Moon v. Commissioner of Social Security

Filing 29

OPINION AND ORDER affirming decision of the Commissioner. The Clerk is directed to enter final judgment in favor of Defendant and close the case. Signed by Magistrate Judge Sean P. Flynn on 9/9/2021. (CKR)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANDREA MOON,
Plaintiff,
v.

Case No. 8:20-cv-1060-SPF

KILOLO KIJAKAZI,
Commissioner of the Social
Security Administration, 1
Defendant.
/
ORDER
Plaintiff seeks judicial review of the denial of her claim for a period of disability,
disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). As the
Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and
employed proper legal standards, the Commissioner’s decision is affirmed.
I.

Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 106, 131,
306-21). The Commissioner denied Plaintiff’s claims both initially and upon
reconsideration (Tr. 106, 131, 204-05, 206-33). Plaintiff then requested an administrative
hearing (Tr. 106, 131, 258-59). Per Plaintiff’s request, the ALJ held a hearing at which
Plaintiff appeared and testified (Tr. 106, 128-73). Following the hearing, the ALJ issued

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021, and
is substituted as Defendant in this suit pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure.
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an unfavorable decision finding Plaintiff not disabled and accordingly denied Plaintiff’s
claims for benefits (Tr. 103-23). Subsequently, Plaintiff requested review from the Appeals
Council, which the Appeals Council denied (Tr. 1-7). Plaintiff then timely filed a
complaint with this Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §§
405(g), 1383(c)(3).
II.

Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1989, claimed disability beginning October 26, 2016 (Tr.
108, 116). Plaintiff obtained at least a high school education (Tr. 116, 138). Plaintiff’s
past relevant work experience included work as a developmentally disabled aid and a
waitress (Tr. 116, 166-67). Plaintiff alleged disability due to agoraphobia, panic disorder,
heart problems, major depressive disorder, personality, generalized anxiety disorder,
social phobia, insomnia (Tr. 174-75).
In rendering the administrative decision, the ALJ concluded that Plaintiff met the
insured status requirements through December 31, 2021 and had not engaged in
substantial gainful activity since October 26, 2016, the alleged onset date (Tr. 108). After
conducting a hearing and reviewing the evidence of record, the ALJ determined Plaintiff
had the following severe impairments: palpitations/supraventricular tachycardia; obesity;
depression/bipolar disorder; anxiety; and attention deficit hyperactivity disorder (Tr.
108). Notwithstanding the noted impairments, the ALJ determined 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. 109). The ALJ then
concluded that Plaintiff retained a residual functional capacity (“RFC”) to perform a full

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range of work at all exertional levels, though she must avoid requirements of physical
activity that elevate the heart rate (i.e., no running, no more than occasional climbing,
avoiding concentrated exposure to temperature extremes, no working in confined spaces,
no use of a respirator, etc.); can occasionally interact with supervisors, coworkers, and the
general public; is limited to a work setting that is low-stress, which is defined as work
contemplating only infrequent workplace changes that are gradually introduced, where
others are not reliant on the claimant to perform their work (such as no tandem tasks or
assembly-line type environments), with little decision-making required and where conflict
with others is not the primary function of the job (Tr. 110). 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 these symptoms were not entirely consistent with the
medical evidence and other evidence (Tr. 111).
Considering Plaintiff’s noted impairments and the assessment of a vocational
expert (“VE”), however, the ALJ determined Plaintiff could not perform any past relevant
work (Tr. 116). Given Plaintiff’s background and RFC, the VE testified that Plaintiff
could perform other jobs existing in significant numbers in the national economy, such as
a bagger, order selector, and production/inspection (final inspector) (Tr. 116-17).
Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the
testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 117).

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III.

Legal Standard

To be entitled to benefits, a claimant must be disabled, meaning he or she must be
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death, or
which has lasted or can be expected to last for a continuous period of not less than 12
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, which 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.
§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential
review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this
process, the ALJ must determine, in sequence, the following: whether the claimant is
currently engaged in substantial gainful activity; whether the claimant has a severe
impairment, i.e., one that significantly limits the ability to perform work-related functions;
whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404
Subpart P, Appendix 1; and 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 his or her age, education, and work experience. 20 C.F.R.

