Simmons v. Berryhill

Filing 16

ORDER and Opinion Affirming the decision of the Commissioner. Signed by Magistrate Judge Linda T. Walker on 9/27/19. (rlb) Modified on 9/30/2019 to edit text (rlb).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ELDER S.,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.
1:18-CV-00753-LTW

ORDER AND OPINION ON AN APPEAL FROM A
SOCIAL SECURITY DISABILITY ACTION1
On May 14, 2014, Plaintiff protectively filed an application for Supplemental
security income under the Social Security Act, alleging he became disabled on
December 1, 2005. (Tr. 15). Plaintiff brings this action pursuant to 42 U.S.C. § 405(g)
to obtain judicial review of the final decision of the Commissioner of the Social Security
Administration (“the Commissioner”) denying Plaintiff’s claims.
After Plaintiff’s application was denied initially on August 27, 2014, and on
reconsideration on February 4, 2015, Plaintiff appealed the denial to an Administrative
Law Judge (“ALJ”), who denied Plaintiff’s claims on April 4, 2017, finding Plaintiff
was not disabled. (Tr. 12, 15-26, 88, 102). Plaintiff appealed the ALJ’s decision to the

1

The parties have consented to the exercise of jurisdiction by the undersigned
pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (See Mar. 30, 2018, Docket
Entry). Therefore, this Order constitutes a Final Order of the Court.

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Appeals Council, which denied Plaintiff’s request for review on January 24, 2018. (Tr.
1-6). Plaintiff then appealed the decision to this Court. (Doc. 3). This case is now
before the undersigned upon the administrative record and the parties’ pleadings and
briefs, and is ripe for review pursuant to 42 U.S.C. § 405(g).
For the reasons set forth below, it is ORDERED that the decision of the
Commissioner be AFFIRMED.
I.

STANDARD FOR DETERMINING DISABILITY
An individual is considered to be disabled for purposes of disability benefits if he

or she is “unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 1382c(a)(3)(A); see also 42 U.S.C. § 423(d)(1)(A). The
impairment or impairments must result from anatomical, psychological, or physiological
abnormalities which are demonstrable by medically accepted clinical or laboratory
diagnostic techniques and must be of such severity that the claimant is not only unable
to do his or her previous work but cannot, considering age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy. 42 U.S.C. § 1382c(a)(3)(B)-(G); see also 42 U.S.C. § 423(d)(2)-(3).
The burden of proof in a social security disability case is divided between the
claimant and the Commissioner. The claimant bears the initial burden of establishing
the existence of a “disability” by demonstrating that he or she is unable to perform his
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or her former type of work. Once the claimant has met this burden, the burden shifts to
the Commissioner to show that, considering claimant’s age, education, work experience,
and impairment, there are some other types of jobs that exist in the national economy
that the claimant can perform. The overall burden, however, rests upon the claimant to
prove that he is unable to engage in any substantial gainful activity that exists in the
national economy. Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
As summarized below, a five-step sequential analysis must be used when
evaluating a disability claim.
(1)

The Commissioner must determine whether the applicant is currently
working; if so, the claim is denied.

(2)

The Commissioner must determine whether the claimed impairment is
severe; that is, whether the impairment or combination of impairments
significantly limits the individual’s physical or mental ability to do basic
work activities; if not, the claim is denied.

(3)

The Commissioner must determine whether the impairment equals or
exceeds in severity certain impairments described in the impairment
listings in the regulations; if it does, the claimant is automatically entitled
to disability benefits.

(4)

The Commissioner must determine whether the applicant has sufficient
residual functional capacity to perform past work; if so, the claim is denied.

(5)

The Commissioner must determine, on the basis of claimant’s age,
education, work experience, and residual functional capacity, whether the
applicant can perform any other gainful and substantial work within the
economy; if so, the claim is denied.

See 20 C.F.R. §§ 416.920-416.976.

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II.

FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE ALJ
The ALJ made the following findings of fact and conclusions of law:
(1)

The claimant has not engaged in substantial gainful activity since May 14,
2014, the application date (20 C.F.R. §§ 416.971, et seq.).

(2)

The claimant has the following severe impairments: cannabis use disorder;
schizoaffective disorder, depressive type; and anxiety (20 C.F.R. §§
416.920(c).

(3)

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. pt. 404, subpt. P, app. 1 (20 C.F.R. §§ 416.920(d), 416.925,
and 416.926).

(4)

The claimant has the residual functional capacity to perform a full range of
work at all exertional levels but with the following non-exertional
limitations: The claimant is able to understand, remember and carry out
simple instructions. He is able to make simple work-related decisions. He
is able to maintain concentration for periods of two hours at a time in an
eight-hour workday. He is able to ask simple questions and able to work in
a nonpublic area. His interaction with the general public, coworkers and
supervisors should be brief, superficial and occasional, but no more than
one third of the workday. He would work better with things rather than
people and no teamwork. Any interpersonal interaction should be
incidental to the work being performed. He is able to sustain routine work
without special supervision. He is able to adapt to occasional changes in
the work processes and environment, and he is able to be aware of normal
hazards and take appropriate precaution. He is able to travel to unfamiliar
places. Due to his medical conditions and symptoms, he would be off task
at unpredictable times up to 4% of the work period and he would be absent
one day every forty-five days.

(5)

The claimant has no past relevant work (20 C.F.R. §§ 416.965).

(6)

The claimant was born on November 23, 1971, and forty-two years old,
which is defined as a younger individual age eighteen to forty-nine, on the
date the application was filed (20 C.F.R. § 416.963).

(7)

The claimant has at least a high school education, and is able to
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communicate in English (20 C.F.R. § 416.964).
(8)

Transferability of job skills is not an issue because the claimant does not
have past relevant work (20 C.F.R. § 416.968).

(9)

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 C.F.R. §§ 416.969 and
416.969(a)).

(10) The claimant has not been under a disability, as defined in the Social
Security Act, since May 14, 2014, the date the application was filed (20
C.F.R. §§ 416.920(g).
(Tr. 21-30).
III.

CLAIMS OF ERROR
Plaintiff alleges the decision of the Commissioner is in error for the reasons set

forth below.
A.

B.

The ALJ erred when she rejected Plaintiff’s complaints of symptoms based
on his demeanor during the hearing because she failed to consider the times
during the hearing that he exhibited symptoms consistent with his
complaints.

C.

The ALJ erred when she relied upon Plaintiff’s daily activities to reject Dr.
Snook’s opinion because Plaintiff’s demeanor was not inconsistent with
Dr. Snook’s opinion.

D.
IV.

The ALJ erred when she considered the evidence from View Point Health
as an acceptable medical source and relied upon it to reject the opinion of
Dr. Snook, an examining consultant.

The ALJ erred when she failed to consider whether Plaintiff met listing
12.03 (applicable to schizophrenia spectrum and other psychotic disorders).

SCOPE OF JUDICIAL REVIEW
The scope of judicial review of the Commissioner’s denial of social security
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benefits is limited. The court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. The only function of the court is
to determine whether there is substantial evidence in the record to support the findings
and decision of the Commissioner and whether proper legal standards were applied in
the fact-finding process. The Commissioner’s findings are conclusive if supported by
substantial evidence and proper legal standards were applied. Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987); Hillsman v. Bowen, 804
F.2d 1179, 1180 (11th Cir. 1986); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983).
Substantial evidence is more than a scintilla, but less than a preponderance. Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth, 703 F.2d
at 1239. “In determining whether substantial evidence exists, we must view the record
as a whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
In contrast, our review of the ALJ’s application of legal principles is plenary. Walker,
826 F.2d at 999. The decision reached by the Commissioner must be affirmed if it is
supported by substantial evidence-even if the evidence preponderates against the
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Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59
(11th Cir. 2004) (per curiam).
V.

