Zerba v. Commissioner of Social Security

Filing 31

Order on Cross Motions for Summary Judgment. Signed by Ch. Magistrate Judge Andrea M. Simonton on 9/25/2017. (ms02) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-23152-CIV-SIMONTON
REBECCA ANN ZERBA,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner
of Social Security Administration,
Defendant.
______________________________/
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the cross-motions for summary judgment filed
by Plaintiff Rebecca Ann Zerba ("Plaintiff") and by Defendant Carolyn W. Colvin,
("Defendant"), Acting Commissioner of Social Security Administration, ECF Nos. [21]
[24].1 Based upon the consent of the parties, the Honorable Kathleen M. Williams, United
States District Judge, has referred the matter to the undersigned to take all necessary and
proper action as required by law, through and including trial by jury and entry of final
judgment, ECF No. [18]. The summary judgment motions are now ripe for disposition.
For the reasons stated below, the undersigned hereby DENIES the Plaintiff’s
Motion, ECF No. [32], and GRANTS the Defendant’s Motion for Summary Judgment, ECF
No. [24].

1

On January 23, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as the Acting
Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil
Procedure 25(d), Nancy A. Berryhill is automatically substituted as the Defendant in this
case.
1

I.

PROCEDURAL BACKGROUND
On September 27, 2012, the Plaintiff filed a Title II application for a period of

disability and disability insurance benefits. (R. 200).2 On February 11, 2013, the Plaintiff
also filed a Tittle XVI application for supplemental security income. (R. 205) In both
applications, the Plaintiff alleged disability beginning May 2, 2011 (R. 200, 206).3 The
claims were denied initially on March 8, 2013, and upon reconsideration on June 19,
2013. (R. 131-144, 147-156). On October 2, 2014, a hearing was held in front of an
Administrative Law Judge (“ALJ”) in Miami, Florida. (R. 47-79). At the hearing, the ALJ
heard testimony from an impartial vocational expert (“VE”), Steve Bast, the Plaintiff, who
was represented by counsel, and the Plaintiff’s husband. (R. 47-79). On November 19,
2014, the ALJ concluded that the Plaintiff was not disabled under sections 216(i) and
223(d) of the Social Security Act from May 2, 2011, through the date of the decision,
pursuant to 20 CFR §§ 404.1520(f) and 416.920(f). (R. 21).
The Plaintiff requested review from the Social Security Administration Appeals
Council, which denied review on June 19, 2013. (R.147-156). Having exhausted all
administrative remedies, Plaintiff timely filed the pending Complaint seeking judicial
review of the administrative proceedings pursuant to 42 U.S.C. §405(g). ECF No. [1].
II.

LEGAL ISSUES PRESENTED
The Plaintiff asserts that the ALJ committed the following errors, in determining

that she was not disabled.
1. The ALJ failed to properly consider and appropriately analyze all relevant
evidence.
2

The letter “R”, followed by a page number is used to designate a page in the
Administrative Record, which is contained in ECF No. [15].
3

While the ALJ’s decision and both the Plaintiff and Defendant list the alleged onset date
as May 2, 2011, the applications indicate an alleged onset date of January, 2006.
Because this date does not impact the undersigned’s analysis the undersigned accepts
the date offered by the parties.
2

2. The ALJ improperly discounted the combined opinions of treating psychiatrist,
Dr. Priscilla Borrego, and treating ARNP, Ms. Pauline Peterkin, without
providing sufficient justification.
3. The ALJ’s functional assessment was not supported by substantial evidence
or by either a treating or medical source.
4. The ALJ posed incomplete and erroneous hypothetical questions to the VE.
5. The ALJ erred by not finding disability based upon the testimony of the
vocational expert.
6. The ALJ’s credibility analysis was not properly documented or conducted at
the proper time
ECF No. [21]
III.

PLAINTIFF’S BACKGROUND AND MEDICAL HISTORY
A. Background
Plaintiff was born on March 4, 1960. (R. 199). The Plaintiff lived with her

grandmother and left home at age 16. (R. 54). The Plaintiff has a tenth grade education
and past work experience as a factory worker, cashier, deli worker, and animal caretaker
at a veterinary office. (R.60-61)
B. Medical History
The ALJ found that the Plaintiff had the following physical impairments: liver
disorder, hepatitis, osteoarthritis, hypertension, back disorder, and obesity. (R. 23).
However, the Plaintiff asserts in her Motion that she does not attribute any significant
problems to her liver disease, hypertension, and heart impairment. ECF No. [21] at 19.
Therefore it is not necessary for the undersigned describe medical records related to
those impairments. Additionally, at the hearing before the ALJ, counsel for the Plaintiff
stated that while the Plaintiff asserts that she suffers from certain spinal impairments,
the Plaintiff’s “basic major thing is her schizoaffective disorder and her generalized
3

anxiety disorder with panic attacks, depression, poor memory, poor concentration,
auditory hallucinations, some visual hallucinations at time, persecutory delusions.” (R.
51). The Plaintiff also stated in her Motion that she is “not currently experiencing
significant complications from her spinal impairments.” ECF No. [21] at 14.
As related to the Plaintiff’s back pain, treatment notes from Jackson Hospital
show that the Plaintiff was diagnosed on September 11, 2011, with bilateral spondylosis
with anterior slippage as well as degenerative disc space disease. (R. 352). However, the
treatment notes reflect that when she was seen by Dr. Mayorga throughout 2012, she was
not in acute distress and her back inspection was within normal limits. (R.410, 415, 420,
425, 430, 435, 440, 445).
As related to the Plaintiff’s mental impairments, the Plaintiff was primarily seen by
ARNP, Pauline Peterkin who was supervised by Dr. Borrego at Community Health of
South Florida. (R. 370-407, 598-620, 716-718).
On October 4, 2011, the Plaintiff was seen at Community Health of South Florida,
and reported anxiety attacks. (R. 609). The Plaintiff reported being stressed due to
unemployment. (R. 609). The Plaintiff was diagnosed with generalized anxiety disorder
and was found to be well-groomed, cooperative, anxious, and alert. (R. 610). The
evaluation notes that the Plaintiff’s memory, cognition, concentration, and abstraction
were intact, her speech was coherent, and her thought process was goal directed. (R.
610). The Plaintiff was found to have fair insight and judgment, and it was noted that the
Plaintiff was able to care for herself. (R. 610).
On January 25, 2012, the Plaintiff was seen and reported that medication reduced
her anxiety level, and that she was feeling less depressed, and was “creating more
projects to do.” (R. 370). It was reported that her appearance was well groomed, her eye
contact was fair, she was cooperative, had a congruent affect, was orientated, and her
memory and concentration were intact. (R. 370). The notes also show that the Plaintiff’s
4

