COLLINS v. BERRYHILL
Filing
21
MEMORANDUM OPINION AND ORDER re 1 Complaint. The ALJ adhered to applicable legal standards and rendered a decision supported by substantial evidence. Accordingly, it is ORDERED that: The decision of the Commissioner is AFFIRMED, and this action is DISMISSED. FINAL JUDGMENT is entered, pursuant to sentence four of 42 U.S.C. § 405(g), AFFIRMING the decision of the Commissioner. The clerk of the court close the case file. Signed by MAGISTRATE JUDGE MICHAEL J FRANK on 3/29/2019. (jcw)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
LISA ANN COLLINS,
Plaintiff,
v.
Case No. 5:17-cv-249-MJF
NANCY A. BERRYHILL,
Defendant.
/
MEMORANDUM OPINION AND ORDER
Plaintiff Lisa Ann Collins initiated this action under 42 U.S.C. § 405(g) to
seek review of a final adverse decision of the Commissioner of the Social Security
Administration. The Commissioner denied her Title II application for disability and
disability insurance benefits and her Title XVI application for Supplemental Security
Income. After careful consideration of the entire record, the decision of the
Commissioner is affirmed.
I.
Procedural History
On January 28, 2014, the Plaintiff protectively filed a Title II application for
disability and disability insurance benefits and a Title XVI application for
supplemental security income (“SSI”). (Tr. 22, 218-28). In her application, she
alleged that her disability began May 1, 2013. (Tr. 22, 218-28). Her applications
were denied initially on April 16, 2014, and upon reconsideration on August 15,
2014. (Tr. 22). Thereafter, she requested a hearing before an administrative law
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judge (“ALJ”). On April 15, 2016, the ALJ conducted a video hearing. On July 28,
2016, the ALJ issued a decision in which he found Plaintiff “not disabled,” as
defined under the Social Security Act, from May 1, 2013, through the date of his
decision. (Tr. 22-34). The Appeals Council denied Plaintiff’s request for review. (Tr.
1-5). The decision of the ALJ, therefore, stands as the final decision of the
Commissioner, subject to the review of 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 findings relevant
to the issues raised in this appeal:
(1)
The Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2016.
(2)
The Plaintiff had not engaged in substantial gainful activity since May
1, 2013, the alleged onset date.
(3)
The Plaintiff suffered from the following severe impairments:
degenerative disc disease, obstructive sleep apnea, morbid obesity, degenerative
joint disease of the left knee, and affective mood disorder. Plaintiff’s chronic
obstructive pulmonary disease, diabetes mellitus, hypertension, liver issues, and
fibromyalgia were found not to be severe impairments.
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(4)
The Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(5)
The Plaintiff has the Residual Functional Capacity (“RFC”) to perform
light work except that the Plaintiff:
a. “can frequently handle with the right upper extremity” (Tr. 28);
b. must sit/stand every hour for ten minutes;
c. cannot climb ropes, ladders, or scaffolds, but can occasionally climb
ramps and stairs, and balance, stoop, kneel, crouch, and crawl;
d. cannot have exposure to unprotected heights, open flames, open
water, poorly ventilated areas, or chemical fumes;
e. cannot have concentrated exposure to vibrations or environmental
irritants;
f. cannot operate a motor vehicle or moving machinery;
g. is limited to work that involves simple, routine and repetitive tasks
that are performed in a work environment free of fast-paced work, and
involves only simple work-related decisions and few, if any, workplace
changes; and
h. is limited to work that entailed only occasional interaction with the
public.
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(6)
The Plaintiff is unable to perform any past relevant work.
(7)
The Plaintiff was 46 years old, which is defined as a “younger”
individual on the alleged disability onset date.
(8)
The 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 the Medical-Vocational Rules support a finding that Plaintiff is
“not disabled” whether or not the Plaintiff has transferable job skills.
(10) Considering the Plaintiff’s age, education, work experience, and RFC,
there are jobs in significant numbers in the national economy that the Plaintiff can
perform.
(11) The Plaintiff has not been under a disability, as defined in the Social
Security Act, from May 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
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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 mind would accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.
Ct. 1420, 1427 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229, 59 S. Ct. 206, 217 (1938)); Lewis, 125 F.3d at 1439. The reviewing 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).
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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),1 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
1
In general, the legal standards applied are the same regardless of whether a claimant
seeks disability insurance benefits (“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 report and recommendation should be considered to refer to the
appropriate parallel provision. The same applies to citations of statutes or regulations
found in quoted court decisions.
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of at least twelve months, and if her impairments meet or medically equal the criteria
of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant
is presumed disabled without further inquiry.
4.
If the claimant’s impairments do not prevent her from 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 Employment and Medical History
A.
Relevant Medical History
On May 1, 2013, Plaintiff presented to Jackson Hospital and complained of
knee pain. (Tr. 408). Diagnostic imaging showed that Plaintiff had osteophytes in
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the knee area with marginal joint lipping. (Tr. 380). It also showed that a small
separate ossification was projected at the superior aspect of the tibial tubercle. The
impression was that Plaintiff likely had degenerative joint disease, most likely
related to chronic or previous acute trauma, and a knee joint effusion or
hemarthrosis. (Tr. 380). The treating provider’s impression was arthritis, and the
provider prescribed an Ace Wrap. (Tr. 411).
Plaintiff presented to the Family Care center on May 9, 2013. Claimant noted
that she sometimes had pain in her left arm and shoulder and felt fluttering in her
chest. An x-ray of her chest indicated that Plaintiff had bronchitis with chronic
changes. The provider did not exclude the possibility of COPD. In a subsequent xray, the provider noted there were no changes from the prior test.
On May 15, 2013, Plaintiff went to Jackson Hospital with complaints of
pressure-like episodes in her chest radiating to her left arm and fluttering in her chest.
The treatment notes indicate that Plaintiff reported the biggest concern was the
exercise intolerance as she normally walked one to two miles, three to four times a
week, without the dyspnea she was experiencing. (Tr. 387). The physician noted that
during the examination there were no audible wheels, rales, or rhonic. Plaintiff also
had a normal heart rate and rhythm. Plaintiff did not present with any
musculoskeletal deformities.
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The physician admitted Plaintiff for further testing. A pulmonary angiogram
indicated Plaintiff had cardiomegaly and bronchitis. (Tr. 395). A CT scan of
Plaintiff’s abdomen showed that Plaintiff had a fatty replaced liver parenchyma. It
did not show evidence of hernias, obvious diverticulitis, or inflammatory process.
(Tr. 394). An echocardiogram showed generally normal findings with some mild
insufficiencies. A myocardial perfusion study was performed twice, and the
impressions were of a normal study. (Tr. 396-98). Plaintiff was exercised per Bruce
protocol, but the test was terminated due to fatigue and shortness of breath. (Tr. 391).
The provider noted a mild hypertensive response and noted that the testing showed
poor cardiovascular condition. But the test did not show evidence of reversible
myocardial ischemia. Upon discharge, Plaintiff was advised she had type II diabetes.
The discharge diagnose was “noncardiac chest pain, chronic obstructive pulmonary
disease, morbid obesity, tobacco abuse, obstructive sleep apnea, hypertension,
gastroesophageal reflux disease, depression, fibromyalgia, [and] adult-onset
diabetes.” (Tr. 385).
Plaintiff went to the Family Care Center several times in May 2013. Plaintiff
was being treated for diabetes mellitus, obesity, tobacco abuse, anxiety attacks,
hyperlipidemia, hypertension, degenerative joint disease of the left knee, and
gastroesophageal reflux disease. (Tr. 452-54). In July 2013, Plaintiff was also being
treated for fibromyalgia and obstructive sleep apnea by the Family Care Center
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physicians. (Tr. 451). In September 2013, Plaintiff returned, and the physician added
chronic dermatitis and carpal tunnel syndrome to the list of impressions. (Tr. 450).
