KELLY v. COLVIN

Filing 18

MEMORANDUM ORDER re 1 COMPLAINT. The decision of the Commissioner is AFFIRMED and plaintiff's applications for Disability Insurance Benefits and Supplemental Security Income are DENIED. Clerk is directed to close the file. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on 02/01/2017. (MB)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
MICHELE NICOLE KELLY,
Plaintiff,
v.

Case No. 3:16cv14-CJK

CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
______________________________/
MEMORANDUM ORDER
This case is before the court pursuant to 42 U.S.C. § 405(g) for review of a
final determination of the Commissioner of Social Security (“Commissioner”)
denying Michele Nicole Kelly’s applications for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34, and
Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§
1381-83. The parties have consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C. § 636(c) and FEDERAL RULE OF CIVIL PROCEDURE 73 for all proceedings in
the case, including entry of final judgment. Upon review of the record before the
court, I conclude the findings of fact and determinations of the Commissioner are

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supported by substantial evidence. The decision of the Commissioner, therefore, will
be affirmed and both applications for benefits will be denied.
ISSUE ON REVIEW
Ms. Kelly, who will be referred to as claimant, plaintiff, or by name, raises one
issue on appeal, arguing the ALJ erred in giving little weight to the opinion of her
treating physician, Dr. Adam Tarnosky, and treating psychiatrist, Dr. Annie Cherian,
and giving great weight to the opinions of state agency consultants, Dr. Robert
Hodes and Dr. Patrick Peterson.
PROCEDURAL HISTORY
Ms. Kelly filed her applications for DIB and SSI on February 23, 2012,
alleging disability beginning August 25, 2011.1 T. 49.2 Her claims were denied
initially and on reconsideration. T. 170-92. After filing a request for a hearing, Ms.
Kelly appeared before an Administrative Law Judge (“ALJ”) on February 25, 2014.
T. 46-88. On May 22, 2014, the ALJ issued a decision denying her claims for
benefits. T. 23-40. Ms. Kelly petitioned the Appeals Council for review of the ALJ’s

1

Ms. Kelly initially identified her onset date as August 24, 2011. She later amended it to
August 25.
2

The administrative record, as filed by the Commissioner, consists of 10 volumes (docs. 12-1
through 12-9) and has 746 consecutively numbered pages. References to the record will be by “T.,”
for transcript, followed by the page number.
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decision. T. 15. The Appeals Council denied her request; as a result, the ALJ’s
decision became the final determination of the Commissioner. T. 1-5.
FINDINGS OF THE ALJ
In her written decision, the ALJ made a number of findings relevant to the
issues raised in this appeal:
•

“The claimant has the following severe impairments: history of seizures,
migraine headaches, lumbar radiculopathy, left hip bursitis,
osteoarthritis, asthma, history of gastroparesis, obesity, depression,
bipolar disorder, anxiety, and history of alcohol abuse, not material and
in remission (20 CFR 404.1520(c) and 416.920(c)).” T. 25.

•

Ms. Kelly has the residual functional capacity to perform less than light
work, as defined in 20 CFR 404.1567(b) and 416.967(b). She can lift
and carry 10 pounds frequently and 20 pounds occasionally and sit for
a total of 6 hours and stand and walk for a total of 4 hours each during
an 8-hour workday. She can frequently use her upper and lower
extremities to push and pull; she also can frequently balance, stoop,
kneel, crouch, crawl, and climb ramps and stairs. She cannot climb
ladders, ropes, or scaffolds. She can frequently reach overhead and

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continuously handle, finger, and feel, but she must avoid exposure to
extreme heat or cold and pulmonary irritants. She cannot work around
unprotected heights or dangerous machinery and, because of her history
of seizures, she should not drive or work around large bodies of water
or open flames. She is limited to simple routine tasks involving no more
than simple, short instructions, as well as jobs with simple work related
decisions and few workplace changes. She can interact with the general
public only occasionally, but can sustain concentration and attention for
two-hour periods. T. 28.
•

“The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).” T. 38.

•

“Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).” T. 38.

•

“The claimant has not been under a disability, as defined in the Social
Security Act, from August 24, 2011, through the date of this decision.
(20 CFR 404.1520(g) and 416.920(g))” T. 39.

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STANDARD OF REVIEW
A federal court reviews the “Commissioner’s decision to determine if it is
supported by substantial evidence and based upon proper legal standards.” Lewis v.
Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936
F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse the decision of the
[Commissioner] only when convinced that it is not supported by substantial evidence
or that proper legal standards were not applied.”). 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, 91 S. Ct. 1420, 28 L. Ed. 2d
842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206,
83 L. Ed. 126 (1938)). “Substantial evidence is something ‘more than a mere
scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)).
Even if the evidence preponderates against the Commissioner’s decision, the decision
must be affirmed if supported by substantial evidence. Sewell v. Bowen, 792 F.2d
1065, 1067 (11th Cir. 1986).
When reviewing a Social Security disability case, the court “‘may not decide
the facts anew, reweigh the evidence, or substitute [its] judgment for that of the

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[Commissioner.]’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also Hunter v.
Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (“In determining
whether substantial evidence supports a decision, we give great deference to the
ALJ’s factfindings.”) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d
1079, 1082 (11th Cir. 1996)). A reviewing court also may not look “only to those
parts of the record which support the ALJ[,]” but instead “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). Review is
deferential to a point, but the reviewing court conducts what has been referred to as
“an independent review of the record.” Flynn v. Heckler, 768 F.2d 1273 (11th Cir.
1985).1
The Social Security Act defines disability as 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. §
1

The Eleventh Circuit not only speaks of an independent review of the administrative record, but
it also reminds us that it conducts a de novo review of the district court’s decision on whether
substantial evidence supports the ALJ’s decision. See Ingram v. Comm’r of Soc. Sec. Admin., 496
F.3d 1253, 1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
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423(d)(1)(A). To qualify as a disability, the physical or mental impairment must be
so severe that the plaintiff not only is unable to do her previous work, “but cannot,
considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy[.]” Id. § 423(d)(2)(A).
Pursuant to 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the Commissioner
analyzes a disability claim in five steps:
1. If the claimant is performing substantial gainful activity, she is not disabled.
2.

