RETHERFORD v. BERRYHILL
Filing
26
MEMORANDUM DECISION AND ORDER. 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. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 1/31/2019. (alb)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ANGELIA TREECE RETHERFORD,
Plaintiff,
vs.
Case No.: 5:17cv232/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. 11, 12). 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, and for
supplemental security income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C.
§§ 1381–83.
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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.
I.
PROCEDURAL HISTORY
On April 3, 2014, Plaintiff filed applications for DIB and SSI, and in each
application she alleged disability beginning December 1, 2013 (tr. 34).1
Her
applications were denied initially and on reconsideration, and thereafter she requested
a hearing before an administrative law judge (“ALJ”). A hearing was held on April
18, 2016, and on June 24, 2016, the ALJ issued a decision in which he found Plaintiff
“not disabled,” as defined under the Act, at any time through the date of his decision
(tr. 34–47). 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). This appeal followed.
II.
FINDINGS OF THE ALJ
All references to “tr.” refer to the transcript of Social Security Administration record filed
on January 25, 2018 (ECF No. 14). Moreover, the page numbers refer to those found on the lower
right-hand 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
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In denying Plaintiff’s claims, the ALJ made the following relevant findings (see
tr. 34–47):
(1) Plaintiff meets the insured requirements of the Act, for DIB purposes,
through December 31, 20182;
(2) Plaintiff has not engaged in substantial gainful activity since December
1, 2013, the alleged onset date;
(3) Plaintiff has the following severe impairments: cervical degenerative disc
disease, non-alcoholic steatohepatitis, gastritis, diverticulosis, diabetes mellitus type
2, hypertension, obesity, anxiety disorder, and depressive disorder;
(4) Plaintiff has no impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments;
(5) Plaintiff has the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a).3 Plaintiff can
lift/carry and push/pull ten pounds occasionally and ten pounds frequently. With
normal breaks in an eight-hour day, she can sit for six hours and stand and/or walk for
six hours; she can occasionally climb ladders, ropes, and scaffolds; she can frequently
climb ramps and stairs; she can frequently crawl; she is unlimited in balancing,
stooping, kneeling, and crouching; and she can tolerate frequent overhead reaching
with the left upper extremity and occasional exposure to vibration and hazards.
Thus, the time frame relevant to Plaintiff’s claim for DIB is December 1, 2013 (date of
alleged onset), through June 24, 2016 (date of the ALJ’s decision), even though Plaintiff is insured
for DIB purposes through 2018. The time frame relevant to her claim for SSI is April 3, 2014 (the
date she applied for SSI) through June 24, 2016. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005) (indicating that SSI claimant becomes eligible to receive benefits in the first month in
which she is both disabled and has an SSI application on file).
2
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined
as one which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).
3
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Plaintiff can perform simple, routine, repetitive tasks; she can maintain concentration,
persistence, and pace for these simple, routine, repetitive tasks for at least two hours
at a time; and she can adapt to occasional changes;
(6)
Plaintiff is unable to perform any past relevant work;
(7) Plaintiff was born on July 9, 1972, and was 41 years old, which is defined
as a younger individual aged between 18 and 44, on the alleged disability onset date;
(8)
Plaintiff has a limited education and is able to communicate in English;
(9) Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework supports a
finding that Plaintiff is “not disabled,” whether or not she has transferable job skills;
(10) Considering Plaintiff’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that Plaintiff can
perform; therefore, Plaintiff has not been under a disability, as defined in the Act,
from December 1, 2013, through the date of the decision.
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
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
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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
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
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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),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
In general, the legal standards applied are the same regardless of whether a claimant seeks
DIB or SSI, but separate, parallel statutes and regulations exist for DIB and SSI claims (see 20
C.F.R. §§ 404, 416). Therefore, citations in this Order should be considered to refer to the
appropriate parallel provision. The same applies to citations of statutes or regulations found in
quoted court decisions. Additionally, the regulations cited in this Order are to those that were in
effect at the time the ALJ issued his decision.
4
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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 HISTORY
A.
Relevant Personal and Employment History
Plaintiff was forty-one years of age on the date she alleges she became disabled
(tr. 239). She is 5'5'' and at the time of her hearing weighed 263 pounds (tr. 87). She
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previously worked as a pizza delivery driver and an assistant manager (tr. 88).
Plaintiff last worked at a convenience store in 2014, where she sometimes felt
“woozy” or “dizzy,” felt like she had “panic attacks,” and had trouble with her “sugar”
(tr. 87–88). She testified that she was let go from this position when she failed to
show up for work due to illness and failed to call in to report that she would be absent.
She could not recall whether the illness was related to her diabetes or to her mental
health issues (tr. 88, 100). Plaintiff stated she has not tried to find a job since this
employment ended (tr. 88).
Plaintiff testified that she has a valid driver’s license, but she no longer drives
due to her diabetes and anxiety (tr. 144). Plaintiff is able to manage her own finances
and personal care, bathe and dress without assistance, grocery shop, prepare simple
meals, walk the dog, load the dishwasher, and sweep floors (tr. 90–91, 144). She
testified she is able to walk for about thirty minutes at one time, stand for fifteen
minutes at one time, sit for about an hour, and lift about ten pounds (tr. 91). On a
typical day, Plaintiff wakes up, makes coffee, completes household chores, and
sometimes goes out to visit her mother or attend a doctor’s appointment (id.). She
also watches television, uses a computer, and reads (tr. 144).
The ALJ asked Plaintiff to describe the “most severe thing that bothers [her]”
and “keep[s] [her] from working” (see tr. 91). Plaintiff responded by stating, “my
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mind,” and then explained that her short and long-term memory are “bad,” and that
her family has to tell her things ten times because she has trouble remembering (tr.
91–92). She stated she does not “want to function,” “get up out of bed,” or “face life”
(tr. 98). She testified that she hardly sleeps and slept only three hours the night before
her hearing (tr. 99). Plaintiff claimed to have difficultly concentrating and stated that
her mind “constantly goes, and goes, and goes, and goes” (id.). She testified that she
had not obtained counseling because she “fight[s] it” (tr. 98). She also stated that if
she had good insurance, she “might” get the “problem” treated (tr. 99).
As for her neck condition, Plaintiff testified she was “hurting real bad from
looking over here,” she could “hardly do [her] shoulders [sic],” and her neck causes
“bad headaches” (tr. 93). She further testified that she has “trouble” turning her head
to the right and left, and “problems” looking up and down (tr. 94). She stated that the
pain travels to her head, both shoulders, and hands and several fingers, with her left
side being worse than her right (tr. 94–95). She also testified that the pain affects
what she can lift and carry, but that she can carry a ten-pound bag with her right hand
(tr. 95). Finally, Plaintiff stated she has “problems” reaching out and overhead with
her left arm (tr. 97).
B.
Relevant Medical History
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Plaintiff was seen by Fernando Malamud, M.D., with complaints including
fatigue, night sweats, and abdominal pain (tr. 676).
During musculoskeletal
examinations on February 12, 2014, and March 4, 2014, Plaintiff was found to have
a normal gait and station, normal range of motion, and normal strength and tone, with
no sensory or motor deficits (tr. 677, 680).