thought process was goal directed, she was not experiencing delusions, and her insight
and judgment were considered “fair.” (R. 371).
On February 24, 2012, the Plaintiff reported having anxiety attacks despite
medication, and feeling anxious due to financial problems. (R. 372). The Plaintiff was
found to be cooperative, anxious, depressed, and alert. (R. 372). The Plaintiff’s recent
memory was found to be impaired, and her speech was found to be coherent and soft.
(R. 372).
On March 23, 2012, the Plaintiff reported doing much better and “getting up and
doing things” along with more interaction with people. (R. 374). The Plaintiff reported
gardening every day and sleeping well. (R. 374). The Plaintiff was found to be
cooperative, alert, and her memory was found to be improved. (R. 374).
On April 30, 2012, the Plaintiff reported agitation and feeling stressed, and
reported that she was having difficulty concentrating and was not able to drive as a
result of panic attacks. (R. 376). The Plaintiff’s memory and concentration were found to
be impaired. (R. 376).
On May 31, 2012, the Plaintiff reported “doing ok” and “keeping busy working in
the garden and caring for her dogs.” (R.378). Her mood was found to be less anxious
and her memory was intact. (R. 378). The report notes that her concentration was
impaired. (R. 378).
On July 10, 2012, the Plaintiff reported that she had good and bad days, and
reported that she felt nervous and stressed. (R. 380). The Plaintiff stated that she felt
stress when she was alone. (R. 380). The Plaintiff’s mood was found to be anxious, she
was well-groomed and alert and her memory was found to be intact. (R. 380). Her
concentration was found to be impaired. (R. 380). The Plaintiff did not report any
hallucinations or delusions, and was found to be able to care for herself. (R. 381).

5

On August 28, 2012, the Plaintiff reported having anxiety attacks, being nervous,
and being bored and lonely when she was alone at home. (R. 382). The Plaintiff was
found to be guarded, depressed, and anxious. (R. 382). The progress notes indicate that
the Plaintiff’s orientation was intact however her memory and concentration were
impaired. (R. 382). The Plaintiff reported no hallucinations but did report persecutory
delusions and her insight and judgment were found to be fair. (R. 383).
When the Plaintiff returned on October 16, 2012, she reported feeling much better,
and stated that she was feeling less anxious and depressed, and had been more
outgoing, and planned to go walking with her neighbor. (R. 384). The progress notes
show that the Plaintiff was cooperative, less depressed, less anxious, and her memory
and concentration were intact. (R. 384).
Again on January 24, 2013, the Plaintiff reported feeling much better, and having a
“positive approach to life.” (R. 387). The Plaintiff also reported that she had less anxiety
since she “went back to Klonopin.” (R. 386). The Plaintiff was found to be less
depressed and anxious and her memory and concentration were intact. (R. 386).
The next record at Community Health is dated August 22, 2013, and the Plaintiff
reported feeling very depressed with low energy and paranoia. (R. 696). The Plaintiff
reported mood swings, anger, and outburst. (R. 696). The Plaintiff was found to be
cooperative, fearful, depressed, and anxious. (R. 697). The Plaintiff reported
hallucinations and delusions and her memory and concentration as found to be
impaired. (R. 697). The notes also indicate that the Plaintiff was able to care for herself
with supervision. (R. 697).
Again on November 6, 2013, the Plaintiff reported feeling very depressed, anxious,
nervous, and paranoid. (R. 694). The Plaintiff stated that she was afraid to leave the
home, had not slept in three days, and that her husband had to remind her to take a
shower. (R. 694). The Plaintiff was found to be cooperative, depressed, anxious, and
6

fearful. (R. 694). The Plaintiff’s speech was coherent, and she was found to have
impaired memory and concentration. (R. 694). The Plaintiff’s thought process was found
to be goal directed although she was found to be experiencing racing thoughts, auditory
hallucinations and persecutory delusions. (R. 695). The Plaintiff’s insight was noted as
fair and her judgment was poor. (R. 695). The notes indicate that the Plaintiff was not
able to care for herself, and she required supervision. (R. 695).
On January 23, 2014, the Plaintiff reported that her medication helped, and while
her mood was found to be depressed and anxious, the Plaintiff’s memory, concentration,
and orientation were intact. (R. 691).
When the Plaintiff returned on April 16, 2014, the Plaintiff reported that she had
been out of her medication for three weeks, and was feeling very anxious, nervous, and
shaky. (R. 693). The Plaintiff reported sleeping and eating well, however she stated that
she was still not able to drive because she was scared she would forget where she is
going. (R. 693). The Plaintiff was found to be cooperative an alert. (R. 693). Her mood
was depressed and anxious and her memory and concentration were found to be
impaired. (R. 696).
On May 29, 2014, the Plaintiff’s mood was noted as being depressed and anxious.
(R. 598). Her orientation, memory, and concentration were intact, she was cooperative,
and reported no hallucinations or delusions. (R. 599). Her insight and judgment were
found to be fair. (R. 599).
The last progress note from Community Health is dated August 22, 2014. (R. 716).
The Plaintiff reported feeling very depressed, and lacking memory, concentration, and
focus. (R. 716). The Plaintiff stated that she had to be reminded to take showers, eat,
and take her medications. (R. 716). The Plaintiff was found to be cooperative, her affect
was congruent, and she was alert and orientated to person and place. (R. 716). The
Plaintiff was also found to have impaired concentration and memory along with
7

