
notes from Bay Care Behavioral Health where Plaintiff received treatment for his mental condition
during 2013 to 2015. (Doc. 18 p. 13). Further, Plaintiff argues that the ALJ erred in his treatment
of the opinion of examining, consultative physician Timothy Foster, Ph.D. (Doc. 18 p. 14).
Plaintiff contends that the ALJ’s decision is unclear because the ALJ failed to provide a reasoned
explanation for according Dr. Foster’s opinion “substantial weight” and “little weight”
simultaneously. (Doc. 18 p. 14). Likewise, Plaintiff contends that the ALJ erred by giving “little
weight” to the opinion of the state agency physician Dawn Jackson, Psy.D., who reviewed
Plaintiff’s medical evidence up to August 14, 2014. (Doc. 18 p. 16).
In response, Defendant argues that Plaintiff’s arguments are without merit. (Doc. 19 p. 5).
Defendant contends that the ALJ thoroughly discussed the treatment notes from Bay Care
Behavioral Health and the notes do not reflect disabling limitations. (Doc. 19 p. 7). In addition,

-6-

Defendant contends that the treatment notes from Bay Care Behavioral Health were completed by
people who were not treating physicians or even acceptable medical sources. (Doc. 19 p. 8).
Defendant argues that the ALJ properly gave Dr. Foster’s opinion “little weight” because his
opinion was not supported by his own examination notes, and also properly gave Dr. Jackson’s
opinion that Plaintiff had marked social limitations “little weight” because it was not supported by
Plaintiff’s daily activities or the opinions of the other state agency doctors. (Doc. 19 p. 12-13).
Here, the Court finds that the ALJ committed no error in his treatment of the medical
opinions of record. As to the evidence from Bay Care Behavioral Health, the record shows that
Plaintiff presented for outpatient treatment from July, 2013 through April, 2015. The treatment
notes indicate that they were not completed by “acceptable medical sources,” but instead “other
sources.” See 20 C.F.R. §§ 404.1502, 404.1513(a), (d), 416.902, 416.913(a), (d). For example,
notes from July 19, 2013, which indicate that Plaintiff had good concentration, no abnormality in
his though process, and was oriented to person, place, time and situation, were signed by Sarah
Wright, B.S. (Tr. 1685). The record indicates that Sarah Wright was an intern. (Tr. 1693-96).
Other treating notes were completed by Karen Correll-Miller, ARNP, for example, Plaintiff’s notes
from November 19, 2013, in which a Global Assessment of Functioning (GAF) score of 45 was
assessed, indicating serious symptoms, but also that Plaintiff had normal speech, logical, coherent,
and goal-directed thought processes, and average intellectual capacity. (Tr. 1690).
Because the treatment notes from Bay Care Behavioral Health Center were not completed
by acceptable medical sources, their opinions are not medical opinion and are not entitled to any
special significance or consideration. See 20 C.F.R. §§ 404.1513(a), (d), 404.1527(a)(2); Social
Security Ruling 06-3p. The Court finds no error in the ALJ’s failure to explicitly state the weight

-7-

accorded this evidence. In any event, the ALJ’s decision shows that he thoroughly reviewed and
summarized these records in his RFC analysis. (Tr. 20, 21, 26).
As to Dr. Foster, the record shows that Plaintiff was referred to Dr. Foster by the SSA for
a mental status evaluation in June 2014. (Tr. 1702-1705). During the examination, it was noted
that Plaintiff showed no problems sustaining attention; his mood was described as depressed; his
affect appeared to be mood congruent; he was able to follow a simple three step instruction; he
admitted to hallucinations; his judgment and insight appeared well below normal limits; and he
knew that his judgment was poor when he was manic. (Tr. 1703-1704). After the examination,
Dr. Foster opined that Plaintiff had the following residual functioning: understand, remember some
simple instructions, but often cannot complete them; he relates less than adequately to peers,
supervisors and public; he cannot manage himself appropriately around people; he cannot
complete a normal workweek without interruptions from psychologically based symptoms; and
that he will not likely complete work which he is assigned. (Tr. 1704-1705).
Plaintiff contends that the ALJ’s decision is unclear because the ALJ seems to give
substantial weight to Dr. Foster’s opinion, except for the portion of the opinion indicating Plaintiff
could not complete a normal workweek without interruptions from psychologically based
symptoms. The Court rejects this argument. The ALJ stated in his decision that he gave substantial
weight to “the objective medical findings on examination from the several medical and
psychological consultants who examined the claimant,” but specifically stated that he assigned
little weight to Dr. Foster’s opinion. (Tr. 24). The ALJ explained the basis for his decision to
accord little weight to Dr. Foster’s opinion. The ALJ noted that Dr. Foster’s own examination
findings did not support his opinion, that he was not a treating physician, that he had only examined

