JOHNSON v COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

Filing 21

MEMORANDUM OPINION AND ORDER - Pursuant to 42 U.S.C § 405(g), the decision of the Commissioner to deny Plaintiff's application for Supplemental Security Income benefits is AFFIRMED. The Clerk shall enter judgment for Defendant. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 12/5/17. (ckm)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
SYLVIA JOHNSON,
Plaintiff,
vs.

Case No. 1:17cv123-CAS

NANCY A. BERRYHILL, Acting
Commissioner of the Social
Security Administration,
Defendant.
/
MEMORANDUM OPINION AND ORDER
This Social Security case was referred to the undersigned upon
consent of the parties by United States District Judge Mark E. Walker.
ECF No. 16, 17. It is now before the Court pursuant to 42 U.S.C. § 405(g)
for review of the final determination of the Acting Commissioner
(Commissioner) of the Social Security Administration denying Plaintiff’s
application for Supplemental Security Income (SSI) pursuant to Title XVI of
the Social Security Act. See ECF No. 1. After careful consideration of the
record, the decision of the Commissioner is affirmed.

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I. Procedural History and Facts
Plaintiff filed an application for Supplemental Security Income (SSI)
on December 31, 2012, alleging a disability beginning on September 7,
2010. Tr. 37, 165-71.1 The application was denied initially on March 22,
2013, Tr. 119-24, and again on reconsideration on July 3, 2013. Tr. 13034. A hearing was requested and a video hearing was held on February
18, 2015, before administrative law judge (ALJ) William H. Greer at which
Plaintiff appeared pro se. Tr. 54-69. Although informed of her right to
representation, Plaintiff chose to appear and testify without the assistance
of counsel or other representative. Tr. 163. Impartial vocational expert
Jackson C. McKay also testified. Tr. 66-68.
On May 18, 2015, a decision was entered denying Plaintiff’s
application. Tr. 37-48. Plaintiff sought review in the Appeals Council,
which denied review on March 17, 2017. Tr. 1-4. Thus, the decision of the
ALJ became the final decision of the Acting Commissioner and is ripe for
review. Accordingly, Plaintiff, appearing pro se, filed this complaint for
judicial review pursuant to 42 U.S.C. §§ 1381, et seq., and 42 U.S.C.
§ 405(g). See ECF No. 1.

1

Citations to the transcript/administrative record (ECF Nos. 11, 11-1 through 1111) shall be by the symbol “Tr.” followed by a page number that appears in the lower
right corner of each page.
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In the decision issued on May 18, 2015, the ALJ made findings
pertinent to this review:
1. The claimant has not engaged in substantial gainful activity since
December 31, 2012, the application date. Tr. 39.
2. The claimant has the following severe impairments: headaches,
vertigo, left carpal tunnel syndrome, degenerative disc/joint disease
of the cervical spine, an anxiety disorder, and an affective disorder.
Tr. 39.
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
Tr. 40.
4. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 416.967(a) except with no work
around unprotected heights, no work around moving and hazardous
machinery, or driving motorized vehicles. The claimant can never
climb ladders, ropes, or scaffolds. The claimant is limited to no more
than semi-skilled work. Tr. 41.
5. The claimant is capable of performing past relevant work as a
customer service representative. This work does not require the
performance of work-related activities precluded by the claimant’s
residual functional capacity. Tr. 47.
6. The claimant has not been under a disability, as defined in the
Social Security Act, since December 31, 2012, the date the
application was filed. Tr. 48.
Based on these findings, and the reasons set forth in the decision, the ALJ
found Plaintiff is not disabled under section 1614(a)(3)(A)2 of the Social
Security Act. Tr. 48.

2

Section 1614(a)(3)(A) of the Social Security Act is codified at 42 U.S.C. § 1382.
See Higginbotham v. Barnhart, 163 F. App’x 279, 280 n.1 (5th Cir. 2006).
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II. Legal Standards Guiding Judicial Review
This Court must determine whether the Commissioner’s decision is
supported by substantial evidence in the record and premised upon correct
legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986). “Substantial evidence is more than a scintilla, but less
than a preponderance. It is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The
Commissioner’s factual findings are conclusive if supported by substantial
evidence.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002)
(citations omitted).3 The Court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner,
Bloodsworth, 703 F.2d at 1239, although the Court must scrutinize the

