Terranova v. Commissioner of Social Security

Filing 22

ORDER re 1 Complaint filed by Rachael Terranova. The decision of the Commissioner is affirmed. The Clerk of Court is directed to enter final judgment in favor of the Commissioner and close the case. Signed by Magistrate Judge Julie S. Sneed on 8/31/2017. (SMC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RACHAEL TERRANOVA,
Plaintiff,
v.

Case No: 8:16-cv-1291-T-JSS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
ORDER
Plaintiff, Rachael Terranova, seeks judicial review of the denial of her claim for
Supplemental Security Income (“SSI”) pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). As the
Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and employed
proper legal standards, the decision is affirmed.
BACKGROUND
A.

Procedural Background

Plaintiff filed an application for SSI on November 27, 2012. (Tr. 14, 167–168.) The
Commissioner denied Plaintiff’s claims both initially and upon reconsideration. (Tr. 75–80, 86–
90.) Plaintiff then requested an administrative hearing. (Tr. 91–92.) Upon Plaintiff’s request, the
ALJ held a hearing at which Plaintiff appeared and testified. (Tr. 31–49.) Following the hearing,
the ALJ issued an unfavorable decision finding Plaintiff not disabled and accordingly denied
Plaintiff’s claims for benefits. (Tr. 11–26.) Subsequently, Plaintiff requested review from the
Appeals Council, which the Appeals Council denied. (Tr. 1–8.) Plaintiff then timely filed a

complaint with this Court. (Dkt. 1) The case is now ripe for review under 42 U.S.C. § 405(g) and
42 U.S.C. § 1383(c)(3).
B.

Factual Background and the ALJ’s Decision

Plaintiff, who was born in March 1994, claimed disability beginning on August 1, 2012.
(Tr. 142–150.) Plaintiff has a high school education. (Tr. 24, 35.) Plaintiff has no past relevant
work experience. (Tr. 16, 38–39, 171–173.) Plaintiff alleged disability due to bipolar disorder,
depression, social phobia, anxiety, asthma, and allergies. (Tr. 171.)
In rendering the decision, the ALJ concluded that Plaintiff had not performed substantial
gainful activity since November 27, 2012, the application date. (Tr. 16.) After conducting a
hearing and reviewing the evidence of record, the ALJ determined that Plaintiff had the following
severe impairments: affective disorder, anxiety disorder, substance addiction disorder, and asthma.
(Tr. 16.) Notwithstanding the noted impairments, the ALJ determined that Plaintiff did not have
an impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16–18.) The ALJ then concluded
that Plaintiff retained a residual functional capacity (“RFC”) to perform a full range of work at all
exertional levels, but with the following non-exertional limitations: she must avoid concentrated
exposure to irritants, fumes, odors, dusts, and gases, and she can perform unskilled simple, routine,
repetitive tasks with only occasional contact with the public, co-workers, and supervisors. (Tr.
18–23.) In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective complaints and
determined that, although the evidence established the presence of underlying impairments that
reasonably could be expected to produce the symptoms alleged, Plaintiff’s statements as to the
intensity, persistence, and limiting effects of her symptoms were not fully credible. (Tr. 18–23.)

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As noted, the ALJ determined that Plaintiff did not have any past relevant work. (Tr. 24.)
Given Plaintiff’s background and RFC, the vocational expert (“VE”) testified that Plaintiff could
perform other jobs existing in significant numbers in the national economy, such as laundry
laborer, sweeper/cleaner, and mail clerk.