If the claimant is not performing substantial gainful activity, her

impairments must be severe before she can be found disabled.
3. If the claimant is not performing substantial gainful activity and she has
severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if her impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4. If the claimant’s impairments do not prevent her from performing her past
relevant work, she is not disabled.2

2

Claimant bears the burden of establishing a severe impairment that keeps her from performing her
past work. Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986).
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5. Even if the claimant’s impairments prevent her from performing her past
relevant work, if other work exists in significant numbers in the national economy
that accommodates the claimant’s residual functional capacity and vocational factors,
she is not disabled.
Step five (or step four in cases where the ALJ decides a claimant can perform
past work) is generally where the rubber meets the road. At that point, the ALJ
formulates the all-important residual functional capacity (“RFC”).

The ALJ

establishes RFC, utilizing the impairments identified at step two, by interpretation of
(1) the medical evidence; and (2) the claimant’s subjective complaints (generally
complaints of pain). Residual functional capacity is then used by the ALJ to make
the ultimate vocational determination required by step five.3 “[R]esidual functional
capacity is the most [a claimant] can still do despite [claimant’s] limitations.4 20
3

“Before we go from step three to step four, we assess your residual functional capacity. (See
paragraph (e) of this section.) We use this residual functional capacity assessment at both step four
and step five when we evaluate your claim at these steps.” 20. C.F.R. §§ 404.1520(a)(4),
416.920(a)(4).
4

In addition to this rather terse definition of RFC, the Regulations describe how the
Commissioner makes the assessment:
(3) Evidence we use to assess your residual functional capacity. We will assess your
residual functional capacity based on all of the relevant medical and other evidence.
In general, you are responsible for providing the evidence we will use to make a
finding about your residual functional capacity. (See § 416.912(c).) However,
before we make a determination that you are not disabled, we are responsible for
developing your complete medical history, including arranging for a consultative
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C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). Often, both the medical evidence and the
accuracy of a claimant’s subjective complaints are subject to a degree of conflict and
that conflict leads, as in this case, to the points raised on judicial review by the
disappointed claimant.
FACT BACKGROUND5
Ms. Kelly was 39 years old at the time of the hearing. T. 52. She completed
the eleventh grade and had not worked since her alleged onset date. T. 52. She had
past relevant work as a daycare worker and waitress. T. 52-53. When asked why she
felt she was unable to work, Ms. Kelly responded:
I stay in my room a lot. I stay alone. I stay in a lot of pain.
I have trouble walking. I can’t stand for a long period of
time. I stay on pain medicine. I just lay in bed because I’m
so depressed. I’m just depressed a lot. I can’t be around
anybody.
examination(s) if necessary, and making every reasonable effort to help you get
medical reports from your own medical sources. (See §§ 416.912(d) through (f).)
We will consider any statements about what you can still do that have been provided
by medical sources, whether or not they are based on formal medical examinations.
(See § 416.913.) We will also consider descriptions and observations of your
limitations from your impairment(s), including limitations that result from your
symptoms, such as pain, provided by you, your family, neighbors, friends or other
persons. (See paragraph (e) of this section and § 416.929.)[.]
20 C.F.R. § 416.945(a)(3).
5

The medical and historical facts of this case, as set out below, were derived primarily from
plaintiff’s testimony at the hearing and also the administrative record.
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T. 54.
Ms. Kelly received mental health treatment at Lakeview Center. T. 63. At the
time of the hearing, she had an appointment once every three months. T. 63. She
explained she initially saw a different person each time she went to Lakeview, but
eventually started seeing Ms. Poet, a counselor, on a regular basis. T. 63. She had
seen Ms. Poet 3 times as of the date of the hearing. T. 63. Ms. Kelly was prescribed
medication for depression, anxiety, and bipolar disorder. T. 64. She said she took her
medications, but “they d[id]n’t work.” T. 64. She had never received inpatient
treatment for mental health issues. T. 65.
When discussing her outpatient treatment, Ms. Kelly said she “ha[d] to go. I
have problems dealing with life. I have to go see my psychiatrist. I deal with a lot
of stress. . . . I have to go and talk to him or her and try to get on right medications.
Like I said earlier, I’m usually away from everybody. I stay alone. I just can’t be
around people. I just can’t do it.” T. 65-66. At the time, however, Ms. Kelly lived
with her mother, who also suffered from mental health issues, her 4-year old
daughter, and her boyfriend. T. 66.
With regard to the daughter, Ms. Kelly testified “[s]he pretty much stays – my
room is close to her room, so she pretty much plays by herself, and my mom is there

