Mammano v. Commissioner of Social Security

Filing 25

OPINION AND ORDER affirming the decision of the Commissioner. The Clerk is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Douglas N. Frazier on 2/13/2014. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
VICTOR MAMMANO,
Plaintiff,
v.

Case No: 8:13-cv-509-T-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
This cause is before the Court on Plaintiff’s Complaint (Doc. 1) filed on January 9, 2013.
Plaintiff, Victor F. Mammano seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“SSA”) denying his claim for a period of disability and
disability insurance benefits.

The Commissioner filed the Transcript of the proceedings

(hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed
legal memoranda in support of their positions. For the reasons set out herein, the decision of the
Commissioner is Affirmed pursuant to §205(g) of the Social Security Act, 42 U.S.C. §405(g).
I. Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A. Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§404.1505, 416.905. The
impairment must be severe, making the claimant unable to do her previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§423(d)(2),

1382(a)(3); 20 C.F.R. §§404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while at step five the burden shifts to the Commissioner. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5 (1987).
B. Procedural History
On April 15, 2009, Plaintiff filed an application for Disability Insurance Benefits asserting
a disability onset date of October 6, 2006. (Tr. p. 42, 122). Plaintiff’s application was denied
initially on October 23, 2009, and denied upon reconsideration on February 25, 2010. (Tr. p. 48,
54-55). A hearing was held before Administrative Law Tony L. Eberwein (“ALJ”) on April 25,
2011. (Tr. p. 13-23).

The ALJ issued an unfavorable decision on May 12, 2011. (Tr. p. 13-

23). On December 20, 2012, the Appeals Council denied Plaintiff’s request for review. (Tr. p. 16).

The Plaintiff filed a Complaint (Doc. 1) in the United States District Court and on February

22, 2013. This case is now ripe for review. The parties consented to proceed before a United
States Magistrate Judge for all proceedings. (Doc. 16).

C. Summary of the ALJ’s Decision 1
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Commissioner of Social Security, ___ Fed. App’x. ____,
2013 WL 5788574 (11th Cir. Oct. 29, 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999)). An ALJ must determine whether the claimant (1) is performing substantial gainful
activity; (2) has a severe impairment; (3) has a severe impairment that meets or equals an

1 Plaintiff’s counsel states that “[f]or brevity and economy, the statements of the testimony and of the
documentary evidence as set forth In the ALJ’s decision (T. 10-29) are accepted by Plaintiff and incorporated, as if
fully presented herein, except as specifically alluded to, excepted, or expanded upon, below.” (Doc. 23, p. 3).
Therefore, the Court will also adopt the ALJ’s statements of the testimony and of the documentary evidence as set
forth in the ALJ’s decision (Tr. p. 13-23) unless excepted in this Opinion and Order.

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impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform his
past relevant work; and (5) can perform other work of the sort found in the national economy.
Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir. 2004). The claimant has the burden of
proof through step four and then the burden shifts to the Commissioner at step five. Hines-Sharp
v. Commissioner of Soc. Sec., 511 Fed. App’x. 913, 915 n.2 (11th Cir. 2013).
The Plaintiff applied for supplemental security income only. (Tr. p. 13). At step one of
the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since April 15, 2009, the date of the application. (Tr. p. 15). At step two, the ALJ found
that the Plaintiff suffered from the following severe impairments: degenerative arthritis in the
cervical spine, history of remote rotator cuff repair, history of remote hernia repair, hypertension,
diverticulosis, migraine, depression, post-traumatic stress disorder, and polysubstance abuse
citing 20 C.F.R. §416.920(c). (Tr. p. 15). At step three, the ALJ determined that Plaintiff did
not have an impairment or combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. 416.920(d), 416.925 and 416.926). (Tr. p. 15). The ALJ discussed the Plaintiff’s alleged
physical and mental impairments and concluded that these impairments do not meet or medically
equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
At step 4, the ALJ determined that the Plaintiff has the residual functional capacity
(“RFC”) to perform light work with the limitation of being able to lift 50 pounds with the left
arm, and 10 pounds with the right arm; being unable to lift with the right arm above shoulder
level; and being limited to simple 1 – 4 step tasks. (Tr. p. 16, 22). The ALJ determined that
after considering all the Plaintiff’s symptoms, including pain, that the evidence established the
presence of underlying impairments that reasonably could be expected to produce the symptoms

