Mahon v. Commissioner of Social Security
ORDER regarding 1 Complaint filed by Patricia L. Mahon. The decision of the Commissioner is reversed in part and the case is remanded under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Order. The Clerk of the Court is directed to enter judgment consistent with this Order. Signed by Magistrate Judge Julie S. Sneed on 8/7/2017. (LBL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
PATRICIA L. MAHON,
Case No: 8:16-cv-1462-T-JSS
COMMISSIONER OF SOCIAL
Plaintiff, Patricia L. Mahon, seeks judicial review of the denial of her claim for disability
insurance benefits. As the Administrative Law Judge’s (“ALJ”) decision did not employ proper
legal standards, the decision is reversed in part.
Plaintiff filed an application for disability insurance benefits on May 18, 2010. (Tr. 113–
14.) The Commissioner denied Plaintiff’s claims both initially and upon reconsideration. (Tr. 65–
67, 70–71.) Plaintiff then requested an administrative hearing. (Tr. 72–73.) Upon Plaintiff’s
request, the ALJ held a hearing at which Plaintiff appeared and testified. (Tr. 29–57.) Following
the hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and accordingly
denied Plaintiff’s claim for benefits. (Tr. 10–28.) Subsequently, Plaintiff requested review from
the Appeals Council, which the Appeals Council denied. (Tr. 1–3.)
Plaintiff appealed the denial of benefits to this Court. (Tr. 516–31.) The Court reversed
the ALJ’s decision and instructed that, on remand, the ALJ reconsider the medical opinions and
clearly specify the weight assigned to the opinions (“Remand Order”). (Tr. 530.) Pursuant to the
Remand Order, the Appeals Council vacated the final decision of the ALJ and remanded the case
to the ALJ “for further proceedings consistent with the order of the court.” (Tr. 404–08.)
The ALJ held a new hearing in January 2016 and issued a new decision on March 9, 2016.
(Tr. 382–93, 404–28.) In the ALJ’s March 9, 2016 decision, the ALJ concluded that Plaintiff, who
alleged disability beginning on July 15, 2009, was not disabled prior to April 29, 2014, but became
disabled on that date and continues to be disabled. (Tr. 382–83.)
In rendering the decision, the ALJ concluded that Plaintiff had not performed substantial
gainful activity since July 15, 2009, the alleged onset date. (Tr. 384.) The ALJ determined that
Plaintiff had the following severe impairments: depression, bipolar disorder, anxiety, and
posttraumatic stress disorder. (Tr. 385.) 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
(“Listing”). (Tr. 385.)
The ALJ then concluded that, before Plaintiff became disabled on April 29, 2014, she
retained the following residual functional capacity (“RFC”):
perform a full range of work at all exertional levels but with the following
nonexertional limitations: The claimant can only perform simple and repetitive
tasks, can handle ordinary and routine changes in work settings or duties, and
should not perform rapid production or rapid quota-type jobs. The claimant is
limited to only occasional interaction with the public, coworkers, and supervisors.
The claimant can maintain attention and concentration for 2 hours and then would
need a 10-minute break.
(Tr. 386.) 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 prior to April 29, 2014, were not
fully credible. (Tr. 387.)
However, as to the credibility of Plaintiff’s testimony regarding the intensity, persistence,
and limiting effects of her symptoms after April 29, 2014, the ALJ found Plaintiff’s allegations
fully credible. (Tr. 389.) Accordingly, the ALJ concluded that beginning on April 29, 2014,
Plaintiff retained the same RFC, except that Plaintiff could maintain attention and concentration
for only one hour, instead of two, before needing a ten-minute break. (Tr. 390.)
The ALJ found that since July 15, 2009, the alleged onset date, Plaintiff has been unable
to perform past relevant work. (Tr. 390.) The ALJ concluded that, prior to April 29, 2014,
considering Plaintiff’s age, education, work experience, RFC, and the testimony of a vocational
expert (“VE”), Plaintiff would be capable of performing the work of a housekeeping cleaner, office
helper, and stock checker. (Tr. 392.) Therefore, the ALJ concluded that Plaintiff was not disabled
prior to April 29, 2014. (Tr. 392.) However, beginning on April 29, 2014, “[t]he [VE] testified
that with the limitation that the claimant could only maintain attention and concentration for one
hour at a time and then would need a 10-minute break, there are no jobs in the national economy
that the individual could perform.” (Tr. 392.) Accordingly, the ALJ concluded that Plaintiff
became disabled on April 29, 2014, and has continued to be disabled through the date of his
decision. (Tr. 393.)