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so my mom kind of keeps an eye out on her. And my boyfriend lives there too, so
when he comes home from work he pretty much takes care of her and feeds her and
things like that.” T. 66. She said her “boyfriend usually does everything,” despite the
fact he worked from early in the morning until about 5:00 in the afternoon. T. 68.
When he was not around, her “mom w[ould] ask her what does she need and I tell my
mom what she needs, and my mom just asks me questions about what my daughter
needs and she gets what my daughter needs.” T. 67. Her daughter also was “tall
enough to reach to get things on her own.” T. 68.
At times, however, Ms. Kelly bathed, dressed, and played with her daughter.
T. 68. She occasionally went outside with her daughter and would “sit on the bench
and watch her for probably maybe 20 minutes or so, and then . . . go back inside [her]
room.” T. 75. Her boyfriend took her daughter to all activities and functions, such
as birthday parties and the park. T. 75. Ms. Kelly said she never picked up or carried
her daughter, who weighed 32 pounds at the time of the hearing. T. 73-74. When
confronted with prior testimony she lifted and carried her daughter at 20 pounds, Ms.
Kelly said she quit doing those things because of her shoulder. She explained “[o]nce
my shoulder started hurting when I realized that it’s hard for me to wash my hair and
when I stood in the shower and my feet started hurting and burning and my shoulder
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started hurting when I was washing, when I started washing my hair and all.” T. 74.
Plaintiff described her typical day as follows: “Well, I pretty much get up and
get me something to drink, and I pretty much go in my room and stay in my room and
just lay there and don’t get around anybody. I make sure my mom checks on my fouryear-old, and I just lay in my bed. Sometimes I cry. You know, right now I’m having
a rough time dealing with life . . . .” T. 66-67. When going to the doctor or grocery
store, Ms. Kelly took a cab.6 T. 69. She sometimes went grocery shopping with her
mother or boyfriend. T. 69. She could make cereal, use the microwave “if [she] fe[lt]
like it,” and make a sandwich. T. 72. She watched television but “[n]ot all the time
because [she was] too depressed.” T. 72. When in her room, she “just la[id] there in
[her] bed. [She] really [didn’t] do anything besides lay there” because she was “too
depressed” and had “a lot going on in [her] head.” T. 73.
She saw her family practitioner, Dr. Tarnosky, “maybe once every two weeks.”
T. 73. He treated her for a myriad of health issues. She engaged in no other activities
outside the home, but occasionally had friends over and would “sit on the couch.”
T. 74-75. Ms. Kelly said she could lift and carry 5 to 10 pounds. T. 75. She could
not estimate the amount of time she could sit, stand, or walk, but explained she was
6

There is an indication in the record she had no vehicle “due to DUIs.” T. 96.

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“doing all right right now, but usually [her] back [was] burning or [her] hip [was]
bothering [her]. But it just depend[ed] how bad the pain in [her] hip and [her] back
hurt.” T. 76.
Ms. Kelly suffered from seizures but could not recall the last time she had one.
T. 54. She said it was “[p]robably maybe five/six months ago.” T. 54. She was
taking Topamax, an anti-seizure medication. T. 54. She said the seizures were not
severe enough to cause her to go to the emergency room or be treated at a hospital.
T. 54-55. When asked to describe the seizures, however, she said “when they get real
bad I do have to go to the ER, but when they’re light they’re not where I have to go
to the ER because Topamax kicks in and it doesn’t make it as bad.” T. 55. It had
been a while since she had been to the emergency room. T. 55.
Ms. Kelly also had migraine headaches. When the ALJ asked about them, she
said she had one two days ago and had to take “1,200 milligrams of Gabapentin” and
“two things” of Imitrex. T. 55. She said “I have to take that and I have to lay down
in a dark room. I had to have a hot washcloth over my head. And it takes – it
depends. Sometimes it takes a couple of days and sometimes it takes a day. It just
depends how bad it gets. And sometimes I have to go to the ER and they have to give

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me a shot of – it’s a narcotic.”7 T. 55-56. The medicine did not always alleviate the
headache, which occurred two to three times a week. T. 56.
With regard to her back, Ms. Kelly testified “[e]very day my back hurts. My
lower back hurts every day. It hurts bad where I can’t move. I literally have to either
sit or lay down, and that’s every day. As a matter of fact, I just saw Dr. Ternowski
[sic] yesterday and he’s not sure what’s going on with my back. He wants to do an
MRI to see what’s going on.” T. 56. Her right shoulder no longer bothered her as
much, except she could not take a shower. T. 58. She said “[l]ike when I wash my
hair, my arm hurts so bad when I was [sic] my hair. Excuse me. When I take a
shower and wash my hair, my shoulder hurts real bad.” T. 58. She was on pain
medication for her back, hip, and shoulder, but it “d[idn’t] work all the time.” T. 58.
Ms. Kelly also had asthma. T. 59. She testified she used an inhaler two or
three times a week; she asked to use it during the hearing. T. 59. She used a
nebulizer once a week. T. 59. She had never been to the emergency room or treated
for any “type of asthma exacerbation episode.” T. 59.
She had gastroparesis, for which she received treatment at Sacred Heart
Hospital. T. 59. The doctor prescribed Prilosec, which did not help. T. 60. She
7

