Case Information
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CA SE N 0 : 14-CV -23071-G A YLES/TUR N 0FF REG LA CA BRER A,
Plaintiff,
CAROLYN W , COLVIN ,
Acting Comm issioner,
Social Security Adm inistration,
Defendant.
/ REPORT AND RECOM M ENDATION
THIS CAUSE is before the Court upon Plaintiff Regla Cabrera's (hereinafter t'Plaintiff') Motion for Summary Judgment (ECF No. 13), Defendant Carolyn W . Colvin's (hereinafter ttDefendant'') M otion for Summary Judgment (ECF No. 18), and a Clerk's Notice of M agistrate Judge Assignment (ECF No. 3). Upon review of the M otions, the court tJ1e,1 the medical records, the applicable law, and being otherwise duly advised in the prem ises, the undersigned makes the following findings.
Procedural Background Plaintiff tiled an application for supplemental security income ($1SSl'') benefits under Title XVI of the Social Security Act (sçthe Act'') on January 21, 201 1, alleging disability commencing on January 1 1, 201 1. ( R. 199). The claim was denied initially on March 22, 201 1, and upon
The administrative record in this case is located on the Court's electronic docket (CM/ECF) at docket entry éCECF No. 7.'' Forpurposes ofthis Reportand Recom m endation, a1l references tothe adm inistrative record shall be cited as E'R. '' followed by the appropriate page number.
reconsideration on M ay 12, 201 1 . ( R. 35, 96). Following the denial of her claim, Plaintiff timely filed a written request for a hearing on M ay 24, 201 1 . ( R. 57).
During a pre-hearing conference held on M ay 7, 2012, Administrative Law Judge (iW LJ'') Thomas W . Snook advised Plaintiff of her right to representation, which she waived. ( R. 54). On September 13, 2012, Plaintiff appeared without counsel and testified before the ALJ. ( R. 52). In a decision dated Febnzary 22, 2013, the ALJ found that Plaintiff was not disabled. ( R. 46).
Thereafter, Plaintiff retained counsel, and requested review of the ALJ'S decision. ( R. 26- 27). The ALJ'S decision became the Commissioner's final decision when the Appeals Council Of the Social Security Administration denied the request for review on July 12, 2014. ( R. 1-4). The Complaint at bar challenges the ALJ'S findings. (ECF No. 1).
Factual Background Plaintiff, Regla Cabrera, is a naturalized citizen who was born in Cuba on M arch 26, 1 967. ( R. 17% 399). She was 43 years o1d on the date she applied for disability benefits. ( R. 45). She was 45 years old when the ALJ issued his decision. ( R.35-46). Plaintiff s education was limited to middle school.z ( R. 60, 76, 235).However, she is able to communicate in English. ( R. 45). Her work experience is limited to low-paying hospital housekeeping jobs from 1992 until 2001. ( R. 85, 226-227, 393, 399).
sledical Records
Pre-Application M edical History
The medical evidence dated prior to Plaintiffs alleged onset date shows that she received general m edical care and psychiatric m edication m anagem ent for a depressive disorder from Jackson M emorial Hospital (Ambulatory Services/outpatient) from January 2006 to April 2009.
2 The record is unclear as to Plaintiff's level of education. Certain portions of the record suggest that she completed the fourth grade while others suggest that she completed the seventh grade.
( R. 362-387, 431-32, 435-37, 451-74). During this time, Plaintiff's complaints included lack of motivation, anxiety, 'igood and bad days,'' irritable m ood, difficulty sleeping, tiredness, tearfulness, sadness, photophobia, left eye pain, right hand skin lesion, and abdominal pain. ( R. 362, 365, 369, 371, 373, 383, 385, 468, 471). Plaintiffs medications during this period included: Prozac, Clonazepam, Klonopin, Vistaril, and Loraxepnm. ( R. 362, 365, 367, 375). Plaintiff was also treated at Jackson's Clinic in M arch 201 1 for benign essentialhypertension, GERD, insomnia, headaches, and depression with anxiety. ( R. 403-04,429, 439-45). At the time, Plaintiff was prescribed HCTZ, Temazepam, Nexium, and Effexor. ( R. 404). Laboratory reports revealed that Plaintiff had low levels of Bilirubin and HDL, and elevated Triglycerides. ( R. 443).
Dr. M iro 's Findings
A M edical Disability Adjudicator from the Oftsce of Disability Determinations scheduled an appointment for Plaintiff to undergo a ldGeneral Clinical Evaluation with M ental Status'' examination with M ayra M . Miro, PSy.D. on February 18, 201 1.3 ( R. 393-402). Dr. M iro reviewed Plaintiff s medical records in furtherance of same. ( R. 398).At the visit, Dr, M iro observed that Plaintiff s hygiene çiwas fairs'' that she was ççtearful during the course of the evaluation,'' and that she was Sûexcessively talkative.'' Id Plaintiffs primary complaints included'. lack of sleep; dihearing voices''; dtstanding at the window (to) (check outl whether someone is standing outsidei'' headaches; and frequent forgetfulness. 1d. At the examination, Plaintiff reported a history of depression and anxiety that began after the death of her brother and mother. ( R. 399). Dr. Miro administered the W AIS-IV Digit Span subtest which revealed that Plaintiff s perform ance was Slm oderate to severely im paired for her cluonological age.'' 1d.
A m ental status exam ination of Plaintiff revealed that her psychom otor behavior was nonnal. ( R. 400). Her speech was clear, understandable, and at a normal rate, 1d. However, she
3 Dr . Miro is a licensed clinical psychologist. ( R. 398). showed excessive response delay on cognitive tasks./#. Her thought processes were logical, coherent, and goal-directed with no tlight of ideas or tangentially. 1d. She evidenced some circum stantiality but there was no evidence of psychosis. 1d. She showed lim ited capacity of verbal abstractions. 1d. Her affect was tearful and her mood was dysphoric. 1d.
