Davis v. Commissioner of Social Security
Filing
26
OPINION AND ORDER re 1 Complaint. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment pursuant in favor of the Commissioner, and close the file. Signed by Magistrate Judge Carol Mirando on 12/29/2015. (LS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LINDA DAVIS,
Plaintiff,
v.
Case No: 8:14-cv-3104-T-CM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Linda Davis seeks judicial review of an administrative decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her
application for Social Security disability insurance benefits (“DIB”). The Court has
reviewed the record, the briefs and the applicable law. For the reasons set forth
herein, the Commissioner’s decision is AFFIRMED.
I.
Issues on Appeal
Plaintiff raises three interrelated issues on appeal: 1 (1) whether substantial
evidence supports the finding of Administrative Law Judge Elving L. Torres (the
“ALJ”) at step two that Plaintiff’s mental impairments were not severe; (2) whether
Any issue not raised by the Plaintiff on appeal is deemed to be waived. Access Now,
Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or
argument that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.”), cited in Sanchez v. Comm'r of Soc. Sec., 507 F. App'x 855, 856 (11th Cir.
2013).
1
the ALJ’s residual functional capacity (“RFC”) finding erroneously failed to account
for Plaintiff’s mental limitations; and (3) whether the hypothetical the ALJ posed to
the vocational expert (“VE”) properly included Plaintiff’s limitations, specifically her
mental impairments.
Because the decision of the Commissioner is supported by
substantial evidence and Plaintiff has not shown any reversible error, the Court will
affirm the ALJ’s decision on all issues.
II.
Procedural History and Summary of the ALJ’s Decision
On March 1, 2011, Plaintiff protectively filed an application for DIB alleging
she became disabled on February 1, 2010 because of back problems and a back injury.
Tr. 182-184, 209.
The Social Security Administration (“SSA”) denied her
applications initially and upon reconsideration.
Tr. 120-21, 134-39, 145-50.
Plaintiff then requested and received a hearing before the ALJ on March 20, 2013,
during which she was represented by an attorney. Tr. 31-65. Plaintiff and a VE,
Dr. Easton, appeared and testified at the hearing. Tr. 31-65.
On April 30, 2013, the ALJ issued his decision, finding Plaintiff not disabled
and denying her claim. Tr. 16-26. The ALJ first determined that Plaintiff met the
insured status requirements of the Social Security Act through June 30, 2012. Tr.
18. At step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity during the period from February 1, 2010, the alleged onset date, through
June 30, 2013, the date last insured. Id. At step two, the ALJ determined that
Plaintiff had “the following severe impairments: obesity; lumbar spine degenerative
disc disease with disc protrusions, foraminal narrowing, and degenerative changes at
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multiple levels; mild C6 radiculopathy and degenerative changes with stenosis and
borderline carpal tunnel syndrome, bilaterally, episodic migraine headaches; and
moderate osteoarthritis.” Id.
In doing so, the ALJ specifically considered Plaintiff’s medically determinable
mental impairments of anxiety and depression and found that “considered singly and
in combination, did not cause more than minimal limitation in the claimant’s ability
to perform basic mental work activities and were therefore nonsevere.”
Id.
In
making his finding, the ALJ considered the four broad functional areas set out in the
regulations for evaluating mental disorders and in section 12.00C of the Listing of
Impairments, the so-called “paragraph B” criteria. 2 In the first functional area of
daily living, the ALJ determined that Plaintiff has mild limitation. Id. Although
the ALJ noted Plaintiff’s hearing testimony that pain, headaches and other symptoms
of Plaintiff’s physical impairments interfere with her ability to perform household
chores and other activities of daily living, he further observed that Plaintiff did not
allege restrictions on activities of daily living related to her mental impairments. Tr.