BACKGROUND FACTS
On April 23, 2014, Plaintiff filed applications for a period of disability and

disability insurance benefits, alleging disability due to major depressive disorder,
schizoaffective disorder, anxiety, insomnia, and mood swings. (Tr. 46, 151, 172).
Plaintiff alleges that due to his mental impairments, he has trouble with his memory,
talking, completing tasks, concentration, understanding, following instructions, and
getting along with others. (Tr. 223).
Plaintiff has been treated for his mental health problems starting in July 2014. Dr.
John Moseri of Newport Integrated Behavioral Healthcare saw Plaintiff concerning
Plaintiff’s complaints of depression symptoms as well as paranoia and delusions. (Tr.
269). Dr. Moseri indicated in his notes that Plaintiff reported psychotic symptoms that
appear to be chronically present; his behavior was described as disorganized, minimally
communicative, and inattentive; his affect was described as inappropriate to the
circumstances and he appeared flat, glum, and sad looking; he had episodes of
inappropriate anger; and there were indications that he has been hallucinating. (Tr. 26970). Dr. Moseri also noted, however, that Plaintiff’s speech was normal; his language
skills were intact; his associations were intact and logical; there were no apparent signs
of hallucinations, delusions, bizarre behaviors or other indicators of psychotic process;
his thinking was logical and his thought content appeared appropriate; his short and long
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term memory was intact; he had the ability to abstract and to do arithmetic calculations;
he was fully oriented; and his vocabulary and fund of knowledge indicate cognitive
functioning in the normal range. (Tr. 270-71). Dr. Moseri determined Plaintiff’s global
assessment of functioning score was sixty-five, indicating some mild symptoms. (Tr.
271). See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 32, 34 (Text Revision 4th ed. 2000) (indicating some mild symptoms such as
depressed mood and mild insomnia or some difficulty in social, occupational, or school
functioning, but generally functioning pretty well and has some meaningful
interpersonal relationships).
On August 27, 2014, psychological consultant Dr. Valerie Besses conducted a
mental status examination, but could not perform testing due to Plaintiff’s difficulty
tolerating and cooperating with the testing process. (Tr. 276, 280). Plaintiff also was
fidgety; he appeared suspicious, agitated and distressed; his thought content appeared
to indicate current paranoid psychosis and was characterized by irrational ideas and
frequent derailment while talking; he appeared to react to internal stimuli and shook his
head and mumbled to himself throughout the interview; and although he produced
understandable speech at times, his voice was soft and hard to follow. (Tr. 277-78, 280).
Plaintiff indicated that the room had hidden cameras and microphones and that the
government was recording his actions. (Tr. 277-79). Plaintiff also complained that he
experienced visual, auditory, and tactile hallucinations at night. (Id.). Dr. Besses noted
Plaintiff’s presentation was dramatic, his extreme beliefs about being recorded and
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poisoned appeared exaggerated, and questioned his credibility. (Tr. 280). Dr. Besses
diagnosed Plaintiff with unspecified mood disorder, unspecified trauma and stressor
related disorder, and malingering, but found that a psychotic disorder is not indicated.
(Tr. 281). Dr. Besses concluded Plaintiff was not impaired in his ability to understand,
carry out, and remember complex or detailed instructions; he was moderately limited for
sustaining concentration, persistence and pace for timely completion of tasks due to
subjective distress and chronic irritability; his ability to interact appropriately with
coworkers, supervisors, and the public was moderately limited due to distrust of others
and social avoidance; and he was moderately limited in his ability to adhere to a typical
work schedule or adapt to the stressors of a typical work environment.
At the behest of Plaintiff’s counsel, a second psychological consultant, Dr. Steven
Snook conducted a psychological status exam on October 5, 2016. (Tr. 68, 315-22). Dr.
Snook found Plaintiff appeared hostile, agitated, had difficulty communicating and
recollecting information and was minimally compliant with the examination. (Tr. 319).
Plaintiff was oriented to person and place, his grooming and hygiene were disheveled,
his speech was rambling, and he became non-communicative. (Tr. 322). Dr. Snook also
noted that although Plaintiff denied suicidal ideation, he had persistent auditory
hallucinations and paranoia and he often becomes frustrated. (Tr. 322). Dr. Snook
further observed that while Plaintiff appeared anxious, Plaintiff did not describe
symptoms of panic attacks, phobias, or obsessive compulsive disorder. (Tr. 322).
Plaintiff declined to repeat four of four words immediately, he had difficulty remaining
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focused, and his insight and judgment were impaired. (Tr. 322). Dr. Snook observed
Plaintiff’s speech was rambling; he became noncommunicative; he had difficulty
recollecting information; he was only minimally compliant with the examination; his
thought processes were deranged and disorganized; and he presented as agitated,
anxious, hostile, and paranoid. (Tr. 317-22).
Dr. Snook diagnosed Plaintiff with schizophrenia, multiple episodes, currently in
acute episode with hallucinations and cannabis use disorder, mild. (Tr. 322). Dr. Snook
opined that Plaintiff would have no problem understanding, remembering, and carrying
out simple instructions or making judgments on simple, work-related decisions, but
would have a marked problem doing the same for complex instructions and complex
work-related decisions. (Tr. 316). Dr. Snook concluded that Plaintiff would have
difficulty sustaining concentration, persistence, and pace to permit timely completion
of tasks due to his agitation and poor focus. (Tr. 322). Dr. Snook opined that Plaintiff
would have an extreme problem interacting appropriately with the public and a marked
problem interacting with supervisors and coworkers due to agitation, paranoia, hostility,
poor emotional containment, and disorganized thought processes. (Tr. 317-22). Dr.
Snook also found Plaintiff would have a marked problem responding appropriately to
usual work situations and changes in a routine work setting. (Tr. 317). The remainder
of the medical evidence has been summarized in the body of the decision of the ALJ and
will not be repeated here except as necessary to address the issues presented.

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VI.

ANALYSIS OF CLAIMS OF ERROR
A.

The ALJ Properly Considered Dr. Snook’s Opinion

Plaintiff argues the ALJ erred when she considered Plaintiff’s mental health
treatment provider, View Point Health,2 as an acceptable medical source and relied upon
evidence from View Point to reject the opinion of Dr. Snook, an examining consultant.
The Commissioner contends that the ALJ properly found the conclusions of Dr. Snook
were at odds with Plaintiff’s mental status examinations at View Point, Plaintiff’s
activities of daily living, and the ALJ’s observations of Plaintiff’s demeanor during the
hearing. Additionally, the Commissioner contends that even if the ALJ erroneously
referred to View Point as a treating source, Plaintiff was not prejudiced by the
misstatement because the ALJ did not assign controlling weight to View Point’s records,
as would be allowable for a treating physician. The Commissioner further points out
the ALJ was required to consider View Point’s records even if View Point was not a
treating physician.
1.

