Bohan v. Commissioner of Social Security

Filing 22

OPINION AND ORDER affirming administrative decision and directing entry of judgment. Signed by Magistrate Judge Thomas B. Smith on 10/12/2017. (EC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TINA MARIE BOHAN,
Plaintiff,
v.

Case No: 6:16-cv-1611-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 disability
insurance benefits 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 September 21, 2012, alleging an onset date of May 31,
2008 (Tr. 180-185). She claimed that she was disabled due to back and neck problems,
arthritis, anxiety, and diabetes (Tr. 22, 231-32).
Plaintiff’s application was denied initially and on reconsideration, and she
requested and received a hearing before an administrative law judge (“ALJ”) (Tr. 82, 97101, 107-112, 114, 38-71). In a decision dated March 5, 2015, the ALJ found Plaintiff not

1 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. 21).

disabled through the date she was last insured (March 31, 2013) (Tr. 19-37). The Appeals
Council denied Plaintiff’s request for review on July 19, 2016 (Tr.1-7). Accordingly, the
ALJ’s March 5, 2015 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, although Plaintiff was currently working as a cashier at Disney World
and had worked every year since her alleged onset date, she had not engaged in
substantial gainful activity from her alleged onset date through her date last insured (Tr.
24). At step two, the ALJ determined that Plaintiff had the severe impairments of:
degenerative disc disease; obesity; diabetes mellitus; and hypertension (20 CFR
404.1520(c)), but found, at step three, that Plaintiff did not have an impairment or

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combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (Tr. 25-27). 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 only
occasionally stooping, crouching, and crawling; no climbing
ladders, ropes and scaffolds. The claimant must avoid
concentrated exposure to vibrations and hazards. Lastly, the
claimant is limited to work that allows her to perform her job
duties while in either a seated or standing position.
(Tr. 28).
At step four, relying on the testimony from a vocational expert (“VE”), the ALJ
determined that Plaintiff was able to return to her past relevant work of a Cashier II (light,
unskilled work) (Tr. 31-32). Therefore, the ALJ found Plaintiff not disabled from May 31,
2008 through March 31, 2013 (Tr. 32).
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).
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

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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
1. Evaluation of Medical Opinions
Plaintiff urges reversal of the administrative decision, contending that the ALJ
failed to weigh the opinions of treating physicians Michael Desouza, M.D. and Stephane
Lavoie, M.D., and overlooked the results of a 2013 MRI report.
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
the record as a whole, and the physician's specialty. See 20 C.F.R. §§ 404.1527(c),
416.927(c).

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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, 363 F.3d at
1161. 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. Desouza
Plaintiff was first seen by Dr. Michael Desouza on October 9, 2009 (Tr. 453) and
she continued to see him on follow up visits through her date last insured. Plaintiff argues
that the records from Dr. Desouza “provide a historical perspective of the complaints and
symptoms” and show that she “experienced chronic back pain, numbness, neuralgia,
neck pain, swelling in the right lower extremity, and panic attacks” and was offered
medication as treatment (Doc. 21 at 20). Plaintiff contends that these treatment records
support her testimony that she experiences back and neck pain on a consistent basis to a
varying degree, yet “the ALJ does not indicate the weight assigned to the opinions of Dr.
Desouza, and it is impossible to know how the records of this treating physician were
factored into the ALJ’s residual functional capacity determination” (Tr. 20).

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Plaintiff does not identify any formal opinion issued by Dr. Desouza, nor does she
point to any particular “opinion” she claims was not appropriately considered. To the
extent the doctor’s treatment notes are opinions and Plaintiff is asserting that the ALJ did
not consider or credit the treatment notes, this contention is belied by the administrative
decision. Dr. Desouza’s treatment notes are contained in Exhibits 5F (Tr. 381-454), 8F
(475-491) and portions of 10F (Tr. 506-524). The ALJ cited specifically to these treatment
notes as support for the finding that Plaintiff could perform light exertional work. The ALJ
found:
•

“In contrast to the claimant's testimony, multiple treatment entries document
the claimant's mood and affect as normal (e.g. Exhibit 5F, pages 6, 9, 18,
22, 29, and 33)” (Tr. 25);

•

“Certain treatment entries note that the claimant denied memory loss,
anxiety or depression (Exhibit 8F, pages 2 and 6).” (Tr. 25);

•

“2013 treatment entries document the claimant denying excessive daytime
sleepiness (Exhibit 8F, pages 2 and I 0). The undersigned accords more
weight to these entries and concludes that the claimant's impairments do
not interfere with her ability to sleep.” (Tr. 29);

•

“[T]reatment entries support the conclusion that the claimant could perform
light exertional work. For example, multiple entries documented the
claimant's strength as "5/5" in her extremities (e.g. Exhibit 5F, pages 3, 29,
33, 37 and 41). These entries also noted no motor or sensory deficits. Other
entries also note the claimant denies muscle weakness, joint pain or back
pain (e.g. Exhibit 8F, page 2; 10F, page 13). Overall, this supports the

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conclusion that the claimant is capable of lifting and carrying in accordance
with the undersigned's assessment.” (Tr. 30);
•

“Treatment entries also documented the claimant's gait as normal (Exhibits
5F, page 3; 9F, page 5; and 10F, page 26).” (Tr. 31).