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alleged, however, the ALJ found that Plaintiff’s statements as to the frequency, intensity, and
duration of the symptoms are inconsistent with the evidence of record and did not fully credit
them. (Tr. p. 16). The ALJ found that the objective medical evidence did not confirm the
severity of the Plaintiff’s alleged pain and subjective symptoms, nor did the medical and nonmedical evidence support the presence of an impairment that reasonably could be expected to
produce pain, symptoms, and functional limitations to the degree alleged by Plaintiff. (Tr. p. 17).
The ALJ determined that Plaintiff was unable to perform his past relevant work. (Tr. p. 22).
At step 5, the ALJ found that considering Plaintiff’s age (44 years old), education (high
school equivalency), work experience, and residual functional capacity, there are jobs that exist
in significant numbers in the national economy that Plaintiff can perform. (Tr. p. 22). The ALJ
found Plaintiff able to perform light work with limitations, but the limitations eroded the
unskilled light occupational base, therefore, the ALJ requested the assistance of a vocational
expert. (Tr. p. 23).

The vocational expert testified that Plaintiff would be able to perform at

the light exertional level, unskilled occupations such as toll collector, produce inspector, and
survey worker. (Tr. p. 23). The ALJ concluded that Plaintiff has not been under a disability
since April 15, 2009. (Tr. p. 23).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. §405(g). Substantial evidence is more than a scintilla; i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant evidence

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as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)
and Richardson, 402 U.S. at 401.
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, 67 F.3d at 1560; accord, Lowery
v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine
reasonableness of factual findings).
II. Analysis
Plaintiff raises two issues on appeal.

As stated by Plaintiff, they are: (1) the

Administrative Law Judge Decision was in error in the evaluation of the Plaintiff’s abdominal
pain; and (2) the Appeals Council erred by failing to remand the case after it received new and
material evidence which supported the Plaintiff’s complaints of abdominal pain.
A. Whether the ALJ erred in evaluating Plaintiff’s abdominal pain
Plaintiff asserts that the ALJ determined that Plaintiff’s abdominal pain was a severe
impairment at step 2, but found that Plaintiff’s symptoms were not as severe as he alleged, yet
failed to state to what degree Plaintiff’s condition of diverticulosis affects his ability to perform
work-related activities.

Plaintiff argues that the ALJ should have made findings as to the

frequency, severity, and duration of Plaintiff’s abdominal pain, nausea and diarrhea, and posed a
hypothetical to the vocational expert which included these limitations. The Commissioner asserts

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that the ALJ carefully considered Plaintiff’s abdominal complaints and found that the record did
not support the symptoms of abdominal pain to the degree alleged by Plaintiff.

The

Commissioner claims that the ALJ supported his finding as to credibility.
The Eleventh Circuit’s three-part pain standard that applies whenever a claimant asserts
disability through testimony of pain or other subjective symptoms requires (1) evidence of an
underlying medical condition and either (2) objective medical evidence confirming 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 be expected to cause the alleged pain. Foote
v. Charter, 67 F.3d 1553, 1560 (11th Cir. 1995); Kelly v. Apfel, 185 F.3d 1211, 1215 (11th Cir.
1999). After considering claimant’s subjective complaints, the ALJ may reject them as not
credible, and that determination is reviewed for substantial evidence. Marbury v. Sullivan, 957
F.2d 837 (11th Cir. 1992). If the objective medical evidence does not confirm the severity of the
alleged symptoms, but indicates that the claimant’s impairment could reasonably be expected to
produce some degree of pain and other symptoms, the ALJ evaluates the intensity and persistence
of the claimant’s symptoms and their effect on his ability to work by considering the objective
medical evidence, the claimant’s daily activities, treatment and medications received, and other
factors concerning functional limitations and restrictions due to pain. See 20 C.F.R. § 404.1529.
The ALJ reviewed Plaintiff’s medical history as follows. 2 Plaintiff was admitted to the
hospital in October 2006 and reported a history of diverticulitis and pancreatitis. (Tr. p. 17). In
January 2009, Plaintiff went to the hospital with complaints of abdominal pain and diarrhea.
(Tr. p. 17). An examination showed abdominal tenderness, and a CT scan showed diverticulitis.
(Tr. p. 17). The Plaintiff was prescribed medication, discharged and the records indicated that