-8-

Plaintiff on a single occasion, and that he had based his decision on Plaintiff’s subjective
complaints despite there being good cause for questioning Plaintiff’s reliability. (Tr. 24).
As a one-time examining physician, Dr. Foster’s opinion was not entitled to any deference.
See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987). The ALJ stated the weight he assigned
to Dr. Foster’s opinion and explained his reasons for according it “little weight.” The Court finds
no error in the ALJ’s treatment of Dr. Foster’s opinion.
As to the opinion of state agency reviewer Dr. Jackson, the record shows that in August
2014, Dr. Jackson opined that Plaintiff had no restrictions on activities of daily living, marked
difficulties in maintaining social functioning, moderate difficulties in maintaining concentration,
persistence, or pace, and one or two episodes of decompensation, each of extended duration. (Tr.
236-37). Dr. Jackson opined that Plaintiff appeared capable of working. (Tr. 238). In his decision,
the ALJ assigned “little weight” to Dr. Jackson’s finding that Plaintiff had marked difficulties in
social functioning because the finding was “extreme” and not bolstered by the medical evidence
of record. (Tr. 25). Substantial evidence supports the ALJ’s finding. For example, the record
shows that Plaintiff shopped three to five times a week, and spent time with his friends socializing,
walking, and eating meals with them three to five times a week. (Tr. 651). Further, the record
shows that Plaintiff maintained a relationship with a live-in girlfriend for at least a year after the
alleged onset date. (Tr. 1677). Such social activities do not support Dr. Jackson’s finding that
Plaintiff had marked difficulties in maintaining social functioning. Finally, the record shows that
every other state agency consultant found that Plaintiff had only “moderate” difficulties in social
functioning.
The Court finds no error in the ALJ’s treatment of the medical record and opinions.
Accordingly, the Court will not disturb the ALJ’s findings on review.

-9-

b) Whether the ALJ erred by relying on the testimony of a vocational expert elicited
in response to a hypothetical question that did not adequately reflect Plaintiff’s
limitations.
Plaintiff’s second raised issue relates closely to his first. Plaintiff contends that the ALJ’s
errors in evaluating the record and in weighing the medical opinions resulted in the ALJ posing an
incomplete hypothetical question to the vocational expert and improperly relying on the elicited
testimony. (Doc. 18 p. 17-19). Specifically, Plaintiff notes that when the ALJ posed a hypothetical
containing the limitations opined by Dr. Foster, the vocational expert testified that there would be
no work. (Doc. 18 p. 19).
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 analysis of the medical record and opinions. 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. 18, 63-65). The Court finds no reversible error in the ALJ’s reliance
on the vocational expert’s testimony.
c) Whether the ALJ erred in finding that Plaintiff “somewhat exaggerated” his
symptoms.
Plaintiff argues that the ALJ erred by finding that Plaintiff “somewhat exaggerated” his
symptoms as the record shows that Plaintiff suffered from documented impairments causing
significant limitations. (Doc. 18 p. 19). Plaintiff contends that the ALJ’s credibility determination
is merely boilerplate language that does not offer enough reasoning to support the ALJ’s finding
that Plaintiff is not credible. (Doc. 18 p. 20). Defendant argues that the ALJ properly considered
the evidence, including Plaintiff’s noncompliance with treatment, conflicting statements about his
- 10 -

substance abuse, work history, and daily activities, and found that Plaintiff’s subjective allegations
were not entirely credible. (Doc. 19 p. 15).
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,
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 this case, the Court finds that the ALJ’s finding that Plaintiff was not entirely credible
was supported by substantial evidence. Contrary to Plaintiff’s assertion that his credibility finding

- 11 -

was mere boiler plate, a review of the ALJ’s decision shows that he explained his credibility
finding at length. The ALJ noted that there is evidence that Plaintiff was not entirely compliant in
taking prescribed medications, “which suggests that the symptoms may not have been as limiting
as the claimant has alleged in connection with this application.” (Tr. 26). For example, after
Plaintiff was discharged from inpatient treatment in 2011, he failed to show up for his follow-up
appointment, and did not receive regular mental health treatment again until 2013. (Tr. 19-20,
708). When Plaintiff did receive treatment, he was noted to be noncompliant with his prescribed
medications. (Tr. 26, 1626, 1689).
In addition, the ALJ explained that his credibility finding was based in part on Plaintiff’s
conflicting statements regarding his substance abuse. (Tr. 26). For example, while Plaintiff denied
any alcohol or substance dependence in July 2011, the record shows that only a couple of months
earlier, in April 2011, Plaintiff had tested positive for cocaine, THC, and “benzos.” (Tr. 684).
Finally, the ALJ’s decision shows that his credibility finding was based on Plaintiff’s work
history. The ALJ noted that “the claimant quit his job for non-medical reasons and he worked
only sporadically prior to the alleged disability onset date, which raises questions as to whether
the claimant’s continuing unemployment is actually due to medical impairment.” (Tr. 26).
Further, the ALJ noted that the record shows work activity after the alleged onset date which
indicates “that the claimant’s daily activities have, at least at times, been somewhat greater than
the claimant has generally reported.” (Tr. 26).
Here, the ALJ did not offer a boilerplate explanation for his decision to find Plaintiff not
entirely credible. The ALJ provided a substantive explanation for his decision supported by
substantial evidence. Accordingly, the Court affirms the ALJ’s decision.
III.

Conclusion

- 12 -

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.

Copies furnished to:
Counsel of Record
Unrepresented Parties

- 13 -