KELSEY v. COMMISSIONER OF SOCIAL SECURITY
MEMORANDUM OPINION AND ORDER. 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. Accordingly, pursuant to 42 U.S.C § 405(g), the decision of the Commissioner to deny Plaintiffs application for Social Security benefits is AFFIRMED and the Clerk is DIRECTED to enter judgment for the Defendant. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 2/16/21. (blb)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
ALICE SMITH KELSEY,
Case No. 1:20cv133-CAS
ANDREW M. SAUL,
Commissioner of Social
MEMORANDUM OPINION AND ORDER
This is a Social Security case referred to my predecessor upon
consent of the parties and reference by District Judge Allen C. Winsor,
ECF No. 9, and reassigned by Chief District Judge Mark E. Walker, ECF
No. 18. The decision of the Commissioner is affirmed.
I. Procedural History
On October 18, 2016, Plaintiff, Alice Smith Kelsey, applied for a
period of disability and disability insurance benefits (DIB) pursuant to Title II
of the Social Security Act (Act) with an alleged onset of disability date of
June 3, 2016. Tr. 40, 198-201, 224. (Citations to the
Transcript/Administrative Record shall be by the symbol “Tr.” followed by a
page number that appears in the lower right corner.) Plaintiff alleged
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disability due to rheumatoid arthritis, pancreatitis, anxiety, igG4 auto
immune disorder, chronic stomach pain, chronic feet, ankle, and back pain.
Tr. 46, 238.
Plaintiff’s claim was denied initially on March 1, 2017, and upon
reconsideration on May 22, 2017. Tr. 40, 111, 126. On May 31, 2017,
Plaintiff requested a hearing. Tr. 40, 139. On June 10, 2019,
Administrative Law Judge (ALJ) Todd Spangler held a video hearing
presiding from Knoxville, Tennessee, with Plaintiff appearing with counsel,
in Gainesville, Florida. Tr. 40, 56-94. Plaintiff was primarily represented
by Jason K. Baril, an attorney, but Stephen Ekblom, also an attorney,
appeared at the hearing. Tr. 40, 59. Anne B. Thomas, M.S., NCC,
testified as an impartial vocational expert. Tr. 40, 59, 86-93, 307-08
On May 28, 2019, Plaintiff’s counsel submitted a pre-hearing
memorandum. Tr. 310-13. At the outset of the hearing, and in writing
prior to the hearing, on June 3, 2019, Plaintiff’s counsel informed the ALJ
about additional documentation from Matthew J. Cline, DC, and the UF
Health Sands Emergency Center-Springhill (UF). Tr. 40, 60-61, 314-15.
The ALJ left the record open for 30 days to allow Plaintiff to provide this
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documentation. Tr. 40, 93. Documentation from Chiropractic Associates
of Gainesville dated July 13, 2017, through February 25, 2019, was
received and appears as Exhibit 22F, Tr. 40, 846-74. As noted by the
ALJ, no additional documentation was provided from UF and the record
was closed. Tr. 40.
On June 26, 2019, the ALJ rendered the decision concluding Plaintiff
has not been under a disability from June 3, 2016, through the date of the
decision. Tr. 40-50. On or about June 10, 2019, Plaintiff, by counsel
Jason K. Baril, requested review of the ALJ’s decision. Tr. 194-97.
Thereafter, and as noted by the Appeals Council, Plaintiff submitted
medical records dated June 21, 2017, from Donald W. Scott, M.D. Tr. 2,
95-98. On August 6, 2019, Plaintiff’s present counsel, Howard D. Olinsky,
filed a brief. Tr. 316-19. The Appeals Council also received medical
evidence of record dated September 2, 2019, and September 3, 2019, from
Shands at the University of Florida. Tr. 2, 8-31. Regarding the latter
documents, the Appeals Council noted receiving same, but stated the ALJ
decided the case through June 26, 2019, and, as a result, the additional
evidence did not relate to the period at issue, i.e., through June 26, 2019.
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Tr. 2. It was suggested to Plaintiff that if this information was to be
considered, the Plaintiff would have to file a new claim. Id.
On April 6, 2020, the Appeals Council denied Plaintiff’s request for
review. Tr. 1-7.
On June 8, 2020, Plaintiff filed a complaint requesting judicial review
of the Commissioner’s final decision. ECF No. 1. Both parties filed
memoranda of law, ECF Nos. 14 and 17, which have been considered.