When Ms. Kelly visited the emergency room for a migraine on September 13, 2013, the
doctor was suspicious of “secondary gain or narcotic seeking behaviour.” T. 635.
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“r[an] to the bathroom continuously” because of diarrhea. T. 60. The condition also
caused her to “stay cold.” T. 60. She was on a special diet, but it did not work. T.
61. She took diet pills for thirty days, but did not lose any weight. T. 62. She was
5'1" tall and weighed 197 pounds at the time of the hearing. T. 62. She had never
been to the emergency room, however, or hospitalized as a result of “digestive
issues.” T. 62.
At issue in this appeal are the opinions of Dr. Tarnosky and Dr. Cherian, as
well as those of Dr. Hodes and Dr. Peterson. Dr. Tarnosky completed a Medical
Source Statement on June 10, 2013, indicating Ms. Kelly could constantly lift/carry
up to 5 pounds, frequently lift/carry up to 10 pounds, and never lift/carry more than
that.8 T. 673. In an 8-hour work day, according to the statement of Dr. Tarnosky, Ms.
Kelly could sit for 8 hours and stand and walk for 1 hour each. T. 673. She could
constantly reach above her head, frequently reach in all other directions, and never
squat, crawl, or stoop. T. 673. There were no limitations in the use of her hands, but
she could not use her feet for repetitive movement, such as pushing and pulling leg
controls. T. 673. She had no limitations in exposure to extreme temperatures or
8

According to Dr. Tarnosky’s records, the day he completed the Medical Source Statement,
Ms. Kelly stated she believed she was permanently disabled as a result of bipolar disorder and
musculoskeletal issues. T. 600.
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wetness/humidity and could frequently be exposed to vibrations, but she was never
to be around hazards, such as machinery or heights. T. 673.
Dr. Tarnosky estimated that, “[d]ue to acute exacerbations of pain or other
symptoms, side-effects from medications or other treatments, and/or routine medical
treatment,” Ms. Kelly would be absent from work 5 or more days a month on average
and would require 5 or more breaks a day in addition to a 1-hour lunch break and two
15-minute breaks. T. 673. She would be able to maintain focus and concentration
on simple, repetitive work for only 10 minutes at a time. T. 673. In a separate report,
Dr. Tarnosky stated that, in his opinion, Ms. Kelly was “unable to hold down a job
mainly because of the psychiatric problems,” but her “physical complaints certainly
make it difficult to work for her as well, however.” T. 600.
Dr. Cherian completed a Treating Medical Source Opinion on March 10, 2014.
T. 710. She indicated Ms. Kelly could frequently understand and carry out simple
instructions, maintain neatness and personal hygiene, ask simple questions and/or
seek assistance, and be aware of and avoid normal hazards. T. 710. In Dr. Cherian’s
view, Ms. Kelly could occasionally understand and carry out detailed instructions,
remember work locations and procedures, perform activities within a schedule, be
punctual within customary tolerances, sustain an ordinary routine without

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supervision, work with others without being distracted by them, work with others
without distracting them, make simple work-related decisions, accept instructions and
criticism from supervisors, and adapt to changes in routine work settings. T. 710.
Apparently deferring to Ms. Kelly’s report she rarely left home or socialized, Dr.
Cherian indicated Ms. Kelly could only occasionally interact with new customers or
the general public. T. 710.
Dr. Cherian could not say how long Ms. Kelly could maintain concentration
in simple routine work without getting off task, noting it was “[d]ifficult to place an
exact [amount of time] here, however a common symptom of patient’s mood disorder
is lack of concentration/focus.” T. 710. Dr. Cherian indicated Ms. Kelly would need
unscheduled breaks 3 to 4 times a day in addition to 2 regularly scheduled breaks of
15 minutes and one 30-minute lunch break, although that “may vary.” T. 710. On
average, Dr. Cherian opined, Ms. Kelly likely would be absent from work 3 to 4
times a month, as her “mood disorder tends to work in a cyclical manner in which
symptoms may occur.” T. 710.
Dr. Hodes, a state agency consultant, reviewed the record and concluded Ms.
Kelly had medically determinable impairments that reasonably could be expected to
produce pain or other symptoms, but her statements about the intensity, persistence,

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and functionally limiting effects of her symptoms were not substantiated by the
objective medical evidence. T. 119. Dr. Hodes found Ms. Kelly only “[p]artially
[c]redible.” T. 120. He found mild restriction of activities of daily living; moderate
difficulties in maintaining social functioning and maintaining concentration,
persistence, or pace; and no repeated episodes of decompensation. T. 118. In his
opinion, Ms. Kelly could occasionally lift and/or carry 50 pounds, frequently lift
and/or carry 25 pounds, stand and/or walk and sit about 6 hours in an 8-hour
workday, and push and/or pull without additional restrictions. T. 121. There were
no understanding or memory limitations, but there were limitations in sustained
concentration and persistence. T. 122. According to Dr. Hodes, Ms. Kelly was not
significantly limited in the ability to carry out very short and simple, as well as
detailed, instructions; sustain an ordinary routine without special supervision; and
work in coordination with or proximity to others without being distracted by them.
T. 122.

