CONOWAY v. BERRYHILL
Filing
20
MEMORANDUM DECISION AND ORDER. That the decision of the Commissioner is AFFIRMED, and this action is DISMISSED. That JUDGMENT is entered, pursuant to sentence four of 42 U.S.C. § 405(g), AFFIRMING the decision of the Commissioner. That the Clerk is directed to close the file. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 2/13/2019. (MB)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SANDRA JEAN CONOWAY,
Plaintiff,
vs.
Case No.: 3:17cv673/EMT
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
______________________________/
MEMORANDUM DECISION AND ORDER
This case has been referred to the undersigned magistrate judge for disposition
pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the
parties’ consent to magistrate judge jurisdiction (see ECF Nos. 7, 8). It is now before
the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”), for
review of a final decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Plaintiff’s application for disability insurance benefits
(“DIB”) under Title II of the Act, 42 U.S.C. §§ 401–34.
Upon review of the record before this court, it is the opinion of the undersigned
that the findings of fact and determinations of the Commissioner are supported by
substantial evidence; thus, the decision of the Commissioner should be affirmed.
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I.
PROCEDURAL HISTORY
On March 4, 2014, Plaintiff filed an application for DIB, alleging disability
beginning December 12, 2010 (tr. 134).1 Her application was denied initially and on
reconsideration, and thereafter she requested a hearing before an administrative law
judge (“ALJ”). A hearing was held on January 8, 2016, and on February 4, 2016, the
ALJ issued a decision in which she found Plaintiff “not disabled,” as defined under
the Act, at any time through the date of her decision (tr. 134–44). The Appeals
Council subsequently denied Plaintiff’s request for review. Thus, the decision of the
ALJ stands as the final decision of the Commissioner, subject to review in this court.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007).
II.
FINDINGS OF THE ALJ
In denying Plaintiff’s claims, the ALJ made the following relevant findings (see
tr. 134–44):
(1)
31, 20152;
Plaintiff last met the insured status requirements of the Act on December
All references to “tr.” refer to the transcript of Social Security Administration record filed
on December 18, 2017 (ECF No. 12). The page numbers refer to those found on the lower righthand corner of each page of the transcript, as opposed to those assigned by the court’s electronic
docketing system or any other page numbers that may appear.
1
Thus, the time frame relevant to Plaintiff’s claim for DIB is December 12, 2010 (date of
alleged onset), through December 31, 2015 (date last insured).
2
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(2) Plaintiff did not engage in substantial gainful activity during the period
from her alleged onset, through her date last insured;
(3) During the relevant period, Plaintiff had the following severe
impairments: inflammatory bowel disease of chronic diarrhea, degenerative disc
disease of the cervical and lumbar spine, mild degenerative joint disease of the knees,
osteoarthritis, and obesity;
(4) Plaintiff had no impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1;
(5) Plaintiff had the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. § 404.1567(b) except she could frequently crouch and
climb ramps and stairs, and occasionally climb ladders, ropes, or scaffolds, and stoop
and crawl. She could operate a motor vehicle and occasionally be exposed to
unprotected heights and moving mechanical parts. She could frequently be exposed
to humidity, wetness, extreme cold, extreme heat, and vibration;
(6) Plaintiff was able to perform her past relevant work as an assistant
manager (retail sales), retail sales clerk, and inspector. This work did not require the
performance of work-related activities precluded by her RFC; and,
(7) Plaintiff was not under a disability, as defined in the Act, at any time
from December 12, 2010, the alleged onset date, through December 31, 2015, the date
last insured.
III.
STANDARD OF REVIEW
Review of the Commissioner’s final decision is limited to determining whether
the decision is supported by substantial evidence from the record and was a result of
the application of proper legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218
(11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only
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when convinced that it is not supported by substantial evidence or that proper legal
standards were not applied.”); see also Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A determination
that is supported by substantial evidence may be meaningless . . . if it is coupled with
or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th
Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd.,
921 F.2d 1210, 1214 (11th Cir. 1991). As long as proper legal standards were applied,
the Commissioner’s decision will not be disturbed if in light of the record as a whole
the decision appears to be supported by substantial evidence. 42 U.S.C. § 405(g);
Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); Lewis, 125 F.3d at 1439; Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a
scintilla, but not a preponderance; it is “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)); Lewis, 125
F.3d at 1439. The court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates
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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).
