Mayor v. Commissioner of Social Security

Filing 19

ORDER remanding the Commissioner's decision. The Clerk is directed to enter final judgment in Ms. Mayor's favor and close the case. Signed by Magistrate Judge Amanda Arnold Sansone on 8/2/2019. (DMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SHERI MAYOR,
Plaintiff,
v.

Case No. 8:18-cv-978-T-AAS

ANDREW SAUL,
Commissioner,
Social Security Administration,1
Defendant.
______________________________________/
ORDER
Sheri Mayor seeks judicial review of a decision by the Commissioner of
Social Security (Commissioner) denying her claim for disability insurance
benefits (DIB) under the Social Security Act, 42 U.S.C. Section 405(g). After
reviewing the record, including a transcript of the proceedings before the
Administrative Law Judge (ALJ), administrative record, pleadings, and joint
memorandum

the parties

submitted,

the Commissioner’s

decision

is

REMANDED for further consideration consistent with this order.

1

On June 17, 2019, Andrew Saul became Commissioner of the Social Security
Administration. Consistent with Federal Rule of Civil Procedure 25(d), Mr. Saul is
substituted as a party in Nancy Berryhill’s place.
1

I.

PROCEDURAL HISTORY
Ms. Mayor applied for DIB benefits because of a disability she claims

began on October 1, 2014. (Tr. 174–77). Disability examiners denied Ms.
Mayor’s application initially and after reconsideration.

(Tr. 61–70, 73–86).

Ms. Mayor then requested a hearing before an ALJ, who found Ms. Mayor not
disabled. (Tr. 16–22, 101–02).
The Appeals Council denied Ms. Mayor’s request for review of the ALJ’s
decision; so, the ALJ’s decision became the final decision of the Commissioner.
(Tr. 1–6). Ms. Mayor seeks judicial review of the Commissioner’s final decision.
(Doc. 1).
II.

NATURE OF DISABILITY CLAIM
A.

Background

Ms. Mayor was forty-six years old when she submitted her DIB
application, and she was forty-eight years old when the ALJ held the hearing.
(Tr. 33, 174). Ms. Mayor has some college education, including a medicalassisting degree. (Tr. 33). She has past relevant work as an investigator,
instructor, and medical assistant. (Tr. 56). She claimed disability because of
“severe cervical spinal stenosis” and severe migraines. (Tr. 61).

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B.

Summary of the ALJ’s Decision

The ALJ must follow five steps when evaluating a claim for disability. 2
20 C.F.R. § 404.1520(a). First, if a claimant is engaged in substantial gainful
activity,3 she is not disabled.

§ 404.1520(b).

Second, if a claimant has no

impairment or combination of impairments that significantly limit her
physical or mental ability to perform basic work activities, then she has no
severe impairment and is not disabled. § 404.1520(c); see McDaniel v. Bowen,
800 F.2d 1026, 1031 (11th Cir. 1986) (stating step two acts as a filter and
“allows only claims based on the most trivial impairments to be rejected”).
Third, if a claimant’s impairments fail to meet or equal an impairment
included in the Listings, she is not disabled. § 404.1520(d); 20 C.F.R. pt. 404,
subpt. P, app. 1. Fourth, if a claimant’s impairments do not prevent her from
performing past relevant work, she is not disabled. 20 C.F.R. § 404.1520(e).
At this fourth step, the ALJ determines the claimant’s residual functional
capacity (RFC).4 Fifth, if a claimant’s impairments (considering her RFC, age,

2

If the ALJ determines that the claimant is under a disability at any step of the
sequential analysis, the analysis ends. 20 C.F.R. § 404.1520(a)(4).
3

Substantial gainful activity is paid work that requires significant physical or
mental activity. § 404.1572.
4