The ALJ’s Evaluation of Dr. Snook’s Opinion

Although the ALJ afforded some weight to the consultative opinion of Dr. Snook,
the ALJ rejected Dr. Snook’s opinion that Plaintiff’s agitation and poor focus would
cause him difficulty sustaining concentration, pace and persistence to permit the
completion of assigned tasks. The ALJ noted that Dr. Snook’s opinion was a one-time
2

The parties frequently refer to View Point Health as “Viewpoint.” Because
the medical records reflect that the name is View Point Health, this Court will refer
to it as “View Point” going forward.
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examination, and compared Dr. Snook’s opinion to records from View Point. In the
ALJ’s view, the records from View Point tended to show Plaintiff had a greater degree
of mental health functioning. (Tr. 23, 24). The ALJ pointed out that View Point’s
records reflect that Plaintiff was well-groomed, his eye contact was appropriate, his
behavior was calm, his attitude was cooperative, his speech was clear, his mood was
euthymic, his affect was full, thought processes were logical and within normal limits,
and he remained fully oriented with normal thought processes and without delusions.
(Tr. 23). The ALJ referred to Plaintiff’s medical records at View Point as being mental
status examinations by Plaintiff’s treating physicians. (Tr. 24). The ALJ also pointed
out that during the hearing, Plaintiff was attentive to questioning and was able to sustain
conversation, to sustain his train of thought, and to answer questions with meaningful
responses without confusion. (Tr. 22). Plaintiff was able to testify regarding his
educational level, living arrangements, driving patterns, applications for jobs he applied
for since his alleged onset date, his work at a car wash, and his ability to perform
household chores. (Tr. 22).
The ALJ also rejected Dr. Snook’s opinion of Plaintiff’s extreme limitations with
interacting with the public and his marked limitation interacting with co-workers and
supervisors on the grounds that Dr. Snook’s conclusion was inconsistent with the
Plaintiff’s activities of daily living. (Tr. 23). The ALJ pointed out that Plaintiff shares
a residence with other boarders in a boarding house, and that there were no reported
difficulties with Plaintiff living in a boarding house; that Plaintiff reported that he gets
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along with family and authority figures, that he goes out to dinner with his sister; that
he can wash cars and use the money to buy beer and thus can shop and interact, and can
socialize with people in the neighborhood when smoking marijuana.
The ALJ also found Plaintiff’s sister’s reports to Dr. Snook that Plaintiff suffered
from paranoia, isolation and auditory hallucinations were inconsistent with the overall
“mental status examinations by the claimant’s treating physicians at Viewpoint.” (Tr.
24 (explaining that “as for reports of paranoia, isolation and auditory hallucinations,
these reports were made to the CE by the claimant’s sister and are inconsistent with the
overall mental status examinations by the claimant’s treating physicians at Viewpoint”
which indicated that Plaintiff “had no perceptual disturbances, hallucinations and the
claimant adamantly denied active ideations and symptoms of psychosis”)). The ALJ
also credited the state agency non-examining medical consultant opinions because their
opinions were not inconsistent with the medical evidence as a whole. (Tr. 24). Finally,
the ALJ found Dr. Snook’s report occurred during a period in which Plaintiff was not
taking his medication and was drinking six packs of beer every day, and smoking
marijuana. (Tr. 24).
2.

The ALJ Incorrectly Referred to the Mental Health Professionals at
View Point as Treating Physicians, But the Error Was Harmless

Plaintiff first argues that the ALJ improperly elevated the status of the opinions
from the professionals at View Point Health to that of a treating physician and relied on
that elevated status to reject the opinion of Dr. Snook. Although Plaintiff was treated
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for mental health issues at View Point Health, Plaintiff is correct that the care providers
from View Point Health cannot be considered treating physicians and were not
acceptable medical sources. (Tr. 290-315). Generally, the opinions of treating
physicians are given controlling weight unless good cause is shown because treating
physicians are “most able to provide a detailed, longitudinal picture of the claimant’s
medical impairments.” 20 C.F.R. § 416.927(d); see also Reynolds-Buckley v. Comm’r
of Soc. Sec., 457 F. App’x 862, 864 (11th Cir. 2012). However, not every provider a
claimant encounters qualifies as a treating source.

Pursuant to 20 C.F.R. §

416.927(a)(2):
Treating source means your own acceptable medical source who provides
you, or has provided you, with medical treatment or evaluation and who has,
or has had, an ongoing treatment relationship with you. Generally, [the
Social Security Administration] will consider that you have an ongoing
treatment relationship with an acceptable medical source when the medical
evidence establishes that you see, or have seen, the source with a frequency
consistent with accepted medical practice for the type of treatment and/or
evaluation required for your medical condition(s). We may consider an
acceptable medical source who has treated or evaluated you only a few times
or only after long intervals (e.g., twice a year) to be your treating source if
the nature and frequency of the treatment or evaluation is typical for your
condition(s). We will not consider an acceptable medical source to be your
treating source if your relationship with the source is not based on your
medical need for treatment or evaluation, but solely on your need to obtain
a report in support of your claim for disability. In such a case, we will
consider the acceptable medical source to be a nontreating source.
(Id.) Thus, to qualify as a treating source, the medical provider must be an acceptable
medical source, such as a physician, and the medical source must have an ongoing
treatment relationship with the claimant. Reynolds-Buckley, 457 F. App’x at 864;
Nyberg v. Comm’r of Soc. Sec., 179 F. App’x 589, 591 (11th Cir. 2006); 20 C.F.R. §§
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404.1502(a), 416.902(a). A claimant generally has an ongoing treatment relationship
with a physician when medical evidence establishes that the claimant sees or has seen
the physician with a frequency consistent with accepted medical practice for the type of
treatment and/or evaluation required for the claimant’s medical condition(s). Nyberg,
179 F. App’x at 591, citing 20 C.F.R. §§ 404.1502, 416.902.
Here, there is no indication that anyone generating the medical records at View
Point were acceptable medical sources. An acceptable medical source means a medical
source who is a licensed physician, licensed psychologist, a licensed optometrist,
licensed podiatrist, and a qualified speech-language pathologist.3

20 C.F.R. §§

404.1502, 416.902. The medical records from View Point Health were authored by Mia
Malika Wolfrey, a Licensed Master of Social Work, and Oyenike Rashidat Sanni (an
Advanced Practice Registered Nurse). (Tr. 304, 311, 314). Nurses and social workers
have not traditionally been considered acceptable medical sources. Everett v. Soc. Sec.
Admin., Comm’r, No. 18-13697, 2019 WL 2522201, at *2 (11th Cir. June 19, 2019).
Furthermore, Sanni and Wolfrey both only treated Plaintiff on one occasion. Because
Sanni and Wolfrey were not acceptable medical sources and only treated Plaintiff on one
occasion each, they are not entitled to any special deference as a treating physician.
Everett, 2019 WL 2522201, at *2; Medina v. Soc. Sec. Admin., 636 F. App’x 490, 493
3