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§§ 404.1520(a), 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. §§ 404.1520(g),
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), 1383(c)(3). 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) (internal quotation marks omitted)); 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) (citations
omitted).
In reviewing the Commissioner’s decision, the court may not re-weigh 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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IV.

Analysis

Plaintiff argues here that the ALJ erred in his evaluation of the duration of
Plaintiff’s interstitial cystitis and that the Appeals Council erred when it declined to find
Plaintiff’s additional evidence material. For the reasons that follow, the ALJ applied the
correct legal standards, and the ALJ’s decision is supported by substantial evidence.
A. Whether the ALJ erred in his evaluation of the duration of claimant’s
interstitial cystitis condition
An impairment must be severe for at least 12 consecutive months to be considered
a severe impairment at step two of the sequential evaluation process. 20 C.F.R. §§
404.1505(a), 404.1509, 404.1520(a)(4)(ii), 416.905(a), 416.909, 416.920(a)(4)(ii); Barnhart
v. Walton, 535 U.S. 212, 218-19 (2002) (“[T]he statute [42 U.S.C. § 423(d)(1)(A)], in the
two provisions, specifies that the ‘impairment’ must last 12 months and also be severe
enough to prevent the claimant from engaging in virtually any ‘substantial gainful work.’
The statute, we concede, nowhere explicitly says that the ‘impairment’ must be that severe
(i.e., severe enough to prevent ‘substantial gainful work’) for 12 months. But that is a fair
inference from the language.”).

Plaintiff bears the burden of establishing that an

impairment is severe. O’Beir v. Comm’r of Soc. Sec. Admin., 338 F. App’x 796, 798 (11th
Cir. 2009) 2 (per curiam); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001); see also
Casady v. Astrue, No. 2:08CV103-SRW, 2009 WL 3109938, at *3 (M.D. Ala. Sept. 24,
2009) (burden of proving a severe impairment or combination of impairments is twofold—

Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
2

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proof that the impairment significantly limits claimant’s ability to do basic work activities
and lasted for a continuous period of at least 12 months).
Here, the ALJ stated that, in analyzing Plaintiff’s interstitial cystitis, he considered
the guidance outlined in Social Security Ruling (“SSR”) 15-1p, “Evaluating Cases
Involving Interstitial Cystitis (IC),” 2015 WL 1292257 (Mar. 18, 2015), but found that
Plaintiff’s treatment for this condition “has not stretched for a period of 12 months” (Tr.
113). The ALJ continued his analysis of Plaintiff’s interstitial cystitis as follows:
While the claimant has alleged she has suffered from this condition for two
years, she has not shown how the medical evidence supports such a
contention. For that matter, when she was receiving urological care in the
summer of 2018, the evidence reveals only “mild” to “moderate” pain, with
little urinary urgency [Tr. 838]. Nevertheless, because the regulations at 20
CFR 404.1545(e) and 416.945(e) require adjudicators to consider both
severe and nonsevere impairments in formulating the residual functional
capacity, this analysis encompasses a consideration of all medically
determinable impairments, severe and nonsevere.
Tr. 113-14.
Plaintiff argues that “[a]ssuming the Administrative Law Judge decision was
correct in that as of the date of the Administrative Law Judge decision, the claimant’s
interstitial cystitis condition had not lasted at a severe level for 12 continuous months, the
decision did not address whether the condition was expected to last for 12 continuous
months” (Doc. 28 at 8). It is the claimant’s burden, however, not the ALJ’s, to establish
that the condition was expected to last for 12 continuous months. See O’Beir, 338 F. App’x
at 798; Doughty, 245 F.3d at 1278. Here, Plaintiff does not point to any evidence or argue
that she otherwise established that her condition was expected to last for 12 continuous
months; nor has she cited to any caselaw or authority for the proposition that an ALJ