Plaintiff appeals the ALJ’s March 9, 2016 decision. (Dkt. 1.) The case is now ripe for
review under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
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, 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 workrelated 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 his or her past
relevant work. If the claimant cannot perform the tasks required of his or 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).
Plaintiff challenges the ALJ’s decision on the following grounds: (1) the ALJ failed to
follow the Court’s instructions in the Remand Order; (2) the ALJ’s finding that Plaintiff became
disabled on April 29, 2014, is “wholly arbitrary”; (3) the RFC assessment fails to account for all
of Plaintiff’s mental limitations; and (4) the ALJ erred in his assessment of Plaintiff’s credibility.
For the reasons that follow, Plaintiff’s first and second contentions warrant reversal.
Plaintiff argues that the ALJ did not follow the Remand Order’s instructions to reconsider
and “clearly specify the weight assigned to” the medical opinions of Dr. B.J. Hatton, Dr. Don
DelBeato, and Dr. Luis Rodriguez. (Dkt. 13 at 7–12.)
Dr. Hatton, an examining physician, performed a psychological evaluation of Plaintiff in
July 2010. (Tr. 309–14.) In her mental status examination, Dr. Hatton noted that although Plaintiff
appeared anxious, “somewhat depressed,” and apathetic, her speech and language skills were
good, and her thought processes were relevant, coherent, and organized. (Tr. 313.) Further, Dr.
Hatton summarized results of mental status tests she administered:
[Plaintiff] was only able to recall one of three words at 15 minutes, and she may
experience difficulties with her short-term memory. She was able to do Serial 7s,
spell ‘world’ backwards correctly, interpret a simple proverb, and do simple math
calculations. Her estimated intellectual functioning is average. Her insight and
judgment are fair.
(Tr. 313.) Dr. Hatton concluded that “[t]he prognosis for [Plaintiff’s] ability to maintain [sic] in a
competitive work situation is guarded,” that Plaintiff would require continued treatment, and that
Plaintiff would need supervision if she is awarded benefits because “by her own admission she
exercises very poor judgment with money.” (Tr. 313–14.)
Next, Dr. DelBeato, an examining physician, administered a general clinical evaluation of
Plaintiff on September 26, 2011. (Tr. 347–52.) In her mental status examination, Plaintiff was
alert, oriented, had clear speech, and her remote memory was intact. (Tr. 348.) Plaintiff had a
depressed mood and was anxious, which she exhibited by “constantly rubbing herself and
scratching her self [sic] all over her body.” (Tr. 348.) Dr. DelBeato reported the following results
from mental examination tests he administered:
[Plaintiff’s] [i]mmediate recall is 5 digits forward and 3 digits backward which is
mildly deficient. Concentration is poor due to anxiety. The claimant is able to do
simple arithmetic and make small change without pencil and paper. She is able to
do serial sevens; albeit slowly. Social, practical judgment for basic problem
situations is good. Claimant is able to functionally abstract one common proverbs.
Another proverb presented resulted in a tangential response. Insight is low
functional. Thought process is coherent and intact. Patient is not psychotic. I
observe no perceptual impairment.
(Tr. 348.) Dr. DelBeato concluded that Plaintiff’s prognosis was poor, that Plaintiff’s bipolar
disorder “presents a significant barrier to stable employment,” and that Plaintiff “is a high risk to
decompensate in a work environment.” (Tr. 349.) Further, Dr. DelBeato recommended a payee
trustee be appointed should Plaintiff be awarded benefits because although he found Plaintiff
“competent to manage her own funds,” he noted that Plaintiff had a history of alcohol dependence.
Finally, Dr. Rodriguez reviewed and approved the treatment notes of treating nurse
practitioner (“NP”) Alma Reif. NP Reif treated Plaintiff with psychotherapy and medication
management from February 2010 through February 2011, and Dr. Rodriguez reviewed and signed
her treatment notes. (Tr. 338–41, 364–69, 372–77.) NP Reif diagnosed Plaintiff with bipolar
disorder and treated her with medication. (Tr. 376–77.) In each of her treatment sessions with
Plaintiff, NP Reif rated the level of Plaintiff’s impairment in the areas of work, social life, leisure
activities, family life, and home responsibilities. These ratings ranged from moderate impairment
to severe impairment. (Tr. 338–41, 364–69, 372–77.)
