Fournier v. Commissioner of Social Security

Filing 18

OPINION AND ORDER affirming the administrative decision. The Clerk is directed to enter judgment and close the file. Signed by Magistrate Judge Thomas B. Smith on 1/9/2017. (EC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JESSICA MARCELA FOURNIER,
Plaintiff,
v.

Case No: 6:15-cv-1931-Orl-TBS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER 1
Plaintiff brings this action pursuant to the Social Security Act (“Act”), as amended,
42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of the
Social Security Administration (the “Commissioner”) denying her claim for disability
insurance benefits under the Act. Upon a review of the record, and after due
consideration, the Commissioner’s final decision is AFFIRMED, pursuant to sentence four
of 42 U.S.C. § 405(g).
Background 2
Plaintiff filed for benefits on May 30, 2012, alleging an onset date of July 15, 2009
(Tr. 172-73). Plaintiff claimed that she was disabled due to fibromyalgia (Tr. 206),
depression, and pain (Tr. 13). Her date last insured was December 31, 2014 (Tr. 65).
Plaintiff’s application was denied initially and on reconsideration, and Plaintiff
requested and received a hearing before an administrative law judge (“ALJ”) (Tr.104-09;

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Both parties have consented to the exercise of jurisdiction by a magistrate judge and the matter
has been referred in accordance with 28 U.S.C. §636(c) and Fed .R. Civ. P. 73.
2

The information in this section is taken from the parties’ joint memorandum (Doc. 17).

113-118; 1-34). In a decision dated April 3, 2014, the ALJ found Plaintiff not disabled
through the date of her decision (Tr. 62-83). The Appeals Council denied Plaintiff’s
request for review on September 15, 2015 (Tr. 35-41). Accordingly, the ALJ’s April 2014
decision is the final decision of the Commissioner.
Having exhausted the available administrative remedies, Plaintiff filed this action
for judicial review (Doc. 1). The matter is fully briefed and ripe for resolution.
The ALJ’s Decision
When determining whether an individual is disabled, the ALJ must follow the fivestep sequential evaluation process established by the Social Security Administration and
set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). Specifically, the ALJ must
determine whether the plaintiff (1) is currently employed; (2) has a severe impairment; (3)
has an impairment or combination of impairments that meets or medically equals an
impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past
relevant work; and (5) retains the ability to perform any work in the national economy.
See Phillips v. Barnhart, 357 F.3d 1232, 1237-1240 (11th Cir. 2004). The plaintiff 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); Phillips, 357 F.3d at
1241 n.10.
Here, the ALJ performed the required five-step sequential analysis. At step one,
the ALJ found that Plaintiff had not engaged in substantial gainful activity since her July
15, 2009 alleged onset date (Tr. 67). At step two, the ALJ determined that Plaintiff had the
severe impairment of fibromyalgia (20 CFR 404.1520(c)) (Tr. 67), but found her medically
determinable mental impairment of depression/mood disorder to be non-severe (Tr. 68).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of

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impairments that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526) (Tr. 69). Next, the ALJ found that Plaintiff retained the residual functional
capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b), with the
following limitations. The claimant can lift/carry 20 pounds
occasionally, and 10 pounds frequently. She can stand/walk
six hours out of an eight-hour workday, and sit six hours out of
an eight-hour workday. She is limited to occasionally climbing
ramps/stairs, balancing, stooping, kneeling, crouching, and
crawling. She never should climb ladders, ropes or scaffolds.
(Tr. 69).
At step four, the ALJ determined that Plaintiff was capable of performing her past
relevant work as a patient insurance clerk, interpreter, specimen processor, accident
insurance clerk, and phlebotomist (Tr. 76), and made alternative findings at step five, that
there are other jobs existing in the national economy that Plaintiff was able to perform (Tr.
77). Accordingly, the ALJ concluded that Plaintiff had not been under a disability from July
15, 2009, through the date of the ALJ’s decision (Tr. 78).
Standard of Review
The scope of the Court's review is limited to determining whether the ALJ applied
the correct legal standards and whether the ALJ’s findings are supported by substantial
evidence. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004).
Findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is “more than a scintilla but less than a preponderance. It is such
relevant evidence that a reasonable person would accept as adequate to support a
conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)
(citation omitted).

