Lopez v. Acting Commissioner of Social Security Administration
Filing
29
ORDER denying 22 Plaintiff's Motion for Summary Judgment; granting 25 Defendant's Motion for Summary Judgment; and closing case. Signed by Magistrate Judge Edwin G. Torres on 3/29/2019. See attached document for full details. (abu)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-20626-CV-TORRES
MAYTE LOPEZ,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration,
Defendant.
__________________________________________/
ORDER ON THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court as a result of Motions for Summary Judgment
filed by Plaintiff MAYTE LOPEZ (“Lopez” or “Plaintiff”) and Defendant NANCY A.
BERRYHILL (“the Commissioner” or “Defendant) on August 10 and October 19,
2018, respectively. [D.E. 22, 25]. Both parties filed Responses in Opposition to the
other party’s Motion, [D.E. 26, 27], and Plaintiff filed a Reply on November 19, 2018.
[D.E. 28]. The matters are now fully-briefed and ripe for disposition. Following our
review of the arguments set forth by the Commissioner and Lopez, in addition to the
record before us and the governing legal authorities, we hereby hold that Plaintiff’s
Motion is DENIED, Defendant’s Motion is GRANTED, and the decision of the
Commissioner should be AFFIRMED.
I.
A.
FACTUAL AND PROCEDURAL BACKGROUND
Relevant Medical Documentation
On February 14, 2014, Plaintiff sought treatment with Dr. Samuel Mowerman
and reported to the doctor that she was “a mess,” indicating that Prozac had helped
control her depression but caused her at times to become “incredibly angry.” [R. at
427]. Her depression allegedly stemmed from her son’s disability and conflicts she
occasionally had with the child’s father. Id. at 424. Plaintiff reported a lack of energy
and motivation, in addition to crying, sadness and insomnia. Id. Lopez denied suicidal
or homicidal ideations. Id. at 425. Dr. Mowerman diagnosed Plaintiff with bipolar
disorder and recommended she continue with medication and participate in therapy
to help “ventilate feelings of depression.” Id. at 426.
Plaintiff next treated with Mowerman on May 21, 2014. [R. at 423]. She
described “troubled” feelings due to her significant other being laid off from his job,
which caused difficulties in her obtaining medical insurance for her son. Id. She
reported feeling “sad and overwhelmed.” Id. The next day she treated with Ana Maria
Villaverde, a social worker, who found her mood to be “normal” and her affect
“consistent.” Id. at 421. Plaintiff presented with a Global Assessment of Functioning
(“GAF”) score of 65 (out of a scale of 100), indicative of mild depressive symptoms. Id.
The notes from a follow-up with Ms. Villaverde for an appointment occurring a week
later contained similar findings. Id. at 419-20.
On June 5, 2014, Dr. Mowerman assigned Plaintiff a GAF score of 75 after she
reported feeling much better. Id. at 417. Plaintiff reported “doing very well” once
2
again on July 2, 2014, although she still experienced “panic-like” episodes on occasion.
Id. at 416. But things took a turn for the worse in September, when Plaintiff said she
felt “terrible” and told Dr. Mowerman she had concerns about an operation her
disabled son might need on his leg. Id. at 415. She also reported difficulty sleeping.
Id. Dr. Mowerman assigned her a GAF score of 55, and recorded her mental status
as “distressed.” Id. Those feelings of distress continued into her next visit on October
21, 2014, when she reported having “difficulties” with both her children and claimed
she had reduced her medications. Id. at 466. Dr. Mowerman assigned her a GAF score
of 52 on that date. Id.
On November 12, 2014, Lopez reported to Dr. Mowerman that she felt worried
her son might need an additional knee operation, and that she felt a “lack of emotional
control” with “periods of sadness[,] though not intense.” Id. at 503. Mowerman
assigned her a GAF score of 58. Two months later, on January 7, 2015, the GAF score
dropped a few points to 55, which remained consistent during her appointment on
January 14 even though Plaintiff reported feeling “a little better.” Id. at 501-02. On
that same date, Dr. Mowerman completed a psychiatric and psychological evaluation,
where he found Lopez had “marked” difficulties in maintaining concentration,
persistence and pace, with “moderate” limitations in her activities of daily living and
social functioning. Id. at 485. He also noted Lopez suffered from “one or two” repeated
episodes of decompensation within a year, with those episodes lasting for at least two
weeks. Id. at 486. Mowerman supplemented this evaluation later that year and
described Lopez as having “extreme” limitations in her ability to understand,
3
remember and apply information; interact with others, concentrate, persist and
maintain pace; and adapt or manage herself. Id. at 561.
On February 3, 2015, Lopez reported feeling better, with improved sleeping
habits helped by medication. Id. at 499. Things changed on a visit five weeks later,
where she said she felt “very bad” and described issues with her family that caused
her to feel anger and sadness. Id. at 644. Dr. Mowerman found that she had “clinically
significant symptoms” on a standardized depression screening, assigned her a GAF
score of 50, and recommended her for hospitalization. Id. Lopez agreed to be
hospitalized and was transported to the emergency room that same day. Id.