In the Remand Order, the Court found that the ALJ erred in his evaluation of the opinions
of Dr. Hatton, Dr. DelBeato, and Dr. Rodriguez. Specifically, while the ALJ assigned some weight
to Dr. Hatton’s global assessment functioning score, the ALJ did not indicate the weight he
assigned to the remainder of Dr. Hatton’s opinion. (Tr. 527.) This was error, the Court found,
because it was unclear whether the ALJ incorporated or rejected the remainder of Dr. Hatton’s
opinion. (Tr. 527.) As to Dr. DelBeato, the ALJ accorded his opinion great weight and
incorporated certain limitations into his RFC assessment. (Tr. 528.) The Court found that the ALJ
erred, however, because the ALJ did not address Dr. DelBeato’s opinions that Plaintiff had a high
risk to decompensate in a work environment and that Plaintiff’s bipolar disorder presents a barrier
to her being capable of stable employment. (Tr. 528.) Accordingly, the Court concluded the ALJ
erred because the Court could not determine whether the ALJ considered the entirety of Dr.
DelBeato’s opinion. (Tr. 528.)
Finally, the Court concluded that the ALJ erred by finding that Dr. Rodriguez’s treatment
notes did not constitute medical opinions. (Tr. 529.) The Court concluded that NP Reif’s
statements regarding the severity of Plaintiff’s limitations constituted medical opinions. (Tr. 529–
30.) And while the ALJ summarized some of these treatments notes, “he did not indicate whether
he was assigning the opinions therein any weight or whether he even considered those portions to
be ‘medical opinions.’” (Tr. 530.) The Court found the ALJ’s error with respect to Dr. Rodriguez
“especially harmful in light of the fact these treatment notes spanned about one year and provide
the most longitudinal assessment of Plaintiff’s mental health status.” (Tr. 530.)
Accordingly, the Court reversed the ALJ’s decision and remanded with instructions to
“[r]econsider the medical opinions in the administrative transcript, clearly specify the weight
assigned to the opinions and articulate the reasons therefor.” (Tr. 530.) The Appeals Council
remanded the case to the ALJ to conduct proceedings consistent with the Remand Order. (Tr.
406.) “When a Federal court remands a case to the Commissioner for further consideration, the
Appeals Council, acting on behalf of the Commissioner, may make a decision, or it may remand
the case to an administrative law judge with instructions to take action and issue a decision or
return the case to the Appeals Council with a recommended decision.” 20 C.F.R. § 404.983. On
remand, the ALJ “shall take any action that is ordered by the Appeals Council and may take any
additional action that is not inconsistent with the Appeals Council’s remand order.” Id. §
404.977(b); see Apone v. Comm’r of Soc. Sec., 435 F. App’x 864, 865 (11th Cir. 2011) (quoting
Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir. 1985), and holding that “[a] court ‘may not
alter, amend, or examine the mandate, or give any further relief or review, but must enter an order
in strict compliance with the mandate.’”).
On remand, and in the decision that is the subject of this appeal, the ALJ again failed to
discuss the opinions contained in Dr. Rodriguez’s treatment notes. The ALJ did not explicitly
refer to Dr. Rodriguez or NP Reif in his decision; rather, the ALJ made two references to Dr.
Rodriguez’s treatment notes in his opinion. Specifically, when describing Plaintiff’s mental
impairments prior to April 29, 2014, the ALJ cited Dr. Rodriguez’s treatment notes, among other
sources, and stated “[e]xaminations had assessed [Plaintiff] with bipolar, but it also consistently
noted that she was cooperative and only had mild problems with concentration.” (Tr. 387.)
Further, the ALJ cited Dr. Rodriguez’s treatment notes, stating that Plaintiff reported being unable
to afford psychotropic medication and was therefore reliant on samples. (Tr. 387.) As Plaintiff
contends (Dkt. 13 at 8), the ALJ again did not discuss Dr. Rodriguez’s opinions that Plaintiff had
moderate to severe limitations in the areas of work, social life, leisure activities, family life, and
home responsibilities. This does not comport with the Remand Order’s directive to reconsider the
medical opinions, clearly specify the weight assigned to the opinions, and articulate the reasons
for such assignment of weight. (Tr. 530.) Further, this error is not harmless, but instead, as the
Court in the Remand Order found, is “especially harmful in light of the fact these treatment notes
spanned about one year and provide the most longitudinal assessment of Plaintiff’s mental health
status.” (Tr. 530.) Accordingly, Plaintiff’s first contention as to Dr. Rodriguez requires reversal.