She was moderately limited in the ability to maintain attention and

concentration for extended periods, perform activities within a schedule, maintain
regular attendance, be punctual within customary tolerances, and complete a normal
workday and workweek without interruptions from psychologically based symptoms

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and perform at a consistent pace without an unreasonable number and length of rest
periods. T. 122.
Dr. Hodes found Ms. Kelly moderately limited in the ability to interact
appropriately with the general public and not significantly limited in the ability to ask
simple questions or request assistance, accept instructions and respond appropriately
to criticism from supervisors, get along with coworkers and peers without distracting
them or exhibiting behavioral extremes, and maintain socially appropriate behavior
and adhere to basic standards of neatness and cleanliness. T. 122-23. She was able
to sustain attention and persist at simple routine tasks for extended periods of 2-hour
segments. T. 123. She also could “sustain effort across work day and work week
with appropriate work breaks” and “maintain regular attendance.” T. 123. He said
she performed satisfactorily in situations with limited social contacts and
responsibilities and was able to learn work rules and respond appropriately to changes
in a routine work setting and adapt to the demands and pressures thereof. T. 123. Dr.
Hodes found Ms. Kelly not disabled and capable of medium, unskilled work. T. 12425.
Dr. Peterson, another state agency consultant, also reviewed the record and
made findings very similar to those of Dr. Hodes. T. 143-53. Like Dr. Hodes, Dr.

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Peterson ultimately found Ms. Kelly not disabled and capable of medium, unskilled
work. T. 152.
As set forth above, based on the evidence of record, the ALJ found Ms. Kelly
not disabled and to have the RFC to perform less than light work. In so doing, she
found Ms. Kelly “not entirely credible.”9 T. 29. Nevertheless, the ALJ determined
Ms. Kelly had mild restriction in activities of daily living. T. 26. She noted Ms.
Kelly testified she stayed in her room the majority of the day and relied on her mother
and boyfriend to care for her daughter; however, Ms. Kelly consistently reported to
healthcare providers she received little assistance from her mother or boyfriend. T.
26. In the ALJ’s view, Ms. Kelly’s ability to care for her child indicated she was able
to perform more activities than she admitted; she found Ms. Kelly capable of
independent daily living. T. 26.
With regard to social functioning, the ALJ found moderate difficulties. T. 26.
She noted Ms. Kelly said she had difficulty being around others, but records from
Lakeview indicated the difficulty stemmed primarily from familial relationships. T.
26. The ALJ acknowledged Ms. Kelly frequently was irritable at appointments, but
9

This was not the first time the ALJ had encountered Ms. Kelly. In fact, this is Ms. Kelly’s
third claim for disability benefits and/or supplemental security income. T. 28. The ALJ in this case
handled her last claim as well. T. 92-107.
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found no evidence of any history of altercations, evictions, firings, fear of strangers,
or avoidance of interpersonal relationships. T. 26. No evidence indicated Ms. Kelly
was “unable to maintain appropriate social relationships on a limited basis.” T. 26.
The ALJ determined Ms. Kelly had moderate difficulties in concentration,
persistence, or pace. T. 27. “Despite the claimant’s alleged mental impairments,
mental status examinations [were] largely unremarkable for objective evidence of
distinct limitations in communication, understanding, comprehension, concentration,
or memory functioning.” T. 27. “[C]laimant did not testify to, nor is there substantial
evidence in the record of, any limitations that would adversely impact her ability to
sustained [sic] focused attention and concentration sufficiently long enough to permit
completion of tasks commonly found in work settings.” T. 27. The ALJ found no
episodes of decompensation of extended duration. T. 27. The ALJ credited Ms.
Kelly’s “testimony regarding some difficulties being around others” and reduced the
RFC “to provide for occasional interaction with the general public.”10 T. 37.

10

A vocational expert, Jim Cowart, also testified at the hearing. When given a hypothetical
with restrictions consistent with the RFC – essentially, a reduced range of light work, Mr. Cowart
testified Ms. Kelly would not be able to perform any of her past work, but could perform other work
in the regional or national economy. T. 80-81. He identified the following jobs: traffic checker,
marker, and mail clerk, all of which are light and unskilled with an SVP of 2. T. 82. When given
a hypothetical with the restrictions imposed by Dr. Tarnosky, he testified plaintiff could not perform
any of her past work or any work in the national or regional economy. T. 82-83.
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In reaching her decision, the ALJ gave “greatest weight” to the opinions of Dr.
Hodes and Peterson “that despite the claimant’s moderate limitations in social
functioning and concentration, persistence, and pace, she remains capable of
performing simple, routine tasks, sustaining concentration and attention for two hour
periods, and generally interacting appropriately with others.” T. 37. The ALJ found
the opinions of Drs. Hodes and Peterson “consistent with the medical evidence which
shows conservative treatment for her alleged symptoms as well as continued
noncompliance with treatment;” they also were “consistent with the claimant’s ability
to care for her young child since the alleged onset date.” T. 37.
The ALJ gave “little weight to limitations endorsed by Dr. Cherian and Dr.
Tarnosky’s opinion that the claimant [was] unable to hold down a job due to her
psychiatric symptoms.” T. 37. The ALJ noted “[p]rogress notes from Lakeview
repeatedly document GAF scores representing moderate limitations in social or
occupational functioning, which is consistent with the restrictions included in the
residual functional capacity.”11 T. 37. The ALJ also observed Ms. Kelly “ha[d] been
11

