Rios v. Commissioner of Social Security
Filing
26
ORDER affirming the Commissioner's decision and directing the clerk to enter judgment in favor of the Commissioner and close the file. Signed by Magistrate Judge Patricia D. Barksdale on 9/22/2017. (BGK)
United States District Court
Middle District of Florida
Tampa Division
LISA C. RIOS,
Plaintiff,
V.
NO. 8:16-CV-152-T-PDB
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Order Affirming Commissioner’s Decision
This is a case under 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a final decision
of the Acting Commissioner of Social Security denying Lisa Rios’s claim for disability
insurance benefits and supplemental security income. 1 She seeks reversal, Doc. 22;
the Commissioner, affirmance, Doc. 25.
1The
Social Security Administration uses an administrative review process a claimant
ordinarily must follow to receive benefits or judicial review of their denial. Bowen v. City of
New York, 476 U.S. 467, 471−72 (1986). A state agency acting under the Commissioner’s
authority makes an initial determination. 20 C.F.R. §§ 404.900−404.905, 416.1400–416.1405.
If the claimant is dissatisfied with the initial determination, she may ask for reconsideration.
20 C.F.R. §§ 404.907−404.918, 416.1407–416.1418. If she is dissatisfied with the
reconsideration determination, she may ask for a hearing before an Administrative Law
Judge (“ALJ”). 20 C.F.R. §§ 404.929−404.943, 416.1429–416.1443. If she is dissatisfied with
the ALJ’s decision, she may ask for review by the Appeals Council. 20 C.F.R.
§§ 404.967−404.982, 416.1467–416.1482. If the Appeals Council denies review, she may file
an action in federal district court. 20 C.F.R. §§ 404.981, 416.1481. Sections 405(g) and
1383(c)(3) provide the bases for the Court’s jurisdiction.
The Commissioner substantially revised the regulations on the consideration of
medical evidence for claims filed on or after March 27, 2017. See 82 Fed. Reg. 5844-01, 5844
(Jan. 18, 2017). Because Rios filed her claim before that date, all citations are to the
regulations in effect on the date of the ALJ’s decision unless otherwise stated.
I.
Background
Rios was born in 1964 and last worked in 2009. Tr. 57, 133, 158. She has a two-
year degree and experience as a hair stylist. Tr. 159. She alleges she became disabled
in January 2009 from a pulmonary embolus, chronic pleurisy, anxiety, chest pain,
abdominal pain, and shortness of breath. Tr. 158. She is insured through 2014. Tr.
152, 154. She proceeded through the administrative process, failing at each level. Tr.
1–6, 33–45, 75–76, 85–86, 89–97, 99–103. She appealed to this Court; the
Commissioner moved to remand; and the Court remanded for further agency
proceedings. Tr. 851–52; see Rios v. Comm’r of Soc. Sec., 8:14-cv-2259-T-AEP.
On remand from the Court, the Appeals Council remanded to the
Administrative Law Judge (“ALJ”) to reevaluate the 2012 opinion of Dr. Joyce
Thomas and, if necessary, obtain additional evidence, reconsider other opinion
evidence, reevaluate Rios’s residual functional capacity (“RFC”), and reevaluate her
subjective complaints. Tr. 861–62. The ALJ issued a decision in September 2015
again finding her not disabled. Tr. 784–95. This case followed. Doc. 1.
II.
Evidence
This order adopts the summaries of evidence in the ALJ’s decision, Tr. 789–91,
and in the parties’ briefs, Doc. 22 at 1–4; Doc. 25 at 1–3. Some evidence pertinent to
Rios’s arguments is also summarized below.
In February 2012, Dr. Thomas wrote a letter concerning Rios’s condition. Tr.
671. She explained Rios had been a patient at her clinic since 2010 and had been
diagnosed with deep-vein thrombosis and pulmonary embolus in December 2008. Tr.
671. She explained that since then, Rios has experienced chronic chest and abdominal
pain and had seen pulmonologists “with no resolution of her symptoms.” Tr. 671. She
opined the abdominal pain is “debilitating and impacts [Rios’s] activities of daily
living,” and Rios cannot sit or stand for extended time. Tr. 671. She stated Rios had
been evaluated by a cardiologist, and a cardiac catheterization was normal, though
2
her chest pain persists. Tr. 671. She explained Rios’s pain is “so severe that she is
seeing a pain management specialist to keep the pain under some control.” Tr. 671.
She opined Rios’s breathing has been “compromised,” requiring her to use inhalers,
which worsen her chest pain. Tr. 671. She opined Rios has “severe anxiety that is
very difficult to control” and prevents her from concentrating. Tr. 671. She explained
Rios takes medication for anxiety but “still has severe breakthrough symptoms.” Tr.
671. She opined Rios has depression, which “also impairs her function.” Tr. 671. She
explained Rios was diagnosed with obstructive sleep apnea in 2010 and uses a CPAP
machine to sleep. Tr. 671. She explained Rios has “dysfunctional uterine bleeding and
has episodes where the bleeding is difficult to control.” Tr. 671. She explained Rios
was recently evaluated for “hypercoaguable state,” bloodwork was “impossible due to
problems with her blood vessels,” and she was being seen by a vascular surgeon. Tr.
671.
In August 2015, Dr. Thomas completed a form providing the following opinions
on Rios’s ability to perform work-related activities. Tr. 1207–09. Rios can lift less than
10 pounds occasionally and negligible weight frequently. Tr. 1207. Those limitations
arise from Rios’s inability to bend forward, constant neck and back pain, limited
spinal range of motion, and constant abdominal pain. Tr. 1207. Rios can stand and
walk less than 2 hours in an 8-hour workday and sit less than 2 hours in an 8-hour
workday with normal breaks. Tr. 1207. Those limitations arise from Rios’s constant
neck, back, and abdominal pain and shortness of breath. Tr. 1207. Rios can sit for 30
minutes and stand for 15 minutes before changing position, needs to walk around
every hour for about 15 minutes, and requires the ability to shift at will from sitting
to standing or walking. Tr. 1207–08. Those limitations arise from Rios’s neck, back,
and abdominal pain, and long periods of sitting or standing worsen the pain. Tr.
