Cates v. Commissioner of Social Security
Filing
37
MEMORANDUM OF DECISION re: 1 Complaint. The final decision of the Commissioner is AFFIRMED; and The Clerk is directed to enter judgment for Commissioner and close the case. Signed by Magistrate Judge Daniel C. Irick on 9/7/2017. (RN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JUDY BURTON CATES,
Plaintiff,
v.
Case No: 6:16-cv-351-Orl-DCI
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OF DECISION
Judy Burton Cates (Claimant) appeals the Commissioner of Social Security’s final decision
denying her applications for disability benefits and supplemental security income. Doc. 1.
Claimant argues that the Administrative Law Judge (ALJ) erred by: 1) discounting Claimant’s
credibility; and 2) failing to give appropriate weight to the opinions of two of Claimant’s treating
physicians, Dr. Nermeen Saleh (a primary care physician) and Dr. Sunita Tikku (a psychiatrist).
Doc. 33 at 20. Claimant requests that the matter be reversed and remanded for an award of benefits
or, in the alternative, remanded for further proceedings. Id. at 33. For the reasons set forth below,
the Commissioner’s final decision is AFFIRMED.
I.
PROCEDURAL HISTORY.
This case stems from Claimant’s applications for disability insurance benefits and
supplemental security income. R. 40. Claimant alleged a disability onset date of June 30, 2008.
Id. On September 20, 2014, the ALJ entered a decision finding that Claimant was capable of
performing light work and could perform her past relevant work. R. 45-53. Thus, the ALJ
concluded that Claimant was not disabled. R. 53. As conceded by the Commissioner, Claimant
timely pursued her administrative remedies, and this matter is ripe for review under 42 U.S.C. §§
405(g) and 1383(c)(2). Doc. 36 at 1.
II.
THE ALJ’S DECISION.
The ALJ issued the operative decision on September 20, 2014. R. 40-53. The ALJ found
that Claimant had the following severe impairments: joint pain and depression. R. 42. The ALJ
also found non-severe impairments of stable gastrointestinal issues and clinically stable
polycythemia. Id. The ALJ found that Claimant does not have an impairment or combination of
impairments that meets or medically equals any listed impairment. R. 43-45.
The ALJ found that Claimant had the residual functional capacity (RFC) to perform light
work as defined by 20 C.F.R. §§ 404.1567(b) and 416.967(b),1 with the following specific
limitations:
sit, stand, and walk each for eight hours in an eight-hour day; no
climbing ropes, ladders or scaffolds; occasional bending, balancing,
stooping, squatting, crouching, crawling, kneeling, and climbing of
ramps and stairs; no overhead lifting but has full use of upper
extremities otherwise; no heights or vibrations; and no production
paced demands.
R. 45. The ALJ, in light of this RFC, found that Claimant was able to perform her past relevant
work as an office manager (a skilled, sedentary position), because that work does not require the
performance of work-related duties precluded by the RFC. R. 52-53. Thus, the ALJ found that
1
Light work is defined as “lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
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Claimant was not disabled from her alleged onset date, June 30, 2008, through the date of the
decision, September 20, 2014. Id.
III.
STANDARD OF REVIEW.
“In Social Security appeals, [the court] must determine whether the Commissioner’s
decision is supported by substantial evidence and based on proper legal standards.” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotations omitted).
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 – i.e., the evidence must do more than merely
create a suspicion of the existence of a fact, and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where 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 evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The Court must view
the evidence as a whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote, 67 F.3d at 1560. The District Court “‘may not decide the facts anew, reweigh
the evidence, or substitute [its] judgment for that of the [Commissioner].’” Phillips v. Barnhart,
357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)).
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IV.
ANALYSIS.
1. Credibility
Claimant argues that the ALJ’s reasons supporting her credibility determination are not
supported by substantial evidence. Doc. 33 at 20-28. The Commissioner essentially argues that
the ALJ’s credibility finding is supported by substantial evidence, even if some of the specific
reasons stated by the ALJ are incorrect or not supported by substantial evidence. Doc. 36 at 4-8.