3

“If the Commissioner’s decision is supported by substantial evidence we must
affirm, even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240, n.8 (11th Cir. 2004) (citations omitted). “A ‘substantial evidence’ standard,
however, does not permit a court to uphold the Secretary's decision by referring only to
those parts of the record which support the ALJ. A reviewing court must view the entire
record and take account of evidence in the record which detracts from the evidence
relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).
“Unless the Secretary has analyzed all evidence and has sufficiently explained the
weight he has given to obviously probative exhibits, to say that his decision is supported
by substantial evidence approaches an abdication of the court’s ‘duty to scrutinize the
record as a whole to determine whether the conclusions reached are rational.’ ” Cowart
v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (citations omitted).
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entire record, consider evidence detracting from the evidence on which the
Commissioner relied, and determine the reasonableness of the factual
findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Parker v.
Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986). Review is deferential, but
the reviewing court conducts what has been referred to as “an independent
review of the record.” Flynn v. Heckler, 768 F.2d 1273, 1273 (11th Cir.
1985).
A disability is defined as a physical or mental impairment of such
severity that the claimant is not only unable to do past relevant work, “but
cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. § 423(d)(2)(A). A disability is an “inability 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); see 20 C.F.R. § 416.909
(duration requirement). Both the “impairment” and the “inability” must be
expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212
(2002).

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The Commissioner analyzes a claim in five steps, pursuant to 20
C.F.R. § 416.920(a)(4)(i)-(v):
1. Is the individual currently engaged in substantial gainful
activity?
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet
or equal those listed in Appendix 1 of 20 C.F.R. Part 404,
Subpart P?
4. Does the individual have the residual functional capacity
(RFC) to perform work despite limitations and are there any
impairments which prevent past relevant work?4
5. Do the individual’s impairments prevent other work?
A positive finding at step one or a negative finding at step two results in
disapproval of the application for benefits. A positive finding at step three
results in approval of the application for benefits. At step four, the claimant
bears the burden of establishing a severe impairment that precludes the

4

Residual functional capacity is the most a claimant can still do despite
limitations. 20 C.F.R. § 416.945(a)(1). It is an assessment based upon all of the
relevant evidence including the claimant’s description of his or her limitations,
observations by treating and examining physicians or other persons, and medical
records. Id. The responsibility for determining claimant’s RFC lies with the ALJ. 20
C.F.R. § 416.946(c); see Social Security Ruling (SSR) 96-5p, 1996 SSR LEXIS 2, at
*12 (July 2, 1996) (“The term ‘residual functional capacity assessment’ describes an
adjudicator’s finding about the ability of an individual to perform work-related activities.
The assessment is based upon consideration of all relevant evidence in the case
record, including medical evidence and relevant nonmedical evidence, such as
observations of lay witnesses of an individual’s apparent symptomatology, an
individual’s own statement of what he or she is able or unable to do, and many other
factors that could help the adjudicator determine the most reasonable findings in light of
all the evidence.”).
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performance of past relevant work. Consideration is given to the
assessment of the claimant’s RFC and the claimant’s past relevant work. If
the claimant can still do past relevant work, there will be a finding that the
claimant is not disabled. If the claimant carries this burden, however, the
burden shifts to the Commissioner at step five to establish that despite the
claimant’s impairments, the claimant is able to perform other work available
in significant numbers in the national economy in light of the claimant’s
RFC, age, education, and work experience. See Phillips v. Barnhart, 357
F.3d 1232, 1237 (11th Cir. 2004); Jones v. Apfel, 190 F.3d 1224, 1228-29
(11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen, 786 F.2d
1050, 1052 (11th Cir. 1986); 20 C.F.R. § 416.920(a)(4)(v), (e) & (g). If the
Commissioner carries this burden, the claimant must prove that he or she
cannot perform the work suggested by the Commissioner. Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir. 1987).
Plaintiff bears the burden of proving that she is disabled and,
consequently, is responsible for producing evidence in support of her claim.
See 20 C.F.R. § 416.912(a); Moore, 405 F.3d at 1211. The responsibility
of weighing the medical evidence and resolving any conflicts in the record
rests with the ALJ. See Battle v. Astrue, 243 F. App’x 514, 523 (11th Cir.
2007) (unpublished).

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The opinion of the claimant’s treating physician must be accorded
considerable weight by the Commissioner unless good cause is shown to
the contrary. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
This is so because treating physicians “are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.” 20 C.F.R.
§ 416.927(c)(2).5 “This requires a relationship of both duration and
frequency.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). The
reasons for giving little weight to the opinion of the treating physician must
be supported by substantial evidence, Marbury v. Sullivan, 957 F.2d 837,
841 (11th Cir. 1992), and must be clearly articulated. Phillips, 357 F.3d at
1241. “The Secretary must specify what weight is given to a treating
physician’s opinion and any reason for giving it no weight, and failure to do
so is reversible error.” MacGregor, 786 F.2d at 1053.