Plaintiff returned in January 2014, Plaintiff complained of rectal bleeding and she
“was diagnosed with hepathomegaly (sic?).” (Tr. 31, 449). Plaintiff returned in
March 2014, and she was treated for a skin lesion. (Tr. 447-48).
In April 2014, the record reflects continued treatment and a discussion
regarding Plaintiff’s diet. (Tr. 445, 622). In July 2014, the records indicate that liver
testing was referred. (Tr. 31, 620). In October 2014, the Plaintiff presented to Family
Care Center twice. According to the treatment notes from the first visit, the Plaintiff
complained of peripheral neuropathy. (Tr. 31, 612). This does not appear in the
assessment part of the treatment notes from the second October visit, however. (Tr.
31, 610).
In November and December 2014 and January 2015, treatment notes indicate
Plaintiff had memory problems. (Tr. 604, 605, 609). In March 2015, the treatment
notes reflect that memory problems were not assessed, but Plaintiff had knee pain.
(Tr. 603). In February 2015, Plaintiff did not complain of either memory problems
or knee pain. (Tr. 602). Plaintiff continued to seek care from the Family Care Center
on a monthly basis and the last record is from March 17, 2016. (Tr. 31, 588-601).
The ALJ noted that the treatment notes from some visits mention knee pain. (Tr. 31).
At least one record notes abdominal pain. Treatment records from 2016 show that
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Plaintiff complained of lower quadrant pain, hand pain, and peripheral neuropathy.
(Tr. 31).
On April 12, 2015, Plaintiff presented at Tallahassee Orthopedic Clinic.
Plaintiff alleged that she had moderate knee pain, which was present for
approximately 4 years. Plaintiff reported that she had been using topical Voltaren
gel as prescribed by her primary care physician (Tr. 584). The result of the left knee
examination showed there was no swelling, ecchymosis, or deformity. (Tr. 585).
Plaintiff’s gait was normal with no limp. The provider advised Plaintiff of the
underlying pathology, discussed nonsurgical versus surgical intervention, and
prescribed physical therapy and continued used of Voltaren gel. (Tr. 586).
Medical records from the Digestive Disease Center noted that claimant had a
colonoscopy and EGD on August 25, 2014. The tests did not show polyps or the
source of anemia or bleeding. (Tr. 629). On January 30, 2015, Plaintiff swallowed a
PillCam that was retrieved on February 2, 2015. The results showed that there were
no small bowel abnormalities, but there was significant active bleeding in the colon.
(Tr. 629). A follow-up colonoscopy showed a tubular adenoma with no evidence of
malignancy. (Tr. 630).
Claimant also submitted records from the NeuroPain Center, where Plaintiff
was seen by Dr. George Barrio, M.D. There is only one record from a visit on April
14, 2016, the day prior to the hearing. The Plaintiff complained of non-restorative
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sleep, excessive daytime sleepiness, and night awakening in which she was gasping
for air. (Tr. 624). The treatment record indicates that Plaintiff did not have “any
workup” for neuropathy and she had not undergone a sleep study. (Tr. 624). Upon
examination, the Plaintiff was noted to have decreased vibratory sensation in her
feet, but she had normal heel/toe walk and a normal tandem walk. (Tr. 626).
Additionally, the claimant had 5/5 strength in all groups tested with normal muscle
tone. She appeared to have an intact memory—both recent and remote—and the
record reflects that Plaintiff was able to recall three out of three objects at 5 and 10
minutes. (Tr. 626). Her attention span and concertation were also noted as good. Dr.
Barrio ordered x-rays and a sleep study, but Plaintiff did not submit any additional
records from Dr. Barrio. (Tr. 32, 626-27).
Turning to Plaintiff’s mental health history, Plaintiff presented as a selfreferral to Florida Therapy Services in April 2014. She reported problems with
depression, anxiety, PTSD, and a history of abuse. (Tr. 557-65).
On April 25, 2014, Dr. Michael Vandewalle, D.O., conducted an initial
psychiatric evaluation. (Tr. 25, 556). Dr. Vandewalle’s notes describe the claimant
as alert and cooperative with clear, coherent, and articulate speech. Dr. Vandewalle
noted that Plaintiff’s memory was intact, her insight and judgment were fair, and she
did not have any suicidal ideations. Plaintiff’s mood and affect were appropriate to
the situation, and her thoughts were clear and coherent with no evidence of
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psychosis. Dr. Vandewalle diagnosed the Plaintiff with major depression and panic
disorder without agoraphobia. Dr. Vandewalle assessed the Plaintiff as having a
Global Assessment of Functioning (“GAF”) score of 55. (Tr. 556).
Plaintiff returned on May 20, 2014, and reported difficulty getting to sleep.
(Tr. 554). The record indicates that Plaintiff’s memory was intact, her concentration
was good, her affect was congruent, and her mood was good. (Tr. 554). In August
2014, Plaintiff still reported experiencing some anxiety, but the results from the
mental health exam had many of the same findings contained in Dr. Vandewalle’s
initial assessment. (Tr. 26, 551-52). In October 2014, Plaintiff reported that she was
doing fair. (Tr. 26, 548). Plaintiff appeared to be in a good mood, had rational
thought and speech processes, and she possessed an intact memory and good
concentration. (Tr. 549). Plaintiff returned in December 2014, January 2015, and
March 2015. (Tr. 26, 539-41, 542-44, 545-47). Records for these visits indicated that
Plaintiff reported that she was doing fair. (Tr. 539, 542, 545). Similarly, these
records indicated that she had good mood, rational thought and speech processes,
intact memory, and good concentration. (Tr. 540, 543, 546).
On May 11, 2015, Plaintiff had an annual assessment. (Tr. 529-38). Plaintiff
reported progress with her coping skills, but she reported that she still suffered from
daily depression and anxiety. (Tr. 530). Plaintiff reported no substance abuse since
her last assessment. (Tr. 532-33). The treating provider noted that Plaintiff had a
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blunted affect, but was fully oriented, had good abstract reasoning, a good sense of
responsibility, and exhibited rational and logical thought processes. (Tr. 535).
Additionally, it was noted that her memory appeared intact. (Tr. 534). Plaintiff’s
diagnoses were posttraumatic stress disorder, major depressive disorder, and panic
disorder. (Tr. 536).
Plaintiff returned for medication management in June 2015 and July 2015.
(Tr. 523-25, 526-28). Plaintiff reported doing “ok on the meds.” (Tr. 527). Records
for these visits note the Plaintiff’s medications and her reported symptoms. (523-25,
526-28). They also note that Plaintiff’s concentration was “good” and her memory
was intact. (Tr. 524, 527). The treatment provider also noted that Plaintiff’s affect
was congruent and that her speech and thought processes were rational. (Tr. 524,
527).
In July 2015, Plaintiff presented voluntarily at Emerald Coast Behavioral
Hospital. Plaintiff reported having suicidal ideations. Dr. Yana Kirova-Pancheva,
M.D., examined the Plaintiff and noted that she could not elicit PTSD symptoms or
general anxiety disorder symptoms. (Tr. 26, 580). Upon discharge, the Plaintiff was
psychiatrically stable. The records note that she had a depressed mood, but her affect
was within a normal range. (Tr. 582). Additionally, her memory was intact, and she
had fair judgment and insight. (Tr. 582).
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In October 2015, Plaintiff returned to Florida Therapy Services. Plaintiff
reported a worsening of her symptoms. (Tr. 519). The treating provider noted that
she had a congruent affect, rational thought processes, and normal perceptions. (Tr.
520). Plaintiff also was noted to have an impaired memory and limited
concentration; however, no support was included for this assessment. (Tr. 27, 521).
Plaintiff returned in November 2015, and the mental status exam results remained
the same. (Tr. 517). Plaintiff reported that some medication was causing nightmares
and nausea. (Tr. 27, 515). In December 2015, Plaintiff returned and noted that she
was irritated by everything. (Tr. 512). There were no mental status exam results
contained in the record.