The GAF rating has two components: (1) symptom severity and (2) social and occupational
functioning. The GAF is within a particular range if either the symptom severity or the social and
occupational level of functioning falls within the range. When the individual’s symptom severity
and functioning level are discordant, the GAF rating reflects the worse of the two. The American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV-TR”) 34
(4th ed., text rev., 2000). A GAF between 51 and 60 indicates “moderate symptoms (e.g., flat affect
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treated conservatively with medication management and . . . ha[d] not required
inpatient or emergent treatment for stabilization of her symptoms.” T. 37. Moreover,
Ms. Kelly “consistently reported she is the primary caregiver for her young child,
which suggests a level of functioning that is significantly higher than the limitations
endorsed by Dr. Cherian and Dr. Tarnosky.” T. 37. “Finally, the [ALJ] note[d] that
the claimant testified she ha[d] seen Dr. Cherian on only one occasion, suggesting a
limited treatment history with her.” T. 37.
The ALJ found Ms. Kelly’s “testimony regarding her limitations resulting from
her mental impairments . . . not supported by the medical evidence or her activities
of daily living.” T. 37. “In addition to noncompliance with recommendations for
counseling, the claimant self-medicate[d] and self-adjust[ed] her medications.” T. 3738. Furthermore, “[m]ental status examinations fail[ed] to show significant deficits
in concentration and attention. Progress notes indicate[d] the claimant reported
and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational,
or school functioning;” a GAF between 61 and 70 indicates “mild” symptoms or “some difficulty
in social, occupational or school functioning,” but “generally functioning pretty well;” a GAF score
between 71 and 80 indicates transient and expectable reactions to psychosocial stressors and no more
than an slight impairment in social, occupational, or school functioning; a GAF score between 81
and 90 indicates no or minimal symptoms and good functioning in all areas. Id. The most recent
edition of the Diagnostic and Statistical Manual no longer recommends use of the GAF scale,
acknowledging that “[i]t was recommended that the GAF be dropped from DSM-5 for several
reasons, including its conceptual lack of clarity and questionable psychometrics in routine practice.”
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 16 (5th
ed. 2013).
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symptoms largely related to situational stressors.” T. 38. “Despite this, [Ms. Kelly]
frequently indicated she [was] the caregiver for her young child” and “stated she
[was] able to make simple meals, watch television, grocery shop, and run errands.”
T. 38. “Ultimately, the [ALJ found] neither the objective medical evidence, nor the
testimony of the claimant, establishe[d] that her ability to function ha[d] been so
severely impaired as to preclude all types of work activity.” T. 38.
ANALYSIS
Ms. Kelly contends the ALJ erred in assigning little weight to the opinions of
Drs. Tarnosky and Cherian, arguing they were treating physicians and, absent good
cause, their opinions were entitled to considerable or substantial weight. See Phillips
v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004); Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Broughton v. Heckler, 776 F.2d 960, 960-61 (11th Cir.
1985); Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). “Good cause” exists
when: (1) the treating physician’s opinion was not bolstered by the evidence; (2) the
evidence supported a contrary finding; or (3) the treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records. Phillips, 357 F.3d
at 1241; see also Lewis, 125 F.3d at 1440 (citing cases). If a treating physician’s
opinion as to the nature and severity of a claimant’s impairments is well-supported

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by medically acceptable clinical and laboratory diagnostic techniques, and is not
inconsistent with other substantial evidence in the record, the ALJ is to give it
controlling weight. See 20 C.F.R. § 404.1527(c)(2). Where a treating physician has
merely made conclusory statements, however, the ALJ may afford them such weight
as is supported by clinical or laboratory findings and other consistent evidence of a
claimant’s impairments. See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986); see also Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987). When a
treating physician’s opinion does not warrant controlling weight, the ALJ
nevertheless must weigh the medical opinion based on (1) the length of the treatment
relationship and the frequency of examination; (2) the nature and extent of the
treatment relationship; (3) medical evidence supporting the opinion; (4) consistency
with the record as a whole; (5) specialization in the medical impairments at issue; and
(6) other factors which tend to support or contradict the opinion. 20 C.F.R. §
404.1527(d).
Opinions on certain issues, such as a claimant’s RFC and whether a claimant
is disabled, “are not medical opinions, . . . 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

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disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d); see SSR 96-5p. Opinions
reserved to the Commissioner, even when offered by a treating physician, are not
entitled to controlling weight or special significance. See SSR 96-5p. “Giving
controlling weight to such opinions . . . would be an abdication of the
Commissioner’s statutory responsibility to determine whether an individual is
disabled.” Id. Although a physician’s opinions about what a claimant can still do or
the claimant’s restrictions may be relevant, therefore, such opinions are not
determinative because the ALJ has the responsibility of assessing the claimant’s RFC.
See 20 C.F.R. §§ 416.912(b)(2), 416.913(b)(6), 416.927(d)(2), 416.945(a)(3),
416.946(c); SSR 96-5p.
“When electing to disregard the opinion of a treating physician, the ALJ must
clearly articulate [her] reasons.” Phillips, 357 F.3d at 1241. Failure to do so is
reversible error. Lewis, 125 F.3d at 1440 (citing MacGregor v. Bowen, 786 F.2d
1050, 1053 (11th Cir. 1986)). An ALJ may choose to accept some conclusions – or
restrictions – within an opinion while rejecting others. If such a choice is made, in
addition to explaining the overall weight given to a particular medical opinion, the
ALJ also must explain “‘with at least some measure of clarity the grounds for [a]
decision’” to adopt particular aspects of a medical opinion. Winschel, 631 F.3d at