II. Findings of the ALJ
The ALJ made several findings:
1. “The claimant meets the insured status requirements of the [Act]
through September 30, 2022.” Tr. 42.
2. The claimant has not engaged in substantial gainful activity [SGA]
since June 3, 2016, the alleged onset date.” Tr. 43.
3. “The claimant has the following severe impairments: IgG4-related
disease (IgG4-RD); polyarthritis, dyspepsia and anxiety.” 1 Id.
The ALJ also considered Plaintiff’s alleged inability to perform
work activity due to bilateral enlargement of the lacrimal glands,
but determined there was no evidence of Plaintiff receiving
treatment for this impairment after 2018. Tr. 43. The ALJ
rejected Plaintiff’s inability to perform work activity due to
The ALJ is not required to identify all impairments that should be considered
severe. See Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010)
(unpublished); see also Mariarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244
(6th Cir. 1987). Plaintiff does not claim the ALJ omitted a severe impairment. ECF
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hypertension because the record showed her blood pressure was
within normal ranges when she was medication compliant. Id. 2
The ALJ considered Plaintiff’s obesity in accordance with Social
Security Ruling (SSR) 19-2p and determined that her obesity, by
itself or in combination with other impairments, was not so severe
as to prevent her ability to perform work activity. Id.
The ALJ further noted that Plaintiff alleged rheumatoid arthritis
but the ALJ specifically observed that Plaintiff’s rheumatologist,
on several occasions, determined there was no evidence Plaintiff
had rheumatoid arthritis. Id.
Likewise, the ALJ found that Plaintiff’s claim of ankle and back
pain were not medically determinable impairments. Id. Finally,
the ALJ concluded that although Plaintiff sought chiropractic
treatment twice for right foot pain which she reported began in
December 2018, the right foot pain was not a medically
determinable impairment. Id.
4. “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. 43. The ALJ determined that Plaintiff’s “mental
impairments, considered singly and in combination, do not meet or
medically equal the criteria of listing 12.06.” Tr. 44. In making
this determination, the ALJ considered the listing 12.06 “paragraph
B” criteria and determined that Plaintiff had moderate limitation
regarding understanding, remembering, or applying information;
moderate limitation in interacting with others; moderate limitation
regarding concentrating, persisting, or maintaining pace, and
moderate limitation for adapting or managing oneself. Tr. 44-45;
see 20 C.F.R. Subpt. P. 404, App. 1, §§ 12.06 B., C. The ALJ
also determined the evidence did not establish the presence of the
See generally Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (quoting
Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009) (“If an impairment can be controlled
by treatment or medication, it cannot be considered disabling.”)).
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“paragraph C” criteria, id. Tr. 45. The ALJ specifically stated that
“the ‘paragraph B’ criteria are not a residual functional capacity
[RFC] assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process.
Id. The ALJ also noted that the mental RFC assessment used at
steps 4 and 5 requires a more detailed assessment. 3 Id.
“[T]he claimant has the [RFC] to perform less than the full range
of light work as defined in 20 CFR 404.1567(b). She can lift and
carry 20 pounds occasionally and ten pounds frequently. She
can stand, walk and sit for a total of six hours, within an eight-hour
workday. She can occasionally climb ladders, ropes and
scaffolds. She can occasionally stoop and crawl. She can
frequently reach overhead with the right upper extremity. She
should avoid concentrated exposure to extreme cold. She is
limited to performing simple and detailed tasks; no more than
occasional contact with coworkers, supervisors and the public and
workplace changes should be introduced gradually and
infrequently.” Tr. 45; see Tr. 87-88 (hypotheticals posed to
vocational expert). 4
The Commissioner’s regulations require an ALJ to use the “special technique”
dictated by the Psychiatric Review Technique (PRT) in evaluating mental impairments.
20 C.F.R. § 404.1520a(a). The special technique requires separate evaluations of how
the claimant’s mental impairment impact the claimant in four broad functional areas.
Id. § 404.1520a(c)(3)-(4). The ALJ is required to document the application of the PRT,
to discuss the pertinent findings and conclusions based on application of the PRT, and
to make specific findings as to the degree of limitation in each of the four functional
areas in the written decision. Id. § 404.1520a(e)(4). An ALJ’s failure to complete a
PRT, append a PRT to the written decision or incorporate the PRT’s mode of analysis
into the ALJ’s findings and conclusions in the written decision, warrants a remand to the
Commissioner. Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005). Here, the
ALJ considered the four functional areas. Tr. 44-45; see also Tr. 119-20 (Exhibit 3A)
(On Reconsideration, May 5, 2017, James G. Brown, Ph.D.). For example, the ALJ
gave little weight to Dr. Brown’s none to mild “paragraph B” assessment, finding it
inconsistent with Plaintiff’s “testimony, her activities of daily living and the longitudinal
record, as outlined above.” Tr. 47-48, 119.