After her hospitalization, Plaintiff returned to Dr. Mowerman on April 22,
2015 for a follow-up appointment. She reported feeling better, and discussed feelings
of anxiety and difficulties sleeping. Id. at 641. The notes from a mental status
examination performed during that visit indicated that Lopez denied suicidal or
homicidal ideations, and that her thought process was logical, organized and
associated with good attention and concentration. Id. at 642.
Later that summer, on August 18, 2015, Plaintiff described feeling “quite
anxious” and reported that only certain medications improved her condition. Id. at
636. Nevertheless, the mental status examination completed by Dr. Mowerman
indicated that Lopez had denied hallucinations and delusions, and that her cognitive
functioning was “intact,” and her insight “fair.” Id. at 637. Two months later, on
October 2, 2015, Dr. Mowerman assigned her a GAF score of 58, and the patient once
again described troubled feelings concerning her son’s disability and the associated
4
medical treatment. Id. at 633. Despite these complaints, Mowerman again found
Plaintiff’s cognitive functioning to be intact, and described her insight as fair.
Towards the end of 2015, Dr. Mowerman began opining on Plaintiff’s activities
of daily living. On December 9 of that year, he found those activities to be “very
difficult” due to her depressive symptoms. Id. at 626. Her condition continued to
fluctuate leading into 2016, with some reports of an improving condition contrasted
with a worsening of her symptoms. Id. at 617. On May 4, Mowerman noted symptoms
related to agoraphobia, but indicated she had been sleeping better. Id. at 611.
Mowerman described Plaintiff’s progress as “good” on that same date. Id. at 613.
On July 19, 2016, Dr. Mowerman noted that Lopez’s activities of daily living
were “not difficult at all” due to her depressive symptoms. Id. at 606. On August 10,
she discussed continued improvement in her condition, claiming that she had been
“feeling in better control, sleeping well, [and] eating well.” Id. at 593. Dr. Mowerman
found a lowered dosage of one of her medications to be improving her condition, and
once again noted that her activities of daily living were not difficult at all because of
the depressive condition. Id. at 594. The doctor made this same finding on November
8 and December 7, 2016, and on February 1, 2017. Id. at 118, 564, 575.
B.
Administrative Proceedings
Lopez filed for disability benefits on September 17, 2014, alleging an onset date
of April 1, 2014. [R. at 157, 344]. The Commissioner denied the request for benefits
on February 19, 2015. Id. at 288. Lopez sought reconsideration of the Commissioner’s
decision, which was again denied on February 2, 2015. [R. at 237]. Plaintiff then
5
requested that her case be heard by an ALJ, and the Commissioners granted her
request on July 11, 2016. [R. at 248].
On February 6, 2017, ALJ Joseph Dent held a hearing on Plaintiff’s claim. Id.
at 59. Lopez and her attorney were joined by vocational expert (“VE”) W.R. Harvey
at the hearing. Plaintiff testified on her own behalf, answering questions from both
the ALJ and her lawyer. Plaintiff described her condition as “mood changes,” bipolar
disorder, anxiety and depression. Id. at 70-71. She told the ALJ she had difficulties
being around other people because it would cause her to suffer from panic attacks.
[R. at 70]. She also claimed her condition caused her to argue with clients at work.
Id. at 71. Lopez told the ALJ she cannot focus and suffers from insomnia, despite
taking medications to treat those conditions, and often suffers drowsiness as a side
effect. Id. at 73.
In terms of her daily activities, Lopez stated she does not drive and has not
done so since 2009. Id. at 65. She has two children, one of whom suffers from a
physical disability that required him to undergo over twelve (12) surgeries. Id. at 6769. She occasionally performs chores around the house, and admitted she was able to
complete certain tasks, although sometimes “she can’t finish.” Id. at 72. As a result
of her bipolar disorder, she often experiences periods of “euphoria,” but during times
when she feels “low” she stays in bed for the entire day. Id. at 77. Her son and a friend
assist her during her “low” periods, and both help her take care of her other child. Id.
at 77-78. Her oldest son will also cook for her and shop for groceries during these low
periods. Id. at 78.
6
Plaintiff worked in beauty services prior to her disability application, assisting
customers with “manicures, pedicure[s], waxing [and] facials.” Id. at 69. She worked
as an independent contractor during this time. Id. at 70. Lopez stated she was a
“pretty good” employee but, as a result of her condition, found it too difficult to work.
Id. at 82, 88. Those difficulties included an inability to focus and an unwillingness to
speak with her clients. Id. at 88-89. She has not attempted to see clients in her own
home, even though she discussed extensive discomfort when working at the spa. Id.
at 88.
The VE categorized Lopez’s former work as a “cosmetologist,” found at section
332.271-010 of the Dictionary of Occupational Titles (“DOT”). Id. at 92. That work
requires “light physical demands” and a Specific Vocational Level (“SVP”) of 6,
indicative of “skilled” work. Id. The ALJ asked the VE whether a hypothetical
claimant, with medical conditions similar to those described by Lopez and including
certain limitations, 1 would be able to return to past relevant work as a cosmetologist.