A claimant may establish “disability through his own testimony of pain or other subjective
symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). A claimant seeking to
establish disability through his or her own testimony must show:
(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). If the ALJ determines that the claimant
has a medically determinable impairment that could reasonably produce the claimant’s alleged
pain or other symptoms, the ALJ must then evaluate the extent to which the intensity and
persistence of those symptoms limit the claimant’s ability to work. 20 C.F.R. §§ 404.1529(c)(1),
416.929(c)(1). In doing so, the ALJ considers a variety of evidence, including, but not limited to,
the claimant’s history, the medical signs and laboratory findings, the claimant’s statements,
medical source opinions, and other evidence of how the pain affects the claimant’s daily activities
and ability to work. Id. at §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3). “If the ALJ decides not to
credit a claimant’s testimony as to her pain, he must articulate explicit and adequate reasons for
doing so.” Foote, 67 F.3d at 1561-62. “Credibility determinations are the province of the ALJ.”
Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir.2005). The Court will not disturb a clearly
articulated credibility finding that is supported by substantial evidence. Foote, 67 F.3d at 1562.
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The ALJ held a hearing in this case on July 1, 2014. R. 69-110.2 At the hearing, Claimant
testified that she had essentially raised her grandson from his birth in late 2005, with the assistance
of her husband (prior to his death in 2011), neighbors, and friends from church. R. 81-82.
Claimant also acknowledged that, on her alleged onset date, she was laid off from her prior
employment due to a downturn in the economy, and did not leave her employment due to her
alleged disability. R. 82-83. Thereafter, Claimant collected unemployment and looked for new
work, but was unable to find any. Id. However, Claimant asserted that her depression, anxiety,
and joint pain had been increasing prior to her termination, and that she ultimately was unable to
work due to her medical issues. R.83-85. Claimant asserted that her medical issues caused her
myriad problems and caused her to be unable to complete many activities of daily living without
assistance from others, including shopping, cooking, caring for her grandson, and taking care of
her house. R. 86-101. Claimant explained that her joint pain and arthritis affected her shoulders,
back, knees, and wrists and prevented her from reaching, stooping, crouching, and lifting objects.
Id. Further, Claimant stated that her anxiety and depression caused her to have panic attacks and
experience extreme stress, and that she also suffered from forgetfulness and from fatigue that
required her to take naps each day. Id. In posing questions to the vocational expert, Claimant’s
attorney included proposed restrictions that Claimant had to take one or two naps (of an hour or
more in duration) per day, and also that she had daily panic attacks that lasted anywhere from a
half-hour to an hour-and-a-half. R. 104. While the vocational expert found that Claimant could
perform her past relevant work (that of an office manager) based on the ALJ’s hypothetical, the
2
Claimant was represented during the hearing by the same attorney that represents her in this
matter. R. 69.
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vocational expert agreed that the additional restrictions suggested by Claimant’s counsel would
preclude all work. Id.
In her decision, the ALJ found that Claimant’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms, but concluded that her statements
concerning the intensity, persistence, and limiting effects of her symptoms are “not entirely
credible for the reasons explained in this decision.” R. 46. Specifically, the ALJ explained:
Turning to the medical evidence, the objective findings in this case
fail to provide strong support for the claimant's allegations of
disabling symptoms and limitations. More specifically, the medical
findings do not support the existence of limitations greater than the
above listed residual functional capacity. In terms of the claimant’s
alleged conditions, the medical record demonstrates that the doctors
have diagnosed the claimant’s symptoms as joint pain and
depression.
R. 46. The ALJ also relied on Claimant’s activities of daily living, particularly the full-time care
she provides to her grandson, in determining Claimant’s credibility. R. 46, 51. Therefore, the ALJ
found that Claimant’s allegations concerning the intensity, persistence, and limiting effects of her
symptoms “not entirely credible” because the medical evidence does not support those allegations.
Id.