1207–08. Rios must lie down about 3 times an hour at unpredictable intervals. Tr.
1208. That limitation arises from chronic abdominal pain. Tr. 1208. Rios’s
impairments—including chronic and constant pain, shortness of breath, and
anxiety—would cause her to be absent from work more than three times a month. Tr.
3
1208. Rios can occasionally balance but never climb, stoop, crouch, kneel, or crawl
because of neck, back, and abdominal pain. Tr. 1208. Rios’s abilities to reach, push,
and pull are “significantly” limited because of pain and shortness of breath. Tr. 1208.
Rios’s impairments cause several environmental restrictions that render her unable
to function: heights, moving machinery, temperature extremes, chemicals, dust,
noises, fumes, humidity, and vibrations. Tr. 1208–09. Rios’s shortness of breath
worsens when exposed to those conditions. Tr. 1209. Rios has depression and anxiety
that impair her concentration and headaches that cause dizziness. Tr. 1209. Some of
Rios’s medications “cause drowsiness, sedation, [and] impaired concentration.” Tr.
1209. Her opinions are consistent with records showing Rios “has had pain in the
spine due to degenerative disc disease,” “has chronic abdominal pain after a
procedure on her lungs,” and “remains depressed and anxious.” Tr. 1209.
At a 2012 hearing, Rios testified as follows.
She can read and write English and Spanish and do simple math. Tr. 57. She
last worked in November 2008, when she opened a salon. Tr. 58. She experienced
heavy bleeding in mid-November, and it worsened in mid- to late December to the
point that she sought emergency care. Tr. 58. She developed deep-vein thrombosis in
her left arm at that time and “was never the same after that.” Tr. 58. She could no
longer do hair, use her arm, or lift five pounds, and her arm was in a sling for months.
Tr. 58. After a month-long hospital stay that included two weeks in the intensive-care
unit, she returned to her salon but could not stand, sit, use her arms, or run the
business. Tr. 58. The veins in her left arm remain damaged, and she also developed
clots in veins in her right arm such that she cannot have blood drawn or receive IVs
in either arm. Tr. 58.
She has pain in her upper abdomen resulting from separation of tissue around
her lung, inflammation of the chest wall, and problems with her liver, gallbladder,
and pancreas. Tr. 59–60. The pain is constant, and she “feels like there’s an arrow
stuck in [her] body.” Tr. 60. She also experiences shoulder pain and has received
4
“shots” for it. Tr. 60–61. She has headaches every morning when she wakes up and
“always ha[s] a slight headache and … underlying nausea.” Tr. 61. She experiences
shortness of breath all day. Tr. 65. Being around cleaning products exacerbates
breathing problems. Tr. 65–66. Her legs ache due to venous insufficiency, so she has
to elevate them. Tr. 66. She also has foot pain from bone spurs. Tr. 67. Uterine fibroids
and bleeding have been “ongoing problem[s]” requiring several hospital visits. Tr. 67–
68.
She receives pain medication, anti-inflammatory medication, antidepressants,
and anti-anxiety medication and uses inhalers and a CPAP machine. Tr. 59. She
sometimes feels claustrophobic wearing the mask and has panic attacks. Tr. 59.
Other times she wakes up from pain. Tr. 59. She cannot wear the mask when she is
awake. Tr. 59. She does not see a psychiatrist or psychologist for anxiety. Tr. 61.
Her arms tingle, and she cannot lift much weight but can hold a glass or cup.
Tr. 58–59. She can fasten buttons and use her hands as long as she does not overexert
herself. Tr. 59. She can carry a small laundry basket, though she does “very little”
housework. Tr. 59. She believes she can stand or walk for 10 or 15 minutes before
needing to stop and sit down. Tr. 62. She can sit for 10 to 20 minutes before needing
to change positions. Tr. 62. She does not believe she can lift any amount of weight
frequently or occasionally. Tr. 62–63.
She spends most of her days “lay[ing] around and think[ing] and worry[ing]
and wonder[ing] why this has happened” to her. Tr. 63. She takes care of house
plants, and her dog and children keep her company. Tr. 63. She does not attend
church. Tr. 63. Using a computer gives her a headache, though she occasionally looks
at emails and uses Facebook. Tr. 63. She used to exercise but no longer does. Tr. 63–
64. She can drive but “hardly” leaves the house. Tr. 64. She drives one to three times
a month to attend doctor’s appointments and go grocery shopping. Tr. 64. She shops
for groceries about once a month and needs to “psych [her]self up” to go. Tr. 64.
Pushing the cart and walking are difficult. Tr. 65. She can dress and shower
5
independently. Tr. 64. She does not cook often because it is difficult to lift and empty
pots and clean the dishes. Tr. 64. She can make a sandwich or microwave food when
she is hungry, though she does not “have much of an appetite.” Tr. 64. She does “[v]ery
light” household chores but cannot sweep or mop. Tr. 65. She does not shower daily
because she sometimes does not want to. Tr. 66. She sometimes does crossword
puzzles, but they give her headaches. Tr. 66. She enjoys reading but “get[s] sleepy
right away” due to her medication. Tr. 66–67.
At a 2015 hearing, Rios testified as follows.
Her salon closed a year after her hospitalization in December 2008 for deepvein thrombosis and a pulmonary embolism because she was unable to return to
work. Tr. 809. Dr. Thomas treats her for chronic abdominal pain, anxiety, and
depression. Tr. 809, 811. The pain might result from an enlarged spleen or blood clots
having spread to an organ. Tr. 809. Pain medication helps “somewhat.” Tr. 810. She
uses inhalers. Tr. 810. The CPAP machine helps with sleep apnea, but she still does
not get good sleep because she wakes up from pain. Tr. 810. She cannot use her arm
fully due to a permanent rotator-cuff injury. Tr. 811. She has gone to physical therapy
a couple of times and does exercises at home. Tr. 811. She takes medication for
anxiety and depression, which helps. Tr. 811. She experiences shortness of breath
when she walks too much or overexerts herself. Tr. 811–12. She can walk for about
10 minutes and has to reposition herself about every 15 to 30 minutes. Tr. 812. She
can comfortably lift less than 5 pounds for 5 or 6 hours in an 8-hour day. Tr. 812.