Id. The VE answered no. Id. at 93.
The VE did find, however, that such a hypothetical individual could be
employed in several positions as they currently exist in the national economy: (1)
industrial cleaner, DOT section 381.687-018, a medium-exertional position with an
SVP level of 2; (2) horticultural worker, DOT section 401.687-010, a medium-
Those limitations included avoidance of all exposure to hazardous machinery
and heights, with work limited to simple, routine, repetitive tasks requiring only
occasional decision-making, changes in the work setting, and interaction with the
public, supervisors, and co-workers.
1
7
exertional position with an SVP level of 2; (3) mailroom clerk, DOT section 209.687026, with “light” physical demands and an SVP level of 2; and (4) merchandise
marker, DOT section 209.587-034, a light-exertional position with an SVP level of 2.
Id. at 93. When the ALJ reduced the hypothetical individual’s exertional limits to
requiring “light” work, with limitations on the individual’s ability to perform certain
physical activities, the VE testified that such an individual would still be able to work
in both “light” positions of merchandise marker and mailroom clerk. Id. The VE also
found that a third job would be possible for that individual: laundry sorter, DOT
section 361.687-014, with light physical demands and an SVP level of 2. Id. at 94.
C.
The Administrative Law Judge’s Decision
ALJ Dent issued his opinion on February 28, 2017. [R. at 38-51]. He chose to
deny Plaintiff’s request for benefits, finding that Lopez did not qualify as “disabled”
within the meaning of the Social Security Act. Id. at 51. In doing so, the ALJ applied
the sequential evaluation process that must be used in these types of claims. See 20
C.F.R. §§ 404.1520; 416.920. The process requires the ALJ to consider, in sequence,
whether a claimant: (1) is working; (2) suffered from a “severe” impairment as defined
by the regulations; (3) has a condition that meets or medically equals those found in
20 C.F.R. Part 404, Subpart P, Appendix 1 (a “listed impairment”); (4) can return to
past relevant work; and (5) if not, whether he can perform other work as it exists in
the national economy. 2
If, at step four, a claimant establishes that an impairment prevents him from
performing past relevant work, the burden shifts to the Commissioner to show that
other jobs exist in the national economy which, given the claimant’s limitations, he
2
8
At the first step, the ALJ determined that Lopez had not engaged in
substantial gainful activity since her alleged onset date. [R. at 40]. Moving to step
two, ALJ Dent found that Lopez suffered from the following severe impairments:
“depression/bipolar disorder; anxiety; and panic disorder.” Id. At step three, the ALJ
concluded that Plaintiff’s severe medical conditions did not meet or equal the severity
of the listed impairments found in 20 C.F.R. Part 404, Subpart P, Appendix. Id. at
41.
Before moving to steps four and five, the ALJ assessed Plaintiff’s residual
functional capacity (“RFC”). Id. at 43. The regulations define a claimant’s RFC as the
ability to perform physical and mental work activities on a sustained basis despite
limitations arising from the alleged condition. 20 C.F.R. §§ 404.1520(e); 416.920(e).
The ALJ completed this intermediary step, finding that Lopez
has the residual functional capacity to perform a full range of work at
all exertional levels, except she must avoid all exposure to hazardous
machinery and unprotected heights. The claimant is also limited to
simple, routine, repetitive tasks in a low-stress job (which is defined as
involving only occasionally decision making, only occasional changes in
the work setting, and only occasional interaction with [the] public,
coworkers, and supervisors, with no production rate or pace work
similar to that of an assembly line).
Id. Based on this description of Plaintiff’s RFC, the ALJ found she could not perform
past relevant work. Id. at 48. ALJ Dent concluded, however, that there were other
jobs available in the national economy that Plaintiff could perform, finding that she
or she can still perform despite the alleged medical condition. Chester v. Bowen, 786
F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, the
claimant must then rebut the finding and show that he cannot perform the work
suggested by the Commissioner. Id.
9
could work as an industrial cleaner, horticultural worker, mailroom clerk,
merchandise marker, and laundry sorter. Id. at 49. Thus, the ALJ determined that
Plaintiff could not be considered disabled for purposes of social security, since she
could perform the work required by these positions. Id. at 51.
Plaintiff appealed the ALJ’s decision on May 1, 2017. Id. at 291. The
Administration’s Appeals Council denied the request for review on December 18,
2017, id., and Plaintiff timely sought review of that decision in this Court on February
18, 2018. [D.E. 1].
II.
LEGAL STANDARD
The Social Security Act gives federal courts the power “to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the Commissioner’s
decision, however, is limited to the following determinations: (1) whether the
Commissioner’s findings are supported by the substantial evidence contained in the
record; and (2) whether the Commissioner applied the correct legal standards.” Moore
v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005).