Plaintiff’s last medical record from Florida Therapy Services is dated
February 2016. Plaintiff reported that she was doing okay, but she did not feel like
doing anything. (Tr. 508). She noted that she had unexplained weight loss, her
diabetes appeared to be out of control, and she was having vision problems due to
her diabetes. (Tr. 508). Plaintiff complained of frequent urination as a result of
diabetes and frequent drinking, abdominal pain, joint pain, and gait disturbance. (Tr.
509). As for mental health findings, the provider noted that Plaintiff’s affect was
congruent but restricted, thought and speech processes were rational, and her
memory and concentration were impaired and limited. (Tr. 510).
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Plaintiff also was examined by a state agency disability examiner and state
agency medical consultant. Both reviewers found that Plaintiff could perform light
work. She was also reviewed by psychological reviewers, who found that there was
no evidence of severe impairments. (Tr. 33). In May 2014, a consultative examiner
Julian Salina, Ph.D., also saw the Plaintiff. (Tr. 33, 495-98).
Plaintiff submitted to the Appeals Council a Mental Health Evaluation
completed by Dr. Vandewalle and Nurse Hussey. This report was created on April
25, 2017, approximately nine months after the ALJ’s decision. In the Mental Health
Evaluation, Dr. Vandewalle and Nurse Hussey opined that:
Plaintiff was “limited but satisfactory” to “seriously limited” in her mental
abilities and aptitudes to do unskilled work.
Plaintiff was seriously limited in her mental abilities and aptitudes needed to
do semiskilled and skilled work.
Plaintiff was unable to perform work at a consistent pace without rest periods
of an unreasonable number and length.
Plaintiff was limited in her ability to interact appropriately with the general
public.
Plaintiff had marked limitations in her daily living activities, social
functioning, and ability to maintain concentration, persistence, or pace.
Within a twelve-month period, Plaintiff experienced one to two episodes of
decompensation of extended duration.
A minimal increase in mental demands or change in environment likely
would cause Plaintiff to decompensate.
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Plaintiff was unable to function independently outside her home.
Plaintiff’s impairment would cause her to be absent from work more than
four days per month.
(Tr. 635-40).
The Appeals Council denied review. In its decision, the Appeals Council
noted that it applied the rule that the Appeals Council would review the case if
claimant provided additional evidence that “is new, material, and relates to the
period on or before the date of the hearing decision” and shows that “there is a
reasonable probability that the additional evidence would change the outcome of the
decision.” (Tr. 1, 2). The Appeals Council noted that it received the Mental
Impairment Questionnaire and concluded that “this evidence does not show a
reasonable probability that it would change the outcome of the decision.” (Tr. 2).
B.
Relevant Hearing Testimony
At her hearing, Plaintiff testified that she suffered from fibromyalgia, carpal
tunnel syndrome, and neuropathy. (Tr. 50-54). Plaintiff testified that a physician
from Bonifay, Florida—whose name she could not remember—conducted
diagnostic testing for fibromyalgia. (Tr. 51). Plaintiff could not discern whether her
pain was derived from the fibromyalgia or her neuropathy, but she asserted that she
suffered from this pain about two to three times per month. (Tr. 52). She noted that
she had been tested for carpal tunnel syndrome, but that the records regarding the
test could not be found. She noted that her right hand was worse than her left. (Tr.
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54). She also testified that she could only sit for eight hours in a recliner and that she
did not think she could walk for more than 20 minutes. (Tr. 57, 58, 67). In particular,
she noted that when she went to the store with her daughter, she often had to use a
motorized cart. (Tr. 57). Plaintiff noted that the issue was her knee, but that when
she went to the Tallahassee Orthopedic Center, the physicians did not think “it was
a big enough issue.” (Tr. 69). She noted that she had difficulty picking up her
grandchildren, who weighed about twenty pounds. (Tr. 59).
Additionally, she noted that, because of her diverticulitis, she frequently
would have to use the bathroom and it caused her to be anemic. (Tr. 60, 69, 70). She
testified that she was diagnosed with sleep apnea and that she was going to be tested
to confirm sleep apnea. (Tr. 60). She stated that she had not “done” drugs for
approximately one year. (Tr. 61, 64). She also noted that she suffered from upper
and lower gastrointestinal problems and that she had polyps. She related that her
digestive issues made her anemic. (Tr. 66). She also testified that she was taking
medication for her depression and anxiety, but that she still had mental health issues.
She explained that “some days are worse than others.” (Tr. 71).
With regard to her concentration and memory problems, the Plaintiff noted
that she did not have difficulty with her previous cleaning or janitorial work. She
noted that in the fast food industry, she would have to be reminded a few times about
her duties, so she could “get the hang of it.” (Tr. 63).
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A vocational expert (“VE”) also testified at the hearing and responded to three
hypothetical questions posed by the ALJ. The ALJ first asked the VE to consider an
individual who (1) is limited to light work with a sit/stand option every ten minutes;
(2) cannot climb ladders, ropes or scaffolding; (3) can only occasionally climb ramps
and stairs, balance, stoop, kneel, crouch, crawl; and (4) could not be exposed to
unprotected heights, open flames, open waters, motor vehicles or machinery,
concentrated exposure to vibration, and no concentrated exposure to environmental
irritants, fumes, odors, dust, gases, poorly ventilated areas, and chemical fumes. (Tr.
72). The VE testified that such limitations would prevent such an individual from
performing the Plaintiff’s previous job, but it would not preclude the performance
of other jobs. The VE identified three types of available jobs: (1) office clerk; (2)
inspector, tester, or sorter; and (3) receptionist. (Tr. 73).
The ALJ next asked the VE to consider an individual with the same limitations
as the first hypothetical and additional limitations in the individual’s right upper
extremity as well as mental abilities. The VE testified that the additional limitations
would eliminate the receptionist job and the inspector, tester, sorter job. The VE
testified that the possibility of working as a clerk would remain. (Tr. 73). The ALJ
then asked the VE to consider all the previous limitations and the additional
limitation that the individual would miss work one day per week on average. The
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VE testified that this would eliminate all work because such an individual would not
be able to complete a 40-hour workweek. (Tr. 74).
C.
Plaintiff’s Past Employment History
Based on Plaintiff’s prior employment history, the ALJ found that the only
relevant past employment was categorized as “cleaner.” (Tr. 33, 48-49). The VE
categorized this position at a light, unskilled level. (Tr. 33).
V.
Discussion
Plaintiff raises three issues on appeal. Specifically, Plaintiff alleges that
reversal and remand are required because, in reaching his decision: (1) the ALJ failed
to consider the aggregate impact of Plaintiff’s severe impairments, including her
obesity; (2) the ALJ erroneously evaluated Plaintiff’s testimony regarding her
symptoms and limitations; and (3) the Appeals Council erroneously found that
additional evidence submitted for the first time before the Appeals Council “did not
show a reasonable probability that it would change the outcome of the [ALJ’s]
decision.” (Doc. 16 at 1).
A.
Aggregate Impact of Plaintiff’s Conditions
Plaintiff argues that her case should be remanded because the ALJ failed to
take into account the aggregate impact of Plaintiff’s conditions, including her
obesity, diverticulitis, and other “non-severe” impairments.
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1.
Obesity
An ALJ is not required to address an alleged impairment when the claimant
and her attorney failed to raise the issue in the application for disability or at the
hearing. See Sullivan v. Comm’r of Soc. Sec., 694 F. App’x 670, 671 (11th Cir. 2017)
(holding Plaintiff, who was represented by counsel, could not meet her burden to
prove she was disabled on the basis of an impairment that was not raised in the
application for benefits and not offered at the hearing as a basis for disability);
Robinson v. Astrue, 365 F. App’x 993, 995 (11th Cir. 2010) (holding that the ALJ
had no duty to consider the claimant’s chronic fatigue syndrome diagnosis where
claimant was represented by counsel and counsel did not raise this issue at the
hearing) (citing Pena v. Charter, 76 F.3d 906, 909 (8th Cir. 1996)). An
“administrative law judge is under no obligation to investigate a claim not presented
at the time of the applicant for benefits and not offered at the hearing as a basis for
disability.” Street v Barnhart, 133 F. App’x. 621, 627 (11th Cir. 2005) (quoting
Pena, 76 F.3d at 909).