In asserting that the ALJ’s credibility determination was not supported by substantial
evidence, Claimant made numerous, brief arguments that the ALJ misstated the facts and
disregarded the medical evidence supporting Claimant’s position. Doc. 33 at 20-28. Specifically,
Claimant made the following arguments:
1. The ALJ inaccurately stated that Claimant traveled out of town to care for her
octogenarian mother (Doc. 33 at 22, referencing R. 50);
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2. The ALJ took into consideration the fact that Claimant collected unemployment and
unsuccessfully sought work following the alleged onset date (Id. at 22-23, referencing
R. 46, 83-84);
3. The ALJ “cherry picked” medical evidence that supported the ALJ’s decision (Id. at
23, referencing R. 48, 571-72, 592-96);
4. The ALJ’s observation that Claimant did not fill a prescription for Omeprazole was
“only partially true” (Id., referencing R. 48, 573-74);
5. The ALJ implied that Claimant chose to purchase cigarettes rather than pay for medical
services (Id. at 24, referencing R.47);
6. The ALJ referred to “psychological testing,” but “testing” allegedly typically refers to
objective medical tests, and the record contains only evidence of subjective evaluations
(Id. at 24, referencing R. 51, 962-74);
7. The ALJ improperly implied that Claimant’s symptoms must have been improving
because she refused any medication changes (Id. at 24, referencing R. 51);
8. The ALJ inappropriately focused her attention on the mental status reports and GAF
scores, but paid little attention to the reactions Claimant allegedly had to increased
stress and medication adjustments (Id. at 25-26, referencing R. 51);
9. The ALJ ignored Claimant’s functional report, which indicated that Claimant no longer
participated in church events (Id. at 26, referencing R. 418-20);
10. The ALJ ignored Claimant’s testimony, and the fact that Claimant’s testimony and
functional reports were allegedly “consistent with the medical records” (Id. at 26-27,
referencing R. 85-99);
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11. The ALJ questioned Claimant’s credibility on the basis that she took public
transportation (Id. at 27-28, with no accompanying citation to the Record); and
12. The ALJ “seem[ed] to question the treatment plans of the various [medical] providers”
(Id. at 28, referencing R. 46-47).
The Court has considered whether the ALJ’s reasons in her decision support her credibility
determination and are supported by substantial evidence. The ALJ found that the medical record
demonstrates that Claimant’s allegations concerning the intensity, persistence, and limiting effects
of her symptoms were not entirely credible. R. 46; see 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3);
SSR 96-7p, 1996 WL 374186, at *5 (July 2, 1996). Specifically, the ALJ couched her credibility
determination in terms of how the medical evidence did not support any more restrictive
limitations than those set forth in the RFC. R. 46. And in the pages and paragraphs of the ALJ’s
decision that followed that credibility determination, the ALJ discussed the medical evidence,
often describing how that evidence related to the RFC.
For example, after discussing medical records from Florida Hospital Fish Memorial dated
from 2012, the ALJ stated that “these findings clearly show that the claimant was capable of
performing work related activities within the residual functional capacity.” Id. at 47. Those
records included physical examinations in which Claimant denied experiencing back pain, had
normal range of motion, and showed normal strength. Id. (citing Exhibits 3F and 5F). The ALJ
also discussed a May 2012 consultative examination by a physician that found, among other things,
that Claimant was able to independently complete her activities of daily living and had full
strength. Id. at 47. The ALJ explained that “none of those findings contradict the residual
functional capacity above.” Id. As another example, the ALJ discussed December 2012 records
from Florida Hospital Fish Memorial that, among other things, showed that upon mental status
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testing Claimant displayed “appropriate appearance, full orientation, unremarkable behavior,
unremarkable psychomotor behavior, appropriate speech, constricted affect, euthymic mood,
intact memory, average intellect, cooperative attitude, good attention, fair reasoning, fair
judgment, fair insight, logical thought process, and unremarkable thought content.” Id. at 50. The
ALJ explained that “these fairly normal findings are consistent with the residual functional
capacity.” Id. In addition, the ALJ considered medical records from PRC Associates from January
and June 2014 that showed no deficits in strength and no psychiatric abnormalities, and only mild
right knee tenderness. Id. at 51. The ALJ concluded that none of those findings “would preclude
the claimant from performing work within the residual functional capacity.” Id. These reasons,
along with the ALJ’s other reasons, support her credibility determination, and are supported by
substantial evidence. See, e.g., R. 43-52. Therefore, the Court finds that the ALJ’s credibility
determination is supported by substantial evidence.
Claimant, in asserting that the ALJ’s decision is not supported by substantial evidence,
identifies approximately a dozen reasons purportedly undermining the ALJ’s determination. Doc.
33 at 20-28. A few of these arguments are somewhat compelling; particularly the first assertion
that the ALJ misstated the evidence in relation to Claimant caring for her octogenarian mother,
something that does not appear to be part of the evidence in this matter. However, even if some
of the reasons cited by the ALJ are incorrect (or otherwise not supported by substantial evidence),
the fact that substantial evidence supports the decision as a whole is cause to affirm that decision.
See Wilson v. Comm’r of Soc. Sec., 500 F. App’x 857, 859-60 (11th Cir. 2012) (noting that remand
was unwarranted even if the ALJ cited an improper finding to support his adverse credibility
determination because there was sufficient evidence within the record to support the ALJ’s other
reasoning for his adverse credibility determination); Ellison v. Barnhart, 355 F.3d 1272, 1275
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(11th Cir. 2003) (holding that an ALJ's failure to consider a claimant’s inability to afford treatment
did not constitute reversible error when the ALJ did not rely primarily on a lack of treatment to
find that the claimant was not disabled); see also D’Andrea v. Comm’r of Soc. Sec. Admin., 389 F.