We must affirm the Commissioner’s decision if it is supported by substantial
evidence. Substantial evidence is “more than a scintilla, but less than a
preponderance,” comprised of “such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th
10
Cir. 1987). This is a deferential standard, and we cannot decide the facts anew, reweigh the evidence, or substitute or own judgment for that of the Commissioner, even
if we feel the evidence preponderates against it. Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990); Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). It is
incumbent upon the reviewing court to examine the findings and decision of the
Commissioner in light of the record in its entirety, not only that evidence which
supports the decision. Owens v. Heckler, 748 F.2d 1511, 1514 (11th Cir. 1984). No
such presumption of validity attaches to the ALJ’s conclusions of law. Brown v.
Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).
III.
ANALYSIS
Plaintiff makes four arguments to challenge the Commissioner’s decision: (1)
the ALJ erred when he found that Plaintiff’s medical condition did not qualify as a
“listed” impairment at step three; (2) Dr. Mowerman’s medical source opinions should
have been given “controlling” weight as required by law; (3) the ALJ’s residual
functional capacity analysis is not supported by the substantial evidence and is based
on legal error; and (4) the Commissioner’s appointment of an ALJ to hear her case
violates the Appointments Clause of the United States Constitution. [D.E. 22].
A.
The Appointments Clause
Plaintiff’s fourth argument advances her theory that the entire process by
which the ALJ denied her disability request is constitutionally invalid. Since this sets
forth a purely legal argument, we will begin with this contention.
Pursuant to the Appointments Clause of the United States Constitution,
11
“Officers of the United States” may only be appointed by the President, “Courts of
Law,” or “Heads of Departments.” U.S. CONST. Art. II., § 2, cl. 2; see also Lucia v.
S.E.C., – U.S. –, 1138 S. Ct. 2044, 2050 (2018). In Lucia, the Supreme Court
confronted an Appointments Clause challenge to an ALJ appointed by the Securities
and Exchange Commission. Lucia, 1138 S. Ct. at 2049-50. In that case, the SEC
charged Lucia with misleading investors in connection with retirement products he
offered as part of his business. Id. at 2050. The ALJ ruled that the plaintiff’s products
were misleading, required him to pay hundreds of thousands of dollars in fines, and
banned him from working in the investment industry for the remainder of his career.
Id.
Lucia appealed the decision to the SEC, arguing that the ALJ who heard his
case had not been appointed by a method conforming with the Appointments Clause
of the United States Constitution. Id. He then challenged the penalties he received
in federal court, where he once again raised a challenge based on the Appointments
Clause argument set forth before the SEC. Id. The D.C. Circuit Court of Appeals
denied the challenge, but when the Supreme Court granted certiorari, it reversed the
decision and remanded the case, finding that his agency appeal should be heard by a
different ALJ who had been appropriately appointed. Id. at 2055.
Lopez now argues that Lucia applies to the Social Security Administration and
that ALJ Dent had not been properly appointed in the method prescribed by the
Constitution. [D.E. 22, p. 19-20]. In response, the Commissioner argues that Lopez
forfeited this claim by failing to raise it at the administrative level. [D.E. 25, p. 15].
12
Plaintiff, arguing against waiver, contends that her challenge is timely pursuant to
the Supreme Court’s decision in Sims v. Apfel, 508 U.S. 103, 112 (2000), which states
that “[c]laimants who exhaust administrative remedies need not also exhaust issues
in a request for review by the Appeals Council in order to preserve judicial review of
those issues.”
We agree with the Commissioner. 3 “[O]ne who makes a timely challenge to the
constitutional validity of the appointment of an officer who adjudicates his case is
entitled to a decision on the merits of the question and whatever relief may be
appropriate if a violation indeed occurred.” Ryder v. United States, 515 U.S. 177, 18283 (1995) (emphasis added); see also Lucia, 138 S.Ct. at 2055 (“This Court has held
that one who makes a timely challenge to the constitutional validity of the
appointment of an officer who adjudicates his case is entitled to relief.”) (quotation
omitted). Lopez did not “timely challenge” the constitutional validity of the ALJ’s
ability to hear her case when she failed to make her Appointments Clause argument
in the administrative proceedings below. Such a ruling is consistent with District
Courts that have recently confronted the same issue. See generally Page v. Comm’r of
Soc. Sec., 344 F. Supp. 3d 902, 905 (E.D. Mich. 2018) (“As of this date, the courts that
have considered the [Appointments Clause] issue have unanimously rejected attacks
on the validity of the ALJ’s appointment under Lucia brought under 42 U.S.C. §
405(g) where the claimant failed to make a constitutional challenge at the
In reaching this conclusion, we decline to make a determination as to whether
Social Security ALJs are “Officers of the United States” subject to the Appointments
Clause.
