Simko v. Commissioner of Social Security

Filing 20

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 6/27/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
STEPHANIE ALEXA SIMKO,
Plaintiff,
v.

Case No: 6:16-cv-246-Orl-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Stephanie Alexa Simko, seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for 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 a Joint
Memorandum (Doc. 19) 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. §

-2-

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

-3-

1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination.
The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the
use of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Only after the Commissioner meets this burden does the burden shift back to the claimant to show
that she is not capable of performing the “other work” as set forth by the Commissioner. Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for SSI on December 22, 2011, alleging a disability onset date
of October 2, 2011. (Tr. 212). Plaintiff’s application was denied initially on April 25, 2012, and
upon reconsideration on August 10, 2012. (Tr. 56, 96). Plaintiff requested a hearing and a hearing
was scheduled for September 9, 2013, at the Orlando ODAR. (Tr. 114). On September 9, 2013,
Plaintiff’s hearing was postponed, and subsequently rescheduled for March 13, 2014. (Tr. 182).
On March 13, 2014, a hearing was held before Administrative Law Judge Janet Mahon (“the
ALJ”). (Tr. 25-55). On June 10, 2014, the ALJ entered a decision finding that Plaintiff was not
disabled. (Tr. 9-24). Plaintiff requested review of this decision and the Appeals Council denied
Plaintiff’s request on December 20, 2015. (Tr. 1-3). Plaintiff initiated the instant action by
Complaint (Doc. 1) on February 12, 2016. The parties having filed a joint memorandum setting
forth their respective positions, this case is ripe for review.
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 October 18, 2011, her application date. (Tr. 11). At step two, the
ALJ found that Plaintiff had the following severe impairments: seizures, paresthesia, and obesity.
(Tr. 11). At step three, the ALJ found that Plaintiff did not have an impairment or combination of

-4-

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. 12).
Before proceeding to step four, the ALJ found that, through the date last insured, Plaintiff
had the residual functional capacity (“RFC”) to
lift or carry 20 lbs. occasionally and 10 lbs. frequently with the dominant
hand and 10 lbs. occasionally and less than 10 lbs. with the left hand, to
stand for up to 4 hours in an 8-hour workday, to walk for up to 2 hours in
an 9-hour workday, and to sit for up to 6 hours in an 8-hour workday. The
claimant also can never climb ladders, ropes, or scaffolds; can
occasionally balance; can occasionally reach and handle with the left hand
and shoulder; must avoid concentrated exposure to fumes, odors, gases,
and poor ventilation; and must avoid even moderate exposure to hazards.
(Tr. 13). At step four, the ALJ found that Plaintiff was capable of returning to her past relevant
work as a a marketing recruiter/interviewer, as this work does not require the performance of workrelated activities precluded by Plaintiff’s RFC. (Tr. 15). The ALJ concluded that Plaintiff was not
under a disability at any since the application was filed October 18, 2011. (Tr. 16).
II.

Analysis
The Joint Memorandum sets forth a single issue: “[w]hether the ALJ failed to base the

claimant’s RFC upon substantial evidence where the ALJ improperly accorded ‘great weight’ to
the August 10, 2012 opinion of Dr. Charles E. Moore (Exh. 4A), a nonexamining state agency
physician, and Dr. Moore did not review later-dated evidence that showed the claimant’s
worsening medical condition.” (Doc. 19 p. 14).
Plaintiff argues that the ALJ erred by improperly according great weight to the August 10,
2012 opinion of Dr. Moore’s opinion despite the fact that Dr. Moore did not review later-dated
evidence that showed Plaintiff’s medical condition was worsening. (Doc. 19 p. 14-17). In
response, Defendant argues that Plaintiff’s argument has no merit because the ALJ considered all
of the records, and it is the ALJ’s responsibility to determine a claimant’s RFC. (Doc. 19 p. 18).
-5-

The record shows that Dr. Moore reviewed Plaintiff’s medical records on August 10, 2012.
(Tr. 80-85). After reviewing the record, Dr. Moore opined that Plaintiff could lift and/or carry 20
pounds occasionally, lift and/or carry 10 pounds frequently, stand about 6 hours in an 8-hour
workday, sit about 6 hours in an 8-hour workday, and his ability to push and/or pull was limited
in left upper extremities. (Tr. 82). Dr. Moore explained that his exertional limitation findings as
follows:
Despite negative XR L shoulder 6/25/12 there is objective evidence of
considerable pain with manipulation/elevation of the shoulder; as well as
consistent findings of mild degree (4/5) of L-sided hemiplegia. Gait
appears normal, although also described as ‘waddling,’ with a mild degree
of weakness noted affecting the LLE.
(Tr. 82).