In May, June, and July of 2014, a physician who treated Plaintiff for her
diabetes emphasized to Plaintiff the importance of engaging in “regular aerobic
exercise regimens” (tr. 627, 625, 623). Similarly, in June of 2014, Plaintiff’s
gastroenterologist recommended “physical exercise 150 minutes a week” (tr. 608).
When Plaintiff presented for an NCV/EMG study of the upper extremities on
June 10, 2014, she reported a history of numbness and tingling in the upper
extremities, as well as grip weakness that was worse on the left (tr. 661). The study
yielded “normal” results (id.). Two days later, an emergency provider with the Gulf
Coast Medical Center noted that Plaintiff had full and painless range of motion and
a normal gait (tr. 594). Likewise, treatment notes from June 16, 2014, reflect full
range of motion and 5/5 muscle strength in all extremities (tr. 575). And progress
notes from Emerald Coast Gastroenterology dated June 16 and June 30, 2014, reflect
full range of motion and 5/5 muscle strength in all extremities (tr. 608, 611).
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Similarly, treatment notes from February 19, February 24, May 21, and June 18, 2014,
indicate that Plaintiff demonstrated a normal gait and had no muscle weakness (tr.
625–32). Additionally, visit notes from June 27 and July 22, 2014, reflect that
Plaintiff had “5/5 normal muscle strength” in the left upper extremity, left lower
extremity, and right lower extremity (tr. 605, 657, 667). Plaintiff also demonstrated
a normal gait, but movement of the spine was “limited” (tr. 657, 667). On September
10, 2014, Plaintiff was seen at the St. Andrew Community Medical Center to
“establish care” (tr. 718). Notes from this visit indicate she had full range of motion,
5/5 strength bilaterally, and a steady gait (tr. 720).
During an examination on February 12, 2015, Plaintiff complained of neck
pain, but was found to have full range of motion (tr. 733). A CT scan obtained the
same day revealed “degenerative changes at C6-7 and to a lesser degree [at] C5-6” (tr.
740). A treatment note from the next day states that Plaintiff had both “full ROM”
and “[d]ecreased ROM” (tr. 733). An MRI obtained on August 2, 2015, revealed
“[m]ild disk degeneration” at C6-7 and C5-6 (tr. 651). Finally, on February 18, 2016,
Plaintiff reported chronic neck and back pain at an examination, but she was found to
have 5/5 range of motion and strength (tr. 686).
With respect to Plaintiff’s mental health conditions, the record shows that she
primarily received treatment at the Vernon Family Health Center by Nurse
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Practitioner (“NP”) Dawn Frost, whose assessments included anxiety and depression
(see, e.g., tr. 369, 561, 563, 565). It appears that Plaintiff saw NP Frost originally in
June of 2013 and then approximately nine or ten additional times, in August,
September, November, and December of 2013, and in January, February, April, May,
June of 2014 (see tr. 369–76).
On May 7, 2014, NP Frost, opined that Plaintiff was suffering from a “mental
impairment that significantly interferes with her daily functioning,” and she referred
Plaintiff to Life Management (tr. 564).
Treatment notes from non-mental-health providers show that Plaintiff was
oriented in all three spheres and had no memory loss during five office visits between
February and July of 2014 (see tr. 624, 626, 628, 630, 632 (records from Sherief M.
Kamel, M.D.)). Additionally, records from the Gulf Coast Medical Center and the
Brain and Spine Center, show that Plaintiff was alert, and had normal speech, mood,
affect, and judgment (tr. 594, dated June 12, 2014); that Plaintiff was not in acute
distress, was alert, had no impairment of judgment or insight, and was able to recall
recent events (tr. 575, dated June 16, 2014); and that Plaintiff’s mood and speech were
normal, and she was able to follow simple and complex commands (tr. 604, dated
June 27, 2014 ). Also on June 27, 2014, Plaintiff’s immediate recall, short-term
memory, and long-term memory were all examined and determined to be normal (tr.
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604). Her ability to calculate and abstract, her attention span, and her judgment were
also all found to be within normal limits (id.). Finally, treatment notes from a
gastroenterologist dated June 16 and June 30, 2014, show that in addition to being
alert and fully oriented, Plaintiff was able to recall recent events and had no
impairment in judgment or insight (tr. 608, 611).
As to Plaintiff’s diabetes, she presented to Dr. Kamel with the Diabetes,
Thyroid, and Endocrine Clinic, for treatment on February 19, 2014 (tr. 631). Dr.
Kamel noted that Plaintiff had been taking Tradjenta for her diabetes and that it was
“working well” (id.). When Plaintiff returned on February 24, 2014, Dr. Kamel noted
that she was there for treatment for a goiter, for follow-up “to better control her
thyroid condition,” to adjust her medications if necessary, and to obtain “refills on her
sugar pills” (tr. 629–30). Dr. Kamel assessed nontoxic multinodul goiter and noted
that Plaintiff’s past history included type 2 diabetes (id.). At a follow-up visit on May
21, 2014, Dr. Kamel noted that Plaintiff was still taking Tradjenta and per Plaintiff’s
own report her blood sugars had been “good” (tr. 627). Elsewhere in the same
treatment note, however, Dr. Kamel remarked that Plaintiff’s blood sugar was “still
fluctuating” and that additional adjustments to her medications were necessary (id.).
Dr. Kamel emphasized to Plaintiff the “importance of compliance with all prescribed
medications,” and Plaintiff stated she understood and would “try hard to be
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compliant” (tr. 627–28). When Plaintiff returned on June 18, 2014, she told Dr.
Kamel she was there because her “sugar [was] going very high,” but she did not bring
her logs with her as evidently she had been instructed to do (see tr. 625). Dr. Kamel
noted Plaintiff had previously done “very well” on Tradjenta, 5mg, but because
Plaintiff’s readings were high at that visit Dr. Kamel switched Plaintiff to Glipizide,
10mg (see tr. 625–26). On July 18, 2014, Plaintiff again reported high and fluctuating
blood sugar levels, and Dr. Kamel again emphasized the importance of compliance
with prescribed medications and again adjusted her medication, this time by
continuing the Glipizide, 10mg, but adding Bydureon, 2mg, to be used subcutaneously
(tr. 623–24).
Plaintiff evidently did not return to Dr. Kamel after July of 2014, but other
records show that she obtained treatment elsewhere for her diabetes, primarily at St.
Andrew’s. On September 10, 2014, Plaintiff advised a St. Andrew’s clinician that she
was taking Glipizide, 10mg, and Tradjenta, 5mg, but evidently made no mention of
the Bydureon (see tr. 718), and if she was taking Tradjenta at that time it is unclear
who prescribed it to her. In any event, Plaintiff also advised she had not taken the
Glipizide or the Tradjenta for the past two weeks (tr. 718). It appears that Plaintiff
was then prescribed Glipizide, 10mg, and Tradjenta, 5mg, initially at St. Andrew’s,
but by early January of 2016, she was prescribed only Glipizide, 5mg (see tr. 712).