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must, in the circumstances presented here, address whether a condition is expected to last
for 12 continuous months. 3 As such, Plaintiff’s argument is unsupported and unavailing,
and the Court additionally finds that the ALJ’s decision was supported by substantial
evidence.
B. Whether the Appeals Council erred when it declined to find
Plaintiff’s additional evidence material
If a claimant is dissatisfied with a hearing decision, the claimant may request that
the Appeals Council review the action. 20 C.F.R. §§ 404.967, 416.1467. When a claimant
appeals an ALJ’s decision to the Appeals Council, “[t]he Appeals Council must consider
new, material, and chronologically relevant evidence and must review the case if the
administrative law judge’s action, findings, or conclusion is contrary to the weight of the
evidence currently of record.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261
(11th Cir. 2007) (internal quotation and citation omitted); see 20 C.F.R. §§ 404.970(a)(5),
416.1470(a)(5) (“The Appeals Council will review a case at a party’s request or on its own
motion if … the Appeals Council receives additional evidence that is new, material, and
relates to the period on or before the date of the hearing decision, and there is a reasonable
probability that the additional evidence would change the outcome of the decision.”).
As recognized by the Eleventh Circuit, medical opinions based on treatment or
evaluations occurring after the date of the ALJ’s decision may be considered
chronologically relevant where the opinions relate back to the date of the ALJ’s decision.
Issues raised in a perfunctory manner, without supporting arguments and citation to
authorities, as is the case here, are generally deemed to be waived. See N.L.R.B. v. McClain
of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998)); Jackson v. Soc. Sec. Admin., Comm’r, 779
F. App’x 681, 684 (11th Cir. 2019) (per curiam).
3

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Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1322-23 (11th Cir. 2015) (per
curiam) (citations omitted). The Eleventh Circuit has, however, consistently concluded
that the failure by a physician to review past medical records from the period prior to the
ALJ’s decision weighs against a finding that such physician’s opinion issued after an
ALJ’s decision is chronologically relevant. See, e.g., Hargress v. Soc. Sec. Admin., Comm’r,
883 F.3d 1302, 1309-10 (11th Cir. 2018) (per curiam); Horowitz v. Comm’r of Soc. Sec., 688
F. App’x 855, 864 (11th Cir. 2017) (per curiam); Stone v. Soc. Sec. Admin., 658 F. App’x
551, 553-54 (11th Cir. 2016) (per curiam).
After the ALJ’s decision on May 30, 2019, Plaintiff was seen at Florida Urology
Partners on August 8, 2019, August 28, 2019, October 7, 2019, and November 20, 2019
(Tr. 23-35). The Appeals Council considered this evidence and declined review because
the additional evidence did not relate to the period at issue and, therefore, did not affect
the decision about claimant’s disability beginning on or before the ALJ’s decision on May
30, 2019 (Tr. 2).
Without citation to any supporting authority, 4 Plaintiff argues that although the
treatment notes submitted to the Appeals Council pertain to a time period after the ALJ’s
decision, they show that the claimant’s condition did in fact last at a severe level for 12
continuous months, i.e., since August 2018 5 (Doc. 28 at 10-11). Although Plaintiff offers
no explanation or argument as to how the records that post-date the ALJ’s decision relate
See N.L.R.B., 138 F.3d at 1422 (“Issues raised in a perfunctory manner, without
supporting arguments and citation to authorities, are generally deemed to be waived.”);
Jackson, 779 F. App’x at 684.
5
Plaintiff states that “[b]y August 22, 2018, the claimant’s interstitial cystitis condition
appeared to be more problematic” (Doc. 28 at 7 (citing Tr. 831)).
4

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to the relevant period prior to the ALJ’s decision, Plaintiff contends that the Appeals
Council erred by failing to remand due to this new and material evidence (Doc. 28 at 8).
A review of the evidence submitted to the Appeals Council, however, reveals that
the evidence was not chronologically relevant as it did not relate to the period on or before
the date of the ALJ’s hearing decision. 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5).
Nothing in the new evidence indicates that those medical providers considered Plaintiff’s
past medical records or that the information in the new records pertained to the period at
issue. See Hargress, 883 F.3d at 1309-10. Moreover, the new records do not indicate that
Plaintiff had disabling limitations beyond the ALJ’s RFC determination on or before the
date of the ALJ’s decision (Tr. 23-35). Consequently, the Court finds that Plaintiff’s
argument on this basis fails, and the Appeals Council’s decision to deny review is
supported by substantial evidence in the record.
V.

Conclusion

Accordingly, after consideration, it is hereby
ORDERED:
1. The decision of the Commissioner is affirmed.
2. The Clerk is directed to enter final judgment in favor of the Commissioner and
close the case.
ORDERED in Tampa, Florida, on this 9th day of September 2021.

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