Title 20, Section 416.902 of the Code of Federal Regulations was amended in
2017 to reflect that Licensed Advanced Practice Registered Nurses, such as Oyenike
Rashidat Sanni, who treated Plaintiff at View Point, are acceptable medical sources.
The regulation makes clear, however, that the amendment only applies to claims filed
on or after March 27, 2017.
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(11th Cir. 2016) (explaining that nurses could not be considered a treating source
because they are not listed in the regulations as acceptable medical sources and that
doctor could not be considered a treatment source because he only examined the plaintiff
on one occasion and did not have an ongoing treatment relationship with her); Lawton
v. Comm’r of Soc. Sec., 431 F. App’x 830, 833-34 (11th Cir. 2011).
That being said, 20 C.F.R. § 416.927(f)(1) directs the Commissioner to use the
same factors used to evaluate the opinions of “acceptable medical sources” when
evaluating the opinions of “other sources.” 20 C.F.R. § 416.927(f)(1). It further
provides that “[d]epending on the particular facts in a case, and after applying the factors
for weighing opinion evidence, an opinion from a medical source who is not an
acceptable medical source or from a nonmedical source may outweigh the medical
opinion of an acceptable medical source, including the medical opinion of a treating
source.” 20 C.F.R. § 416.927(f)(1). For example, in some cases it is appropriate to give
more weight to the opinion of a medical source who is not an acceptable medical source
if she provided better supporting evidence and explanation for the opinion and “the
opinion is more consistent with the evidence as a whole.” Id. Accordingly, it was
proper for the ALJ to consider the treating records from View Point.
Plaintiff contends, however, that the ALJ improperly elevated the status of the
View Point treatment providers by diminishing the weight of Dr. Snook’s opinion due
to Dr. Snook’s inconsistency with View Point, which the ALJ believed to be Plaintiff’s
treating physician. In this case, the ALJ did not assign the opinion of View Point
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controlling weight. Nor did the ALJ appear to accord special deference to View Point
providers as treatment physicians when rejecting the opinion of Dr. Snook. While the
ALJ clearly relied upon the treatment records from View Point, the ALJ also considered
the entire record when rejecting the opinion of Dr. Snook. The records from View Point
were just one source among many sources the ALJ relied upon to reach her conclusions.
The ALJ also credited the state agency non-examining medical consultants, who each
found Plaintiff had no more than moderate limitations due to his mental health
conditions. Additionally, the ALJ also concluded that Dr. Snook’s opinion was
inconsistent with Plaintiff’s demeanor during the hearing as well as Plaintiff’s activities
of daily living. Specifically, the ALJ cited Plaintiff’s ability to shop, drive a car, use
pubic transportation, live in a boarding house with house mates, socialize with others,
go out to dinner with his sister, maintain a relationship with his sister, his three brothers,
and authority figures, and Plaintiff’s self-report to View Point just before Dr. Snook’s
evaluation that he was actively seeking employment as indicative of a higher degree of
mental functioning. (Tr. 22-24). The ALJ also found Dr. Snook’s opinion inconsistent
with Plaintiff’s generally conservative treatment for mental health issues, and found that
the medical evidence as a whole was more consistent with the notion that Plaintiff had
more moderate impairments. (Tr. 18, 21, 24).
The ALJ observed that the medical evidence failed to corroborate the degree of
debility alleged by Plaintiff and observed that notes from Newport Integrated Healthcare
indicated that the Plaintiff reported being unemployed because he lacked motivation to
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drive to look for jobs because of legal restraints related to having been incarcerated, that
his past psychiatric history was entirely negative in that he had no psychiatric treatment,
no hospitalizations, and no suicidal ideations, no history of depression or anxiety, and
no prescriptions for psychotropic medications. (Tr. 21). The ALJ also observed that
Plaintiff’s mental status examination from Newport in 2014 reflected that Plaintiff had
some slowed speech as a result of depression, but overall, his affect was appropriate,
associations were intact, there was no psychosis, his memory was intact, and his thinking
and cognitive functioning was normal. (Tr. 21). The ALJ further observed that Plaintiff
was assigned a Global Assessment of Functioning score of 65, indicating only mild
symptoms. (Tr. 21). Under these circumstances, it is apparent that the ALJ did not
improperly elevate the status of View Point’s records.
3.

The ALJ’s Assessment of Plaintiff’s Impairments at Step Two Was
Harmless Error

Plaintiff further contends that the ALJ’s reliance on View Point as the source of
Plaintiff’s severe impairments at Step two of the sequential evaluation process also
violates the regulations and agency policy because View Point was not an acceptable
medical source. In support, Plaintiff notes that the ALJ found that Plaintiff suffered
from schizoaffective disorder at Step two, and points out that only the professionals
from View Point offered the diagnosis of schizoaffective disorder, depressive type.
Plaintiff is correct that opinions from individuals who are not considered acceptable
medical sources cannot establish the existence of an impairment. McGriff v. Comm’r,

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Soc. Sec. Admin., 654 F. App’x 469, 472 (11th Cir. 2016); Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1160 (11th Cir. 2004). Plaintiff also correctly notes that because
the healthcare providers at View Point were not acceptable medical sources, they could
not establish the existence of an impairment at Step two.
Even assuming that View Point was the only provider to diagnose schizoaffective
disorder, however, Plaintiff does not explain why inclusion of schizoaffective disorder
at Step two was harmful to him. “Nothing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe.” Heatly v. Comm’r of Soc.
Sec., 382 F. App’x 823, 825 (11th Cir. 2010); Jackson ex rel. K.J. v. Astrue, 734 F.
Supp. 2d 1343, 1361 (N.D. Ga. 2010) (harmless error analysis at step two of child’s
disability case). As a result, a failure to list an impairment at step two is harmless error
when: (1) the ALJ found the plaintiff suffered from other severe impairments; (2) the
ALJ continued with the sequential evaluation process; and (3) the ALJ considered all
of the plaintiff’s impairments at other steps of the evaluation process. See Heatly, 382
F. App’x. at 825 & n. 3; see also White v. Astrue, No. 1:08-CV-827, 2010 WL
1729113, at *5 (M.D. Ala. Apr. 28, 2010); Zellner v. Astrue, No. 3:08-CV-1205, 2010
WL 1258137, at *4 (M.D. Fla. Mar. 29, 2010); Newton v. Astrue, No. 1:06-CV-1542AJB, 2008 WL 915923, at *10 (N.D. Ga. Apr. 1, 2008) (noting that courts have found
step two error to be harmless “as long as the ALJ found at least one severe impairment
and continued the sequential analysis and ultimately addressed all of the claimant’s
impairments in determining her residual functional capacity”) (quoting Swartz v.
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Barnhart, 188 F. App’x 361, 368 (6th Cir. 2006)). At a minimum, the ALJ properly
found one severe impairment at step two because she found that Plaintiff had cannabis
use disorder, an opinion shared by Dr. Snook and the professionals at View Point
Health. (Tr. 302, 310, 322). Additionally, the ALJ continued the sequential analysis
and provided a thorough analysis of Plaintiff’s impairments and limitations at step four
of the sequential analysis. The fact that the ALJ may have identified additional severe
impairments at Step two which were unsupported by an acceptable medical source has
not been shown to harm Plaintiff.
4.

Dr. Snook and View Point’s Records Were Not Fully Consistent

Plaintiff next argues the ALJ should not have relied upon View Point’s records
to discount Dr. Snook’s opinion because Dr. Snook’s and View Point’s records were
consistent. In support, Plaintiff points out that View Point’s records indicate that on his
first visit, he had the following symptoms: audio and visual hallucinations, anhedonia,
low energy, insomnia with sleep disturbance and nightmares, poor motivation, poor
concentration, decreased appetite, worthlessness, isolation and avoidance, irritability,
daily anxiety, and passive suicidal ideation.

(Tr. 291, 307-08).