3
13
administrative level.”); Britt v. Berryhill, 2018 WL 628211, at *2 (W.D.N.C. Nov. 30,
2018) (denying motion to remand because claimant failed to raise the Appointments
Clause issue during the administrative proceedings); Hughes v. Berryhill, 2018 WL
3239835, at *2 n.2 (C.D. Cal. July 2, 2018) (“To the extent Lucia applies to Social
Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his
administrative proceedings.”); Davidson v. Comm’r of Soc. Sec., 2018 WL 4680327, at
*2 (M.D. Ten.. Sept. 28, 2018) (“Because Plaintiff did not raise her as applied
constitutional challenge at the administrative level or argue that she had good cause
for her failure to do so, Plaintiff has waived her challenge to the appointment of her
Administrative Law Judge).
Conceding this fact, Lopez nevertheless argues she failed to raise such a
challenge at the administrative level because it would have been impossible for her
to do so. Id. Specifically, Lopez argues that the Commissioner’s decision became final
on December 18, 2017, but that the Supreme Court did not issue the Lucia decision
until June 21, 2018 – almost six months post-denial. Id. Due to the timing of the
Lucia decision, Lopez argues she should “be excused for not raising an Appointments
Clause claim during the administrative proceedings, [as] doing so would have been a
futile waste of time.” Id. at 19.
The facts presented by the Ryder and Lucia are fatal to this argument. In
Ryder, the petitioner – a member of the United States Coast Guard – challenged his
conviction by court martial. Ryder, 515 U.S. at 179. He appealed the conviction to the
Coast Guard’s Court of Military Review, raising an Appointments Clause challenge
14
to the composition of the issuing court. Id. at 179. After the Court of Military Review
rejected his Appointments Clause challenge and largely affirmed his conviction,
Ryder appealed to the United States Court of Military Appeals, which agreed that
two of the three judges on the Court of Military Review panel had been appointed in
violation of the Appointments Clause. The administrative appeals court nevertheless
affirmed Ryder's conviction, ruling the actions of these judges were de facto valid. Id.
at 179-80. The Supreme Court reversed, finding that the lower court erred when it
accorded “de facto validity to the actions of the civilian judges of the Court Guard
Court of Military Review.” Id. at 188. In doing so, the Court took note that “petitioner
challenged the composition of the Coast Guard Court of Military Review while his
case was pending before that court on direct review” and “raised his objection to the
judges’ titles before those very judges and prior to their action on his case.” Thus, in
Ryder – which pre-dated Lucia by more than twenty years – the petitioner challenged
the appointment of the military officers in the administrative proceedings, just as
Plaintiff was free to do here.
Likewise, in Lucia, the Court held that the petitioner had raised a “timely”
challenge to the appointment of the ALJ who heard his case because he first raised
the issue during the administrative proceedings that took place before the SEC.
Lucia, 138 S. Ct. at 2055. Lucia then re-asserted the claim to both the federal
appellate court and the Supreme Court on appeal. Id. Thus, the petitioners in Ryder
and Lucia both raised their Appointments Clause challenges at the administrative
level, before the very “entities utilizing the deficiently appointed official or officials.”
15
Abington v. Berryhill, 2018 WL 6571208, at *2 (S.D. Ala. Dec. 13, 2018). The impact
of the timing of the Lucia decision was not the determining factor in both of those
cases, so Plaintiff’s argument must be rejected here.
If Plaintiff truly wished to raise an Appointments Clause challenge, Lucia and
Ryder require her to have done so either during the proceedings before ALJ Dent, or
to the Appeals’ Council after the ALJ issued his decision. She did neither, and as
such, her request for remand on this basis is denied.
B.
Dr. Mowerman’s Opinions
Lopez also challenges the weight the ALJ gave to opinions provided by her
treating psychiatrist, Dr. Samuel Mowerman. [D.E. 22, pp. 7-14]. Plaintiff argues
that those opinions should have been given “controlling” weight, as the law requires,
because Mowerman’s opinions “are fully supported by the Plaintiff’s medical records,
which [document] that the Plaintiff’s psychiatric condition is very unstable.” Id., p. 8.
Once again, we disagree.
A treating physician’s testimony and opinions must be given “substantial to
considerable weight” unless “good cause is shown to the contrary.” Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (quotation omitted). “Good
cause” exists if the ALJ finds: (1) the treating physician’s opinion was not bolstered
by the evidence; (2) the evidence supports a contrary finding; or (3) the treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records. Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004); see also Edwards
v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good cause” existed
16
to give little weight to treater’s opinion because it was contradicted by other notes
found in the physician’s own medical records).
Here, substantial evidence supports the ALJ’s decision to afford Dr.
Mowerman’s opinions “little” weight. ALJ Dent conducted a thorough examination of
the medical records submitted from Dr. Mowerman’s office, a large majority of which
undercut Plaintiff’s claims of a disabling mental condition. With regard to Plaintiff’s
early treatment with Dr. Mowerman, the ALJ noted that “global assessment of
functioning (GAF) scores were in the 60s and 70s – indicating slight to mild
impairments – and there were few references to clinically significant mental status
examination signs/findings.” [R. at 44]. ALJ Dent was also troubled by a lack of
“follow-up records that correlate with the alleged onset date of disability.” Id. In light
of this information, coupled with records from Dr. Mowerman that failed to show
Plaintiff suffering from memory loss or attention deficit, the ALJ found that “the
medical evidence [did] not support the claimant’s allegations of disabling symptoms”
at the time she allegedly began suffering from her disability. Id.
