Vega v. Commissioner of Social Security

Filing 18

FINAL OPINION AND ORDER affirming the Commissioner's decision and directing entry of judgment. Signed by Magistrate Judge Thomas B. Smith on 2/14/2018. (EC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ASHLEY CAPITOLA VEGA,
Plaintiff,
v.

Case No: 6:17-cv-1041-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) and 1383(c)(3), to obtain judicial review of a final decision of
Defendant, the Commissioner of the Social Security Administration (the “Commissioner”)
denying her claims for Disability Insurance Benefits and Supplemental Security Income
under the Act. Upon review, the Commissioner’s final decision in this case is affirmed.
Background 2
On September 12, 2013, Plaintiff protectively filed applications for Disability
Insurance Benefits and Supplemental Security Income, alleging disability commencing on
November 20, 2011, due to lupus, Lyme disease, Chiari malformation, numbness in her
hands, migraines, dizziness, blurry vision, seizures, neck and shoulder pain, anxiety,
depression, and an aneurysm (Tr. 43-44, 93, 254-261, 285, 318). 3 Plaintiff later amended
her alleged onset date of disability to January 15, 2014 (Tr. 43, 285). Her claims were

The parties have consented to the jurisdiction of the United States Magistrate Judge.
The information in this section comes from the parties’ joint memorandum (Doc. 17).
3 Plaintiff had filed prior applications which were denied and not appealed (Tr. 11). These prior
applications are not at issue in this appeal (Doc. 17, n. 1).
1
2

denied initially and on reconsideration (Tr. 167-169, 171-173, 176-180, 182-186) and
Plaintiff requested and received a hearing before an administrative law judge (“ALJ”) 4172, 187-188). On March 9, 2016, the ALJ found Plaintiff not disabled and issued his
unfavorable decision (Tr. 8-40). On April 18, 2017, the Appeals Council denied Plaintiff’s
request for review (Tr. 1-6). Accordingly, the ALJ’s decision became the Commissioner’s
final decision. This appeal timely followed (Doc. 1).
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
which appears 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
amended onset date (20 CFR 404.1571 et seq., and 416.971 et seq.) (Tr. 14). At step
two, the ALJ determined that Plaintiff had the severe impairments of: a seizure disorder; a
Chiari I malformation of the craniovertebral junction (with headaches); neuropathy;
degenerative disc disease of the cervical spine; degenerative joint disease/bursitis of the

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spine; a bipolar disorder; an anxiety disorder; an attention-deficit/ hyperactivity disorder;
and a substance use disorder in remission (20 CFR 404.1520(c) and 416.920(c)) (Tr. 14).
But, the ALJ found at step three that Plaintiff did not have an impairment or 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. 17). 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), with additional limitations. The claimant can lift,
carry, push, or pull 20 pounds occasionally (up to one-third of
the workday) and 10 pounds frequently (up to two thirds of the
workday), as well as sit, stand, or walk for 6 hours each out of
an 8-hour workday. The claimant can frequently use hand
controls and frequently handle with both upper extremities.
The claimant can never climb ladders, ropes, or scaffolds, but
can frequently climb ramps and stairs. The claimant can
frequently balance, stoop, kneel, crouch, and crawl. The
claimant can never operate a motor vehicle as part of the work
duties. The claimant can have occasional exposure to
vibration. The claimant has to avoid all exposure to hazards
such as unprotected heights or moving machinery.
Additionally, the claimant is limited to performing simple,
routine, and repetitive tasks; is limited to making simple workrelated decisions; and, is limited to having occasional
interaction with coworkers, supervisors, and the general
public.
(Tr. 19).
At step four, the ALJ determined that Plaintiff was unable to perform any past
relevant work (Tr. 31). 4 However, after applying the Medical-Vocational Guidelines as a
framework for decision making and considering the Vocational Expert’s testimony and
Plaintiff’s age, education, work experience, and RFC, the ALJ found Plaintiff could

4 Plaintiff was thirty years old on the date of the ALJ’s decision (Tr. 256). She had completed two
years of college, earned an associate’s degree, and had past work experience as a general duty nurse (Tr.
46, 66, 319-320, 385, 389).