The Act defines a 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. § 423(d)(1)(A). To qualify
as a disability the physical or mental impairment must be so severe that the claimant
is not only 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)–(g), 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
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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 doing her past
relevant work, she is not disabled.
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 her RFC and vocational factors, she is not disabled.
The claimant bears the burden of establishing a severe impairment that keeps
her from performing her past work. 20 C.F.R. § 404.1512. If the claimant establishes
such an impairment, the burden shifts to the Commissioner at step five to show the
existence of other jobs in the national economy which, given the claimant’s
impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052
(11th Cir. 1986). If the Commissioner carries this burden, the claimant must then
prove she cannot perform the work suggested by the Commissioner. Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir. 1987).
IV.
PLAINTIFF’S PERSONAL, EMPLOYMENT, AND MEDICAL HISTORY3
A.
Personal and Employment History
Unless otherwise noted, the information in this section is derived from the ALJ’s opinion
(see tr. 134–44).
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At her hearing on January 8, 2016, Plaintiff recounted that she was prompted
to file for disability after an incident in 2010 in which she had to attend to her stomach
and diarrhea problem while on shift as an assistant manager at a shoe store (tr. 216).
Plaintiff stated that she had to work shifts by herself in this new job, which made the
situation more difficult (tr. 216, 221–22). Plaintiff stated that she had similar
problems in previous jobs with her diarrhea, and that nervousness or other emotional
issues would exacerbate the problem (tr. 216). She described her diarrhea as
“uncontrolled” at “any time,” and stated that it affected her in her job “to the point to
where I just couldn’t, I couldn’t perform” (tr. 217, 219). Plaintiff testified as to
seeking help for mental health issues partly derived from this problem (tr. 219).
Plaintiff indicated that previous jobs she had held, such as an inspector for a domestic
cleaning crew, might be workable for her because of the availability of bathrooms,
although she had reservations because that particular job sometimes involved heavy
lifting and vacuuming (tr. 223–24, 237–38). Plaintiff also testified to having chronic
pain in her neck from a herniated disk (tr. 218). Plaintiff stated she took cortisone
shots for her elbows, shoulders, and neck, which would help for a period of time (tr.
227). Plaintiff noted that in 2014, she was having diarrhea mixed with normal stools,
and that in the spring of 2015, she was having diarrhea two to three times per week
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(tr. 236–37). Plaintiff stated that, during the general time of the hearing (January
2016), she was faring better, but she cited as a factor that she was no longer working,
which reduced her stress about having diarrhea in public (tr. 243–44).
Plaintiff indicated that she is independent in her activities of daily living (tr.
228). She walks her dogs on her twenty-acre property, but “[i]f I have to go to the
bathroom, I have to go to the bathroom” (id.). She stated she can tend to her
grandchildren, who live on her property, but that she has to get her husband to lift
them, for instance onto the changing table (tr. 238–39). She stated she can make
simple meals and feed her grandchildren (tr. 239). Plaintiff stated that one of her
grandchildren is with her every day after school (tr. 242).
As far as leaving the house, Plaintiff stated that her husband goes to the store
for her, but she acknowledged she does go to the doctor (tr. 228). She testified that
she has tried to go places, but she experiences great difficulties in doing so, even after
taking a substantial amount of “Immodium” (tr. 228–29). Plaintiff spoke of a
particular day in which she accompanied her eldest son to the barbershop and held his
infant while her son got a haircut (tr. 244). After the haircut, which took about thirty
minutes, they went to a park so that the infant could play on swings (tr. 243–44).
Evidently, she was able to proceed through that day without any problem with
diarrhea or any of her other symptoms.
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Plaintiff indicated that she could lift ten pounds, but with difficulty (tr. 240).
She provided that she could stand for about thirty minutes at a time, and that she
usually does not walk or sit for longer than twenty minutes (tr. 241). Plaintiff testified
that even on a good day, she could not work an eight-hour job (tr. 247).
B.
Relevant Medical History
In surveying Plaintiff’s treatment records, the ALJ recognized Plaintiff’s history
of chronic diarrhea, neck pain with radiculopathy, herniated disc, and low back pain.