During the evaluation, there was no evidence of perceptual abnormalities or responses to external stim uli', however, Plaintiff reported ishearing noises and voices.'' f#. Her sym ptom s included depressed m ood, suicidal ideations, increased anxiety, restlessness, insomnia, lack of interest, irritability, and impatience. f#. Despite having reported a loss of appetite, Plaintiff reported weight gain. 1d. She was oriented as to person, place, and time. 1d. However, her concentration was m oderately to severely im paired. 1d. There were no indications of language disturbances. 1d. Her imm ediate and remote memory were intact. f#. Her recent mem ory was normal; however her general fund of inform ation was poor. 1d. Although her abstract reasoning was fair, Plaintiff s J'udgment and insight were noted as poor. 1d. She denied thoughts of suicide or homicidal ideation. 1d.
Plaintiff reported her activities of daily living as2 independent in self care; occasional cooking; house cleaning and organization; m aking her bed; frequently checks and closes a11 her windows at her home; dtprefers to be in darkness inside her homei'' driving to the supermarket for grocery shopping; going out together with her husband and daughter;and frequently visiting her daughter or other relatives along with her husband. ( R. 401).
Based on the foregoing, Dr. M iro conducted a diagnostic impression and concluded that Plaintiff had a major depressive disorder-recurrent-severe with psychotic features. ( R. 401). Dr. Miro assigned Plaintiff a global assessment of functioning score (dçGAF'') of 55.4 Id. Based on her
4 The GAF is a loo-point scale divided into ten numerical ranges, which permits clinicians to assign a single ranged score to a person's psychological, social, and occupational functioning. Keyes-zachary v. Astrue, 695 F.3d 1 156. l 162 n. l (10th Cir.2012) (citing Am. Psychiatric Ass'n, Diagnostic d: Statistical Manual ofMental Disorders 32, 34 behavioral observations, Dr.M iro found that Plaintiff did not appear com petent for any type of employment. 1d. She also found that Plaintiff lacked the em otional and cognitive functioning capacity to carry out work-related tasks and m eet the expectations required in a work setting. f#. In this connection, Dr. M iro noted that Plaintiff is expected to show impairm ent in paying attention, following instructions and in dealing with work-related stress. 1d. Additionally, she found that Plaintiff would have difficulty interacting with the public. 1d.
State Agency RFC Assessments
On M arch 22, 201 1, Keith Bauer, Ph.D., a state agency psychological consultant, reviewed the evidence and com pleted a Psychiatric Review Technique form and a M ental Residual Functional Capacity ($1R.FC'') Assessment form. ( R. 410-426). Dr. Bauer concluded that Plaintiff s Major Depressive Disorder caused no restrictions on her daily living activities. ( R. 420). He found that she had m ild difficulties in m aintaining social ftmctioning; m oderate difficulty in m aintaining concentration, persistence, or pace; and no episodes of decom pensation of extended duration,
Dr. Bauer found that Plaintiffs understanding and memory were not significantly lim ited. ( R. 424). He likewise found that her overall sustained concentration and persistence were not significantly limited. 1d. He did note, however, that Plaintiffs ability was m oderately lim ited in the following categories: maintaining attention and concentration for extended periods; com pleting a nonual workday/workweek without interruptions from psychologically based symptoms. Id He also found m oderate lim itations as to her performing at a consistent pace without an unreasonable num ber and length of rest periods. 1d. A dditionally, Dr. Bauer found that Plaintiff was not
(Text Revision 4th ed.2000)). GAF scores of 4 1 to 50 indicate serious symptoms (suicidal ideation, severe obsessional rituals, or frequent shopliling) or any serious impainnent in social, occupational, or school functioning (having no friends or being unable to keep ajob); scores of 51 to 60 indicate moderate symptoms (tlat affect and circumstantial speech or occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (having few friends or conflicts with peers or coworkers). Id.
significantly limited in social interaction. 1d. Last, he found that she was not significantly limited in adaptation, with the only exception of being moderately limited in responding appropriately to changes in the work setting. ld.
Dr. Bauer concluded that Plaintiff was capable of the following: understanding and recalling simple to mildly com plex instructions, following and executing sim ple to m ildly complex directives, persisting at sim ple and routine tasks for a regular workday at an appropriate pace over weeks and months, relating with others in the work place, cooperating on routine tasks, accepting direction and general feedback, arranging transportation, avoiding hazards, and adapting to most changes and task demands on a sustained basis. ( R. 426).
Dr. M ascaro 's Findings
Plaintiffs treating physician is Guari Mascaro, M .D. ( R. 510). He has been treating Plaintiff, m ostly as her general practitioner,s since M ay 201 1 . 1d. During a visit, she reported being depressed and sad. Id. She also reported insomnia. 1d. She told the doctor that she had previously been treated with iipsychotropic medications because of depression and anxiety.'' ( R. 512). She also reported having tried to commit suicide with pills and that she tshad the impression that someone calls her by name.'' ( R. 510). Based on the foregoing, Dr. M ascaro concluded that Plaintiff had tsdepression and anxiety at a moderate level.'' ( R. 513). He formed the following diagnostic impressions; auditory hallucinations, anxiety, depression, insomnia, and hypertension. 1d. Dr. M ascaro prescribed Paxil, Tem azapam , HCTZ, and Abilify.1d. Dr. M ascaro placed no limitations on Plaintiff's activities and scheduled her for follow-up treatm ent in one m onth. 1d.