18-19. The ALJ discussed the June 16, 2011 psychological evaluation of Dr. Richard
Belsham, Ph.D., in which Plaintiff reported that she is able to attend to personal
hygiene needs, cook, drive and shop for groceries. Tr. 19, 357-60. The ALJ further
discussed the opinion of Dr. Linda O’Neil, Ph.D., who reviewed Dr. Belsham’s opinion
and the record and concluded Plaintiff has only a mild limitation in the functional
area of activities of daily living relating to mental impairments. Tr. 19, 486-99.
2
20 C.F.R., Part 404, Subpart P. Appendix 1.
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In the next functional area, social functioning, the ALJ also found that Plaintiff
has mild limitation. Tr. 19. Noting that Plaintiff testified that she cries a lot and
becomes agitated when under stress, the ALJ observed during the hearing that
Plaintiff “remained calm and composed. Id. She was cooperative and responsive to
questions, and her eye contact was appropriate.
Not once did the undersigned
observe her exhibiting any notably abnormal or distracting behaviors.” Id. The
ALJ noted in Dr. Belsham’s examination on June 16, 2011, he observed Plaintiff
“‘maintain[] good eye contact throughout the interview, her speech was normal, and
her attitude towards the examiner was cooperative.’” Id., Tr. 357. Although the
ALJ noted that Dr. Belsham reported that Plaintiff could appear “anxious, depressed
and tearful,” her “overall mood was pleasant.” Id. After Dr. O’Neil’s review of Dr.
Belsham’s report and record, the ALJ noted she concluded that Plaintiff has a mild
limitation in the functional area of social functioning. Tr. 19. Based on Plaintiff’s
testimony, observations of the Plaintiff during the hearing and a “thorough review of
the record,” the ALJ found that Plaintiff has a mild limitation in the functional area
of social functioning. Id.
In the third functional area of concentration, persistence or pace, the ALJ
found that Plaintiff has mild limitation. Id. The ALJ discussed Plaintiff’s hearing
testimony, in which she stated that she gets agitated and stressed, but noted that
Plaintiff did not allege any specific limitations in the area of concentration,
persistence, or pace.
Id.
The ALJ further observed during that hearing that
Plaintiff remained “fully focused and attentive. . . . understood all questions and
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provided appropriately detailed answers. Not once did the undersigned observe a
lapse in the claimant’s concentration.”
Id.
Further, the ALJ noted that Dr.
Belsham found in his June 2011 examination that Plaintiff “appears capable of
following simple instructions and for the most part complex instructions,” noting,
however, Dr. Belsham also found that Plaintiff’s “ability to maintain attention and
concentration appears variable.” Id., Tr. 359. Dr. O’Neil concluded, after review of
Dr. Belsham’s report and the record, that Plaintiff has a mild limitation in the
functional area of concentration, persistence, or pace. Tr. 371. Based on Plaintiff’s
testimony, the ALJ’s observations during the hearing and her review of the record,
the ALJ concluded that Plaintiff has a mild limitation in the functional area of
concentration, persistence, or pace. Tr. 19.
In the fourth functional area of episodes of decompensation, the ALJ found that
Plaintiff had experienced no episodes of decompensation of an extended duration.
Id. Dr. O’Neill arrived at the same conclusion after her review.
Accordingly, the ALJ concluded:
Tr. 371.
“because the claimant’s medically determinable
mental impairments caused no more than ‘mild’ limitation in any of the first three
functional areas and ‘no’ episodes of decompensation which have been of extended
duration in the fourth area, they were non-severe.” Tr. 19-20.
At step three, the ALJ concluded that Plaintiff “did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 20. The ALJ
then determined that Plaintiff had the RFC to perform light work as defined in 20
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C.F.R. § 404.1567(b), with some additional limitations: “occasional balancing,
stooping, kneeling, crouching, crawling, and climbing of ramps or stairs; no climbing
of ladders, ropes, or scaffolds, or exposure to unprotected heights; gross and fine
manipulation limited to frequent as opposed to constant or repetitive; must avoid
extensive exposure to extreme bright sunlight, and preferably limited to performing
indoor activities; and must avoid extreme noise environment exposure.” Id. The
ALJ also found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause some of 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. 22.