2 The Court will focus on the medical history involving diverticulitis and stomach pain as these
impairments are the only impairments raised in the Plaintiff’s Memorandum of Law (Doc. 23).

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he was able to perform daily activities without assistance. (Tr. p. 17). In September 2009, the
Plaintiff went to the emergency room for complaints of abdominal pain of 10-days duration and
vomiting. (Tr. p. 18). The hospital records indicated that he was in mild distress with abdominal
tenderness, and the CT scan showed no significant abnormality. (Tr. p. 18). In September and
October 2009, Plaintiff had medical and psychological consultative examinations. (Tr. p. 18).
The physical examination showed mild abdominal tenderness. (Tr. p. 18). The doctor found
diverticulosis with mild abdominal tenderness, reflux, and no signs or symptoms of hiatal hernia.
(Tr. p. 18). In January 2010, the Plaintiff was admitted to the hospital for 5 days for abdominal
pain. (Tr. p. 19). No “significant” test results or examination findings were documented. (Tr.
p. 19). Plaintiff was diagnosed with diverticulitis. (Tr. p. 19). He improved with treatment,
and felt fine on discharge. (Tr. p. 19). A second medical consultative examination occurred in
January 2010. (Tr. p. 19). Plaintiff complained of reflux, diverticulitis, and other problems not
related to abdominal issues. (Tr. p. 19). Dr. Desrochers determined that Plaintiff was in no
physical distress and had no abdominal pain. (Tr. p. 19).
One day after this consultative examination, Plaintiff went to the hospital with complaints
of abdominal pain of a three week duration. (Tr. p. 19). Plaintiff was found to demonstrate
moderate abdominal tenderness, however the physician concluded that there was no evidence of
acute diverticulitis. (Tr. p. 19). In February 2010, Plaintiff returned to the hospital with
abdominal pain and diarrhea. (Tr. p. 19). A CT scan showed diffuse diverticulosis, but no
evidence of acute diverticulitis. (Tr. p. 19). A final hospital admission was noted in May 2010,
again with Plaintiff complaining of abdominal pain lasting for 3 days’ duration and diarrhea for
several days. (Tr. p. 19). The examination showed Plaintiff having only mild distress with
moderate abdominal tenderness, and no other significant findings. (Tr. p. 19).

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The ALJ concluded that Plaintiff had several hospital visits for complaints of abdominal
pain, findings of acute diverticulitis on 2 occasions in January 2009 and January 2010, and had
rapid response to treatment. (Tr. p. 21). Visits in September 2009 and January 2010 showed
through CT scans that Plaintiff had improvement in inflammatory changes, no evidence of acute
disease, and no significant abnormality. (Tr. p. 21). The ALJ found that Plaintiff “repeatedly
noted to be in no distress and rarely noted to be in mild distress on examination in consultative
examinations.” (Tr. p. 21). The ALJ also found that the “record does not support diverticulitis
or symptoms of abdominal pain to the degree alleged by the claimant.” (Tr. p. 21).
The ALJ also weighed the Plaintiff’s credibility claim that he was unable to work beginning
in October 2006 due to going to the hospital one week out of every month and being unable to eat.
(Tr. p. 21). The ALJ noted that the record reflected a hospital visit in October 2006 and then no
further complaints until January 2009. (Tr. p. 21). The ALJ acknowledges that Plaintiff was seen
at the hospital several times between September 2009 and May 2010, but had inflammatory
changes only in January and had significant improvement thereafter. (Tr. p. 21-22).