A claimant’s RFC is the level of physical and mental work she can consistently
perform despite her limitations. § 404.1545.
3

education, and past work) do not prevent her from performing other work that
exists in the national economy, then she is not disabled. § 404.1520(g).
Here, the ALJ determined Ms. Mayor engaged in no substantial gainful
activity since her alleged onset date. (Tr. 18). The ALJ found Ms. Mayor has
a severe impairment: degenerative disc disease. (Id.). Nonetheless, the ALJ
found Ms. Mayor has no impairment that meets or medically equals the
severity of an impairment included in the Listings. (Tr. 19) (citations omitted).
The ALJ then found Ms. Mayor has the RFC to perform sedentary work,
which includes the following abilities:
[T]he ability to lift and/or carry 10 pounds occasionally and
frequently and stand and/or walk 3 hours and sit 6 hours in an 8hour workday. She may occasionally climb ramps/stairs, climb
ladders/ropes/scaffolds, balance, stoop, kneel, crouch and crawl.
Finally, [Ms. Mayor] must avoid concentrated exposure to heat,
cold, vibration and hazards and is limited to only frequent
handling and fingering with both hands.
(Tr. 19) (citation omitted). Based on these findings, the ALJ determined Ms.
Mayor could perform her past relevant work as an investigator. (Tr. 22). The
ALJ therefore found Ms. Mayor not disabled from her alleged onset date
through the date of the ALJ’s decision (July 6, 2017). (Tr. 22).
III.

ANALYSIS
A.

Standard of Review

Review of the ALJ’s decision is limited to determining whether the ALJ
applied correct legal standards and whether substantial evidence supports his
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findings.

McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988);

Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is more
than a mere scintilla but less than a preponderance. Dale v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (citation omitted). In other words, there must
be sufficient evidence for a reasonable person to accept as enough to support
the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citations
omitted).
A reviewing court must affirm a decision supported by substantial
evidence “even if the proof preponderates against it.” Phillips v. Barnhart, 357
F.3d 1232, 1240 n.8 (11th Cir. 2004) (citations omitted). The court must not
make new factual determinations, reweigh evidence, or substitute its judgment
for the Commissioner’s decision. Id. at 1240 (citation omitted). Instead, the
court must view the whole record, considering evidence favorable and
unfavorable to the Commissioner’s decision. Foote, 67 F.3d at 1560; see also
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citation omitted)
(stating that the reviewing court must scrutinize the entire record to determine
the reasonableness of the Commissioner’s factual determinations).
B.

Issues on Appeal

Ms. Mayor argues the court should remand the ALJ’s decision for four
reasons.

(Doc. 18, pp. 20–39).

First, she argues the ALJ erred when

determining Ms. Mayor’s RFC. (Id. at 20–26). Second, Ms. Mayor argues the
5

ALJ’s hypothetical questions to the vocational expert (VE) at the hearing were
erroneous. (Doc. 18, pp. 27–29). Third, Ms. Mayor argues the ALJ erred when
he considered the opinion from Dr. Bryan Thomas, the consultative examiner.
(Id. at 30–33). Fourth, Ms. Mayor argues the ALJ erred when he considered
Ms. Mayor’s statements about the severity of her impairments. (Id. at 35–37).
This order will address Ms. Mayor’s arguments in turn—but in a different
order.
1.

Dr. Thomas’s Opinion

Ms. Mayor argues the ALJ improperly considered Dr. Thomas’s report.
(Id. at 30–33). Ms. Mayor alleges the ALJ’s brief discussion of Dr. Thomas’s
report “does not provide the necessary analysis with [the] particularity
required” to constitute substantial evidence.

(Id. at 31).

Ms. Mayor also

asserts the ALJ did not adequately explain his reasoning for both why he
neglected to include such limitations and why he only granted “limited weight”
to Dr. Thomas’s report. (Id.). Ms. Mayor argues the ALJ therefore lacked
substantial evidence to reject portions of Dr. Thomas’s assessment. (Id. at 30).
The Commissioner argues substantial evidence exists to support the
ALJ’s decision to grant limited weight to Dr. Thomas’s opinion and include only
some of the limitations found by Dr. Thomas.

(Id. at 33–35).

The

Commissioner argues the ALJ did not grant great weight to Dr. Thomas’s
assessment because his opinion of Ms. Mayor’s limitations exceeded those
6

included in the record evidence. (Doc. 18, p. 34). The Commissioner asserts
the ALJ need not give great weight to a doctor’s opinion concerning a claimant’s
RFC. (Id.).

