Gordon v. Commissioner of Social Security
Filing
18
OPINION AND ORDER affirming the administrative decision, and directing clerk to enter judgment. Signed by Magistrate Judge Thomas B. Smith on 1/23/2017. (EC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LESLIE GORDON,
Plaintiff,
v.
Case No: 6:16-cv-383-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 claims for a period of
disability, disability insurance benefits, and supplemental security income under the Act.
Upon a review of the record, and after due consideration, the Commissioner’s final
decision is AFFIRMED.
Background 2
Plaintiff filed for benefits on December 16, 2011, alleging an onset date of May 15,
2011 (Tr. 247-261). She claimed disability due to depression, bipolar illness, “stomach
problems,” and limited mobility of her left arm (Tr. 279). Plaintiff’s applications were
denied initially and on reconsideration, and she requested and received a hearing before
an administrative law judge (“ALJ”) (Tr. 34-67, 132-41). In a decision dated July 9, 2014,
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.
1
2
The information in this section is taken from the parties’ joint memorandum (Doc. 17).
the ALJ found Plaintiff not disabled through the date of the decision (Tr. 9-31). The
Appeals Council denied Plaintiff’s request for review on January 11, 2016 (Tr. 1-8).
Consequently, the ALJ’s July 9, 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 claimant (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 claimant 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
alleged onset date (Tr. 15). At step two, the ALJ determined that Plaintiff had the severe
impairments of: bipolar disorder; polysubstance abuse; major depression; borderline
personality disorder; Crohn's disease; mild degenerative changes of the cervical spine;
and chronic left shoulder pain (20 CFR 404.1520(c) and 416.920(c). Id. At step three, the
ALJ determined that Plaintiff did not have an impairment or combination of impairments
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that meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1. Id. Next, the ALJ found that Plaintiff retained the
residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), as she is able to stand and walk for a combined
total of 6 hours, while sitting for 6 hours, each in an 8-hour
workday, except that she can lift and carry only 10 pounds
occasionally, and 3 to 5 pounds frequently, while needing to
be afforded the option to alternate sitting and standing,
changing positions at a maximum frequency of 30 minutes.
Additionally, she must avoid loud noises, and she is limited to
frequent but not continuous reaching utilizing her left shoulder.
Further, the claimant is limited to simple, routine and repetitive
tasks, involving only simple work decisions, while having no
more than occasional interaction with co-workers, supervisors
and the public.
(Tr. 16).
At step four, the ALJ determined that Plaintiff was unable to return to her past
relevant work (Tr. 23). Then, considering Plaintiff’s age, education, work experience, and
RFC and relying on the testimony of a vocational expert, the ALJ determined that Plaintiff
could perform other jobs that existed in the national economy, such as document
specialist and surveillance system monitor (Tr. 24). Therefore, the ALJ found Plaintiff not
disabled from May 15, 2011, through the date of the decision (Tr. 24-25).
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
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conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)
(citation omitted).
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 objects to the ALJ’s findings with respect to the medical opinion evidence
and the formulation of her RFC assessment.
Evaluation of Medical Opinions
Plaintiff contends that the ALJ erred in failing to credit the opinions of Thomas R.
Masters, D.O., Plaintiff’s treating family practitioner, and Glenn Bailey, Ph.D., consultative
examiner. 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);
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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
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.
Dr. Masters
Throughout his opinion, the ALJ summarized Plaintiff’s pertinent treatment with Dr.
Masters and ultimately weighed his opinions, as follows:
On March 8, 2012, Dr, Masters completed a functional
assessment regarding the claimant's physical capabilities,
opining that the claimant could lift up to 100 pounds
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occasionally, and 10 pounds frequently. Dr. Masters indicated
no other physical functional limitations whatsoever (Exhibit B9F, pp. 1-2). Dr. Masters is the claimant's treating source, and
his opinions regarding the claimant's physical functional
capabilities are well-supported by medically acceptable
clinical and laboratory diagnostic techniques. As Dr. Masters'
opinions are consistent with other substantial evidence in the
record, I give significant weight to his opinions regarding the
claimant's physical capabilities (SSR 96-2p).
***
With respect to the objective medical evidence of record
regarding the claimant's mental health impairments, I first note
that, in addition to specialist treatment, the claimant has
occasionally been treated for depression with, or noted to
have depression by, Dr. Masters, her primary care physician.