She can shower, “do some dishes,” do laundry, and start to prepare some meals,
though she does not “do much housework at all” and receives a lot of help from her
husband and daughter. Tr. 813. She can do housework in 15- to 30-minute increments
before needing to lie down on her side and apply pressure to the area that hurts. Tr.
813. She has to lie down for at least 30 minutes at a time but sometimes lies down for
2 hours. Tr. 814. Medication makes her “drowsy, sleepy, [and] fatigued.” Tr. 814. She
gained about 65 pounds over the last 12 to 18 months. Tr. 817. The weight gain makes
6
it harder to move around and be active and increases her shortness of breath. Tr. 817.
She sometimes has trouble focusing because of medication and pain. Tr. 818. She can
stay focused for about 15 minutes and cannot return to a task for 30 minutes to an
hour. Tr. 818. She became depressed as a result of her health problems. Tr. 818. She
had to go through bankruptcy proceedings due to medical bills and the loss of her
business. Tr. 818–19.
The ALJ asked a vocational expert (“VE”) to consider a hypothetical person of
Rios’s age with her education and work experience who could lift up to 20 pounds
occasionally and up to 10 pounds frequently; stand or walk for about 6 hours and sit
for about 6 hours in an 8-hour day with normal breaks; occasionally perform all
postural activities, including climbing ladders, ropes, and scaffolds, balancing,
stooping, kneeling, crouching, and crawling; occasionally reach overhead with her left
arm; would need to avoid concentrated exposure to irritants and hazards; could
perform work with a specific vocational preparation of 1 or 2; and could perform only
simple, routine, or repetitive tasks. Tr. 821. He asked whether that person could
perform Rios’s past work. Tr. 821–22. The VE responded no. Tr. 822. He asked
whether that person could perform any other job. Tr. 822. The VE responded yes and
identified marker, bagger, and final inspector. Tr. 822.
The ALJ asked whether a person with those limitations who would also have
two unexcused absences a month could perform any available job. Tr. 822. The VE
responded no. Tr. 822.
Rios’s counsel asked whether a person from the first hypothetical who would
also have to alternate between sitting and standing every 15 to 30 minutes could
perform any of the identified jobs. Tr. 822. The VE responded the person would be
unable to perform the marker job but could perform about 50 percent of the bagger
jobs and about 85 percent of the inspector jobs. Tr. 823. He asked whether a person
from the first hypothetical who had to alternate between sitting, standing, and lying
down about every 15 to 30 minutes could perform any job. Tr. 823. The VE responded
7
no. Tr. 823. He asked whether a person from the first hypothetical who could never
climb, stoop, crouch, kneel, or crawl would be able to perform the identified jobs. Tr.
823–24. The VE responded those limitations might affect some marker jobs but would
not affect the ability to perform the inspector or bagger jobs. Tr. 824. He asked
whether a person from the first hypothetical who would be off-task at least 25 percent
of the time could perform any job. Tr. 824. The VE responded no and elaborated that
being off-task about 25 percent of the time might be “the difference between sheltered
or supported and no employment.” Tr. 825.
III.
ALJ’s Decision
At step one, 2 the ALJ found Rios has not engaged in substantial gainful activity
since January 1, 2009. Tr. 786.
At step two, the ALJ found Rios suffers from severe impairments of left-arm
deep-vein thrombosis, pulmonary embolus with associated abdominal and chest pain,
left rotator-cuff tear, obesity, and adjustment disorder with anxiety. Tr. 786. He found
her obstructive sleep apnea and headaches are nonsevere. Tr. 786. He observed that
though examiners had diagnosed her with obstructive sleep apnea, he could “find no
sleep studies of record,” and the record contained conflicting pulmonary-functioning
tests. Tr. 786. He observed her complaints of headaches are unsupported by objective
medical findings such as “abnormal brain scans.” Tr. 786–87.
At step three, the ALJ found Rios has no impairment or combination of
impairments that meets or medically equals the severity of any listed impairment in
20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 787–88. He particularly considered
2The
Social Security Administration uses a five-step sequential process to decide if a
person is disabled, asking whether (1) she is engaged in substantial gainful activity, (2) she
has a severe impairment or combination of impairments, (3) the impairment meets or equals
the severity of anything in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, App’x
1, (4) she can perform any of her past relevant work given her RFC, and (5) there are a
significant number of jobs in the national economy she can perform given her RFC, age,
education, and work experience. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
8
listings 1.00ff (musculoskeletal system), 3.00ff (respiratory system), 4.00ff
(cardiovascular system), 5.00ff (digestive system), 12.04 (affective disorders), and
12.06 (anxiety-related disorders). Tr. 787.
The ALJ considered the “paragraph B” 3 criteria to determine if Rios’s mental
impairments meet or equal the criteria of a listing. Tr. 787–88. He found she has a
mild restriction in activities of daily living; mild difficulties in social functioning; and
moderate difficulties maintaining concentration, persistence, and pace; and she has
had no episode of decompensation of extended duration. Tr. 787–88. He also
considered the “paragraph C” 4 criteria and found she does not meet them. Tr. 788.
After stating he had considered the entire record, the ALJ found Rios has the
RFC to perform light work 5 as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
with additional limitations:
The claimant can lift up to twenty pounds occasionally and lift and carry
up to ten pounds frequently. The claimant can stand and walk for six
hours out of an eight-hour workday and sit for six hours out of an eighthour workday with normal breaks. The claimant can occasionally climb
ramps, stairs, ropes, scaffolds, and ladders; balance; stoop; crouch; crawl;
and kneel. The claimant can occasionally lift overhead with the left arm.