Dr. M ascaro examined Plaintiff at least seven (7) times from June to December of 20l l , and eleven (1 1) times from January through November 2012. ( R. 492-509). Throughout his office
splaintiff suggests, and the record retlects, that Dr. M ascaro has some background in psychiatry from Cuba. This issue, and related matters, shall be further addressed injba.
notes, Dr. M ascaro recorded that Plaintiff exhibited profound depression, sadness, energy loss, pessim istic ideations, poor emotional control, poor tolerance to frustration or stressful situations, and lack of motivation. ( R. 492-93, 495, 502-03, 505, 507. 508-09). However, during the course of his treatment, Dr. M ascaro repeatedly reported that Plaintiff responded well to medication, denied suicidal ideations or psychotic features, and had alleviated depression. ( R. 492. 494-500, 502, 504-07, 509). He also observed that çssome level of depression (wouldq always gbe) present.'' ( R. 495).
In addition to her depressive sym ptom s, Plaintiff reported right wrist pain, dizziness due to medication, artllritic pain in her left arm , otitis m edia, back pain, bilateral wrist pain, right wrist and hand pain, acid reflux aher meals, and daytime somnolence. ( R. 493-93, 496-99, 501, 503, 505- 07). Throughout her treatments with Dr. Mascaro, Plaintiff was diagnosed with auditory hallucinations, anxiety, depression, insomnia, hypertension, and GERD. ( R. 492-509). The doctor listed Plaintiff s various m edications with noted changes and discontinuations as: Paxil, Tem azepam, HCTZ, Abilify, Celebrex, Geodon, Cipro, Zoloft, N exium , Zolipidem, Naproxen. 1d.
Upon the apparent request of the State agency and the ALJ, Dr. M ascaro completed M edical Source Statement fonns6 dated M ay 1, 2012 and November 28, 2012. ( R. 483-85, 488-491, 514- 15). ln the forms, Dr. Mascaro opined that Plaintifps depression caused her moderate limitations in her ability to understand, remember, and cany out sim ple or com plex instructions and make judgments on simple or complex work-related decisions. ( R. 483). Dr. Mascaro also opined that the claim ant's depression and poor emotional control caused her m oderate lim itations in interactions with co-workers, understanding, remem bering, and carrying out sim ple or complex instructions, and making judgments on simple or complex work-related decisions. ( R. 489). In
The M edical Source Statement forms were used to evaluate Plaintiff s ability to perform mental work-related activities, ( R. 483, 489).
addition, he found that her depression caused her m arked lim itations in interacting appropriately with supervisors, and responding appropriately to usual work situations and to changes in a routine work-setting. 1d. In his view, it would also cause her extrem e lim itations in interacting appropriately with the public. f#. Last, Dr. M ascaro noted that Plaintiff had a history of psychiatric treatment since she was a child. Id
Hearing: Testimonies ofplaintff Plaintff's HusbanJ and Vocational Expert Appearing pro se, with the assistance of a Spanish intep reter, Plaintiff and her husband testified at the September 13, 2012 hearing. A vocational expert (i1VE'') also testified. ( R. 52-71), Plaintiff has not worked since 2001 . ( R. 59). She stated that her husband drives her to places, including medical appointments.She does not use the M etrorail because she is afraid of it. ( R. 60- 61). Additionally, Plaintiff testified that her housework is limited to tjust picklingj up, fixling) little things here and there, but 1 am not able to clean the house.'' ( R. 61). She does not cook because she is diafraid of the fire or the stove'' but, she is capable of taking care of her personal needs such as bathing and dressing. ( R. 62). Additionally, Plaintiff confirmed that she sees a doctor every month. ( R. 62). She is right hand dominant but has tendinitis in that hand. ( R. 63). She stated that her medications (thelp me out a 1ot.'' ( R. 64). Finally, Plaintiff testifed that she feels that she is unable to work because limany bad thoughts cross (her) mind. I already have made an attempt to commit suicide.'' 1d.
Plaintiff s husband, M ario Arturo M artin, testified that he feels that his wife is incapable of working çtdue to the way that she behaves, gand) reacts to things. . . in a mnnner that is not gappropriate behavior for) a work environment to deal with other people.''( R. 66). He added that his wife kspays very little attention to other people like she's tloating in her m ind som ew here else, absent m inded, and once in a w hile she reacts very violently to things.'' 1d. He reported that his wife has poor mem ory and forgets when she is supposed to take her medication. 1d. Last, he stated that after his wife takes her medication tçshe is now like a druggie.'' ( R. 66).
The Vocational Expert (f'VE''), Jeanine M . Salek, testified that Plaintiff was a hospital cleaner who last worked in 2001. ( R. 68). She stated that those jobs are tdunskilled and (are) medium level work'' with an SVP of 2 (DOT# 38.687-018). 1d. The ALJ posed a hypothetical where he asked if tifull weight'' were given to iiExhibit 1 1F, Dr. M ascaro's opinion,'' would she be able to Stfind some jobs.'' 1d. He then asked the VE to consider someone in Plaintiff s position who is a dkyounger individual with a less than lim ited education'' with ktno past relevant work'' and non- exertional limitations. Additionally with regards to non-exertional lim itations, this hypothetical person would understand, rem ember, and carry out sim ple instructions as well as (kmake simple work related decisions, respond appropriately to supervision respond appropriately to co- workers, respond appropriately to usual work situations,and handle changes in routine work settinglsl appropriately.'' ( R. 70). ln response to the hypothetical, the VE found that tsshe would be able to return to her previous work.'' 1d.
Sum m ary of Plaintifrs A rzum ents For Reversal By way of summ ary, Plaintiff claims that the ALJ'S decision is not supported by substantial evidence and contains errors of law. (ECF No. 13), Specifically, Plaintiff claims that the Appeals Council erred by failing to rem and this m atter to the ALJ for consideration of newly subm itted evidence. 1d. Plaintiff also claim s that the ALJ'S finding that Plaintiff s sole mental lim itation is that she is lim ited to unskilled work is not supported by the opinions of Drs. M ascaro, M iro, and Bauer. 1d. Additionally, Plaintiff contends that the ALJ failed to properly consider her subjective com plaints and as such, his credibility findings are not based on substantial evidence. 1d. Lastly, Plaintiff takes issue with the ALJ'S failure to obtain vocational expert testim ony given her claim ed non-exertional lim itations. ld. Each argument shall be addressed in turn below.
