Erway v. Commissioner of Social Security

Filing 24

ORDER adopting 22 Report and Recommendation. The decision of the Commissioner of the United States Social Security Adminitration is affirmed. The Clerk is directed to enter judgment in favor of Defendant, to terminate all pending motions, and to close the case. Signed by Judge Susan C Bucklew on 8/12/2015. (ALK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARLA ERWAY,
Plaintiff,
v.
Case No. 8:14-Cv-1803-T-24 EAJ
CAROLYN W. COLVIN,
Acting Commissioner of the United
States Social Security Administration,
Defendant.
/

ORDER
This cause comes before the Court for consideration of Plaintiff's complaint seeking review
of the decision of the Commissioner of the Social Security Administration (Doc. 1). This
complaint was considered by the United States Magistrate Judge, pursuant to a specific order of
referral. On June 30, 2015, Magistrate Judge Jenkins filed her report recommending that the
Commissioner’s decision be affirmed and that judgment be entered in favor of Defendant. (Doc.
22). All parties were furnished copies of the Report and Recommendation and were afforded the
opportunity to file objections pursuant to 28 U.S.C. § 636(b)(1). Objections to the Magistrate’s
Report were filed by Plaintiff on July 14, 2015 (Doc. 23).
This Court conducts a de novo determination of the findings or recommendations to which
an objection is made. 28 U.S.C. § 636(b)(1)(C). The Court may accept, reject or modify, in whole
or in part, the findings and recommendations. Id. For the reasons explained below, the Court
rejects Plaintiff’s objections and adopts the Magistrate Judge’s Report and Recommendation.

Plaintiff contends that the Administrative Law Judge (ALJ) failed to properly weigh
various medical opinions. First, Plaintiff objects to the Magistrate Judge’s finding that the ALJ
was not required to conduct a good cause analysis of Nurse Practitioner Corwin’s medical
assessment and opinion. Nurse Practitioner Corwin identified panic-related symptoms and
assigned Plaintiff a current GAF of 521 (Doc. 14-13 at 50), but she also indicated that Plaintiff’s
prognosis was “good” and appeared “motivated for treatment.” (Id. at 53). The final page of
Nurse Practitioner Corwin’s opinion contains an additional signature of Linda Lefler, M.D. (Id.
at 59). The Court agrees with the Magistrate Judge’s finding that the ALJ’s assessment of Nurse
Practitioner Corwin’s opinion was based on substantial evidence. Plaintiff also argues that the
ALJ should have treated Nurse Practitioner Corwin’s opinion as the opinion of Dr. Lefler’s since
Dr. Lefler’s signature appears at the end of the report. The Court agrees with the finding of the
Magistrate Judge that it is unclear whether Dr. Lefler had any involvement in the treatment of
Plaintiff and therefore the ALJ was not required to conduct a “good cause” analysis of Nurse
Practitioner Corwin’s opinion.
Next, Plaintiff objects to the Magistrate Judge’s finding that the ALJ’s assessment of Dr.
Gerald Hodan’s opinion was based on substantial evidence. Plaintiff asserts that the ALJ was not
free to “pick and choose” the portions of a report that he will accept. Doc. 23 at 4. The ALJ
afforded Dr. Hodan’s opinion partial weight finding that some of his opinions were “vague,”
conclusory, and inconsistent with the medical record including Dr. Hodan’s own contemporaneous
findings. Doc. 14-2 at 15. The Court agrees with the Magistrate Judge’s report that the ALJ’s
assessment of Dr. Hodan’s opinion was based on substantial evidence. The ALJ’s opinion

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Nurse Practitioner Corwin’s assignment of a current GAF score of 52 denoted moderate as opposed to
serious symptoms. Doc. 14-15 at 62.

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contained a sufficient explanation of the reasons for discounting the vague portions of Dr. Hodan’s
opinion.
Plaintiff objects to the Magistrate Judge’s finding that any error by the ALJ relating to the
opinion of Dr. Scott M. Wisotsky and Dr. John Drygas was harmless. Plaintiff also argues that
the ALJ failed to state the weight given to the progress notes from Dr. Wisotsky and Dr. Drygas
at the Florida Spine Institute. The ALJ discussed both of the doctors’ findings, but he did not
specifically state the weight given to each. Plaintiff fails to explain how the progress notes (even
if given a controlling weight) would have changed the opinion of the ALJ. An ALJ’s failure to
provide the weight given to a medical opinion is harmless where the opinion does not contradict
the ALJ’s ultimate findings. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983). The Court
agrees with the Magistrate Judge’s report that any error that the ALJ may have committed by
failing to explicitly state the weight given to either opinion is harmless.
Plaintiff next objects to the Magistrate Judge’s finding that the ALJ properly discounted
Dr. Lance Cassell’s report regarding alleged impairments with respect to Plaintiff’s shoulder and
hand. The Court agrees with the Magistrate Judge that the ALJ properly discounted Dr. Cassell’s
report and that the ALJ’s analysis of Dr. Cassell’s opinion was supported by substantial evidence.
Plaintiff objects to the Magistrate Judge’s finding that the ALJ failed to give proper weight
to GAF scores of 50 or below that indicated serious symptoms of mental illness. The ALJ did not
ignore these GAF scores but considered them in the context of the broader medical record in order
to more completely evaluate the overall functional impact of Plaintiff’s mental impairments. The
Court agrees with the Magistrate Judge that Plaintiff failed to demonstrate that the ALJ’s
evaluation of the GAF scores was flawed or would have resulted in the imposition of a more
restrictive Residual Functional Capacity (RFC) assessment.

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Plaintiff objects to the Magistrate Judge’s finding that the ALJ properly evaluated
Plaintiff’s credibility in assessing Plaintiff’s subjective symptom of pain. The ALJ’s decision
includes an evaluation of Plaintiff’s symptoms of pain and he found them not credible to the extent
they were inconsistent with his RFC assessment. The ALJ supported this evaluation with the
disparity between Plaintiff’s allegations of total disability and the record evidence. The Court
agrees with the Magistrate Judge that the ALJ’s credibility finding was based on substantial
evidence.
Finally, Plaintiff objects to the Magistrate Judge’s finding regarding Plaintiff’s ability to
concentrate.

The Magistrate Judge found that Plaintiff retained relatively normal mental

functionality in spite of her moderate limitation in maintaining concentration, persistence, and
pace. The Court agrees with the Magistrate Judge regarding Plaintiff’s ability to concentrate.
Upon consideration of the Report and Recommendation and the Plaintiff’s objections
thereto, and upon this Court’s independent examination of the file, it is determined that the Report
and Recommendation (Doc. 22) should be adopted. Accordingly, it is now ORDERED AND
ADJUDGED that:
(1)

The Magistrate Judge's Report and Recommendation (Doc. 22) is adopted
and incorporated by reference in this Order of the Court;

(2)

The decision of the Commissioner of the United States Social Security
Administration is AFFIRMED; and

(3)

The Clerk is directed to enter judgment in favor of Defendant, to terminate
all pending motions, and to close the case.

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DONE AND ORDERED at Tampa, Florida, this 12th day of August, 2015.

Copies to:
The Honorable Elizabeth A. Jenkins
Counsel of Record

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