The ALJ posed two (2) hypothetical questions to the vocational expert that
included the RFC findings. Compare Tr. 87-88 with Tr. 45. The vocational expert
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6. The claimant is unable to perform any past relevant work as a
teacher, secondary school at the light exertional skill level with an
SVP of seven. Tr. 48; see Tr. 87-88. (The vocational expert
was aware that Plaintiff worked as a math teacher. Tr. 86-87.)
7. The claimant was 51 years old, which is defined as an individual
closely approaching advanced age, on the alleged disability onset
date. Tr. 48.
8. The claimant has at least a high school education and is able to
communicate in English. Id. Transferability of jobs is not
material to the determination of disability because using the
Medical-Vocational Rules (the Grids) as a framework supports a
finding that Plaintiff is not disabled whether or not Plaintiff has
transferable job skills. Tr. 49
9. “Considering the claimant’s age, education, work experience, and
[RFC], there are jobs that exist in significant numbers in the
national economy that the claimant can perform.” Id. The ALJ
determined that if the Plaintiff had the RFC to perform the full
range of light work, a finding of ‘not disabled’ would be directed by
Medical-Vocational Rule 202.14. Id. The ALJ determined that
Plaintiff’s ability to perform all or substantially all the requirements
of a full range of light work has been impeded by additional
limitations. As a result, the vocational expert was asked whether
jobs exist in the national economy which Plaintiff can perform.
The vocational expert testified that Plaintiff can perform several
representative jobs at the unskilled, light exertional level, such as
identified several jobs Plaintiff could perform. Tr. 87; see Tr. 49. Counsel asked the
vocational expert that if an individual would be off task ten percent of the work day given
the two hypothetical questions, would such an individual be able to perform any of the
jobs listed by the vocational expert to which vocational expert responded “no.” Tr. 90.
Counsel then added: “What if the individual, due to particularly bad physical or
emotional health days was absent -- had unscheduled absences twice a month, would
they be able to maintain gainful employment?” Tr. 90-91. The vocational expert
opined "[n]o, not on a sustained basis.” Tr. 91; see also Tr. 91-92.
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hand packer, production laborer, and production machine
operator.5 Tr. 49; see Tr. 87 (vocational expert opinion regarding
available representative jobs).
10. “The claimant has not been under a disability, as defined in the
[Act], from June 3, 2016, through the date of this decision.”
III. 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); see also Biestek v. Berryhill, _U.S._, 139 S. Ct. 1148,
1154, 203 L. Ed. 2d 504 (2019) (Substantial evidence “means-and means
only-such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion’” (citations omitted)). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such
“Unskilled work is work which needs little or no judgment to do simple duties
that can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a).
Further, unskilled work is work involving understanding, remembering, and carrying out
simple instructions; making simple work-related decision; dealing with changes in a
routine work setting; and responding appropriately to supervision, co-workers, and usual
work situations. SSR 85-15, 1985 SSR LEXIS 20, at *10-11 (1985). In part, “[l]ight
work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
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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, 405 F.3d at 1211. “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). 6
“In making an initial determination of disability, the examiner must
consider four factors: ‘(1) objective medical facts or clinical findings; (2)
diagnosis of examining physicians; (3) subjective evidence of pain and
disability as testified to by the claimant and corroborated by [other
observers, including family members], and (4) the claimant’s age,
education, and work history.” Bloodsworth, 703 F.2d at 1240 (citations
omitted). 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
This Court may not reweigh the evidence or substitute its own judgment for
that of the Commissioner. Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004). “If the Commissioner’s decision is supported by substantial evidence we must
affirm, even if the proof preponderates against it.” Phillips, 357 F.3d at 1240 (citations
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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. § 404.1509 (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, 224 (2002).
The Commissioner analyzes a claim in five steps. 20 C.F.R.
1. Is the individual currently engaged in substantial gainful
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet
or equal the criteria listed in Appendix 1 of 20 C.F.R. Part
404, Subpart P?