5

This provision applies to claims filed before March 27, 2017. For claims filed
after that date, section 416.920c, titled “How we consider and articulate medical
opinions and prior administrative medical findings for claims filed on or after March 27,
2017,” applies.
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The ALJ may discount the treating physician’s opinion if good cause
exists to do so. Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986).
Good cause may be found when the opinion is “not bolstered by the
evidence,” the evidence “supported a contrary finding,” the opinion is
“conclusory or inconsistent with [the treating physician’s] own medical
records,” the statement “contains no [supporting] clinical data or
information,” the opinion “is unsubstantiated by any clinical or laboratory
findings,” or the opinion “is not accompanied by objective medical evidence
or is wholly conclusory.” Lewis, 125 F.3d at 1440; Edwards v. Sullivan, 937
F.2d 580, 583-84 (11th Cir. 1991) (citing Schnorr v. Bowen, 816 F.2d 578,
582 (11th Cir. 1987)). Where a treating physician has merely made
conclusory statements, the ALJ may afford them such weight to the extent
they are supported by clinical or laboratory findings and are consistent with
other evidence as to a claimant’s impairments. Wheeler v. Heckler, 784
F.2d 1073, 1075 (11th Cir. 1986).
Some opinions on issues such as whether the claimant is unable to
work, the claimant’s RFC, and the application of vocational factors, “are not
medical opinions, . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive
of the case; i.e., that would direct the determination or decision of

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disability.” 20 C.F.R. § 416.927(d); see Bell v. Bowen, 796 F.2d 1350,
1353-54 (11th Cir. 1986). “[T]reating source opinions on issues reserved to
the Commissioner are never entitled to controlling weight or special
significance.” SSR 96-5p, 1996 SSR LEXIS 2, at *6 (1996). Although
physicians’ opinions about what a claimant can still do or the claimant’s
restrictions are relevant evidence, such opinions are not determinative
because the ALJ has responsibility of assessing the claimant’s RFC.
A treating physician’s opinion that a claimant is unable to work and is
necessarily disabled would not be entitled to any special weight or
deference. The regulations expressly exclude such a disability opinion
from the definition of a medical opinion because it is an issue reserved to
the Commissioner and a medical source is not given “any special
significance” with respect to issues reserved to the Commissioner, such as
disability. 20 C.F.R. § 416.927(d)(1), (3); SSR 96-5p, 1996 SSR LEXIS 2,
at *6. In Lewis, the court noted that “we are concerned here with the
doctors’ evaluations of [the claimant’s] condition and the medical
consequences thereof, not their opinions of the legal consequences of his
condition. Our focus is on the objective medical findings made by each
doctor and their analysis based on those medical findings.” 125 F.3d at
1440.

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Generally, more weight is given to the opinion of a specialist “about
medical issues related to his or her area of specialty than to the opinion of
a source who is not a specialist.” 20 C.F.R. § 416.927(c)(2), (5)6; see also
Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004) (noting that
opinions of specialists may be particularly important, and entitled to greater
weight than those of other physicians, with respect to a certain diseases
that are “poorly understood within much of the medical community”);
Somogy v. Comm’r of Soc. Sec., 366 F. App’x 56, 65 n.13 (11th Cir. 2010)
(unpublished) (same). Although a claimant may provide a statement
containing a treating physician’s opinion of her remaining capabilities, the
ALJ must evaluate such a statement in light of the other evidence
presented and the ALJ must make the ultimate determination of disability.
20 C.F.R. §§ 416.912, 416.913, 416.927, 416.945.
III. Analysis
A. The Hearing
At the hearing held on February 18, 2015, Plaintiff appeared pro se
and testified she is a high school graduate with some college. Tr. 58-59.
Her past employment was in the credit department of MCI taking incoming

6

See note 5, supra.

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calls.7 Tr. 59. She testified she is treated at Shands for several problems,
and was currently going to Shands twice a week for neuropathy in her left
hand. Tr. 60-61. She identified her most serious problem, which she
believes keeps her from working, as her memory problem. Tr. 61. She
testified she has had memory problems since 2010 when she was hit on
the head by a car trunk. Tr. 62. She said she had not had any testing
done on her memory. Id.
She testified that the next impediment to her working was her chronic
pain in her head and radiating down into her back area. Id. She said she
does not sleep well at night, which causes her to not function well during
the day. Id. She testified that she was taking a lot of pain medication such
as naproxen but had to cut back due to risk to her kidneys, and that she
started “drinking a little more too to kind of get the pain gone.” Tr. 63, 64.
When asked when she was diagnosed with diabetes, she said she was not
sure but had been given two prescriptions for needles and lancets over the
last few months. Id. She is currently taking Metformin for diabetes. Tr. 64.
She takes amitriptyline for sleep and anxiety, amlodipine, Escitalopram for
depression, hydrochorothiazide, losartan, meclizine, and naproxen. Tr. 64.