Next, on remand, the ALJ discussed Dr. Hatton’s opinion as follows:
Consultative examiner Billie Jo Hatton, Ph.D., opined that the claimant’s prognosis
is guarded, and would need a payee because of poor control with money (Exhibit
5F/5-6). Because Dr. Hatton was able to directly examine the claimant and the
opinion is largely consistent with the evidence, it is given some weight.
(Tr. 389.) The ALJ discussed Dr. DelBeato’s opinion as follows:
Don DelBeato, Ph.D., opined that the claimant’s bipolar is a significant barrier to
stable employment, and that her prognosis for rehabilitation is poor (Exhibit 13F/3).
He also opined due to history of alcohol dependence a payee trustee is
recommended. This opinion is given little weight; the claimant appeared to be able
to work in the past despite her mental impairments, and it appears that her mental
impairments can be controlled with medications.
(Tr. 389.) Generally, Plaintiff argues that these analyses were far too cursory to comply with the
Remand Order. (Dkt. 13 at 11.) Further, Plaintiff argues that to afford Dr. Hatton’s opinions some
weight because she examined Plaintiff “while rejecting Dr. DelBeato’s examining opinion without
any consideration of his examination status” is inconsistent. (Dkt. 13 at 11.)
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 symptoms, diagnosis, prognosis, ability to perform despite impairments,
and 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); 20 C.F.R. § 404.1527(a)(1). An ALJ is
required to evaluate every medical opinion. 20 C.F.R. § 404.1527(c) (stating that “[r]egardless of
its source, we will evaluate every medical opinion we receive”). When assessing the medical
evidence, the ALJ must state, with particularity, the weight afforded to medical opinions and the
reasons for such assignment of weight. Winschel, 631 F.3d at 1179. “‘In the absence of such a
statement, it is impossible for a reviewing court to determine whether the ultimate decision on the
merits of the claim is rational and supported by substantial evidence.’” Id. (quoting Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). Thus, an ALJ must “state with at least some
measure of clarity the grounds for his decision.” Id. (quoting Owens v. Heckler, 748 F.2d 1511,
1516 (11th Cir. 1984)).
The Court agrees with Plaintiff that the ALJ’s discussion of the opinions of Dr. Hatton and
Dr. DelBeato are cursory, especially considering being instructed to reconsider these opinions and
clearly articulate his reasoning for his assignment of weight to these opinions. For example,
although the ALJ accorded Dr. Hatton’s opinion some weight, it is unclear what effect, if any, this
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assessment had on the ALJ’s RFC assessment. Also, as found in the Remand Order (Tr. 528), the
ALJ again did not address Dr. DelBeato’s opinion that Plaintiff had a high risk to decompensate
in a work environment. In light of the Court’s remand for further consideration of Dr. Rodriguez’s
opinion, it is appropriate for the ALJ to also reconsider and adequately explain his reasoning for
his evaluations of the opinions of Dr. Hatton and Dr. DelBeato. Accordingly, as the ALJ did not
comply with the Appeals Council’s instructions on remand, Plaintiff’s first contention warrants
Date of Disability
Plaintiff alleged an onset date of July 5, 2009, but the ALJ determined that Plaintiff’s
disability began on April 29, 2014. (Tr. 382, 383.) The entirety of the ALJ’s decision centers on
his findings that Plaintiff was not disabled prior to April 29, 2014, but became disabled on April
29, 2014. (Tr. 391–93.) Plaintiff argues that the ALJ’s choosing April 29, 2014, as Plaintiff’s
disability onset date was arbitrary because substantial evidence does not show that Plaintiff’s
condition worsened on that date. (Dkt. 13 at 12.)