Plaintiff’s

medical records do not indicate that he had difficulty eating or maintaining weight. (Tr. p. 22).
In fact, the claimant told Dr. Hatton in October 2009 that he had gained 50 pounds since May and
currently weighed 160 pounds. (Tr. p. 22). The ALJ also noted that Plaintiff denied drug use in
September and October 2009 and January 2010 and stated he had been clean since 2007. (Tr. p.
22) However, the ALJ then noted that Plaintiff admitted to drug use when arrested on charges of
cocaine possession in May 2009, and he testified that he last used cocaine three months prior to
the April 2011 hearing. (Tr. p. 22).
The ALJ reviewed Plaintiff’s complaints of abdominal pain thoroughly. He noted all of
Plaintiff’s hospitalizations. The ALJ did not find Plaintiff’s subjective complaints to be fully

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credible. Many of the examinations showed only mild, or at most moderate, abdominal tenderness.
Plaintiff always improved with treatment and was then discharged from the hospital. There was
no diagnosis of acute diverticulitis. In consultative examinations, Plaintiff indicated that he was
at most in mild distress, but usually did not mention being in abdominal distress. The ALJ
supported his credibility findings based upon the medical records provided by Plaintiff, Plaintiff’s
lack of veracity in reporting his illegal drug use, and Plaintiff’s exaggeration of the number of
times he was hospitalized in his report to Dr. Hatton.

The medical records indicated that

inflammation was seen in January 2010, however there was significant improvement thereafter.
The ALJ noted that Plaintiff’s complaints of having difficulty eating and maintaining his weight
contradict Plaintiff’s statement that he gained 50 pounds.
The ALJ’s credibility findings are supported by substantial evidence in the record. See,
Foote v. Chater, 67 F.3d 1552, 1562 (11th Cir. 1995) (“A clearly articulated credibility finding
with substantial supporting evidence in the record will not be disturbed by a reviewing court.”).
The ALJ determined that Plaintiff’s abdominal complaints would not limit him to performing a
full range of light work. The ALJ properly discounted Plaintiff’s subjective complaints. Further,
a diagnosis of diverticulitis alone is not a sufficient basis for finding that an impairment is severe,
but the severity of the impairment must be tied to a plaintiff’s ability to work. McCruter v. Bowen,
791 F.2d 1544, 1547 (11th Cir. 1986) and Sutton v. Astrue, 2010 WL 3212085, *4 (M.D. Fla. Aug.
12, 2010). Upon review of the record as a whole, the Court determines that the ALJ’s decision
that Plaintiff’s subjective assertions of his limitations due to abdominal complaints were not
credible, and the ALJ’s decision was supported by substantial evidence.
Plaintiff argues that even if the ALJ’s credibility findings was correct, the ALJ erred in not
including limitations relating to Plaintiff’s abdominal pain in his hypothetical to the vocational

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expert. At the hearing, the ALJ asked if Plaintiff had anything else wrong with him. Plaintiff
never mentioned his abdominal problems. (Tr. p. 34). Upon questioning by his representative
at the hearing, the Plaintiff testified that he is “always in the hospital” because of his diverticulitis.
(Tr. p. 38). Plaintiff testified that he cannot eat, is unable to go to the bathroom for a couple of
days, and is sick. (Tr. p. 38). Plaintiff’s representative failed to ask any questions of the vocational
expert regarding Plaintiff’s alleged limitations from his abdominal pain. (Tr. p. 39-40).
At step five of the sequential evaluation, the Commissioner bears the burden of showing
that there are jobs in the national economy in significant numbers that a plaintiff can perform.
Winshel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011); Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999). To assist an ALJ in making this determination, an ALJ may consult
and pose a hypothetical question to a vocational expert. Id. To constitute substantial evidence,
the hypothetical must include all of the claimant’s impairments. Wilson v. Barnhart, 284 F.3d
1219, 1227 (11th Cir. 2002). “An ALJ is not required to include findings in a hypothetical
question that the ALJ properly rejected as unsupported.” Beegle v. Comm’r of Soc. Sec., 482 Fed.
App’x 483, 487 (11th Cir. 2012). In the instant case, the ALJ’s hypothetical question to the
vocational expert did not include any limitations for Plaintiff’s abdominal pain. However, the
ALJ determined that Plaintiff had no limitations for light work due to his abdominal impairment,
and therefore, he was not required to include any limitations for Plaintiff’s abdominal impairment
in his hypothetical question to the vocational expert. The ALJ did not err in failing to mention
any limitations due to abdominal pain in the hypothetical questions to the vocational expert.

