Swingle v. Commissioner of Social Security

Filing 20

OPINION AND ORDER: The Commissioner's decision is AFFIRMED. The Clerk of Court shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 11/16/2020. (ADM)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TERESA BROWN SWINGLE,
Plaintiff,
v.

CASE NO. 6:20-cv-365-Orl-MCR

COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
______________________________/
MEMORANDUM OPINION AND ORDER 1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision regarding her application for a period of disability and disability
insurance benefits (“DIB”). Following an administrative hearing held on
September 24, 2019, the assigned Administrative Law Judge (“ALJ”) issued a
decision, finding Plaintiff not disabled from May 29, 2015, the alleged disability
onset date, through October 9, 2019, the date of the ALJ’s decision. 2 (Tr. 11-18,
23-46, 147.) Based on a review of the record, the briefs, and the applicable law,
the Commissioner’s decision is AFFIRMED.

1

The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 16.)
2

Plaintiff had to establish disability on or before December 31, 2020, her date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 11.)

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I.

Standard of Review

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). 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 district court must view the evidence 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); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner=s factual findings).
II.

Discussion
A.

Issue on Appeal

Plaintiff argues that the ALJ erred by failing to apply the correct legal
standards and by making findings not supported by substantial evidence in
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rejecting the opinion of William Erhard Eyring, III, Psy.D., a one-time examining
consultant. (Doc. 18 at 7, 9.) Plaintiff points out that the ALJ erroneously stated
that only “mild type limitations” were included in Dr. Eyring’s opinion while Dr.
Eyring specifically opined that Plaintiff was moderately impaired in her ability to
respond to day-to-day stress. (Id. at 8.) Plaintiff argues that the ALJ erred in
failing to account for this moderate limitation in the residual functional capacity
(“RFC”) assessment. (Id. (citing SSR 85-15).) Plaintiff adds that the ALJ failed
to cite to any evidence in support of his conclusory finding that Dr. Eyring’s
opinion was not supported by and consistent with the generally normal mental
status exam findings. (Id. at 9.)
Defendant responds that the ALJ properly evaluated Dr. Eyring’s opinion
under the revised rules and regulations that apply to claims, such as Plaintiff’s
application, filed on or after March 27, 2017 and found the doctor’s opinion not
fully persuasive. (Doc. 19.) Defendant argues that in light of the generally
normal mental status exam findings reported by Dr. Eyring and the other medical
sources, substantial evidence supports the ALJ’s evaluation of Dr. Eyring’s
opinion. (Id.)
B.

Standard for Evaluating Opinion Evidence

The ALJ is required to consider all the evidence in the record when making
a disability determination. See 20 C.F.R. § 404.1520(a)(3). With regard to
medical opinions, the rules in 20 C.F.R. § 404.1520c apply to claims filed on or

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after March 27, 2017. 3 See Revisions to Rules Regarding the Evaluation of
Medical Evidence, 82 F.R. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Because
Plaintiff’s claim was filed after March 27, 2017, the Court applies the revised
rules and regulations in effect at the time of the ALJ’s decision.
Under the revised rules and regulations, the ALJ need “not defer or give
any specific evidentiary weight, including controlling weight, to any medical
opinion(s) . . . , including those from [the claimant’s] medical sources.” 20 C.F.R.
§ 404.1520c(a). The ALJ will articulate in the administrative decision how
persuasive all of the medical opinions are in the case record, 20 C.F.R. §
404.1520c(b), but need not articulate how evidence from non-medical sources
has been considered, 20 C.F.R. § 404.1520c(d).
“When a medical source provides one or more medical opinions,” those
opinions will be considered “together in a single analysis,” using the factors listed
in 20 C.F.R. § 404.1520c(c)(1) through (c)(5), as appropriate. 20 C.F.R. §
404.1520c(a), (b)(1). The ALJ is “not required to articulate how [he/she]
considered each medical opinion . . . from one medical source individually.” 20
C.F.R. § 404.1520c(b)(1).
When evaluating the persuasiveness of medical opinions, the most

3

The rules in 20 C.F.R. § 404.1527 apply to claims filed before March 27, 2017.
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important factors are supportability 4 and consistency. 5 20 C.F.R. § 404.1520c(a),
(b)(2). Thus, the ALJ “will explain how [he/she] considered the supportability and
consistency factors for a medical source’s medical opinions” in the determination
or decision but is not required to explain how he/she considered the rest of the
factors listed in 20 C.F.R. § 404.1520c(c). 20 C.F.R. § 404.1520c(b)(2). When
“two or more medical opinions . . . about the same issue are both equally wellsupported . . . and consistent with the record . . . but are not exactly the same,”
the ALJ will articulate how he/she considered the other most persuasive factors
listed in 20 C.F.R. § 404.1520c(c)(3) through (c)(5), which include a medical
source’s relationship with the claimant, 6 specialization, and other factors. 7 20
C.F.R. § 404.1520c(b)(3).