3The
criteria in paragraph B are used to assess functional limitations imposed by
medically determinable mental impairments. 20 C.F.R. Part 404, Subpart P, App’x 1
§ 12.00(C) (eff. Aug. 12, 2015). Paragraph B requires a disorder of medically documented
persistence resulting in at least two of the following: (1) marked restriction of activities of
daily living; (2) marked difficulty maintaining social functioning; (3) marked difficulty
maintaining concentration, persistence, or pace; and (4) repeated episodes of
decompensation, each of extended duration. 20 C.F.R. Part 404, Subpart P, App’x 1 §§ 12.04B,
12.06B (eff. Aug. 12, 2015).
4Paragraph
C lists additional functional criteria for some listings. 20 C.F.R. Part 404,
Subpart P, App’x 1 § 12.00(A) (eff. Aug. 12, 2015).
5“Light
work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg controls. ” 20
C.F.R. §§ 404.1567(b), 416.967(b).
9
The claimant must avoid concentrated exposure to pulmonary irritants,
such as fumes, dust, gases, and hazards. The claimant is limited to
unskilled work, defined as having an SVP 1 or 2, simple, routine,
repetitive tasks.
Tr. 788.
In assessing the RFC, the ALJ considered Rios’s testimony and found that
although her medically determinable impairments could have caused the alleged
symptoms, her statements concerning the intensity, persistence, and limiting effects
of those symptoms were not entirely credible. Tr. 789–91. He observed that, after her
deep-vein thrombosis and related pulmonary embolism, “most of [her] symptoms are
of an unknown etiology,” citing tests from 2009 to 2011 with normal results or results
that do not support the alleged severity of her symptoms. Tr. 789. On her shortness
of breath, he observed she had undergone a pulmonary function test in April 2010
showing “moderately severe restricted airflow,” a spirometric test in November 2012
showing normal functioning, and chest x-rays in May 2012 showing no infiltrates,
and she often had reported no shortness of breath. Tr. 790. He observed the evidence
supported some limitation in using her left arm. Tr. 790. He observed Dr. Rand
Altemose opined that her symptoms “were not venous in etiology” and noted that, as
of February 2012, she had not experienced any reoccurrence since the original
thrombotic or embolic episode. Tr. 790.
The ALJ observed Rios’s treatment “decreased significantly” during 2013,
2014, and 2015. Tr. 790. He observed she had sought treatment for abdominal and
back pain, sleep disturbances, and occasional shortness of breath but had several
examinations during that time that resulted in normal findings aside from her
reports of abdominal tenderness. Tr. 790. He observed her consultative examinations
had “revealed few abnormalities.” Tr. 790–91. On her mental symptoms, he observed
she had regularly complained of depression, anxiety, and sleep disturbance but had
not sought specialized care and “conceded her medications improve[] her symptoms.”
Tr. 790.
10
The ALJ found Rios’s activities of daily living, “[a]lthough not entirely
dispositive of the issue,” were consistent with the assessed RFC. Tr. 791. He pointed
to her reports in 2009 that she was still working as a hairdresser; her report in 2014
that she took care of her infant grandson; her report to consultative examining
physician Dr. Jeremy Zehr that she watched television, read self-help books, and did
light cooking and cleaning (and Dr. Zehr’s opinion that she had an “active social life”
and her daily activities were “appropriate”); and her statement in her function report
that she could drive, manage her finances, use a computer, and socialize. Tr. 791.
The ALJ found Rios’s reports of symptoms had not been consistent, and she
had not fully complied with treatment plans. Tr. 791. He pointed to her inconsistent
allegations of shortness of breath and many examinations showing normal
pulmonary findings, the inconsistency between her allegations of high levels of pain
and the frequent notation in treatment records that she was in no apparent distress,
her failure to comply with her Plavix and baby aspirin prescriptions in February
2012, her decision to decline depression medication in February 2011, and her weight
gain despite instructions from her physicians to lose weight. Tr. 791. He also found
her “course of treatment d[id] not support the severity of” her symptoms, pointing to
her failure to seek specialized mental-health treatment and the “dramatic[]” decrease
in treatment beginning in 2013. Tr. 791.
The ALJ emphasized the repeated statements of Rios’s physicians that they
could not find the etiology of her symptoms. Tr. 791. He noted that Dr. Ovidiu
Grigoras had described her as “exhibiting hypochondriac behavior,” that she had
persistently raised the possibility that she had cancer despite her doctors telling her
she does not, and that she had reported experiencing a mild heart attack despite no
supporting evidence. Tr. 791–92. He found the evidence “suggests that [her] reports
of her symptoms may not be … entirely accurate.” Tr. 792.
The ALJ gave little weight to Dr. Thomas’s 2012 and 2015 opinions. Tr. 792–
93. He observed Dr. Thomas opined Rios “‘is not able to function,’” but “the claimant
11
has reported decent activities of daily living on a number of occasions.” Tr. 792. He
observed Rios had not “sought consistent treatment” with Dr. Thomas, pointing to a
treatment note indicating she had not seen Dr. Thomas from June 2013 to October
2014 and the absence of treatment notes from Dr. Thomas in 2014 and 2015. Tr. 792.
He found the lack of frequent contact suggested Dr. Thomas did not base her opinions
“entirely on her own records.” Tr. 792. He found that finding particularly significant
given Rios’s decrease in treatment overall beginning in 2013, which he stated Dr.
Thomas had not explained. Tr. 792. He found Dr. Thomas’s opinions inconsistent with
other physicians’ findings. Tr. 792. He pointed to the inconsistency between her
opinion that Rios has “constant” abdominal pain and Rios’s failure to report
abdominal pain on several occasions and notes indicating she was not in acute
distress. Tr. 792–93. He also pointed to the inconsistency between her statement Rios
has shortness of breath and records showing no breathing problems. Tr. 793. He
observed Dr. Thomas made no mention of Rios’s left-shoulder impairment, “bring[ing]
into question the degree of care [she] took” in providing her opinions. Tr. 793. He
rejected her opinions on Rios’s mental impairments because she is not a mentalhealth specialist, and her opinions contradicted Dr. Zehr’s detailed findings. Tr. 793.