As it concerns Plaintiff’s diarrhea, the ALJ noted that in December 1993, a barium
enema showed very minimal diverticulosis and that extensive testing in 2010 resulted
in Plaintiff being provided medication (tr. 141). The ALJ then noted the record to
show that in 2011, 2012, and 2013, Plaintiff had few complaints of diarrhea, but that
in July of 2014 she visited the Walton County Health Department with complaints of
chronic pain, diarrhea, anxiety, and depression, reporting that her diarrhea began in
August 1992 and had continued since then. The ALJ further noted Plaintiff’s remark
that she was applying for disability benefits because of the diarrhea (tr. 141, 979).
The ALJ then noted that throughout 2014 and 2015, Plaintiff visited the health
department but only with “medical problems that were not disabling”; Plaintiff
indicated in November 2014 that “her major reported disability is dealing with
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diarrhea” (tr. 141, 963). In May 2015, Plaintiff was seen by Khalid Moussa, M.D.,
a gastroenterologist, who, as the ALJ commented, found that Plaintiff’s “symptoms
were greater than her signs of illness” (tr. 141, 886). Also noted were the fact that, as
reported by Plaintiff, previous medical testing had ruled out Crohn’s disease and
irritable bowel syndrome (tr. 141, 885). The ALJ noted that a CT scan of Plaintiff’s
abdomen and pelvis revealed diverticulosis (tr. 141).
As for Plaintiff’s other physical impairments, the ALJ noted the following. A
July 2014 physical examination showed her to have full range of motion in all
extremities, good muscle strength, severe crepitus, and general arthritic appearance
in the right knee (tr. 141). Plaintiff also had decreased range of motion in her cervical
spine “in all directions with firm endpoints,” and her “[s]traight leg raising was
negative, bilaterally” (id.). A CT scan showed degenerative changes in the lumbar
spine and atherosclerosis, and x-rays of the lumbar spine showed degenerative
changes and atherosclerosis, but no compression fracture (tr. 141–42). An MRI taken
of the cervical spine showed mild spinal stenosis at C5–C6, moderate foraminal
narrowing bilaterally from a bulging disc and spurs at C5–C6 and at C4–C5, and mild
to moderate foraminal narrowing bilaterally at C6–C7 from a bulging disc and spurs
(tr. 142).
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In making her RFC determination and her ultimate finding of no disability, the
ALJ noted the opinion of Sharmishtha Desai, M.D., who completed a physical
residual functional capacity assessment on June 25, 2014 (tr. 275–88). Dr. Desai had
found that Plaintiff could perform light work with limitations and could perform her
past relevant work as actually performed (tr. 142, 287). The ALJ gave Dr. Desai’s
opinion great weight, finding the opinion to be consistent with the evidence of record,
and finding Dr. Desai to have “program knowledge” (tr. 142).
The ALJ gave partial weight to the opinion of Steve Odeh, M.D., who examined
Plaintiff in August 2015 and completed a Medical Source Statement of Ability. As
the ALJ related, Dr. Odeh opined that Plaintiff could only sit for one hour at a time
and for five hours during an eight-hour work day, stand or walk twenty minutes at a
time and for two hours during an eight-hour work day, occasionally lift twenty
pounds, frequently carry ten pounds, and occasionally climb (tr. 142, 853–56).
As it concerns Plaintiff’s mental impairments, chiefly depression and anxiety,
the ALJ noted Plaintiff’s assertion that she had a nervous breakdown when she
realized she could not perform at her job due to her diarrhea problem (tr. 140).
Plaintiff reported she receives treatment every three months, usually seeing Diane
Little, ARNP. Plaintiff acknowledged that some of her stress was relieved when she
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no longer had to worry about having accidents in public while at work (id.). The ALJ
also noted Plaintiff’s reported issues with memory loss and loss of concentration, but
she further noted Plaintiff’s acknowledgment that, as long as she takes her medicine,
she feels that she is in fairly good remission (tr. 137).