4. Does the individual have the RFC to perform work despite
limitations and are there any impairments which prevent past
An RFC is the most a claimant can still do despite limitations. 20 C.F.R.
§ 404.1545(a)(1). It is an assessment based upon all of the relevant evidence
including the claimant’s description of limitations, observations by treating and
examining physicians or other persons, and medical records. Id. The responsibility
for determining a claimant’s RFC lies with the ALJ. 20 C.F.R. § 404.1546(c); see
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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 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 in the national economy in light of the claimant’s RFC, age,
education, and work experience. Phillips, 357 F.3d at 1237; Jones v.
Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999); Chester, 792 F.2d at 131;
MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R.
Cooper v. Astrue, 373 F. App’x 961, 962 (11th Cir. 2010) (unpublished) (explaining
claimant’s RFC determination “is within the province of the ALJ, not a doctor”).
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§ 404.1520(a)(4)(v). 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).
A claimant bears the burden of proving he or she is disabled and is
responsible for producing evidence in support of the claim. See 20 C.F.R.
§ 404.1512(a); Moore, 405 F.3d at 1211.
IV. Legal Analysis
Substantial Evidence Supports the ALJ’s Determination
that Plaintiff is not disabled.
Plaintiff argues that the ALJ’s RFC determination is not supported
by substantial evidence because the ALJ failed to properly weigh the
opinion of one-time consulting examiner, Linda Abeles, Ph.D., a licensed
psychologist. Plaintiff also argues the ALJ erred because he “provided
for limitations he improperly made up out of whole cloth.” ECF No. 14 at
1. In short, Plaintiff challenges the ALJ’s evaluation of Dr. Abeles’
opinion and the ALJ’s mental RFC findings. ECF No. 14 at 12-21.
The ALJ determined Plaintiff retained the RFC to “perform less than
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the full range of light work” with several limitations.8 Tr. 45; see supra at
6. The ALJ properly considered Plaintiff’s work-related limitations from
mental impairments; and the RFC determination is supported by the
The ALJ began the RFC assessment with a discussion of Plaintiff’s
allegations pertaining to her inability to perform work activity due to IgG4RD, polyarthritis, dyspepsia, and anxiety. Tr. 46. The ALJ considered
Plaintiff’s hearing testimony and other pre-hearing statements, which
included Plaintiff’s daily activities.9 Tr. 46, 251-68, 273-80.
The ALJ discussed Plaintiff’s physical complaints, including Ig4-RD,
polyarthritis, and dyspepsia, at length beginning in 2015 through 2017.
Tr. 46-47. Plaintiff was prescribed amitriptyline to address her anxiety
symptoms in August 2016. Tr. 47. The ALJ noted:
See supra at 10 n.7.
The ALJ may consider a claimant’s daily activities when assessing the
credibility of her complaints. Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987);
20 C.F.R. § 404.1529(c)(3)(i) (providing that daily activities are relevant and can be
considered by the ALJ when evaluating a claimant’s symptoms); but see Lewis v.
Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997) (“participation in everyday activities of
short duration, such as housework or fishing” does not disqualify a claimant from
disability). A claimant’s ability to do some work, even at a low level, “may indicate that
she is able to do more work.” Cooper v. Comm’r of Soc. Sec., 521 F. App’x 803, 808
(11th Cir. 2013) (unpublished).
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During appointments with her providers, she was oriented to
person, place and time; exhibited normal behavior; had normal
judgment and thought content and had a normal mood and affect
(Exhibits 1F-3F [Tr. 320-58], 10F-12F [449-74], 16F [487-513],
17F [514-66] and 19F-21F [587-845]). There is no evidence she
received mental health therapy, inpatient psychiatric nor
emergency psychiatric treatment during the adjudicative period.
She testified that, while she has been directed to take her anxiety
medication twice a day, she only takes it once a day. As the
evidence of record demonstrated that her anxiety was wellmanaged, despite her failure to take her medication as directed,
her anxiety is not so severe as to prevent her from performing
In part, “[m]edical opinions are statements from acceptable medical
sources that reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis
and prognosis, what [the claimant] can still do despite impairments, and
[the claimant’s] physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a)(1). Opinions on whether a claimant is unable to work or
disabled “are not medical opinions, as described in paragraph (a)(1) of this
section, but are, instead, opinions on issues reserved to the Commissioner
because they are administrative findings that are dispositive of a case; i.e.,
that would direct the determination or decision of disability.” Id.