(Tr. 25.) Accordingly, based on Plaintiff’s age,

education, work experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not
disabled. (Tr. 14–26.)
APPLICABLE STANDARDS
To be entitled to benefits, a claimant must be disabled, meaning that the claimant must be
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results from anatomical,
physiological, or psychological abnormalities that are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Social Security Administration (“Administration”), in order to regularize the
adjudicative process, promulgated the detailed regulations currently in effect. These regulations
establish a “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.
§ 416.920. If an individual is found disabled at any point in the sequential review, further inquiry
is unnecessary. 20 C.F.R. § 416.920(a). Under this process, the ALJ must determine, in sequence,
the following: (1) whether the claimant is currently engaged in substantial gainful activity; (2)
whether the claimant has a severe impairment, i.e., one that significantly limits the ability to
perform work-related functions; (3) whether the severe impairment meets or equals the medical
criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1; and, (4) whether the claimant can perform
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her past relevant work. If the claimant cannot perform the tasks required of her prior work, step
five of the evaluation requires the ALJ to decide if the claimant can do other work in the national
economy in view of the claimant’s age, education, and work experience. 20 C.F.R. § 416.920(a).
A claimant is entitled to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S.
137, 140–42 (1987); 20 C.F.R. § 416.920(g).
A determination by the Commissioner that a claimant is not disabled must be upheld if it
is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C.
§ 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400
(11th Cir. 1996). While the court reviews the Commissioner’s decision with deference to the
factual findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health &
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In reviewing the Commissioner’s decision, the court may not decide the facts anew, reweigh the evidence, or substitute its own judgment for that of the ALJ, even if it finds that the
evidence preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the reviewing
court sufficient reasoning for determining that he or she has conducted the proper legal analysis,
mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining
whether the findings of the Commissioner are supported by substantial evidence and whether the
correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002).

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ANALYSIS
Plaintiff challenges the ALJ’s decision on the grounds that the ALJ failed to treat the
opinion of Carl Fierstein, a licensed mental health counselor, as the opinion of an “other source”
within the meaning of the Administration’s regulations. (Dkt. 20 at 6.) For the reasons that follow,
this contention does not warrant reversal.
The Administration uses “medical and other evidence to reach conclusions about an
individual’s impairment(s) to make a disability determination or decision.” SSR 06-03p, 2006 WL
2329939 (Aug. 9, 2006).

Specifically, when making a decision concerning disability, the

Administration considers all of the available evidence, including “other evidence from medical
sources, including their opinions; statements by the individual and others about the impairment(s)
and how it affects the individual’s functioning; information from other ‘non-medical sources’ and
decisions by other governmental and nongovernmental agencies about whether an individual is
disabled.” Id; 20 C.F.R. § 416.913 (discussing sources of evidence).
A.

Acceptable Medical Sources

While all evidence from medical sources is considered, the regulations distinguish between
the opinion evidence provided by “acceptable medical sources” and other sources. 20 C.F.R. §
416.9271 (discussing evidence provided by acceptable medical sources and other sources).
“Acceptable medical sources,” as defined by 20 C.F.R. § 404.1502(a), include licensed physicians
and licensed or certified psychologists. Only physicians, psychologists, or other acceptable
medical sources can provide medical opinions. 20 C.F.R. § 404.1527(a)(1). Medical opinions are
“statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity” of the claimant’s impairments, including the claimant’s

1

This section, as well as 20 C.F.R. § 404.1527, applies to claims filed before March 27, 2017, including Plaintiff’s
claim.

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symptoms, diagnosis and prognosis, the claimant’s ability to perform despite impairments, and the
claimant’s physical or mental restrictions. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178–
79 (11th Cir. 2011) (internal quotation and citation omitted).
When assessing the medical evidence, the ALJ must state with particularity the weight
afforded to medical opinions and the reasons therefor. Id. at 1179. In determining the weight to
afford a medical opinion, the ALJ considers the examining and treatment relationship between the
claimant and doctor, the length of the treatment and the frequency of the examination, the nature
and extent of the treatment relationship, the supportability and consistency of the evidence, the
specialization of the doctor, and other factors that tend to support or contradict the opinion. Hearn
v. Comm’r of Soc. Sec. Admin., 619 Fed. App’x 892, 895 (11th Cir. 2015). The medical opinions
of a treating physician must be given substantial or considerable weight unless good cause is shown
to the contrary. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); see also
20 C.F.R. § 404.1527(c)(2). Good cause exists when the doctor’s opinion is not bolstered by the
evidence, the evidence supported a contrary finding, or the doctor’s opinion is conclusory or
inconsistent with his or her own medical records. Winschel, 631 F.3d at 1179.
B.