Here, Plaintiff was represented by counsel, and neither counsel nor Plaintiff
raised obesity as a disabling condition in her disability reports (Tr. 253, 318, 330),
or at the hearing (Tr. 41-75). Indeed, in Plaintiff’s application for benefits she listed
only the following impairments: (1) three bulging discs; (2) fibromyalgia; (3)
depression; (4) HBP; (5) diabetes; (6) an enlarged liver; (7) sleep apnea; (8) spurs in
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left knee; (9) memory problems; (10) anxiety; and (11) a stomach ulcer. (Tr. 253).
At the hearing, the only discussion regarding Plaintiff’s obesity was brief
questioning by the ALJ. (Tr. 58-59). The ALJ noted that the record reflected that
Plaintiff might be obese, and questioned the Plaintiff:
ALJ: There is also a suggestion of obesity. Do you know how much
you weigh at this point?
Plaintiff: 310 pounds
ALJ: You lost some weight in the last year, right? You were up to 324?
Plaintiff: Yeah. I teeter between 310 and under 300, like 290. It just
goes up and down.
ALJ: And you’re 5’6’’?
Plaintiff: 5’7’’
ALJ: You’re 5’7’’
Plaintiff: Yes.
(Tr. 58-59). That was the extent of the testimony about the Plaintiff’s obesity. Thus,
during her hearing, neither Plaintiff nor her counsel indicated that Plaintiff’s obesity
caused her any functional limitations.
Although the ALJ was not required to consider the Plaintiff’s obesity, he
clearly evaluated her obesity, as he found it to be a severe impairment. (Tr. 24). The
ALJ then properly evaluated the Plaintiff’s obesity in assessing her RFC. (Tr. 28,
29). The record reflects that the ALJ considered Plaintiff’s medical records from
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2013 through 2016. (Tr. 29-32). Although these records mention Plaintiff’s obesity2,
these records do not indicate any functional limitations. (Tr. 385, 387, 388, 404, 445,
448, 450, 451, 453, 479-80, 483, 490, 508, 512, 515, 523, 526, 539, 542, 548, 570,
574, 581, 582, 585, 589, 591, 592, 593, 597, 598, 599, 600, 602, 604, 609, 610, 617,
622, 625).
In addition, the ALJ reviewed the Disability Determination Services
(“DDS”) decision (both the initial DDS report and the reconsideration
determination). (Tr. 131). To the extent Plaintiff alleges that the ALJ erred in
assigning some weight to these decisions, the court finds that, at most, the ALJ’s
decision to assign some weight amounts to nothing more than harmless error. The
ALJ’s decision thoroughly evaluated all of Plaintiff’s objective medical records. (Tr.
28-33). The ALJ only referred to the initial DDS report and the state agency medical
consultant in one sentence: “As for opinion evidence, some weight is given to the
DDS medical reviewers as they also assessed a range of light work.” (Tr. 33). Thus,
the ALJ’s decision that Plaintiff had an RFC to perform light work was primarily
based on the medical evidence in the record. (Tr. 29-32).
2
Although some of Plaintiff’s medical records do not use the term “obesity,”
Plaintiff’s weight on these occasions were similar to Plaintiff’s weight at the time of
hearing, which the ALJ noted was indicative of “a body habitus consistent with a
finding of medical obesity.” (Tr. 29).
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The ALJ found that the DDS report and reconsideration determination merely
confirmed the objective evidence. (Tr. 33). There was nothing erroneous or improper
about drawing such a conclusion. See Castel v. Comm’r of Soc. Sec., 355 F. App’x
260, 265-66 (11th Cir. 2009) (finding that there was no error when the ALJ
referenced the DDS report, which merely confirmed the objective medical evidence,
and noting that “to the extent that one could argue that the ALJ erred, the error would
not rise above the level of harmless error.”); Cooper v. Comm’r of Soc. Sec., 521 F.
App’x 803, 807 (11th Cir. 2013) (stating that “although, the ALJ mistakenly referred
to the SDM as a doctor and should not have given any weight to her opinion because
she was merely an SDM, any error in regard was harmless because the ALJ stated
that he considered all of the evidence in the record . . . and there is nothing to indicate
that the opinion of the SDM was anything more than cumulative of other evidence,
let alone dispositive”).
Indeed, the assessment by Dr. Minal Krishnamurthy—a state agency medical
consultant—is one of the few records that provided the ALJ with any mention of
functional limitations regarding Plaintiff’s obesity. (Tr. 131, 132). Despite a finding
of morbid obesity, Dr. Krishnamurthy found that the Plaintiff was able to perform
work at an exertional level consistent with light work, except with certain postural
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limitations and environmental limitations.3 The ALJ’s determination of Plaintiff’s
RFC included these same postural and environmental limitations, which indicates
that the ALJ took Plaintiff’s obesity into account in assessing the Plaintiff’s residual
functional capacity. (Tr. 28, 131, 132).
Taken as a whole, the record shows that the ALJ properly evaluated the
Plaintiff’s obesity. Indeed, the ALJ found that the Plaintiff’s obesity was a severe
impairment, but also concluded that the Plaintiff had the residual functional capacity
to perform light work. (Tr. 24); see Lewis v. Comm’r of Soc. Sec., 487 F. App’x.
481, 483 (11th Cir. 2012) (holding that the ALJ properly evaluated claimant’s
obesity in accordance with SSR 02-1p where the ALJ determined claimant’s obesity
was a severe impairment but did not meet or equal a listing and then considered
claimant’s obesity in assessing the RFC); Castel, 355 F. App’x at 264.
Further, although the ALJ did not explicitly state this in his decision, the
Plaintiff’s weight after her alleged onset was often similar to her weight before her
alleged onset date when she worked as a cleaner in 2013, which the VE testified was
categorized as light work.4 (Tr. 72, 254; compare e.g., Tr. 371, 374, 415, 439 with
3
Dr. Krishnamurthy stated that the Plaintiff’s environmental limitations were also
due to her degenerative disc disease and obstructive sleep apnea. (Tr. 132). Dr.
Krishnamurthy also explained that the postural limitations were due to Plaintiff’s
obstructive sleep apnea and fibromyalgia. (Tr. 131).
4
Although neither party raised this issue in their briefs, the court notes that at the
hearing the VE testified that the job of cleaner was “light and unskilled” (Tr. 72),
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Tr. 512, 526, 539, 542, 545, 548, 551, 589, 590, 591, 592, 593, 594). Accordingly,
Plaintiff’s ability to perform her work at a substantially similar weight supports the
ALJ’s finding that obesity did not substantially affect her residual functional
capacity to perform light work after the alleged onset date. See Castel, 355 F. App’x.
at 264 n.9; Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005); Ellison v.
Barnhart, 355 F.3d 1272, 1275-76 (11th Cir. 2003).
Thus, the record indicates that the ALJ properly considered the Plaintiff’s
obesity as a severe impairment and the aggregate impact of this condition on her
RFC. Accordingly, Plaintiff has failed to establish any error in the ALJ’s
determination regarding her obesity.
2.
Diverticulitis
Plaintiff also alleges that the ALJ failed to evaluate Plaintiff’s impairment of
diverticulitis and her other digestive issues in his decision.
At step two of the analysis, the ALJ must consider whether the claimant has a
severe impairment or combination of impairments. 20 C.F.R. § 404.1520; Winschel
but in the ALJ’s decision the ALJ categorized the job as “medium and unskilled.”