§ 404.1527(d). “[A] statement by a medical source that [the claimant is]
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‘disabled’ or ‘unable to work’ does not mean that [the Commissioner] will
determine that [the claimant is] disabled.” Denomme v. Comm’r, Soc. Sec.
Admin., 518 F. App’x 875, 877-78 (11th Cir. 2013) (unpublished) (quoting
20 C.F.R. § 404.1527(d)(1)). Such opinions can never be entitled to
controlling weight or given special significance. SSR 96-5p, July 2, 1996,
repealed eff. Mar. 27, 2017.
On February 7, 2017, Plaintiff underwent a one-time consultative
examination with Dr. Abeles. 10 Tr. 435-37 (Exhibit 8F). Plaintiff was
referred for a general clinical evaluation with mental status to assess her
level of functioning. Tr. 435. Plaintiff’s educational history included
earning an Ed.S. in mathematics. “Her vocational history includes a 29year tenure teaching secondary school mathematics in both Alachua and
Putnam counties in Florida, a position she left on June 3, 2016 resultant to
‘stress.’” Tr. 436. Plaintiff told Dr. Abeles that she was mostly able to
care for her daily personal needs, although she reported having difficulty
removing her shirt. Her daily activities included watching television,
The opinion of a one-time examiner is not entitled to great weight. McSwain
v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987); see also Huntley v. Soc. Sec. Admin.,
683 F. App’x 830, 832 (11th Cir. 2017 (unpublished) (“The [ALJ] need not defer to the
opinion of a physician who conducted a single examination because that physician is
not a treating physician.”) (citations omitted)).
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cooking, going to the gym, and attending doctor’s appointments. Id. She
referenced her poor relationship with her estranged sister throughout the
interview. Tr. 435. She attempted to control the interview; and her phone
rang repeatedly during the evaluation. Tr. 436.
Dr. Abeles noted that Plaintiff presented as overweight but “was
nicely dressed and groomed. There were no visible physical deformities
and her gait appeared to be within normal limits. No obvious impairments
were evident in her vision, hearing or speech abilities.” Id. Plaintiff “was
fully oriented to time, date and location.” Id.
Plaintiff scored 26 out of 30 points on the Montréal Cognitive
Assessment, indicating intact cognitive functioning, and her visual
spatial/executive, naming, attentional, language, and abstraction abilities all
appeared intact. Id. Dr. Abeles noted that overall, Plaintiff’s “presentation
was inconsistent with cognitive impairment,” id., but “was consistent with a
personality disorder,” but not further specified. Tr. 437. (The diagnostic
impression was “unspecified personality disorder.” Id.) Dr. Abeles opined
psychological condition would not appear to constitute a hindrance
which would prevent her from obtaining employment; however, her
personality disorder traits may make it difficult for her to sustain
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employment. The claimant would appear competent to manage any
monies to which she may be entitled. Prognosis for future success
in the workplace is judged to be fair.
As noted above, the ALJ considered medical records pertaining to
Plaintif’s anxiety symptoms. Tr. 47; see supra at 13-14. A review of
these records indicates that Plaintiff continued to deny anxiety and
depression at her 2016 and 2017 medical appointments, Tr. 330, 344, 346,
363, 367, 451, 455, 460, 470, 531, 536, 540, and her provider observed
normal mood and affect. Tr. 324, 472, 613. In March 2018, when Plaintiff
went to the emergency room for lightheadedness, she reported walking at
least one mile daily and making healthy dietary changes to lose weight.
Tr. 767. Plaintiff exhibited normal mood and affect, Tr. 769, and continued
to exhibit normal mood and affect in September 2018. Tr. 774.
At October 2018 and January and March 2019 appointments with her
gynecologist, Plaintiff denied anxiety, depression, and irritability and
exhibited normal mood and affect. Tr. 783-84, 789-90, 797.
As the ALJ noted, see supra at 13-14, Plaintiff took her anxiety
medication (amitriptyline) once a day, even though it was prescribed for
twice a day, but still exhibited normal mood, affect, judgment, and behavior.
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Tr. 47, 436-37, 472, 594, 613, 617, 655, 769, 774, 784, 790, 797. She did
not receive mental health treatment beyond medication and routinely
denied depression and anxiety symptoms. Tr. 47, 330, 333, 341, 343,
346, 451, 455, 460, 470, 531, 536, 540, 783, 789, 797.