persecutory delusions. (R. 716-717). The Plaintiff’s thought process was goal directed,
and she was able to care for herself. (R. 717).
C. Hearing Testimony
1. Plaintiff’s Testimony
An administrative hearing was conducted on October 2, 2014, in Miami, Florida,
attended by the Plaintiff, her husband, and the Plaintiff’s counsel. (R. 47-79). Steve Batch,
an impartial vocational expert, also testified at the hearing. The Plaintiff testified that she
was abused by her grandmother as a child, which caused her emotional pain. (R. 54).
The Plaintiff testified that the last job she had was at a veterinarian’s office where she
cared for animals. (R. 55). She reported that she was let go from the job and has not
tried to find a new job as she can’t drive. (R. 55). The Plaintiff testified that she cannot
drive because she gets panic attacks and has to pull off the side of the road. (R. 55). The
Plaintiff explained that she received treatment from ARNP Pauline Peterkin who is
supervised by Dr. Priscilla Borrego. (R. 55). The Plaintiff testified that she first saw Ms.
Peterkin on a monthly basis and then every six weeks. (R. 55). The Plaintiff stated that
Ms. Peterkin prescribed medication, and the Plaintiff reported taking three medications
including Klonopin. (R. 56). The Plaintiff reported that the medications help her although
she reported that she still gets anxiety attacks three to four times per week. (R. 56-57).
The Plaintiff stated that the medication starts working within twenty minutes. (R. 56).
The Plaintiff also reported that she is depressed, and has some good days and some bad
days, and is taking medication. (R. 57). The Plaintiff testified that she cries a lot and
does not want to do anything and is not able to concentrate well enough to read. (R. 57).
The Plaintiff explained that her typical day consists of waking up in the morning and
taking her medication (after her husband provides it for her), and then she takes care of
the animals, and takes care of her little chores and then sleeps on the sofa until twelve or
one. (R. 58). The Plaintiff contends that her husband has to remind her to take care of
8

the animals because she forgets to feed her landlord’s horse. (R. 58). The Plaintiff
stated that her husband calls her at noon to wake her up and to make sure that she eats.
(R. 58). The Plaintiff testified that she eats cereal for lunch, and during the time between
lunch and dinner she watches television. (R. 59). The Plaintiff reported that she gets
anxious when she is sitting up and it is better when she is lying down. (R. 59-60). In the
evening she watches television with her husband and goes to bed at 10:00. (R. 60).

The

Plaintiff testified that there is something wrong with her right knee and it pops, she has
to wear a brace, and needs assistance to get back up when she squats down. (R. 60).
The Plaintiff also stated that she had pain in her lower back that is “not that bad” and
“comes and goes.” (R. 60). In terms of her prior work experience, the Plaintiff testified
that when she was working for the veterinary office, she was walking most of the time
and used to bathe and walk the dogs. (R. 60). The Plaintiff stated that when she was a
cashier, factory worker, and waitress, she stood most of the time. (R. 61).
2. Scott Sewell—Husband of the Plaintiff
The Plaintiff’s husband was questioned by the Plaintiff’s counsel. (R. 62-66). Mr.
Sewell stated that they had been married for three years and during their marriage Mr.
Sewell has felt more like a caretaker. (R. 62). Mr. Sewell testified that the Plaintiff loses
concentration and is unable to complete household chores. (R. 62). Mr. Sewell testified
that he has to call to check on the Plaintiff to make sure that the Plaintiff is taking care of
herself, including reminding the Plaintiff to shower. (R. 63). Mr. Sewell explained that on
a typical Saturday, he encourages the Plaintiff to go grocery shopping and the Plaintiff
says she does not want to go. (R. 64). While at the store, the Plaintiff will ask to go home
after twenty minutes. (R. 64). Mr. Sewell stated that the Plaintiff has not driven in two
years because the last time the Plaintiff drove, the Plaintiff had a “meltdown,” forgot
where she was going, and Mr. Sewell had to pick her up. (R. 64). Mr. Sewell testified that
after shopping, he has to put all of the groceries away because the Plaintiff disappears.
9

(R. 65). In terms of the Plaintiff’s moods, Mr. Sewell testified that that the Plaintiff goes
from being very happy and engaged in conversation to being close to tears within five or
ten minutes. (R. 65). Mr. Sewell stated that the Plaintiff has a few good days here and
there, although the Plaintiff has been unable to keep to a routine regarding any
household chores. (R. 66). Mr. Sewell reported that he and the Plaintiff have been
together for eleven years, and the Plaintiff started to get worse after she stopped driving.
(R. 67).
3. Vocational Expert Testimony
The VE, Mr. Bast, testified that the Plaintiff did not have any job skills from the
animal caretaker job that were transferable to light or sedentary work. (R. 72). The VE
was presented with the following hypothetical:
Please assume an individual, same age, education, past work
experience as the claimant. Further assume such individual
would be limited to medium exertion work as described in the
Dictionary of Occupational Titles. Additionally, assume such
an individual could not climb ladders, ropes or scaffolds;
could only occasionally climb ramps or stairs. Could not
crawl. Would be unable to perform complex and detailed
tasks due to limitations in concentration, persistence and
pace, but could perform simple, routine, competitive,
repetitive tasks on a sustained basis over a normal eight hour
work day with no more than simple decision-making required.
And is capable of interacting appropriately with supervisors
and occasionally with co-workers and the public despite
limitations in social functioning.
(R. 72-73)
The VE responded that such an individual would not be capable of performing the
Plaintiff’s past work as an animal caretaker but that there are jobs in the national
economy that such an individual could perform: kitchen helper, hospital cleaner, and
industrial cleaner. (R. 75). When presented with a hypothetical where the individual
would be absent from work more than four times a month and also would be off task

10

more than 50 percent of an eight hour workday, the VE responded that all work would be
eliminated. (R. 76).
IV.

LEGAL FRAMEWORK
A. Standard of Review
Judicial review of the ALJ’s decision in disability cases is limited to determining

whether the record contains substantial evidence to support the ALJ’s factual findings
and whether the correct legal standards were applied. 42 U.S.C. section 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971); Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1158 (11th Cir. 2004); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
"Substantial evidence" is more than a scintilla, but less than preponderance and is
generally defined as such relevant evidence which a reasonable mind would accept as
adequate to support a conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997); Bloodworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
When reviewing the evidence, the Court may not reweigh evidence or substitute
its judgment for that of the ALJ, and even if the evidence "preponderates" against the
Commissioner’s decision, the reviewing court must affirm if the decision is supported by
substantial evidence. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Baker v.
Sullivan, 880 F.2d 319, 321 (11th Cir. 1989). This restrictive standard of review, however,
applies only to findings of fact. No presumption of validity attaches to the
Commissioner’s conclusions of law, which are reviewed de novo, including the
determination of the proper standard to be applied in reviewing claims. Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991) ("The Commissioner’s failure to apply
the correct law or to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted mandates reversal.");
Martin v. Sullivan, 894 F.2d at 1529.