Standard of Review Judicial review of the factual findings in disability cases is lim ited to determining whether the record contains substantial evidence to support the ALJ'S findings and whether the correct legal standards were applied. 42 U.S.C. j 405(g); see also Richardson v. Perales, 402 U.S. 389, 401 (1971); Martin v. Sullivan, 894 F.2d 1520, 1529 (1 1th Cir.1990); Kelley v. Apfel, 1 85 F.3d 1 2 1 1 , 1213 (1 1th Cir. 1999); Crawford v. Comm 'r ofsoc. Sec., 363 F.3d 1 155, 1 158 (1 1th Cir. 2004). Substantial evidence is m ore than a scintilla, but less than a preponderance and is generally defined as such relevant evidence which a reasonable mind would accept as adequate to support a conclusion. f ewis v. Callahan, 125 F.3d 1553, 1560 (1 1th Cir. 1997); see also Bloodworth v, Heckler, 703 F.2d 1233, 1239 (1 1th Cir. 1983).
In detennining whether substantial evidence exists, the court must scrutinize the record in its entirety, taking into account evidence favorable, as well as unfavorable, to the Com missioner's decision. Foote v. Chater, 67 F.3d 1 1553, 1560 (1 1th Cir. 1995); see also L amb v. Bowen, 847 F.2d 698, 701 (1 1th Cir. 1988). The reviewing court must also be satisfied that the Commissioner's decision correctly applied the appropriate legal standards. See Bridges v. Bowen, 815 F.2d 622, 624 (1 1th Cir. 1987). The Court may not reweigh evidence or substitute its judgment for that of the ALJ, and even if the evidence preponderates against the Comm issioner's decision, the reviewing court m ust affirm if the decision is supported by substantial evidence. See Barnes v. Sullivan, 932 F.2d 1 356, 1358 (1 1th Cir. 1991); Baker v. Sullivan, 880 F.2d 319, 321 (1 1th Cir. 1989).
H owever, the restrictive standard set forth above applies only to tindings of fact. Brown v. Sullivan, 921 F.2d 1233, 1236 (1 1th Cir. 1991). No presumption of validity attaches to the Comm issioner's conclusions of law, which are reviewed de novo. Cornelius v. Sullivan, 936 F.2d 1 143, 1 145-46 (1 1th Cir. 1991)(d$The Commissioner's failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determ ining that the proper legal analysis has been conducted mandates reversal.''); see also Wiggins v. Schweiker, 679 F.2d 1387, 1389 (1 1th Cir. 1982); M artin, 894 F.2d at 1529.
A nalysis The Act defines tkdisability'' as the tiinability to engage in any substantial gainful activity by reason of any medically detenninable physical or mental impairment.'' 42 U.S.C. j 423 (d)(1)(A). $$An individual shall be determ ined to be under a disability only if his physical or m ental (impairmenttsl) are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work. . . .'' 1d. j 423 (d)(2)(A). The ability to do basic work activities is defined as dtthe abilities and aptitudes necessary to do mostjobs.'' 20 C.F.R. j404.1521(b).
Under the authority of the Act, the Social Security Adm inistration has established a five- step sequential evaluation process for determining whether an individual is disabled. 20 C.F.R. jj 404.1520; 416.920(a)-(9. The analysis follows each step in order. As explained in more detail below, the analysis ceases if, at a certain step, the claim ant is found, as a m atter of law, either to be disabled or not disabled.
At step one, the ALJ must determine whether the claimant is employed (i.e. engaged in substantial gainful activity ($tSGA''))7. 20 C.F.R. j 404.1 520(a)(4)(l). lf an individual engages in substantial gainful activity, then a finding of non-disability ensues thereby ending the inquiry. 20 C.F.R. j 404. 1520(b). lf the individual does not engage in such activity then the evaluation
? Substantial gainful activity is desned as work activity that is both substantial and gainful. Substantial work activity is work activity that involves doing significant physical or mental activities. 20 C.F.R. j 416.972(0. Gainful work activity is work that is usually done for pay or protit, whether or not a profit is realized. 20 C.F.R. j 4 l 6.972*).
continues to step two. In this case, the ALJ detennined that Plaintiff has not engaged in substantial gainful activity since January 21, 201 1, the application date. ( R. 37, Finding 1).
At step two, the ALJ m ust detennine whether the claimant has a medically determinable severe impairment or a combination of severe impairments. 20 C.F.R. j 404.1520(a)(4)(ii). To be considered dtsevere,'' an impairm entor com bination of im painnents must significantly lim it an individual's ability to perform basic work activities. 20 C.F.R. j 404.1520( c). If the judge does not find that the claimant suffers from a single severe impairment or a combination of impainnents, then a non-disability finding results and the case term inates. Zuni v. Astrue, No. 8-21489-C1V, 2009 W L 2929388 (S.D. Fla. Sept. 9, 2009). lf the claimant has at least one severe impairment, regardless of whether there are other severe impairm ents, the analysis proceeds to the third step. Here, the ALJ found Plaintiff had a severe im painnent, i.e., an affective disorder that causes iimore than minimal functional limitations in her ability to engage in work-related activities.'' ( R. 37. Finding 2), The ALJ did not, however, find Plaintiff s wrist pain, GERD, and hypertension to be severe impairments since they cause the Plaintiff tiless than m inimal limitations in functioning.'' /#.