While these

observations do suggest that Plaintiff suffered mental health symptoms at the time, they
are not fully consistent with Snook’s conclusions. As the ALJ observed, although View
Point records indicated that during one visit Plaintiff was inattentive, his short term
memory was impaired, and he was depressed, they also reflect that Plaintiff remained
fully oriented with normal thought processes and without delusions. (Tr. 23, 307).
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Indeed, View Point’s records reflect that Plaintiff is oriented to person and place, that
his associations are logical and connected, his thought content was within normal limits,
he was able to name objects, his speech was at a normal rate and rhythm, and he denied
hallucinations. (Tr. 306, 308). While Dr. Snook’s and View Point’s records appeared
to agree that Plaintiff was irritable, agitated, and uncooperative, only Dr. Snook
described Plaintiff’s presentation as notable for his hostility, paranoia, and poor
emotional containment. (Tr. 307-08, 322). Only Dr. Snook described Plaintiff’s speech
as rambling and at times non-communicative, noted that Plaintiff’s thought processes
were deranged, noted that Plaintiff was only minimally compliant with the examination,
and noted that Plaintiff had persistent auditory hallucinations and paranoia. (Tr. 319,
321-22). Furthermore, Dr. Snook’s observations were fully inconsistent with records
from Plaintiff’s other visit with View Point Health, which was only a few months before
Dr. Snook’s psychological status examination and a few days before the visit at View
Point discussed above. (Tr. 291, 315). On July 8, 2016, the social worker who saw
Plaintiff indicated that Plaintiff’s behavior, attitude, speech, mood, and affect were
within normal limits and Plaintiff was cooperative. (Tr. 301-02). Plaintiff’s thought
content, memory, and cognition were within normal limits, his thought processes were
logical, his language was clear and within normal limits, his memory was intact, and he
had no reported perceptual disturbances. (Tr. 301-02).
Plaintiff next questions the ALJ’s interpretation of the evidence presented by
Nurse Sanni at View Point that Plaintiff retained most of his functionality. Plaintiff
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contends that because Nurse Sanni indicated that Plaintiff had schizoaffective disorder,
depressive type and mild cannabis use disorder, the ALJ’s conclusion that Plaintiff
retained most of his mental functionality equates to ALJ arbitrarily substituting her own
hunch and intuition for the diagnosis of a medical professional. The ALJ did not
substitute her own hunch, however, and instead, adopted Nurse Sanni’s findings that
Plaintiff suffered from schizoaffective disorder, depressive type and mild cannabis use
disorder. (Tr. 17). Plaintiff presents no medical evidence that a person cannot both have
schizoaffective disorder, depressive type, and mild cannabis use disorder, and also retain
most of his mental functioning.
Rather than reject the diagnosis, the ALJ explains in her opinion that Plaintiff
displayed various clinical signs consistent with the conclusion that Plaintiff retained
most of his functionality, noting that Plaintiff remained fully oriented with normal
thought processes and without delusion. (Tr. 23). Plaintiff’s remaining mental
functioning is a decision reserved to the commissioner, and it is proper for the ALJ to
make conclusions as to Plaintiff’s remaining mental functioning. Buley v. Comm’r of
Soc. Sec., 739 F. App’x 563, 569 (11th Cir. 2018) (“Although an ALJ will consider a
treating source’s opinion on the claimant’s residual functional capacity, the final
responsibility for deciding this issue is reserved to the Commissioner.”); 20 C.F.R. §
416.927(d)(2) (explaining that the final responsibility for determining a claimant’s
residual functional capacity is reserved to the Commissioner).

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5.

Plaintiff Properly Relied Upon the Entire Record When Discounting
Dr. Snook’s Opinion

Plaintiff further insists that the ALJ cherry-picked only the findings that supported
her view without considering the negative findings from View Point. Plaintiff argues
the ALJ did not discuss social worker Wolfrey’s notes that Plaintiff’s symptoms
included audio and visual hallucinations, anhedonia, low energy, insomnia with sleep
disturbance and nightmares, poor motivation, poor concentration, decreased appetite,
worthlessness, isolation and avoidance, irritability, daily anxiety and passive suicidal
ideation. (Tr. 291). While Plaintiff is correct that Wolfrey’s notes show Plaintiff
reported these symptoms, there is nothing in the record that tends to show that Wolfrey
endorsed these symptoms. (Tr. 301). Indeed, Wolfrey indicated that Plaintiff was calm
and cooperative; that his speech, language, affect, and attitude were within normal
limits; that his thought content was within normal limits with no paranoia, delusions, or
perceptual disturbances; and that his memory and cognition was within normal limits.
(Tr. 301-02). Additionally, the ALJ credited the opinions by the state agency nonexamining medical consultants, who evaluated Plaintiff and his sister’s reports of these
types of symptoms, yet still found Plaintiff’s mental impairment caused no more than
moderate limits on Plaintiff’s ability to understand and remember detailed instructions,
maintain attention and concentration for extended periods, interact with the general
public, coworkers, and supervisors, and respond to changes in the work setting. (Tr. 84,
97-99).

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Furthermore, nothing in the regulations requires ALJs to apply an all or nothing
approach when assessing medical opinions. Hand v. Soc. Sec. Admin., Comm’r, No. ,
2019 WL 4447206, at *4 (11th Cir. Sept. 17, 2019); Padgett v. Comm’r of Soc. Sec., No.
6:17-CV-1198-Orl-DCI, 2019 WL 1102193, at *3 (M.D. Fla. Mar. 8, 2019). Nor do the
regulations require the ALJ to specifically refer to every piece of evidence. Hennes v.
Comm’r of Soc. Sec., 130 F. App’x 343, 348 n.11 (11th Cir. 2005); Padgett, 2019 WL
1102193, at *3 (citing Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)). While
the ALJ is obligated to consider all relevant medical evidence and may not cherry-pick
facts to support a finding of non-disability while ignoring evidence that points to a
disability finding, the ALJ need only provide enough reasoning in the decision for a
reviewing court to conclude that the ALJ considered the plaintiff’s medical condition
as a whole. Packer v. Comm’r, Soc. Sec. Admin., 542 F. App’x 890, 891-92 (11th Cir.
2013). Here, the ALJ clearly considered the entire medical record as a whole.
6.

The ALJ Appropriately Credited the Observations of View Point’s
Mental Health Professionals and Adequately Explained the Impact
of View Point’s Records on Her Decision