At steps four and five, the ALJ found Rios cannot perform her past relevant
work 6 as a hair stylist but can perform jobs the VE had identified (marker; bagger,
light; and production inspector) and those jobs exist in significant numbers in the
national economy. Tr. 794–95. He therefore found no disability. Tr. 795.
IV.
Standard of Review
A court’s review of an ALJ’s decision is limited to determining whether the ALJ
applied the correct legal standards and whether substantial evidence supports his
6“Past
relevant work is work [a claimant has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough … to learn to do it.” 20 C.F.R.
§§ 404.1560, 416.960.
12
findings. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial
evidence is “less than a preponderance”; it is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Id. A court may not decide
facts anew, reweigh evidence, make credibility determinations, or substitute its
judgment for the Commissioner’s judgment. Id. A court must affirm the ALJ’s
decision if substantial evidence supports it, even if the evidence preponderates
against the factual findings. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
V.
Analysis
A.
Credibility
Rios argues the ALJ erred in evaluating her credibility by (1) failing to properly
consider the effect of her alleged sleep disturbance on her RFC; (2) failing to account
for her work history; (3) failing to consider her medication regimen and other
treatment efforts; and (4) finding her not credible because she failed to lose weight.
Doc. 22 at 4–7.
The Commissioner responds: (1) though the ALJ erroneously stated the record
did not contain evidence of a sleep study, the error was harmless because the ALJ
applied the proper legal standard and found Rios’s sleep apnea was not a severe
impairment; (2) the ALJ’s questioning of Rios during the hearing demonstrates he
considered her work history, and nothing required him to discuss work history in
evaluating her credibility; (3) the ALJ adequately considered her treatment and
found its conservative nature undermined her allegations; and (4) even assuming he
should not have considered her failure to lose weight, he relied on several other
reasons in finding her not entirely credible. Doc. 25 at 8–10.
“Disability” is the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which … can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
13
§ 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A). A claimant must prove she is
disabled. 20 C.F.R. §§ 404.1512, 416.912.
At step two, an impairment is not severe if it does not significantly limit a
claimant’s physical or mental ability to do basic work activities. 20 C.F.R.
§§ 404.1521(a), 416.921(a). Severity “must be measured in terms of its effect upon
ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.
1986).
Step two “acts as a filter; if no severe impairment is shown the claim is denied,
but the finding of any severe impairment … is enough to satisfy the requirement.”
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). Failure to find an impairment
severe at step two is harmless if the ALJ moves on to step three and considers the
claimant’s conditions in combination in the rest of the decision. Medina v. Soc. Sec.
Admin., 636 F. App’x 490, 492–93 (11th Cir. 2016). “[T]he burden of showing that an
error is harmful normally falls upon the party attacking the agency’s determination.”
Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
A claimant’s RFC is the most she can still do despite her limitations. 20 C.F.R.
§ 416.945(a)(1). The Social Security Administration uses the RFC at step four to
decide if she can perform any past relevant work and, if not, at step five with other
factors to decide if there are other jobs in significant numbers in the national economy
she can perform. 20 C.F.R. §§ 404.1545(a)(5), 416.945(a)(5). To determine the RFC,
an ALJ considers all relevant evidence, including medical evidence and the claimant’s
description of pain or limitations. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). But
“there is no rigid requirement that the ALJ specifically refer to every piece of evidence
in his decision, so long as the ALJ’s decision … is not a broad rejection which is not
enough to enable [the Court] to conclude that [the ALJ] considered [the claimant’s]
medical condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)
(internal quotation marks omitted). The “mere existence” of an impairment does not
14
reveal its effect on a claimant’s ability to work or undermine RFC findings. Moore,
405 F.3d at 1213 n.6.
In evaluating a claimant’s subjective complaints of pain or other symptoms, an
ALJ must determine whether there is an underlying medical condition and either
(1) objective medical evidence confirming the severity of the alleged symptom arising
from that condition or (2) evidence the condition is so severe that it can be reasonably
expected to cause the alleged symptom. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th
Cir. 1991).
If the objective medical evidence does not confirm the alleged severity of a
claimant’s symptom, but an impairment can be reasonably expected to cause that
alleged severity, an ALJ must evaluate the intensity and persistence of her alleged
symptoms
and
their
effect
on
her
ability
to
work.
20
C.F.R.
§§ 404.1529(c)(1), 416.929(c)(1). In doing so, an ALJ must consider all available
evidence, including objective medical evidence, statements from the claimant and
others, “information about [a claimant’s] prior work record,” and “[t]he type, dosage,
effectiveness, and side effects of any medication” and treatment other than
medication a claimant receives. 20 C.F.R. §§ 404.1529(c)(2)–(3), 416.929(c)(2)–(3). An
ALJ also must consider “whether there are any inconsistencies in the evidence and
the extent to which there are any conflicts between [the claimant’s] statements and
the rest of the evidence.” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4).
If an ALJ discredits a claimant’s testimony about the intensity, persistence,
and limiting effects of a symptom, such as pain, he must provide “explicit and
adequate reasons for doing so.” Holt, 921 F.2d at 1223. An ALJ’s credibility
determination need not “cite particular phrases or formulations” but “cannot merely
be a broad rejection which is not enough to enable [a court] to conclude that the ALJ
considered [the claimant’s] medical condition as a whole.” Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005) (internal quotation marks omitted). “A clearly articulated
credibility finding with substantial supporting evidence in the record will not be
15
disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).
A reviewing court should ask not whether the ALJ could have reasonably credited a
claimant’s testimony, but whether the ALJ had been clearly wrong in discrediting it.
Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011).