App’x 944, 948 (11th Cir. 2010) (per curiam) (rejecting argument that ALJ failed to accord proper
weight to treating physician’s opinion “because the ALJ articulated at least one specific reason for
disregarding the opinion and the record supports it.”); see also Gilmore v. Astrue, 2010 WL
989635, at *14-18 (N.D. Fla. Feb. 18, 2010) (finding that the ALJ’s decision to discount a treating
physician’s opinion was supported by substantial evidence, even though two of the many reasons
articulated by the ALJ were not supported by substantial evidence).
Most of Claimant’s assertions, though, are simply requests that this Court weigh the
evidence and find that it preponderates against the ALJ’s decision. However, this Court “‘may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner].’” Phillips, 357 F.3d at 1240 n.8 (quoting Bloodsworth, 703 F.2d at 1239). Here,
as set forth in the foregoing paragraphs, the Commissioner’s decision is supported by substantial
evidence. Thus, the Court must affirm even if the Court found that the evidence preponderates
against the Commissioner’s decision. Edwards, 937 F.2d at 584 n.3 (11th Cir. 1991).
The Court has reviewed the evidence of record and the ALJ’s decision concerning
Claimant’s credibility, a decision uniquely within the province of the ALJ, and the Court finds that
the decision is supported by substantial evidence. In discounting Claimant’s credibility, the ALJ
cited to the medical evidence, which, contrary to Claimant’s testimony, contained an extensive
record of Claimant presenting during the alleged period of disability with significantly less severe
– or no – complaints and observations concerning both Claimant’s mental health and pain issues,
as well as Claimant’s daily activities. To the extent the ALJ erred by, for example, citing a piece
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of evidence not within the record, that error is harmless because substantial evidence supports the
ALJ’s credibility determination.
2. Physician Opinions
Claimant maintains that the ALJ’s reasons for assigning no weight to Dr. Saleh’s and Dr.
Tikku’s opinions are not supported by substantial evidence. Doc. 33 at 29-33. Thus, Claimant
argues that the ALJ erred by assigning no weight to Dr. Saleh’s and Dr. Tikku’s opinions. Id.
Contingent on those alleged errors in weighing the doctors’ opinions, Claimant also asserts that
the ALJ erred by failing to take into account all of Claimant’s limitations and, thus, the resulting
RFC was deficient, as was the resulting hypothetical posed to the vocational expert. Id. at 29-33.
The core issue, though, is that the ALJ allegedly erred in weighing the doctors’ opinions. See id.
The Commissioner maintains that the ALJ provided good cause reasons for assigning Dr.
Saleh’s and Dr. Tikku’s opinions no weight, and that the ALJ’s decision in doing so is supported
by substantial evidence. Doc. 36 at 8-11. Thus, the Commissioner argues that the ALJ did not err
by assigning no weight to Dr. Saleh’s and Dr. Tikku’s opinions. Id.
The ALJ assesses the claimant’s RFC and ability to perform past relevant work at step four
of the sequential evaluation process. Phillips, 357 F.3d at 1238. The RFC “is an assessment,
based upon all of the relevant evidence, of a claimant’s remaining ability to do work despite his
impairments.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The ALJ is responsible
for determining the claimant’s RFC. 20 C.F.R. §§ 404.1546(c), 416.946(c). The consideration
and weighing of medical opinions is an integral part in determining the claimant’s RFC. The ALJ
must consider a number of factors in determining how much weight to give each medical opinion,
including: 1) whether the physician has examined the claimant; 2) the length, nature, and extent of
the physician’s relationship with the claimant; 3) the medical evidence and explanation supporting
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the physician’s opinion; 4) how consistent the physician’s opinion is with the record as a whole;
and 5) the physician’s specialization. 20 C.F.R. §§ 404.1527(c), 416.927(c).
A treating physician’s opinion must be given controlling weight, unless good cause is
shown to the contrary. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (giving controlling weight
to the treating physician’s opinion unless it is inconsistent with other substantial evidence); see
also Winschel, 631 F.3d at 1179. There is good cause to assign a treating physician’s opinion less
than substantial or considerable weight, where: 1) the treating physician’s opinion is not bolstered
by the evidence; 2) the evidence supports a contrary finding; or 3) the treating physician’s opinion
is conclusory or inconsistent with the physician’s own medical records. Winschel, 631 F.3d at
1179. Critically, the ALJ must state the weight assigned to each medical opinion, and articulate
the reasons supporting the weight assigned to each opinion. Id. The failure to state the weight
with particularity or articulate the reasons in support of the weight prohibits the Court from
determining whether the ultimate decision is rational and supported by substantial evidence. Id.