The ALJ found that Plaintiff’s allegations regarding her symptoms are generally credible
beginning on April 29, 2014. (Tr. 390.) The ALJ cited a consultative examination conducted on
April 29, 2014, by Dr. Thomas Antonek. (Tr. 390.) Dr. Antonek performed a mental status
examination of Plaintiff on April 29, 2014, at the request of the Florida Department of Health,
Division of Disability Determinations. (Tr. 725–28.) During Plaintiff’s evaluation, Dr. Antonek
noted that Plaintiff’s psychomotor movements were “hyperactive,” her mood and affect were
anxious, and that Plaintiff “did not appear to be malingering.” (Tr. 725.) Although he found
Plaintiff cooperative and compliant, she was “extremely anxious throughout the entire interview
and had to get up and walk around the office while being interviewed.” (Tr. 725.) In a mental
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status examination, Plaintiff was unable to spell the word “world” backwards, completed the serial
sevens correctly only once, was able to recall only one of three words after a short delay, and
confused her right and left hands. (Tr. 727.) Dr. Antonek concluded that Plaintiff had significant
memory problems that would interfere with her daily functioning. (Tr. 727.) More broadly, Dr.
Antonek concluded that Plaintiff’s symptoms “appear to be severely impacting activities of daily
living, vocational performance, and interpersonal functioning at this time.” (Tr. 728.) Also, he
found her emotional and psychological functioning poor. (Tr. 728.)
In evaluating Plaintiff’s RFC beginning on April 29, 2014, the ALJ also considered the
December 7, 2015, opinion of Dr. Harvey Spikol, in which Dr. Spikol found that Plaintiff had mild
limitations in performing activities of daily living, maintaining social functioning, and maintaining
concentration, persistence, or pace. (Tr. 390, 751.) The ALJ accorded this opinion some weight,
but found that “recent findings that the claimant was extremely anxious and experiencing
significant memory problems support greater limitations. Examinations after the alleged onset date
also support the alleged degree of [Plaintiff’s] limitations.” (Tr. 390.)
Plaintiff argues that “[w]hile the ALJ credited [Dr. Antonek’s] opinion and relied on it in
finding Plaintiff disabled as of April 29, 2014, there is no indication in Dr. Antonek’s opinion that
the limitations contained in his report began on this date, and the ALJ’s finding to the contrary is
patently unreasonable.” (Dkt. 13 at 13) (emphasis in original). Evidence before April 29, 2014,
Plaintiff argues, establishes Plaintiff’s disability, including the opinions of Dr. DelBeato, Dr.
Rodriguez, and Dr. Hatton. (Dkt. 13 at 13–14.) In sum, while Plaintiff agrees that Plaintiff was
disabled on and after April 29, 2014, she argues that the evidence supports a finding that she was
disabled since her alleged onset date of July 15, 2009. (Dkt. 13 at 14–15.)
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“In addition to determining that an individual is disabled, the decisionmaker must also
establish the onset date of disability.” Titles II & Xvi: Onset of Disability, SSR 83-20 (S.S.A.
1983).1 The onset date is “the first day an individual is disabled as defined in the Act and the
regulations,” and “[f]actors relevant to the determination of disability onset include the
individual’s allegation, the work history, and the medical evidence.” Id.
Although the ALJ appears to have chosen April 29, 2014 as Plaintiff’s disability onset date
because it is the date Dr. Antonek performed his evaluation, the ALJ does not provide reasoning
for this choice. The ALJ states, without citation, that “[e]xaminations on and after the established
onset date support that her mental impairments had worsened.” (Tr. 390.) The only examinations
conducted after the disability onset date that the ALJ cited were conducted by Dr. Antonek and
Dr. Manjusri Vennamaneni. (Tr. 390.)2 Dr. Antonek does not identify April 29, 2014 as the date
Plaintiff’s condition worsened; rather, Plaintiff reported to Dr. Antonek that her condition has
declined “over the course of the past 8 years.” (Tr. 726.) Dr. Vennamaneni treated Plaintiff on
July 17, 2015, for a foot injury after Plaintiff dropped a concrete bird bath on her left foot. (Tr.
734.) Plaintiff also reported that she is bipolar and reported feelings of sadness. (Tr. 734.) Dr.
Vennamaneni assessed Plaintiff’s mental status during the examination as follows: Plaintiff had a
normal attitude and affect but an abnormal mood and was at risk of suicide. (Tr. 736.) He therefore
referred Plaintiff to psychological counseling. (Tr. 734–37.)