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Additional treatment records indicate that when Plaintiff took the Glipizide, her blood
glucose levels were generally under control, for example, below 155 (see tr. 708) or
between 60 and 157 (tr. 701), and/or she reported “doing well” (tr. 695). When she
did not take her medication as prescribed, however, she encountered difficulties. For
example, on December 3, 2015, Plaintiff presented to St. Andrew’s with elevated
blood glucose levels “running in the 300’s” (tr. 692). It was specifically noted that
Plaintiff had been taking the Glipizide, 5mg, “PRN” or only when she felt it was
necessary, and the clinician stated, “I am not sure how that came to be” (id.). Plaintiff
was again specifically instructed to “take all meds as directed” and to record her blood
glucose levels at certain times over the next two weeks and return with her logs on
December 22, 2015 (tr. 693). Plaintiff returned to the clinic on January 5, 2016, and
the treatment note includes no specific mention of the logs, although it states that since
December 16, Plaintiff’s blood glucose levels had been between 86 and 205 (tr. 690).
Plaintiff was continued on Glipizide, 5mg (id.). Finally, a treatment note from St.
Andrew’s, dated February 18, 2016, reflects Plaintiff’s report that she was taking
Glipizide, 2.5mg, and that it did not make her dizzy as the previous 5mg dosage had;
her A1c was noted to be 6.5 (tr. 686). The same treatment note also shows that
Plaintiff reportedly had not taken the Glipizide for the preceding two weeks, but that
even so “her BG [were] all been below 170” during that time (see tr. 686).
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C.
Other Information in Plaintiff’s File
NP Frost, who indicated that her “specialty” is family medicine, completed a
“Treating Source Mental Status Report” on May 13, 2014 (tr. 566, 568). She
described Plaintiff as sad and “anxious to the point of paranoia,” with a flat affect and
“not too much hope for a bright tomorrow” (tr. 566). She noted Plaintiff’s thought
processes were normal but complicated by anxiety and fear (tr. 567). She felt that
Plaintiff did not demonstrate homicidal/suicidal thoughts or delusions, but had
unrealistic thoughts about her care (id.). Insofar as concentration, NP Frost noted
Plaintiff had “flight of ideas at times” and jumped from one point to another (id.). She
found her to be oriented to person, place, and time (id.). NP Frost opined that
Plaintiff’s recent and remote memory were impaired but her immediate memory was
intact (id.). She noted that Plaintiff could not concentrate, became easily distracted,
had very poor recollection, and appeared to understand but then could not immediately
repeat or respond (tr. 568). NP Frost reported that Plaintiff did not suffer from
hallucinations, but her perception was impaired regarding her health status (tr. 567).
She found Plaintiff to be cooperative and well-dressed but “jittery” (id.). NP Frost
offered diagnoses of anxiety, depression, and memory impairment with a “poor”
prognosis (id.). NP Frost noted that Plaintiff could not add or subtract and that her
mother had to attend to her finances (tr. 568). She felt that Plaintiff could not manage
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her own benefits if any were awarded (id.). Finally, NP Frost opined that Plaintiff
could not work or perform satisfactorily (id.).
Frances Martinez, Ph.D., a non-examining agency psychologist, offered her
opinions at the initial level on May 20, 2014 (tr. 115–17). She assessed Plaintiff’s
abilities in approximately fifteen areas of mental functioning and found Plaintiff “not
significantly limited” in eleven of those areas (see tr. 116–17). She found Plaintiff to
be moderately limited in the following areas: (1) with respect to memory, in her ability
to understand and remember detailed instructions (tr. 116); (2) with respect to
sustained concentration and persistence (a) in her ability to carry out detailed
instructions, and (b) in her ability to maintain attention and concentration for extended
periods; and (3) with respect to adaptive abilities, in her ability to respond
appropriately to changes in the work setting (tr. 116–17). In the spaces provided for
offering explanations, Dr. Martinez made several comments about Plaintiff’s ability
to perform “SRT’s,” or simple routine tasks, as follows: Plaintiff “can perform SRT’s”
(in the “memory” section); Plaintiff “will have difficulty sustaining attention for
SRT’s” (in the sustained concentration and persistence section); and Plaintiff “can
perform SRT’s in a stable setting” and adapt to changes over time (in the adaptive
abilities section) (tr. 115–17). Dr. Martinez also evaluated Plaintiff’s anxiety and
depression under the “B” criteria of the relevant listings and found mild limitations
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in activities of daily living and maintaining social functioning, and moderate
difficulties in maintaining concentration, persistence, and pace (tr. 112).
Steven Wise, Psy.D., a non-examining agency psychologist, offered his
opinions regarding Plaintiff’s mental RFC at the reconsideration level on July 15,
2014 (tr. 149). He assessed the exact same limitations as Dr. Martinez with respect
to the fifteen functional areas (compare tr. 115–17 with 149–51), and also reached the
same conclusions as to the “B” criteria of the listings (tr. 145), but his explanatory
comments differed slightly from hers. For example, with respect to sustained
concentration and persistence, Dr. Wise stated that Plaintiff “[w]ill do best in less
complex tasks and those not requiring extended concentration, though recon mer notes
[believed to mean medical evidence of record (or treatment notes) available at the
reconsideration level]” show that Plaintiff’s attention and concentration are within
normal levels (see tr. 150).
P.S. Krishnamurthy, M.D., a non-examining agency physician, assessed
Plaintiff’s physical capacities on July 25, 2014 (see tr. 149). As far as exertional
limitations, Dr. Krishnamurthy found that Plaintiff could occasionally lift and/or carry
twenty pounds; could frequently lift and/or carry ten pounds; could stand or walk with
normal breaks for more than six hours on a sustained basis; could sit for more than six
hours on a sustained basis; and was otherwise unlimited in pushing and pulling (tr.
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147). As to postural limitations, Dr. Krishnamurthy found Plaintiff could frequently
climb ramps/stairs; could occasionally climb ladders/ropes/scaffolds; could frequently
crawl; and was unlimited in balancing, stooping, kneeling, and crouching, with no
environmental limitations aside from vibration and hazards (tr. 147–49).
Next, upon referral from her attorney Plaintiff, was examined by Neda
Koehnemann, Ph.D., on April 11, 2016 (tr. 670). Dr. Koehnemann found no evidence
of a thought disorder, found Plaintiff to be oriented to all spheres, and noted Plaintiff
was not currently prescribed any medication for depression or anxiety and had not
previously obtained mental health counseling (tr. 672). Dr. Koehnemann noted that
Plaintiff’s primary relaxation is “playing games on her phone because it allows her to
forget about other things” (tr. 670). Dr. Koehnemann administered the Wechsler
Memory Scale and opined that Plaintiff has “significant memory deficits” (tr. 673).
She also felt Plaintiff’s level of anxiety and depression likely adversely affected her
memory functioning, and that Plaintiff was in need of medical insurance and
psychiatric treatment including medication and counseling (id.).
Finally, a Vocational Expert (“VE”) testified at Plaintiff’s hearing. The VE
testified that a hypothetical person with Plaintiff’s RFC could not perform her past
relevant work as a pizza delivery driver, assistant manager, or restaurant manager
trainee (tr. 102–03). The hypothetical person could, however, perform other available
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work, including work as an inspector, assembler, or hand packager, all of which are
unskilled jobs, performed at the sedentary level of exertion, and which otherwise
accommodate Plaintiff’s RFC (tr. 103). According to the VE, however, if the
hypothetical person could not maintain concentration, persistence, and pace for at least
two hours at a time, the person could perform no work (id.).