Next, at step four, the ALJ posed the following hypothetical to the VE, and
asked if such a person could perform any of Plaintiff’s past occupations:
Dr. Easton, assuming a hypothetical individual limited to light level of
exertion, with limitation to occasional climbing, balancing, stooping,
kneeling, crouching and crawling. No climbing ladders, scaffolds, ropes
or at open heights. Assuming that gross and fine manipulation will be
limited to frequently, as opposed to constant or repetitive. Assuming
that must avoid extensive exposure to extreme bright sunlight and
preferably will be limited to indoor activities as a result, but still without
extreme noise, environmental exposure. Could such a hypothetical
person perform any of the claimant's past occupations as the claimant
actually performed it or as generally performed in the economy?
Tr. 59-60. The VE responded in the negative. Based on the testimony of the VE,
the ALJ determined that Plaintiff was unable to perform any of her past relevant
work as a house cleaner, cashier or fast food worker. Tr. 24. Next, the ALJ asked
the VE:
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Now, assuming a hypothetical younger individual with a limited
education and assuming limited to a wide range of light level of exertion,
with the other restrictions already mentioned, is there any work that
such a hypothetical individual could perform?
Tr. 60. The VE said there would be and provided examples of representative jobs
Plaintiff could perform. Thus, at step five, also based on the testimony of the VE
and considering Plaintiff’s age, 3 education, work experience and RFC, the ALJ found
that jobs existed in significant numbers in the national economy that Plaintiff could
perform, such as ticket seller, ticket taker and hand packager.
Tr. 24-25.
In
addition, the ALJ found that based on the VE’s testimony, Plaintiff was “capable of
making a successful adjustment to other work that existed in significant numbers in
the national economy.” Tr. 25. Thus, the ALJ concluded that Plaintiff had not been
under a disability within the meaning of the Social Security Act from February 1,
2010 through June 30, 2012. Id.
Following the ALJ’s decision, Plaintiff filed a Request for Review by the
Appeals Council, which was denied on October 22, 2014. Tr. 1-6. Accordingly, the
April 30, 2013 decision is the final decision of the Commissioner. On December 12,
2014, Plaintiff timely filed her Complaint with this Court. Doc. 1.
3
Plaintiff was born in 1964. Tr. 25.
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III.
Social Security Act Eligibility and Standard of Review
A claimant is entitled to disability benefits when she is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months.
42 U.S.C. §§ 416(i)(1),
423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability. See 20 C.F.R. § 404.1520.
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).
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings are supported by
substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988)
(citing 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., evidence that must do
more than create a suspicion of the existence of the fact to be established, and such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citations
omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding
that “[s]ubstantial evidence is something more than a mere scintilla, but less than a
preponderance”) (internal citation omitted).
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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 preponderance of the evidence
is 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 record as a whole, taking into account evidence favorable
as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the factual findings). It is the
function of the Commissioner, and not the courts, to resolve conflicts in the evidence
and to assess the credibility of the witnesses. Lacina v. Commissioner, 2015 WL
1453364 at *2 (11th Cir. 2015), citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971).
IV.
Analysis
A. The ALJ’s Determination of the Severity Plaintiff’s Mental
Impairments at Step Two
Plaintiff states that the ALJ improperly found her mental limitations of
anxiety and depression to be non-severe, asserting substantial evidence supports
otherwise.
Doc. 24 at 6-8.
Defendant responds that the argument lacks merit
because there is no evidence in the record showing Plaintiff’s anxiety and depression
significantly affected her ability to perform basic work activities. The Court, having
reviewed the record, the applicable law and the decision of the ALJ, agrees with the
Commissioner.
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At the second step in the sequential evaluation process, the ALJ determines
whether the claimant has a severe impairment.
20 C.F.R. § 404.1520(a)(4)(ii).
Plaintiff bears the burden of establishing that her impairments are severe and
prevent the performance of her past relevant work. Bowen v. Yuckert, 482 U.S. 146
at 146 n.5 (1987).