Dr. Moore found that Plaintiff could frequently climb ramps/stairs; never climb

ladders/ropes/scaffolds; occasionally balance; and frequently stoop, kneel, and crouch. (Tr. 82).
Dr. Moore found that Plaintiff was limited in her ability to reach “left in front and/or laterally” and
“left overhead.” (Tr. 83). Dr. Moore found that Plaintiff was limited in her handling on the left
side. (Tr. 83). Dr. Moore explained his manipulative limitation findings as follows: “Frequently.
Mild left hemiparesis as noted above. Grip strength 5/5, RUE 5/5 strength, LUE 4/5. Coordination
is nml. Notes she frequently drops objects grasped with L hand.” (Tr. 83).
In the Joint Memorandum, Plaintiff notes that much additional medical and nonmedical
evidence was submitted into the record after Dr. Moore offered his opinion. For example, Plaintiff
notes that after Dr. Moore offered his opinion, on September 27, 2012, a cervical MRI revealed
that Plaintiff had a herniated disc and a radial tear at C2-3, as well as moderate to severe left neural
foraminal stenosis and moderate right neural foraminal stenosis at C4-5. (Tr. 640-641).
In addition, later treatment notes from Dr. Fernando Gonzalez-Portillo, Plaintiff’s treating
neurologist, indicate that Plaintiff’s left-sided paresthesias and weakness had worsened. For

-6-

example, on October 2, 2012, Dr. Gonzales-Portillo performed a bilateral hand neurological study,
which was abnormal and revealed left ulnar motor axonal neuropathy. (Tr. 644). On July 16,
2013, Dr. Gonzales-Portillo noted her daily left side weakness and pain with cramping of her left
leg and left hand. (Tr. 611). On September 6, 2013, Dr. Gonzales-Portillo again noted these
problems. (Tr. 613). Dr. Karenna Senors, Plaintiff’s primary care physician, noted on October 28,
2013, that Plaintiff was now experiencing right hand weakness which caused her to drop items,
and she wanted to refer Plaintiff for another neurology consult. (Tr. 628-629). On February 26,
2014, Dr. Gonzales-Portillo noted that “she is getting worse with the weakness,” and that Plaintiff
was now reporting both musculoskeletal and migraine headaches with dizziness, blurry vision and
double vision. (Tr. 647-648). Plaintiff notes that the evidence showing worsening left upper
extremity weakness with supporting c-spine MRI and hand neurological studies, developing right
upper extremity weakness, and headaches were not even considered by Dr. Moore.
Finally, Plaintiff notes that the nonmedical evidence after the date of Dr. Moore’s opinion
about Plaintiff’s worsening condition is also consistent with the later medical evidence. For
example, in her Disability Report-Appeal, dated August 23, 2012, Plaintiff stated that her left hand
was “useless” and that she had more pain in her left hand, left shoulder, and left foot. (Tr. 327).
At her hearing on March 13, 2014, Plaintiff testified that she could not hold onto anything with
her left hand; that her left shoulder hurt when she raised her arm and she could not reach overhead
with her left arm; that she wore a brace on her left leg most of the time when she went out, her left
leg drags, her gait is off, and she gets off balance; and that she could not even hold a book or an
iPad with her left hand. (Tr. 35-39). Plaintiff also points to the statement from her husband on
July 1, 2012, that she was unable to use her left hand and arm and had debilitating pain in her left
foot, left arm, left shoulder, and left foot. (Tr. 318).

-7-

Here, although Dr. Moore’s opinion was offered before significant medical evidence was
entered into the record, the Court finds no error in the ALJ’s decision to accord great weight to Dr.
Moore’s opinion. In his opinion, Dr. Moore set forth multiple limitation findings concerning
Plaintiff’s left hand and upper extremities, an opinion entirely consistent with the latest-dated
medical evidence in the record, i.e., Dr. Gonzalez-Portillo’s finding on February 26, 2014, that
Plaintiff’s examination revealed worsening, but still “mild left arm weakness.” (Tr. 648). Thus,
it is not the case that Dr. Moore’s opinion is at odds with the later entered evidence. The ALJ
provided that she reviewed the entire record, including the evidence submitted after Dr. Moore
offered his opinion, and determined that the opinion was “supported by the evidence of record and
is not contradicted by other opinions from an acceptable medical source.” (Tr. 15).
The ALJ’s review of the entire record, including the subsequent medical evidence, is made
apparent by the fact that the ALJ assessed an RFC more limited than Dr. Moore opined.
Specifically, the ALJ found that Plaintiff was limited to lifting 10 pounds or less with her left hand,
a limitation that Dr. Moore did not include in his opinion. (Tr. 13, 82). In addition, while Dr.
Moore found that Plaintiff could frequently perform manipulative functions with her left upper
extremity, the ALJ found Plaintiff could only occasionally reach and handle with her left hand and
shoulder. (Tr. 13, 83). Thus, the ALJ did not unconditionally accept the opinion of Dr. Moore
without regard to the rest of the opinion.
The fact that Plaintiff and her husband made statements that her left hand and arm were
more debilitating than Dr. Moore opined does not make the ALJ’s decision to accord great weight
to Dr. Moore’s opinion erroneous. The ALJ evaluated Plaintiff’s subjective allegations pursuant
to 20 C.F.R. § 416.929(a) and (b) and found that Plaintiff’s alleged symptoms were not entirely
credible. While the ALJ did not directly address the statement of her husband, the ALJ’s finding

-8-

that Plaintiff’s subjective allegations were not entirely credible was an implied rejection of her
husband’s statement. See Clyburn v. Comm’r of Soc. Sec. Admin., 555 F. App’x 892, 894 (11th
Cir. 2014) (finding the ALJ’s explicit rejection of the claimant’s testimony constituted an implied
rejection of her sister’s statements).
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 June 27, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

-9-