At step three, the ALJ must determ ine whether the claim ant's impairm ent or com bination of impairm ents is of a severity that meets or m edically equals the criteria of an im pairm ent listed in the Code of Federal Regulations. See 20 C.F.R. j 404.1520(d), Subpart P, Appendix 1. Some impairm ents are so severe, either alone or in combination with others, that if the claim ant establishes such impairments, disability will be presumed and benefits are awarded without further inquiry. See Gibson v. Heckler, 762 F.2d 1516, 1518, n.1 (1 1th Cir. 1985); see also 20 C.F.R. j 404. 1520(d). However, if the impainnent does not meet this criterion, the ALJ determines the residual functional capacity (i$llFC'')8 of the individual based on al1 the evidence in the record. 20 C.F.R. j 404. 1520(e). Here, the ALJ found that Plaintiffs mental impairments did not meet the criteria of
S A claimant's RFC is his or her ability to do work despite his or her impairments. 20 C.F.R. j 404.1545(a)(1). any listing of impainnents, including j 12.04 of 20 C.F.R. PM 404, Subpart P, Appendix 1 ( R. 37, Finding 3). The medical evidence showed no restriction on her activities of daily living, mild difficulties in maintaining social function and moderate difticulties in m aintaining concentration, persistence or pace, with no evidence of episodes of decom pensation, each of extended duration. ( R. 37-38).
At step four, the ALJ assesses the claimant's residual functional capacity and detennines if the claimant can perfonn past relevant work. 20 C.F.R. j 404. 1520(4)(iv). The ALJ must consider all impairments, including those that are not severe. 20 C.F.R. j 404.1520(e). If the claimant is able to perform past relevant work, then disability is not established and benetits are not granted. On the other hand, if the claimant cannot perform past relevant work, then a primafacie case of disability is established, and the analysis proceeds to the final step. 20 C.F.R. j 404. 1 520(a)(4)(iv). After consideration of the entire record, the ALJ determ ined Plaintiff had the RFC to perform a full range of work at a11 exertional levels as defned in the regulations. ( R. 39, Finding 4). However, Plaintiff would have non-exertional lim itations limiting her to being able to carry out short, sim ple instructions. 1d.
In the final step, the burden of production shihs to the Com m issioner to show that claim ant is able to do other work that is available in significant numbers in the national econom y considering the claimant's RFC, age, education and work experience. 20 C.F.R. j 404.1520(a)(4)(v). lf the claim ant is able to do other work, she is not disabled. If the claim ant is not able to do other work and m eets the duration requirem ent, she is disabled. In this case, aher finding that Plaintiff had no past relevant work, ( R. 45, Finding 5), the ALJ relied on the M edical-vocational Guidelinets) (Grids) Rule 204.00 to determine that Plaintiff was capable of perfonning other work existing in significant numbers in the national economy. ( R. 45, Finding 9).
To be eligible for disability benefits, Plaintiff bears the burden of proving not only that she has medically determinable im pairm ents, but that they are so severe that they prevent her from engaging in any substantial gainful activity in the national econom y. Barnhart v. Walton, 535 U.S. 212, 222-24 (2002); see also Heckler v. Campbell, 461 U.S. 458, 460 (1983); Ellison v. Barnhart, 355 F.3d 1272, 1276 ( 1 1th Cir. 2003)C$the claimant bears the burden of proving that gshe) is disabled, and, consequently, Ishel is responsible for producing evidence in support of (herj claim.''ltintemal citation omitted).The inability to perfonn previous work relates to the type of work performed, not merely a specific prior job. See Jackson v. Bowen, 801 F.2d 1291, 1293 (1 1th Cir. 1986). After applying the above noted inquiry, and upon careful consideration of the entire record, the ALJ found that Plaintiff was not disabled. ( R. 37, 45-46, Finding 10). Plaintiff, of course, disagrees with the ALJ'S sndings. Her specific arguments for reversal, listed supra, shall be addressed below.
Newly Submitted Evidence
As noted above, Plaintifps argues that the Appeals Council comm itted error when it failed to remand this action to the ALJ for consideration of the newly submitted evidence. (ECF. No. 18). W ith few exceptions, the claim ant is allowed to present new evidence at each stage of the administrative process, lngram v. Comm 'r ofsoc.Sec., 496 F.3d 1253, 1261 (1 1th Cir. 2007); 20 C.F.R. j 404.900(b). The Appeals Council must consider new, material, and chronologically relevant evidence and must review the case if tdthe administrative law judge's action, findings, or conclusionlsj (arel contrary to the weight of the evidence currently of record.'' 1d; See j 404.970(b). H owever, even in light of new evidence, the A ppeals Council m ay deny review if the record show s no error on the part of the ALJ. See M itchell v. Comm 'r ofsoc. Sec., 771 F.3d 780, 784-85 (1 1th Cir. zol4ltaffinning where the Appeals Council accepted the claimant's new evidence f'but denied review because the additional evidence failed to establish error in the ALJ'S decision''). ln this comzection, the Eleventh Circuit has expressly held that the Appeals Council is not required to explain its reasons for denying a request for review. Id.
In this case, the Appeals Council specifically stated that it considered the additional evidence. In so doing, it prepared a list of the docum ents reviewed and attached same to its denial. ( R 1-9). The list includes, among other things, Dr. M ascaro's sworn statement, wherein he states that he practiced psychiatry for thirty (30) years in Cuba and was a professor of psychiatry at the University of Havana. ( R. 309-314). As correctly noted by Defendant, the statement does little m ore than shed light on Dr. M ascaro's background. From the record, it appears that Plaintiff sought treatment from Dr. M ascaro prim arily as a general practitioner. Even if his opinion was treated as coming from a specialist, i.e., a psychiatrist, it remains unsupported by his own clinical records. Similarly, Dr. M ascaro'sassertion that Plaintiff met the listings in j 12.04 are of no consequence. Since a finding that a claim ant meets or equals a listing is dispositive of a case, such a finding is reserved for the ALJ. Cooney v. Colvin, 4:14-cv-00059-HBB, 2015 W L 632312 (W .D. Ky. Feb. 13, 2015)
As to Dr. M iro, the Appeals Council stated that her evaluation presented itnew inform ation about a later time.g'' ( R. 2). In its view, the evidence submitted simply did not merit changing the ALJ'S decision. ( R. 2, 5, 309-14). Indeed, the additional records appear to be cumulative and related to previous treatment notes that were already considered by the ALJ. As a result, the Appeals Council comm itted no error in denying review, even in light of the newly subm itted evidence.