V.
DISCUSSION
Plaintiff raises three issues in this appeal, and various sub-issues, which the
undersigned has rearranged for organizational purposes. Plaintiff generally claims the
ALJ erred: (1) in evaluating her subjective complaints of pain and other symptoms;
(2) in determining her RFC; and (3) in omitting moderate limitations in concentration,
persistence, or pace from the hypothetical questions he posed to the VE.
A.
Evaluation of Plaintiff’s Testimony
Plaintiff contends the ALJ erred in discrediting her testimony regarding pain,
symptoms, and limitations.
In Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991), the court articulated
the “pain standard,” which applies when a disability claimant attempts to establish a
disability through her own testimony of pain or other subjective symptoms. The pain
standard requires: (1) evidence of an underlying medical condition and either (a)
objective medical evidence that confirms the severity of the alleged pain arising from
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that condition, or (b) that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the alleged pain. Holt, 921
F.2d at 1223 (internal citation omitted). If a claimant testifies as to her subjective
complaints of disabling pain and other symptoms, as Plaintiff did here, the ALJ must
clearly “articulate explicit and adequate reasons” for discrediting the claimant’s
allegations of completely disabling symptoms.
Foote, 67 F.3d at 1561–62.
Additionally, “‘[a]lthough this circuit does not require an explicit finding as to
credibility, . . . the implication must be obvious to the reviewing court.’” Id. at 1562
(quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983)). The credibility
determination does not need to cite “‘particular phrases or formulations,’” but it
cannot merely be a broad rejection which is “‘not enough to enable [the district court
or this Court] to conclude that [the ALJ] considered her medical condition as a
whole.’” Id. (quoting Jamison v. Bowen, 814 F.2d 585, 588–90 (11th Cir. 1987)).
Here, the ALJ concluded that Plaintiff has medically determinable impairments
that reasonably could be expected to cause some of her symptoms (tr. 41). Then, as
the pain standard requires, the ALJ proceeded to address the extent to which the
intensity and persistence of Plaintiff’s symptoms limit her ability to work, citing the
record to support his conclusion that Plaintiff’s statements concerning the intensity,
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persistence, and limiting effects of the symptoms are not entirely consistent with the
medical evidence and other evidence in the record (id.).
Plaintiff first argues that the ALJ erred in finding the testimony regarding her
mental limitations less than fully credible. In reviewing the mental health evidence
of record, the ALJ noted the diagnoses of depression and anxiety (tr. 43). And in
discounting the more extreme of Plaintiff’s allegations, the ALJ observed that when
Dr. Koehnemann evaluated Plaintiff in April of 2016: (1) Plaintiff displayed no
evidence of a thought disorder of any kind, and she was oriented in all spheres; and
(2) Dr. Koehnemann noted that Plaintiff had not been prescribed any medication for
depression or anxiety prior to the evaluation, and that Plaintiff reported she had never
previously obtained mental health counseling (id.). The ALJ acknowledged that
Plaintiff scored anywhere from “extremely low memory functioning to borderline
range of memory functioning” on memory testing administered by Dr. Koehnemann
(id.), but he pointed out that Plaintiff had not followed up on a mental health treatment
referral made previously in May of 2014 (see tr. 564).5 The ALJ also noted Plaintiff’s
hearing testimony that her reason for not seeking mental health treatment was that she
“fight[s] it” (tr. 43). The ALJ found that if Plaintiff’s mental health impairments were
as severe as she alleged, she would have pursued mental health treatment, and her
5
The referral noted by the ALJ is the one made by NP Frost on May 7, 2014 (see tr. 564).
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failure to do so suggests her symptoms and limitations are evidently not as serious as
she claims (id.).
Plaintiff argues that the ALJ erred in considering her failure to seek mental
health treatment. In support she cites Social Security Ruling (“SSR”) 16-3p (ECF No.
22 at 18), which states that the agency “will not find an individual’s symptoms
inconsistent with the evidence in the record on this basis without considering possible
reasons . . . she may not comply with treatment or seek treatment consistent with the
degree of [her] complaints,” and that “an individual may not be able to afford
treatment and may not have access to free or low-cost medical services.”6
The court concludes that the ALJ did not err in considering Plaintiff’s failure
to obtain mental health counseling, given Plaintiff’s own sworn statement that she
“fights” getting treatment. Moreover, Plaintiff’s testimony was equivocal on the
matter of insurance being the determinative factor regarding treatment, in that she
testified she “might” get treatment if she had insurance rather than explicitly stating
she would in fact obtain treatment (see tr. 99). What is more, the referral to mental
health treatment made in May of 2014 was to the Life Management Center (see tr.
Plaintiff also cites Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (“when the
ALJ relies on noncompliance as the sole ground for the denial of disability benefits, and the record
contains evidence showing that the claimant is financially unable to comply with prescribed
treatment, the ALJ is required to determine whether the claimant was able to afford the prescribed
treatment”) (emphasis added).
6
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564), a community-based behavioral and mental health services center that provides
services to clients of all income levels.7 It is therefore evident that Plaintiff could have
obtained treatment, but she chose not to—even after a referral for such by the nurse
practitioner she saw on a regular basis—and the ALJ did not err in considering
Plaintiff’s choice. See, e.g., Watson v. Heckler, 738 F.2d 1169, 1173 (11th Cir. 1984)
(in addition to objective medical evidence, it is proper for ALJ to consider use of
painkillers, failure to seek treatment, daily activities, conflicting statements, and
demeanor at the hearing); see also Williams v. Sullivan, 960 F.2d 86, 89 (8th Cir.
1992) (absence of treatment indicates that a mental impairment is non-severe). The
court thus finds no error.
Plaintiff also argues that the ALJ erred in finding her testimony regarding
physical limitations not fully credible. Although Plaintiff lists gastrointestinal issues,
hypertension, and obesity in her argument, Plaintiff failed to develop any claim as to
these conditions, and Plaintiff offered no relevant testimony regarding any symptoms
or limitations related to these conditions. As such, these conditions will not be
addressed further in the instant discussion.
See Fed. R. Evid. 201(b)(1) (“The court may judicially notice a fact that is not subject to
reasonable dispute because it is generally known within the trial court’s territorial jurisdiction.”).
See also www.lmccares.org (last visited Jan. 30, 2019).
7
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Turning to the physical conditions for which arguments can be discerned, the
court first considers the ALJ’s findings regarding Plaintiff’s alleged neck pain and
limitations. In concluding that these symptoms are not as severe as Plaintiff alleged,
the ALJ pointed to various portions of the record, including: the “normal” NCV and
EMG studies from June 10, 2014 (tr. 41); the full neck range of motion noted during
an examination at the Gulf Coast Medical Center in February of 2015 (tr. 42; see also
tr. 733); the results of the cervical spine x-ray obtained in February of 2015 (i.e.,
“degenerative changes at C6-7 and to a lesser degree at C5-6”) (tr. 41); the results of
the MRI obtained in August of 2015 (i.e., “mild” disc degeneration at C6-7 and C5-6)
(id.); and full (“5/5”) strength in the upper extremities and no sensory or neurological
deficits” upon multiple physical examinations (see id. (referencing Exhibits 11F, 16F,
and 20F, which are treatment records from the Brain and Spine Center and Saint
Andrew’s)). The ALJ did not err in identifying the foregoing portions of the record
as inconsistent with Plaintiff’s complaints of extreme and disabling neck limitations.