ALJ Dent’s analysis did not stop there, as he undertook an extensive
examination of the full medical picture painted by Dr. Mowerman’s own records. The
ALJ discussed Plaintiff’s fluctuating condition, which convinced him “the claimant
has severe mental impairments.” [R. at 45]. But “the dearth of recorded deficits in
memory, attention and/or concentration” raised questions as to Dr. Mowerman’s
claims about Plaintiff’s alleged debilitating condition and the extreme limitations
that purportedly occurred as a result. The ALJ also targeted Dr. Mowerman’s opinion,
17
made on January 14, 2015, that Plaintiff had suffered from “one or two episodes of
decompensation…lasting at least two weeks,” finding that “no evidence of a
[decompensation] episode” could be found anywhere in the doctor’s own medical
records.
Moving to treatment that took place in 2016, the ALJ’s analysis involved a
discussion of various records from Mowerman that indicated Lopez showed signs of
only mild symptomology, or that otherwise indicated she felt “fine.” Id. Most notably,
the ALJ found that on many occasions during their treatment, Dr. Mowerman
declared Plaintiff’s activities of daily living as being “not difficult at all,” which
directly undermined Dr. Mowerman’s findings extreme limitations and marked
difficulties in 2016. Id. at 46 (“Incredibly, Dr. Mowerman nonetheless opined in
December 2016 that the claimant had “extreme” limitations[.] He offered no narrative
analysis explaining why such limitations were appropriate, likely because there are
none, as well as the fact the degree of limitations noted are so significant they strain
the bounds of credulity.”); see also Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir.
1985) (ALJ was justified in affording “little” weight to treating physician who “merely
checked boxes on a form without explaining how he reached his conclusions.”).
Faced with such a record, the ALJ determined that Dr. Mowerman’s opinions
were inconsistent with the doctor’s treatment notes. See R. at 47 (“The Administrative
Law Judge has not ignored the claimant’s reports and allegations, including her
testimony. Yet again though, the claimant has not shown these to be consistent with
the medical evidence and, in particular, the treatment notes from Dr. Mowerman.”).
18
This provided legal support for his determination that those opinions were entitled
to little weight, and the substantial evidence provides more than ample support for
the decision to do so. As such, the ALJ did not commit error that would require
remand.
Plaintiff’s argument that the ALJ violated Social Security Ruling 16-3p is
likewise unavailing. As an initial matter, Plaintiff’s reliance on such a ruling may be
misplaced here, as the Ruling deals with “subjective symptom evaluation,” not
whether or not medical opinions contained in the record should be given controlling
weight. See SSR 16-3p, 2016 WL 1020935 (Mar. 16, 2016); see also Wills v. Comm’r of
Soc. Sec. Admin., 2019 WL 1207938, at *4 (M.D. Ala. Mar. 14, 2019) (discussing SSR
16-3p in the context of “credibility issues”).
Nevertheless, even if SSR 16-3p involved an ALJ’s treatment of a medical
source’s opinion, we would nevertheless deny the Motion. The Ruling requires the
Commissioner to evaluate an individual’s symptoms considering all the evidence in
the record; but there is no requirement that the ALJ refer to every piece of evidence,
so long as the opinion utilizes enough analysis to satisfy a reviewing court that the
ALJ gave all of the relevant evidence before him its due regard. Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir. 1981). ALJ Dent clearly did so here, as evidenced by his
thorough analysis of the records pertaining to Dr. Mowerman’s treatment with
Plaintiff before, during and after her alleged onset date. In light of this analysis,
Lopez “must do more than point to evidence in the record that supports her position”
that her condition is disabling. Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 604
19
(11th Cir. 2017). Instead, she “must show the absence of substantial evidence
supporting the ALJ’s conclusion.” Id.; see also Black v. Apfel, 143 F.3d 383, 386 (11th
Cir. 1998) (“An ALJ’s failure to cite specific evidence does not indicate that such
evidence was not considered[.]”). She has failed to do so here.
For these reasons, we find no error in the ALJ’s decision not to give controlling
weight to Dr. Mowerman’s opinion, and will not remand the matter to the
Commissioner based on this argument.
C.
The Step Three Determination
In her third argument, Plaintiff states the ALJ committed error at step three
when he determined that Lopez did not suffer from a “listed impairment.” A listed
impairment is one that is considered severe enough to prevent a person from doing
“any gainful activity, regardless of his or her age, education, or work experience.” 20
C.F.R. § 404.1525(a). If a claimant’s impairment “meets or equals one of the listed
impairments, the claimant is conclusively presumed to be disabled.” Bowen v.
Yuckert, 482 U.S. 137, 141 (1987); see also 20 C.F.R. § 404.1520(a)(4)(iii), (d).