9It appears that the May 2013 assessment was based on a single exam that was conducted in February 20 1 1 .
Opinions ofDr. M ascaro, Dr. Miro, and Dr. Bauer
As previously m entioned, Plaintiff's second point of contention for reversal is that the opinions of Drs. M ascaro, M iro, and Bauer fail to support the ALJ'S finding that Plaintiff s sole mental limitation is that she is limited to unskilled work. (ECF. No.18). The Commissioner disagrees. (ECF. No. 13).
Generally, the weightassigned to each medical source is dependent on several factors including: whether the physician exam ined the claim ant, whether the physician treated the claim ant, the evidence presented by the physician in support his/her opinion, whether the physician's opinion is consistent with the record as a whole, and the physician's specialty. See 20 C.F.R. j 416.927 ( C ). The testim ony of a treating physician m ust be given substantial or considerable weight unless k'good cause'' is shown to the contrary. MacGregor v. Bowen, 786 F.2d 1050, 1053 (1 1th Cir, 1986); Broughton v. Heckler, 776 F.2d 960, 961-62 (1 1th Cir. 1985). Good cause exists where: (1) the treating physician's opinion was not bolstered by the evidence; (2) the evidence suppoled a contrary ûnding; 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 (1 1th Cir.2004).
ln this connection, an ALJ 'im ust specify what weight is given to a treating physician's opinion'' and iim ust clearly articulate the reasons for giving less weight to the opinion of a treating physician.''MlcGregcr, 786 F.2d at 1053. See also Winschel v. Comm 'r of Soc. Sec., 631 F.3d 1 176, 1 179 (1 1th Cir. 201 1). The failure to do so is reversible error. ld
Dr. M ascaro
Here, the A LJ provided the follow ing reasons. supported by substantial evidence, for according Ctlittle weight'' to D r. M ascaro's opinion'.
I find that Dr. M ascaro's opinion is inconsistent with his contemporaneous treatm ent notes which document that the claimant responded well to treatment and that her auditory hallucinations were resolved with medication. M oreover, Dr. M ascaro's treatment notes do not docum ent any deficits in concentration or mem ory which would warrant his assessm ent that the claim ant would have moderate difficulties in understanding, rem embering, and carrying out simple tasks. Further, Dr, M ascaro's treatm ent notes do not evidence any behavioral oddities, outbursts of tem per, etc., that would warrant his assessm ent that the claim ant would have m oderate to m arked difficulties interacting with co-workers, the public or supervisors.
( R. 44).
The ALJ was correct in according less weight to Dr. M ascaro's opinion because the doctor failed to provide objective medical evidence in support of his fndings. See 20 C.F.R. j 416.927(c)(3)($%he more a medicalsource Presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight (the agencyl will give that opinion.''); see also Crawford v. Comm 'r ofsoc. Sec. , 363 F.3d 1 155, 1 159-60 (1 1th Cir. 2004); Philllps v. Barnhart, 357 F.3d 1232, 1240-41 (1 1th Cir. 2004). W here a treating physician's findings are unsupported by objective evidence from the physician's own treatment notes, the ALJ has good cause to discount the opinion as inconsistent. See, e.g., Brown v. Comm 'r ofsoc. Sec., 442 F. App'x 507, 512 (1 1th Cir. 201 1); Barclay v. Comm 'r ofsoc. Sec. Admin., 274 F. App'x 738, 740 (1 1th Cir. 2008)(fnding good cause existed for ALJ to discredit treating physician's opinions where nothing in his treatment notes indicated that claimant was precluded from working). Consistent with the above, the undersigned finds that there is substantial evidence to support the ALJ'S decision to accord little weight to Dr. M ascaro's opinion.
Dr. M iro
Second, Plaintiff argues that the ALJ failed to properly weigh the opinion of Dr. M iro. (ECF. No. 18). Again, the ALJ provided solid reasons, supported by substantial evidence, for assessing little weight to Dr. Miro's opinion. ( R. 44). The ALJ specifically stated:
1 tsnd that her opinion is inconsistent with her psychological sndings. Dr. M iro opined that the claim ant did not have the em otional and cognitive capacity to carry out work-related tasks and meet the expectations of a work setting. However, she found that the claimant's psychomotor activity was norm al. Her speech was clear and understandable. Her thought process was logical, coherent, and goal directed. She had no Pights of ideas or tangentiality. Her recent, immediate, and rem ote memories were intact. Therefore, I find that her opinion regarding the claim ant's abilities to perform work related functions is based upon the claimant's subjective reports rather than any objective findings.
Id.
Subjective complaints are not an acceptable basis for an opinion. See 20 C.F.R. j 416.927 ( C); see also Crawford, 363 F.3d at 1 159-60; Forsyth v. Comm 'r ofsoc. Sec., 503 F. App'x 892, 893 (1 1th Cir. zol3ltholding substantial evidence supported ALJ'S decision to give less weight to an opinion that û'relied too significantly on (claimant's) subjective reports''). Moreover, if the Court is able to conclude that the ALJ properly considered the claim ant's condition as a whole, then Ctthere is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.'' Dyer v. Barnhart, 395 F.3d 1206, 121 1 (1 1th Cir. 2005). In light of same, the undersigned finds that there is substantial evidence to support the ALJ'S decision to accord little weight to Dr. M iro's 0P1n1On.