See 20 C.F.R. § 404.1529(a) (an ALJ is permitted to consider the “extent to which
your symptoms can reasonably be accepted as consistent with the objective medical
evidence . . . . ”); SSR 16-3p (eff. Mar. 28, 2016) (adjudicators will consider whether
the “individual’s statements about the intensity, persistence, and limiting effects of
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symptoms are consistent with the objective medical evidence and other evidence of
record”).
With respect to her diabetes, as previously noted, Plaintiff testified that
although she lost a prior job due to failing to call in when she missed work due to
illness, she was unsure if the illness was related to her mental health issues or to her
diabetes (tr. 100). She also noted being “woozy,” “dizzy,” and having “trouble with
[her] sugar” (tr. 88). No other testimony regarding symptoms or limitations was
offered as to this condition. In discussing Plaintiff’s diabetes, the ALJ cited treatment
records indicating that Plaintiff’s blood sugar levels had been “uncontrolled, high, and
fluctuating” at times but also pointed to the most recent treatment note from February
of 2016, indicating that she was taking Glipizide, 2.5 mg, her blood glucose level was
below 170, and her A1c was 6.5, as well as reports by Plaintiff that she was not dizzy
when she took the lower dosage of her medication (tr. 42; see also tr. 143 (Plaintiff’s
report that she takes medication daily to control her diabetes (also indicating that
Plaintiff did not require insulin))).
The ALJ’s findings are supported by the record, and the ALJ properly
considered that Plaintiff’s diabetic condition can be controlled by treatment—when
she takes it as prescribed—and in this case, conservative treatment in the form of
(non-insulin) medication only. See Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th
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Cir. 1988) (“A medical condition that can reasonably be remedied either by surgery,
treatment, or medication is not disabling.”). Additionally, the record also shows that
Plaintiff might have lost her prior job due to a matter wholly unrelated to her diabetic
condition (e.g., a different illness, failing to call in).
Continuing with respect to her physical conditions, Plaintiff raises another
argument based on SSR 16-3p, relying on that part of the ruling which states that the
agency “will not disregard an individual’s statements about the intensity, persistence,
and limiting effects [of an impairment] solely because the objective medical evidence
does not substantiate the degree of impairment-related symptoms alleged by the
individual.” See also 20 C.F.R. § 1529(c)(2) (same, stating “we will not reject your
statements about the intensity and persistence of your pain or other symptoms . . .
solely because the available objective medical evidence does not substantiate your
statements”) (emphasis added). Thus, it would be erroneous to deny a claim based
only on a lack of objective medical evidence corroborating the extent of the
limitations, but here the ALJ did not rely solely on a lack of substantiating medical
evidence. For example, the ALJ also considered Plaintiff’s activities of daily living
(tr. 38–39; see also tr. 144). See Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir.
1987) (ALJ may properly consider daily activities when evaluating subjective
complaints of disabling pain and other symptoms). Additionally, although not
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included specifically within his discussion of Plaintiff’s credibility, the ALJ pointed
out that Plaintiff worked in 2014, after the date she alleges she became disabled (tr.
36, citing tr. 269). See 20 C.F.R. § 404.1571 (work performed during any period in
which a claimant alleges she was under a disability may demonstrate an ability to
perform substantial gainful activity); Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir.
1996) (in discounting Plaintiff’s complaints of pain, ALJ did not err in considering
fact that claimant worked washing mobile homes during the adjudicated period); see
also Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004) (“it was also not
unreasonable for the ALJ to note that Harris’s . . . part-time work [was] inconsistent
with her claim of disabling pain”).]. And, as previously noted, the ALJ noted the
efficacy of Plaintiff’s (conservative) treatment.
Finally, Plaintiff contends the ALJ erred in considering her lack of a consistent
work history in discrediting her complaints of disabling limitations.
More
specifically, the ALJ noted that for the past fifteen years Plaintiff had worked at a
substantial gainful activity level only in 2005. The ALJ concluded that this signified
a weak employment motivation and also weakened her contention that, but for her
medically determinable impairments, she would be working (tr. 45).
Although the undersigned has found no binding Eleventh Circuit case
permitting consideration of this factor, other circuits permit it to be considered, as do
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other district courts, and the Regulations appear to permit such consideration as well.
See, e.g., Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998) (“There is no suggestion
in SSA regulations that an ALJ may only consider favorable work history in weighing
the credibility of claimant testimony. Just as a good work history may be deemed
probative of credibility, poor work history may prove probative as well.”); Sheline v.
Comm’r of Soc. Sec., 241 F. Supp. 2d 1206, 1213 (D. Kan. 2002) (“[T]he ALJ
appropriately considered the factors set forth by the Tenth Circuit in determining the
credibility of Plaintiff’s testimony. [Among other reasons], the ALJ discounted
Plaintiff’s credibility based on Plaintiff’s poor work record prior to her alleged onset
date of disability and her questionable work motivation.”); see also Pisa-De Rubertis
v. Colvin, No. 16-22015-CIV, 2017 WL 2833447, at *15 (S.D. Fla. June 30, 2017)
(“The ALJ is to consider all of the evidence presented, including information about
the claimant’s prior work record. 20 C.F.R. § 416.929(c)(3). Moreover, the ALJ is
specifically instructed that credibility determinations should take into account, as one
of many factors, a claimant’s ‘prior work record and efforts to work.’”) (citing SSR
96–7p; 61 Fed. Reg. 34,483, at 34,486 (1996); Schaal, 134 F.3d at 502). The ALJ
considered Plaintiff’s minimal work history in addition to the record as a whole, as
described herein, and therefore his reliance on this factor was not improper.
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In sum, with regard to Plaintiff’s subjective complaints of pain and other
symptoms, the undersigned, of course, is not charged with making independent fact
conclusions, but only with reviewing the substantiality of the evidence underlying the
conclusions reached by the ALJ. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005). Having done so, the undersigned concludes that the reasons cited by the
ALJ are supported by substantial evidence in the record, and that the evidence he cited
was properly considered in evaluating Plaintiff’s credibility. Accordingly, the ALJ
did not err in discounting Plaintiff’s assertions of disabling pain and limitations.
B.
ALJ’s Residual Functional Capacity Determination
Plaintiff contends the ALJ erred in determining her RFC, in part because it
failed to accurately account for limitations related to her obesity. Plaintiff also
contends that the RFC was based upon an erroneous consideration of the opinions of
Dr. Koehnemann, Dr. Martinez, Dr. Wise, Dr. Krishnamurthy, and NP Dawn Frost.
1.