A severe impairment is an impairment or combination of
impairments that significantly limits a claimant’s physical or mental ability to do
basic work activities. 20 C.F.R. § 404.1520(c). “An impairment is not severe only if
the abnormality is so slight and its effect so minimal that it would clearly not be
expected to interfere with the individual’s ability to work, irrespective of age,
education, or work experience.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.
1986).
The Social Security Regulations provide that an “impairment or combination
of impairments is not severe if it does not significantly limit your . . . . mental ability
to do basic work activities.” 20 C.F.R. § 404.1521(a). Basic work activities mean
“the abilities and aptitudes necessary to do most jobs.” Id. § 404.1521(b). Examples
of mental requirements set forth in the regulations include understanding, carrying
out, and remembering simple instructions; use of judgment; responding appropriately
to supervision, co-workers and usual work situations; and dealing with changes in a
routine work-setting. Id. § 404.1521(b)(3)-(6).
In order to evaluate the severity of a mental impairment, the Commissioner’s
regulations require the application of a “special technique,” which the ALJ applied in
this case. 20 C.F.R. § 404.1520a; see Tr. 18-20. Under the special technique, the
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ALJ will rate the degree of functional limitation in four broad functional areas:
activities of daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). The degree of limitation
in the first three areas are rated on a five point scale of none, mild, moderate, marked,
and extreme; and the fourth area is rated as none, one or two, three, four or more.
20 C.F.R § 404.1520a(c)(4). Once the degree of limitation in each area is determined,
if the degree of limitation in the first three functional areas is none or mild and the
fourth area is none, the ALJ generally will find, as he did here, the impairment is not
severe, unless the evidence otherwise indicates more than a minimal limitation in
ability to do basic work activities. 20 C.F.R. § 404.1520a(d)(1). The ALJ’s decision
must incorporate findings and conclusions based on the special technique. 20 C.F.R.
§ 404.1520a(e)(4).
Here, the ALJ determined that the only severe impairments Plaintiff suffered
from were physical limitations: obesity; lumbar spine degenerative disc disease with
disc protrusions, foraminal narrowing, and degenerative changes at multiple levels;
mild C6 radiculopathy and degenerative changes with stenosis and borderline carpal
tunnel
syndrome,
osteoarthritis.
bilaterally,
Tr. 18.
episodic
migraine
headaches;
and
moderate
As discussed in detail earlier in this opinion, 4 the ALJ
specifically considered Plaintiff’s alleged mental impairments of depression and
anxiety and determined they did not cause more than minimal limitation in Plaintiff’s
ability to perform basic mental work activities. Tr. 18-20. The ALJ applied the
4
See supra pp. 3-5.
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special technique and considered the four broad functional areas set out in the
regulations for evaluating mental disorders.
Id.
The ALJ found only mild
limitation in Plaintiff’s activities of daily living; social functioning; and concentration,
persistence or pace. He found no episodes of decompensation of extended duration.
Id.
Based on these findings, the ALJ determined that Plaintiff’s mental
impairments were non-severe. Tr. 19-20.
There is very little record evidence concerning Plaintiff’s mental impairments:
primarily the psychological evaluation of examining psychologist Richard Belsham,
Ph.D., dated June 16, 2011 (Tr. 357-60) and the psychiatric review technique forms
completed by two State Agency psychologists who reviewed Plaintiff’s records,
including those of Dr. Belsham, Thomas Clark, Ph.D., performed on July 7, 2011 (Tr.
361-74) and Linda O’Neil, Ph.D., dated October 4, 2011 (Tr. 486-99).
The ALJ discussed Dr. Belsham’s report at length when he applied the special
technique and considered the four broad functional areas. Tr. 18-20. Dr. Belsham
examined Plaintiff in June 2011. Tr. 357-60. He described Plaintiff’s overall mood
as pleasant but noted that she was anxious, depressed, and tearful. Tr. 357. Dr.
Belsham found that Plaintiff’s thoughts were organized, her content was relevant,
and no delusional thinking, paranoid ideation or hallucinations had been noted or
reported.