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perform a significant number of jobs in the national economy (Tr. 32-33), and was
therefore not under a disability (Tr. 33).
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
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 contends that the ALJ erred in weighing the medical opinions of an
examining psychologist and a treating physician.

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Evaluation of Medical Opinions
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 C.F.R. §§ 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).
Substantial weight must be given to the opinions, 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. Regardless of whether controlling weight is appropriate, “the
Commissioner ‘must specify what weight is given to a treating physician’s opinion and
any reason for giving it no weight.’” Hill v. Barnhart, 440 F. Supp. 2d 1269, 1273 (N.D.
Ala. 2006) (citation omitted); see also Sullivan v. Comm’r. Soc. Sec., No. 6:12-cv-996-Orl22, 2013 WL 4774526, at *7 (M.D. Fla. Sept. 4, 2013); Bumgardner v. Comm’r Soc. Sec.,

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No. 6:12-cv-18-Orl-31, 2013 WL 610343, at *10 (M.D. Fla. Jan. 30, 2013); Bliven v.
Comm’r Soc. Sec., No. 6:13-cv-1150-Orl-18, 2014 WL 4674201, at *3 (M.D. Fla. Sept. 18,
2014); Graves v. Comm’r Soc. Sec., No. 6:13-cv-522-Orl-22, 2014 WL 2968252, at *3
(M.D. Fla. June 30, 2014).
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. Gimon
On January 9, 2014, Plaintiff presented to Alexander T. Gimon, Ph.D., for a
consultative psychological evaluation at the request of the Office of Disability
Determinations (Tr. 809-811). On mental status exam, Dr. Gimon found Plaintiff oriented
to person, place, and situation; she was cooperative; and able to understand and follow
instructions (Tr. 810). Dr. Gimon noted that Plaintiff was anxious and presented
symptoms of mania, but she attempted to remain in control of her emotions. (Id.). Her rate
of speech was pressured. (Id.). She spoke incessantly and offered tremendous amounts
of detail, some seemingly irrelevant. (Id.). And, she reported experiencing suicidal
ideation as recently as three months prior to the appointment (Tr. 810-811). Plaintiff’s
mood was expansive with congruent affect; her thought processes were relevant with no
evidence of psychotic content; she denied delusions and hallucinations; and there was no
evidence of a thought disorder (Tr. 810). Dr. Gimon reported that Plaintiff “answered
readily and accurately to all items in the mental status examination” and her results were
unremarkable related to personal orientation, concentration, and memory (Tr. 811). The

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doctor’s impressions included bipolar disorder, most recent episode manic;
polysubstance dependence (in remission); and rule out histrionic personality disorder.
(Id.). His Axis IV impression was “[d]iminished work capacity and increasing difficulties
relating in a socially in a [sic] meaningful way.” (Id.). Dr. Gimon assigned Plaintiff a GAF 5
score of 45 and wrote:
1. Claimant opined her inability to drive, her distractibility, and
mood lability interfere with her ability to seek or retain gainful
employment. It seems appropriate for this person to seek
assistance with community programs which provide case
management supervision, perhaps transportation, and that
have educated local community business on the nature,
progression and management of certain mental conditions.
This may permit this claimant to work and cement some basic
independent living skills.
2. Ms. Vega impressed as highly intelligent, however, absent
seizures and bipolar disorder symptoms suggest decision
making is impaired, thus no presently capable of making
rational choices. As such, it appears is in her best interest that
an executor be named to manage any funds, in the event
these are granted.
(Id.).
Plaintiff acknowledges that the ALJ considered this report and “made various
notations regarding Dr. Gimon’s examination of Ms. Vega.” (Doc. 17 at 12; See Tr. 15, 16,
22, 23, 30, 31). However, Plaintiff contends that the ALJ failed to apply the correct legal
standards because the ALJ “overlooked” Dr. Gimon’s opinions that Plaintiff had a
diminished work capacity and needed to reach out to community resources to see if this
would permit her to work, and that Plaintiff was not capable of making rational choices.
The Commissioner counters that this evidence does not constitute a medical opinion
under the regulations and, even if it did, any error in failing to explicitly discuss it is

5

Global Assessment of Functioning.