The ALJ also noted that Plaintiff’s daily activities undermined her
allegations of disabling symptoms. Tr. 46; see supra at 13 n.9
(appropriate to consider daily activities when evaluating a claimant’s
subjective complaints). These daily activities included Plaintiff running a
household, driving whenever she needed, shopping in stores, presenting at
a gym for strength training and cardio workouts, and traveling to Atlanta
with her son to manage her properties. Tr. 46, 78, 80-82, 85, 436.
The ALJ assigned “little weight to the opinion of” Dr. Abeles and
[Dr. Abeles’] determination that the claimant has unspecified
personality disorder is inconsistent with the objective medical
evidence, which demonstrates that the claimant has been diagnosed
with (and treated for) anxiety (See Exhibits 10F [Tr. 449-52], 11F
[Tr. 453-64], 17F [Tr. 514-66], and 21F) [Tr. 776-845]. Further,
[Dr. Abeles] failed to perform any type of functional analysis of the
claimant’s abilities and limitations. However, weight is given to
[Dr. Abeles’] determination that the claimant’s mental impairment
would not appear to constitute a hindrance to her ability to obtain
employment, as it is consistent with the longitudinal record taken as a
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The ALJ considered Dr. Abeles’ opinion, weighed it, and explained
the reasons for that weight. Tr. 48. The record supports the ALJ’s
determination that Plaintiff had minimal treatment for anxiety and no
treatment for (unspecified) personality disorder, see Tr. 437. Id. In fact,
Plaintiff did not allege she was disabled because of a personality disorder.
The record does not contain independent evidence of a personality
disorder; and Dr. Abeles did not explain how she arrived at that diagnosis.
The ALJ properly discounted Dr. Abeles’ opinion because it was
inconsistent with the record as a whole and because it was conclusory.
Tr. 48. Both are valid reasons for discounting a one-time consultant’s
opinion. See generally Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1159-60 (11th Cir. 2004).
The ALJ also correctly noted that Dr. Abeles’ opinion lacked specific
functional limitations. Tr. 48. Dr. Abeles stated that Plaintiff may have
difficulty sustaining employment because of her personality disorder;
however, Dr. Abeles did not specify what functional limitations Plaintiff
would have or identify the objective bases for those limitations. Tr. 438.
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Agency regulations provide that the more a medical source presents
relevant evidence to support a medical opinion, the more weight the
opinion may receive. 20 C.F.R. § 404.1527(c)(3). In this regard,
Dr. Abeles’ report is lacking.
The ALJ’s RFC determination limited Plaintiff, for example, to
performing less than the full range of light work and performing “simple
and detailed tasks; no more than occasional contact with coworkers,
supervisors and the public at workplace changes should be introduced
gradually and infrequently.” Tr. 45; see supra at 6. Substantial
evidence supports the ALJ’s consideration of the medical opinions of
record and RFC determination.
“Conversely, the [ALJ] assign[ed] great weight to the opinion of the
consultant at the reconsideration level (Exhibit 3A). The consultant’s
determination that the claimant could perform a range of light work with
postural, manipulative and environmental limits is consistent with and
supported by the objective medical evidence, discussed above.” Tr. 47;
see also Tr. 121-23 (physical RFC assessment).
The ALJ must articulate the weight given to the medical opinions and
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the reasons for that weight. See Winschel v. Astrue, 631 F.3d 1176, 1179
(11th Cir. 2011). As the finder of fact, the ALJ is charged with the duty to
evaluate all the medical opinions of the record resolving conflicts that might
appear. 20 C.F.R. § 404.1527.11 When considering medical opinions,
the following factors apply for determining the weight to give to any medical
opinion: (1) the frequency of examination and the length, nature, extent of
the treatment relationship; (2) the evidence in support of the opinion, such
as “[t]he more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more weight”
that opinion is given; (3) the opinion’s consistency with the record as a
whole; (4) whether the opinion is from a specialist and, if it is, it will be
accorded greater weight; and (5) other relevant but unspecified factors. Id.
§ 404.1527(b) & (c).
Although an ALJ considers the opinions of State agency medical or
psychological consultants, an ALJ is not bound by their findings. Id.