The Commissioner therefore argues the ALJ had substantial

evidence to give only some weight to Dr. Thomas’s opinion and Dr. Thomas’s
assessment of Ms. Mayor’s RFC. (Id. at 35).
The ALJ must state with particularity the weight given to different
medical opinions and his reasons for doing so. Sharfarz v. Bowen, 825 F.2d
278, 279 (11th Cir. 1987). The ALJ may reject any medical opinion if evidence
supports a contrary finding, but he must still articulate reasons for assigning
little weight. Caulder v. Bowen, 791 F.2d 872, 880 (11th Cir. 1986). Provided
his decision does not broadly reject a claim for Social Security benefits, the ALJ
need not refer to every piece of evidence. Mitchell v. Comm’r of Soc. Sec., 771
F.3d 780, 782 (11th Cir. 2014). Although it is unnecessary to refer to every
piece of evidence, the ALJ must consider all available evidence and articulate
the weight given to probative evidence. Id.; Cowart v. Schweiker, 662 F.2d 731,
735 (11th Cir. 1981).
Here, substantial evidence exists to support granting only some weight
to Dr. Thomas’s consultative examination. Among other things, Dr. Thomas’s
RFC assessment found Ms. Mayor could lift or carry up to ten pounds
occasionally; sit and stand for three hours in an eight-hour workday; and had

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various manipulative, postural, and environmental limitations, like never
reaching overhead or climbing ladders. (Tr. 943–56).
The ALJ granted some weight to Dr. Thomas’s assessment and included
some of the limitations listed in his assessment. (Tr. 21). For example, the
ALJ found Ms. Mayor could lift or carry up to ten pounds occasionally and
frequently. (Tr. 19). But the ALJ also found Ms. Mayor could sit for six hours
instead of three hours and that Ms. Mayor could stand and walk for three hours
during an eight-hour workday without further limitations. (Id.). The ALJ also
found various other manipulative, postural, and environmental limitations,
most of which follow Dr. Thomas’s assessment. (Id.).
The ALJ had substantial evidence to support his decision to grant only
some weight to Dr. Thomas’s assessment. The ALJ found narrower limitations
than those in Dr. Thomas’s assessment because the ALJ found Dr. Thomas’s
opined limitations were broader than what could be justified through the
“objective findings in evidence, including from Dr. Thomas’s own examination.”
(Id.). For example, the ALJ noted that, while Dr. Thomas’s opinion evidence
asserts Ms. Mayor can lift and carry ten pounds only occasionally, a pain
management report taken three months Dr. Thomas’s examination of Ms.
Mayor found “normal bulk, tone, gait, station, and coordination.” (Tr. 21, 918).
Additionally, Dr. Thomas’s examination itself found Ms. Mayor retains five out

8

of five muscle strength in every muscle group except hand grip, where she
scored a four out of five. (Tr. 945–47).
ALJs are expressly tasked with measuring the consistency of a medical
opinion “with the record as a whole.”

20 C.F.R. § 404.1527(c)(4).

Here,

substantial evidence exists to support the ALJ’s finding that Dr. Thomas’s
opinion was inconsistent with the objective findings in evidence. Therefore, the
ALJ had substantial evidence to support granting Dr. Thomas’s assessment
some weight.
2.

RFC Determination

Ms. Mayor argues the ALJ’s RFC determination was not supported by
substantial evidence. (Doc. 18, pp. 20–26). Ms. Mayor alleges the ALJ failed
to properly consider her headaches and the side effects of her medications. (Id.
at 21–22). Additionally, Ms. Mayor argues the ALJ incorrectly dismissed as
“non-medically

determinable”

her

immunodeficiency,

recurring

scalp

abscesses, and fibromyalgia. (Id. at 22). Ms. Mayor argues the ALJ’s improper
consideration of her combination of impairments resulted in an improper RFC
determination. (Id. at 21).
The Commissioner argues the ALJ properly considered the combination
of Ms. Mayor’s impairments. (Id. at 26–27). The Commissioner argues the
ALJ properly considered Ms. Mayor’s recurring scalp abscesses because
nothing in the record shows physical symptoms or limitations resulting from
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abscesses.