Dr. Saleh’s Treatment Notes and Opinion
The record reveals that Claimant began treating with Dr. Saleh, her primary care physician,
in about 2012. R. 442. On August 21, 2012, Claimant presented for a possible urinary tract
infection (UTI). R. 646-49. Other than the UTI symptoms, Claimant’s physical examination was
entirely unremarkable and, as to her psychiatric state, Dr. Saleh noted “[n]o unusual anxiety or
evidence of depression.” R. 648.
On January 21, 2013, Claimant visited Dr. Saleh for a follow-up examination in relation to
Claimant’s visits to cardiology and pulmonology specialists. R. 701-04. Claimant complained of
back pain, but a physical examination was unremarkable. R. 703. Dr. Saleh also noted that
Claimant’s affect was normal, although she appeared anxious. Id.
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On March 4, 2013, Claimant visited Dr. Saleh complaining of a UTI and right shoulder
pain.
R. 706-10.
Other than the right shoulder, Claimant’s physical examination was
unremarkable, and Dr. Saleh recommended treatment for Claimant’s shoulder that included
heating pads and exercise. R. 708. Dr. Saleh also noted “[n]o unusual anxiety or evidence of
depression.” Id.
On April 26, 2013, Claimant visited Dr. Saleh complaining of back pain, which was
described as having a sudden onset, without injury. R. 716-19. Claimant’s physical examination,
including musculoskeletal and psychiatric, was unremarkable, and Dr. Saleh noted that Claimant
had normal muscle tone, no spasms, no tenderness, and appropriate mood and affect. R. 717-18.
On October 24, 2013, Claimant visited Dr. Saleh complaining of back pain and fatigue. R.
720-23. This was an initial visit for fatigue, which was described as having a sudden onset. R.
720. As for the back pain, Claimant reported that the back pain was of moderate severity and had
worsened, but Claimant denied any associated weakness. Id. Claimant’s physical examination
was normal, and Dr. Saleh stated that Claimant displayed an appropriate mood and affect. R. 721.
On November 13, 2013, Claimant visited Dr. Saleh for a follow-up. R. 724-27. During
the visit, Claimant reported joint pain and joint swelling, but her physical examination was
otherwise normal. R. 725-26. Her anxiety symptoms were noted as stable. R. 726.
On June 23, 2014, Dr. Saleh completed a “Physical Residual Function Capacity
Assessment,” which is Dr. Saleh’s opinion that is at issue in this matter. R. 1006-13. In that
Assessment, Dr. Saleh opined as to several exertional limitations. Id. Dr. Saleh opined that
Claimant could occasionally and frequently lift and carry (including upward pulling) 10 pounds
but not 25 pounds, could stand or walk less than two hours in an eight-hour workday, must
periodically sit and stand to relieve pain, and had limitations in upper and lower extremities in
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relation to pushing and pulling related to wrist pain, shoulder pain, and knee pain from tendonitis
and arthritis. R. 1007. However, Dr. Saleh did not explain why the evidence supported her
conclusions, as requested on the assessment form. Id. Dr. Saleh also opined that Claimant could
never climb ramps or stairs, but, strangely, could occasionally climb ladders, ropes, and scaffolds.
R. 1008. Dr. Saleh opined that Claimant could never kneel or crawl, but provided no indication
as to whether Claimant could balance, stoop, or crouch, and again did not explain why the evidence
supported her conclusions, as requested on the assessment form. Id. Dr. Saleh opined that
Claimant was “limited” in reaching in all directions, handling, fingering, and feeling, but once
again did not explain why the evidence supported her conclusions, as requested on the assessment
form, and did not explain the nature of the limitation, as requested on the assessment form. R.
1009. Dr. Saleh opined that Claimant was limited in speaking, and in response to the assessment
form query as to the nature of the limitation, Dr. Saleh wrote “forgetful,” although Dr. Saleh again
did not explain why the evidence supported her conclusions, as requested on the assessment form.