Tr. 357. Dr. Belsham also found Plaintiff’s perception, insight, and
judgment appeared normal, her abstract reasoning ability appeared intact and good,
and that her intelligence appeared in the average range.
Id. He further noted
Plaintiff was oriented to time, place, and person and knew the name of the President,
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and that Plaintiff’s memory appeared intact. Id.
Plaintiff told Dr. Belsham she
stopped working due to her back, not mental impairments. Tr. 358-59. Plaintiff
also told Dr. Belsham she is raising her 9-year old grandson. Tr. 358. Dr. Belsham
opined that Plaintiff appeared “capable of following simple instructions and for the
most part complex instructions” and her “ability to maintain attention and
concentration appear[ed] variable.”
Tr. 359.
Dr. Belsham found Plaintiff was
adaptable and able to learn new material and could relate and act appropriately with
others. Id. Dr. Belsham noted Plaintiff’s “ability to deal with stress appears rather
poor,” but opined that Plaintiff was “able to seek and secure employment” and that
her “[m]ental health issues appear to play more of a secondary role with regards to
employment” Id.
As noted by the Commissioner, the ALJ’s step two finding also is supported by
the opinion of the State Agency psychologists, Dr. Thomas Clark and Dr. Linda
O’Neil. Doc. 25 at 9; Tr. 361-74; 486-98. Thomas Clark, Ph.D., reviewed Plaintiff’s
records and, one month after Dr. Belsham’s examination, completed a psychiatric
review technique. Tr. 361-74. Dr. Clark noted no restriction of activities of daily
living, mild difficulties in maintaining social functioning, mild difficulties in
maintaining concentration, persistence, or pace, and no episodes of decompensation
Tr. 371. Dr. Clark also reviewed Plaintiff’s records, including the report from Dr.
Belsham, and concluded that Plaintiff’s mental illness was very mild and imposed no
more than mild restrictions on functioning, and that Plaintiff had good control of
symptoms with medication. Tr. 373.
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The ALJ also discussed Dr. O’Neil’s findings in her opinion. Tr. 18-19. Dr.
O’Neil reviewed Plaintiff’s records and concluded Plaintiff’s mental impairments of
depression and anxiety were not severe. Tr. 486-498. Dr. O’Neil rated the degree
of limitation resulting from Plaintiff’s depression and anxiety in the four functional
areas, concluding Plaintiff’s limitations were mild in activity of daily living; social
functioning; and concentration, persistence or pace. Tr. 496. Dr. O’Neil noted no
episodes of decompensation.
Tr. 496. Dr. O’Neil noted that Plaintiff mentioned
anxiety, was on Xanax, and received counseling for a recent home invasion but that
some anxiety related to the home invasion was reasonable and “not expected to last
for an extended period of time.” Tr. 498.
The Court finds that the ALJ’s decision is supported by substantial evidence
in the record.
Plaintiff has submitted no evidence of severe mental limitations
because of her depression or anxiety. See 20 C.F.R. § 404.1521(a) (an impairment
not severe if it does not significantly limit your physical or mental ability to do basic
work activities).
Furthermore, no doctor has opined that Plaintiff’s mental
limitations are so debilitating as to preclude Plaintiff from working. Rather, the
record shows the opposite. See Wind v. Barnhart, 133 Fed. App’x 684, 690-91 (11th
Cir. 2005) (finding that ALJ did not err in finding that plaintiff’s obesity was not a
severe impairment where there was no evidence it affected plaintiff’s ability to
perform work activities).
As noted, there is minimal record evidence concerning Plaintiff’s mental
limitations, and, as observed by the ALJ, Plaintiff did not allege restrictions on her
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daily activities or her concentration, persistence or pace related to mental
impairments.
Tr. 18-19.
The majority of Plaintiff’s medical visits were for
treatment related to her physical impairments, in which she denied depression or
anxiety, panic attacks, easy distractibility and an inability to concentrate. See, e.g.,
Tr. 449, 465, 470, 475, 481, 512 (visits to Paul E. Beebe, M.D.).