7

MCI, Inc., currently a subsidiary of Verizon, was a telecommunication
corporation. See http://www.verizon.com/about/news-tag/mci-worldcom.
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She said she has constant vertigo, which causes balance problems and
dizziness and bothers her eyes. Id. She testified she has no adverse side
effects from her medications. Tr. 65.
Plaintiff lives with her husband, does light cooking and minor
household chores, and goes grocery shopping with her husband. Tr. 6566. Her husband assists her in bathing due to her balance problem.
Tr. 65. She has difficulty driving when she has to turn her head quickly,
although she does drive short distances without too many turns. Tr. 66.
The impartial vocational expert, Jackson McKay testified and was
asked to assume, as a hypothetical, a person who is 60 years old, with the
work background and education testified to by Plaintiff, who is capable of
sedentary work, with no unprotected heights, no work around moving or
hazardous machinery or driving motorized vehicles, no ladders or scaffolds,
and no more than semi-skilled work. Tr. 67. The vocational expert was
asked if such an individual could perform any of the past work of Plaintiff,
which was characterized by the vocational expert as customer service
representative. Tr. 67. The vocational expert testified that such an
individual could perform the past work of customer service representative,
which was consistent with the Dictionary of Occupational Titles # 249.367026, and which is sedentary and semi-skilled. Id.

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The Plaintiff was given an opportunity to pose additional questions to
the vocational expert, but declined to do so. Tr. 68.
B. The Findings of the ALJ
The ALJ found in the decision issued on May 18, 2015, that Plaintiff
has the following severe impairments: headaches, vertigo, left carpal tunnel
syndrome, degenerative disc/joint disease of the cervical spine, an anxiety
disorder, and an affective disorder. Tr. 39. An impairment may be found to
be severe for step two purposes as a threshold inquiry. McDaniel v.
Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). That only means that the
impairment is not so slight and its effects not so minimal that it would
clearly not be expected to interfere with the individual’s ability to work
irrespective of age, education, or work experience. Id. A finding that an
impairment is severe does not require a specific limitation based on that
impairment unless supported by the medical record. See, e.g., Lacroix v.
Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006) (rejecting claimant’s
contention that the ALJ decision was ‘internally inconsistent’ where the ALJ
found that an impairment was severe but failed to include limitations
relating to impairment in RFC assessment); Griffeth v. Comm’r of Soc.
Sec., 217 F. App’x. 425, 427-28 (6th Cir. 2007) (unpublished) (same);

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Davis v. Comm’r of Soc. Sec., No. 6:12-cv-1694-ORL-36, 2013 WL
6182235, at *6 (M.D. Fla. Nov. 25, 2013) (same).
The ALJ found that the medical record substantiated claims of
evaluation and treatment for vertigo and headache complaints, and that
imaging studies revealed degenerative disc/joint disease of the cervical
spine. Tr. 39. The ALJ found the medical record also disclosed treatment
for depression, generalized anxiety disorder, posttraumatic stress disorder,
and mood disorder. Id. The record disclosed treatment for hypertension,
and diverticulosis, which were effectively managed with conservative
treatment. Id. The ALJ found that the record did not document any
restrictions placed on Plaintiff as a result of hypertension and diverticulosis,
which were found to be non-severe impairments. Tr. 39. Diabetes was not
found to be a medically determinable impairment based on the medical
records’ failure to document a definitive diagnosis. Tr. 40.
As to Plaintiff’s mental impairments, the ALJ found that the
impairments, singly or in combination, do not meet or medically equal the
criteria of listings 12.04 and 12.06 of 20 CFR 404, Subpart P, Appendix 1.
Tr. 40. The ALJ found that the impairments did not satisfy “paragraph B,”
which requires that the mental impairments must result in at least two of the
following: marked restriction of activities of daily living; marked difficulties in

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maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
decompensation. Id. “Marked” means more than moderate but less than
extreme. The ALJ found that the Plaintiff had no more than mild restriction
in activities of daily living—she remained capable of living independently in
her household, adequately tending to personal care, helping with
household chores, doing light cooking, helping care for pets, driving short
distances, managing some personal finances, attending medical
appointments, shopping with her husband, maintaining relationships with
family members, and occasionally attending church. Tr. 40; see also
Tr. 65-66, 229, 294, 381, 534. The ALJ found Plaintiff has moderate
difficulty in maintaining concentration, persistence, or pace and has
difficulty with memory and attention. Tr. 40-41. No episodes of
decompensation were noted. The ALJ also found that “paragraph C”
criteria—medically documented history of a chronic affective disorder of at
least 2 years duration that has caused more than a minimal limitation of
ability to do basic work activities with symptoms or signs not attenuated by
medication or psychosocial support plus one of three other conditions—
were not satisfied. Tr. 41.