These findings are supported by the substantial and particular evidence the ALJ
cites. Thus, Plaintiff’s contention that Dr. Desouza’s treatment notes were not adequately
weighed or considered is without merit.

Dr. Lavoie
Plaintiff was first seen by Dr. Stephane Lavoie M.D., at Florida Orthopedic
Associates on October 27, 2008 (Tr. 331). X-rays were performed and Dr. Lavoie
diagnosed Plaintiff with cervicalgia, lumbalgia, thoracalgia and degenerative disc disease
at L4-5, L5, S1, and C6-7 (Tr. 330). An MRI was ordered. Id. On December 29, 2008,
Plaintiff returned to Dr. Lavoie, who reviewed the MRI and suggested cervical and lumbar
epidural injections, which Plaintiff declined (Tr. 328).
On January 25, 2013, Plaintiff was again seen by Dr. Lavoie (Tr. 495). Physical
examination showed positive tenderness in Plaintiff’s cervical, pericervical, periscapular
and trapezius regions and mild muscle spasm (Tr. 496-7). X-rays taken that day revealed
cervical spine narrowing of C5-C6-C7 disc space with posterior osteophytes impinging on
the foramen with other level mild spondylosis and straightening of the lumbar lordosis;
lumbar spine-mild straightening of the normal lumbar lordosis. (Id.). Plaintiff was
diagnosed with cervical spondylosis, lumbago, cervicalgia, cervical spinal stenosis,
lumbosacral spondylosis and sprain of the lumbar regions (Tr. 498).
Plaintiff returned to Dr. Lavoie on February 4, 2013, for a follow-up after her MRIs
(Tr. 493). On examination, Plaintiff appeared to be in mild distress and had discomfort

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with range of motion testing in her cervical spine (Id.). Dr. Lavoie reviewed the lumbar
MRI and said: “The disc was significantly degenerative at L4-5 causing some bulging and
stenosis.” (Id.). After the doctor reviewed the cervical MRI, he stated that it confirmed
degenerative changes at the C5-6 and C6-6 levels with associated foraminal stenosis,
mainly on the left (Id.). Physical therapy was recommended (Tr. 494).
Plaintiff returned to Dr. Lavoie on April 26, 2013, after her date last insured, for a
follow-up concerning her neck and back pain (Tr. 526). She complained that there was no
improvement with physical therapy (Id.). Upon physical examination, Plaintiff had a
decreased range of motion of her neck, tender paraspinal and trapezius muscle areas
with a positive Spurling sign to the right (Id.). The doctor’s impression was cervical
spondylosis, cervical spinal stenosis, lumbosacral spondylosis, spinal stenosis-lumbar,
lumbago, cervicalgia, sprain lumbar region (Id.).
Plaintiff argues that these records “reveal continued symptoms of back pain, neck
pain, and numbness in the right upper extremity” and “the ALJ does not indicate the
weight assigned to the opinions of Dr. Lavoie,” making it “impossible to know how the
records of this treating physician were factored into the ALJ’s residual functional capacity
determination.” (Doc. 21 at 23). Again, I am unpersuaded.
As with Dr. Desouza, Plaintiff does not identify any formal opinion issued by Dr.
Lavoie, nor does she point to any particular treatment note that she claims was not
appropriately considered. Dr. Lavoie’s notes are found in Exhibits 2F, 9F, portions of 10F,
and 11F. To the extent the treatment notes are opinions, a review of the administrative
decision shows that the ALJ cited specifically to these treatment notes as support for the

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finding that Plaintiff could perform a reduced range of light exertional work. 3 These
conclusions are supported by the substantial records cited. No error is shown.