Upon review of these examinations, there is nothing contained in them indicating that
Plaintiff’s condition worsened on April 29, 2014. Therefore, the Court cannot say that the ALJ’s
See Caces v. Comm’r of Soc. Sec., 560 F. App’x 936, 938 (11th Cir. 2014) (explaining that “[a]lthough Social
Security Rulings are not binding, we accord the rulings great respect and deference if the underlying statute is unclear
and the legislative history offers no guidance,” and that “Social Security Ruling 83–20 prescribes the policy and
procedure by which the Commissioner should determine the onset date of a disability”).
Dr. Spikol provided an opinion but did not examine Plaintiff. (See Tr. 750, Interrogatory 5.)
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onset date is supported by substantial evidence. See Baker v. Comm’r of Soc. Sec., 384 F. App’x
893, 896 (11th Cir. 2010) (“If an action is to be upheld, it must be upheld on the same bases
articulated in the agency’s order.”); Owens, 748 F.2d at 1516 (explaining that the courts’ “function
is to ensure that the [ALJ’s] decision was based on a reasonable and consistently applied standard,
and was carefully considered in light of all the relevant facts, and reasoning that “[b]ecause the
ALJ did not provide us with the information essential to such an evaluation, we reverse with
instructions to the district court to remand for further findings at the administrative hearing level”).
Accordingly, Plaintiff’s second contention warrants reversal.
At step three, in determining whether Plaintiff’s impairments met a Listing, the ALJ
concluded that Plaintiff has marked difficulties with regard to concentration, persistence, or pace.
(Tr. 385.) The ALJ erred, Plaintiff argues, by failing to account for this marked limitation in his
RFC assessment for prior to April 29, 2014. (Dkt. 13 at 17.)
“Agency regulations require the ALJ to use the ‘special technique’ dictated by the
[Psychiatric Review Technique Form] PRTF for evaluating mental impairments.” Moore v.
Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005); 20 C.F.R. § 404.1520a. Utilization of the special
technique requires separate evaluations concerning how the claimant’s mental impairment impacts
four functional areas: “activities of daily living; social functioning; concentration, persistence, or
pace; and episodes of decompensation.”
Moore, 405 F.3d at 1213–14; 20 C.F.R. §
404.1520a(c)(3). While the PRT and RFC are distinct analyses, “nothing precludes the ALJ from
considering the results of the former in his determination of the latter.” Winschel, 631 F.3d at 1180
(quoting Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004), and reasoning that “[w]hile
[Social Security Ruling] 96–8p does state that the [PRT] findings are ‘not an RFC assessment’ and
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that step four requires a ‘more detailed assessment,’ it does not follow that the findings on the
[PRT] play no role in steps four and five, and [Social Security Ruling] 96–8p contains no such
Thus, where the ALJ determines that a claimant’s mental impairments cause limitations in
maintaining concentration, persistence, and pace, “the ALJ should [ ] explicitly include the
limitation in his hypothetical question to the vocational expert,” unless the “medical evidence
demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite
limitations in concentration, persistence, and pace.” Winschel, 631 F.3d at 1180–81.
Here, after finding that Plaintiff has marked difficulties with concentration, persistence,
and pace (Tr. 385), the ALJ concluded that, prior to April 29, 2014, Plaintiff retained the RFC to
maintain attention and concentration for two hours before requiring a ten-minute break. (Tr. 386.)
Thus, the ALJ explicitly incorporated a concentration limitation into his RFC. See Jarrett v.
Comm’r of Soc. Sec., 422 F. App’x 869, 871–72, n.1 (11th Cir. 2011) (finding that the ALJ’s
hypothetical to the VE explicitly accounted for the claimant’s limitations in concentration,
persistence, and pace where “the ALJ stated explicitly in the hypothetical question that [claimant]
had a limitation in her ability to concentrate for more than brief periods of time”).
Further, “limiting the hypothetical questions to include only unskilled work sufficiently
accounts for the claimant’s limitations in maintaining his concentration, persistence, or pace where
the medical evidence demonstrates that the claimant can engage in simple, routine tasks or
unskilled work despite his limitations.” Jacobs v. Comm’r of Soc. Sec., 520 F. App’x 948, 950–
51 (11th Cir. 2013); Jarrett, 422 F. App’x at 872 (“[T]he ALJ’s restriction to simple instructions
and simple tasks in the first hypothetical question sufficiently accounted for [claimant’s]
limitations in concentration, persistence and pace because, despite these limitations, the medical
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evidence in the record demonstrated that [claimant] retained the ability to follow simple
instructions and complete simple tasks.”). Here, the ALJ found Plaintiff capable of performing
simple and repetitive tasks. (Tr. 386.) The ALJ supported this finding by citing the opinions of
Dr. Michael Stevens and Dr. B. Lee Hudson (Tr. 388), who both opined that Plaintiff is capable
of understanding, remembering, and carrying out short, simple instructions (Tr. 333–34, 495–97).