Plaintiff next faults the ALJ’s opinion on the grounds that the ALJ did not define
the weight she assigned the opinions of Plaintiff’s medical providers. When evaluating
medical evidence, the ALJ must “state with particularity the weight [s]he gave the
different medical opinions and the reasons therefore.” Hines v. Comm’r of Soc. Sec.,
585 F. App’x 758, 765 (11th Cir. 2014) (citing Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981)). This rule only applies to medical opinions, which are defined as
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“statements from acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and prognosis, what
you can still do despite impairment(s), and your physical or mental restrictions. 20
C.F.R. § 416.927(a)(1) (emphasis added). As discussed above, however, View Point’s
records did not come from acceptable medical sources.
For opinions from nonmedical sources and medical sources who are not
acceptable medical sources, the ALJ “generally should explain the weight given to
opinions from these sources or otherwise ensure that the discussion of the evidence in
the determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.” 20 C.F.R. § 416.927(f)(1). While the ALJ did not assign a particular weight to
the mental status examinations by View Point, the discussion of View Point’s records
throughout the ALJ’s decision make it clear that the ALJ credited View Point’s findings.
At several points, the ALJ rejects Dr. Snook’s findings, in part, on the grounds of the
records from View Point’s mental status examinations. For instance, the ALJ observed
that although Dr. Snook found Plaintiff would likely have difficulty sustaining
concentration, persistence, and pace due to Plaintiff’s agitation and poor focus, View
Point noted on one visit that Plaintiff’s behavior was calm, his attitude was cooperative,
his speech was clear, and his thought processes were logical, and his thought content
was within normal limits. (Tr. 23). The ALJ further acknowledged that View Point
found Plaintiff was inattentive, his short-term memory was impaired, and he displayed
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a depressed mood, the ALJ further credited View Point’s findings that Plaintiff was fully
oriented, with normal thought processes, and without delusions. (Tr. 23). With respect
to the weight given to View Point’s records, it is apparent from a review of the entire
decision that the ALJ gave them considerable weight because she found them consistent
with Plaintiff’s activities of daily living, his demeanor at the hearing, as well as other
evidence in the record and relied upon it constantly to reject Dr. Snook’s opinion.
Although the ALJ did not assign a weight to the medical evidence generated by
the professionals at Newport Integrated Behavioral Healthcare (“Newport”) or discuss
this evidence at length in the opinion, the failure to assign such evidence weight was
harmless because Newport’s records suggest a higher degree of mental functioning. The
ALJ’s failure to articulate the weight given a treating physician’s opinion which does
not directly contradict the ALJ’s ultimate findings is considered harmless error.
Denomme v. Comm’r, Soc. Sec. Admin., 518 F. App’x 875, 877-79 (11th Cir. 2013);
Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005). In this case, records from
Newport, while noting Plaintiff’s glum mood, inattentiveness, and minimal
communication, also noted that Plaintiff’s speech was normal, his language skills were
intact, his associations were intact and logical, he had no signs of hallucinations,
delusions or bizarre behavior, his thinking was logical, his though content appeared
appropriate, his long and short term memory was intact, he could abstract and do
arithmetic calculations, he was fully oriented, he was cooperative, and he had a Global
Assessment of Functioning score of sixty-five. (Tr. 271).
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B.

The ALJ Properly Considered Plaintiff’s Daily Activities When
Rejecting Dr. Snook’s Opinion

Plaintiff argues his daily activities do not provide a basis for rejecting Dr. Snook’s
opinion about his limitations in interacting with coworkers, supervisors, and the general
public because the ALJ omitted to consider (1) Plaintiff’s inability to get along with
others at the boarding house where he stays, maintain friendships, and his belief that
people are listening to him and are against him; (2) his inability to trust anyone other
than his sister, and his claims that if he tried to live alone, he would be lonely; (3) his
reliance on his sister as his caretaker and his lack of experience living independently,
maintaining a bank account, and remembering appointments; and (4) the fact that he has
a lot of “stuff going on his mind” and spends his days trying to clear up thoughts in his
head. The ALJ’s opinion, however, shows that the ALJ considered Plaintiff’s abilities
despite these limitations and based her decision on consideration of all of the evidence
in the record, and concluded that Plaintiff was capable of a higher degree of interacting
with the general public.
It is readily apparent from reviewing the ALJ’s decision that the ALJ considered
all of Plaintiff’s mental health symptoms and resulting limitations, but decided, based
on all of the evidence, that Plaintiff was not as seriously limited as Dr. Snook believed
him to be. The ALJ observed that Plaintiff testified that he lived in a boarding house
with other boarders, that he did not like the boarders coming and going all of the time,
nevertheless, there were no reported difficulties with Plaintiff living in the boarding