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When the Commissioner's decision is supported by substantial evidence the
district court will affirm even if the reviewer would have reached a contrary result as finder
of fact, and even if the reviewer finds that the preponderance of the evidence is against
the Commissioner's decision. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The
district court “may not decide facts anew, reweigh the evidence, or substitute our
judgment for that of the [Commissioner.]” Id. "The district court must view the record as a
whole, taking into account evidence favorable as well as unfavorable to the decision."
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (per curiam); accord Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (the court must scrutinize the entire record to
determine the reasonableness of the factual findings).
Discussion
Plaintiff raises three issues on review, contending that the ALJ erred: (1) in not
finding her mental impairments severe at step two; (2) by accepting the opinions of a nonexamining psychologist over the opinions from a treating board certified psychiatrist; and
(3) in assessing Plaintiff’s subjective complaints of pain. Upon close review, no error is
shown.
1. Step Two finding
In her decision, the ALJ acknowledged that Plaintiff had a medically determinable
mental impairment of depression/mood disorder but concluded that it “does not cause
more than minimal limitation in the claimant's ability to perform basic mental work
activities and is therefore nonsevere.” (Tr. 68).
The ALJ has a duty to consider all impairments, both singly and in combination,
when making an analysis of disability. 20 C.F.R. § § 404.1523 and 416.923. Remand is
required where the record contains a diagnosis of a severe condition that the ALJ failed to

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consider properly. Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1219 (11th Cir. 2001).
But, a mere diagnosis is not sufficient to establish that an impairment is severe. See
Sellers v. Barnhart, 246 F.Supp.2d 1201, 1211 (M.D. Ala. 2002). “The severity of a
medically ascertained impairment must be measured in terms of its effect upon [a
claimant's] ability to work and not simply in terms of deviation from purely medical
standards of bodily perfection or normality.” Id., citing McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir. 1986).
An impairment or combination of impairments is “severe” within the meaning of the
regulations if it significantly limits an individual’s ability to perform basic work activities. 20
C.F.R. § 404.1521. 3 An impairment or combination of impairments is “not severe” when
medical or other evidence establishes only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to
work. 20 C.F.R. §§ 404.1521, 416.921.
The claimant has the burden of proof to provide substantial evidence establishing
that a physical or mental impairment has more than a minimal effect on the claimant’s
ability to perform basic work activities. An 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. Brady
v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). Thus, a “[c]laimant need show only that
his impairment is not so slight and its effect not so minimal.” McDaniel v. Bowen, 800
F.2d 1026, 1031 (11th Cir.1986). To satisfy the requirements of step two of the sequential

3 Basic work activities include physical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, and handling, as well as capacities for seeing, hearing, and speaking;
understanding, remembering and carrying out simple instructions; responding appropriately to supervisors
and fellow employees and dealing with changes in the work setting; and the use of judgment. 20 C.F.R. §
404.1521(b).

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evaluation process, the claimant’s impairment(s) also must be severe for at least twelve
consecutive months. See 20 C.F.R. §§ 416.905(a), 416.909, 416.920(a)(4)(ii); Barnhart v.
Walton, 535 U.S. 212, 217 (2002).
In this case, the ALJ considered Plaintiff’s alleged mental impairment in the
context of the four broad functional areas set out in the disability regulations for
evaluating mental disorders (Tr. 68-69). Citing to record evidence, the ALJ found Plaintiff
had no limitations in daily activities given her reported ability to perform most personal
grooming activities, cook, wash laundry, take care of her young child, drive, make her
bed, watch television, shop, go out alone, count change, pay bills, use the computer and
telephone, attend her son’s school activities, go to the movies, and visit with family
members (Tr. 68). The ALJ found mild limitations in social functioning, citing Plaintiff’s
daily activities, reports that she gets along well with authority figures, and therapist
Giselle Apostel’s September 2013 assignment of a 65 GAF score, indicating only mild
symptoms or some difficulties in Plaintiff’s social and occupational functioning (Tr. 68,
644). The ALJ found Plaintiff had no more than mild limitations in concentration,
persistence, or pace, given her activities and her reported ability to pay attention for a
long time, follow instructions, and finish what she starts (although noting that Plaintiff
sometimes has difficulty concentrating and sometimes needs to hear instructions more
than once) (Tr. 68). Finally, the ALJ noted that Plaintiff experienced no episodes of
decompensation of extended duration (Tr. 68). Although the ALJ did not list Plaintiff’s
depression as severe at step two of the sequential evaluation, the record reflects that the
ALJ considered it, and the ALJ’s conclusions reached with respect to the impact of
Plaintiff’s depression on each functional area are supported by the ample evidence cited.