See Jacobs, 520 F. App’x at 951 (“The ALJ’s hypothetical questions to the vocational expert fully
accounted for [claimant’s] moderate difficulties in maintaining his concentration, persistence, or
pace by limiting him to one to three step non-complex tasks, consistent with the RFC
assessment.”). Upon review of the evidence, this finding is supported by substantial evidence.
Accordingly, contrary to Plaintiff’s assertion, the ALJ’s RFC assessment, for prior to April
29, 2014, properly accounted for Plaintiff’s limitations with maintaining concentration,
persistence, or pace.
As her final argument on appeal, Plaintiff argues that the ALJ failed to consider her work
history in assessing the credibility of Plaintiff’s allegations regarding the intensity, persistence,
and limiting effects of her symptoms before April 29, 2014. (Dkt. 13 at 19.) Plaintiff contends
that her lengthy and lucrative work history “argues against the possibility of malingering,” and
that this is a factor the ALJ should have considered in evaluating Plaintiff’s credibility. (Dkt. 13
at 19.) In response, Defendant argues that the ALJ’s decision demonstrates that he considered
Plaintiff’s work record and her testimony about her work history, and was not required to provide
any further articulation regarding Plaintiff’s work history in his credibility assessment. (Dkt. 14
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If an ALJ determines that the claimant’s medical condition could reasonably be expected
to produce the claimant’s pain or other symptoms, the ALJ must then evaluate the intensity and
persistence of the claimant’s symptoms, including pain, to determine their effect on the claimant’s
capacity to work. 20 C.F.R. § 404.1529(c)(1); Klawinski v. Comm’r of Soc. Sec., 391 F. App’x
772, 776–77 (11th Cir. 2010). The ALJ considers all available evidence, including objective
medical evidence, information about the claimant’s prior work record, statements from the
physicians and others, and medical opinions. 20 C.F.R. § 404.1529(c)(1)–(3). Additionally, the
ALJ considers (1) the claimant’s daily activities; (2) the location, duration, frequency, and intensity
of the claimant’s pain or other symptoms; (3) precipitating and aggravating factors; (4) the type,
dosage, effectiveness, and side effects of any medication the claimant took to alleviate pain or
other symptoms; (5) treatment the claimant received for relief of pain or other symptoms; and (6)
any measures the claimant personally used to relieve pain or other symptoms. Id. § 404.1529(c)(3).
The ALJ evaluates the credibility of the claimant’s testimony based on whether it is reasonably
consistent with this evidence. Id. § 404.1529(c)(4).
An ALJ’s determination of the credibility of a claimant’s testimony regarding his or her
symptoms is entitled to deference and a reviewing court will not disturb a clearly-articulated
credibility finding with substantial supporting evidence in the record. Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995). Thus, if an ALJ discredits a claimant’s testimony, the ALJ must
articulate, explicitly and adequately, reasons for not crediting the testimony. Holt v. Sullivan, 921
F.2d 1221, 1223–24 (11th Cir. 1991). “Implicit in this rule is the requirement that such articulation
of reasons . . . be supported by substantial evidence.” Hale v. Bowen, 831 F.2d 1007, 1012 (11th
Cir. 1987). Therefore, as the reviewing Court, “[t]he question is not . . . whether ALJ could have
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reasonably credited [claimant’s pain] testimony, but whether the ALJ was clearly wrong to
discredit it.” Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 938–39 (11th Cir. 2011).