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house. (Tr. 23). The ALJ pointed out that Plaintiff remains in the boarding house,
despite the other boarders. (Tr. 23). Furthermore, while the ALJ acknowledged that
Plaintiff was socially isolated, does not know his neighbors, and interacts primarily with
his sister, the ALJ also pointed out that Plaintiff is able to go out to dinner with her (in
public), he gets along with his family members, he is able to interact with others while
shopping for food and beer with no reported problems, and he socializes with different
people in his neighborhood for the purpose of smoking marijuana. (Tr. 18, 23, 55).
Despite Plaintiff’s contention that the ALJ did not consider his lack of
independence from his sister and his sister’s role as a caretaker, the ALJ’s decision
reveals that the ALJ did consider Plaintiff’s sister’s role as a caretaker. The ALJ
acknowledged that Plaintiff’s sister prompts him about grooming and hygiene, assists
him with chores, assists him with transportation, schedules his doctor’s appointments,
and allows him to live in her boarding house. (Tr. 18, 20). The ALJ also observed,
however, that Plaintiff reported he is able to complete tasks such as washing cars, he
shops in stores with no reported problems, he drives a pickup truck two days a week to
get food and to obtain a carwash job (meaning he can read traffic signs, avoid routine
road hazards and appreciate on-coming and same directional traffic), and he could
independently use public transportation with no problems. (Tr. 23-24, 49, 54, 222).
Although the ALJ did not specifically reference Plaintiff’s statement during the
hearing that Plaintiff has a lot of “stuff going on his mind” and spends his days trying
to clear up thoughts in his head, the ALJ thoroughly addressed Dr. Snook’s findings
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about Plaintiff’s agitation and poor focus, as well as reports of Plaintiff’s paranoia and
hallucinations. The ALJ observed that Plaintiff’s mental health providers have not
admitted him for inpatient care and have indicated that he had no perceptual
disturbances or hallucinations and symptoms of psychosis, his current provider has only
encouraged him to start group therapy, he has not had any suicidal ideations and has not
taken any psychotropic medications, his providers have reported his thought processes
as clear, and he is able to complete tasks like washing the interior and exterior of cars,
drive cars, and independently utilize public transportation. (Tr. 18, 24). While
Plaintiff’s argument that he is more limited may be a permissible view of the evidence,
so too is the ALJ’s viewpoint, and in light of the medical evidence finding Plaintiff less
impaired, Plaintiff’s demeanor during the hearings, and Plaintiff’s daily activities, the
ALJ had substantial evidence to reject the more severe limitations in Dr. Snook’s
opinion. (Tr. 75-86, 89-101, 269-72, 280-281, 301-02).
Plaintiff contends that his activities of daily living are not particularly probative
because they at most show that he is capable of sporadic and intermittent activities of
short duration. Participation in everyday activities of short duration, such as housework
or fishing, does not disqualify an claimant from disability. Lewis v. Callahan, 125 F.3d
1436, 1441 (11th Cir. 1997). In this case, however, the ALJ addresses daily activities
that reflect Plaintiff’s ability to interact on a long-term basis over time, such as the fact
that Plaintiff lives in a boarding house with others, yet there are no reported problems
and that Plaintiff has maintained long-term relationships with his sister and his brothers.
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(Tr. 23-24).
Additionally, the ALJ did not merely rely upon Plaintiff’s limited daily activities,
the ALJ also relied upon Plaintiff’s medical records, Plaintiff’s demeanor at the hearing,
Plaintiff’s treatment records, the state agency reviewing medical consultant opinions,
Plaintiff’s and his sister’s statements about his abilities, and the examining consultants’
opinions to ascertain the whole picture of Plaintiff’s ability. Babeau v. Berryhill, No.
7:18-CV-1369-CLS, 2019 WL 2435867, at *2 (N.D. Ala. June 11, 2019) (explaining
that while it would not have been appropriate for the ALJ to rely upon the activities of
daily living alone, the ALJ’s assessment of Plaintiff’s ability also included his medical
records and was therefore supported by substantial evidence). In this case, the state
agency non-examining medical consultants also reviewed Plaintiff’s treatment records,
statements from Plaintiff and his sister, and the mental status examination conducted by
Dr. Besses, the examining consultant. The state agency non-examining medical
consultants found Plaintiff was no more than moderately limited in any of the areas of
mental functioning. (Tr. 82-87, 97-99). The state agency non-examining medical
consultants also relied upon the assessment of Dr. Besses, who found Plaintiff (1) was
not impaired in his ability to understand, carry out and remember complex or detailed
instructions; (2) moderately limited for sustaining concentration, persistence and pace
for timely completion of assigned tasks due to subjective distress and chronic irritability;
(3) moderately limited in his ability to interact appropriately with coworkers,
supervisors, and the public; (4) moderately limited in his ability to adhere to a typical
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work schedule; and (5) moderately limited in his ability to adapt to the stressors of a
typical work environment.
Plaintiff argues the ALJ’s reliance on state agency medical consultants is not
persuasive because they did not have the benefit of later-submitted evidence, including
the third party statement from Plaintiff’s sister, the records from View Point, or Dr.
Snook’s opinions. It is true that the state agency medical consultants did not have a
copy of Plaintiff’s sister’s letter dated July 20, 2016, in which Plaintiff’s sister indicated
that Plaintiff has difficulty communicating with people, suffers from violent agitation,
anxiety attacks, delusions, audio hallucinations, has difficulty concentrating, and has
difficulty remembering and carrying out basic instructions. (Tr. 255). The state agency
consultants did, however, have the benefit of third-party function reports Plaintiff’s
sister prepared. (Tr. 78, 93). Therein, Plaintiff’s sister reported that he has trouble
adjusting to strangers and changes in his routine, that he often becomes irritable and
sometimes paranoid, that he is uncomfortable with authority and paranoid around
strangers, that he has to have reminders to take medicine and to groom himself, that it
is not safe for him to perform yard work, and that he has trouble with memory,
concentration, understanding, talking, completing tasks, and getting along with others.
(Tr. 195, 198, 200). The state agency consultants also had the benefit of Dr. Besses’
report which included information from an interview of Plaintiff’s sister. (Tr. 278).
Plaintiff’s sister reported to Dr. Besses that Plaintiff had recently been isolating himself
from family members, and he had been having episodes where he would get agitated, he
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would be uncooperative, he wanted to be alone, and he acted suspicious and
confrontational. (Tr. 278). Plaintiff’s sister also described examples of Plaintiff’s
paranoid behavior at home and times in which Plaintiff had been complaining of
“hearing family members who are no longer alive or who are not present.” (Tr. 279).
Plaintiff, himself, described hallucinations he claimed to have as well as his belief that
people and/or the government were listening in him with microphones in the ground.
(Tr. 279). Thus, Plaintiff’s sister’s letter is consistent with her former function reports
and interview with Dr. Besses, which were available to the state agency consultants.
Thus, the fact that the letter from Plaintiff’s sister was not available in the record for the
state agency consultants is immaterial because it was cumulative.
Similarly, although the non-examining consultants did not have the benefit of
View Point’s records, they had the benefit of records from Newport Integrated
Behavioral Health (“Newport”) and Dr. Besses. There is no indication that Plaintiff’s
condition significantly changed when View Point began treating Plaintiff. On review
of these records, Plaintiff complained of the same types of symptoms to Dr. John Moseri
at Newport. (Tr. 269). Plaintiff reported worsening depression symptoms as well as
psychotic symptoms, hallucinations, paranoia, and delusions. (Tr. 269). Dr. Moseri
noted that Plaintiff’s behavior was described as disorganized, episodes of inappropriate
anger were described, delusional ideas had been expressed and reported by others,
memory difficulties were present, and that he was inattentive and irritable. (Tr. 269,
271). Also, as discussed above, the same types of symptoms were reported to Dr.
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Besses. (Tr. 276-81).
While it is also true that the non-examining medical consultants did not have the
benefit of Dr. Snook’s report, Dr. Snook’s report just appears to be a different
interpretation on the same symptoms and evidence as available to Dr. Besses and the
non-examining medical consultants. There is no indication that the behavior and
reported symptoms evaluated by Dr. Snook were significantly different from the
behavior Plaintiff exhibited during his visit to Dr. Besses. Plaintiff presented to Dr.
Snook as hostile, agitated, and non communicative. (Compare Tr. 320, 322 with Tr.
276-81). Similarly, Dr. Besses opined that Plaintiff displayed a predominately agitated
and fearful affect, was distracted and off-task, presented as suspicious, indicated that
Plaintiff’s thought process was characterized by frequent derailment while talking,
Plaintiff’s voice was soft and hard to follow, Plaintiff was uncooperative, and Dr. Besses
suspected that Plaintiff was malingering. (Tr. 276-81). There is no indication that
Plaintiff’s condition significantly changed for the worse upon seeing Dr. Snook. Thus,
the fact that the non-examining medical consultants did have the benefit of Dr. Snook’s
report is not a basis for rejecting their opinion.
C.

The ALJ’s Consideration of Plaintiff’s Demeanor at the Hearing

Plaintiff further contends that his demeanor at the hearing were not inconsistent
with his symptoms, that the ALJ did not explain how his purported capabilities at the
hearing contradict his alleged symptoms, and that the ALJ did not state which symptoms
and functional limitations were found to be unsupported. In response, the Commissioner
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points out that the ALJ only assigned Plaintiff’s demeanor at the hearing “slight weight,”
that his demeanor was only a factor among many the ALJ considered, and that Plaintiff’s
demeanor during the hearing, when considered in light of the contemporaneous medical
evidence, did not support the degree of severity, intensity, and persistence of Plaintiff’s
symptoms.
In this case, Plaintiff alleges that he has trouble sleeping, that his family has to
remind him to do things, that he has problems getting along with his family, friends and
neighbors and needs to be alone, and that he has trouble with talking, completing tasks,
concentration, understanding, and following instructions. (Tr. 219-223). Likewise,
Plaintiff’s sister stated that he gets irritable and paranoid, has trouble adjusting to
strangers and changes in his routine, he has trouble following instructions, that he needs
verbal direction and constant supervision depending on the task, and agrees that he has
difficulty with talking, memory, completing tasks, concentration, understanding,
following directions, and getting along with others. (Tr. 195-200). It is true that the
ALJ did not explicitly spell out every way in which Plaintiff’s complaints of symptoms
were less credible due to his performance at the hearing. Nevertheless, not much of an
inferential leap is required to discern that the ALJ was discussing Plaintiff’s ability to
interact with others, to maintain concentration, to remember, and to communicate. It is
apparent that when the ALJ discussed Plaintiff’s attentiveness during questioning,
ability to sustain conversation and maintain his train of thought, and answer questions
with meaningful responses without confusion, the ALJ was considering Plaintiff’s
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ability to concentrate, be attentive, remember, communicate, and interact with others
under stressful situations. (Tr. 22). Indeed, the ALJ spelled out that there was no
evidence that Plaintiff had difficulty understanding verbal communications or
expressing himself verbally. (Tr. 22). This conclusion is bolstered by the fact that the
ALJ pointed out that Plaintiff was able to testify regarding his educational level, living
arrangements, ability to drive, his applications for jobs, his work at a car wash and the
amount he was paid per car, as well as his mental health treatment and side effects of his
medications. (Tr. 22).
Plaintiff contends that his performance at the hearing was consistent with his
symptoms because the ALJ had to tell him to raise his voice and to give verbal
responses. Additionally, Plaintiff testified at some point that he did not feel too good,
requested some water, left the hearing room, and then when he returned to the room, he
gave many one-word responses to the ALJ’s questions. Finally, at one point Plaintiff
confessed that he was nervous, that he felt like he was a fish in a fish bowl and that with
all the questions, he was just ready to go, and that he felt like he was a bunch of different
pieces of broken glass and that he was trying to put it together, but it was not coming
together. While there is evidence that Plaintiff was nervous, uncomfortable, and
sometimes awkward during the hearing, it would not require severe mental health
symptoms for one to be nervous or uncomfortable during the hearing. Moreover, the
fact remains that Plaintiff was able to perform despite feeling uncomfortable, his
nervousness, and despite his impairments. The ALJ is permitted to take notice and
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consider Plaintiff’s performance at the hearing as long as she does not discredit
Plaintiff’s complaints about his symptoms solely on that basis. Macia v. Bowen, 829
F.2d 1009, 1011 (11th Cir. 1987).
Here, as noted above, the ALJ examined the entire record when rejecting
Plaintiff’s complaints of symptoms.