Residual Functional Capacity — Defined
The regulations define RFC as that which an individual is still able to do despite
the limitations caused by her impairments. 20 C.F.R. § 404.1545(a)(1). The ALJ will
“assess [the claimant’s RFC] based on all of the relevant medical and other evidence”
in the case. 20 C.F.R. § 404.1545(a)(3). An ALJ need not include in the RFC
limitations, restrictions, or opinions he has properly rejected or that are otherwise
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unsupported by the record. See McSwain v. Bowen, 814 F.2d 617, 620 n.1 (11th Cir.
1987).
Obesity
Plaintiff contends the ALJ erred by finding her obesity to be a severe
impairment at step two (thereby causing “more than minimal limitations”), but then
by “absolutely” failing to indicate in his decision “how, if at all, the ALJ considered
her obesity in assessing her RFC” (ECF No. 22 at 14).
Plaintiff’s argument is refuted by the record. The ALJ specifically found that
Plaintiff’s obesity caused limitations, but he concluded it did not cause limitations
beyond the requirements of reduced sedentary work, as set forth in Plaintiff’s RFC (tr.
43). More specifically, the ALJ found “[w]hile the claimant’s obesity may exacerbate
pain or other symptomologies, there is no indication that it would preclude her from
performing the modified sedentary exertional residual functional capacity assessed
herein” (id.). Although Plaintiff generally cites SSR 02-01p in support of her
argument (see ECF No. 22 at 13–14), which states that the ALJ should “consider any
functional limitations resulting from the obesity in the RFC assessment, in addition
to any limitations resulting from any other physical or mental impairments that we
identify,” in her brief Plaintiff has failed to identify or otherwise describe any obesity-
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related functional limitation that is not otherwise accounted for in the RFC (see id.).
And no such limitation is evident from the court’s own review of the record.
To be sure, during her hearing Plaintiff cited her primary disability as her
“mind” (tr. 91), and her secondary disability as her “neck” (tr. 92). She did not
otherwise explicitly or implicitly state that her obesity caused any limitations on her
ability to function, work, or perform activities of daily living, much less that it caused
any such limitations beyond those accounted for in the RFC. Moreover, substantial
evidence supports the ALJ’s finding that despite Plaintiff’s obesity, she could perform
a reduced range of sedentary work. As summarized supra, Plaintiff’s treatment notes
consistently show that she had full “5/5” strength in her upper and lower extremities;
full range of motion in her extremities; full neck range of motion; normal
coordination; normal gait, including tandem walking; normal station; and no sensory
deficits (tr. 396, 398, 575, 594, 605, 608, 611, 626, 628, 630, 632, 657, 667, 677, 680,
720, 733; see also tr. 41). Additionally, Dr. Krishnamurthy considered Plaintiff’s
obesity and determined she could perform work with the same postural limitations as
those set forth in the RFC (compare tr. 40 with 148–49). And more than one treating
physician encouraged Plaintiff to engage in regular physical exercise. For these
reasons, the ALJ did not err in his consideration of Plaintiff’s obesity and in
determining her RFC.
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2.
Opinion Evidence of Record
The Eleventh Circuit has noted that the focus of any RFC assessment is on the
doctors’ evaluations of a claimant’s condition and the resulting medical consequences.
See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). An ALJ must consider
and evaluate every medical opinion received.
See 20 C.F.R. § 404.1527.
Additionally, in assessing the medical evidence the ALJ must “state with particularity
the weight he gave the different medical opinions and the reasons therefor.” Sharfarz
v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (citing MacGregor v. Bowen, 786 F.2d
1050, 1053 (11th Cir. 1986)). Thus, while it is true that the determination of disability
under the Act is reserved to the Commissioner, the ALJ is nevertheless required to
consider and explain the weight given to opinions of medical doctors. See generally
20 C.F.R. § 404.1527; see also McCloud v. Barnhart, 166 F. App’x 410, 419 (11th
Cir. 2006) (unpublished) (remanding where ALJ did not explain weight given to
consulting psychologist’s report or the reasons for discrediting his opinion).8
Although the ALJ has wide latitude to evaluate the weight of the evidence, he must
do so in accordance with prevailing precedent. Pursuant to the regulations, the weight
The undersigned cites McCloud and other unpublished cases herein only as persuasive
authority and recognizes that such opinions are not considered binding precedent. See U.S. Ct. of
App. 11th Cir. Rule 36-2. The undersigned does the same with respect to opinions of circuit courts
of appeals other than the Eleventh Circuit, see United States v. Rosenthal, 763 F.2d 1291, 1294 n.4
(11th Cir. 1985), and any district court opinions cited herein.
8
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an ALJ must give medical opinions varies according to the relationship between the
medical professional and the claimant. 20 C.F.R. § 404.1527(c). For example, the
opinions of examining physicians are generally given more weight than
non-examining physicians, treating physicians’ opinions receive more weight than the
opinions of non-treating physicians’ opinions, and specialists’ opinions on issues
within their areas of expertise receive more weight than non-specialists’ opinions. See
id.; Preston v. Astrue, No. 2:09cv0485/SRW, 2010 WL 2465530, at *6 (N.D. Ala.
June 15, 2010). With respect to non-examining state agency medical consultants or
other program physicians, the regulations explain that an ALJ is required to consider
their opinions because they “are highly qualified physicians . . . who are also experts
in Social Security disability evaluation.” See 20 C.F.R. § 404.1527(e). An ALJ may
rely on opinions of non-examining sources when they do not conflict with those of
examining sources. Edwards v. Sullivan, 937 F.2d 580, 584–85 (11th Cir. 1991).
Where the ALJ has discounted the opinion of an examining source properly, however,
the ALJ may rely on the contrary opinions of non-examining sources. See Milner v.
Barnhart, 275 F. App’x 947 (11th Cir. 2008) (unpublished).
Moreover, an ALJ may consider various factors when weighing medical
opinions, including: (1) the examining relationship; (2) the nature, extent, and length
of the treatment relationship; (3) whether the medical source presents relevant
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evidence to support an opinion; (4) whether an opinion is consistent with the record;
(5) whether or not the doctor is a specialist; and (6) “any other factors” which tend to
support or contradict the opinion. See 20 C.F.R. § 404.1527(c)(1)–(6).
Neda Koehnemann, One-Time Consultative Examiner
Plaintiff contends the ALJ erred in giving “little weight” to the opinions of Dr.
Koehnemann, who examined Plaintiff once in April of 2016 at the request of her
counsel. The ALJ discussed Dr. Koehnemann’s examination and noted her findings,
namely, that Plaintiff has “significant memory deficits”; that her “level of anxiety and
depression likely adversely affects her memory functioning”; that she “very much is
in need of medical insurance and appropriate mental health medications”; and that she
“needs to have psychiatric treatment and counseling to reduce her level of emotional
distress” (tr. 673, see also tr. 44).
In claiming that the ALJ erred in discounting these opinions, Plaintiff first
asserts that the ALJ did not discuss the objective testing performed by Dr.
Koehnemann. This is simply incorrect, as the only test utilized by Dr. Koehnemann
was the Wechsler Memory Scale (see tr. 670), and the ALJ specifically acknowledged
the results of this testing (tr. 43).
Plaintiff then argues that the ALJ erred in discounting the opinions of Dr.