An ALJ may find a claimant not disabled if she fails to follow prescribed
treatment “without a good reason.” 20 C.F.R. §§ 404.1530(b), 416.930(b). In McCall
v. Bowen, the claimant alleged she was disabled due to arthritis and back and heart
problems. 846 F.2d 1317, 1318 (11th Cir. 1988). In finding her not disabled, the ALJ
referenced the claimant’s obesity. Id. at 1319. The Eleventh Circuit observed “the
finding of no disability was colored by the implication that [the claimant’s] obesity
was remediable,” and “[t]he district court explicitly relied on this presumption.” Id.
The court recognized the rule permitting a finding of no disability based on a
claimant’s unjustified failure to follow a prescribed course of treatment “that could
restore her ability to work.” Id. But it determined that standard had not been met,
observing “[a] physician’s recommendation to lose weight does not necessarily
constitute a prescribed course of treatment, nor does a claimant’s failure to
accomplish the recommended change constitute a refusal to undertake such
treatment.” Id. The court held the claimant’s obesity on its own did not justify
concluding she had refused treatment and remanded for further findings and
conclusions. Id.
1.
Sleep-Disturbance Symptoms
Observing the ALJ said he could “find no sleep studies of record,” Tr. 786, but
there in fact is one in the record, Rios contends the ALJ erroneously failed to consider
evidence of sleep disturbances “when determining her credibility regarding her
symptoms and determining the [RFC].” Doc. 22 at 5. Rios appears to argue
substantial evidence does not support the ALJ’s finding that her obstructive sleep
apnea is not severe and the error is not harmless because it affected the ALJ’s later
credibility analysis.
16
Even if substantial evidence does not support the ALJ’s step-two finding that
Rios’s obstructive sleep apnea is not a severe impairment because it was based in
significant part on the failure to find the sleep study, Rios has not satisfied her burden
of showing the error is harmful. The ALJ moved to step three and, evident from the
decision, considered all of her impairments—including obstructive sleep apnea—in
combination in the rest of the decision. See Medina, 636 F. App’x at 492–93. The ALJ
observed she had sought treatment for disturbed sleep and regularly complained
about disturbed sleep. Tr. 790−91. He did not reject any testimony concerning waking
up frequently from sleep apnea or pain or experiencing fatigue, 7 did not reference any
lack of sleep study when discussing her credibility, and found she has moderate
difficulty maintaining concentration, persistence, and pace and accordingly limited
her to unskilled work with only simple, routine, repetitive tasks. See Tr. 787–88. No
evidence suggests obstructive sleep apnea caused work-related limitations beyond
those.
2.
Work History
Rios contends the ALJ committed reversible error by “failing to take into
account [her] work history and [her] loss of investment in her business.” Doc. 22 at
5–6.
The ALJ’s decision demonstrates he was aware of and considered Rios’s strong
work history, see Tr. 794 (citing record containing VE’s statement of Rios’s 29-year
work history as hair stylist, see Tr. 923), but found her statements about the severity
of her symptoms not entirely credible for other reasons. He was not required to do
more. See Spencer v. Colvin, No. 4:14-cv-01121-JHE, 2015 WL 5579794, at *4 (N.D.
Ala. Sept. 22, 2015) (unpublished) (rejecting claimant’s argument that ALJ erred in
failing to mention his strong work history; explaining he cited “no authority evidence
7Some
records reflect complaints of fatigue but no accompanying complaints of sleep
disturbance. See, e.g., Tr. 511–12, 690, 1117, 1152, 1157, 1165, 1170. Whether Rios’s fatigue
results from interrupted sleep or something else, she has pointed to no evidence of its severity
or limiting effects.
17
… of a strong work history must be specifically mentioned and rejected for an ALJ to
state a proper credibility analysis”); Coleman v. Astrue, No. 8:11-cv-1783-T-TGW,
2012 WL 3231074, at *5 (M.D. Fla. Aug. 6, 2012) (unpublished) (“While the [ALJ] did
not discuss the plaintiff’s work history specifically in the context of her credibility
finding, she obviously considered the plaintiff’s work history in making her
decision.”); cf. Dyer, 395 F.3d at 1211 (ALJ’s credibility determination need not “cite
particular phrases or formulations”). Though Rios’s work history could have
supported a finding her statements about her symptoms credible, the Court’s role is
to determine whether the ALJ was clearly wrong in discrediting her testimony, not
whether he could have credited it. See Werner, 421 F. App’x at 939.
Some courts have held an ALJ commits reversible error by failing to consider
a claimant’s strong work history. See, e.g., Lafond v. Comm’r of Soc. Sec., No. 6:14-cv1001-Orl-DAB, 2015 WL 4076943, at *9 (M.D. Fla. July 2, 2015) (unpublished) (citing
cases). Whether because the cases are factually distinguishable (in that they involve
circumstances where the ALJ apparently failed to even consider work history) or
inconsistent with binding precedent requiring deference to a “clearly articulated
credibility finding with substantial supporting evidence,” see Foote, 67 F.3d at 1562
(quoted), the Court finds those cases unpersuasive.
3.
Medication and Treatment
Rios contends the ALJ failed to take into account the quantity of medication
she takes or her doctors’ consistent efforts in referring her to specialists to determine
the source of her pain. Doc. 22 at 6–7.
As with her argument concerning her work history, by highlighting her
medication regimen and frequent referrals for testing, Rios points to evidence that
could have bolstered her credibility rather than challenging the ALJ’s reasons for
discrediting it. The ALJ discussed in detail her treatment records, and it is
unreasonable to assume he was unaware of her prescriptions. That she had been
prescribed several medications for various problems says nothing about the degree of
18
limitation she experiences from her impairments. That fact supports that her
impairments exist, but the “mere existence” of an impairment does not reveal its
effect on a claimant’s ability to work or undermine RFC findings. Moore, 405 F.3d at
1213 n.6.
Rios appears to rely on an inference that her treating physicians prescribed
medication and referred her for testing because they “believe[d] in her.” See Doc. 22
at 7. That her doctors credited her reports of symptoms does not mean the ALJ was
required to entirely credit in full everything she said. Instead, he was required to,
and did, independently evaluate her subjective complaints and provide reasons
supported by substantial evidence for not fully crediting them. 8
4.