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As to the effect of Plaintiff’s mental impairments on her RFC, the ALJ
noted that the record supports a finding that Plaintiff has severe mental
impairments and is limited to some extent by the impairments. Tr. 43. For
that reason, the ALJ limited the Plaintiff to no more than semi-skilled work
in the RFC to account for the mental limitations. Tr. 44. No additional
limitations relating to mental impairments were found by the ALJ to be
necessary. Id. The ALJ noted that Plaintiff reported that her memory
problem was the main reason she cannot work, but had not had any
memory testing. Tr. 42. During her consultative psychological
examinations Plaintiff’s cognitive ability was noted to be grossly intact.
Tr. 44; Tr. 534, 552. The ALJ also cited Plaintiff’s appropriate responses to
questions at the hearing and the fact that she provided a good history of
her medical complaints. She was also found to be a good historian during
her psychological evaluation by clinical psychologist Diana M. Benton,
Psy.D. Tr. 44; Tr. 380.
The ALJ concluded that Plaintiff has the residual functional capacity
to perform sedentary, semi-skilled work except with no work around
unprotected heights or moving or hazardous machinery, no driving of
motorized vehicles, and no climbing ladders, ropes, or scaffolds. Tr. 41.
This RFC was based in part on the conclusion that Plaintiff’s statements

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concerning the intensity, persistence, and limiting effects of her symptoms
are not entirely credible for the reasons stated in the decision. Tr. 42. The
ALJ cited the household activities that Plaintiff testified she engaged in and
the fact that Plaintiff can drive short distances. Tr. 45. Brain and head
imaging failed to reveal abnormalities that explain subjective complaints of
vertigo/dizziness. Tr. 42; Tr. 352-54; Tr. 460; Tr. 546. The ALJ further
noted that oculomotor studies, active head rotation testing, positional
testing, and Dix/Hallpike testing in May 2011 were reportedly normal,
although bi-thermal caloric testing suggested the possibility of left
horizontal canalithiasis. Tr. 42; Tr. 354. Records from a consultative
examination by Dr. Lance Chodosh in February 2012 noted the complaints
of dizziness and feeling of imbalance, but Plaintiff demonstrated good
coordination with normal standing balance, slow but normal gait, and heel
and toe walking. Tr. 42-43; Tr. 373. The ALJ also noted that vestibular
therapy was offered, but Plaintiff had inconsistent attendance and failed to
demonstrate compliance with home exercises. Tr. 43; Tr. 494-519. The
ALJ did credit the opinion of treating neurologist Dr. George G. Feussner
that Plaintiff must avoid heights and dangerous equipment, and must not
operate motorized vehicles, because of vertigo. Tr. 46; Tr. 348. These

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recommended restrictions were given great weight and were reflected in
the RFC found by the ALJ. Tr. 41, 46.
The ALJ found that Plaintiff’s headaches were a severe impairment,
but found the records showed improvement with Toradol treatment. Tr. 43.
In February 2015, in a visit to Meridian Behavioral Healthcare, Inc., Plaintiff
denied chronic pain. Id.; Tr. 550. As for carpal tunnel syndrome
symptoms, the ALJ found that electrodiagnostic testing in 2015 revealed
carpal tunnel syndrome in Plaintiff’s left hand, but physical findings had not
documented significant associated functional limitations and treatment
records do not document complaints of limitation to her examining and
treating sources. Tr. 43. The ALJ noted that although Plaintiff alleges that
sleep problems affect her during the day, she denied sleep problems at the
February 2015 mental health evaluation. Tr. 45; Tr. 550-51. The ALJ
concluded that physical examinations have revealed minimal objective
findings and diagnostic studies have failed to reveal evidence of disease
significant enough to preclude all work activity. Id.
In determining that Plaintiff has the residual functional capacity to
perform sedentary, semi-skilled work, the ALJ also noted that the medical
records showed Plaintiff’s treatment for her allegedly disabling impairments
has been essentially conservative in nature and that Plaintiff had failed to

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follow up on some of the recommendations made by her examining and
treating providers. Tr. 44. Although the record indicates that Plaintiff had
limited resources for medical treatment, the ALJ found that she had not
provided evidence that she sought treatment at low or no cost or was
denied treatment for lack of funds.8 Tr. 44-45. This fact was cited only as
an indication that Plaintiff’s impairments were not as severe or disabling as
alleged. Tr. 45. Additionally, the ALJ cited the fact that in the last fifteen
years, Plaintiff had only marginal or sporadic work, with only two years of
earnings, which raised a question regarding whether Plaintiff’s continuing
unemployment was due to medical necessity from her impairments. Tr. 45;
Tr. 178.
The opinion evidence relied on by the ALJ included Dr. Feussner’s
2011 recommendation that due to Plaintiff’s post-traumatic vertigo, she
should permanently avoid heights, dangerous equipment, and operating
motorized vehicles. Tr. 46; Tr. 348. The ALJ gave little weight to the
February 2012 opinion of consultative physician Dr. Chodosh that Plaintiff
could stand, walk, sit, bend at the waist, squat, kneel, lift, carry, handle
objects, see, hear, and speak normally. Tr. 46; Tr. 374. The ALJ also gave