Koehnemann on grounds that she included no specific functional analysis of
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Plaintiff’s mental abilities. Plaintiff contends that such a finding is “entirely contrary
to the Commissioner’s applicable regulations” (ECF No. 22 at 11), specifically 20
C.F.R. § 404.1513(b)(6), which states: “the lack of the medical source statement will
not make a report incomplete.” The Regulation states as much, but the ALJ did not
reject the opinions as incomplete; the ALJ simply declined to afford them full weight.
And in affording them less than full weight, the ALJ pointed out that Dr. Koehnemann
observed that there was no evidence of a thought disorder, that Plaintiff was oriented
in all spheres, and that Plaintiff reported to Dr. Koehnemann she had never previously
obtained mental health counseling—in addition to noting that Dr. Koehnemann
imposed no social, occupational, or functional mental restrictions (see tr. 44).9
The ALJ also considered Plaintiff’s statement to Dr. Koehnemann that her
“primary relaxation is playing games on her phone because it allows her to forget
about other things” (tr. 670). Plaintiff contends the ALJ erroneously relied on this
statement as evidence of an ability to sustain concentration on work-related tasks for
two-hour blocks of time, but Plaintiff mischaracterizes the ALJ’s findings. The ALJ
did not find Plaintiff able to concentrate for two-hour blocks of time simply because
It bears repeating that Plaintiff’s counsel referred her to Dr. Koehnemann for the
consultative examination, not the Commissioner, as is customarily done. Had the Commissioner
made the referral, Dr. Koehnemann would have been requested to provide a medical source
statement. See 20 C.F.R. § 404.1513(b)(6). Thus, the lack of a medical source statement in this
instance is due to Plaintiff’s failure to secure one in connection with the evaluation.
9
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she is able to concentrate on games on her phone. The ALJ considered Plaintiff’s
statement in conjunction with the other evidence of record in formulating Plaintiff’s
RFC and in generally concluding that Plaintiff did not have severe or disabling
deficits in concentration or memory (see, e.g., tr. 39, 45). Stated differently, the ALJ
found Plaintiff’s ability to focus on playing games on her phone while simultaneously
“forget[ting] about other things,” to be generally consistent with the limitations in
concentration, persistence, and pace set forth in the RFC (see tr. 39). The ALJ did not
err in so finding.
Plaintiff additionally complains that the ALJ did not recite each factor set forth
in § 404.1527(c) in weighing the opinions of Dr. Koehnemann. There is no error in
this regard because an ALJ is not required to articulate his consideration of each and
every factor when weighing the varying pieces of medical evidence. Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (indicating that although an ALJ should
consider all of the relevant § 404.1527(c) factors, it is not necessary to explicitly
discuss every factor). Likewise, there is no requirement that an ALJ reference every
piece of evidence in his decision. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th
Cir. 2005) (“there is no rigid requirement that the ALJ specifically refer to every piece
of evidence in his decision,” as long as the ALJ’s decision “is not a broad rejection
which is ‘not enough to enable [the district court or this court] to conclude that [the
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ALJ] considered her medical condition as a whole.’”) (quoting Foote, 67 F.3d at
1561).
As a final matter, because Dr. Koehnemann examined Plaintiff only once, the
opinions generated from this examination are not entitled to the same weight as those
of a treating physician. See Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986)
(rule giving great weight to physician’s opinion does not apply where physician has
only examined patient one time).
For all of these reasons, the court finds the ALJ properly considered Dr.
Koehnemann’s opinions and did not err in affording less than full weight to them.
Frances Martinez and Steven Wise, Non-Examining Agency
Psychologists
Plaintiff argues that the ALJ based his mental RFC upon his own interpretation
of the evidence and inappropriately discounted the opinions of Drs. Martinez and
Wise.
Plaintiff’s argument is somewhat unclear, but to reiterate, Dr. Martinez offered
her opinions in May of 2014 at the initial level, and Dr. Wise offered his opinions in
July of 2014, in connection with Plaintiff’s request for reconsideration. In pertinent
part, their opinions are the same, with the primary difference being that Dr. Martinez
commented that Plaintiff can “perform simple routine tasks in a stable setting and
adapt to changes over time” (tr. 117), while Dr. Wise commented that Plaintiff would
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“do best in less complex tasks and those not requiring extended concentration” (tr.
150). Dr. Wise additionally noted that Plaintiff’s abilities with respect to attention and
concentration were within normal limits according to the medical evidence of record
at the reconsideration level (id.).
The ALJ referenced the findings of each non-examining consultant and, while
he gave “greater weight” to Dr. Wise’s opinions, he ultimately assigned each opinion
“some weight” (tr. 44). Plaintiff complains that the ALJ erred in failing to fully
incorporate the opinions of one or the other consultant into the RFC. There is no
requirement that the ALJ do so. See, e.g., Chapo v. Astrue, 682 F.3d 1285, 1288–89
(10th Cir. 2012) (“there is no requirement in the regulations for a direct
correspondence between an RFC finding and a specific medical opinion on the
functional capacity in question”); Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir.
2004) (noting that an ALJ, not a physician, is charged with determining a claimant’s
RFC from the medical record, and rejecting the argument “that there must be specific,
affirmative, medical evidence on the record as to each requirement of an exertional
work level before an ALJ can determine RFC within that category”) (citations
omitted); see also 20 C.F.R. § 404.1546(c) (stating that the ALJ is “responsible for
assessing your [RFC]”).
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Having carefully reviewed both consultants’ opinions, and the ALJ’s RFC
determination, the court discerns no error. The conclusions reached by Dr. Martinez
and Dr. Wise are, as previously noted, nearly identical. They are also generally
consistent with the ALJ’s RFC determination that Plaintiff can “perform simple,
routine, repetitive tasks, [and] can maintain concentration, persistence, and pace for
these simple, routine, repetitive tasks for at least two hours at a time; and can adapt
to occasional changes” (tr. 40).
Dawn Frost, Nurse Practitioner
Plaintiff also takes issue with ALJ’s assignment of “little weight” to the opinion
of NP Frost that Plaintiff “cannot work” and is “unable to perform satisfactorily” (tr.
44, 568). The ALJ appropriately disregarded these conclusions. See 20 C.F.R.
§ 404.1527(d)(1) (a finding of disability or inability to work by a medical source does
not mean that the Commissioner will automatically reach the same conclusion); SSR
96-5p (whether an individual is disabled is a question reserved to the Commissioner;
treating source opinions on such questions are “never entitled to controlling weight
or special significance”).
The ALJ also noted, correctly, that NP Frost is not an “acceptable medical
source” qualified to give a medical opinion under the regulations (tr. 44). See 20
C.F.R. § 404.1513(a) (listing acceptable medical sources). And the ALJ pointed to
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NP Frost’s lack of special mental health training—also an appropriate consideration.
See 20 C.F.R. § 1527(c)(5) (generally more weight is given to the medical opinion of
a specialist than to the medical opinion of a source who is not a specialist). To be
sure, NP Frost herself noted that her “specialty” was family medicine, not psychology.
Additionally, as the ALJ found, NP Frost’s opinions were based on a “check the box,
short answer format, with no narrative showing treatment visit complaints,
examination results, or testing to explain and substantiate her opinion” (tr. at 44). The
ALJ properly considered this factor in weighing NP Frost’s opinions. See 20 C.F.R.