11

B. The Five Step Sequential Analysis
The Social Security Administration applies a five-step sequential analysis to make
a disability determination. 20 C.F.R. §§ 404.1520(a), 416.920(a). The analysis follows each
step in order, and the analysis ceases if, at a certain step, the ALJ is able to determine,
based on the applicable criteria that the claimant is disabled, or that the claimant is not
disabled.
1. Step One
Step one is a determination of whether the claimant is engaging in substantial
gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). “Substantial work activity” is work
activity that involves doing significant physical or mental activities. 20 C.F.R. §§
404.1572(a), 416.972(a). “Gainful work activity” is work that is usually done for pay or
profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If an
individual has been participating in substantial gainful activity, he or she will not be
considered disabled, regardless of physical or mental impairment, despite the severity of
symptoms, age, education, and work experience. Id. The analysis proceeds to step two
if the individual is not engaging in substantial gainful activity.
In the case at bar, the ALJ found that Plaintiff had not engaged in substantial
activity since May 2, 2011, the alleged onset date. (R. 23).
2. Step Two
At the second step, the claimant must establish that she has a severe impairment.
20 C.F.R. 404.1520(c). The ALJ must make a severity determination regarding the
claimant’s medically determinable impairment or combination of impairments. 20 C.F.R.
§§ 404.1520(c), 416.920(c). "There is no need for an ALJ to identify every severe
impairment at step two." Tuggerson-Brown v. Commissioner of Social Security, No. 1314168, 2014 WL 3643790, at *2 (11th Cir. Jul. 24, 2014). At step two the ALJ found that
The ALJ found that the Plaintiff had the following severe impairments: liver disorder,
12

affective mood disorder, anxiety disorder, osteoarthritis, hypertension, back disorder,
and obesity. (R. 23).

The ALJ also noted a history of alcohol abuse but took note that

“despite her history of alcohol abuse for years, the claimant was able to engage in work
activity at the substantial activity level in the past… the materiality of the claimant’s
substance abuse is not an issue, and no ‘material’ determination is needed.” (R. 24).
Because the ALJ found that the Plaintiff had at least one severe medically determinable
impairment or combination of impairments, the process advanced to the third step.
3. Step Three
The third step required the ALJ to consider if the Plaintiff’s impairment or
combination of impairments was at the level of severity to either meet or medically equal
the criteria of an impairment listed in 20 C.F.R. pt. 404, subpt. P, app.1. (commonly
referred to as the "Listings"). 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925, 416.926. A Plaintiff is considered to be disabled if her impairment or
combination of impairments: 1) is severe enough to meet or to medically equal the
criteria of a listing; and, 2) meets the duration requirement under 20 C.F.R. §§ 404.1509,
416.909.
Here, the ALJ found that the Plaintiff did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed
impartments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 24). The Plaintiff challenges
the ALJ’s consideration of the Plaintiff’s mental impairments at this step. The Plaintiff
does not contend that she meets a Listing, but disputes the evaluation of the severity of
her mental impairment, which was used as part of the Residual Functional Capacity
analysis.
4. Step Four
Step four is a two-pronged analysis that involves a determination of whether the
impairments prevent the Plaintiff from performing her past relevant work. First, the ALJ
13

must make a determination of the Plaintiff’s Residual Functional Capacity ("RFC") as
described in 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC measures a person’s ability to do
physical and mental work activities on a sustained basis despite limitations caused by
his impairments. In making this determination, the ALJ must consider all of the
claimant’s impairments, regardless of the level of severity. 20 C.F.R. §§ 404.1520(e),
404.1545, 416.920(e), 416.945; SSR 96-8p; Tuggerson-Brown, 2014 WL 3643790, at *2 (an
ALJ is required to consider all impairments, regardless of severity, in conjunction with
one another in performing the latter steps of the sequential evaluation).
The ALJ found that the Plaintiff had the RFC to perform medium work as defined
in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that the Plaintiff cannot climb ladders,
ropes or stairs. She cannot crawl, and is unable to complete complex and detailed tasks,
due to limitations in concentration, persistence and pace. However, the ALJ found that
the Plaintiff could perform simple, routine, and repetitive tasks on a sustained basis over
a normal eight-hour workday, and would need a job with no more than simple decision
making required. (R. 27). The ALJ also found that despite limitation in social functioning,
the Plaintiff is capable of interacting appropriately with supervisors and occasionally
with co-workers and the public. (R. 28).
The second phase of step four required the ALJ to make a determination of
whether the Plaintiff had the RFC to perform the requirements of his past relevant work.
20 C.F.R. §§ 404.1520(f), 416.920(f). Relevant work has been defined as work performed
within the last 15 years and performed long enough so that 1) the claimant could learn to
do the job; and, 2) be considered substantial gainful activity. 20 C.F.R. §§ 404.1560(b),
404.1565, 416.960(b), 416.965. During the second part of step four, the ALJ made the
determination that the Plaintiff was unable to perform any past relevant work. (R. 39).
The ALJ then proceeded to the fifth and final step.

14

5. Step Five
If the claimant is not able to perform his past relevant work, the ALJ progresses to
the fifth step. At this step, the burden of production shifts to the Commissioner to show
that other work that Plaintiff can perform exists in significant numbers in the national
economy. Jones v. Apfel, 190 F.3d 1224, 128 (11th Cir. 1999); 20 C.F.R. §§ 404.1520(g),
416.920(a)(4)(v). In making this determination, the ALJ considers a claimant’s RFC, age,
education, and work experience to determine if the claimant can perform any other work.
If the claimant can perform other work, the ALJ will make a finding that the claimant is
not disabled.
At this step, the ALJ considered Plaintiff’s age, education, work experience, RFC,
and, based on the testimony of the VE, found that there were jobs that existed in
significant numbers in the national economy that Plaintiff could perform, including
kitchen helper, hospital cleaner, and cleaner-industrial. (R. 40)
The Plaintiff challenges this step of the analysis, arguing that the ALJ did not
properly give the VE a complete hypothetical that included the Plaintiff’s mental
limitations in daily activities; social functioning, and concentration, persistence or pace.
V.

LEGAL ANALYSIS
A.