Failure to Lose Weight
Rios contends the ALJ erred in discounting her subjective complaints based on
her weight gain despite instructions from her physicians to lose weight. Doc. 22 at 8.
Though the ALJ described Rios’s weight gain despite being told to lose weight
in his credibility analysis, he did not rely on that failure alone to find her not disabled.
Instead, he considered her failure to lose weight in combination with other evidence
she had not fully complied with her treatment plan as one of several reasons for
finding her subjective complaints not entirely credible. Even accepting that the ALJ
8Rios
cites Somogy v. Commissioner of Social Security, 366 F. App’x 56 (11th Cir.
2010), without a pinpoint citation and without explaining its relevance. See Doc. 22 at 7.
Somogy involved a claimant with fibromyalgia. In rejecting the ALJ’s reasoning that a
treating physician’s opinion was entitled to less weight because it was based on the claimant’s
subjective complaints, the court explained, “We, along with several other circuits, have
recognized that fibromyalgia often lacks medical or laboratory signs[] and is generally
diagnosed mostly on an individual’s described symptoms, and that the hallmark of
fibromyalgia is therefore a lack of objective evidence. The lack of clinical findings is, at least
in the case of fibromyalgia, therefore insufficient alone to support an ALJ’s rejection of a
treating physician’s opinions.” Id. at 63–64 (internal quotation marks and citations omitted).
To the extent Rios attempts to analogize the facts in Somogy to her case, it is unpersuasive
because she points to no evidence supporting that she has fibromyalgia.
19
should not have relied on that consideration, substantial evidence supports his
finding that Rios at times was “not entirely compliant with her treatment plan”: she
declined medication for depression in February 2011, and she did not comply with
her Plavix or baby-aspirin prescriptions in February 2012. See Tr. 610, 750, 791.
B.
Medical-Opinion Evidence
Rios argues the ALJ erred in evaluating opinions of Drs. Thomas and Leal.
Doc. 22 at 7–14. As to Dr. Thomas, she argues: (1) the ALJ failed to identify evidence
of daily activities he found inconsistent with the opinions; (2) her statements in
medical records that she continued to work in 2009 are not inconsistent with her
testimony or Dr. Thomas’s opinions; (3) the ALJ erroneously stated Rios had not seen
Dr. Thomas between June 2013 and October 2014; and (4) the ALJ erroneously stated
Dr. Thomas offered no explanation for Rios’s decreased treatment. Doc. 22 at 8–13.
As to Dr. Leal, she argues the ALJ failed to address his opinions that she cannot
perform heavy housework, walk for long periods of time, or lift more than 5 pounds.
Doc. 22 at 14. The Commissioner responds: (1) the ALJ properly considered Rios’s
activities; (2) he adequately explained his determination that Dr. Thomas’s opinions
were inconsistent with her treatment of Rios; (3) he properly considered the
inconsistency between her opinions and other medical evidence; and (4) the
statements Rios cites are not Dr. Leal’s opinions. Doc. 25 at 11–13.
Regardless of its source, the Social Security Administration “will evaluate
every medical opinion” it receives. 20 C.F.R. §§ 404.1527(c), 416.927(c). “Medical
opinions are statements from acceptable medical sources that reflect judgments about
the nature and severity of … impairment(s), including … symptoms, diagnosis and
prognosis, what [one] can still do despite impairment(s), and … physical or mental
restrictions.” 20 C.F.R. § 404.1527(a), 416.927(a). Opinions on issues that are
dispositive of a case, such as whether a claimant is disabled or able to work, are not
medical opinions because they are opinions on issues reserved to the Commissioner.
20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).
20
An ALJ “must state with particularity the weight given to different medical
opinions and the reasons therefor.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1179 (11th Cir. 2011). “In the absence of such a statement, it is impossible for a
reviewing court to determine whether the ultimate decision on the merits of a claim
is rational and supported by substantial evidence.” Id. “Unless [an ALJ] has analyzed
all evidence and has sufficiently explained the weight he has given to obviously
probative exhibits, to say that his decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the record as a whole to
determine whether the conclusions reached are rational.” Cowart v. Schweiker, 662
F.2d 731, 735 (11th Cir. 1981) (internal quotation marks omitted). If an ALJ does not
“state with at least some measure of clarity the grounds for his decision,” a court will
not affirm simply because some rationale might have supported it. Winschel, 631 F.3d
at 1179.
The Social Security Administration generally will give more weight to the
medical opinions of treating sources 9 because they “are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [a claimant’s]
medical impairment and may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of
individual examinations.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ does not
need to give more weight to a treating source’s opinion if there is good cause to do
otherwise and substantial evidence supports the good cause. Phillips v. Barnhart, 357
F.3d 1232, 1240 (11th Cir. 2004). Good cause exists if the evidence does not bolster
9A
treating source is a physician, psychologist, or other acceptable medical source who
provides medical treatment or evaluation to the claimant and who has, or has had, an ongoing
treatment relationship with the claimant, as established by medical evidence showing that
the claimant sees or has seen the physician with a frequency consistent with accepted medical
practice for the treatment or evaluation required for the medical condition. 20 C.F.R.
§§ 404.1502, 416.902. An ALJ “may consider an acceptable medical source who has treated
or evaluated [a claimant] only a few times” a treating source “if the nature and frequency of
the treatment or evaluation is typical for [the claimant’s] condition(s).” 20 C.F.R. §§ 404.1502,
416.902.
21
the opinion, the evidence supports a contrary finding, or the opinion is conclusory or
inconsistent with the treating source’s own medical records. Id. at 1240−41.
Unless the Social Security Administration gives a treating source’s opinion
controlling weight, it will consider several factors to decide the weight to give a
medical opinion: examining relationship, treatment relationship, supportability,
consistency, specialization, and any other relevant factor. 20 C.F.R. §§ 404.1527(c),
416.927(c). An ALJ need not explicitly address each factor. Lawton v. Comm’r of Soc.
