Zandman v. Commissioner of Social Security

Filing 21

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 3/31/2017. (BGK)

United States District Court
Middle District of Florida
Tampa Division
JEANNE M. ZANDMAN,
Plaintiff,
V.

NO. 8:16-CV-258-T-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order Affirming Commissioner’s Decision
This is a case under 42 U.S.C. § 405(g) to review a final decision of the
Commissioner of the Social Security Administration (“SSA”) denying Jeanne
Zandman’s claim for disability-insurance benefits. 1 She seeks reversal, Doc. 17; the
Commissioner, affirmance, Doc. 18. 2 This order adopts the summaries of facts and
law in the Administrative Law Judge’s (“ALJ’s”) decision, Tr. 76–84, and in the
parties’ briefs, Docs. 17, 18, except to the extent stated in this order.

1The

SSA uses an administrative review process a claimant ordinarily must follow to
receive benefits or judicial review of her 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. §§ 404.900−404.906. If the claimant is dissatisfied with the initial
determination, she may ask for reconsideration. 20 C.F.R. §§ 404.907−404.918. 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. 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. If the Appeals Council denies review, she may file an action in federal
district court. 20 C.F.R. § 404.981. Section 405(g) provides the basis for the court’s
jurisdiction.
2The

Court granted Zandman’s request for leave to file a reply to the Commissioner’s
brief, see Docs. 19, 20, but she has not filed one, and the time for doing so has passed.

I.

Issues
Zandman presents four related issues: (1) whether the ALJ erred in failing to

find she has severe mental impairments; (2) whether the ALJ properly evaluated the
opinions of Timothy Foster, Ph.D.; (3) whether the ALJ erred in assessing her
residual functional capacity (“RFC”); and (4) whether the vocational expert’s (“VE’s”)
testimony provided substantial evidence for the ALJ’s finding Zandman could
perform past relevant work. Doc. 17 at 3–20.
II.

Background
Zandman is 59 and last worked in July 2012. Tr. 151, 223. She has a general

education diploma and experience as a sales clerk, office manager, credit clerk,
purchasing agent, collection clerk, and data-entry clerk. Tr. 20, 40–44, 220. She
alleges she became disabled in July 2012 from back and neck problems, depression,
anxiety, diverticulosis, chronic obstructive pulmonary disease (“COPD”), hand
problems, and sleep problems. Tr. 222–23. Her date last insured is June 30, 2013. Tr.
76. She proceeded through the administrative process, failing at each level. Tr. 5–11,
48–89, 92–97, 99–104. This case followed. Doc. 1.
III.

Opinion Evidence
In November 2012, Zandman saw Dr. Foster for a consultative mental

evaluation. Tr. 440–41. She conveyed she has back pain and is uncomfortable around
people. Tr. 440. She reported being hospitalized when she was 12 for suicidal ideation
but denied such feelings at the time of examination. Tr. 440. On examination, he
found:
Jeanne was able to correctly identify the year, the season, the month,
date[,] and day of the week. She was able to correctly identify the state,
city[,] and county and type of building where we were located. She
related well and pleasantly. She showed no problems sustaining
attention. She appears to be of average intelligence. Her mood was self[]described as “Happy but anxious.” Her affect appeared to be anxious.
2

She was able to spell the word[ ] “World” backward correctly, as a
measure of her concentration. She was able to immediately recall a brief
list of 3 common items and recalled it, correctly, after a 5[-]minute delay.
But she feels she [ ]forgets things people tell her. She was able to follow
a simple 3[-]step instruction. She was able to read and write effectively.
She was able to copy a simple design effectively. She does not admit to
any hallucinations or delusions. She has no current suicidal ideation or
impulse. Her judgment and insight appear to be within normal limits.
She had ETOH problems in the past but has been sober just over 22
months. She has lost 60 pounds in the last year due to gall bladder
problems.
Tr. 440–41.
In a section titled “Functional Limits,” Dr. Foster stated:
[Zandman] does not need anyone to remind her to bathe and brush her
teeth regularly. She is able to make a sandwich and use the microwave.
She can follow a recipe, [and] she can do her own laundry. She has 2
neighbors she talks with almost daily plus she talks with her daughter.
She gets anxious around more than just a couple people. She can’t wait
in line behind 6 people, she’d have to leave, due to anxiety. She can read
and understand instructions or a magazine. She feels her memory has
not been good for the last f[e]w months. She says she feels anxious all
the time. She can drive herself places as needed.
Tr. 441. He opined she can manage money in her own best interest. Tr. 441. He
diagnosed her with anxiety, stated she “is stressed by being around people,” and
assigned a Global Assessment of Functioning (“GAF”) scale rating of 45, indicating
“serious social limits.” Tr. 441.
In December 2012, David Tessler, Psy.D., reviewed the medical evidence,
including Dr. Foster’s report, and concluded Zandman’s mental disorders are not
severe. Tr. 63–64. He found she has mild difficulties in maintaining concentration,
persistence, or pace; no restrictions of activities of daily living; no difficulties in
maintaining social functioning; and no episodes of decompensation of extended
duration. Tr. 64. On mild difficulties in maintaining concentration, persistence, or
pace, he referred to Zandman’s function report indicating she can “follow
3