8

Plaintiff did obtain some prescription refills and other services at the free Equal
Access Clinic at the University of Florida College of Medicine in 2012. Tr. 388-434.
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little weight to the July 2013 opinion of the State agency medical
consultant, who reviewed the evidence and determined that the Plaintiff
was capable of a range of medium exertional work activity. The ALJ found
that the totality of the evidence showed Plaintiff is more limited than
reported by Dr. Chodosh and the State agency medical consultant and that
a range of sedentary work was more appropriate. Tr. 46; Tr. 102.
As to Plaintiff’s mental limitations, the ALJ gave little weight to the
January 2012 opinion of Susan Armstrong, LMHC, Ph.D., who opined that
Plaintiff was not a candidate for work because of chronic PTSD and
unresolved injuries. Tr. 46; Tr. 367-69; 528-31. The reason for giving little
weight to this opinion was that the totality of the evidence, including the
“limited course of mental health treatment received by the claimant,” failed
to establish work-preclusive limitations. Tr. 46. Some weight was given,
however, to the March 2012 consultative psychological evaluation of
Dr. Benton, who opined that Plaintiff’s mood symptoms would impact her
capacity for concentration and memory, and thus her ability to perform
complex tasks. For this reason, the ALJ concluded that Plaintiff was limited
to no more than semi-skilled work. Tr. 46; Tr. 380-83.
No significant weight was given to the opinion of psychologist William
E. Beaty, Ph.D., assigning Plaintiff a Global Assessment of Functioning

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(GAF) score of 45, which indicates serious limitations in functioning,
because this level of impairment is not consistent with the Plaintiff’s course
of mental health treatment or the level of functioning apparent in Plaintiff’s
wide array of daily activities. Tr. 46; Tr. 533-35. Some weight was given to
the 2013 opinions of the State agency psychological consultants Maxine
Ruddick, Ph.D., and Mercedes DeCubas, Ph.D., who reviewed the record
and determined that Plaintiff remained capable of understanding,
remembering, and carrying out simple instructions, following a schedule
and sustaining activity in a routine setting with no time work, and needed
few changes to avoid stress. Tr. 46; Tr. 83, 99. The ALJ concluded that
these opinions were consistent with the medical record that Plaintiff has
severe mental impairments, but that the course of treatment and her
capacities and abilities demonstrated in her daily living indicate that the
claimant is capable of semi-skilled work. Tr. 46-47. Limited weight was
given to the statements of individual and family members in support of her
disability claim because the individuals are not medically trained, are not
disinterested parties, and their opinions are not consistent with the record.
Tr. 47; Tr. 313-16.

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C. Discussion of the Issues
In her memorandum in support of her position, Plaintiff does not
challenge the substantial evidence supporting the ALJ’s decision, but
contends that the Appeals Council erred in failing to consider new and
material evidence revealing she was diagnosed with and was being treated
for severe left hand neuropathic pain condition. ECF No. 18 at 3. Plaintiff
also argues that the Appeals Council erred in failing to remand the matter
to the ALJ to conduct further proceedings on this alleged new and material
evidence; and that such a reconsideration would show that she is suffering
from an impairment that meets or medically equals the severity of a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 3-4.
Plaintiff cites additional evidence submitted to the Appeals Council on
March 13, 2017, which evidence Plaintiff contends documents her
diagnosis of severe neuropathic pain condition and links that condition to
her left hand carpal tunnel syndrome.9 ECF No. 18 at 2-3; Tr. 12-22.
Evidence submitted to the Appeals Council must be chronologically

9

Plaintiff also alleges that evidence submitted to the Appeals Council consisting
of records dated January 22, 2015, from Shands Hospital were submitted to the
Appeals Council but do not appear in the record. ECF No. 18 at 2. However, the
Appeals Council notified Plaintiff that it received12 pages of records from Shands
Hospital dated January 22, 2015, and those records appear in the record as Exhibit 16
F (Tr. 23; Tr. 565-76). Those records do not pertain to carpal tunnel syndrome or
severe neuropathy.
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relevant to the ALJ’s decision. See Wilson v. Apfel, 179 F.3d 1276, 1279
(11th Cir. 1999). Under 20 C.F.R. § 416.1470, the Appeals Council will
consider new and material evidence “only where it relates to the period on
or before the date of the administrative law judge hearing decision.” 20
C.F.R. § 416.1470(b). See also Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1261 (11th Cir. 2007) (stating that “[t]he Appeals Council
must consider new, material, and chronologically relevant evidence . . . .).
When a claimant has properly presented new evidence to the Appeals
Council, the reviewing court must consider whether that new evidence
renders the denial of benefits erroneous. Id. at 1262.
The Shands records dated December 12, 2014, submitted by Plaintiff
to the Appeals Council, state that Plaintiff had been diagnosed with carpal
tunnel syndrome. Tr. 12. A clinical neurophysiological study conducted on
February 22, 2015, indicated “evidence of left carpal tunnel syndrome.”
This evidence was not new.10 Tr. 14. Plaintiff also submitted to the
Appeals Council progress notes from Robert C. Decker, M.D., from a
February 14, 2017, visit which indicates Plaintiff was diagnosed with carpel
tunnel syndrome, and which cited pain and swelling in the left hand. Tr. 15.