Other Medical Sources of Evidence

Evidence to establish an impairment may also be provided by “medical sources who are
not acceptable medical sources.” 20 C.F.R. § 404.1527(f). “[M]ental health counselors. . . [are]
not ‘acceptable medical sources’” under the regulations. Farnsworth v. Soc. Sec. Admin., 636 Fed.
App’x. 776, 783 (11th Cir. 2016) (citing 20 C.F.R. §§ 404.1513(a), 416.913(a)). Instead, mental
health counselors are considered other sources of evidence. Farnsworth, 636 Fed. App’x. at 784;
see 20 C.F.R. § 416.902.

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Although ALJs are required to consider the opinions of mental health counselors as other
sources, ALJs are not required to give mental health counselors’ opinions controlling weight over
the opinions of acceptable medical sources. Id. at 784 (explaining, “[w]hile the ALJ was required
to consider the opinions of [two mental health counselors] as other medical sources, the ALJ was
not required to give their opinions controlling weight over the opinions of acceptable medical
sources, such as [the state consulting psychologist who provided a medical opinion]”); see 20
C.F.R. § 404.1527; SSR 06-03p, 2006 WL 2329939, at *2, *6.
The regulations provide that the ALJ generally should explain the weight given to other
sources or otherwise ensure that the discussion of the evidence in the decision allows a claimant
to follow the ALJ’s reasoning when the opinion may have an effect on the outcome of the case.
20 C.F.R. § 416.927(f)(2). In considering other sources’ opinions, the regulations allow ALJs
flexibility to tailor the criteria normally applied to treating physicians to the facts of the specific
case. 20 C.F.R. § 416.927(f)(1). The analysis may look to the length of treatment, nature and
extent of treatment, the supportability and consistency of treatment notes, specialization, and other
relevant factors. See, e.g., Farnsworth, 636 Fed. App’x. at 784 (explaining that the ALJ provided
sufficient reasons for discounting the opinions of licensed mental health counselors as to the
severity of claimant’s mental impairments); Crawford, 363 F.3d at 1160 (per curiam) (explaining
that treating physician’s opinion may be discounted if it is not accompanied by objective medical
evidence or is wholly conclusory).
C.

Discussion

The ALJ considered the evidence provided by licensed mental health counselor Carl
Fierstein and afforded the opinion little weight. (Tr. 23.) The ALJ summarized Mr. Fierstein’s
opinion and concluded as follows:

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Mr. Fierstein stated the claimant has episodes of losing jobs, poor
communication with co-workers, poor abstinence, crying for no
reasons and inability to follow instructions. Mr. Fierstein added the
claimant was receiving treatment through August 13, 2012, but she
lost her insurance and she has been without her prescribed
medications Klonopin and Lamictal. Mr. Fierstein noted the
claimant’s symptoms included explosive mood, depression, sleep
disturbances and loss of appetite. Mr. Fierstein stated the claimant
is unable to support herself except with a part time job and part time
community college. Mr. Fierstein opined it was his “professional
opinion” that Social Security disability was appropriate to provide
the proper psychiatric care and psychotherapy to help the claimant
establish a responsible lifestyle (Exhibit 4F). Although a LMHC is
not considered an acceptable medical source for opinion evidence,
his opinion is nevertheless considered as a lay statement and is given
little weight.
(Tr. 23.)
As an initial matter, Mr. Fierstein’s opinion that Social Security disability was appropriate
to provide the proper psychiatric care and psychotherapy to help the claimant establish a
responsible lifestyle (Tr. 396) is not an opinion entitled to deference. Opinions that a 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).
Such an opinion is not entitled to “any special significance.” Id. § 404.1527(d)(3); Denomme v.
Comm’r of Soc. Sec., 518 Fed. App’x 875, 877–78 (11th Cir. 2013).
Additionally, the ALJ considered Mr. Fierstein’s opinion and properly concluded that the
licensed mental health counselor is not an acceptable medical source for evidence. The ALJ noted
that he considered the opinion evidence in accordance with the requirements of 20 C.F.R. §
416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-03p. (Tr. 19.) It is not clear from the ALJ’s
decision, however, the reason for affording Mr. Fierstein’s opinion little weight. While the ALJ
considered the opinion, he did not “explain the weight given to opinions from these other sources
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or otherwise ensure that the discussion of the evidence in the determination or decision allows a
claimant . . . to follow the [ALJ’s] reasoning, when such opinions may have an effect on the
outcome of the case.” 20 C.F.R. § 416.927(f)(2). Further, the ALJ deemed Mr. Fierstein’s opinion
a “lay statement” instead of health care provider who is an other medical source of evidence as
provided in the regulations. (Tr. 23.) Nevertheless, to the extent that the ALJ committed an error,
the error is harmless if it did not affect the ALJ’s ultimate determination. Diorio v. Heckler, 721
F.2d 726, 728 (11th Cir. 1983).
From the records presented in support of Plaintiff’s application for SSI, Plaintiff received
treatment from psychiatrist Dr. Mina Oza from October 2006 through September 2009. (Tr. 265–
304.) Dr. Oza’s records discuss Plaintiff’s history of suicidal thoughts and hospitalization pursuant
to the Florida Mental Health Act, Section 394.463 of the Florida Statutes (2006) (“Baker Act”) in
October 2006. (Tr. 298.) After Plaintiff’s hospitalization, she received treatment from Dr. Oza
and was diagnosed with attention deficit hyperactivity disorder, major depressive disorder,
affective disorder, bipolar disorder, and asthma. (Tr. 280, 282, 287, 293, 295, 297, 303.) Dr. Oza
recommended therapy and prescribed medication including Lamictal, Remeron, Wellbutrin,
Prozac, and Adderall. (Tr. 265–304.) In 2006, Plaintiff was depressed, suffered from anxiety, and
was unable to concentrate. (Tr. 294–304.) She also had poor recall, poor listening skills, and poor
organization abilities. (Tr. 298.) In 2007, Plaintiff continued to be depressed, was nervous and
unable to concentrate. (Tr. 292–293.) She was also forgetful and fidgety, but her suicidal thoughts
were “much less” and “getting better.” (Tr. 283, 284, 291.) In 2008, Plaintiff had no suicidal
thoughts, was not depressed, and her functioning was excellent. (Tr. 271.) Similarly, in 2009,
Plaintiff’s grades improved in school, her social life and functioning were “excellent,” and she had
no suicidal thoughts. (Tr. 265.)

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Plaintiff received treatment from Dr. Neil Thierry at Northside Community Mental Health
Center (“NMHC”) from April 2011 through September 2012. (Tr. 362–388.) Dr. Thierry
diagnosed Plaintiff with bipolar disorder and social phobia. (Tr. 379–382.) Dr. Thierry prescribed
medications including Lamictal and Klonopin. (Tr. 381.) In 2011, Plaintiff had mood swings and
anxiety, but was “doing pretty well with regards to most symptomatology.” (Tr. 376, 379.) She
was not suicidal. (Tr. 370, 376, 379, 381, 386, 388.) Plaintiff was earning good grades and
attending high school. (Tr. 379.) Likewise in 2012, although Plaintiff was using marijuana and
had some anxiety, she stopped using opiates, graduated high school, obtained her driver’s license,
and had a car. (Tr. 366, 368.) Plaintiff was “functioning pretty well.” (Tr. 366.)
In connection with her application for SSI, Plaintiff underwent a consultative psychological
examination in January 2013 which was performed by psychologist Lawrence N. Pasman, Ph.D.
(Tr. 390–394.) Dr. Pasman diagnosed Plaintiff with biopolar I disorder, generalized anxiety
disorder, cannabis abuse, and polysubstance dependence. (Tr. 394.) In his examination, Dr.
Pasman observed that Plaintiff’s appearance was adequate, she was oriented, and fully alert. (Tr.
392.) Although her memory of recent events was slightly impaired, her remote memory and
computational skills were adequate. (Tr. 393, 394.) Her concentration and motor behavior were
normal and she had no cognitive disturbances. (Tr. 393.) Dr. Pasman noted no functional deficits
in interpersonal functioning, concentration, persistence, pace, or adaptation. (Tr. 394.) In
summary, Dr. Pasman concluded that Plaintiff’s prognosis appeared fair with Plaintiff resuming
psychiatric care. (Tr. 394.)
Plaintiff’s record evidence also includes opinions from state agency medical consultant
psychologists Michelle Butler, PsyD. and Eric Wiener, Ph.D. (Tr. 52–60, 62–71.) The consultants
reviewed the evidence in the record and on January 9, 2013, Dr. Butler concluded Plaintiff had