The ALJ further noted Plaintiff’s lack of limitations in her daily activities. The
ALJ stated that, although Plaintiff did report having problems with drowsiness and
short-term memory (which she attributed to side effects of her medications), she
stated she did not need reminders concerning her medications or her personal needs
(tr. 137). Plaintiff also reported that she goes to the store, visits with other family
members, and talks on the phone with a friend nearly every day, and does not have
problems getting along with family, friends, or neighbors (id.). Plaintiff stated that
she does not handle stress well (tr. 138), and she quit driving because of her diarrhea
and the medication side effects (id.). She reported she is able to pay bills and handle
financial matters (id.).
In finding Plaintiff’s mental health impairments to be non-severe, the ALJ
indicated her findings were consistent with those of psychological consultants Richard
Willens, Psy.D., and David Tessler, Psy.D., who had completed psychiatric review
technique assessments for Plaintiff. Both found Plaintiff’s mental impairments to not
be severe “because she has mild restriction of activities of daily living, mild
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difficulties in maintaining social functioning, mild difficulties in maintaining
concentration, persistence or pace and no repeated episodes of decompensation, each
of extended duration” (tr. 139). Accordingly, the ALJ assigned great weight to these
opinions, noting 1) that the opinions were consistent with the evidence of record and
2) both consultants had “program knowledge” (id.).
The ALJ also considered the opinion of Julian A. Salinas, Ph.D., who
conducted a consultative examination of Plaintiff in August 2015 and completed a
Medical Source Statement of Ability to do Work-related Activities (mental). Dr.
Salinas determined that Plaintiff had mild limitations in understanding, remembering
and carrying out complex instructions and in her ability to make judgments on
complex work-related decisions; and moderate limitations in interacting appropriately
with the public, supervisors and coworkers, responding appropriately to usual work
situations, and to changes in a routine work setting (tr. 138). The ALJ gave “partial
weight” to this opinion, remarking that Dr. Salinas met Plaintiff only once and did not
have the benefit of access to all the records that the ALJ herself did, records which
showed Plaintiff to be in “very good remission of her mental impairments” (tr. 138).
The ALJ then reviewed the opinion of Diane Little, ARNP, who completed a
Medical Opinion for Plaintiff in November 2015. ARNP Little opined that Plaintiff
had moderate limitations in her activities of daily living, along with repeated episodes
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of decompensation, each of extended duration, and marked limitations in social
functioning and concentration, persistence, or pace (tr. 138). ARNP Little also found
that Plaintiff would be absent from work for more than four days per month because
of her impairments or treatment thereof. The ALJ gave this opinion little weight
because it was inconsistent with Plaintiff’s treatment record, which noted Plaintiff’s
report that she was doing well and where her treatment providers found her to be in
“good remission” (id.).
V.
DISCUSSION 4
A.
Credibility Assessment of Plaintiff
Plaintiff contends that the ALJ erroneously evaluated her testimony, specifically
in finding it “not entirely credible” as far as it concerns the intensity, persistence, and
limiting effects of her symptoms (tr. 141).
“A clearly articulated credibility finding with substantial supporting evidence
in the record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d
1553, 1561–62 (11th Cir. 1995) (citing MacGregor v. Bowen, 786 F.2d 1050, 1054
(11th Cir. 1986). If the credibility of the claimant’s subjective testimony is critical to
the decision, the ALJ must either explicitly discredit such testimony or the findings
In this section, the court has set Plaintiff’s claims in a different order for organizational
purposes.
4
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must form a clear implication that amounts to a specific discounting of the testimony.
Id. (citing Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983). It is within the
ALJ’s discretion to determine that a plaintiff’s claims of pain and other symptoms are
not credible. See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The ALJ
may consider the claimant’s history, the medical signs and laboratory findings, the
claimant’s statements, statements by treating and non-treating physicians, and other
evidence relating to how the claimant’s impairments affect her daily activities and
ability to work. 20 C.F.R. § 404.1529(c).
Plaintiff’s claim is essentially that the ALJ based her credibility assessment
“largely upon her findings concerning one day in November of 2015 when Ms.