2013 MRI report
Plaintiff contends that the ALJ erred in failing to mention the findings of the MRI
testing performed in January 2013. However, “there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in his decision” provided the ALJ's decision is
sufficient to enable the Court to conclude that the ALJ properly considered the claimant's
condition as a whole. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (internal
quotation omitted). I find that to be the case here. While the 2013 MRI reports were not
explicitly addressed, the ALJ discussed the diagnoses and physical examination findings
included in the treatment notes written after the MRIs were received:
•

“February 2013 diagnoses from Dr. Lavoie include cervical spondylosis and
stenosis, lumbago, cervicalgia, and a sprain, which are all relatively milder
diagnoses (Exhibit 9 F, page 1).” (Tr. 28). 4

•

“An April 2013 entry did note a positive Spurling test, and tenderness (Exhibit
I0F, page 21). However, the entry also noted a negative straight leg raising
result, normal sensation, full strength in the deltoids, biceps, triceps and wrist,
and only "mild" tenderness in the lower back and buttocks. Overall, this is
consistent with the conclusion that the claimant is limited to light work, but
could still perform postural motions on an occasional basis.” (Tr. 31).

•

“A May 2013 exam of the claimant revealed an essentially normal range of

3 See, e.g., Tr. 28 (noting the recommendation for injection therapy, which Plaintiff declined, and
detailing Dr. Lavoie’s February 2013 diagnoses, observing that they “are all relatively milder diagnoses.”);
Tr. 30 (citing to the 2008 MRIs and the 2013 x-rays); and Tr. 31 (2013 treatment note showed negative
straight leg raising results, and another note documented Plaintiff’s normal gait).
4 The exhibit referenced by the ALJ (Exhibit 9F) includes the MRI studies.

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motion in the examined areas (Exhibit 10F, pages 23-27). This entry also notes
normal diagnostic images, and straight leg raising results. Overall, this exam
supports the conclusion that the claimant could perform postural and exertional
movements in accordance with the assessment as of the date last insured.” (Tr.
31).
I find the decision reflects that the ALJ properly considered Plaintiff’s condition as a
whole and any omission to explicitly discuss the MRI results is harmless.
2. The Opinion of the Vocational Expert
At step four of the sequential evaluation, the ALJ relied on the VE's testimony to
find that, through her date last insured, Plaintiff could perform her past relevant work (Tr
31-32, 63-65). In this Circuit, when “the ALJ elects to use a vocational testimony to
introduce independent evidence of the existence of work that a claimant could perform,
the ALJ must pose a hypothetical question that encompasses all of the claimant’s severe
impairments in order for the VE’s testimony to constitute substantial evidence.” Chavanu
v. Astrue, No. 3:11-cv-388-J-TEM, 2012 WL 4336205, at *9 (M.D. Fla. Sept. 21, 2012)
(citing Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985). Plaintiff argues that the
ALJ’s hypothetical question to the VE did not include all of her limitations and “since the
ALJ’s residual functional capacity determination is not supported by substantial evidence,
the hypothetical question based on that residual functional capacity determination is
flawed.” This argument lacks merit.
As the case was resolved at step four, not step five, it is Plaintiff’s burden to
establish that she could not return to her past relevant work. Barnes v. Sullivan, 932 F.2d
1356, 1359 (11th Cir. 1991). Although Plaintiff appears to challenge the ALJ’s RFC
finding, she does not identify what limitations were not adequately reflected and I find

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none. An ALJ is "not required to include findings in the hypothetical that the ALJ had
properly rejected as unsupported." Crawford, 363 F.3d at 1161. No error is shown.
3. Credibility
Plaintiff’s last contention is that the ALJ erred in finding that her testimony was
“’not entirely credible’ when the record clearly reveals that the Plaintiff suffered from
documented impairments causing significant limitations.” (Doc. 21 at 33). A claimant may
seek to establish that she has a disability through her own testimony regarding pain or
other subjective symptoms. Dyer, 395 F.3d at 1210. “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. When 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.
Here, the ALJ applied the pain standard and determined “that the claimant's
medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant's statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for the reasons explained in
this decision.” (Tr. 30). In support of this general statement, the ALJ made numerous
specific findings deemed to be inconsistent with disabling limitations. Among other things,

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the ALJ noted that Plaintiff’s diabetes was controlled by medication (Tr. 31); Plaintiff “was
more physically active than she alleged” (Tr. 28); there were inconsistencies between her
allegations and the medical record (Tr. 29-31); Plaintiff’s treatment was generally
conservative in nature (Tr. 29); and Plaintiff continued to work as a cashier at Disney
World since her alleged onset date (Tr. 24-25). All of these findings are supported by the
substantial evidence identified by the ALJ. Consequently, Plaintiff’s contentions that the
ALJ failed to articulate a basis for the credibility finding and that the finding is unsupported
are without merit.
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 October 12, 2017.

Copies furnished to Counsel of Record

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