(Tr. 33). The regulations define medium work as work that “involves lifting no more
than 50 pounds at a time with frequent lifting or carrying of objects weighing up to
25 pounds. If someone can do medium work, we determine that he or she can also
do sedentary and light work.” 20 C.F.R. § 404.1567(c). Assuming that the Plaintiff’s
previous job was properly categorized as “medium exertion,” this would also
indicate that the ALJ acknowledged that Plaintiff’s obesity—in addition to other
impairments—restricted Plaintiff to only light work rather than medium work.
Page 26 of 49
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011); Jamison v. Bowen,
814 F.2d 585, 588 (11th Cir. 1987). If the ALJ concludes that the claimant’s alleged
impairment or combination of impairments are not severe, the ALJ must end the
analysis and find that the claimant is “not disabled.” 20 C.F.R. § 404.1520; see
Jamison, 814 F.2d at 588 (Step two “acts as a filter; if no severe impairment is shown
the claim is denied”); McDaniels v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986)
(holding that step two is a threshold inquiry, which allows “only claims based on the
most trivial impairments to be rejected”).
To proceed to step three, the ALJ need only identify one severe impairment.
See Flemming v. Comm’r of the Soc. Sec. Admin., 635 F. App’x 673, 675 (“The
finding of ‘any severe impairment’ is sufficient for the ALJ to proceed to the third
step.”); Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 951 (11th Cir.
2014) (“[I]t is apparent that there is no need for an ALJ to identify every severe
impairment at step two.”); Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 824-25
(11th Cir. 2010); Jamison, 814 F.2d at 588 (noting that the ALJ correctly identified
at least one severe impairment and correctly proceeded to step three). So long as the
ALJ provides that he has taken all of Plaintiff’s impairments into consideration when
determining the Plaintiff’s capacity to work at steps three and beyond, any omission
during step two is of no consequence. Tuggerson-Brown, 572 F. App’x at 951-52;
Perry v. Astrue, 280 F. App’x 887, 893-94 (11th Cir. 2008).
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Even if the ALJ did not discuss all of Plaintiff’s conditions (including her
diverticulitis and digestive issues) at step two of the sequential process, it made no
difference insofar as the ALJ ruled in Plaintiff’s favor at step two. (Tr. 24). The ALJ
found that the evidence supported the conclusion that the Plaintiff suffered from at
least five severe impairments: (1) degenerative disc disease; (2) obstructive sleep
apnea; (3) morbid obesity; (4) degenerative joint disease of the left knee; and (5)
affective mood disorder. (Tr. 24). The ALJ then correctly proceeded to step three of
the analysis. (Tr. 27). Thus, even assuming that Plaintiff’s diverticulitis or digestive
issues are “severe,” the ALJ’s recognition of this condition would not have altered
the step two analysis. See Flemming, 635 F. App’x at 675; Tuggerson-Brown, 572
F. App’x at 951-52. Plaintiff, therefore, has failed to establish that the ALJ
committed error at step two of the analysis.
Additionally, the Plaintiff has failed to show that the ALJ erred in evaluating
Plaintiff’s diverticulitis and digestive issues. Under the regulations, a disability is
determined by the extent to which a claimant’s ability to work is limited by an
impairment, not the fact that she suffers from a number of medical conditions. See
Russel v. Astrue, 331 F. App’x. 678, 681 (11th Cir. 2009) (rejecting a claim where
the plaintiff asserted that her high blood pressure caused her to be disabled but failed
to point to any documentation in her medical records demonstrating how it might
cause disability); Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005)
Page 28 of 49
(holding that the mere existence of impairments does not reveal the extent to which
they limit the claimant’s ability to work or undermine the ALJ’s determination in
that regard); McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986) (holding that
the severity of an impairment “must be measured in terms of its effect upon the
ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality”). A mere diagnosis is not enough to establish a
disability.
In the present case, Plaintiff’s medical records do not reflect that the
diverticulitis or digestive issues caused the Plaintiff any work-related limitations.
(Tr. 629-30). To the extent Plaintiff relies on the diagnosis of diverticulitis as a basis
for concluding she has a disability, the Plaintiff fails to establish the ALJ erred in
evaluating this impairment.
Additionally, the record reflects that the ALJ fully considered the Plaintiff’s
diverticulitis and digestive issues in the later steps of the analysis. (Tr. 30-32). The
Eleventh Circuit has held that an ALJ’s statement that he reviewed the entire record
and found that the claimant “did not have an impairment or combination of
impairments” that equaled a listing after consideration of the impairments, is
“sufficient to demonstrate that the ALJ considered the cumulative effect of the
applicant’s impairments.” Tuggerson-Brown, 572 F. App’x at 951 (citing Wilson,
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284 F.3d at 1224-25; Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529, 1533
(11th Cir. 1991)).
Here, the ALJ noted that “after careful consideration of the entire record,” he
found that the Plaintiff had the RFC to perform light work with additional
limitations. (Tr. 28) (emphasis added). The ALJ then discussed the evidence
regarding Plaintiff’s diverticulitis and digestive issues further in his analysis. (Tr.
30-32). Specifically, the ALJ noted that, on May 15, 2013, Plaintiff’s abdominal and
pelvic CT scan showed “no obvious diverticulitis or inflammatory process.” (Tr. 30,
394). Additionally, the ALJ noted that in January 2014, she went to her physician
and presented with rectal bleeding and “was diagnosed with hepathomegaly (sic?).”
(Tr. 31, 449). He also referenced treatment records from the Digestive Disease
Center. The records from the August 2014 visit indicated that Plaintiff had polyps,
but did not show a source of anemia or bleeding. (Tr. 629).
The records from Plaintiff’s January 2015 visit showed active bleeding in the
colon. But there were no small bowel abnormalities identified. (Tr. 629). Plaintiff
underwent a colonoscopy which showed a tubular adenoma with no evidence of
malignancy. (Tr. 630). The ALJ also considered Plaintiff’s testimony that she had
upper and lower gastrointestinal problems, polyps, and other issues with her
intestines that made her anemic. She also testified that she had hemorrhoids and
underwent surgery.
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It is clear from the ALJ’s thorough discussion regarding the medical evidence
that he considered the entire record, and the ALJ specifically considered Plaintiff’s
diverticulitis in his determination of Plaintiff’s residual functional capacity and his
decision that Plaintiff was not disabled. See Tuggerson-Brown, 572 F. App’x at 951
(citing Wilson, 284 F.3d at 1224-25; Jones, 941 F.2d at 1533).
3.
Non-severe Impairments
Plaintiff also argues that the ALJ’s decision was erroneous because the ALJ
did not consider the impact of any of the Plaintiff’s non-severe impairments in
determining the aggregate impact of her medically-determinable impairments.
An ALJ must consider all impairments, “regardless of severity, in conjunction
with one another in performing the latter steps of the sequential evaluation.”
Tuggerson-Brown, 572 F. App’x at 951; Swindle v. Sullivan, 914 F.2d 222, 226 (11th
Cir. 1990). As noted above, the Eleventh Circuit has held that an ALJ’s statement
that he reviewed the entire record and found that the claimant “did not have an
impairment or combination of impairments” that equaled a listing after consideration
of the impairments, is “sufficient to demonstrate that the ALJ considered the
cumulative effect of the applicant’s impairments.” Tuggerson-Brown, 572 F. App’x
at 951 (citing Wilson, 284 F.3d at 1224-25; Jones, 941 F.2d at 1533).
In his decision, the ALJ found that the Plaintiff’s “medical conditions of
chronic obstructive pulmonary disease, diabetes mellitus, hypertension, liver issues,
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and fibromyalgia” were non-severe impairments. (Tr. 25). But he noted that
“consistent with 20 CFR 404/1545 and 416.945 the relevant symptoms from the
medically determinable impairments have been considered in the residual functional
capacity.” (Tr. 25). Indeed, the ALJ stated that his determination of the Plaintiff’s
RFC occurred only “after careful consideration of the entire record.” (Tr. 28). The
ALJ went beyond these mere statements in his opinion and discussed the Plaintiff’s
chronic obstructive pulmonary disease (Tr. 30-31), diabetes mellitus (Tr. 30, 31, 32,
33), hypertension (Tr. 27, 30, 31), liver issues (Tr. 30, 31, 33), and fibromyalgia (Tr.