Dr. Bauer
Plaintiff likewise argues that Dr. Bauer's opinion fails to support the ALJ'S RFC finding. (ECF. 13). Specifically, Plaintiff suggests that although the ALJ gave Dr. Bauer considerable weight, he did not account for Dr. Bauer's Sdchecked boxes'' wherein he indicates that Plaintiff was Simoderately lim ited in her ability to perform at a consistent pace without an unzeasonable num ber and length of rest periods and in her ability to respond appropriately to supervisors. (ECF No. 15). The checked boxes at issue are located on Section 1, i.e., the Sisum mary conclusions'' section, of the Mental Residual Functional Capacity Form IM RFCI. As correctly noted by Defendant, the Commissioner's Program Operations Manual (POM S) indicates, and the Eleventh Circuit recognizes, that Section l does not constitute an RFC assessment. See POM S Dl 24510.060 (B)(2); see also Jones v. Comm 'r ofsoc. Sec.,7b F. App'x 610, 612 (1 1th Cir. 2012)(The checked boxes are only part of a worksheet that fsdoes not constitute the (doctors' actual RFC assessmentl.''). By way of example, checking the box liM oderately Lim ited'' means only that the claimant's capacity is impaired; it does not indicate the degree and extent of the lim itation. Id ,. see also 24510.063(B)(2). After checking the boxes, the doctor is still required to detail his actual RFC assessment in Section IlI of the form . ld j 24510.060(B)(4). Because the checkmarks did not reflect Dr. Bauer's actual assessment of Plaintiffs lim itations, it wms not necessary for the ALJ to specifically include same in his RFC findings.
Here, the ALJ gave diconsiderable weight'' to Dr. Bauer's opinion, as set forth in Section I1I of the M RFC which is titled liyunctional Capacity Assessment.'' ( R. 44, 424). Section IlI reads in pertinent part,
Understanding and M em ory She can understand and recall simple to m ildly com plex instructions. She can follow and execute simple to m ildly complex directives.
Sustained Concentration and Persistence She can persist at simple and routine tasks for a regular workday at an appropriate pace and can sustain at this level over weeks and months.
( R. 426).
Indeed, the ALJ'S findings track the above language. Specifically, the ALJ stated, ç$(Dr. Bauer) opined that the claimant could persist at simple routine tasks for a regular workday at an appropriate pace and could sustain at this level over weeks and months.''( R. 45). ln so doing, he found that Dr. Bauer's opinion was consistent with the medical evidence of record. ( R. 44-45). W hile the ALJ gave significant weight to Dr. Bauer's opinions, he did not adopt, nor was he required to adopt, the entire opinion as Plaintiff's RFC. W hile an ALJ m ay decide to adopt a11 opinions expressed in a m edical souzce statem ent, no m edical source statem ent constitutes an R FC assessm ent. The RFC is an adm inistrative finding that is strictly reserved for the Com missioner. See SSR 96-5p, 1996, 1996 W L 374183 (S.S.A.); see also, 20 C.F.R. j 416.927(d)(2).
To this end, the ALJ is required to consider the opinions of non-exam ining state agency medical and psychological consultants because they tiare highly qualified physicians and psychologists who are also experts in Social Security disability evaluationtsl.'' 20 C.F.R. j 404.152749(2)41); see M ilner v.Barnhart, 275 Fed.Appx. 947, 948 (1 1th Cir. 2008), Upon careful review, and consistent with the above, the undersigned finds no error.
Plaintff's Subjective Complaints
Plaintiff s third argum ent for reversal is that the ALJ did not properly consider her subjective complaints. In her view, his credibility ûndings are not based on substantial evidence. (ECF. No. 18). Defendant disagrees and argues that Plaintiff has failed to meet her burden of production and persuasion. (ECF. No. 13).
lt is well established that pain alone can be disabling. Walker v. Bowen, 826 F.2d 996, 1003 (1 lth Cir. 1987). W ith regards to subjective complaints of pain, Plaintiff must satisfy the following pain standard. First, there m ust be evidence of an underlying medical condition and either objective medical evidence that confirms the severity of the alleged pain arising from that condition, or that the objectively detennined medical condition is of such severity that it can be reasonably expected to give rise to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (1 1th Cir. lgglltciting f andry v. Seck/er, 782 F.2d 1551, 1553 (1 1th Cir. 1986)).
In this case, as noted previously, the ALJ found that Plaintiff had a severe impairment, i.e. an affective disorder that causes Sém ore than m inim al functional lim itations in her ability to engage in work-related activities.'' ( R. 37, Finding 2). Thus, the first prong is satisfied. As to the second prong, the ALJ found that Plaintiffs mental impairm ents did not meet the criteria of any listing of impairments, including those in j 12.04 of 20 C.F.R. Part 404, Subpart P, Appendix 1 . ( R. 37, Finding 3). If the objective medical evidence does not confirm the severity of the claimant's alleged symptom s, but the claimant establishes she has an impairment that could reasonably be expected to produce her alleged symptoms, the ALJ must evaluate the intensity and persistence of the claimant's alleged symptoms and their effect on the claimant's ability to work. See 20 C.F.R. j 416. 929(c),(d); SSR 96-7p; Wilson v. Barnhart, 284 F.3d 1219, 1225 (1 1th Cir. 2002). StW hether or not the condition (canl be expected to give rise to the complainltj of pain is a question of fact subject to (the) substantial evidence standard of review.'' Lamb v, Brown, 847 F.2d 698, 702 (1 1th Cir. 1988).
However, the credibility of Plaintiffs testim ony m ust also be considered. 1d. If the ALJ discredits the subjective testimony, he must articulate explicit and adequate reasons for doing so. Wilson, 284 F.3d at 1225. Failure to articulate the reasons for discrediting subjective testimony requires, as a matter of law, that the testimony be accepted as true. 1d. W hile an ALJ may not reject a plaintiffs subjective complaints of pain simply by lack of objective evidence, the allegations of a severe impairment should be supported by medically acceptable clinical and laboratory diagnostics techniques. Watson v. Heckler, 738 F.2d 1 169, 1 172-1 173 (1 1th Cir.1984). Put another way, allegations of pain should be weighed with the overall record which includes clinical data, demeanor at the hearing, testim ony, frequency of treatm ent, response to treatment, use of medications, daily activities, m otivations, credibility and residual functioning capacity. 1d. ln sum , a plaintiffs claim of pain or other subjective symptoms, without more, is not conclusive evidence of disability. See Macia v. Bowen, 829 F.2d 1009, 101 1 (1 1th Cir. 1987).