Plaintiff’s records
rarely mention mental limitations, and when they do, they are discussed in a positive
vein. See, e.g., Tr. 354, 517 (Dr. Beebe’s examination concluding that Plaintiff was
oriented to person, place and time with a normal mood and affect and that her form
and content of thought were normal, her concentration and intelligence were normal
and her judgment and insight were intact). Notes from Kevin L. Boyer, M.D., and
Francisco Esparza, M.D., also support the ALJ’s determination that Plaintiff’s
anxiety and depression were not severe.
On February 4, 2010, Dr. Boyer noted
Plaintiff’s neurological exam was within normal limits. Tr. 422. On August 23,
2011, Plaintiff reported to Dr. Esparza that her PTSD had “improved tremendously”
and that her mood was stable. Tr. 398. Overall, these reports do not discuss that
Plaintiff had any limitations in her ability to function due to her mental limitation,
nor was it a condition for which she sought treatment for. In fact, Plaintiff herself
reported that it was her physical impairments and not her mental limitations that
caused her to stop working. Tr. 81, 358-59.
Additionally, the ALJ found in Plaintiff’s favor at step two of the sequential
evaluation process by finding that she had multiple severe impairments. Tr. 18.
The ALJ then proceeded with the other steps of the sequential evaluation process and
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found Plaintiff could perform the range of work at all exertional levels with certain
nonexertional limitations. Tr. 23. As the Eleventh Circuit has stated, “[n]othing
requires that the ALJ must identify, at step two, all of the impairments that should
be considered severe.” Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 825 (11th
Cir. 2010). Thus, the ALJ’s findings were not in error.
B. The ALJ’s Determination of Plaintiff’s RFC
Plaintiff next argues the ALJ did not properly consider Plaintiff’s mental
limitations in determining her RFC, particularly Dr. Belsham’s opinion concerning
Plaintiff’s stress, ability to maintain attention and concentration and ability to follow
complex instructions.
Doc. 24 at 8-9.
Plaintiff asserts the ALJ should have
incorporated into her RFC a limitation for “simple, routine, repetitive work.” Id.
The Court disagrees, and finds that the ALJ properly assessed Plaintiff’s RFC.
The RFC is the most that a claimant can do despite her limitations. See 20
C.F.R. § 404.1545(a).
At the hearing level, the ALJ has the responsibility of
assessing a claimant’s RFC. See 20 C.F.R. § 404.1546(c). The ALJ is required to
assess a claimant’s RFC based on all of the relevant evidence in the record, including
any medical history, daily activities, lay evidence and medical source statements. 20
C.F.R. § 404.1545(a). The claimant’s age, education, work experience and whether
she can return to her past relevant work are considered in determining her RFC,
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. §
404.1520(f)), and the RFC assessment is based upon all relevant evidence of a
claimant’s ability to do work despite her impairments. Phillips v. Barnhart, 357
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F.3d 1232, 1238 (11th Cir. 2004) (emphasis added); Lewis, 125 F.3d at 1440 (citing
20 C.F.R. § 404.1545(a)). Opinions on some issues, however, such as the claimant’s
RFC and whether the claimant is disabled or unable to work, “are not medical
opinions, . . . but are, instead, opinions on issues reserved to the Commissioner
because they are administrative findings that are dispositive of a case; i.e., that would
direct the determination or decision of disability.” 20 C.F.R. § 404.1527(d); SSR 965p.
Thus, the ALJ is responsible for making the ultimate determination about
whether a claimant meets the statutory definition of disability.
20 C.F.R. §
404.1527(d)(1).
Although Plaintiff singles out Dr. Belsham’s opinion, an ALJ is required to
assess Plaintiff’s RFC based on all relevant evidence. Phillips, 357 F.3d at 1238.
The Court finds the ALJ did so here with respect to Plaintiff’s mental impairments.
He discussed and considered Dr. Belsham’s opinion and gave it “significant weight,”
although he did not adopt it in total.
Tr. 24.