instructions[, and] her ability to maintain attention ‘depends on subject matter.’” Tr.
64.
IV.

Hearing Testimony 3
At the May 2014 hearing, Zandman testified as follows. She does not engage

in social activities but visits family once or twice a week. Tr. 24. She gets anxious and
does “[n]ot [do] well at all” around large groups. Tr. 35. That was not a problem in the
past. Tr. 35. When around large groups, her heart rate accelerates, she gets sweaty
palms, and she “just want[s] to back into a corner.” Tr. 35. She randomly experiences
panic attacks “[a] couple times a week” that last about 20 minutes. Tr. 35–36. When
she has a panic attack, her heart rate accelerates, she gets sweaty palms and a sweaty
face, and she feels like she will pass out. Tr. 36. She takes Xanax to relieve those
symptoms. Tr. 36.
V.

ALJ’s Decision
At step one, 4 the ALJ found Zandman had not engaged in substantial gainful

activity from July 31, 2012 (the alleged onset date), to August 7, 2014 (the decision
date). Tr. 78.
At step two, the ALJ found Zandman suffers from severe impairments of
COPD, seizure disorder, hernia, gastritis, gastroparesis, abdominal abscess, and
diverticulitis. Tr. 78. After discussing Dr. Foster’s report, she found Zandman’s
3Because

Zandman challenges the ALJ’s decision only as it relates to mental
impairments, her testimony relating to only those impairments is summarized.
4The

SSA 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).

4

mental impairments are not severe because “[t]here is no indication that [she] has
required any ongoing mental health treatment for management of” the impairments
and “medications are controlling [her] sympt[oms].” Tr. 78–79.
At step three, the ALJ found Zandman has no impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 79. The ALJ
considered the “paragraph B” criteria 5 and adopted Dr. Tessler’s opinion that
Zandman’s mental impairments “resulted in no more than mild difficulties with
maintaining concentration, persistence[,] or pace with no other limitation in the
paragraph ‘B’ criteria.” Tr. 79.
After stating she had considered the entire record, the ALJ found Zandman
has the RFC to perform sedentary work with additional physical limitations. Tr. 79–
80. In making that RFC finding, the ALJ discussed Zandman’s treatment records. Tr.
80–84. She gave little weight to Dr. Foster’s opinions, including his GAF scale rating
of 45. Tr. 83. She explained:
Although the claimant reported problems with anxiety and being
around others, her symptoms are somewhat controlled with
medications. As previously noted, the claimant is able to shop and drive.
She further indicated that she visits with family several times a week.
The undersigned acknowledges the consultative examiner provided a
GAF of 45, but notes the Commissioner has specifically declined to
endorse the GAF scale for use in disability programs, and has stated
that the GAF scale does not have a direct correlation to the severity
5To

evaluate a mental impairment, an ALJ must evaluate four broad functional areas
(activities of daily living; social functioning; concentration, persistence, or pace; and episodes
of decompensation)—referred to as “paragraph B criteria”—and the extent of any limitation
in the first three areas (none, mild, moderate, marked, or severe). 20 C.F.R. § 404.1520a(a)
& (c) (eff. June 13, 2011). An ALJ’s “written decision must incorporate the pertinent findings
and conclusions based on the technique.” 20 C.F.R. § 404.1520a(e)(4). “The decision must
show the significant history, including examination and laboratory findings, and the
functional limitations that were considered in reaching a conclusion about the severity of the
mental impairment(s).” 20 C.F.R. § 404.1520a(e)(4).