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harmless.
The regulations explain that “[m]edical opinions are statements from physicians
and psychologists or other acceptable medical sources that reflect judgments about the
nature and severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. §§ 404.1527(a) (2) (emphasis added). A finding that Plaintiff’s
“decision making is impaired” with a present inability to make rational choices is, indeed,
a judgment regarding the severity of Plaintiff’s mental impairment. While Dr. Gimon was a
one-time consultant and his opinion is not entitled to the deference shown a treating
provider, the Court nonetheless finds that the evidence is a medical opinion which should
be considered by the ALJ.
While the particular excerpt of Dr. Gimon’s report upon which Plaintiff focuses was
not discussed explicitly, the ALJ did not ignore the report, as shown by the ALJ’s
numerous references to Dr. Gimon’s examination and findings throughout the
administrative decision. 6 Of particular note, the ALJ discussed and weighed Dr. Gimon’s
opinion regarding the severity of Plaintiff’s symptoms, stating:
On January 9, 2014, Dr. Gimon had noted that the claimant
had a global assessment of functioning (GAF) score of only
45, within the 41 to 50 range, indicating severe symptoms or a
serious impairment in social or occupational functioning
For example, the ALJ observed: “On January 9, 2014, Dr. A. Gimon, in a consultative
psychological examination, noted that the claimant was anxious, and presented with symptoms of mania,
yet attempted to remain in control of her emotions; that she had pressured speech; and, that she spoke
incessantly and offered tremendous amounts of details, some seemingly irrelevant (Exhibit 13F/3).” (Tr.
15); “Dr. Gimon noted that the claimant was cooperative, and with an expansive mood, a congruent affect,
and no suicidal ideation (Exhibit 13F/3-4)” (Tr. 15); “Dr. Gimon noted that the claimant was oriented and
able to (concentrate to) understand and follow instructions, and that she had relevant thought processes,
unremarkable concentration, an unremarkable memory, no delusions/ hallucinations, and no psychosis
(Exhibit 13F/3-4)” (Tr. 16); “Dr. Gimon noted that the claimant was oriented, cooperative, able to understand
and follow instructions, in an expansive mood, and with a congruent affect, relevant thought processes,
unremarkable concentration, an unremarkable memory, no delusions/hallucinations, no thought disorder,
no psychosis, and, in the past 3 months, no suicidal ideation.” (Tr. 22). See also Tr. 23, 31.
6

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(Exhibit 13F/4). This GAF score opinion, however, is accorded
little weight because GAF scores are not standardized, nor
designed to predict patient outcomes, and may lack
supporting detail. They are no longer included in the
Diagnostic and Statistical Manual of Mental Disorders (See
DSM-V). (In the instant case, this GAF score is not well
supported and not consistent with the other evidence (set forth
in this Finding)).
(Tr. 23) (emphasis added). As Dr. Gimon’s report was clearly considered and the ALJ
weighed and rejected the opinion of severe symptoms implicit in Plaintiff’s GAF score as
being unsupported and inconsistent with other evidence, I find no basis for remand. The
failure to specifically discuss the particular conclusions at issue, drawn by a non-treating
provider, is not fatal error as “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). Such is the case here. The ALJ thoroughly discussed Plaintiff’s allegations of
mental limitations and evaluated and discounted Dr. Gimon’s opinion of severe symptoms
or serious impairment in social or occupational functioning (albeit in the context of a GAF
score). As the ALJ’s ultimate conclusion—which includes limitations to simple, routine
work—is well supported by the substantial evidence he cites, any error is harmless under
these circumstances. 7 See, generally, Shaw v. Astrue, 392 F. App'x 684, 687 (11th Cir.
2010), citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1983).
Dr. Couts
Carol Couts, M.D. was one of Plaintiff’s treating providers at Lifestream Behavioral
Center. On November 10, 2014, Dr. Couts opined that Plaintiff was markedly limited in

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Plaintiff has failed to show how Dr. Gimon’s statements result in additional limitations.