30, 31). The ALJ also discussed Plaintiff’s severe impairments including sleep apnea
(Tr. 31, 33), morbid obesity (Tr. 29), and degenerative joint disease of the left knee
(Tr. 29, 31, 32, 33). Thus, it is clear from the record that the ALJ properly considered
the severe and non-severe impairments in his determination that the Plaintiff was not
disabled.
B.
Evaluation of Plaintiff’s Subjective Complaints
Plaintiff next argues that the ALJ did not properly evaluate the Plaintiff’s
subjective complaints regarding the intensity, persistence, and limiting effects of the
Plaintiff’s symptoms.
Section 416.929 provides in part that in determining whether a claimant is
disabled, the commissioner should consider all the plaintiff’s symptoms, “including
pain, and the extent to which [her] symptoms can reasonably be accepted as
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consistent with the objective medical evidence and other evidence.” 20 C.F.R §
416.929. The Eleventh Circuit had adopted the following additional pain standard:
There must be evidence of an underlying medical condition and (1)
there must be objective medical evidence to confirm the severity of the
alleged pain arising from the condition or (2) the objectively
determined medical condition must be of severity which can reasonably
be expected to give rise to the alleged pain.
Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir. 1986); see also Wilson, 284 F.3d
at 1225.
“[B]oth the regulations and the eleventh circuit’s standard require objective
medical evidence of a condition that could be expected to cause the pain alleged, but
neither requires objective proof of pain itself.” Elam, 921 F.2d at 1216. The Eleventh
Circuit has held that “[p]ain alone can be disabling, even when its existence is
unsupported by objective evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th
Cir. 1992) (citing Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987)). The
absence of evidence to support a claim of severity is a factor that can be considered
by ALJs, however. Id.; Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).
Notably, “[i]f proof of disability is based upon subjective evidence and a
credibility determination is, therefore, crucial to the decision, the ALJ must either
explicitly discredit such testimony or the implication must be so clear as to amount
to a specific credibility finding.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir.
1995) (citation and quotation marks omitted); MacGregor, 786 F.2d at 1054 (“If the
Page 33 of 49
Commissioner refuses to credit” the subjective testimony of the Plaintiff concerning
pain “he must do so explicitly and give reasons for that decision. . . . Where he fails
to do so we hold as a matter of law that he has accepted the testimony as true.” Holt
v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The reasons articulated by the
ALJ must be based upon substantial evidence. Jones, 941 F.2d at 1532.
In the present case, the ALJ found that Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms. (Tr. 29).
But the ALJ concluded that the Plaintiff’s subjective testimony—regarding the
intensity, persistence, and limiting effects of her symptoms—was not entirely
consistent with the medical evidence. (Tr. 29). In particular, the ALJ observed that
“in reviewing the evidence, [he] noted inconsistencies between the medical records
and the claimant’s alleged degree of symptoms.” (Tr. 29). The ALJ noted that
Plaintiff claimed that she frequently remained in a chair due to knee pain, but the
medical records did not show ongoing treatment for knee pain. In addition, the ALJ
noted that the Plaintiff stated that she could go grocery shopping and she apparently
drove herself insofar as many of her medical records noted she was unaccompanied.
In determining that Plaintiff’s testimony was not entirely supported by the
evidence, the ALJ properly relied on the history of Plaintiff’s treatment for her
knee condition. The ALJ discussed that the conservative medical treatment—
which consisted of physical therapy, application of Voltaren gel, and an Ace
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Wrap—was inconsistent with her claim of severe knee pain. (Tr. 29, 32, 411, 586).
An ALJ is permitted to consider treatment that is “entirely conservative in nature”
in discrediting a claimant’s testimony. See Wolfe v. Chater, 86 F.3d 1072, 1078
(11th Cir. 1996); Pennington v. Comm’r of Soc. Sec., 652 F. App’x. 862, 873 (11th
Cir. 2016) (same); Carson v. Comm’r of Soc. Sec., 440 F. App’x 863, 865 (11th
Cir. 2011) (holding that the ALJ had substantial evidence to conclude that
claimant’s pain was not as severe as she claimed because the claimant “followed
a conservative treatment plan directed by his treating physicians”); Miller v.
Astrue, No. 8:07-cv-2074, 2009 WL 35167, at *5 (M.D. Fla. Jan. 6, 2009) (same).
Plaintiff argues that reliance on the conservative treatment that Plaintiff
received is erroneous because Social Security Ruling (“SSR”) 16-3p specifically
states that an ALJ must consider reasons why the Plaintiff may not comply with a
physician’s prescribed treatment plan or seek treatment consistent with the degree
of his or her complaints. Social Security Ruling 16-3p, 81 Fed. Reg. 14166, 2016
WL 1119029 (Mar. 28, 2016). The ALJ stated that he had carefully considered the
“record as a whole” and during the hearing, Plaintiff stated that she had sought
treatment at the Tallahassee Orthopedic Center. (Tr. 28, 61). Plaintiff noted that
the Tallahassee Orthopedic Center physicians told that her knee pain was “not
serious enough.” (Tr. 62).
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The treatment record from the Tallahassee Orthopedic Center notes that
surgery was discussed with Plaintiff, but a conservative treatment option was
chosen, and even a cortisone injection was deferred. (Tr. 586); see S.S.R. 16-3p,
2016 WL 1119029 (noting that an ALJ can consider whether “[a] medical source
may have advised the individual that there is no further effective treatment to
prescribe or recommend that would benefit the individual.”). Plaintiff also
indicated that she had insurance coverage, and medical records from the relevant
time indicate that the Plaintiff had stated that she struggled financially, but that
she also was able to obtain and use drugs. (Tr. 26, 56); see S.S.R. 16-3p, 2016 WL
1119029 (noting that an ALJ can consider whether “an individual may not be able
to afford treatment and may not have access to free or low-cost medical services”).
Furthermore, this was not the sole reason for denying Plaintiff’s benefits.
The ALJ noted that, despite several years of medical treatment records and
the fact that the Plaintiff frequently sought treatment for her various medical
conditions, medical personnel addressed her knee pain on only a few occasions.
(Tr. 451, 452, 454, 584, 592, 599, 600, 601, 603). In only a few of those instances
was the knee pain listed as the Plaintiff’s chief complaint. (Tr. 411, 586).
Additionally, it appears that Plaintiff’s primary care physician prescribed the use
of Voltaren gel as treatment for the knee pain. (Tr. 584).
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Additional objective findings were also inconsistent with Plaintiff’s
complaint. For instance, on the alleged onset date of her disability, the Plaintiff
indicated that the knee pain was “moderate” (Tr. 408-14). Even into mid-2015,
Plaintiff noted that the knee pain was moderate. (Tr. 584). Diagnostic testing
showed mild to moderate left knee arthritis. (Tr. 411, 414). In subsequent
evaluations, diagnostic testing showed that there was mild to moderate “medial
and will [sic?] femoral compartment OA with marginal spurring”, and treatment
notes indicated that there was no swelling, ecchymosis, or deformity. (Tr. 585,
586). In mid-2015, her gait pattern was normal with no limp. (Tr. 585). She also
appeared to have normal heel-toe and tandem walking according to the treatment
record from the NeuroPain Center, and she denied having an unsteady gait. (Tr.
625, 626). Thus, the objective medical findings alone—which also were consistent
with the conservative nature of the treatment of Plaintiff’s knee—provided
substantial evidence to support the ALJ’s conclusion that Plaintiff’s pain was not
as severe as Plaintiff alleged.