B. Whether Appeals Counsel erred in failing to remand case after receiving new and
material evidence

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Plaintiff asserts that new and material evidence was submitted to the Appeals Council that
relates to the relevant time period, and the Appeals Council erred in not remanding the case to the
ALJ to consider this new evidence. The Plaintiff argues that this additional evidence shows that
Plaintiff’s complaints of abdominal pain are chronic and ongoing. The Commissioner asserts that
the Appeals Council considered the additional evidence, but found no basis for overturning the
ALJ’s decision or remanding the case to the ALJ for further consideration.
The Appeals council “found no reason under our rules to review the Administrative Law
Judge’s decision.

Therefore, we have denied your request for review.”

(Tr. p. 1).

The

additional medical evidence submitted to the Appeals Council was G. Malhotra, M.D.’s treatment
notes dated March 10, 2010 through June 16, 2011; and, records from Brooksville Regional
Hospital dated November 19, 2011, and March 27, 2012.

Plaintiff argues that his two

hospitalizations demonstrate that Plaintiff’s complaints of abdominal pain were chronic and
ongoing. On November 19, 2011, Plaintiff was admitted to Brooksville Regional Hospital for
complaints of abdominal pain. (Tr. p. 846). The diagnosis included diverticulitis. (Tr. p. 847).
On March 27, 2012, Plaintiff was again admitted to Brooksville Regional Hospital for abdominal
pain. (Tr. p. 854). Plaintiff was observed and then discharged in a stable condition. (Tr. p.
854). These hospital records totaled six pages and did not contain any procedures or medical
testing.
A claimant is generally permitted to present new evidence at each state of his
administrative process. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007), and
20 C.F.R. §404.900(b).

Evidence submitted for the first time to the Appeals Counsel is

determined under a Sentence Four analysis. Id. An Appeals Council must consider new and
material evidence that “‘relates to the period on or before the date of the administrative law judge

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hearing decision’ and must review the case if ‘the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record.’” Id. (20 C.F.R.
§§404.970(b), 416.1470(b)). New evidence is considered material and thereby warranting a
remand if “‘there is a reasonable possibility that the new evidence would change the administrative
outcome.’” Id.
The ALJ entered his Decision on May 12, 2011.

These hospital visits occurred in

November 2011 and March 2012, approximately six and ten months after the date of the Decision.
The Plaintiff must show that these hospital visits relate to the period prior to the date of the
Decision, and that these records show that the ALJ’s decision, findings, or conclusion is contrary
to the weight of the evidence currently of record and that these records would change the outcome
of the ALJ’s decision. Even if the Court accepts that these hospital records relate back to the date
before the ALJ’s decision, and are new, the Court does not find that they are material or would
change the administrative outcome. These two hospital visits are repetitive of the hospital visits
that occurred prior to the ALJ’s Decision which were carefully considered by the ALJ. Plaintiff
failed to show how these two hospital visits would have made the ALJ’s Decision become contrary
to the weight of the evidence already of record. These hospital visits were cumulative and
presented no additional findings that demonstrate that the ALJ’s Decision was contrary to the
weight of the evidence. Therefore, the Court determines that the Appeals Council did not err in
failing to overturn the ALJ’s decision or remand the case back to the ALJ for further consideration.

III. Conclusion

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Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the Commissioner is supported by substantial evidence and decided
according to proper legal standards. The decision of the Commissioner is AFFIRMED pursuant
to sentence four of 42 U.S.C. §405(g). The Clerk is directed to enter judgment accordingly,
terminate any pending motions and deadlines, and close the case.

DONE and ORDERED in Fort Myers, Florida on February 13, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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