(Doc. 18, p. 27).

The Commissioner asserts the ALJ properly

determined that Ms. Mayor’s alleged fibromyalgia and immunodeficiency were
non-medically determinable because Ms. Mayor “was not formally diagnosed”
with either condition. (Id.). The Commissioner argues the ALJ therefore had
substantial evidence to find the conditions did not introduce “disabling or
additional limitations on her ability to work” that would render the RFC
determination inaccurate. (Id.).
At step four of the sequential evaluation, the ALJ determines the
claimant’s RFC. 20 C.F.R. § 404.1520(e). A claimant’s RFC is the most she
can perform in a work setting despite her impairments. § 404.1545; Phillips,
357 F.3d at 1238. The ALJ must determine the claimant’s RFC using all
relevant medical and other evidence. Phillips, 357 F.3d at 1238. Substantial
evidence must support the ALJ’s RFC determination. Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004); Moore v. Barnhart, 405 F.3d
1208, 1213 (11th Cir. 2005).
The ALJ properly considered the medical records concerning Ms. Mayor’s
alleged fibromyalgia and immunodeficiency. While medical records mention
both disorders, most medical records are silent on these alleged conditions. (Tr.
544, 682–83, 866, 871–72). For example, Dr. Weisman’s pain management
assessments contain no references to a formal diagnosis of fibromyalgia or
immunodeficiency. (Tr. 376–97, 456–81, 559–46, 684–51, 915–27). Therefore,
10

the ALJ properly considered the evidence regarding Ms. Mayor’s alleged
fibromyalgia and immunodeficiency.
With respect to Ms. Mayor’s headaches, the ALJ erred in stating that
Ms. Mayor’s headaches are “rarely shown in treatment notes, which would be
expected given their severity.”

(Tr. 20).

The record contains consistent

documentation of alleged and treated headaches.
Ms. Mayor first met with her pain management physician Dr. Neil
Weisman on August 24, 2014. (Tr. 387). Ms. Mayor was prescribed tizanidine
for her headaches by Dr. Weisman on April 1, 2015. (Tr. 630–32). On January
27, 2016, Dr. Weisman increased the dosage of a different medication Ms.
Mayor was taking (topiramate) to aid in reducing the symptoms of her
headaches. (Tr. 733–34). On August 4, 2016, Ms. Mayor’s dosage of tizanidine
was increased from one to two tabs every day. (Tr. 687). On September 27,
2016, Dr. Weisman replaced her tizanidine with ondansetron. (Tr. 924–26).
The last records available from Dr. Weisman from December 14, 2016,
show Ms. Mayor was taking these medications. (Tr. 915–16). Dr. Weisman’s
assessment plans for Ms. Mayor show consistent complaints and treatment of
severe headaches and migraines. (Tr. 596–632, 684–751, 915–27). The ALJ’s
dismissal of the issue as “rarely shown in treatment notes” is unsupported by
the medical records. (Tr. 20).

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Review of the record evidence shows the ALJ erred when he determined
that evidence of Ms. Mayor’s alleged headaches is “rarely shown in treatment
notes.” On remand, the ALJ must properly consider treatment notes
concerning Ms. Mayor’s headaches and determine whether the headaches
constitute severe impairments.
3.

Hypotheticals to the VE

Ms. Mayor argues the ALJ’s hypotheticals to the VE were based on an
erroneous RFC determination. (Doc. 18, pp. 27–29). The Commissioner argues
the ALJ’s RFC determination was accurate and the ALJ properly considered
the evidence relevant to Ms. Mayor’s RFC determination. (Id. at 30).
At step five of the sequential evaluation process, the ALJ determines if
the claimant can adjust to other work in the economy.