5

requirements in our mental disorder listings[.] Accordingly, the
undersigned has afforded the GAF score little weight.
…
Little weight is given to the speculative assessment of the consultative
psychological examiner, Dr. Foster, who indicated that the claimant
would have serious social problems. Although the claimant reported
that she is not able to be around crowds of people, she noted that she is
able to shop and drive.
Tr. 83. The ALJ gave “significant weight” to Dr. Tessler’s opinions. Tr. 83.
At step four, the ALJ found Zandman can perform her past work as a billing
clerk, collections clerk, and data-entry clerk as actually and generally performed, and
her past work as an office manager and credit clerk as generally performed. Tr. 84.
She therefore found no disability. Tr. 84.
VI.

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 her
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. The court may not
decide facts anew, reweigh evidence, make credibility determinations, or substitute
its judgment for the Commissioner’s judgment. Id.
VII.

Analysis

A.

Whether Substantial Evidence Supports the Finding Zandman’s
Mental Impairments Are Not Severe
Zandman argues substantial evidence does not support the ALJ’s finding that

her mental impairments are not severe because the evidence shows those
impairments cause more than minimal functional limitations. Doc. 17 at 6–8. She
6

points to (1) Dr. Foster’s consultative report; (2) evidence her doctors acknowledged
her generalized anxiety disorder and antisocial personality disorder and prescribed
Xanax and Clonazepam for anxiety and panic attacks; and (3) her testimony and her
husband’s statements supporting she experiences anxiety and panic attacks. Doc. 17
at 6–8. The Commissioner responds substantial evidence supports the ALJ’s finding;
she properly evaluated Dr. Foster’s opinions and Zandman’s and her husband’s
credibility; and, in any event, any error in failing to find severe mental impairments
was harmless because she found other severe impairments and proceeded beyond
step two. Doc. 18 at 8–13 & n.5.
At step two, an ALJ considers whether a claimant has a severe impairment or
combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is
an impairment that significantly limits a claimant’s ability to do basic work activities.
See 20 C.F.R. § 404.1521(a) (defining “non-severe impairment”).
“Step two is a threshold inquiry.” McDaniel v. Bowen, 800 F.2d 1026, 1031
(11th Cir. 1986). It “acts as a filter” to eliminate claims involving no substantial
impairment. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). The finding that
any impairment is severe satisfies step two, and any failure to identify all
impairments that should be severe is harmless. Id.; see also Delia v. Comm’r of Soc.
Sec., 433 F. App’x 885, 887 (11th Cir. 2011) (concluding substantial evidence did not
support ALJ's finding at step two that plaintiff's mental impairments were not severe
but concluding the error was harmless because the ALJ found other severe
impairments and considered the mental impairments at later steps). Although an
ALJ does not have to identify at step two all impairments that should be severe, she
must demonstrate she considered at step three all of the claimant’s impairments—
severe and non-severe—in combination. Heatly v. Comm’r of Soc. Sec., 382 F. App’x
823, 825 (11th Cir. 2010). “[A] simple expression of [her] consideration of the
combination of impairments constitutes a sufficient statement of such findings.” Id.
(citing Jones v. HHS, 941 F.2d 1529, 1533 (11th Cir. 1991)).
7

Here, because the ALJ found Zandman suffers from other severe impairments
at step two and continued with the analysis, any failure to find severe mental
impairments is harmless. Her decision shows she considered Zandman’s mental
impairments at later steps. At step three, she found Zandman has no impairment or
combination of impairments that meets or medically equals the severity of a listed
impairment. Tr. 79. In the RFC analysis, she discussed medical evidence of
Zandman’s mental impairments and assigned weight to medical opinions on how
those impairments affect her ability to work. Tr. 83. Zandman shows no harm in
failing to find her mental impairments severe, so reversal and remand on that basis
are unwarranted.
B.