Plaintiff’s Argument Regarding the ALJ’s Analysis of all Relevant Evidence

The Plaintiff asserts that the ALJ failed to consider and assess all of the Plaintiff
mental impairments as part of the ALJ’s step 3 and 4 evaluation as he is legally required
to do. The Plaintiff asserts that the ALJ impermissibly substituted his opinion for that of
the treating physicians. The Plaintiff contends that the ALJ’s decision hinges entirely on
the ALJ’s depiction of the Plaintiff’s mental status examinations being unremarkable, and
as such, the ALJ improperly determined that the Plaintiff’s mental impairments were not
as severe as opined by the Plaintiff’s mental health care providers. The Plaintiff asserts
that that ALJ selectively considered the evidence in order to support the ALJ’s
15

conclusion, particularly in regard to his findings of moderate limitations in activities of
daily living, social functioning, and concentration, persistence and pace. The Plaintiff
contends that the report the ALJ relies upon is inappropriate because one of the reports
was a second hand recitation of the Plaintiff’s comments to the Commissioner’s staff and
the report is contrary to first hand reports given by the Plaintiff two months later.
The Defendant asserts that the ALJ properly evaluated the Plaintiff’s impairments
by weighing the opinion of ARNP Peterkin and citing to evidence in the record in support
of the ALJ’s conclusion. The Defendant also asserts that there is no evidence that the
second hand report relied upon by the ALJ was inaccurate. The Defendant contends that
the Plaintiff’s memory was in fact intact more times than it was impaired, and while the
Plaintiff’s concentration was found to be impaired one more time than intact, on balance,
the ALJ’s statements are supported by substantial evidence.
In the Plaintiff’s Reply, the Plaintiff asserts that the Defendant raised arguments
and evidence that were never asserted by the ALJ in an effort to rationalize the
Commissioner’s action in a post hoc manner. The Plaintiff also asserts that Program
Operations Manual requires that, in cases of mental limitation, the ALJ “should discuss
the case with a psychiatrist or psychologist to learn whether a significant part of the
evidence had been previously overlooked or underrated.” The Plaintiff asserts therefore
that the ALJ must have a qualified psychiatrist or psychologist review the medical data
pertaining to mental impairments because, as a lay person, the ALJ is not able to discern
the medical significance of that data.
The Defendant responds that the Plaintiff misinterprets the Program Operations
Manual, and the ALJ was not required to consult with a psychiatrist or psychologist.
The undersigned is not persuaded by the Plaintiff’s argument. Given that the
Court may not reweigh evidence or substitute its judgment for that of the ALJ, even if the
evidence "preponderates" against the Commissioner’s decision, the undersigned finds
16

that the ALJ properly considered the relevant evidence. While the Plaintiff may disagree
with the ALJ’s interpretation of the evidence of record, and the ALJ’s ultimate
conclusion, the ALJ’s decision was supported by substantial evidence. The ALJ
examined the evidence of record (evidence that the Plaintiff never previously asserted
was unreliable) and determined that the severity of the Plaintiff’s mental impairments did
not meet or medically equal a listing. The Plaintiff does not offer any legal support for
the contention that the ALJ is precluded from considering the evidence and coming to a
conclusion that is different than that of the Plaintiff’s mental healthcare provider. A
review of the ALJ’s decision shows that the ALJ cited to the record in support of his
contention that the Plaintiff had moderate restrictions in activities of daily living, social
functioning, and concentration, persistence, and pace. Despite the Plaintiff contention
that the report given by the Plaintiff on March 8, 2013 should not be relied upon, the
Plaintiff does not provide any indication that the report is inaccurate. Additionally, the
ALJ relied on the Plaintiff’s own testimony at the hearing, and treatment notes in
reaching his conclusion. The ALJ also relied upon the assessment completed by the
Commission’s consulting psychologist. (R. 26, 38). In the ALJ’s decision, the ALJ states
that he accorded some weight to the opinion offered by the reviewing psychologist that
the Plaintiff could understand, retain, carry out instructions, and cooperate effectively
with coworkers in completing simple tasks and transactions. (R. 38-39). The ALJ also
stated that his finding of moderate limitations in social functioning was “consistent with
the opinion of the DDS reviewing psychologists at the initial and reconsideration levels.”
(R. 26). The citations to the reviewing psychologist’s report, combined with his
explanation for rejecting the opinion of the treating physician, support the contention
that the ALJ developed his opinion based upon the evidence in the record and did not
usurp proper medical judgment in this case.

17

In terms of the necessity for the ALJ to discuss cases of mental limitations with a
psychiatrist or psychologist, the Program Operations Manual System cited by the
Plaintiff requires this consultation only when an ALJ has determined that there is a
“substantial loss of ability to meet any of the basic mental demands required of unskilled
work.” Program Operations Manual Systems DI 25020.010. Here, the ALJ did not find
that the Plaintiff had such a substantial loss so conferral with a psychiatrist or
psychologist was not necessary.
In conclusion, the undersigned finds that the ALJ provided the reviewing court
sufficient reasoning to examine the ALJ’s decision, and the decision is supported by
substantial evidence.
B. Plaintiff’s Argument Regarding the ALJ’s Analysis of Treating
Psychiatrist Priscilla Borrego, and Treating ARNP, Ms. Pauline Peterkin
1. Ms. Peterkin’s Psychiatric Evaluation
On August 28, 2014, Ms. Peterkin completed a psychiatric evaluation and medical
assessment form. (R. 719-728). The report was co-signed by Dr. Borrego. (R. 727). The
report states that the Plaintiff was treated at Community Health of South Florida from
October 4, 2011 through the date of the report. Ms. Peterkin found that the Plaintiff’s
impairments were likely to produce “good days” and “bad days” and estimated that on
average the Plaintiff would likely be absent from work more than four times a month as a
result of the Plaintiff’s impairments. (R. 719). Ms. Peterkin stated that the Plaintiff would
likely to be off task more than 50% of the time during an eight-hour workday and did not
have the capacity to function in sustained daily work on an eight hour day, five days a
week because the Plaintiff had unpredictable behavioral symptoms such as mood
swings, emotional outbursts, depressed mood, increased anxiety accompanied by
anxiety attacks, and delusional thoughts. (R. 720). Ms. Peterkin found that the Plaintiff’s
symptoms affected the Plaintiff’s interpersonal relationships with others, and the Plaintiff