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1179 (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)). Failure to
explain the rationale for crediting only certain aspects of an opinion will result in a
reviewing court “declin[ing] to affirm ‘simply because some rationale might have
supported the ALJ’s conclusion.’” Id.
The ALJ’s decision to assign little weight to the opinion of Dr. Tarnosky
regarding plaintiff’s physical limitations was based on her conclusion the limitations
imposed were “inconsistent with his treatment records and those of the claimant’s
orthopedist, Dr. Morrison, which show minor abnormalities on physical
examination.” T. 34. The ALJ pointed out that “[s]traight leg raises were negative
and [Ms. Kelly’s] motor strength and sensation were intact. There was only mild
diffuse tenderness over the lumbar region and tenderness over the trochanters. Nerve
conduction studies were also normal.” T. 34. The ALJ also found Dr. Tarnosky’s
opinion “inconsistent with the other medical evidence documenting improvement
with medication in June, August, and September of 2013.” T. 34. “In addition, these
limitations and the indication that the claimant is only able to maintain focus for
simple, repetitive work for 0-10 minutes due to pain are inconsistent with frequent
references in the medical record throughout 2012, 2013, and 2014 that the claimant

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is the primary caregiver for her young child suggesting that her functional limitations
are not as great as alleged.” T. 34.
Dr. Tarnosky’s opinion also was expressed on a check-off form. He gave no
explanation for his opinion and did not identify which of Ms. Kelly’s conditions
caused the impairments he identified.12 A brief and conclusory statement that is not
supported by medical findings, even if made by a treating physician, is not persuasive
evidence of disability. Johns v. Bowen, 821 F.2d 551, 555 (11th Cir. 1987); Warncke
v. Harris, 619 F.2d 412, 417 (5th Cir. 1980).13 Indeed, in this instance, it is
impossible to know the bases of Dr. Tarnosky’s opinion, and there otherwise is no
indication in the record that any of Ms. Kelly’s physical impairments precluded work.
In fact, Dr. Tarnosky, a family physician, found Ms. Kelly unable to work because of

10
Where an opinion, even that of a treating physician, is offered on a form that does not
detail evidence in the record supporting the work-related limitations identified, such opinion will not
bind the Commissioner. See O’Leary v. Schweiker, 710 F.2d 1334, 1341 (8th Cir. 1983) (“Because
of the interpretive problems inherent in the use of forms such as the physical capacities checklist,
our Court has held that while these forms are admissible, they are entitled to little weight and do not
constitute ‘substantial evidence’ on the record as a whole.”); Mason v. Shalala, 994 F.2d 1058, 1065
(3d Cir. 1993) (“Form reports in which a physician’s obligation is only to check a box or fill in a
blank are weak evidence at best. As we pointed out in discussing residual functional capacity
reports, where these so-called reports are unaccompanied by thorough written reports, their reliability
is suspect . . . . ”) (internal marks omitted).
13

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
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mental, not physical, limitations. Considering those facts, along with evidence of
plaintiff’s daily activities, the ALJ’s decision to give little weight to Dr. Tarnosky’s
opinion regarding plaintiff’s physical limitations finds support in substantial evidence
of record. See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (“The
weight afforded a physician’s conclusory statements depends upon the extent to
which they are supported by clinical or laboratory findings and are consistent with
other evidence as to claimant’s impairments.”).
To the extent Dr. Tarnosky opined Ms. Kelly could not work because of
psychological impairments, his opinion is not entitled to controlling weight or special
significance because it pertains to an issue reserved to the Commissioner. In any
event, the ALJ’s decision to give little weight to Dr. Tarnosky’s opinion regarding the
impact of plaintiff’s psychological condition is supported by substantial evidence in
the record.

As the ALJ found, the limitations Dr. Tarnosky imposed were

inconsistent with references in the medical records between 2012 and 2014 to Ms.
Kelly being the primary caregiver for her young child. T. 34, 510, 560, 585, 608,
688. They also were inconsistent with the opinions of Drs. Hodes and Peterson,
which were supported by substantial evidence in the record, and the lack of evidence
of a disabling mental condition. Dr. Tarnosky’s opinion was inconsistent with Ms.

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Kelly’s activities of daily living, including grocery shopping and preparing meals for
herself. See Phillips, 357 F.3d at 1241. The only evidence in the record to support
Dr. Tarnosky’s conclusion is plaintiff’s statement she believed she was disabled,
which is insufficient.
As a threshold matter with Dr. Cherian, the record does not make clear that she,
in fact, was a treating physician. See 20 C.F.R. §§ 404.1502, 416.902. It appears
that, at the time Dr. Cherian rendered the opinion favored by claimant, she may have
examined Ms. Kelly only once and possibly solely in connection with completion of
the medical source opinion form.14 If Dr. Cherian was not a treating physician, her
opinion was not entitled to any deference or special consideration. See 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); see also McSwain v. Bowen, 814 F.2d 617, 619 (11th
Cir. 1987) (holding that one-time examiners are not treating physicians for purposes
of Social Security claims); Gibson v. Heckler, 779 F.2d 616, 623 (11th Cir. 1986)
(same). Ms. Kelly has not carried the burden of showing Dr. Cherian must be viewed
as a treating physician. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting