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Importantly, “the finding of any severe impairment, whether or not it qualifies as a
disability and whether or not it results from a single severe impairment or a combination
of impairments that together qualify as severe, is enough to satisfy the requirement at
step two.” Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987); see also Heatly v.
Comm’r of Soc. Sec., 382 Fed. Appx. 823 (11th Cir. 2010). Consistent with the
regulations and applicable law, the ALJ credited Plaintiff with another severe impairment
at step two and proceeded forward with the sequential evaluation. So, even if Plaintiff’s
depression should have been included as severe at step two (a finding the Court need
not make), the omission is only reversible error if the ALJ subsequently failed to fully
account for functional limitations arising from Plaintiff’s depression. As Plaintiff has not
identified any such functional limitations lasting for the 12 month requirement, remand is
not warranted.
2. Evaluation of Medical Opinion Evidence
Plaintiff objects to the ALJ’s evaluation of the opinions of her treating psychiatrist,
Dr. Jennifer Scott. In the administrative decision, the ALJ summarized Dr. Scott’s
treatment notes (Tr. 73-75), and then discounted the doctor’s opinions, reasoning:
As to mental health issues, the undersigned notes that in
February 2013 the claimant began treatment with Dr. Scott,
who diagnosed depressive disorder, anxiety disorder, and
ADHD. Despite what seemed to be a fairly normal mental
status examination, Dr. Scott assessed the claimant with a
GAF of 45. By April 2013, the claimant reported she was
better and she was working a full time job filing insurance
claims for hospitals. In July 2013, the claimant reported to Dr.
Scott that she was functioning well on Adderall, even while in
pain. Although she had lost her job, she was looking for
another job in the insurance industry. (Exhibit No. 13F.)
Several months later, in September 2013, therapist Ms.
Apostel reported the claimant was helping at her son's school,
and had a GAF of 65. (Exhibit No. 21F.)

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No weight is assigned to the September 2013 medical source
statement provided by Dr. Scott. The opinions expressed in
that statement, indicating the claimant had been markedly
limited in her mental functioning since 2009 although Dr. Scott
had treated the claimant only since February 2013, are
inconsistent not only with the objective medical evidence of
the claimant's longitudinal treatment, but also with Dr. Scott's
own treatment notes addressing the claimant's functionality
and progress. (Exhibit No. 13F.)
(Tr. 76).
Plaintiff objects to these findings, contending that Dr. Scott’s opinions are “based
on extensive abnormalities documented throughout the treatment record” and “are
uncontradicted by other substantial evidence in the record.” As such, argues Plaintiff, the
ALJ erred in discounting these opinions because as a treating physician, the ALJ was
required to either give these opinions controlling weight or explicitly address factors such
as the length of treatment, frequency of examination, nature and extent of the treatment
relationship, and specialization of the treating source. 20 C.F.R. §§404.1527, 416.927.
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 , 631 F.3d at 1178–79 (citing 20 CRF §§ 404.1527(a)(2), 416.927(a)(2);
Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).) When evaluating a physician's
opinion, an ALJ considers numerous factors, including whether the physician examined
the claimant, whether the physician treated the claimant, the evidence the physician
presents to support his or her opinion, whether the physician's opinion is consistent with