On June 14, 2011, she reported depression to Dr. Masters,
leading to an assessment of major depressive disorder, single
episode, moderate. Dr. Masters' psychiatric examination at
that time showed good judgment, normal mood and affect,
with the claimant oriented, active and alert. Her recent and
remote memories were normal (Exhibit B-9F, pp. 5-6). In April
2013, Dr. Masters noted the claimant's depression again, still
indicating it was "single episode, moderate" (Exhibit B-19F, p.
1), and his psychiatric examination of the claimant on
November 8, 2013, again showed good judgment, normal
mood and affect, with the claimant oriented, active and alert,
and her recent and remote memories normal (Exhibit B-24F,
p. 2).
On March 18, 2012, when he completed his physical
functional assessment for the claimant, Dr. Masters also
completed an assessment of the claimant's mental functional
capabilities. Specifically, Dr. Masters opined that the claimant
had mostly moderate functional limitations in all areas of her
mental functioning, except that she had marked limitation
regarding the ability to understand, remember and carry out
detailed instructions and the ability to make judgments on
simple work-related decisions (Exhibit B-9F, p. 3). Applying
SSR 96-2p, I, nonetheless, give little weight to Dr. Masters'
mental functioning assessments. Dr. Masters is the claimant's
primary care physician, and he is not a specialist with regard
to mental illness. Further, his assessments are contradicted
by his own psychiatric examinations and treatment records,
which characterize the claimant's depression as moderate,
and consistently indicate normal mood, affect and memory,
with good judgment (Exhibits B-9F, pp. 5-6; and B-24F, p. 2).
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Dr. Master's opinion that claimant cannot make judgments on
simple work-related decisions is very extreme. It is
contradicted by his opinion that claimant is capable of
managing her benefits in her own best interest.
(Tr. 18, 20).
Plaintiff contends that the ALJ did not properly consider Dr. Masters’ opinion in that
the ALJ did not acknowledge Dr. Masters as a treating source; only “minimally articulated”
the ALJ’s reasons for finding inconsistency with the treatment records; and considered
the opinion evidence “in isolation” from the similar opinion of Dr. Bailey. The Court cannot
agree.
The ALJ explicitly recognized that Dr. Masters was a treating primary care source
(Tr. 18, 20), and correctly observed that Dr. Masters was not a mental health specialist. 3
There is also no merit to the contention that the records were considered by the ALJ in
isolation. The ALJ detailed all of the treatment records and opinions and made numerous
findings based on “the cumulative” treatment records and “cumulative” credible evidence.
See, e.g, Tr. 21-23. Lastly, the reasons articulated by the ALJ for discounting the opinion
are adequately stated, and those reasons are supported by the substantial evidence the
ALJ cites. As the ALJ complied with the legal standard and his conclusions are
adequately supported, no error is shown.
Dr. Bailey
The ALJ discussed the examination and opinions of this examiner as follows:
On May 10, 2012, the claimant underwent a consultative
psychological examination performed by Glenn Bailey, Ph.D.,
reporting mood swings, while also telling Dr. Bailey that she
had drunk alcohol the prior week, while using crack cocaine a
couple weeks prior, and using marijuana and "various pills" a
couple months previously. Dr. Bailey's examination showed
The regulations specifically permit the ALJ to consider specialization in evaluating opinions of
record. 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii).
3
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the claimant to be oriented, with attention, concentration and
memory all deemed normal. No problems with productivity of
thought were noted, and the claimant's thoughts were goal
directed and relevant. Although the claimant indicated that
about 4 months back she had seen "like a black shadow,"
saying she had those experiences for the past seven years,
she reported no auditory or visual hallucinations to Dr. Bailey
at the time of the examination. No delusional systems were
noted. Dr. Bailey diagnosed the claimant with alcohol,
cannabis, cocaine and polysubstance abuse, in remission, as
well as major depression, bipolar disorder, possibly with
psychotic features, and borderline personality disorder. I give
little weight to Dr. Bailey's assessment of a GAF of 50, and
that the claimant has marked limitation in any areas of
functioning, as these findings are inconsistent with Dr. Bailey's
own examination of the claimant. Specifically, Dr. Bailey's
examination findings, as outlined above, do not support his
findings that the claimant has marked limitation with respect to
responding appropriately to work pressures in a usual work
setting and changes in a routine work setting (Exhibit B-1 OF).