18

is easily distracted, has poor problem solving skills, and needs close supervision with
the activities of daily living. (R. 720). Ultimately, Ms. Peterkin found that the Plaintiff had
marked restrictions in activities of daily living, social functioning, and maintaining
concentration, persistence or pace. (R. 726).
2. Position of the Parties
The Plaintiff asserts that the ALJ rejected the combined medical source opinions
of the Plaintiff’s treating psychiatrist and treating ARNP without providing an adequate
basis for doing so. The Plaintiff argues that the ALJ failed to identify any important
inconsistencies or contradictions of any kind warranting a rejection of the opinions of Dr.
Borrego and Ms. Peterkin. The Plaintiff contends that none of the contemporaneous
treatment notes are inconsistent with or contrary to the opinions expressed by Dr.
Borrego and Ms. Peterkin. The Plaintiff points to the Plaintiff’s GAF 4 scores in support of
her contention that the treatment notes are consistent with the opinion of Dr. Borrego
and Ms. Peterkin. Finally, the Plaintiff asserts that other than the ALJ’s own
unsubstantiated and improper medical judgment, the ALJ does not and cannot cite to
any significant contrary evidence.
The Defendant asserts that the ALJ properly evaluated the medical opinion
evidence as the ALJ articulated good cause for discounting the opinion of Dr. Borrego
and Ms. Peterkin. The Defendant argues that the ALJ pointed out inconsistencies
between Ms. Peterkin’s medical assessment form and the contemporaneous treatment
4

The GAF Scale is a numeric scale that mental health physicians and doctors previously
used to rate the occupational, psychological, and social functioning of adults. American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition (“DSM-IV”) Multiaxial Assessment (rev. 2000). In the Fifth edition of the DSM,
published in 2013, the use of the GAF scale was discontinued. For a discussion of why
the GAF was discontinued, including citations to studies regarding its unreliability, see
Victoria E. Kress, et al., The Removal of the Multiaxial System in the DSM-5: Implications
and Practice Suggestions for Counselors, The Professional Counselor, Jul. 2014,
available athttp://tpcjournal.nbcc.org/the-removal-of-the-multiaxial-system-in-the-dsm-5implications-and-practice-suggestions-for-counselors/.
19

notes. As related to the GAF scores, the Defendant asserts that the ALJ properly
considered the scores, gave them some weight, and as the ALJ explained, the
Commissioner has declined to endorse the GAF scale for use in Social Security and
disability programs. The Defendant also asserts that the ALJ properly relied on the
evidence of record in evaluating the opinion of Ms. Peterkin, and contends that the
Plaintiff does not offer any authority in support of the Plaintiff’s position that the ALJ
substitutes his or her opinion for the physician’s opinion by evaluating a physician’s
opinion in accordance with the Commissioner’s rulings and regulations.
3. The Framework For Analyzing Medical Opinions
An ALJ is required to consider and explain the weight given to different medical
doctors such as examining and consulting physicians. See McCloud v. Barnhart, 166 F.
App’x 410, 419 (11th Cir. 2006). The opinion of a treating physician as to the nature and
severity of an impairment is entitled to controlling weight if it is well supported by
medically acceptable clinical and laboratory diagnostic techniques, and is not
inconsistent with the other substantial evidence in the record. 20 C.F.R. § 416.927(c)(2).
The regulations also list the factors that the ALJ is to consider when weighing the
opinions of all opinion evidence, including the opinions of consulting and examining
physicians. 20 C.F.R. §§ 404.1527(c), 416.927(c). Such factors include the treating and
examining relationship, length of treatment, supportability, consistency, and
specialization. Id. In Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir.
2011), the Eleventh Circuit Court of Appeals concisely set forth the following guidelines
to apply in evaluating an ALJ’s treatment of medical opinions:
Absent “good cause,” an ALJ is to give the medical opinions
of treating physicians substantial or considerable weight.
Good cause exists when the: (1) treating physician’s opinion
was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical
records. With good cause, an ALJ may disregard a treating
20

physician’s opinion, but he must clearly articulate the
reasons for doing so.
Moreover, the ALJ must state with particularity the weight
given to different medical opinions and the reasons therefor.
In the absence of such a statement, it is impossible for a
reviewing court to determine whether the ultimate decision
on the merits of the claim is rational and supported by
substantial evidence. Therefore, when the ALJ fails to state
with at least some measure of clarity the grounds for his
decision, we will decline to affirm simply because some
rationale might have supported the ALJ’s conclusion.
(internal quotation marks and citations omitted).
The ALJ is required “to state with particularity the weight given different medical
opinions and the reasons therefore, and the failure to do so is reversible error.” Kahle v.
Comm’r of Soc. Sec., 845 F. Supp. 2d 1362, 1271 (M.D. Fla. 2012) (citing Sharfarz v.
Bowen, 825 F. 2d 278, 279 (11th Cir. 1987)). Additionally, the opinion of an examining
physician is generally entitled to more weight than the opinion of a non-examining
physician. Id.
4. The ALJ’s Analysis of the Consulting and Examining
Psychologists’ Opinions Regarding the Plaintiff’s Mental Limitations
The ALJ discussed the opinion of Ms. Peterkin and ultimately concluded that the
contemporaneous treatment notes by Ms. Peterkin did not support her opinion. (R. 36).
The ALJ cited to evidence in the record in support, for example, the ALJ stated that
although Ms. Peterkin opined that the Plaintiff had poor or no ability to relate predictably
in social situations, interact with others, including co-workers, the Plaintiff was
described as cooperative throughout the treatment notes. The ALJ pointed out that at
other times the Plaintiff reported that she was more outgoing and that she was walking
with her neighbor went grocery shopping with her husband, and socialized primarily with
her husband and neighbors. (R. 36). As related to Ms. Peterkin’s opinion that the
Plaintiff had poor to no ability to function independently, the ALJ pointed to treatment

21

notes that found that the Plaintiff was able to care for herself. (R. 36). The ALJ also
stated that while Ms. Peterkin opined that the Plaintiff lacked the ability to understand,
remember, and carry out simple job instructions, the treatment notes indicated that the
Plaintiff was alert and well oriented. (R. 36). The ALJ also stated that while Ms. Peterkin
opined that the Plaintiff had only a fair ability to maintain personal appearance, the
record indicated that the Plaintiff was well groomed and the Plaintiff testified at her
hearing that she retained the ability to care for herself. (R. 36). Finally, the ALJ noted
that Ms. Peterkin completed a form on the effect of alcohol and drug abuse indicating
that the Plaintiff did not have a past or present history of abuse. (R. 36). The ALJ pointed
out that the record reflected that the Plaintiff reported to Ms. Peterkin that the Plaintiff
stopped drinking in January 2013. (R. 36). Ultimately, the ALJ accorded no weight to the
opinion offered by Ms. Peterkin, under the supervision of Dr. Borrego. (R. 38).
As related to the GAF scores assigned in the treatment notes by Ms. Peterkin, the
ALJ accorded the scores some weight while noting that the Commissioner has declined
to endorse the GAF scale for use in Social Security and SSI disability programs, and has
indicated that GAF scores have no direct correlation to the severity requirements of the
mental disorder listings. (R. 38).
A review of the record supports the Defendant’s contention that the ALJ properly
considered the opinion of the treating ARNP and the overseeing psychiatrist. The ALJ
clearly articulated the reasons for discounting the opinion included in the psychiatric
report and pointed out where the report was inconsistent with the treatment notes of
record and/or the testimony of the Plaintiff. The inconsistencies between the treatment
notes and the psychiatric report amount to good cause for discounting the opinion.
While the undersigned notes that some of the conclusions drawn by the ALJ based on
the treatment notes may be a bit tenuous, e.g. cooperation in treatment corresponding to
the Plaintiff’s ability to interact with coworkers, given the standard of review by this
22