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the record as a whole, and the physician's specialty. See 20 C.F.R. §§ 404.1527(c),
416.927(c).
Substantial weight must be given to the opinion, diagnosis and medical evidence
of a treating physician unless there is good cause to do otherwise. See Lewis v. Callahan,
125 F.3d 1436 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991);
20 C.F.R. § 404.1527(d). Good cause for disregarding an opinion can exist when: (1) the
opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or
(3) the opinion is conclusory or is inconsistent with the source’s own treatment notes.
Lewis, 125 F.3d at 1440.
By contrast, a consultative examiner’s opinion is not entitled to the deference
normally given a treating source. See 20 C.F.R. § 404.1527(c)(2); Crawford v. Comm'r, of
Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004). Nonetheless, all opinions, including
those of non-treating state agency or other program examiners or consultants, are to be
considered and evaluated by the ALJ. See 20 C.F.R. §§ 404.1527, 416.927, and
Winschel.
The ALJ concluded that Dr. Scott’s opinions of marked limitations in functioning
were inconsistent with the doctor’s own treatment records and the evidence as a whole.
That finding is supported by substantial evidence. As detailed by the ALJ in her decision
(Tr. 71-75), the treatment records show periods where Plaintiff did not complain of any
psychiatric symptoms, her mental status examinations do not reflect disabling
abnormalities, and she responded well to treatment. 4 The Court also finds substantial

4 For example, as set forth in the joint memorandum, treatment notes by treating physician Violet
Slanac starting in July 2010 showed normal mental status examinations and Plaintiff denied any current
psychiatric symptoms. By October 2010, Dr. Slanac opined Plaintiff’s arthralgias/myalgias were
psychosomatic manifestations of anxiety and depression and were much improved since taking Lexapro
(Tr. 71, 291). In April 2011, Plaintiff returned to Dr. Slanac and reported that she stopped taking

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evidence to support the ALJ’s conclusion that the limitations set forth by Dr. Scott were
not corroborated by her own treatment notes. 5 Also, the Court finds evidentiary support
for the ALJ’s conclusion that Plaintiff’s activities, including two international trips,
“contradict any notion of total disability” (Tr. 75). 6
The ALJ gave great, but not controlling, weight to the opinions of state agency
consultants, including psychologist Robert Stainback, Ph.D. (Tr. 76, 98-100). Although
Plaintiff states that the ALJ “relied primarily” on this report (Doc. 17 at 25), the Court sees
no basis for this conclusion. Rather, the ALJ detailed and credited the medical evidence,
including numerous unremarkable assessments, and discounted the medical source
statement provided by Dr. Scott. Although the consultant did not review all the medical
evidence, the ALJ noted that the opinion of the consultant was based on all the “available
medical evidence,” (Tr. 76, emphasis added), and the opinion was consistent with the

benzodiazepine and antidepressant medications because her anxiety/depression was self-controlled (Tr.
289). Dr. Slanac opined Plaintiff’s depression had stemmed from marital issues that were now quiescent
(Tr. 289).
In July 2011, Plaintiff reported to treating physician Dr. Hasan that she was feeling much better on
Zoloft following a recent episode of depression due to her father’s death, and she denied any psychiatric
symptoms (Tr. 339-40). In July 2012, rheumatologist Dr. Ramirez opined that Plaintiff’s anxiety was doing
well on Xanax (Tr. 453). In September 2012, Plaintiff reported to Dr. Hasan that she had been doing better
until her recent divorce; however, Plaintiff denied any current psychiatric symptoms (Tr. 430-31). In January
2013, Plaintiff’s depression improved on a combination of Wellbutrin and Cymbalta, and she denied current
psychiatric symptoms (Tr. 545). By September 2013, Plaintiff reported to her therapist that she had signed
up to help at her son’s preschool (Tr. 644-645).
As detailed by the ALJ (Tr.73-74), on February 19, 2013 initial visit with Dr. Scott, Plaintiff was
well oriented, her memory seemed unimpaired, and her thought content showed no significant
preoccupations. Plaintiff appeared cooperative and interested, and she was able to maintain focus (Tr. 46869). In April 2013, Plaintiff reported to Dr. Scott that she was better able to focus and had a full-time job
filing insurance claims for hospitals (Tr. 470). Dr. Scott’s mental status exam findings were largely normal
aside from a finding of depressed mood and constricted affect (Tr. 470). In July 2013, Dr. Scott reported the
claimant had lost her job but was looking for another job in the insurance industry. She had not noticed a
benefit from an increased dose of Cymbalta, but she had a stable mood and was “doing well” on the
Adderall (Tr. 475).October notes again show normal mental status exam, other than a depressed mood and
constricted affect (Tr. 630).
5