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only mild restrictions in activities of daily living and social functioning. (Tr. 56.) Dr. Butler
further opined that Plaintiff had only moderate difficulties in maintaining concentration,
persistence or pace and no repeated episodes of decompensation of extended duration. (Tr. 56.)
On March 6, 2013, Dr. Wiener similarly found that Plaintiff had no severe restrictions in the
activities of daily living, social functioning, maintaining concentration, persistence or pace, and
that she had no repeated episodes of decompensation of extended duration. (Tr. 66.)
The ALJ accurately summarized all of Plaintiff’s record evidence, including Mr. Fierstein’s
opinion. (Tr. 11–6.) The ALJ fully considered the medical and other evidence concerning
Plaintiff’s impairments and the Court finds that the ALJ’s determination is supported by
substantial, competent evidence. When the ALJ’s decision is supported by substantial evidence,
this Court “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment” in
the place of the ALJ’s even if the evidence preponderates against the ALJ’s decision. Bloodsworth,
703 F.2d at 1239; Dyer v. Barnhart, 395 F.3d 1206, 1212 (11th Cir. 2005) (reversing the district
court because it “improperly reweighed the evidence and failed to give substantial deference to the
Commissioner’s decision”). Because the ALJ’s decision shows that he considered and accurately
summarized Mr. Fierstein’s opinion and the record evidence as a whole, Plaintiff’s contention does
not warrant reversal.
Plaintiff also argues that the ALJ erred by failing to order a consultative examination after
receiving Mr. Fierstein’s opinion. (Dkt. 20.) In response, the Commissioner argues, and the Court
agrees, that the ALJ was not required to order a consultative examination where, as here, the record
contains sufficient evidence to support a determination.

(Dkt. 21 at 7.)

Specifically, “a

consultative examination may be purchased where the evidence as a whole, both medical and
nonmedical, is not sufficient to support a decision on [the claimant’s application.]” (Dkt. 21 at 7).

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See 20 C.F.R. § 416.919; Colon v. Colvin, 660 Fed. App’x 867 (11th Cir. 2016). Examinations
may also be issued to resolve any evidentiary discrepancy contained in the medical record. See 20
C.F.R. § 404.1519a(b). Ultimately, however, the issuance of a consultative examination is within
the discretion of the ALJ. 20 C.F.R. § 404.1512(b)(2).
As explained herein, the ALJ reviewed and considered all the evidence of record. In
support of his conclusion, the ALJ cited the medical records of both treating physicians Dr. Mina
Oza and Dr. Neil Thierry, the state agency consultants’ psychological evaluations, as well as
personal testimony from Plaintiff and her father, among other evidence. (Tr. 54, 56). The ALJ
also considered and assessed Mr. Fiersteins’ opinion as a non-acceptable medical source, fully
developed the record, and provided substantial evidentiary support by citing record evidence. See,
e.g., Winschel, 631 F.3d at 1178; (Tr. 21–25). Thus, while Plaintiff suffered from severe
impairments, the record includes substantial competent evidence supporting the ALJ’s decision
and any error committed is harmless as it did not affect the ALJ’s ultimate determination. See
Diorio, 721 F.2d at 728.
CONCLUSION
Accordingly, after due consideration and for the foregoing reasons, it is
ORDERED:
1. The decision of the Commissioner is AFFIRMED

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2. The Clerk of Court is directed to enter final judgment in favor of the Commissioner
and close the case.
DONE and ORDERED in Tampa, Florida, on August 31, 2017.

Copies furnished to:
Counsel of Record

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