Plaintiff also argues that the ALJ improperly relied on Plaintiff’s daily
activities in discrediting her testimony regarding the pain. An ALJ may properly
consider a claimant’s activities in his determination that the Plaintiff’s symptoms are
not as limiting as alleged. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Moore,
405 F.3d at 1213. The ALJ noted that in addition to the inconsistencies between the
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objective medical evidence and Plaintiff’s claims, evidence of Plaintiff’s daily
activities—including shopping and being able to drive—undermined Plaintiff’s
allegation of relative immobility.
The report completed by consultative examiner Dr. Salina noted that Plaintiff
drove a motor vehicle. (Tr. 496). Plaintiff’s daughter also reported that Plaintiff
“‘can’ drive but is carless.” (Tr. 264). Plaintiff’s daughter also noted that when the
Plaintiff goes out, the Plaintiff is able to go alone. (Tr. 264). The Plaintiff confirmed
this. (Tr. 293). Thus, there is substantial evidence that Plaintiff was capable of
driving and did in fact drive. To the extent Plaintiff claims that this finding was
inconsistent with the ALJ’s decision that Plaintiff’s RFC should contain a limitation
on driving, this amounts only to harmless error. See Cooper v. Astrue, 373 F. App’x.
961, 962 (11th Cir. 2010) (citing Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir.
1983)) (stating that an error may be harmless when it does not prejudice a claimant”).
The ALJ also noted that Plaintiff could shop for groceries. While Plaintiff argues
that some records indicate that she was required to use a motorized shopping cart or
sent others to shop, the record shows that she reported that she could cook, manage
her own money, perform household chores, care for herself, and shop for food. (Tr.
263, 264-65, 281, 293 496, 501).
Page 38 of 49
Taking the record as a whole, the ALJ’s decision regarding Plaintiff’s
subjective complaints of pain was supported by substantial evidence. Accordingly,
Plaintiff has failed to demonstrate that the ALJ erred.
C.
New Evidence before the Appeals Council
Finally, the Plaintiff argues that the Appeals Council erroneously determined
that newly submitted evidence5 did not “show a reasonable basis that it would change
the [ALJ’s] decision.”
Generally, a claimant may present new evidence at each stage of the
administrative proceeding. Ingram, 496 F.3d at 1260-61. The Appeals Council is
required to “consider new, material, and chronologically relevant evidence that the
claimant submits” and “must review the case if the administrative law judge’s
actions, finding, or conclusion is contrary to the weight of the evidence currently of
record.” Evidence must both be non-cumulative and must “‘relate[] to the period on
or before the date’ of the ALJ’s decision.” Banks v. Comm’r, Soc. Sec. Admin., 686
F. App’x. 706, 709 (11th Cir. 2017) (quoting 20 C.F.R. § 416.1476(b)(1)) (defining
chronologically relevant); see Robinson v. Astrue, 365 F. App’x. 993, 996 (11th Cir.
2010) (quoting Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987)) (noting that
new evidence must be non-cumulative).
5
Plaintiff submitted a Mental Impairment Questionnaire completed by Dr. Michael
Vandewalle, D.O., and Judith Hussey, A.R.N.P.
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New evidence is “material, and thus warrant a remand, if ‘there is a reasonable
possibility that the new evidence would change the administrative outcome.’”
Flowers v. Comm’r of Soc. Sec., 441 F. App’x 735, 745 (11th Cir. 2011) (quoting
Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987)). Federal courts must review de
novo the Appeals Council’s decision not to consider new evidence. Washington v.
Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1321 (11th Cir. 2015). If the Appeals
Council erroneously refused to consider newly-submitted evidence, it committed
legal error and remand is appropriate. Id. (citing Farrell v. Astrue, 692 F.3d 767,
771-72 (7th Cir. 2012); Threet v. Barnhart, 353 F.3d 1185, 1191-92 (10th Cir. 2003);
Bergmann v. Apfel, 207 F.3d 1065, 1071 (8th Cir. 2000)).
“When a claimant properly presents new evidence to the Appeals Council, a
reviewing court must consider whether the new evidence renders the denial of
benefits erroneous.” Id. In other words, the pertinent inquiry is whether the Plaintiff
has submitted “new, material, chronologically relevant evidence” to the Appeals
Council that renders the decision of the ALJ “unsupported by substantial evidence.”
Ingram, 496 F.3d at 1261, 1266. Thus, this court must consider evidence submitted
to the Appeals Council in conjunction with other evidence in the record to determine
whether substantial evidence supports the ALJ’s decision. Ingram, 496 F.3d at 1266.
Regarding Plaintiff’s case, the evidence that the Plaintiff submitted to the
Appeals Council does not appear to be chronologically relevant. Sometimes a
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physician’s evaluation may be relevant, even though it occurred after the date of the
ALJ’s decision. See Washington, 806 F.3d at 1323; Boyd v. Heckler, 704 F.2d 1207,
1211 (11th Cir. 1983) (considering a “treating physician’ opinion” even though “he
did not treat the claimant until after the relevant determination date”), superseded on
other grounds by statute, 42 U.S.C. § 423(d)(5). To be relevant, however, such
evidence must “relate back to the period before the ALJ’s decision.” Washington,
806 F.3d at 1322 (holding that a medical opinion based on treatment that occurred
after the ALJ’s decision was chronologically relevant because it was based on
plaintiff’s condition prior to the ALJ’s decision and a review of medical records from
the period before the ALJ’s decision).
Here, Plaintiff’s questionnaire was completed nine months after the ALJ’s
decision. While the form indicates that Plaintiff was a patient “since April 25, 2014,”
the questionnaire did not indicate whether Dr. Vandewalle and Nurse Hussey’s
opinions was based on their assessments of experiences that occurred during the
relevant period or their review of medical records from a period prior to the ALJ’s
decision.6 (Tr. 635-40). Even assuming that the opinion expressed in the
6
In reaching this conclusion the undersigned notes that Dr. Vandewalle and Nurse
Hussey indicated that Plaintiff has been a patient since April 2014. In addition, nine
months elapsed between the ALJ’s decision and the newly submitted evidence. (Tr.
635). The questionnaire that they completed did not direct the physician to base his
decision on any period, so there is no way to know what period Dr. Vandewalle and
Nurse Hussey considered.
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questionnaire was temporally relevant, however, the undersigned finds that the
Appeals Council did not err in refusing to consider the newly submitted evidence.
The Appeals Council found that the newly submitted evidence did not have a
reasonable probability of altering the ALJ’s determination that the Plaintiff was not
disabled—i.e. it was not material.
At the hearing, the ALJ had Dr. Vandewalle and Nurse Hussey’s treatment
notes from the relevant period: April 2014 through February 2016. (Tr. 507-65).
The ALJ discussed these notes in great detail when he rendered his decision. (Tr.
25-27). Thus, the ALJ had—at the time of the decision—Plaintiff’s diagnoses, list
of prescribed medications, evidence of Plaintiff’s symptoms, and the mental health
exam results from Dr. Vandewalle and Nurse Hussey. (Compare 507-65 with 63536, 38). The ALJ also possessed notes from the Emerald Coast Behavioral Hospital
regarding the Plaintiff’s July 2015 hospitalization along with her relevant diagnoses,
symptoms, and medications. (Tr. 568-82). Thus, the questionnaire does not contain
objective findings that would undermine the ALJ’s decision insofar as the ALJ
Furthermore, there is no indication whether Dr. Vandewalle and Nurse
Hussey completed the questionnaire based solely on assessments that occurred prior
to the ALJ’s decision, or if their opinion was based on assessments of conditions that
existed only during the nine months after the ALJ’s decision.
Notably, the questionnaire provided Dr. Vandewalle and Nurse Hussey with
an opportunity to explain their views, provide relevant treatment notes, and provide
test results to support their conclusions. They elected not to provide any of this. (Tr.