Court, it would not be proper for the undersigned to reweigh the evidence to determine
whether a different conclusion should have been reached by the ALJ, especially given
the fact that substantial evidence supports the ALJ’s conclusion. Finally, as related to
the ALJ’s treatment of the Plaintiff’s GAF scores, as stated by the Defendant, the
Commissioner has declined to endorse the GAF scale for “use in Social Security and SSI
disability programs.” See 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000). While the
Plaintiff’s GAF scores may support the Plaintiff’s contention that the opinion should not
be discounted, given the Commissioner’s position regarding the use of GAF scores, and
the discontinuation of the use of GAF scores in DSM V due in part to their unreliability,
the ALJ did not commit error by relying upon other evidence in the record in support of
his decision.
In conclusion, the ALJ did not improperly discount the opinion of the Plaintiff’s
treating psychiatrist and ARNP.
C. ALJ’s Residual Functional Capacity Assessment
The Plaintiff asserts that the ALJ’s analysis of the Plaintiff’s residual functional
capacity is not based on substantial factual evidence, and argues that the ALJ failed to
support the functional assessment with an appropriate medical source statement from
either a treating or examining source. The Plaintiff argues that the ALJ’s finding that the
Plaintiff is physically capable of performing medium work is not based on substantial
evidence. The Plaintiff asserts that the evidence shows that that the Plaintiff suffers from
“right knee impairment and bilateral L5 spondylosis, Grade 1 anteriolistheis, of L5 over
S1, and severe degenerative disk changes. While Ms. Zerba is not currently engaging in
significant complications from her spinal impairments, she is not currently engaging in
significant exertional activities, such as those required at the medium level of exertion.”
ECF No. [21] at 14. With regard to the Plaintiff’s mental limitations, the Plaintiff also
argues that once the ALJ rejected the opinion of the Plaintiff’s treating ARNP, there was
23

no other evidence to support the ALJ’s functional findings, and therefore the ALJ’s
functional assessment amounted to an improper substitution of the ALJ’s medical
judgment for that of the treatment providers.
The Defendant asserts that the ALJ was not required to rely on the functional
assessment of a treating or examining physician to support the ALJ’s RFC finding. The
Defendant argues that the case law relied upon by the Plaintiff is misplaced and the
absence of an opinion from an acceptable medical source does not preclude an ALJ from
making a proper RFC determination.
As related to the ALJ’s analysis of the Plaintiff’s physical RFC, while the Plaintiff
contends that the exertional limitations are not consistent with the actual facts of the
case, the ALJ accorded “some weight to the opinion of the DDS reviewing physician who
opined that the claimant retained the ability to perform sustained work activity at the
medium exertional level.” (R. 39). The reviewing physician’s report which is based upon
the medical records in evidence, counters the Plaintiff’s argument that there is no
evidence in the record to support the ALJ’s physical RFC determination. Additionally,
because the Plaintiff admits that the Plaintiff is not experiencing significant
complications from her spinal impairments, substantial evidence supports the ALJ’s
determination that the Plaintiff has the RFC to perform medium work.
The undersigned also finds that the ALJ did not err by not ordering a consultative
examination in the development of the Plaintiff’s Mental RFC. The assessment of the
Plaintiff’s RFC is the responsibility of the ALJ and should be based upon a review of all
relevant evidence. 20 C.F.R. § 404.1527(d)(2). “The ALJ has a duty to develop the
record where appropriate but is not required to order a consultative examination as long
as the record contains sufficient evidence for the ALJ to make an informed decision.”
Robinson. v. Astrue, 365 F. App’x 993, 995 (11th Cir. 2010) (internal citations omitted).
Here, the record was fully developed as there were treatment notes spanning several
24

years, testimony by the Plaintiff, contact by the Plaintiff with the Commission, and a
reviewing physician and psychologist. Therefore, the undersigned concludes that a
consultative examination was not necessary for the ALJ to make an informed decision
based upon the evidence of record. See Castle v. Colvin, 557 F. App’x 849, 853 (11th Cir.
2014) (holding that no consultative examination is necessary where ALJ reviewed cited
evidence in the record in support of his opinion).
In conclusion, substantial evidence supported the ALJ’s RFC, and the ALJ was
not required to request a statement from a consultative medical source.
D. ALJ’s Hypothetical
The Plaintiff asserts that the ALJ failed to pose a hypothetical question
comprising all of the Plaintiff’s acknowledged limitations in daily activities, social
functioning, and concentration, persistence or pace. The Plaintiff argues that stating the
Plaintiff is capable of performing simple, routine repetitive tasks does not adequately
address the Plaintiff’s moderate limitations in concentration, persistence, or pace or any
of the Plaintiff’s moderate limitations in daily activities or social functioning.
The Defendant asserts that the ALJ’s hypothetical was complete as it included
that the Plaintiff was capable of interaction appropriately with supervisors and
occasionally with co-workers and the public despite limitation in social functioning. The
Defendant also argues that the ALJ’s hypothetical properly accounted for the Plaintiff’s
moderate difficulties in concentration, persistence, or pace.
As described above, the ALJ presented the following hypothetical to the VE:
Please assume an individual, same age, education, past work
experience as the claimant. Further assume such individual
would be limited to medium exertion work as described in the
Dictionary of Occupational Titles. Additionally, assume such
an individual could not climb ladders, ropes or scaffolds;
could only occasionally climb ramps or stairs. Could not
crawl. Would be unable to perform complex and detailed
tasks due to limitations in concentration, persistence and
pace, but could perform simple, routine, competitive,
25