4

“The more relevant the objective medical evidence and supporting explanations
presented by a medical source are to support his or her medical opinion(s) . . . , the
more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1).
5

“The more consistent a medical opinion(s) . . . is with the evidence from other
medical sources and nonmedical sources in the claim, the more persuasive the medical
opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).
6

The relationship with the claimant factor combines consideration of the
following issues: the length of the treatment relationship, the frequency of the
examinations, the purpose of the treatment relationship, the extent of the treatment
relationship, and the examining relationship. 20 C.F.R. § 404.1520c(c)(3)(i)-(v).
7

The other factors may include: the medical source’s familiarity with the other
evidence in the claim; the medical source’s understanding of the disability program’s
policies and evidentiary requirements; and the availability of new evidence that may
render a previously issued medical opinion more or less persuasive. 20 C.F.R. §
404.1520c(c)(5).
5

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C.

Relevant Evidence of Record
1.

Dr. Eyring’s Consultative Evaluation

On September 11, 2018, Plaintiff presented to Dr. Eyring for a General
Clinical Evaluation with Mental Status at the request of the Office of Disability
Determinations. (Tr. 655.) Plaintiff alleged disability due to “fibromyalgia, mental
and heart problems.” (Id.) Plaintiff reported 100% service-connected 8 disability
and a history of anxiety with “a racing heart and inability to focus.” (Id.) Dr.
Eyring noted the following psychiatric history:
For the past ten years, Mrs. Swingle has been prescribed Lexapro
for anxiety (as needed; this is prescribed by a VA psychiatrist—she
avoids taking this since being prescribed Flexeril). She also takes a
dietary supplement (5-HTP) for mood stabilization. She has been
prescribed psychotropic medications since 1992 (including Buspar
and Effexor). She has received counseling for the past 18 months
(2-4 times monthly; related to conflict with her daughter). She
denied a history of psychiatric hospitalizations.
(Tr. 656.)
Plaintiff’s examination was generally normal, except “[h]er thought process
was tangential and she required some redirection to remain on task,” “[h]er affect
was blunted,” and “[h]er social judgment was fair to good.” (Id.) Dr. Eyring

8

Records from the Department of Veterans Affairs (“VA”) indicate that Plaintiff
was honorably discharged from the Air Force on September 7, 1993 and was awarded
a monthly benefit for her service-connected disabilities, including fibromyalgia, allergic
or vasomotor rhinitis, neurogenic bladder, removal of uterus and ovaries, and
neurosis/general anxiety disorder. (Tr. 261, 632-33.) Plaintiff was also found disabled
for her position as a program analyst by the Office of Personnel Management “due to
fibromyalgia, chronic pain, and numbness and tingling from head to toe on the right side
of the body,” even though Plaintiff also claimed disability due to anxiety disorder, among
other conditions. (Tr. 516.)
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diagnosed somatic symptom disorder with predominant pain and generalized
anxiety disorder. (Tr. 657.) He noted:
Mrs. Swingle reported that she has a driver’s license but avoids
driving due to experiencing anxiety in heavy traffic. She maintains
close friendships and enjoys bowling and dining out. At home, she
“helps” with cooking and laundry (she does not sweep or vacuum).
She is reportedly self-sufficient with regard to her personal hygiene.
She denied recent insomnia.
...
Mrs. Swingle reported that her ability to work has been impaired by
daily anxiety and fibromyalgia pain since 1992 (she retired in 2015).
She reported recent financial and family stress.
(Tr. 656.)
Dr. Eyring’s prognosis was “fair.” (Tr. 657.) He recommended that Plaintiff
continue with pain management, psychotropic medication, and individual
counseling to improve her mood. (Id.) His Medical Source Statement (“MSS”)
read as follows:
The claimant’s ability to understand and remember simple
instructions was intact. Her ability to attend and follow through on
complex tasks is judged to be mildly impaired. Her ability to make
judgments appears mildly impaired, interact effectively with others
appears mildly impaired, and respond to day-to-day stress appears
moderately impaired.
(Id.)
2.