R. 1010. Dr. Saleh opined that Claimant must avoid all exposure to extreme cold, extreme heat,
noise, and humidity, but provided no indication as to whether Claimant could tolerate wetness,
vibration, fumes, or hazards. Id. In response to the assessment form query as to the nature of the
limitation, Dr. Saleh wrote “noise increase her anxiety[,] humidity makes it hard to breath[,] cold
[increases] joint pain,” although Dr. Saleh again did not explain why the evidence supported her
conclusions, as requested on the assessment form. Id. Dr. Saleh provided no additional comments
or explanations.
Dr. Tikku’s Treatment Notes and Opinion
The record reveals that Claimant began treating with Dr. Tikku, a psychiatrist, on
September 25, 2012, based on a referral from Dr. Saleh. R. 442-43; 763-66. At the initial
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evaluation, Claimant’s primary complaint was mood swings. R. 763. Claimant also complained
of poor attention, poor concentration, racing thoughts, difficulty sleeping at night, and poor
appetite. Id. Claimant reported that she felt easily overwhelmed and had difficulty coping with
daily stressors. Id. Claimant explained that she lost her son and husband on Thanksgiving. Id.
Claimant also reported drinking six sodas a day, being a daily smoker, exercising daily, and having
a healthy diet. Id. According to Dr. Tikku, Claimant’s mental status and behavior were mostly
unremarkable, Claimant was able to maintain attention, and her memory was intact. R. 615-16.
Claimant’s mood was described as depressed, and her reasoning, impulse control, judgment, and
insight, were described as fair. Id. Based on that initial evaluation, Dr. Tikku stated that Claimant
met the criteria for depression, single episode, moderate, with problems related to finances,
occupation, and primary support group, and a GAF of 52. R. 766. Dr. Tikku stated that Claimant
would benefit from the addition of a mood stabilizer to her medication regimen. Id. Dr. Tikku
treated Claimant on five additional occasions: October 15, 2012, December 19, 2012, April 3,
2013, June 7, 2013, and September 5, 2013. R. 763-84. Dr. Tikku’s treatment notes from this
period, though, did not contain any functional limitations. See id.
On October 15, 2012, Claimant saw Dr. Tikku for a medication follow-up. R. 769-71. At
that visit, Dr. Tikku described Claimant as somewhat calm, and Claimant reported that her mood
had been somewhat better, although Claimant self-reported difficulty sleeping, anxiousness, racing
thoughts, and difficulty in her daily functioning. R. 769-70. According to Dr. Tikku, Claimant’s
mental status and behavior were mostly unremarkable, Claimant was able to maintain attention,
and her memory was intact. Id. Claimant’s mood was described as anxious, and her reasoning,
impulse control, judgment, and insight, were described as fair. Id. Dr. Tikku determined
Claimant’s GAF to be 54 and adjusted Claimant’s medication. R. 770-71.
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On December 12, 2012, Claimant saw Dr. Tikku for a medication follow-up. R. 773-75.
During that visit, Claimant appeared as “much calmer” and reported “feeling much calmer” and
coping with daily stressors “fairly.” R. 773-74. According to Dr. Tikku, Claimant’s mental status
and behavior were mostly unremarkable, Claimant was able to maintain attention, and her memory
was intact. Id. Claimant’s mood was described as euthymic and affect constricted, and her
reasoning, impulse control, judgment, and insight, were described as fair.
Id.
Dr. Tikku
determined Claimant’s GAF to be 54 and continued Claimant’s current medication. R. 774-75.
On April 3, 2013, Claimant visited again with Dr. Tikku, and received supportive therapy.
R. 777-78. Dr. Tikku noted that claimant was depressed. Id. Claimant reported difficulty coping,
and that her son has been incarcerated, her car has been repossessed, and she has been caring for
her seven-year-old grandson. R. 777. There were no specific mental status findings by Dr. Tikku,
but it was noted that Claimant’s GAF was 53. Id. Claimant’s current medication was increased.
R. 778.
On June 7, 2013, Claimant visited Dr. Tikku for a follow-up. R. 779-80. Dr. Tikku noted
that Claimant appeared calmer, but Claimant reported that she continued to have difficulty with
concentration and daily functioning. R. 779. Despite those self-reports, according to Dr. Tikku,
Claimant’s mental status and behavior were mostly unremarkable, Claimant was able to maintain
attention, and her memory was intact. Id. Claimant’s mood was described as euthymic and affect
constricted, and her reasoning, impulse control, judgment, and insight, were described as fair. Id.
Dr. Tikku determined Claimant’s GAF to be 54 and stopped certain of Claimant’s current
medication in favor of others due to Claimant’s complaints that she was not tolerating one of her
medications well. R. 780.