§ 404.1527(c)(3) (more weight will be given when a medical source presents relevant
evidence and explanation for a medical opinion); see also Hammersley v. Astrue, No.
5:08cv245-Oc-10GRJ, 2009 WL 3053707, at *6 (M.D. Fla. Sept. 18, 2009)
(“check-off forms . . . have limited probative value because they are conclusory and
provide little narrative or insight into the reasons behind the conclusions”) (citing
Spencer ex rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) (rejecting
opinion from a non-examining physician who merely checked boxes on a form
without providing any explanation for his conclusions); Mason v. Shalala, 994 F.2d
1058, 1065 (3d Cir. 1993) (noting that “[f]orm reports in which a physician’s
obligation is only to check a box or fill in a blank are weak evidence at best.”)). Brief
and conclusory statements that are not supported by medical findings, even if made
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by a treating physician, are not persuasive evidence of disability. Warncke v. Harris,
619 F.2d 412, 417 (5th Cir. 1980); Johns v. Bowen, 821 F.2d 551, 555 (11th Cir.
1987).
For all of these reasons, the ALJ did not err in assigning “little weight” to the
opinions of NP Frost.
P.S. Krishnamurthy, Non-examining Agency Physician
Although Plaintiff testified that she can only walk for thirty minutes at a time,
stand for fifteen minutes at time, sit for “about an hour,” and lift “about ten pounds”
(tr. 91), Dr. Krishnamurthy found Plaintiff to have greater physical capabilities, as
detailed above. Ultimately, Dr. Krishnamurthy opined that Plaintiff could perform
“light” work (tr. 152). The ALJ, however, limited Plaintiff to sedentary work, with
equal or lesser abilities than those set forth by Dr. Krishnamurthy. In so doing, the
ALJ stated that “out of an abundance of caution” he would reduce Plaintiff’s
exertional level to “sedentary,” as he found that level to be more in line with her
hearing testimony (tr. 43).
Plaintiff asserts error on the ground that the ALJ did not apply the same
reasoning with respect to other aspects of the RFC determination (i.e., the entire RFC
should have mirrored Plaintiff’s testimony because the ALJ determined that exertional
level would correspond with the testimony). The court finds this argument to be
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without merit, as the ALJ was not required to accept all of her testimony. Moreover,
the ALJ stated he was reducing the exertional level “in an abundance of caution,”
suggesting he believed Dr. Krishnamurthy’s opinions to be accurate and supported by
the record, such that all of his opinions could have been adopted. Rather than adopt
all of his opinions, however, the ALJ found Plaintiff to be less capable than Dr.
Krishnamurthy opined, and thus made a determination that favored Plaintiff—yet she
cries foul. Under similar circumstances, the Tenth Circuit found no error, stating that
although “[t]he ALJ could have been more explicit in tying this mitigating gesture to
evidence in the record, [] we are aware of no controlling authority holding that the full
adverse force of a medical opinion cannot be moderated favorably in this way unless
the ALJ provides an explanation for extending the claimant such a benefit.” Chapo,
682 F.3d at 1288. The undersigned likewise finds no error here.
C.
Moderate Limitation in Concentration, Persistence, or Pace
In determining at an early step of the sequential evaluation that Plaintiff’s
anxiety disorder and depressive disorder did not meet or equal the criteria of the
relevant listings, the ALJ found that Plaintiff had “moderate” difficulties with regard
to concentration, persistence, and pace (tr. 39). At a later step, in formulating
Plaintiff’s RFC, the ALJ did not repeat this precise limitation but instead limited
Plaintiff to performing simple, routine, repetitive tasks and “maintain[ing]
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concentration, persistence, and pace for these simple, routine, repetitive tasks” for two
hours at a time, and he permitted only occasional changes in the workplace setting (tr.
40). The ALJ ultimately determined Plaintiff was not disabled, based on the VE’s
testimony that Plaintiff could perform various unskilled jobs with this RFC.
Plaintiff contends the ALJ erred in omitting the “moderate” limitations in
concentration, persistence, and pace from the hypothetical questions posed to the VE,
which—because the hypothetical question tracks the RFC—is in effect a claim that
the RFC determination is flawed.
In support, Plaintiff relies exclusively on Winschel v. Commissioner of Social
Sec., 631 F.3d 1176, 1181 (11th Cir. 2011). In Winschel:
[T]he AJL determined at step two that Winschel’s mental impairments
caused a moderate limitation in maintaining concentration, persistence,
and pace. But the ALJ did not indicate that medical evidence suggested
Winschel’s ability to work was unaffected by this limitation, nor did he
otherwise implicitly account for the limitation in the hypothetical.
Consequently, the ALJ should have explicitly included the limitation in
his hypothetical question to the vocational expert.”
Id.
Plaintiff appears to contend that Winschel held that a limitation to simple,
routine tasks or unskilled work can never account for moderate limitations in
concentration, persistence, or pace (see ECF No. 22 at 6–7). But this is not the
holding. As the Eleventh Circuit has clarified, “limiting the hypothetical questions
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to include only unskilled work sufficiently accounts for the claimant’s limitations in
maintaining his concentration, persistence, or pace where the medical evidence
demonstrates that the claimant can engage in simple, routine tasks or unskilled work
despite his limitations.” Jacobs v. Comm’r of Soc. Sec., 520 F. App’x 948, 950–51
(11th Cir. 2013) (citing Winschel, 631 F.3d at 1180) (emphasis added). And here, the
evidence of record in fact demonstrates that Plaintiff can engage in simple, routine,
repetitive tasks, with only occasional changes in the work setting, despite her
limitations. For example, Dr. Wise opined that despite having moderate limitations
in concentration, persistence, or pace, Plaintiff was able to perform simple, routine,
repetitive work in a stable setting, that is, one with only occasional changes (see tr.
112–13, 117, 145–46, 151). Likewise, treatment notes show Plaintiff could follow
simple and complex commands, had normal memory, was able to recall events, had
no impairments in judgment and insight, and had normal ability to calculate, normal
attention span, and normal ability to abstract (tr. 575, 594, 604, 608, 611, 624, 628,
630, 632, 666).
Additionally, or alternatively, Winschel instructs that if an ALJ does not
explicitly include moderate limitations in maintaining concentration, persistence, and
pace in the hypothetical questions posed to the VE, he may implicitly account for such
limitations in the questions. Here, it appears the ALJ implicitly accounted for
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Plaintiff’s moderate limitations by restricting tasks to two-hour increments (and
permitting only occasional changes in the workplace setting).
See Jarrett v.
Commissioner of Social Sec., 422 F. App’x 869, 871 (11th Cir. 2011) (hypothetical
questions adequately accounted for “moderate difficulties” in concentration,
persistence, and pace where ALJ asked the VE to assume a person who could only
“understand, remember, [and] carry-out simple . . . tasks and concentrate for brief
periods of time”). Thus, as the moderate limitations appear to have been implicitly
taken into account, the ALJ did not err.
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 his 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.
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3.
That the Clerk is directed to close the file.
At Pensacola, Florida this 31st day of January 2019.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE
Case No.: 5:17cv232/EMT
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