The treatment notes of Stairways summarized in detail above
contradict these findings because the mental status exams
are mostly normal. Dr. Bailey did not document any difficulty
of the claimant interacting with him in the stressful situation of
a psychological exam for Social Security Benefits. This
contradicts his finding that claimant has a marked impairment
in responding to work pressures and the limitations in the RFC
reduce the stress level of employment. As indicated by the
cumulative treatment records, when the claimant continues
with treatment, her functional limitations are no worse than
moderate.
(Tr. 21-22).
Plaintiff contends that the ALJ erred in not crediting Dr. Bailey’s opinion since Dr.
Bailey is a specialist; the stress of presenting for a medical evaluation is different from the
stress associated with full time competitive employment; and rejection of an expert
opinion cannot be had on “lay analysis of the raw medical data” (Brief at 19-20). The
Court is again unpersuaded.
While Dr. Bailey is indeed a specialist, he is also a one-time examiner and, as the
Commissioner notes, a consultative examiner’s opinion is not entitled to the deference
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normally given a treating source. Crawford, supra. The ALJ acknowledged Dr. Bailey’s
expertise, but found his conclusions inconsistent with his own examination findings, as
well as those of other examiners and providers. This rationale is supported by the
evidence cited.
With respect to the other objections noted, the Court agrees that the stress of a
medical evaluation is different (although not necessarily less) than the stress associated
with full time competitive employment, but finds the distinction harmless here. The ALJ’s
comment is an observation that Plaintiff did not have any difficulty interacting in a
stressful situation, and includes a recognition that, in any event, “the limitations in the
RFC reduce the stress level of employment.” (Tr. 22). As for the lay analysis argument,
Plaintiff appears to contend that rejection of the opinion evidence means the ALJ had no
“legitimate medical basis” for his decision. See Doc. 17 at 19. This is an incorrect
assumption. The ALJ, and not a medical source, determines the RFC. Robinson v.
Astrue, 365 F. App’x 993, 999 (11th Cir. 2010) (“[T]he task of determining a claimant's
[RFC] ... is within the province of the ALJ, not of doctors.”). Moreover, “a medical source
statement is not essential to an RFC determination. The ALJ is under no obligation to
obtain or adopt a medical source statement's findings as her RFC finding.” Smith v.
Comm'r, Soc. Sec. Admin., No. 2:15-CV-00964-HGD, 2017 WL 167322, at *6 (N.D. Ala.
Jan. 17, 2017).
As for the contention that the ALJ should have ordered another consultative
examination, the ALJ “has a duty to develop the record where appropriate but is not
required to order a consultative examination as long as the record contains sufficient
evidence for the [ALJ] to make an informed decision.” Ingram v. Comm'r of Soc. Sec.
Admin., 496 F.3d 1253, 1269 (11th Cir.2007). There is no showing that the record was
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insufficient. As the ALJ adequately discussed the entire medical record, articulated a
rationale for weighing the medical opinions, and the rationale is supported by substantial
evidence, the objections are overruled.
The RFC finding
The ALJ found, in connection with his assessment of Plaintiff’s mental limitations,
that she experienced mild limitations of daily activities, moderate difficulties in social
functioning, and moderate difficulties with regard to concentration, persistence and/or
pace as a result of her mental impairments (Tr. 16). Plaintiff argues that the ALJ’s RFC
finding does not address these concentration, persistence, and pace deficits and “the lack
of any acknowledgment by the ALJ in the decision as to the conflict between his own
findings as to Plaintiff’s concentration, persistence and/or pace limitation and his RFC
finding deprives this court of a meaningful basis upon which to conduct judicial review,
requiring remand.” (Doc. 17 at 26).
Plaintiff’s contention that the ALJ did not address or acknowledge these findings in
formulating the RFC is incorrect. In the RFC, the ALJ limited Plaintiff to no more than
simple, routine, repetitive tasks, involving only simple work decisions, while having no
more than occasional interaction with co-workers, supervisors, and the public (Tr. 16).
The ALJ explicitly noted that the RFC “reflects the degree of limitation” he found in
performing the mental function analysis (Tr. 16) and the ALJ found that “the limitation to
simple, routine and repetitive work in the RFC accommodates any mental limitation” (Tr.
15). This finding is supported by the ample evidence detailed in the decision.