635-40). Thus, Plaintiff has not established that the questionnaire relates to the
relevant period considered by the ALJ.
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already possessed and considered the relevant information, including from the
“authors” of the information contained in the questionnaire. See Robinson, 365 F.
App’x. at 996; Milano, 809 F.2d at 766 (noting that new evidence must be noncumulative).
This court further notes that Dr. Vandewalle and Nurse Hussey’s “opinion”
was expressed in the questionnaire merely by checking blocks on a preprinted form.
Not surprisingly, courts have held that medical opinions that are articulated simply
be checking blocks on a preprinted form are not persuasive evidence. Spencer ex rel.
Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) (rejecting that opinion of
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”); 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.”). For this
reason also, Plaintiff has not shown that such unpersuasive evidence would have
made a difference in the ALJ’s decision.
Furthermore, the questionnaire instructed the individual completing the form
to explain any limitations and include the medical/clinical findings that support the
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relevant assessments. Despite this explicit instruction, neither Dr. Vandewalle nor
Nurse Hussey explained the limitations or included the medical/clinical findings that
would support their assessment that Plaintiff’s limitations were severe. (Tr. 635, 637,
638). Thus, even if this evidence had been presented to the ALJ, it is highly unlikely
that the conclusory “check the block” opinions expressed therein would have
changed the ALJ’s opinion. The fact that Dr. Vandewalle and Nurse Hussey’s
opinion expressed in the “check the block” form was inconsistent with the rest of the
evidence—including Dr. Vandewalle and Nurse Hussey’s own treatment notes—
further demonstrates that his evidence would not have affected the ALJ’s decision.
Additionally, although “a claimant may provide a statement containing a
physician’s opinion of her remaining capabilities, the ALJ will evaluate such a
statement in light of the other evidence presented and the ultimate determination of
disability is reserved for the ALJ.” Green v. Soc. Sec. Admin., 223 F. App’x 915,
923 (11th Cir. 2007) (citing 20 C.F.R. §§ 404.1515, 404.1527, 404.1545); see also
Chapo v. Astrue, 682 F.3d 1285, 1288-89 (10th Cir. 2012) (“[T]here 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 [and][w]e have
thus ‘rejected [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.’”) (quoting Howard v. Barnhart, 379
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F.3d 945, 949 (10th Cir. 2004)); see also Carson v. Comm’r of Soc. Sec., 440 F.
App’x 863, 864 (11th Cir. 2011) (upholding the ALJ’s RFC determination because
“the ALJ fully discussed and evaluated the medical evidence, [claimant’s]
testimony, and the effect each impairment had on [the claimant’s] daily activities.”).
Thus, even if Dr. Vandewalle and Nurse Hussey’s “check the block”
questionnaire has been submitted to the ALJ, an ALJ may discount even a treating
physician’s opinion if “good cause is shown to the contrary.” MacGregor v. Bowen,
786 F.2d 1050, 1053 (11th Cir. 1986). Good cause exists for discounting a treating
physician’s report “when it is not accompanied by objective medical evidence or is
wholly conclusory.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th
Cir. 2004) (quoting Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991));
see Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (finding that when a
treating physician made merely conclusory statements, the ALJ may afford them
such weight as is supported by clinical or laboratory findings and other consistent
evidence of a claimant’s impairments); see also Schnorr v. Bowen, 816 F.2d 578,
582 (11th Cir. 1987).
In his thorough discussion of Plaintiff’s relevant mental health treatment, the
ALJ noted that Dr. Vandewalle’s treatment notes from his initial encounter with
Plaintiff indicated that Plaintiff was alert and cooperative with clear, coherent and
articulate speech. (Tr. 26, 556). Plaintiff’s memory was intact, her insight and
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judgment were fair, and she did not have any suicidal ideations. Dr. Vandewalle
assessed the Plaintiff as having a Global Assessment of Functioning (“GAF”) score
of 55, which is indicative of only moderate symptoms. (Tr. 556); Am. Psychiatric
Ass’n., Diagnostic and Statistical Manual of Mental Disorders 30 (4th ed. Text rev.
2000). The ALJ discussed subsequent mental status examination results, which
showed similar findings. (Tr. 524, 527, 534-35, 540, 543, 546, 549, 551-52).
The ALJ also discussed and considered the objective medical records of other
doctors and medical professionals who treated and examined the Plaintiff during the
relevant period. These also indicated that that the Plaintiff’s mental conditions were
not as limiting as stated by Dr. Vandewalle and Nurse Hussey in the “check the
block” questionnaire. For instance, the ALJ noted that when Plaintiff presented at
Emerald Coast Behavioral Hospital, Dr. Yana Kirova-Pancheva, MD, was unable to
elicit PTSD or general anxiety disorder symptoms. (Tr. 26, 580). Records from
Emerald Coast Behavioral Hospital also reflected many of the same mental
examination findings as Dr. Vandewalle. Namely, Plaintiff’s memory—both recent
and remote—appeared intact, her judgment was fair, and her insight was fair. (Tr.
569, 576, 578, 580).
Plaintiff’s medical records also reflect that she was cooperative, fully oriented
to person, place, time, and situation, and her thought process was logical and goaldirected. (Tr. 569, 576, 582). The ALJ also noted that examining consultant Joseph
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Siano, D.O., observed that the Plaintiff’s memory problems, anxiety, and depression
appeared to pose no functional limitations. (Tr. 33, 505). The weight of the evidence,
therefore, strongly supported the ALJ’s findings, and remanding to require the ALJ
to consider a “check the block” form that was contrary to the other evidence—
including evidence from the very physician who completed the “check the block”
form—would be pointless.
Finally, Plaintiff contends that the Appeals Council failed to make detailed
findings of fact when it determined that Plaintiff’s newly submitted evidence was
not material. The Eleventh Circuit has squarely held that “there is no requirement
that ‘the Appeals Council . . . provide a detailed discussion of a claimant’s new
evidence when denying a request for review.’” Parks ex. rel. D.P. v. Comm’r, Soc.
Sec. Admin., 783 F.3d 847, 853 (11th Cir. 2015) (quoting Mitchell v. Comm’r, Soc.
Sec. Admin, 771 F.3d 780, 783 (11th Cir. 2014)). There are, however, contexts where
the Eleventh Circuit has found that a lack of a detailed explanation required remand
based on the procedural history. See Epps v. Harris, 624 F.2d 1267, 1269, 1272-73
(5th Cir. 1980) (noting that the Appeal Council affirmed the ALJ decision without
explaining or expanding on the ALJ’s disability determination when the ALJ’s
decision was premised on claimant’s lack of radical treatment and new evidence
showed he had been referred for consideration of radical intervention); Mann v.
Gardner, 380 F.2d 182, 185-87 (5th Cir. 1967) (Appeals Council adopted the
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recommended decision and issued a decision explaining why the claimant was not
entitled to a period of disability or disability insurance benefits without satisfactorily
explaining why the new evidence was required); Bowen v. Heckler, 748 F.2d 629,
634-35 (11th Cir. 1984) (finding that Appeals Council erred in perfunctory
adherence to ALJ’s decision, which failed to consider the aggregate impact of
claimant’s impairments, because it did not apply correct legal).
Here, the Appeals Council indicated that it reviewed the new evidence, found
that it was immaterial, and denied review. (Tr. 1-2). That was sufficient. Plaintiff
has not cited any authority for her contention that the Appeals Council was required
to make detailed findings of fact regarding immateriality, as she was directed by the
court’s order (Doc. 14 at 2), or that this case should be governed by Epps, Mann or
Bowen rather than Parks and Mitchell.
III.
Conclusion
The ALJ adhered to applicable legal standards and rendered a decision
supported by substantial evidence. Accordingly, it is ORDERED that:
1.
The decision of the Commissioner is AFFIRMED, and this action is
DISMISSED.
2.
FINAL 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.
The clerk of the court close the case file.
SO ORDERED this 29th day of March 2019.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
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