State Agency Non-Examining Consultants

On September 26, 2018, after reviewing the records available as of that
date (including Dr. Eyring’s evaluation), Jermaine Robertson, Ph.D. completed a
Psychiatric Review Technique (“PRT”), opining that Plaintiff’s mental impairments
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were non-severe and she was “mentally capable of engaging in work-related
activity.” (Tr. 53-54.) Dr. Robertson opined that Plaintiff had mild limitations in
interacting with others and in concentration, persistence, or pace, and no
limitations in understanding, remembering, or applying information, and in
adapting or managing oneself. (Tr. 53.)
On December 5, 2018, after reviewing the records available as of that
date, Lawrence Annis, Ph.D. completed a PRT, opining that Plaintiff’s mental
condition was non-severe. (Tr. 68-69.) He stated: “Account of ADLs [i.e.
activities of daily living] and objective evidence indicate [a] mild overall functional
impairment due to [the claimant’s] mental condition. [Claimant] presents the
mental capacity to perform simple and complex occupational tasks within her
physical ability.” (Tr. 69.) Dr. Annis opined that Plaintiff had mild limitations in
interacting with others and in concentration, persistence, or pace, and no
limitations in understanding, remembering, or applying information, and in
adapting or managing oneself. (Id.)
D.

The ALJ’s Decision

At step two of the sequential evaluation process, 9 the ALJ found that
Plaintiff had the following severe impairments: degenerative disc disease of the
cervical spine, osteopenia, fibromyalgia, mitral valve prolapse, and intestitial lung

9

The Commissioner employs a five-step process in determining disability. See
20 C.F.R. § 404.1520(a)(4).
8

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disease. (Tr. 13.) The ALJ determined that Plaintiff’s generalized anxiety
disorder and adjustment disorder, among others, were non-severe impairments,
because:
Overall, the claimant’s impairments . . . were mild in nature and
appeared to be controlled with medical management and monitoring
. . . . In addition, the State agency psychological consultants
completed psychiatric review techniques and opined that the
claimant’s mental impairments are not severe . . . . The opinion of
the doctors are [sic] supported by a review of the medical evidence
of record and consistent with the claimant’s conservative medical
management. In addition, another consultative examiner opined
similar findings indicating mild type limitations upon a psychological
evaluation (Ex. 5F). The opinion is considered not fully persuasive,
as no specific work limits were given[,] and it was not supported by
and consistent with the generally normal mental status exam
findings. . . .
The claimant’s medically determinable mental impairments, as
mentioned, such as generalized anxiety disorder and adjustment
disorder considered singly and in combination, do not cause more
than minimal limitation in the claimant’s ability to perform basic
mental work activities and are therefore non[-]severe.
(Tr. 13-14.)
Also as part of step two, the ALJ addressed the four broad areas of mental
functioning, known as the “paragraph B” criteria, as follows:
The first functional area is understanding, remembering, or applying
information. In this area, the claimant has no limitation. The
claimant was noted to have issues with memory, understanding and
following instructions. However, the claimant was noted to have the
ability to perform numerous activities of daily living. Furthermore,
the claimant was able to adequately report mental health symptoms
to medical providers in the medical evidence of record . . . .
The next functional area is interacting with others. In this area, the
claimant has a mild limitation. The claimant reported issues with
getting along with others due to ongoing mental health symptoms.
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However, the claimant was noted to live with family, and spend time
with others . . . .
The third functional area is concentrating, persisting, or maintaining
pace. In this area, the claimant has a mild limitation. The claimant
reported issues with memory, completing tasks, concentration,
understanding, and following instructions. However, the claimant
was able to perform numerous activities of daily living that require a
degree of concentration, persistence, and pace . . . .
The fourth functional area is adapting or managing oneself. In this
area, the claimant has no limitation. The claimant lives with family,
takes care of pets, attends to personal care needs, prepares meals,
performs household duties, drives a car, shops in stores, plays
games, and spends time with others . . . .
(Tr. 14.)
At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of
the listed impairments. (Tr. 15.) Then, before proceeding to step four, the ALJ
determined that Plaintiff had the RFC to perform light work, except she could
frequently balance; occasionally stoop, kneel, crouch, crawl, and climb ramps,
stairs, ladders, ropes, or scaffolds; and have occasional exposure to unprotected
heights, moving mechanical parts, dust, odors, fumes, pulmonary irritants,
extreme cold, extreme heat, and vibration. (Id.) In making these findings, the
ALJ discussed Plaintiff’s complaints, the medical evidence, and the medical
opinions regarding Plaintiff’s physical impairments/limitations. (Tr. 16-18.) In
support of his RFC assessment, the ALJ stated:
The undersigned has reviewed and analyzed all evidence of record,
including medical records, whether or not they have been specifically
discussed in the decision. In sum, the above [RFC] assessment is
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supported by the objective medical evidence contained in the record.
Treatment notes in the record do not sustain the claimant’s
allegations of a disabling impairment. The persuasiveness of the
claimant’s allegations is weakened by inconsistencies between her
allegations and the medical evidence of record. The undersigned
finds that the claimant experienced some limitations but only to the
extent described in the [RFC] above.
(Tr. 18.)
Then, at step four, the ALJ determined that Plaintiff was capable of
performing her past relevant work of both a payroll clerk and a program analyst,
as generally performed. (Id.) Thus, the ALJ concluded that Plaintiff was not
disabled from May 29, 2015 through October 9, 2019. (Id.)
E.