10

This study was already in the record in Exhibit 15F, and was before the ALJ at
the time the ALJ’s decision was rendered. See Tr. 559.
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The physical examination notes from that visit indicate that wrist extension,
wrist flexion, and finger abduction on the left were 5/5. Tr. 17. The notes
refer to a “[h]ealed carpal tunnel incision” and state that strength testing
was deferred due to pain at the wrist/surgery site. Tr. 18. The notes from
that date also indicate neuropathic pain of the left hand. Tr. 19. The notes
from February 2017 do not indicate that they relate back to the time before
the ALJ decision and, significantly, they do not identify or direct any
functional limitations stemming from either carpal tunnel syndrome or
neuropathic pain.
The ALJ considered Plaintiff’s carpal tunnel syndrome and found that
it constituted a severe impairment, but concluded that the record did not
document significant associated functional limitations. Tr. 43. Plaintiff
stated at the hearing that she was in therapy for her “fingers” and that she
was told she had neuropathy. Tr. 61. However, when asked the main
impediment to her working, Plaintiff testified it was her memory problems
followed by pain in her head and neck that keeps her from sleeping, not
carpal tunnel syndrome or neuropathic pain, even though in 2015 she
reported no chronic pain in her visit to Meridian. Tr. 61-62; Tr. 556.
The records submitted to the Appeals Council, when considered in
conjunction with the totality of the evidence, do not demonstrate that the

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decision of the ALJ was erroneous or requiring reconsideration. The
Appeals Council considered the additional evidence submitted by Plaintiff
concerning her left hand carpal tunnel syndrome and neuropathic pain and
concluded that nothing in the records provided a basis for altering or
remanding the ALJ’s decision. Tr. 1-5. Because Plaintiff has not identified
any basis on which to conclude that the Appeals Council erred in
consideration of the additional records provided by Plaintiff, this aspect of
Plaintiff’s claim is without merit.
Plaintiff filed an unauthorized reply (ECF No. 20) to the Defendant’s
memorandum in this court, and attached new evidence in the form of a
November 22, 2017, letter from Barker Paige Comstock, M.D., of UF
Health Internal Medicine. ECF No. 20 at 6. The letter indicates that
Plaintiff has chronic ongoing pain in her left hand attributed to carpal tunnel
syndrome complicated by complex regional pain syndrome which causes
difficulty in typing at a high frequency and doing prolonged computer work.
Id. The issue in a disability case is whether a claimant is “entitled to
benefits during a specific period of time, which was necessarily prior to the
date of the ALJ’s decision.” Wilson, 179 F.3d at 1279. The Court reviews
the decision of the ALJ as to whether Plaintiff was entitled to benefits
during that specific time period. Because the information in Dr. Comstock’s

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letter is dated after the ALJ’s decision and does not indicate it relates back
to the time period at issue. See id.
New evidence will be considered by the reviewing court only to
determine if remand is warranted under sentence six of 42 U.S.C. § 405(g).
Id. at 1267-68. To satisfy the criteria for a remand under sentence six, a
claimant must establish that the evidence is new and noncumulative; the
evidence is material such that it is relevant and probative and affords a
reasonable probability that it would change the administrative result; and
there is good cause for the failure to submit the evidence at the
administrative level. See Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.
1986). Plaintiff’s left hand carpal tunnel syndrome symptoms were
discussed in the medical record and considered by the ALJ, who found as
a severe impairment that Plaintiff has left carpal tunnel syndrome. The ALJ
concluded, however, that the physical examination findings have not
documented significant associated functional limitations or complaints of
limitation to her examining and treating sources. Tr. 39, 43; Tr. 559-60.
The new evidence, even if it was applicable to the time period in
question, does not require a remand under § 405(g). The November 22,
2017, letter does not indicate that Plaintiff cannot use her left hand, but only
states that her carpal tunnel syndrome complicated by complex regional

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pain syndrome causes her “trouble” typing at “a high frequency” and “doing
prolonged computer work.” In light of the totality of the medical evidence
and Plaintiff’s testimony, even if this evidence had been before the ALJ or
Appeals Council, there is no reasonable probability that it would have
changed the administrative result.
Plaintiff also contends that the carpal tunnel syndrome and
neuropathy identified in the medical records meets or medically equals
Listing 11.14(B) of 20 C.F.R. Part 404, Subpart P, Appendix 1. ECF No. 35. That listing is for “Peripheral neuropathies.” Under Listing 11.14,
peripheral neuropathy is defined as:
A. Disorganization of motor function in two extremities
(see 11.00D1), resulting in an extreme limitation (see 11.00D2)
in the ability to stand up from a seated position, balance while
standing or walking, or use the upper extremities; or
B. Marked limitation (see 11.00G2) in physical functioning
(see 11.00G3a), and in one of the following: 1. Understanding,
remembering, or applying information (see 11.00G3b(i)); or 2.
Interacting with others (see 11.00G3b(ii)); or 3. Concentrating,
persisting, or maintaining pace (see 11.00G3b(iii)); or 4.
Adapting or managing oneself (see 11.00G3b(iv)).
20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.14. “Extreme limitation”
refers to “the inability to stand up from a seated position, maintain balance
in a standing position and while walking, or use your upper extremities to
independently initiate, sustain, and complete work-related activities” without