To meet Listing 12.04 for “depressive, bipolar and related disorders,” a
claimant must have (A) a qualifying diagnosis and either (B) extreme or marked
limitation of two mental functioning categories or (C) two years’ history of a “serious
and persistent” mental disorder and both treatment, therapy, or a highly structured
setting and marginal adjustment. See 20 C.F.R., Part 404, Subpt. P, App. 1, § 12.04.
Although the ALJ found that Plaintiff did, indeed, have a qualifying diagnosis, he
also determined that Lopez could not satisfy the Paragraph B and C criteria.
20
First, the ALJ found that Plaintiff could not satisfy Paragraph B because she
only suffered “moderate” – not “marked” – limitations in all mental functioning
categories, which included her ability to understand, remember or apply information,
interact with others, concentrate, persist or maintain pace, and adapt and manage
herself on a daily basis. [R. at 41-42]. The substantial evidence supports this
determination because – as we discussed above – the ALJ conducted a complete
examination of the medical records supporting Lopez’s claims and found that the
debilitating conditions she described were not supportable with the record evidence.
We likewise find the substantial evidence supports the ALJ’s determination as to the
Paragraph C criteria, as the ALJ noted that the record did not contain enough
evidence to find Lopez suffered “marginal adjustments” despite her long treatment
history related to her mental condition. See generally R. at 47 (“No reasonable mind
could accept such a [significant] assessment when the mental status examination
signs/findings routinely have shown only modest results.”).
Once again, Plaintiff’s sole argument in support of this claim involves her
citation to a group of medical records prepared by Dr. Mowerman that she argues
definitively establishes her qualification as suffering from a “listed” impairment.
[D.E. 22 at 5-7]. But those records were rightly given “little” weight by the ALJ
because of the inconsistencies between Dr. Mowerman’s opinions as to the alleged
disabling condition and the fairly modest symptoms described in the doctor’s
treatment notes, including those showing Plaintiff having no issues with activities of
daily living. Thus, the only evidence set forth by Lopez to challenge the finding at
21
step three come from a single doctor whose opinions were rightfully afforded little
weight, and this cannot satisfy her burden in showing her impairments meet or equal
one of the listings. Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986).
We also reject Plaintiff’s claim that the ALJ’s “boilerplate” statement as to
Lopez’s ability to meet the Paragraph C criteria requires remand. In the Eleventh
Circuit, an ALJ’s finding that a claimant’s impairments do not meet or equal a listing
“may be implied from the ALJ’s decision.” James v. Comm’r, Soc. Sec. Admin., 657 F.
App’x 835, 838 (11th Cir. 2016); Hutchinson v. Bowen, 787 F.3d 1461, 1463 (11th Cir.
1986) (“We thus consider it clear that the ALJ, in reaching the fourth and fifth steps
of the disability analysis, implicitly found that appellant did not meet any of
the Appendix 1 impairments.”). Contrary to Plaintiff’s argument, the law does not
require the ALJ to provide a thorough explanation as to why or how he determined
that Lopez did not meet the Paragraph C criteria when it is made implicit in his
subsequent analysis at Steps Four and Five. See Hutchinson, 787 F.3d at 1463
(“While Appendix 1 must be considered in making a disability determination, it is not
required that the Secretary mechanically recite the evidence leading to her
determination.”).
For these reasons, we reject Plaintiff’s arguments with regard to any alleged
failure to properly evaluate Lopez’s condition at Step Three. See Tuberville ex rel.
Rowell v. Astrue, 316 F. App’x 891, 893 (11th Cir. 2009) (“We conclude that – though
the ALJ did not explicitly discuss why Rowell did not actually meet Listing 112.05 –
substantial record evidence supports that Rowell's condition did not actually or
22
functionally meet Listing 112.05 and, therefore, supports the ALJ's ultimate
conclusion that Rowell was not disabled.”).
D.
Plaintiff’s Residual Functional Capacity
In her last argument, Plaintiff contends that the ALJ’s RFC analysis: (1) is not
supported by the substantial evidence; (2) failed to comply with Social Security
Ruling 98-6p; and (2) wrongly ignored certain testimony elicited from the VE upon
cross examination from Lopez’s attorney. Each argument fails.
The regulations define residual functional capacity as “the most [a claimant]
can do despite [his or her] limitations.” 20 C.F.R. § 1545(a)(1). To determine a
claimant’s RFC, an ALJ must make an assessment based on all of the relevant
evidence of record as to what a claimant can do in a work setting despite any physical
or mental limitation caused by the claimant’s impairments and related symptoms. 20
C.F.R. §§ 404.1545(a)(1), 416.945(a). The ALJ must consider the medical opinions in
conjunction with all of the other evidence of record, and must also take into account
all of the medically determinable impairments, including those not deemed “severe,”
and the total limited effects of each. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(2); Jamison
v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (the “ALJ must consider the applicant’s
medical condition as a whole.”).
Plaintiff’s legal challenges to the ALJ’s RFC analysis are unavailing. 4 Lopez
A large portion of her argument focuses on Plaintiff’s contention that the
records of Dr. Mowerman were not considered when the ALJ made his RFC
determination. [D.E. 22, p. 15-16]. This is not the case; the ALJ considered Dr.