§ 404.1527(f)(2). Notwithstanding, state agency consultants are
This provision applies to claims filed before March 27, 2017. For claims filed
after that date, section 404.1520c, titled “How we consider and articulate medical
opinions and prior administrative medical findings for claims filed on or after March 27,
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considered experts in the Social Security disability programs and their
opinions may be entitled to great weight if their opinions are supported by
the evidence in the record. Id. § 404.1527(e)(2)(i). An ALJ does not give
undue weight to a State agency opinion, even though the state agency
consultant did not review the entire record, where the ALJ, who made the
ultimate determination, had access to the entire record. See Cooper v.
Comm’r of Soc. Sec., 521 F. App’x 803, 807 (11th Cir. 2013) (unpublished).
Here, the ALJ expressly considered and weighed the opinions of the State
agency reviewers and gave those opinions appropriate weight, and, in
some case, less weight when the opinions were less than favorable to
Plaintiff. Tr. 47-48. Substantial evidence supports the ALJ’s
consideration of the medical evidence, including the State Agency
consultant who determined Plaintiff could perform a range of light work with
limitations. Tr. 47; see also Tr. 121-23.
Using the PRT for assessing the severity of mental impairments, the
ALJ determined that Plaintiff had moderate difficulties in all four broad
domains. Tr. 44-45; see supra at 6 n.3. PRT ratings are not an
assessment of claimant’s RFC; rather, they are used to rate the severity of
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the claimant’s mental impairments at steps two and three of the sequential
evaluation process. See 20 C.F.R. §§ 404.1520(a)(4)(ii)-(iii),
404.1520a(d)(1), (d)(2); see supra at 6 n.3.
At step five of the sequential evaluation process, the ALJ accounted
for Plaintiff’s moderate limitations in the PRT domain of using,
remembering, or applying information by limiting her as provided in the
RFC including the ability to perform simple and detailed tasks. Tr. 45, 8788. The vocational expert responded that such a person could perform the
light, unskilled work of hand packer, production labor, and production
machine operator. Tr. 49, 87. The questions were properly formulated
such that it included Plaintiff’s credible mental limitations, so the expert’s
testimony that Plaintiff could perform other work is substantial evidence
supporting the Commissioner’s decision. Id. See Phillips, 357 F.3d at
1240 (“A vocational expert is an expert on the kinds of jobs an individual
can perform based on his or her capacity and impairments.”).
Plaintiff’s argument that the ALJ “played doctor” by rejecting the
personality disorder diagnosis is rejected. ECF No. 14 at 16. Aside from
Dr. Abeles, none of Plaintiff’s treating sources considered or diagnosed a
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personality disorder. Dr. Abeles did not explain how she arrived at the
diagnosis or explain how the impairment would impact her functional
abilities. “The severity of a medically ascertained disability must be
measured in terms of its effect upon ability to work, and not simply in terms
of deviation from purely medical standards of bodily perfection normality.”
Russell v. Astrue, 331 F. App’x 678, 681 (11th Cir. 2009) (unpublished)
(quoting McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). The
ALJ properly focused on the limited effects of Plaintiff’s psychological
condition as a whole.
Further, Plaintiff’s argument that the ALJ improperly “played doctor”
by formulating an RFC without any medical opinions is rejected. ECF No.
14 at 20. As noted herein, see supra at 10 n.7, the ALJ has the sole
responsibility of assessing claimant’s RFC, not a medical source such as
Dr. Abeles. 20 C.F.R. § 404.1546(c). Substantial evidence supports the
ALJ’s RFC determination.
Finally, Plaintiff argues that the ALJ should have further developed
the record to obtain a medical opinion. This argument is rejected.
Plaintiff has the burden of proving and producing evidence in support of her
claim. 20 C.F.R. § 404.1512; Ellison v. Barnhart, 355 F.3d 1272, 1276
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(11th Cir. 2003). The record is sufficient to support the ALJ’s decision
and, as a result, an additional consultative examination was unnecessary.
See 20 C.F.R. § 404.1519a(b). In addition, Plaintiff has not shown
prejudice justifying a remand to the Commissioner for further development
of the record. See Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995).
The ALJ properly evaluated the medical opinions of record, including
Dr. Abeles’ consultative report and opinions contained therein, and properly
assessed Plaintiff’s RFC.
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. Accordingly, pursuant to 42 U.S.C § 405(g), the
decision of the Commissioner to deny Plaintiff’s application for Social
Security benefits is AFFIRMED and the Clerk is DIRECTED to
enter judgment for the Defendant.
IN CHAMBERS at Tallahassee, Florida, on February 16, 2021.
s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
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