He also considered Dr. O’Neil’s
psychiatric review technique, which found that Plaintiff’s mental impairments
created only a mild degree of limitation in her functional areas of activities of daily
living, social functioning and concentration, persistence or pace. Tr. 23. Dr. O’Neill
concluded Plaintiff had no severe mental impairments. Tr. 24. The ALJ likewise
gave Dr. O’Neil’s report significant weight.
Id.
Furthermore, as noted by the
Commissioner, Plaintiff’s own statements confirm that her ability to work was not
limited by her mental impairments, but by her “physical problems.”
Tr. 81
(reporting “[Plaintiff] does not feel she has a disabling mental condition [and that i]f
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not for her physical problems, she would be able to work”); Tr. 358-59 (reporting to
Dr. Belsham Plaintiff stopped working because of her back issues and not mental
impairments). Likewise, there is no evidence in the record to support Plaintiff’s
contention that she is limited in her ability to perform basic work activities because
of her inability to deal with stress. Doc. 24 at 8-9. See SSR 85-15. As noted by the
Defendant, while Dr. Belsham stated Plaintiff’s ability to deal with stress was “poor,”
he did not opine that Plaintiff would need any restriction to low-stress work. Doc.
25 at 15, Tr. 359.
On the contrary, as the ALJ discussed, Dr. Belsham stated
Plaintiff appeared “able to seek and secure employment” and her “[m]ental health
issues appear to play more of a secondary role with regards to employment.” Tr. 24,
359. The ALJ further observed in the hearing that Plaintiff “remained calm and
composed. She was cooperative and responsive to questions, and her eye contact was
appropriate.
Not once did the undersigned observe her exhibiting any notably
abnormal or distracting behaviors.” Tr. 19.
With respect to Plaintiff’s ability to maintain attention and concentration, Dr.
Belsham only described Plaintiff’s ability as “variable.” Tr. 359. Furthermore, the
ALJ observed Plaintiff’s demeanor at the hearing and noted that Plaintiff remained
“fully focused and attentive . . . . understood all questions and provided appropriately
detailed answers.” Plaintiff’s argument that she is limited by her ability to follow
complex instructions (Doc. 24 at 9) also is unpersuasive, as the jobs that the ALJ
(through the VE’s testimony) found Plaintiff is capable of performing are unskilled
jobs, which require “only the ability to understand, remember, and carry out simple
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instructions.” SSR 85-15.
Under the applicable legal standards, the Court finds
substantial evidence supports the ALJ’s RFC determination.
C. The ALJ’s Hypothetical to the VE
Finally, Plaintiff’s argues that the ALJ improperly failed to include all of
Plaintiff’s limitations, specifically her alleged mental impairments, in the
hypothetical to the VE.
Doc. 24 at 9-11.
The Court disagrees.
The ALJ
determined Plaintiff’s mental impairments were not severe and caused no more than
minimal limitation in Plaintiff’s ability to perform basic mental work activities. Tr.
27. As discussed in detail in this opinion, the ALJ came to this conclusion after
evaluating each of the functional areas and the evidence of record.
Tr. 23-24.
Accordingly, because the ALJ properly determined that Plaintiff’s mental
impairments were non-severe, he was not required to include them in the
hypothetical to the VE. See Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) (a
hypothetical question only need include the claimant’s functional limitations that are
supported by the record).
Accordingly, the ALJ did not err in failing to include
alleged limitations that he found were non-severe.
V.
Conclusion
Upon review of the record, the undersigned concludes that the ALJ applied the
proper legal standards, and his determination that Plaintiff is not disabled is
supported by substantial evidence.
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ACCORDINGLY, it is hereby
ORDERED:
1.
The decision of the Commissioner is AFFIRMED.
2.
The Clerk of Court is directed to enter judgment pursuant to sentence
four of 42 U.S.C. § 405(g) in favor of the Commissioner, and close the file.
2015.
DONE and ORDERED in Fort Myers, Florida on this 29th day of December,
Copies:
Counsel of record
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