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assistance. Id. at § 11.00(D)(2). “[M]arked limitation means that, due to
the signs and symptoms of your neurological disorder, you are seriously
limited in the ability to independently initiate, sustain, and complete workrelated physical activities.” Id. at § 11.00(G)(2)(a). “The persistent and
intermittent symptoms must result in a serious limitation in your ability to do
a task or activity on a sustained basis.” Id. The Act further provides:
Physical functioning. Examples of this criterion include specific
motor abilities, such as independently initiating, sustaining, and
completing the following activities: Standing up from a seated
position, balancing while standing or walking, or using both your
upper extremities for fine and gross movements (see 11.00D).
Physical functioning may also include functions of the body that
support motor abilities, such as the abilities to see, breathe, and
swallow (see 11.00E and 11.00F). Examples of when your
limitation in seeing, breathing, or swallowing may, on its own,
rise to a “marked” limitation include: Prolonged and
uncorrectable double vision causing difficulty with balance;
prolonged difficulty breathing requiring the use of a prescribed
assistive breathing device, such as a portable continuous
positive airway pressure machine; or repeated instances,
occurring at least weekly, of aspiration without causing
aspiration pneumonia. Alternatively, you may have a
combination of limitations due to your neurological disorder that
together rise to a “marked” limitation in physical functioning.
We may also find that you have a “marked” limitation in this
area if, for example, your symptoms, such as pain or fatigue
(see 11.00T), as documented in your medical record, and
caused by your neurological disorder or its treatment, seriously
limit your ability to independently initiate, sustain, and complete
these work-related motor functions, or the other physical
functions or physiological processes that support those motor
functions. We may also find you seriously limited in an area if,
while you retain some ability to perform the function, you are
unable to do so consistently and on a sustained basis. The
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limitation in your physical functioning must last or be expected
to last at least 12 months. These examples illustrate the nature
of physical functioning. We do not require documentation of all
of the examples.
20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.00G3a. The medical
record and other evidence in this case do not demonstrate that Plaintiff has
a “marked limitation” in her functioning, nor does it demonstrate that she
had “extreme limitation” in her ability to use her left hand. The examples of
trouble caused by Plaintiff’s left hand carpal tunnel syndrome and related
pain noted by Dr. Comstock in his November 2017 letter submitted with
Plaintiff’s unauthorized reply do not support a finding of marked or extreme
limitation of Plaintiff’s functionality or her total disability.
In her unauthorized reply, Plaintiff also argues that the ALJ erred in
finding she could do past relevant work as a customer service
representative because that job ended in 2001 and the Vocational Expert
did not testify that such work exists in significant numbers in the national
economy. ECF No. 20 at 2-3. As the ALJ noted in the step four analysis,
Plaintiff’s past relevant work experience of customer service representative
met the requirement that it was done “within the past 15 years, lasted long
enough for [the claimant] to learn to do it, and was substantial gainful
activity.” Tr. 47; see § 416.965(a); § 416.960(a).

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In concluding that Plaintiff could perform her past relevant work in the
step four analysis, based on her RFC and other stated factors, the ALJ was
not required to also find that such jobs exist in significant numbers in the
national economy. Section 416.920(a)(4)(iv) provides that at step four, if
the Commissioner finds that the Plaintiff can do past relevant work, “we will
find that you are not disabled.” Section 416.960(b)(3) also provides that if it
is determined that the Plaintiff has the residual functional capacity to do
past relevant work, the Commissioner “will determine that you can still do
your past work and are not disabled. We will not consider your vocational
factors of age, education, and work experience or whether your past
relevant work exists in significant numbers in the national economy.” Thus,
the ALJ did not err in finding Plaintiff can do past relevant work without also
finding that the work exists in significant numbers in the national economy.
At step four, the claimant bears the burden of providing she cannot perform
past relevant work. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). See also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)
(“Through the fourth step, the burden of production and proof is on the
claimant.”). Plaintiff has not carried this burden.

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IV. Conclusion
Considering the record as a whole, the findings of the ALJ are based
upon substantial evidence in the record and the ALJ correctly followed the
law. Further, no error has been shown in the actions of the Appeals
Council in denying review. Accordingly, pursuant to 42 U.S.C § 405(g), the
decision of the Commissioner to deny Plaintiff's application for
Supplemental Security Income benefits is AFFIRMED. The Clerk shall
enter judgment for Defendant.
IN CHAMBERS at Tallahassee, Florida, on December 5, 2017.
s/ Charles A. Stampelos__________
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE

Case No. 1:17cv123-CAS