6 The ALJ is entitled to consider this evidence.”[A]n ALJ does not need to give a treating
physician's opinion considerable weight if evidence of the claimant's daily activities contradicts the opinion.”
Jarrett v. Comm'r of Soc. Sec., 422 F. App'x 869, 873 (11th Cir. 2011).

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ALJ’s findings with respect to the other evidence. No error is shown. See generally Jarrett
v. Comm’r of Soc. Sec., 422 F. App’x 869, 874 (11th Cir. 2011) (no error in relying on
non-examining consultants’ opinions where the opinions were consistent with treatment
records and ALJ properly discounted the treating physician’s opinion).
3. Credibility
A claimant may seek to establish that she has a disability through her own
testimony regarding pain or other subjective symptoms. Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005). “In such a case, the claimant must show: (1) evidence of an
underlying medical condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the objectively
determined medical condition is of such a severity that it can be reasonably expected to
give rise to the alleged pain.” Id. Where an ALJ decides not to credit a claimant’s
testimony about pain or limitations, the ALJ must articulate specific and adequate
reasons for doing so, or the record must be obvious as to the credibility finding. Jones v.
Department of Health and Human Services, 941 F.2d 1529, 1532 (11th Cir. 1991)
(articulated reasons must be based on substantial evidence). A reviewing court will not
disturb a clearly articulated credibility finding with substantial supporting evidence in the
record. Foote, 67 F.3d at 1562.
The ALJ found Plaintiff “generally credible regarding the nature of her impairments.
However, the objective medical evidence and claimant’s activities do not substantiate
either the level of pain, or the limitations the claimant describes in this disability claim” (Tr.
75). Plaintiff contends that this determination lacks the support of substantial evidence in
that her activities are not reflective of what she can do on a regular basis. Plaintiff also
argues that the ALJ failed to explain what “objective” evidence the ALJ found inconsistent

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with Plaintiff’s statements regarding her physical impairments. These contentions are
without merit.
The ALJ properly considered Plaintiff’s statements that she engaged in multiple
activities, along with the rest of the evidence, to find that Plaintiff was not as limited as
she had alleged. See 20 C.F.R. § 404.1529(c)(3)(i); Macia v. Bowen, 829 F.2d 1009,
1012 (11th Cir. 1987). And, in her detailed summary of the medical evidence (Tr. 71-75),
the ALJ set forth numerous objective findings that are inconsistent with disabling
limitations. “The question is not ... whether ALJ could have reasonably credited [the
claimant's] testimony, but whether the ALJ was clearly wrong to discredit it.” Werner v.
Comm'r, of Soc. Sec., 421 F. App'x 935, 939 (11th Cir. 2011). Here, the ALJ provided a
detailed analysis of the evidence of record, supplied a rationale for her findings, and
these conclusions are supported by the evidence she cites. “If the Commissioner’s
decision is supported by substantial evidence, this Court must affirm, even if the proof
preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir.2004).
“We may not decide facts anew, reweigh the evidence, or substitute our judgment for that
of the [Commissioner.]” Id. (internal quotation and citation omitted).
Conclusion
Upon consideration of the foregoing:
1. The Commissioner’s final decision in this case is AFFIRMED
2. The Clerk is directed to enter judgment accordingly and CLOSE the file.
DONE and ORDERED in Orlando, Florida on January 9, 2017.

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Copies furnished to Counsel of Record

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