14

Plaintiff’s testimony on this point is inconsistent. Although she testified she saw Dr.
Cherian only once, she later said she saw Dr. Cherian once before that “a while back.” T. 64. She
then said she never talked to her. T. 77.
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plaintiff bears the burden of proof with regard to the first four steps of the sequential
evaluation process).15
Even assuming, as the ALJ apparently did, that Dr. Cherian was a treating
physician, the ALJ’s decision to give her opinion little weight is supported by
substantial evidence in the record. Dr. Cherian’s treatment of Ms. Kelly, by all
accounts, was limited. Her opinion also was expressed on a check-off form. In
addition, like Dr. Tarnosky’s opinion, Dr. Cherian’s opinion was unsupported by, and
inconsistent with, evidence in the record, including the opinions of Drs. Hodes and
Peterson and Ms. Kelly’s activities of daily living. Again, Ms. Kelly “consistently
reported she [was] the primary caregiver for her young child, which suggests a level
of functioning that is significantly higher than the limitations endorsed by Dr. Cherian
and Dr. Tarnosky.” T. 37. Moreover, Ms. Kelly was “treated conservatively with
medication management and she ha[d] not required inpatient or emergent treatment
for stabilization of her symptoms.” T. 37. Based on all the evidence in the record,
the ALJ concluded “neither the objective medical evidence, nor the testimony of the
15

Evaluation of a treating physician’s testimony can occur at steps two through five of the
sequential evaluation process. Although the burden shifts to the Commissioner at step five to show
other work claimant can perform given her RFC, consideration of a treating physician’s opinions
concerning RFC occurs at step five after the Commissioner has made that showing and claimant
must rebut the Commissioner’s showing. Insofar as treating physicians are concerned, therefore, the
burden remains on plaintiff.
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claimant, establishes that her ability to function has been so severely impaired as to
preclude all types of work activity.” T. 38. The undersigned cannot say the ALJ
erred in that finding, or in giving little weight to the opinion of Dr. Cherian.
The ALJ gave “greatest weight” to the opinions of Drs. Hodes and Peterson,
who found Ms. Kelly capable of medium, unskilled work despite her limitations. T.
37. As recognized in the regulations, state agency medical and psychological
consultants are “highly qualified physicians, psychologists, and other medical
specialists who are also experts in Social Security disability evaluation.” See 20
C.F.R. § 404.1527(e)(2)(I). Under the applicable law, an ALJ may rely upon, and
must consider, the opinions of state agency consultants.

See 20 C.F.R. §

404.1527(e)(2). Specifically, although not bound by such opinions, the ALJ “must
consider findings and other opinions of state agency medical and psychological
consultants and other program physicians, psychologists, and other medical
specialists as opinion evidence, except for the ultimate determination about whether
[claimant is] disabled. . . .” 20 C.F.R. § 404.1527(e)(2)(I).
When considering the findings of a state agency medical or psychological
consultant, the ALJ will look to factors “such as the consultant’s medical specialty
and expertise in our rules, the supporting evidence in the case record, supporting

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explanations the medical or psychological consultant provides, and any other factors
relevant to the weighing of the opinions.” 20 C.F.R. § 404.1527(e)(2)(ii). The ALJ
determines the weight afforded to consultants and, if the ALJ affords controlling
weight to such a consultant, rather than to a treating source, the ALJ must explain the
weight given to the opinion, just as with other medical sources. Id.
Here, not only did the ALJ adequately explain her reasons for giving more
weight to the opinions of Drs. Hodes and Peterson, but that decision finds support by
substantial evidence in the record. The ALJ noted Dr. Hodes’ conclusion Ms. Kelly’s
“problems are more related to her dysfunctional personality than her mood disorder.”
T. 37. She also noted Dr. Hodes’ opinion Ms. Kelly “is able to sustain attention and
persist in simple tasks for extended periods of 2 hour segments,” as well as his
finding Ms. Kelly “is able to maintain regular attendance and be punctual within
customary tolerances,” “get along with workers and peers in an appropriate manner,”
and “perform satisfactorily in situations with limited social contacts and
responsibilities.” T. 37.
The ALJ found the opinions of Dr. Hodes and Peterson “consistent with the
medical evidence which shows conservative treatment for [plaintiff’s] alleged
symptoms as well as continued noncompliance with treatment.” T. 37. “This is also

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consistent with the claimant’s ability to care for her young child since the alleged
onset date.” T. 37. She discredited Ms. Kelly’s testimony regarding limitations
resulting from her mental impairments, finding it “not supported by the medical
evidence or her activities of daily living.” T. 37. The ALJ noted “[i]n addition to
noncompliance with recommendations for counseling, the claimant self-medicates
and self-adjusts her medications. Mental status examinations fail to show significant
deficits in concentration and attention. Progress notes indicate the claimant reported
symptoms largely related to situational stressors. Despite this, she frequently
indicated she [was] the caregiver for her young child.” T. 37-38. In addition, the
ALJ observed, Ms. Kelly “stated she [was] able to make simple meals, watch
television, grocery shop, and run errands.” T. 38. Based on the record, the
undersigned finds the ALJ’s decision to give “greatest weight” to the opinions of Dr.
Hodes and Peterson supported by substantial evidence.
CONCLUSION
For the reasons set forth above, the undersigned finds the Commissioner’s
decision supported by substantial evidence and application of the proper legal
standards.16 See Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (“[T]his
16

The court notes that, to the extent it reviewed the legal principles upon which the ALJ’s
decision is based, it conducted a de novo review. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
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Court may reverse the decision of the [Commissioner] only when convinced that it
is not supported by substantial evidence or that proper legal standards were not
applied.”).
ACCORDINGLY, it is ORDERED:
The decision of the Commissioner is AFFIRMED and plaintiff’s applications.
for Disability Insurance Benefits and Supplemental Security Income are DENIED.
The clerk is directed to close the file.
DONE AND ORDERED this 1st day of February, 2017.
/s/

Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE

Cir. 2005).
Case No. 3:16cv14-CJK