Sec., 431 F. App’x 830, 833 (11th Cir. 2011).
1.
Dr. Thomas
Rios contends the ALJ erred in finding her daily activities inconsistent with
Dr. Thomas’s opinions. Doc. 22 at 8–11. She observes many of her treatment records
mention no activities; several identify very limited activities; and her activities, taken
together, “most likely account for less than an hour a day.” Doc. 22 at 8–11.
Contrary to Rios’s assertions, the ALJ identified the activities he found
inconsistent with Dr. Thomas’s opinions. He observed she reported “driving on
multiple occasions”; she reported performing some work as a hairdresser in February
and December 2009; consultative examining psychologist Dr. Jeremy Zehr noted in
October 2010 her activities of daily living were “appropriate”; and she reported taking
care of her infant grandson in March 2013. Tr. 792. Substantial evidence supports
those findings. See Tr. 187, 318, 322, 476–77, 1151.
Rios appears to misunderstand the ALJ’s finding on this point. The ALJ did
not find Rios’s activities of daily living by themselves supported her ability to perform
light work, including standing and walking up to 6 hours in an 8-hour period. Instead,
he found Rios’s daily activities were inconsistent with Dr. Thomas’s opinions of
virtually incapacitating limitations. He observed Dr. Thomas opined Rios “is
incapable of performing virtually any work activity”; “would need to lie down three
times every hour”; and “is not able to function.” Tr. 792. He found Rios’ reported
22
activities (described above) “suggest[] that [she] does not need to lie down three times
every hour, and thus, could perform work in excess of what Dr. Thomas
suggests.” Tr. 792 (emphasis added).
Rios takes issue with the ALJ’s finding she had reported working in 2009. Doc.
22 at 11–12. Substantial evidence supports that finding; medical records from
February and August 2009 show she reported working in some capacity. See Tr. 318,
322. That she also reported being unable to work in December 2009, see Tr. 399, is
not inconsistent with her report of limited work; the ALJ relied on the reports of work
not to find she could work full time but to discredit Dr. Thomas’s opinion of
incapacitating limitations. The ALJ was entitled to rely on contemporaneous reports
of work activity.
Rios argues the ALJ erroneously found that as of October 2014 she had not
seen Dr. Thomas since June 2013 and that Dr. Thomas failed to explain the
significant decrease in treatment. Doc. 22 at 13. She points to records showing Dr.
Thomas had seen her in June 2014 and had noted that Rios no longer had insurance.
Doc. 22 at 13.
The ALJ erred in stating Dr. Thomas had not seen Rios since June 2013
(although the ALJ was repeating that statement from a medical record, see Tr. 1107).
The record contains two treatment notes from Dr. Thomas after June 2013: one in
November 2013 and one in June 2014. Tr. 1117, 1135. That error does not warrant
reversal. The ALJ’s broader point remains true—Rios’s treatment, both with Dr.
Thomas and in general, decreased significantly beginning in 2013. She saw or spoke
to Dr. Thomas at least 11 times from 2011 to 2012 only 4 times from 2013 to 2014.
See Tr. 601, 629, 641, 674, 682, 689, 698, 708, 718, 1117, 1135, 1144, 1151, 1156, 1161.
The record appears to contain no treatment notes from Dr. Thomas from 2015 and
just one from 2014. See Tr. 1117. Moreover, of the nearly 800 pages of medical records,
fewer than 100 are from 2013 or later. See Tr. 932–35, 940, 1031–40, 1072–94, 1106–
23
54, 1207–09. Substantial evidence supports the ALJ’s finding of decreased treatment
notwithstanding the factual error.
Rios takes issue with the ALJ’s finding Dr. Thomas failed to explain the
decrease in treatment, pointing to a notation in an October 2014 treatment note that
she had lost insurance. Doc. 22 at 13. The record states she “[u]sed to see pain
[management] (Dr. Leal), but when she lost her insurance she was unable to go
anywhere.” Tr. 1107. Another record from June 2014 states, “She missed the deadline
for [M]edicaid and now has no insurance.” Tr. 1117. Those references do not support
Rios’s argument. The earliest record mentioning loss of insurance is June 2014 and
so does not explain decreased treatment beginning in 2013. The June 2014 note (the
only one from Dr. Thomas mentioning loss of insurance) does not indicate she
attended fewer appointments after losing insurance. The October 2014 note appears
to attribute only her discontinuation of pain-management appointments to her loss
of insurance. Neither note contradicts the ALJ’s finding that Dr. Thomas failed to
explain Rios’s decreased treatment beginning in 2013. The ALJ did not rely on the
absence of explanation from Dr. Thomas to find there was no explanation for
decreased treatment. Rather, he relied on that fact to find Dr. Thomas did not account
for Rios’s decreased treatment in rendering opinions.
2.
Dr. Leal
Rios contends the ALJ failed to address Dr. Leal’s opinions that she “is not able
to do heavy housework, cannot walk long periods, and cannot lift more than 5
pounds.” Doc. 22 at 13–14 (citing Tr. 758–69). The Commissioner responds the
statements Rios cites are her own reported limitations and not opinions from Dr.
Leal. Doc. 25 at 14.
The Commissioner is correct. The transcript pages Rios cites are “follow-up”
forms that pose questions to Rios, not Dr. Leal. See Tr. 758–69. For instance, the
questions before and after the section containing the identified limitations (titled
“Daily Activity?”) are “Does Your Pain Travel Anywhere?” and “What Time Of Day Is
24
Your Pain Worst?” See, e.g., Tr. 758–59. The forms appear to be written by several
different people (the handwriting appears to be different on each), and none contain
Dr. Leal’s signature or initials. See Tr. 758–69. Because Rios fails to show the forms
contain an opinion from Dr. Leal, the ALJ did not err in not assigning weight to them.
VI.
Conclusion
The Court affirms the Commissioner’s decision and directs the clerk to enter
judgment in favor of the Commissioner and close the file.
Ordered in Jacksonville, Florida, on September 22, 2017.
c:
Counsel of Record
25
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