repetitive tasks on a sustained basis over a normal eight hour
work day with no more than simple decision-making required.
And is capable of interacting appropriately with supervisors
and occasionally with co-workers and the public despite
limitations in social functioning.
(R. 72)
Under the standard established by the Eleventh Circuit, the ALJ is required to
account for limitations in concentration, persistence and pace when presenting a
hypothetical to the VE. Winschel at 1181. In Winschel, the Court found that the
hypothetical presented to the VE was inadequate as the ALJ failed to either implicitly or
explicitly account for the claimant’s limitations in concentration, persistence and pace.5
Here, the ALJ explicitly made the VE aware that the Plaintiff had limitations in
concentration, persistence, and pace, and limited the hypothetical accordingly. In terms
of the Plaintiff’s moderate limitation in daily living and social functioning, the ALJ
incorporated the social functioning component by limiting interaction with co-workers to
only occasionally.
Accordingly, the undersigned finds that the ALJ appropriately included the
Plaintiff’s limitations in the hypothetical presented to the VE.
E. Testimony of the Vocational Expert
The Plaintiff asserts that the Plaintiff’s disability is established by the testimony of
the vocational expert because when presented with a hypothetical where the individual
would be absent from work more than four times a month and also would be off task
more than 50 percent of an eight hour workday, the VE responded that such all work
would be eliminated.

5

The Plaintiff cites to Lea v. Comm’r of Soc. Sec., 776 F. Supp. 2d 1309 (M.D. Fla. 2011)
for the proposition that the ALJ did not adequately account for the Plaintiff’s limitations
in the hypothetical. However, besides the fact that the opinion is not binding on this
Court, the case at bar can be distinguished as here the ALJ explicitly stated to the VE
that the Plaintiff had limitations in concentration, persistence and pace.
26

The Defendant asserts that the VE’s testimony only proves that the Plaintiff would
be considered disabled only when presented with a hypothetical that included the
limitations included in the opinion of the treating ARNP, and those limitations were
properly evaluated and rejected by the ALJ.
Because, as discussed above, the ALJ properly excluded the opinion of the
ARNP, the ALJ was not required to include those limitations in the hypothetical
presented to the VE. Crawford at 1161. The undersigned finds the fact that the ALJ
presented an alternative hypothetical which included the limitations asserted by the
ARNP does not convert the ALJ’s finding of non-disability into one of disability.
F. The ALJ’s Credibility Analysis
The Plaintiff asserts that the ALJ committed reversible error because the ALJ’s
assessment of the Plaintiff’s credibility is not based on any discernable evidence as the
ALJ failed to identify any relevant contradictory evidence warranting the ALJ’s finding.
The Plaintiff also asserts that by conducting the credibility analysis after his assessment
of the Plaintiff’s ability to work, the functional assessment is effectively rendered
meaningless.
The Defendant contends that the ALJ properly considered the Plaintiff’s
subjective complaints and found them not fully credible. The Defendant also asserts that
the case law relied upon by the Plaintiff for the assertion that the credibility analysis
must be performed before assessing the Plaintiff’s ability to work is misplaced as there
is not any evidence that this is what the ALJ did; nor did the ALJ use boilerplate
language in making his credibility determination.
The responsibility of the fact-finder, the ALJ, is to weigh the Plaintiff’s complaints
about her symptoms against the record as a whole; it falls to the ALJ alone to make this
determination. 20 C.F.R. § 404.1529(a). A clearly articulated credibility finding supported
by substantial evidence in the record will not be disturbed by a reviewing court. Foote v.
27

Chater, 67 F.3d 1553, 1562 (11th Cir. 1995). "[T]he ALJ's discretionary power to determine
the credibility of testimony is limited by his obligation to place on the record explicit and
adequate reasons for rejecting that testimony." Cannon v. Bowen, 858 F.2d 1541, 1545
(11th Cir. 1988). If the ALJ decides not to credit such testimony, he must articulate
explicit and adequate reasons for doing so. Hale v. Bowen, 831 F. 2d 1007, 1011 (11th
Cir. 1987).
Here the ALJ found that the Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the Plaintiff’s
statements concerning the intensity, persistence and limiting effects of these symptoms
were found to be not entirely credible. (R. 36). The ALJ spent nearly two pages of his
decision detailing the inconsistences between the Plaintiff’s allegations and the record
evidence. (R. 36-38). For example, the ALJ pointed out that the Plaintiff’s treatment
records showed that the Plaintiff responded well to treatment for her depression and
anxiety, and for the most part the Plaintiff’s memory and concentration were intact. (R.
37). The ALJ also cites to evidence that during the relevant time period the Plaintiff
reported that she was able to care for herself and care for her animals. (R. 37). The
undersigned finds that the ALJ provided a clearly articulated credibility finding that was
supported by citations to the record evidence.6 Additionally, the Plaintiff’s assertion that
the ALJ is required to perform a credibility assessment before forming his opinion
regarding the Plaintiff’s ability to work does not succeed. In the case cited by the
Plaintiff, Bjorn v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012,) the court found that the ALJ’s
credibility assessment was flawed when the ALJ failed to cite to evidence in the record in

6

The Plaintiff contends that the ALJ attempted to refute perceived statements about liver
disease, hypertension, and heart impairment while the Plaintiff never attributes any
significant problems to these impairments. However, while the ALJ does address the
record evidence as related to those medical conditions, the ALJ spends the bulk of his
credibility assessment addressing the Plaintiff’s allegations as related to mental
impairments.
28

determining that the claimant’s complaints were not credible. Bjorn v. Asture. Here, in
contrast, while the ALJ used similar language to the ALJ in Bjorn, the ALJ cited to record
evidence which allowed this Court to review the ALJ’s decision. As related to the
Plaintiff’s contention that the ALJ performed a credibility analysis after determining the
Plaintiff’s ability to work, apart from the organization of the ALJ’s decision there is no
further evidence that the ALJ’s decision was improper.
Accordingly, the undersigned finds that the ALJ did not err in performing his
credibility analysis, and the ALJ’s finding is supported by substantial evidence.
VI.

CONCLUSION

Based on the foregoing, this Court finds that substantial evidence supports the
ALJ’s determination that the Plaintiff is not disabled. Therefore, in accordance with the
above, it is herby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment,
ECF No. [21], is DENIED, and that Defendant’s Motion for Summary Judgment, ECF No.
[24], is GRANTED.
DONE AND ORDERED in chambers in Miami, Florida on September 25, 2017.

ANDREA M. SIMONTON
CHIEF UNITED STATES MAGISTRATE JUDGE
Copies provided via CM/ECF to:
All counsel of record

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