Analysis

The Court finds that the ALJ’s decision is based on correct legal standards
and is supported by substantial evidence in the record. The ALJ properly
addressed the supportability and consistency factors set forth in 20 C.F.R. §§
404.1520c(c)(1) & (c)(2) in regard to Dr. Eyring’s opinion. (Tr. 14.) Also, the
ALJ’s finding that Dr. Eyring’s opinion was “not fully persuasive,” because “no
specific work limits were given and it was not supported by and consistent with
the generally normal mental status exam findings”, is supported by substantial
evidence in the record.
First, the ALJ properly observed that Dr. Eyring did not assess any specific
work limits. 10 (Tr. 14, 655-57.) The ALJ also correctly noted that Dr. Eyring’s

10

Dr. Eyring opined that Plaintiff was mildly impaired in her ability to attend to
and follow through on complex tasks, to make judgments, and to interact effectively with
11

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findings were similar to those of the State agency psychological consultants, Dr.
Robertson and Dr. Annis, in that he “indicat[ed] mild[-]type limitations.” (Tr. 14,
657 (indicating a mild limitation in the ability to attend to and follow through on
complex tasks, to make judgments, and to interact effectively with others).)
Although Dr. Eyring also indicated that Plaintiff’s ability to “respond to day-to-day
stress appear[ed] moderately impaired” (Tr. 657), the ALJ found Dr. Eyring’s
opinion “not supported by and consistent with the generally normal mental status
exam findings” (Tr. 14). The ALJ’s finding as to the supportability and
consistency of Dr. Eyring’s opinion is supported by substantial evidence in the
record. (See, e.g., Tr 544-50 (noting, as of June 21, 2017, that Plaintiff’s mood
was normal, her screen for depression was negative, and she stopped Lexapro,
which was prescribed for adjustment disorder); Tr. 538 & 716 (noting mild
depression and mild anxiety based on screening performed on February 5, 2018
and also noting that Plaintiff “ask[ed] for ongoing therapy to help with her
adjusting to all of the changes in her life as well as for a refill of escitalopram”);
Tr. 708 (noting normal mood and affect as of June 29, 2018); Tr. 670-73 (noting
mild depression and mild anxiety based on screening performed on November

others, and moderately impaired in her ability to respond to day-to-day stress. (Tr. 657.)
If the ALJ had found some or all of these impairments supported by and consistent with
the record, the ALJ would have assessed specific work-related limitations to account for
the impairments. However, as stated infra, the ALJ did not need to take into account
Dr. Eyring’s assessed impairments when determining the RFC, because Dr. Eyring’s
opinion was not supported by substantial evidence in the record. Cf. SSR 85-15 (“Any
impairment-related limitations created by an individual’s response to demands of work
[i.e., stress] . . . must be reflected in the RFC assessment.”) (emphasis added).
12

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21, 2018); Tr. 761-68 (noting minimal depression and mild anxiety as of February
19, 2019, and reporting that the medical marijuana was helping a lot with the
anxiety and was helping Plaintiff “focus on one thing at a time”); Tr. 729 (noting
normal mental examination findings as of June 6, 2019); Tr. 731 (noting normal
mental examination findings as of June 13, 2019); Tr. 755 (noting normal mood
and affect as of June 27, 2019); but see Tr. 646-51 (noting, as of September 8,
2018, that Plaintiff “exhibited mental abnormalities, angry demeanor, [was]
anxious, [and] her responses had a ‘bitter’ tone to them,” and opining that
Plaintiff’s mental problems “seem[ed] to be the vast majority of her problems” and
that she needed a psychological evaluation 11); Tr. 773-76 (noting anxious and
dysphoric mood, blunted affect, moderate depression, and mild anxiety as of
December 17, 2018).) Because the ALJ’s evaluation of Dr. Eyring’s opinion was
based on correct legal standards and was supported by substantial evidence, the
ALJ did not err in failing to account for Dr. Eyring’s assessed impairments in the
RFC assessment.
III.

Conclusion

The Court does not make independent factual determinations, re-weigh the
evidence, or substitute its decision for that of the ALJ. Thus, the question is not
whether the Court would have arrived at the same decision on de novo review;
rather, the Court’s review is limited to determining whether the ALJ’s findings are

11

This examination by Dr. Donna Lester took place two days before Dr. Eyring’s
evaluation.
13

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based on correct legal standards and supported by substantial evidence. Based
on this standard of review, the ALJ’s decision that Plaintiff was not disabled
within the meaning of the Social Security Act for the time period in question is
due to be affirmed.
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment accordingly,

terminate any pending motions, and close the file.
DONE AND ORDERED at Jacksonville, Florida, on November 16, 2020.

Copies to:
Counsel of Record

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