The ALJ considered the opinions of the

professionals who treated Plaintiff, Plaintiff’s daily activities, Dr. Snook’s opinion, and
the nonexamining state agency medical consultants. (Tr. 20-24). Furthermore, Plaintiff
does not show how his struggles at the hearing supports the notion that his mental health
capacity was more limited than that identified in the ALJ’S RFC finding. Consistent
with Plaintiff’s performance at the hearing, the RFC indicated that Plaintiff was able to
maintain concentration for periods of two hours at a time during an eight-hour work day,
was able to ask simple questions in a nonpublic area, and his interaction with the general
public, coworkers, and supervisors should be brief, superficial and occasional. (Tr. 19).
D.

Consideration of Listing 12.03

Finally, Plaintiff contends that the ALJ erred because she did not explicitly
address listing 12.03. In support, Plaintiff avers that he specifically requested that the
ALJ consider his eligibility to meeting listing 12.03 and points out that he qualifies for
the listing because he has a diagnosis of schizoaffective disorder and Dr. Snook’s
findings show that he meets each of the elements of the listing. In response, the
Commissioner contends that Plaintiff’s argument is cursory and fails to reference
specific objective medical findings showing how he satisfies the criteria of listing 12.03.
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At step three of the sequential evaluation process, the ALJ must determine
whether the claimant’s impairments meet or equal the criteria contained in the Listings
of Impairments. 20 C.F.R. § 416.924(d); 20 C.F.R., pt. 404, subpt. P, app. 1. A
claimant is conclusively presumed to be disabled if he meets or equals the level of
severity of a listed impairment. Perkins v. Comm’r, Soc. Sec. Admin., 553 F. App’x
870, 872 (11th Cir. 2014), citing Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.
1997). “In order to meet a listing, the claimant must meet all of the specified medical
criteria, and an impairment that fails to do so does not qualify no matter how severely
it meets some of the criteria.” Perkins, 553 F. App’x at 872, citing Sullivan v. Zebley,
493 U.S. 521, 530 (1990). Plaintiff bears the burden of proving his impairment meets
a listing. Perkins, 553 F. App’x at 872; Wilbon v. Comm’r Soc. Sec., 181 F. App’x 826,
828 (11th Cir. 2006), citing Wilkinson o/b/o Wilkinson v. Bowen, 847 F.2d 660, 662
(11th Cir. 1987).
In this case, the ALJ did not specifically address whether Plaintiff met listing
12.03. Although the ALJ must consider the listings, there is no requirement that the ALJ
mechanically recite the evidence leading to her ultimate determination, and a finding
that the claimant’s impairments are not contained in the listings may be implied by the
ALJ’s decision. James v. Comm’r of Soc. Sec. Admin., 657 F. App’x 835, 837 (11th
Cir. 2016) (explaining that although it was true that ALJ never explicitly discussed
whether the claimant met Listing 12.05(c), a finding that the claimant’s impairments are
not contained in a listing may be implied in the decision); Flemming v. Comm’r of the
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Soc. Sec. Admin., 635 F. App’x 673, 676 (11th Cir. 2015) (explaining that the fact that
the ALJ did not mention Listings 12.02 or 12.03 at step three does not mean the ALJ did
not consider those listings and that “in the absence of an explicit determination, [the
court] may infer from the record that the ALJ implicitly considered and found that a
claimant’s disability did not meet a listing”); Gray ex rel. Whymss v. Comm’r of Social
Sec., 454 F. App’x 748, 749-50 (11th Cir. 2011); Davenport v. Astrue, 403 F. App’x
352, 354 (11th Cir. 2010); Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986).
For instance, where the decisions shows that the ALJ considered and discussed the
plaintiff’s impairments relevant to the listing, but found that they were not as severe as
what was called for the in the listing, no reversal for consideration of the listing is
required. Flemming,635 F.app’x at 677.
In this case, although the ALJ did not directly address Listing 12.03, it is apparent
that she implicitly found that Plaintiff did not meet the listing. Listing 12.03 requires
as follows:
12.03 Schizophrenia spectrum and other psychotic disorders (see 12.00B2),
satisfied by A and B, or A and C:
A. Medical documentation of one or more of the following:
1. Delusions or hallucinations;
2. Disorganized thinking (speech); or
3. Grossly disorganized behavior or catatonia.
AND
B. Extreme limitation of one, or marked limitation of two, of the following
areas of mental functioning (see 12.00F):
1. Understand, remember, or apply information (see 12.00E1).
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2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
OR
C. Your mental disorder in this listing category is “serious and persistent;”
that is, you have a medically documented history of the existence of the
disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or
a highly structured setting(s) that is ongoing and diminishes the symptoms
and signs of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to
changes in your environment or to demands that are not already part of
your daily life (see 12.00G2c).
Listing 12.03, 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.03 (2017).
In this case, it is clear from the opinion that the ALJ did not find that Plaintiff met
the requirements of paragraph B because she did not include that Plaintiff had an
extreme or marked limitation in any of the areas of mental function. (Tr. 18).
Furthermore, the ALJ explicitly found Plaintiff did not meet the paragraph C criteria
with respect to listings 12.04 and 12.06. (Tr. 17, 19). The paragraph C criteria for
listings 12.04 and 12.06 are exactly the same as the paragraph C criteria for listing
12.03. Plaintiff does not dispute the reasoning the ALJ offered for why Plaintiff did not
meet the Paragraph C criteria. Under these circumstances, it is apparent the ALJ
implicitly found that Plaintiff did not meet listing 12.03.
CONCLUSION
For the reasons stated above, it is hereby ORDERED that the decision of the

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Commissioner be AFFIRMED.
SO ORDERED this

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day of September, 2019.

/s/LINDA T. WALKER
LINDA T. WALKER
UNITED STATES MAGISTRATE JUDGE

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