Whether the ALJ Erred in Evaluating Dr. Foster’s Opinions
Zandman argues the ALJ failed to properly evaluate Dr. Foster’s opinions

because (1) she did not discuss relevant factors, such as Dr. Foster’s expertise in
psychology and disability determinations; (2) she improperly rejected the GAF scale
rating; (3) her reasons for giving little weight to Dr. Foster’s opinions are legally
insufficient and factually inaccurate; and (4) she improperly relied on lack of
treatment as evidence her mental impairments are not as severe as Dr. Foster’s
opinions suggest. Doc. 17 at 8–14. The Commissioner disagrees. Doc. 18 at 11–12, 14–
18.
“Medical opinions are statements from physicians and psychologists or other
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). Regardless of its source, the SSA “will evaluate every medical opinion”
it receives. 20 C.F.R. § 404.1527(c).
An ALJ will consider several factors to decide the weight to give a medical
opinion: examining relationship, treatment relationship, supportability, consistency,
8

specialization, and any other relevant factor. 20 C.F.R. § 404.1527(c). “[O]pinions of
nonexamining, reviewing physicians, … when contrary to those of … examining
physicians, are entitled to little weight, and standing alone do not constitute
substantial evidence.” Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987). But
“[t]he law is clear that, although the opinion of an examining physician is generally
entitled to more weight than the opinion of a non-examining physician, the ALJ is
free to reject the opinion of any physician when the evidence supports a contrary
conclusion.” Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985).
The ALJ rejected Dr. Foster’s opinions concerning the severity of Zandman’s
mental impairments based in part on medication controlling her symptoms with no
need for ongoing mental-health treatment. Tr. 79. She also found the opinions
“speculative” and observed that Zandman’s report to Dr. Foster of symptoms
indicating serious social anxiety was inconsistent with her statement she can shop
and drive and visits family. Tr. 83. And the ALJ rejected the GAF scale rating of 45
because the SSA has declined to endorse use of the GAF scale in disability
evaluations. Tr. 83.
Substantial evidence supports those reasons for giving little weight to Dr.
Foster’s opinions. On the finding medication controls Zandman’s anxiety without
need for additional treatment, medical records, including those Zandman cites, show
that, though she took Xanax to manage anxiety-related symptoms, she never reported
symptoms during office visits, denied experiencing symptoms when asked, routinely
had normal mental-status examinations, and was told to continue taking Xanax as
needed to manage her generalized anxiety disorder. See Tr. 237–40, 246–47, 262,
304–05, 377–80, 385–87, 395–96, 398–400, 446–48, 451–53, 455–56, 463–65, 525–38,
540–41, 543–45, 573. Treating providers found her generalized anxiety disorder
“stable.” Tr. 246–47, 300, 568. Except for a single record from before her alleged onset
date stating a doctor had prescribed Paxil (a medication that otherwise rarely
appears in medical records) to supplement Xanax, see Tr. 401–02, there is no
9

indication she received additional treatment for, or even complained to treating
providers about, her mental impairments during the relevant time period. 6
On the finding that Dr. Foster’s opinions are “speculative,” Dr. Foster’s report
suggests he based his opinions mostly on Zandman’s subjective complaints because
much of his report describes those complaints. 7 See Tr. 440–41. The sole objective
finding is his relatively unremarkable observation that Zandman’s “affect appear[ed]
to be anxious.” Tr. 440. Even if Dr. Foster had also reviewed the medical evidence, as
discussed, the evidence shows only that she took Xanax and routinely had normal
mental-status examinations.
On the finding that Dr. Foster’s opinions were inconsistent with Zandman’s
ability to shop, drive, and visit with family, Zandman testified she shops for groceries
once or twice a week by herself and visits with family once or twice a week, Tr. 24,
39; Dr. Foster noted she had reported she could drive as needed, Tr. 441.
Zandman’s arguments challenging the ALJ’s evaluation of Dr. Foster’s
opinions fail. She argues the ALJ erred in failing to discuss all factors relevant in
evaluating medical-opinion evidence, including Dr. Foster’s expertise in psychology
and disability evaluation. Doc. 17 at 9. As the Commissioner observes, nothing
6Zandman

emphasizes the doctor’s decision to prescribe Paxil “despite concern about
interactions between that and her pain medications.” Doc. 17 at 8. But the record indicates
the doctor mentioned interactions between Paxil and Xanax, not pain medication; he
mentioned “benzo,” likely a reference to Xanax, Tr. 402, which is, as Zandman explains, a
benzodiazepine, see Doc. 17 at 7 n.2. The context of the statement also suggests the doctor
was referring to the interaction between Paxil and Xanax. Additionally, the doctor did not
express “concern” about their interaction but instead merely “advised” Zandman of the
interaction and discussed adjusting the Xanax prescription as necessary. See Tr. 402.
7Zandman