Here, the ALJ determ ined that Plaintiff s statements regarding the intensity, persistence, and functionally limiting effects of her alleged depression and other symptoms were not credible. ( R. 44). ln this regard, the ALJ specifcally delineated his reasons for rejecting Plaintiffs testimony. 1d. The ALJ noted that Plaintiff s medical records are devoid of any findings that her depression and other symptoms were of disabling severity. 1d. See 20 C.F.R. j 416. 929 ( C); (d); SSR 96-7p; Wilson, 284 F.3d at 1225-26. The ALJ further noted that Plaintiff received only conservative treatment for her alleged symptoms. /#. See 20 C.F.R. j 416. 929(c)(3)(v); SSR 96-7p; Wolfe r. Chater, 86 F.3d 1072, l 078 (1 1th Cir. 1 996). Moreover, the ALJ found that Plaintiff had not been hospitalized or required em ergency room treatment during any relevant tim e. 1d.
As noted above, the ALJ mentioned that Plaintiff had not sought mental health treatm ent from a psychiatrist or psychologist but, instead, relied upon her general practitioner to prescribe her psychotropic medications. 1d. Plaintiff also acknowledged that her m edications improved her functioning, and the medical records reflect that she responded well to same. 1d. See 20 C.F.R. j 416. 929(c)(3)(iv); Harwell v. Hecklen 7?5 F.2d 1292, 1293 (1 1th Cir,1984),. see also Dawkins v. Bowen, 848 F.2d 121 1, 1213 (1 1th Cir. 1988)(finding that medical conditions that can reasonably be remedied by medication are not disabling). Contrary to her testimony, wherein she testified that she could not perform any household chores, cooking, or driving, the ALJ noted that Plaintiff reported a greater degree of functioning at Dr. M iro's consultative psychological examination. ( R. 43-44). Lastly, the ALJ found that there was no medical evidence that suggested decompensation in mental functioning that would have caused greater restrictions in Plaintiff s activities of daily living. ( R. 44). ln addressing decompensation, the ALJ notes that Plaintiff reported to having attempted suicide with pills. ( R. 43, 510). No other information, record of treatment, or hospital stay exists as to this alleged suicide attem pt. The A LJ did, however, note that there w ere no know n attempts at suicide within the last year. ( R. 43).
In sum, the ALJ examined Plaintiffs testimony in conjunction with the medical records, as well as the absence of treatm ent for certain ailm ents, to support his credibility findings. Upon careful review, the undersigned finds no error by the ALJ.
Vocational Expert Testimony Plaintiffs final argument for reversalis that the ALJ failed to obtain vocational expert testimony given Plaintiff s non-exertional limitations. (ECF. No. 18). Defendant, on the other hand, contends that the ALJ properly relied on the Grids as a fram ework to find that Plaintiff was not disabled. (ECF. No. 13).
Here, the ALJ was not required to utilize a vocational expert, and sole reliance on the grids was proper. The grids are tables that assess a claim ant's ability to work by itm atching the claimant's age, education, and work experience with his work capability.'' 20 C.F.R. pt. 404, subpt. P, app.z. In the Phillips case, the Eleventh Circuit established that if the ALJ detennines that the claim ant can perfonn a wide range of work and his/her ilnonexertional limitations do not significantly limit hlisq work skills,'' then it is proper for the ALJ to solely rely on the grids to establish if the claimant is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1242 (1 1th Cir. 2004); see also, Royal v. Astrue, 201 1 W L 1085612 at # 8 (S.D. Fla. 201 lltthe existence of non-exertional limitations does not, alone, require the ALJ to use a vocational expert in place of the grids).
Here, the ALJ looked to the objective medical evidence to determine that Plaintiffs nonexertional limitations t'have little or no effect on the occupational base of unskilled work at a1l exertional levels'' and that a finding of ittnot disabled' (was) therefore appropriate under the in the M edical-vocational G uidelines.'' framework of j 204.00 ( R. 45). Consistent with the above, the undersigned finds no error.
Conclusion And Recomm endation Based on the foregoing, and consistent with this Court's lim ited scope of review, the undersigned finds that the decision of the ALJ was supported by substantial evidence and that the correct legal standards were applied. Therefore, it is RESPECTFULLY RECOM M ENDED that the decision of the Comm issioner be AFFIRM ED. Accordingly, it is RESPECTFULLY RECOM M ENDED that Plaintiffs M otion for Stlmmary Judgment be DENIED (ECF No. 13), and that Defendant's M otion for Summary Judgment be GRANTED (ECF No. 18).
Pursuant to Local M agistrate Rule 4(b), the parties have fourteen (14) days from senice of this Report and Recommendation within which to serve and file written objections, if any, with the Honorable Danin P. Gayles, United States District Judge. Failure to ûle objections timely shall bar the parties from attacking on appeal the factual findings contained herein. Loconte v. Dugger, 847 F.2d 745 (1 lth Cir. 1 988), cert. denied, 488 U.S. 958 (1988); R. T C. v. Hallmark Builders, Inc. , 996 ' uzj F.2d 1 144, 1 149 (1 1th Cir. 1993). in chambe at M iam i, Florida on t is da f RESPECTFULLY RECO M M ENDED August 2015.
W I LIA M C . TU FF U N I S M A G ISTR AT E JU D G E C C : Honorable Darrin P. Gayles
Counsel of Record