Conoway reported that she accompanied her son and grandson to a barbershop and
afterward to a park without experiencing diarrhea.” That finding was part and parcel
of a fuller finding by the ALJ, however. As the ALJ related, Plaintiff acknowledged
that some days she does not have diarrhea, and thus the import of the trip to the barber
shop and the park on one particular day is that it appears to typify the fact that
Plaintiff has enough confidence in her ability to manage her diarrhea that she could
go out on such an activity. This notion is further buttressed by the fact that, as pointed
out by the ALJ, Plaintiff testified that she was able to perform in most of her previous
jobs—that her only problem with the last job she held was that no other employee was
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at the store to cover for her should she have a problem with her diarrhea during the
course of a shift. Hence, the ALJ supported her finding with the fact that Plaintiff had
worked for more than a decade prior to the job she quit, and nothing in the record
demonstrated “that there was a marked change in her situation related to her physical
condition” (tr. 142). Indeed, Plaintiff’s argument is not supported by any citation to
the record to indicate that any of her conditions worsened over time.
B.
Medical Source Opinions
Second, Plaintiff asserts that the ALJ erroneously evaluated the opinion
evidence provided by medical sources. The ALJ may consider various factors when
weighing medical opinions, including: (1) the examining relationship; (2) the nature
and extent of the relationship; (3) whether the medical source presents relevant
evidence to support an opinion; (4) whether an opinion is consistent with the record;
and (5) whether or not the doctor is a specialist. See 20 C.F.R. § 404.1527(d)(1)–(6).
Generally, the opinions of examining or treating physicians are given more weight
than non-examining or non-treating physicians. See 20 C.F.R. § 404.1527(d)(1), (2).
With respect to non-examining State agency medical consultants or other program
physicians, an ALJ is required to consider their opinions because they “are highly
qualified physicians . . . who are also experts in Social Security disability evaluation.”
20 C.F.R. § 404.1527(e)(2)(i). The ALJ may reject any medical opinion if the
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evidence supports a contrary finding. Syrock v. Heckler, 764 F.2d 834, 835 (11th Cir.
1985). The ALJ should “always consider the medical opinions in [the] case record
together with the rest of the relevant evidence . . . receive[d].”
20 C.F.R.
§ 404.1527(b).
As it concerns Plaintiff’s mental health issues, Plaintiff contends that the ALJ
erred by giving little weight to the opinions of Dr. Salinas and ARNP Little, while
giving great weight to the opinions of Dr. Willens and Dr. Tessler. The ALJ
discounted the former opinions on grounds that they were inconsistent with treatment
notes from the medical record, which indicated that Plaintiff was “in good remission,”
and the ALJ detailed evidence showing Plaintiff’s functionality with activities of daily
living (tr. 137–38). The ALJ also noted that Dr. Salinas’ opinion was based upon a
lone examination, while the ALJ had access to more extensive medical records (tr.
138).
Plaintiff appears to contend the opinions of Dr. Willens and Dr. Tessler should
be superceded by those of Dr. Salinas and ARNP Little, whose opinions were
provided later in time. The court does not agree, and in any event the ALJ indicated
that she evaluated all opinions with regard to the entire record. Plaintiff also appears
to take issue with the ALJ’s statement that Drs. Willens and Dr. Tessler have
“program knowledge.” However, an ALJ may consider as a factor a medical source’s
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understanding of disability programs and their evidentiary requirements and standards
for determining disability, although it should not be the sole consideration. See 20
C.F.R. § 404.1527(e); Downing v. Berryhill, No. CV 16-10321, 2017 WL 2214591,
at *2 (E.D. Mich. Mar. 16, 2017); Williams v. Barnhart, No. CIV. 02-3476
ADM/AJB, 2003 WL 21671665, at *4 (D. Minn. July 15, 2003). Last, Plaintiff faults
the ALJ for seemingly overlooking the fact that Plaintiff was hospitalized in February
of 2014 for mental health issues and suicidal ideation. As Defendant points out,
however, Plaintiff admitted that her suicidal ideation was not sincere, and in any event
she reported that her medications were effective and her mental status normalized both
before and after her brief hospitalization (tr. 807–14).