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On September 5, 2013, Claimant visited Dr. Tikku for a follow up. R. 781-83. Dr. Tikku
noted the Claimant had a “somewhat brighter affect,” and Claimant reported that she has been
feeling anxious, but that she had been coping better with daily stressors. R. 782. As in all prior
mental status examinations, according to Dr. Tikku, Claimant’s mental status and behavior were
mostly unremarkable, Claimant was able to maintain attention, and her memory was intact. Id.
Claimant’s mood was described as anxious and affect appropriate, and her reasoning, impulse
control, judgment, and insight, were described as fair. Id. Dr. Tikku determined Claimant’s GAF
to be 54 and increased Claimant’s current medication. R. 783.
On July 2, 2014, Dr. Tikku completed a “Medical Residual Functional Capacity
Assessment.” R. 1017-19. In that Assessment, Dr. Tikku checked boxes that indicated that for
every, single, functional limitation, Claimant was “Moderately Limited.” Id. At the end of the
Assessment, Dr. Tikku wrote that Claimant “has had difficulty in all areas of functioning due to
mental health issue.” Id. at 1019. There is no indication as to what particular “mental health issue”
Dr. Tikku is referencing, and Dr. Tikku provided no additional explanation concerning the
functional limitations he endorsed via check mark. Id.
Other Relevant Treatment Notes
In 2012, Claimant also visited with Dr. Dorna Broome-Webster, who, like Dr. Saleh,
practiced at Florida Hospital Fish Memorial. During several visits with Dr. Dorna BroomeWebster, Claimant presented as negative for psychiatric symptoms, often with no unusual anxiety
or evidence of depression, and with a mostly normal physical examination that included a normal
range of motion. R. 650-55; 741-44; 747-49; 752-55; 757-60. Similarly, in 2013, Claimant treated
with Dr. Chad Broome-Webster of Daytona Heart Group, whose treatment notes show that
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Claimant had “been doing well,” denied anxiety, depression and joint pain, and had a normal
physical examination. R. 786-89; 790-93; 798-801; 803-06.
The ALJ’s Determination in Regards to those Opinions
The ALJ discussed Dr. Saleh’s and Tikku’s and opinions in the same paragraph, and
assigned them no weight, explaining:
As for the opinion evidence, I have considered the assessments
offered by the claimant's treating physicians, Drs. Saleh and Tikku.
A treating physician's opinion is given controlling weight only if it
is well supported and not inconsistent with other substantial
evidence. I find that the opinions in this case are not supported by
objective clinical findings and are inconsistent with other substantial
evidence. For example, Dr. Saleh regularly notes unremarkable
findings (i.e. no back/spine abnormalities, no joint abnormalities,
normal ranges of motion, no motor or sensory deficits, no
tenderness, etc.) (Exhibits 25F, 26F, and 30F) and objective imaging
of the claimant has found only minimal abnormalities (Exhibits 1F,
23F, and 32F). Moreover, Dr. Tikku's own record and records from
Dr. Tikku's facility (i.e. Florida Hospital Fish Memorial) routinely
note unremarkable finding as well and only occasionally note
abnormalities in her mood and affect (Exhibits 18F, 27F, 31F, and
37F). Given these doctors' opinions, l would expect to see at least
some consistent significant objective abnormalities during
examinations. Therefore, these opinions are accorded no weight.
R. 52. Thus, the ALJ assigned both doctors’ opinions no weight because those opinions were “not
supported by objective clinical findings and are inconsistent with other substantial evidence.” Id.
The ALJ then discussed each doctor’s opinion in turn, citing medical evidence within the record:
Dr. Saleh regularly notes unremarkable findings (i.e. no back/spine abnormalities, no joint
abnormalities, normal ranges of motion, no motor or sensory deficits, no tenderness, etc.)
(Exhibits 25F, 26F, and 30F) and objective imaging of the claimant has found only minimal
abnormalities (Exhibits 1F, 23F, and 32F).
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Dr. Tikku's own record and records from Dr. Tikku’s facility (i.e. Florida Hospital Fish
Memorial) routinely note unremarkable finding as well and only occasionally note
abnormalities in her mood and affect (Exhibits 18F, 27F, 31F, and 37F).
Id. Finally, the ALJ concluded that: “Given these doctors’ opinions, I would expect to see at least
some consistent significant objective abnormalities during examinations. Therefore, these
opinions are accorded no weight.” Id.