does not challenge the ALJ’s evaluation of her or her husband’s credibility,
though she does rely on statements from both of them to support that she experiences
significant anxiety-related symptoms. See Doc. 17 at 8. Nevertheless, the ALJ properly
discredited their statements about the intensity, persistence, and limiting effects of anxietyrelated symptoms as inconsistent with evidence showing medication controlled her anxiety
without the need for additional treatment. See Tr. 79, 83.

10

requires an ALJ to mention every factor. See Lawton v. Comm’r of Soc. Sec., 431 F.
App’x 830, 833 (11th Cir. 2011) (“[T]he ALJ is not required to explicitly address each
of [the] factors [in 20 C.F.R. § 404.1527(c)]. Rather, the ALJ must provide ‘good cause’
for rejecting a treating physician’s opinion.”). Instead, the ALJ must “consider” each
factor. See 20 C.F.R. § 404.1527(c). Nothing in the ALJ’s decision indicates she failed
to consider Dr. Foster’s specialization; indeed, she recognized him as a Ph.D.-level
psychologist, see Tr. 78, and described him as a “consultative psychological examiner,”
see Tr. 83. That the ALJ did not specifically mention the specialization factor does not
warrant reversal and remand.
Zandman argues the ALJ misinterpreted SSA policy in rejecting the GAF scale
rating of 45 based solely on the Commissioner’s decision to not “endorse” the GAF
scale for use in disability evaluation. 8 Doc. 17 at 9–10. Although the ALJ mentioned
the GAF scale rating separate from Dr. Foster’s report more generally, it is apparent
from the ALJ’s decision that her assignment of little weight to Dr. Foster’s opinions
focused on his GAF scale rating. The ALJ rejected Dr. Foster’s opinion she “would
have serious social problems,” Tr. 83, which appears to refer to his description of the
assigned GAF scale rating as indicating “serious social limits,” see Tr. 441. At no other
point in his report did he offer an opinion she would have serious social problems. See
Tr. 440–41. Zandman’s assertion that the ALJ relied solely on a misinterpretation of
SSA policy is incorrect; she rejected the GAF scale rating based on the same reasons
she rejected Dr. Foster’s opinions more generally.

8The

former version of American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (4th ed. 2000), includes the GAF scale used by mental-health
practitioners to report “the clinician’s judgment of the individual’s overall level of
functioning” and “may be particularly useful in tracking the clinical progress of individuals
in global terms, using a single measure.” Manual at 32−34. The GAF scale is divided into 10
ranges of functioning, each with a 10-point range in the GAF scale. Id. A GAF scale rating of
41–50 indicates serious symptoms or any serious impairment in social, occupational or school
functioning. Id.

11

In any event, the ALJ did not misstate SSA policy. The ALJ was correct that,
even before the American Psychiatric Association abandoned the GAF scale in the
Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders, “the
Commissioner … declined to endorse the GAF scale for use in the Social Security and
SSI disability programs, and … indicated that GAF scores have no direct correlation
to the severity requirements of the mental disorders listings.” Wind v. Barnhart, 133
F. App’x 684, 692 n.5 (11th Cir. 2005) (internal quotations omitted) (citing 60 Fed.
Reg. 50746, 50764–65 (Aug. 21, 2000)).
It is also true that, in July 2013, the SSA issued Administrative Message (AM)13066, providing its adjudicators, including ALJs, with internal guidance regarding
the interpretation of GAF scale ratings. Soc. Sec. Admin., Global Assessment of
Functioning (GAF) Evidence in Disability Adjudication, AM–13066 (July 22, 2013)
REV (Oct. 14, 2014). AM-13066 acknowledged the Manual eliminated the use of GAF
scale but confirmed adjudicators will continue to consider GAF scale ratings as
opinion evidence. As with other opinion evidence, however, a GAF scale rating needs
supporting evidence to be given much weight. Id. According to AM-13066, “the extent
to which an adjudicator can rely on the GAF rating as a measure of impairment
severity and mental functioning depends on whether the GAF rating is consistent
with other evidence, how familiar the rater is with the claimant, and the rater’s
expertise.” Id. The SSA cautioned that a “GAF score is never dispositive of
impairment severity,” and an ALJ should “not give controlling weight to a GAF from
a treating source unless it is well[-]supported and not inconsistent with the other
evidence.” Id.
Here, substantial evidence supports the ALJ’s decision to give little weight to
Dr. Foster’s report in its entirety, including the GAF scale rating, as inconsistent with
other evidence.
Zandman argues the ALJ’s reasons for giving little weight to Dr. Foster’s
opinions are legally insufficient and factually inaccurate. Doc. 17 at 10–13. The
12