As for her physical limitations, Plaintiff also questions the veracity of the ALJ’s
reliance on the opinion of Dr. Desai, while discounting the opinion of Dr. Odeh. As
the ALJ noted, however, medical testing consistently indicated that while Plaintiff had
neck and back problems, the problems did not significantly impact her range of
motion or the strength in her extremities. Additionally, the ALJ noted Plaintiff’s
general involvement in daily living activities and the fact that her medication helped
with her symptoms. Importantly, Plaintiff’s work history showed that she was able
to perform in her past jobs despite her pain issues, and she did not identify pain as the
basis for her decision to quit working in her last job. Accordingly, the court finds that
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the ALJ adequately supported the weight she provided to the medical opinions
provided in this case.
C.
Consideration of Impairments
Third, Plaintiff contends that the ALJ did not adequately evaluate the combined
impact of her medically determinable impairments. In particular, Plaintiff argues that
the ALJ did not specifically evaluate her degenerative joint disease of the knees,
osteoarthritis, and obesity, as well as her non-severe impairments of hypertension,
hypothyroidism, hyperlipidemia, anxiety, and depression. This argument seems to
stem from the fact that the ALJ relied on the opinion of Dr. Desai, who based her
medical opinion only on the examination of Plaintiff’s degenerative disc disease and
gastrointestinal disorder. However, this argument overlooks the fact that the ALJ
considered much more than simply the opinion of Dr. Desai, and in fact considered
the entire medical record in assessing Plaintiff’s RFC. The ALJ’s review included
Plaintiff’s own testimony as to all her impairments and how they affected her daily
living and her work history.
An ALJ’s RFC assessment is to be based upon all relevant evidence of a
claimant’s ability to do work despite her impairments. Phillips v. Barnhart, 357 F.3d
1232, 1238 (11th Cir. 2004); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)
(citing 20 C.F.R. § 404.1545(a)). However, “there is no rigid requirement that the
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ALJ specifically refer to every piece of evidence in h[er] decision, so long as the
ALJ’s decision . . . is not a broad rejection which is not enough to enable [the Court]
to conclude that [the ALJ] considered [the claimant’s] medical condition as a whole.”
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (quotations omitted). Thus,
the ALJ should analyze all the evidence and sufficiently address the “obviously
probative exhibits” in order for the court to conclude that her decision is rationally
supported by substantial evidence. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.
1981). The ALJ need not include in the RFC limitations, restrictions, or opinions
which have been properly rejected or are otherwise unsupported by the record. See
McSwain v. Bowen, 814 F.2d 617, 620 n.1 (11th Cir. 1987)
As is largely the case with all of Plaintiff’s arguments in this case, she attempts
to find error in various aspects of the ALJ’s assessments but fails to point to evidence
or opinion thereon that would have had any material impact on the ALJ’s analysis.
Plaintiff retains the burden of proof to establish how her impairments restrict her from
doing work. 20 C.F.R. § 404.1512(a) & (c) (2011) (instructing claimant that the ALJ
will consider “only impairment(s) you say you have or about which we receive
evidence” and “[y]ou must provide medical evidence showing that you have an
impairment(s) and how severe it is during the time you say that you are disabled”);
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (holding that the claimant
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bears the burden of proving her disability and is therefore responsible for producing
evidence to support of her claim); Rothfeldt v. Acting Comm’r of the Soc. Sec.
Admin., 669 F. App’x 964, 967 (11th Cir. 2016) (“In the third step of the sequential
evaluation process, the claimant must provide specific evidence that his impairment
meets or medically equals a listed impairment.”) (citing Sullivan v. Zebley, 493 U.S.
521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990) (emphasis added)). Because
Plaintiff fails to support her arguments with substantive evidence, her arguments are
unavailing.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is supported by
substantial evidence and should not be disturbed. 42 U.S.C. § 405(g); Lewis, 125 F.
3d at 1439; Foote, 67 F.3d at1560. Furthermore, Plaintiff has failed to show that the
ALJ applied improper legal standards, erred in making her findings, or that any other
ground for reversal exists.
Accordingly, it is hereby ORDERED:
1.
That the decision of the Commissioner is AFFIRMED, and this action
is DISMISSED.
2.
That JUDGMENT is entered, pursuant to sentence four of 42 U.S.C.
§ 405(g), AFFIRMING the decision of the Commissioner.
Case No.: 3:17cv673/EMT
Page 22 of 22
3.
That the Clerk is directed to close the file.
At Pensacola, Florida this 13th day of February 2019.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE
Case No.: 3:17cv673/EMT
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