Claimant argues that the ALJ failed to properly weigh the opinions of those doctors. Doc.
33 at 29-33. Citing Winschel, Claimant asserts that the ALJ erred because the doctors’ opinions
“are bolstered by evidence, and there is no evidence to support a contrary finding.” Id. at 32.
Claimant then discussed certain evidence that Claimant asserts supports the opinions of Dr. Saleh
and Dr. Tikku, urging the Court to find that the evidence supports the doctors’ opinions. Id. at 3233.
The undersigned finds that the ALJ stated good cause to assign Dr. Saleh’s opinion no
weight. In explaining her reasons for giving Dr. Saleh’s opinion no weight, the ALJ stated that
Dr. Saleh, in her own treatment notes, regularly made unremarkable findings (i.e. no back/spine
abnormalities, no joint abnormalities, normal ranges of motion, no motor or sensory deficits, no
tenderness, etc.). In support of that explanation, the ALJ cited to Exhibits 25F, 26F, and 30F.
Those exhibits contain the treatment notes of Dr. Saleh discussed in the foregoing paragraphs. The
Court has reviewed those treatment notes, and finds that that the ALJ’s conclusion is supported by
substantial evidence. Indeed, the treatment notes not only of Dr. Saleh, but also of Claimant’s
other treating and examining physicians as discussed herein, show that Claimant overwhelmingly
had normal physical examinations that resulted in unremarkable findings, normal strength, and
normal range of motion. As further support for her conclusion, the ALJ explained that the
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objective imaging of Claimant showed only minimal abnormalities, citing to Exhibits 1F, 23F, and
32F. Those exhibits include radiology reports from Drew Medical from 2008 and 2009 (Exhibit
1F, R. 452-55), radiology reports from LAD Imaging from 2012 (Exhibit 23F, R. 671-78), and
treatment notes from PRC Associates (Exhibit 32F, R. 866-922).
The undersigned also finds that the ALJ stated good cause to assign Dr. Tikku’s opinion
no weight. In explaining her reasons for giving Dr. Tikku’s opinion no weight, the ALJ stated that
Dr. Tikku, in his own treatment notes and in records from Dr. Tikku’s facility (i.e. Florida Hospital
Fish Memorial), routinely made unremarkable findings, and only occasionally noted abnormalities
in Claimant’s mood and affect, citing to Exhibits 18F, 27F, 31F, and 37F. Those exhibits contain
the treatment notes of Dr. Tikku discussed in the foregoing paragraphs. The Court has reviewed
those treatment notes and finds that that the ALJ’s conclusion is supported by substantial evidence.
Indeed, as set forth in the foregoing paragraphs, the treatment notes not only of Dr. Tikku, but also
of Claimant’s other treating and examining physicians, show that Claimant overwhelmingly had
normal examinations that noted Claimant’s mental status and behavior as mostly unremarkable,
and Claimant was able to maintain attention and her memory was intact. Other physicians noted
normal psychiatric finding, no unusual anxiety or depression, or a denial of anxiety or depression.
When Dr. Tikku did note anxiety or depression, there was no indication that it was of a severity
that would result in an across-the-board “moderate limitation” in all of Claimant’s mental health
functions, as Dr. Tikku eventually opined.
The ALJ, in light of the foregoing, has stated good cause to assign no weight to Dr. Selah’s
and Dr. Tikku’s opinions. Those reasons, as discussed above, are supported by substantial
evidence, and, together, support the ALJ’s decision to assign no weight to Dr. Selah’s and Dr.
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Tikku’s opinions. Therefore, the Court finds that the ALJ did not err in assigning to Dr. Selah’s
and Dr. Tikku’s opinions no weight.
Claimant also asserts that the ALJ erred in determining the RFC and posing the relevant
hypothetical question to the vocational expert because the ALJ improperly failed to take into
consideration Dr. Selah’s and Dr. Tikku’s opinions. Because the Court finds that the ALJ did not
err by rejecting those opinions, the Court finds that the ALJ did not err in failing to include the
functional limitations contained within those opinions when determining the RFC and posing the
question to the vocational expert.
V.
CONCLUSION.
For the reasons stated above, it is ORDERED that:
1. The final decision of the Commissioner is AFFIRMED; and
2. The Clerk is directed to enter judgment for Commissioner and close the case.
DONE and ORDERED in Orlando, Florida on September 7, 2017.
Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Teresa J. McGarry
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc.
Desoto Bldg., Suite 400
8880 Freedom Crossing Trail
Jacksonville, FL 32256-1224
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