While a claimant’s “prior work record” is a consideration in evaluating a claimant’s
credibility, 20 C.F.R. § 404.1529(c)(3), “the Eleventh Circuit has not had occasion to rule on the
issue” of whether an ALJ’s failure to consider a claimant’s “lengthy and consistent work record”
in evaluating a claimant’s credibility is erroneous. Lafond v. Comm’r of Soc. Sec., No. 6:14-CV1001-ORL-DAB, 2015 WL 4076943, at *9 (M.D. Fla. July 2, 2015). In support of her argument,
Plaintiff cites to non-binding decisions. (Dkt. 13 at 19) (citing Allen v. Califano, 613 F.2d 139
(6th Cir. 1980); Taybron v. Harris, 667 F.2d 412, 415 n.6 (3d Cir. 1981) (finding that a claimant’s
testimony about the claimant’s “work capabilities” should be accorded substantial credibility
“when the claimant has worked for a long period of time”); Rivera v. Schweiker, 717 F.2d 719,
725 (2d Cir. 1983) (“[A]ny evidence of a desire by [claimant] to work would merely emphasize
the positive value of his 32-year employment history. A claimant with a good work record is
entitled to substantial credibility when claiming an inability to work because of a disability.”); and
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)). Not only are these cases non-binding, it is
unclear how Allen or Polaski support Plaintiff’s argument. First, In Allen, the Sixth Circuit did
not examine the issue of an ALJ’s credibility assessment. Allen, 613 F.2d at 147. Rather, the Sixth
Circuit examined a physician’s statement that the claimant had a possible decline in her motivation.
Id. The ALJ concluded that this was not a basis to deny disability benefits because the claimant
“can hardly be faulted for accepting the medical advice which was available to her nor can she be
faulted for failure of the medical procedures and treatment to return her to a condition where she
can work without disabling pain.” Id. The ALJ considered that the claimant had a lucrative past
work, which would “normally supply motivation to return to work,” and she generally
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demonstrated “a considerable inclination toward employment.” Id. In Polaski, the Eight Circuit
agreed that a claimant’s prior work record is a factor in evaluating a claimant’s subjective
complaints. Polaski, 739 F.2d at 1322.
The ALJ concluded that Plaintiff’s statements about her symptoms prior to April 29, 2014,
were not fully credible. (Tr. 387, 389.) Although the ALJ did not expressly discuss Plaintiff’s
work history in assessing her statements regarding her symptoms, it is clear the ALJ reviewed and
considered statements regarding her prior work record. See Coleman v. Astrue, No. 8:11-CV1783-T-TGW, 2012 WL 3231074, at *5 (M.D. Fla. Aug. 6, 2012) (finding no error in the ALJ’s
credibility assessment because “[w]hile the law judge 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”).
First, the ALJ considered Plaintiff’s testimony that she
“previously worked as a successful car salesperson, but testified that she got to the point where
she could not remember what she was saying.” (Tr. 387.) Further, the ALJ considered reports
contained in medical opinions regarding Plaintiff’s past work (Tr. 387, 388–89): Plaintiff reported
to Dr. Hatton that she had to quit her job “because she was forgetting things and was having anxiety
attacks and she almost ran over a customer with a golf cart” (Tr. 312); Plaintiff reported to Dr.
DelBeato that “[s]he last worked in 2008” at which time “she reports she ‘lost it’ at work and
struck a customer with a golf cart” (Tr. 347); Dr. Stevens stated that his review of Plaintiff’s record
showed that Plaintiff was fired in July 2009 for “not selling enough cars due to poor economy,”
but was currently working two days a week with the hopes of working full-time when the economy
improves (Tr. 331); and Plaintiff reported to NP Reif that she was fired from her job because she
“backed into planter at work, was not functioning,” but, after resuming her medications, was rehired by her employer (Tr. 298).
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Further, in reaching his credibility determination, the ALJ appropriately considered
Plaintiff’s daily activities of being able to drive, go shopping, and do some household cleaning
(Tr. 389), treatment notes showing that Plaintiff’s symptoms improved when she resumed taking
her medications after going “cold turkey” (Tr. 298, 387), and opinion evidence (Tr. 387–89). See
20 C.F.R. § 404.1529(c). Therefore, the ALJ considered the appropriate evidence in reaching his
conclusion about the credibility of Plaintiff’s statements about her symptoms’ intensity,
persistence, and limiting effects. This conclusion was adequately explained and supported by
substantial evidence. Accordingly, Plaintiff’s final contention does not warrant reversal.
Accordingly, after due consideration and for the foregoing reasons, it is
The decision of the Commissioner is REVERSED in part and the case is
REMANDED under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with
The Clerk of the Court is directed to enter judgment consistent with this Order.
DONE and ORDERED in Tampa, Florida, on August 7, 2017.
Copies furnished to:
Counsel of Record
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