Mowerman’s records, found them inconsistent and contradictory to other evidence in
the record, and chose to give them little weight. As discussed above, the substantial
4
23
first contends that the RFC determination is not supported by substantial evidence
because the ALJ made a “vague” finding that Plaintiff could work in a low-stress job,
which does not comply with SSR 96-8p. That Ruling states:
The RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts
(e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations). In assessing RFC, the adjudicator must discuss the
individual’s ability to perform sustained work activities in an ordinary
work setting on a regular and continuing basis (i.e., 8 hours a day, for 5
days a week, or an equivalent work schedule), and describe the
maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The
adjudicator must also explain how any material inconsistencies or
ambiguities in the evidence in the case record were considered and
resolved.
…
The RFC assessment must include a discussion of why reported
symptom-related functional limitations and restrictions can or cannot
reasonably be accepted as consistent with the medical and other
evidence.
…
The RFC assessment must always consider and address medical source
opinions. If the RFC assessment conflicts with an opinion from a medical
source, the adjudicator must explain why the opinion was not adopted.
SSR 96-8p, 1996 WL 374184, at *7.
The ALJ’s RFC determination complies with SSR 96-8p. In making his
determination, the ALJ “considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical
evidence supports this decision, and the ALJ’s analysis regarding the doctor’s note
does not constitute legal error.
24
evidence and other evidence.” [R. at 43]. Contrary to Plaintiff’s argument, the finding
is not vague, as the decision makes clear the ALJ considered the Plaintiff’s entire
medical history, in addition to the credibility of her subjective complaints. [R. at 4447]. The ALJ also addressed the medical source opinions from Dr. Mowerman and his
reasons for giving that opinion “little” weight, explaining that it was inconsistent with
other evidence of record, including the doctor’s own treatment notes. Id. He then
discussed the effects of Plaintiff’s impairments on her ability to work on a sustained
basis. Id. at 48-50. This suffices under the law. See Carson v. Comm’r of Soc. Sec., 440
F. App’x 863, 864 (11th Cir. 2011) (“Following [SSR 96-8p’s] rubric, the ALJ fully
discussed and evaluated the medical evidence, [the claimant’s] testimony, and the
effect each impairment has on [the claimant’s] daily activities.”); Freeman v.
Barnhart, 220 F. App’x 957, 960 (11th Cir. 2007) (“[T]he ALJ complied with SSR 968p by considering [the claimant’s] functional limitations and restrictions and, only
after he found none, proceeding to express her residual functional limitations in
terms of exertional levels.”).
We also disagree that the ALJ committed reversible error when, at the hearing,
he stated that the terms “marked” and “extreme” were not vocationally relevant with
regard to the VE testimony. [D.E. 22, p. 19]. The use of the terms “marked” and
“extreme” – and the disagreement over whether those terms are vocationally relevant
– is nothing more than semantics. The ALJ posed a complete hypothetical question
to the vocational expert, which included all of the limitations resulting from Plaintiff’s
condition that the ALJ found credible. [R. at 49-50; 92-94]. Additionally, even though
25
the ALJ found that Dr. Mowerman’s “marked” and “extreme” limitations to be
vocationally irrelevant, he nevertheless rejected the doctor’s contentions as
inconsistent with the evidence of record.
The ALJ is “not required to include findings in the hypothetical that he rejected
as unsupported,” and so there was no requirement he needed to address the
additional contentions raised by Plaintiff’s counsel on cross-examination of the VE.
Brown v. Astrue, 298 F. App’x 851, 853 (11th Cir. 2008) (quoting Crawford, 363 F.3d
at 1161). As such, and despite Plaintiff’s arguments to the contrary, the ALJ did not
err in failing to adopt the vocational expert’s testimony in response to a hypothetical
that contained limitations the ALJ found to be unsupported by the record evidence.
See Crawford, 363 F.3d at 1161; Wright v. Comm’r of Soc. Sec., 327 F. App’x 135, 137
(11th Cir. 2009) (“[I]f additional impairments asserted by a claimant are not
supported by substantial evidence, they do not need to be included in a
hypothetical.”); Delia v. Comm’r of Soc. Sec., 433 F. App’x 885, 888 (11th Cir. 2011)
(“Having properly rejected the responses to Delia's hypothetical, the ALJ was free to
accept the VE's responses to his own hypothetical question, fulfilling the burden
placed on the Commissioner at step five to show that there are jobs in the national
economy that [claimant] can perform. Accordingly, we affirm.”).
IV.
CONCLUSION
For the foregoing reasons, we hereby ORDER that Plaintiff’s Motion for
Summary Judgment be DENIED, the Commissioner’s Motion for Summary
Judgment be GRANTED, and the Administrative Law Judge’s decision be
26
AFFIRMED. Judgment is now entered in favor of the Commissioner, and the action
is CLOSED.
DONE AND SUBMITTED in Chambers at Miami, Florida, this 29th day of
March, 2019.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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