“speculative” nature of Dr. Foster’s opinions was an appropriate reason for the ALJ
to reject them. Substantial evidence supports the finding Dr. Foster’s opinions were
“speculative” because neither his observations nor the evidence of Zandman’s
treatment supported those opinions. His conclusion she would have serious social
problems could reasonably be deemed speculative because it was partially based on
the assumption that Zandman accurately described her symptoms. The ALJ also
properly relied on Zandman’s ability to shop for groceries, which undermines her
reports (and Dr. Foster’s opinions based on those reports) that she experiences
significant anxiety around large groups of people. Although the significance of
Zandman’s ability to drive is unclear given that driving is not an inherently social
activity, that alone is insufficient to conclude the ALJ erred in evaluating Dr. Foster’s
opinions.
Zandman argues the ALJ erred in relying in part on her lack of treatment
because he did not consider that she did not have insurance and could not afford
treatment. Doc. 17 at 13–14. That argument has several flaws. First, the ALJ did not
rely on the absence of treatment, but rather on the absence of any apparent need for
treatment. See Tr. 79 (“There is no indication that the claimant has required any
ongoing mental health treatment for management of her mental diagnose[s].”). In
other words, she found, based on substantial evidence, that the record did not support
she needed treatment beyond medication management. Second, Zandman did not
testify that she lacked health insurance; instead, in explaining why she declined to
submit to an electroencephalogram (“EEG”) after a reported seizure, she stated she
had had health insurance at the time but that it had only covered medication. Tr. 20–
21. Reading her testimony in context, it is unclear whether her insurance literally
covered only costs of medication or whether she meant it did not cover more expensive
procedures such as the EEG. Lack of insurance is not the same thing as inability to
afford treatment. Even assuming she did not have coverage or money for other types
of mental-health treatment, such as therapy, she points to no evidence indicating her
providers thought she needed them.
13

Because the ALJ provided good reasons supported by substantial evidence for
giving little weight to Dr. Foster’s opinions, reversal and remand on that basis are
unwarranted. 9
C.

Whether Substantial Evidence Supports the ALJ’s RFC Finding
Zandman argues the ALJ erred by failing to include mental limitations in the

RFC finding despite having found at step two that her mental impairments caused
mild difficulties with maintaining concentration, persistence, or pace. Doc. 17 at 15–
18. The Commissioner responds substantial evidence supports the ALJ’s finding
Zandman has no mental limitations. Doc. 18 at 13–14.
A claimant’s RFC is the most she can do despite her limitations. 20 C.F.R.
§ 404.1545(a)(1). The SSA 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). In assessing a claimant’s RFC, an ALJ must consider all of her
medically determinable impairments, both severe and nonsevere. 20 C.F.R.
§ 404.1545(a)(2).
Substantial evidence supports the ALJ’s RFC finding. The medical evidence
shows Zandman reported no symptoms arising from her mental impairments to her
treating providers, and mental status examinations routinely showed no
psychological problems. The ALJ discussed Dr. Foster’s mental-status-examination
9Zandman

summarily argues that the ALJ erred in giving more weight to Dr. Tessler’s
opinions than Dr. Foster’s opinions without explaining why. See Doc. 17 at 14 n.7. As
discussed, “The law is clear that, although the opinion of an examining physician is generally
entitled to more weight than the opinion of a non-examining physician, the ALJ is free to
reject the opinion of any physician when the evidence supports a contrary conclusion.” See
Sryock, 764 F.2d at 835 (quoted). Moreover, an ALJ’s determination may be implicit, but the
“implication must be obvious to the reviewing court.” Tieniber v. Heckler, 720 F.2d 1251, 1255
(11th Cir. 1983). It is clear from the ALJ’s decision she gave more weight to Dr. Tessler’s
opinions because she found them more consistent with the other evidence.