To the extent Plaintiff is inferring that the ALJ’s hypothetical question to the
vocational expert was flawed in that it failed to explicitly provide for her moderate
limitations in concentration, persistence, or pace and social functioning, this is similarly
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unpersuasive. “In order for a vocational expert’s testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which comprises all of the
claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). The
Eleventh Circuit has held that an ALJ’s hypothetical question must take into account the
ALJ’s step two finding that a claimant has moderate limitations in maintaining
concentration, persistence, and pace, unless the ALJ indicates that the medical evidence
suggests that the claimant’s ability to work is unaffected by the limitation or the ALJ’s
question implicitly accounts for the limitation. See Winschel, supra, 631 F.3d at 1180-81.
Since Winschel, the Eleventh Circuit has repeatedly recognized that a hypothetical
question could sufficiently account for a moderate limitation in concentration, persistence
or pace by including a restriction to simple or routine tasks, if the medical evidence
demonstrates that the claimant has the ability to perform those tasks despite
concentration deficiencies. See Jarrett v. Comm’r, Soc. Sec. Admin., 422 F. App’x 869,
872 (11th Cir. 2011); Syed v. Comm’r, Soc. Sec. Admin., 441 F. App’x 632, 635 (11th Cir.
2011); Washington v. Comm’r, Soc. Sec. Admin., 503 F. App’x 881, 883 (11th Cir. 2013);
Scott v. Comm’r, Soc. Sec. Admin., 495 F. App’x 27 (11th Cir. 2012); Jacobs v. Comm’r,
Soc. Sec. Admin., 520 F. App’x 948, 951 (11th Cir. 2013) (“the ALJ found that the
evidence demonstrated that Jacobs retained a limited ability to work despite his
depression and associated moderate difficulties in maintaining his concentration,
persistence, or pace, and substantial evidence supports this finding. The ALJ’s
hypothetical questions to the vocational expert fully accounted for Jacobs’s moderate
difficulties in maintaining his concentration, persistence, or pace by limiting him to one to
three step non-complex tasks, consistent with the RFC assessment.”); Timmons v.
Comm’r, Soc. Sec. Admin., 522 F. App’x 897, 907 (11th Cir. 2013) (“An ALJ's
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hypothetical question restricting the claimant to simple and routine tasks adequately
accounts for restrictions related to concentration, persistence, and pace where the
medical evidence demonstrates that the claimant retains the ability to perform the tasks
despite limitations in concentration, persistence, and pace.”); Hurst v. Comm’r, Soc. Sec.
Admin., 522 F. App’x 522, 525 (11th Cir. 2013) (“Finally, because the medical evidence
showed that Hurst was capable of completing simple tasks and the ALJ's hypothetical to
the VE specified that the individual was capable of simple, routine, repetitive tasks, the
hypothetical “sufficiently accounts” for Hurst's moderate limitation in maintaining
concentration, persistence, and pace.”); Lee v. Comm’r, Soc. Sec. Admin., 551 F. App’x
539, 540-41 (11th Cir. 2014) (ALJ’s limitation to simple work accounted for claimant’s
mental limitations).
Here, as noted above, the medical and other evidence referenced and credited by
the ALJ demonstrates that, even with some difficulties in concentration, persistence and
pace, Plaintiff is able to perform work within the RFC assessment. 4 Therefore, the ALJ’s
4
After review of the medical evidence, the ALJ concluded:
“Overall, the cumulative treatment records reflect no mental health
hospitalizations except when the claimant is abusing substances, and the
claimant's mental status examinations are relatively normal when she is
pursuing prescribed treatments. Every diagnosis in the mental health
treatment records is a combination of severe impairments, and the mental
problems that the claimant suffers from are attributable, at least in part, to
her substance abuse over most of the period in question. Even when
considering the claimant's substance disorders, the record does not
establish at least 12 consecutive months of debilitating mental health
symptoms, as there are several gaps in the treatment records, including no
further treatment by the claimant at Stairways since February 2014. Thus,
the above-detailed residual functional capacity assessment adequately
accommodates the claimant for all functional limitations reasonably related
to her medically determinable impairments. No further limitations are
warranted by the cumulative credible evidence of record.”
(Tr. 23).
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inclusion of a limitation to “simple, routine and repetitive tasks that are not fast paced,
only simple work decisions” in his hypothetical question to the Vocational Expert 5 fully
accounted for the limitations in concentration, persistence and pace, and is consistent
with Winschel. Proper legal standards were applied.
Conclusion
Upon consideration of the foregoing the Commissioner’s final decision in this case
is AFFIRMED. The Clerk is directed to enter judgment accordingly and CLOSE the file.
DONE and ORDERED in Orlando, Florida on January 23, 2017.
Copies furnished to Counsel of Record
5
Tr. 57.
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