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her ability to sustain numerous mental activities “over a normal workday and workweek,
on an ongoing basis” (Tr. 1016-1017). The ALJ acknowledged this report but found:
This opinion, however, is not accorded controlling weight
because opinions on the issues of whether the claimant is
"disabled" or "unable to work" are reserved to the
Commissioner because they are administrative findings that
are dispositive of a case (20 CFR 404.l527(e) and 416.927(e),
and SSR 96-5p). Moreover, this opinion is inconsistent with
the evidence as a whole (as set forth further below) showing
that the claimant can perform simple, routine, and repetitive
tasks, make simple work-related decisions, and have
occasional interaction with coworkers, supervisors, and the
general public.
(Tr. 29). Plaintiff argues, correctly, that this was error because Dr. Couts did not opine
that Plaintiff was “disabled” or “unable to work.” Instead, Dr. Couts provided opinions on
specific work-related mental activities (Tr. 1016-1017). If this were the only reason offered
by the ALJ for discounting Dr. Couts’ opinion, remand would be required. But, the ALJ
offered a second reason—finding that Dr. Couts’ opinion was inconsistent with certain
identified record evidence which supports the mental limitations set forth in the RFC (Tr.
29-31). Plaintiff contends that this conclusion is not supported by substantial evidence
because some of the normal findings cited by the ALJ are from medical records that deal
primarily with Plaintiff’s physical impairments (Tr. 30), and the significant mental health
findings relied on support Dr. Couts’ opinion (Tr. 31). Finally, Plaintiff argues that the ALJ
did not apply the correct standard in that he failed to properly consider or weigh Dr.
Gimon’s opinions, which was consistent with that of Dr. Couts.
As explained above, the court finds no error in the ALJ’s consideration of Dr.
Gimon’s opinions. Indeed, the ALJ relied on Dr. Gimon’s mental status examination
findings as some of the evidence found to be inconsistent with Dr. Couts’ opinion that
Plaintiff had marked limitations in her ability to perform most mental basic work activities.

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(“On January 9, 2014, Dr. Gimon noted that the claimant was oriented, cooperative, able
to understand and follow instructions, in an expansive mood, and with a congruent affect,
relevant thought processes, unremarkable concentration, an unremarkable memory, no
delusions/hallucinations, no thought disorder, no psychosis, and, in the past 3 months, no
suicidal ideation” - Tr. 30). The Court also disagrees that the records cited by the ALJ
deal primarily with Plaintiff’s physical impairments. In addition to records from other
medical specialty providers, the ALJ cited records from psychiatrist Dr. Sofia Qadir; Dr.
Couts; Dr. Gimon; and (to a limited extent) the opinions of non-examining state agency
psychologists (Tr. 30-31).
Plaintiff’s last contention, that some of these records are not necessarily
inconsistent with the opinion of Dr. Couts is of no moment. The issue is not whether some
of the evidence could support a different finding (it could); the issue is whether substantial
evidence supports the ALJ’s finding. The ALJ cited to the evidence from Plaintiff’s treating
and examining physicians as well as state agency consultants (Tr. 20-31), including
relatively unremarkable findings on neurological and mental status examination by Drs.
Desgranges, Gonzalez, Gimon, Mousli, Couts, and Mercier (Tr. 30-31, 780, 785, 811,
1059, 1080, 1114, 1124, 1133-34, 1141-42, 1154, 1212). “If the Commissioner’s decision
is supported by substantial evidence, this Court must affirm, even if the proof
preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir.2004).
“We may not decide facts anew, reweigh the evidence, or substitute our judgment for that
of the [Commissioner.]” Id. (internal quotation and citation omitted).
As the administrative decision was made in accordance with proper legal
standards and is supported by substantial evidence, it is due to be affirmed.

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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 February 14, 2018.

Copies furnished to Counsel of Record

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