14

findings in detail, including his observation she “had no problems sustaining
attention” and “was able to recall items after a five-minute delay as well as follow
simple instructions.” Tr. 79 (citing Tr. 440–41).
Zandman’s argument to the contrary fails. The ALJ did not err by not including
mental limitations despite finding Zandman experiences “no more than mild
difficulties” in maintaining concentration, persistence, or pace. That finding,
standing alone, does not mean those difficulties translated into work-related
functional limitations. Zandman points to no evidence that could support finding any
such limitation. The basis for the ALJ’s finding of “no more than mild difficulties”
supports no additional limitations. The ALJ adopted Dr. Tessler’s opinion on that
point. See Tr. 79. Dr. Tessler concluded Zandman has mild difficulties with
concentration, persistence, or pace based only on Zandman’s statement in a function
report that the time she can pay attention to something “[d]epends on [the] subject
matter.” See Tr. 64, 174. Notably, on the same form, Zandman did not indicate her
impairments affect her memory, concentration, or ability to complete tasks. See Tr.
64. Zandman’s statement about her ability to maintain attention does not change that
substantial evidence supports the ALJ’s finding she has no work-related limitations
in maintaining concentration, persistence, or pace.
Because substantial evidence supports the ALJ’s finding Zandman has no
functional limitations arising from mild difficulties in maintaining concentration,
persistence, or pace, reversal and remand on that basis are unwarranted.
D.

Whether the VE’s Testimony Provided Substantial Evidence for the
ALJ’s Finding Zandman Could Perform Past Relevant Work
Zandman argues the ALJ’s failure to include mental functional limitations

resulted in an incomplete hypothetical to the VE, which resulted in an erroneous
finding she could perform past relevant work. Doc. 17 at 18. She argues her past jobs
are skilled or semi-skilled and “place a high premium on focus and accuracy,” so “any
impairment in the ability to function socially or maintain concentration, persistence,
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or pace would impact the ability to perform these positions.” Doc. 17 at 16–18
(emphasis in original). The Commissioner responds the ALJ’s RFC finding included
all functional limitations the evidence supported, and the hypothetical question to
the VE mirrored the RFC, so the VE’s testimony provides substantial evidence for the
ALJ’s decision. Doc. 18 at 20–21.
At step four, an ALJ must decide whether the claimant can perform past
relevant work in light of her RFC. 20 C.F.R. § 404.1560(b). An ALJ may use a VE’s
testimony for that determination. 20 C.F.R. § 404.1560(b)(2). For a VE’s testimony to
be substantial evidence, the ALJ must pose a hypothetical question that includes all
of the claimant’s impairments. Winschel v. Comm’r, 631 F.3d 1176, 1180 (11th Cir.
2011).
Because the ALJ did not err in assessing Zandman’s RFC, and because the
hypothetical question the ALJ posed was identical to that RFC assessment, compare
Tr. 79–80 with Tr. 44–45, the ALJ did not pose an incomplete hypothetical. That
limitations in social functioning or maintaining concentration, persistence, or pace
might have precluded Zandman from performing her past relevant work is
immaterial because substantial evidence supports the ALJ’s RFC finding excluding
any such limitations. The VE’s testimony therefore provided substantial evidence for
the ALJ’s finding Zandman could perform her past work as a billing clerk, collections
clerk, data-entry clerk, office manager, and credit clerk. 10
Because the VE’s testimony provided substantial evidence for the ALJ’s finding
Zandman can perform past relevant work, reversal and remand on that basis are
unwarranted.

10Having

concluded the ALJ presented a complete hypothetical question to the VE,
the Court need not address Zandman’s arguments that (1) her alleged inability to perform
any of her past jobs would require a finding of disability based on the Medical-Vocational
Guidelines and (2) the ALJ would be required to consult a VE on remand because she has
nonexertional limitations. See Doc. 17 at 18–20.

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VIII. Conclusion
The Court affirms the Commissioner’s decision denying Zandman’s claim for
benefits and directs the clerk to enter judgment in favor of the Commissioner and
close the file.
Ordered in Jacksonville, Florida, on March 31, 2017.

c:

Counsel of Record

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