20 C.F.R. §

404.1520(a)(4)(v). At this step, the Commissioner has the burden to show the
claimant can perform other work available in significant numbers in the
national economy. Id.; Phillips, 357 F.3d at 1239.
To determine whether the claimant can perform other work, the ALJ
may consider the testimony of a VE who offers evidence based on his or her
expertise concerning the physical and mental demands of available work.
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). The VE may offer
testimony in response to a hypothetical question about whether a person with
the claimant’s medical impairments can adjust to any other work in the
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national economy. Phillips, 357 F.3d at 1240. The hypothetical question must
incorporate the ALJ’s RFC determination. § 404.1560(c). Substantial evidence
supports the ALJ’s decision concerning the claimant’s ability to perform other
jobs in the national economy when his decision is based significantly on expert
testimony concerning the availability of jobs for a person with the claimant’s
educational level, work skills, experience and physical limitations. Brenem v.
Harris, 621 F.2d 688, 690 (5th Cir. 1980).5
For the VE’s testimony
hypothetical

question

to constitute

she answers

must

substantial
include

evidence, the

all the

claimant’s

impairments. Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). The ALJ’s
hypothetical questions to the VE must therefore comprehensively describe the
claimant’s impairments. Pendley v. Heckler, 767 F.2d 1561, 1562 (11th Cir.
1985).
Here, because the ALJ failed to properly consider the medical evidence
regarding Ms. Mayor’s headaches, the ALJ did not include the headaches in
his hypotheticals to the VE. Upon remand, if the ALJ determines Ms. Mayor’s
headaches constitute a severe impairment, the ALJ should include the
impairment in his hypotheticals to the VE. Any revised hypotheticals might
result in the VE determining Ms. Mayor’s headaches prevent her from

5

The former Fifth Circuit’s decisions are binding precedent. Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
13

conducting her prior work as an investigator. Accordingly, remand is necessary
on this issue as well.
4.

Ms. Mayor’s Statements about the Severity of her
Impairments

Ms. Mayor argues the ALJ erred when he found Ms. Mayor’s statements
about the severity of her impairments not entirely consistent with medical
evidence. (Doc. 18, pp. 35–37). Ms. Mayor argues medical records support her
complaints about the severity of her headaches and the side effects of her
medication. (Id. at 36).
The Commissioner argues the ALJ properly considered Ms. Mayor’s
subjective statements of pain.

(Id. at 37–38).

The Commissioner asserts

substantial evidence supports the ALJ’s determination that the intensity,
persistence, and limitations of her symptoms were inconsistent with her
medical records. (Id. at 37).
To establish disability based on testimony about pain and other
symptoms, the claimant must show the following: “(1) evidence of an
underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively
determined condition can reasonably be expected to give rise to the claimed
pain.”

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citation

omitted). If the ALJ rejects subjective testimony, she must provide adequate

14

reasons for doing so. Wilson, 284 F.3d at 1225 (citation omitted). The ALJ
may reject testimony about subjective complaints, but that rejection must be
based on substantial evidence. Marbury v. Sullivan, 957 F.2d 837, 839 (11th
Cir. 1992).
At the hearing before the ALJ, Ms. Mayor testified that she could not
work partially because of her headaches. (Tr. 40, 49). The ALJ found Ms.
Mayor’s testimony not entirely consistent with medical evidence. (Tr. 20). But,
the ALJ inaccurately concluded that evidence about Ms. Mayor’s headaches
are “rarely shown in treatment notes.” (Id.). Section III(B)(2) explains how
evidence of Ms. Mayor’s headaches is consistently shown in medical records.
Therefore, on remand, the ALJ must reconsider Ms. Mayor’s statements about
the severity of her impairments in light of medical records documenting her
headaches.
IV.

CONCLUSION
Substantial evidence supports the ALJ’s decision to assign some weight

to Dr. Thomas’s opinion. But the ALJ incorrectly concluded that evidence
about Ms. Mayor’s headaches are “rarely shown in treatment notes.”

The

Commissioner’s decision is therefore REMANDED for further consideration
consistent with this order, and the case is DISMISSED. The Clerk of Court
must enter final judgment for Ms. Mayor consistent with 42 U.S.C. Section
405(g).
15

ORDERED in Tampa, Florida, on August 2, 2019.

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