Rivera v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MAYRA RIVERA,

Plaintiff,

V. CASE NO. 3:18-cv-886-J-MCR

COMMISSIONER OF THE SOCIAL

SECURITY ADMINISTRATION,

Defendant.

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MEMORANDUM OPINION AND ORDER"

THIS CAUSE is before the Court on Plaintiff's appeal of an administrative

decision denying her applications for a period of disability, disability insurance

benefits (“DIB”), and supplemental security income (“SSI”). Following an

administrative hearing held on August 3, 2017, the assigned Administrative Law

Judge (“ALJ”) issued a decision, finding Plaintiff not disabled from November 18,

2013, the alleged disability onset date, through August 22, 2017, the date of the

decision.” (Tr. 17-77.) Based on a review of the record, the briefs, and the

applicable law, the Commissioner’s decision is AFFIRMED.

' The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. (Doc. 17.)

* Plaintiff had to establish disability on or before December 31, 2018, her date

last insured, in order to be entitled to a period of disability and DIB. (Tr. 20.)

I. Standard of Review

The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841

F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are

supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390

(1971). “Substantial evidence is more than a scintilla and is such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Crawford v. Comm’ of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.

2004). Where the Commissioner's decision is supported by substantial evidence,

the district court will affirm, even if the reviewer would have reached a contrary

result as finder of fact, and even if the reviewer finds that the evidence

preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937

F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th

Cir. 1991). The district court must view the evidence as a whole, taking into

account evidence favorable as well as unfavorable to the decision. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d

835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to

determine the reasonableness of the Commissioner’s factual findings).

ll. Discussion

Plaintiff raises two issues on appeal. First, she argues that the ALJ did not

properly evaluate the opinion of her treating physician, Tanam Ahmed, M.D., that

Plaintiff would be unable to sustain work activity on a regular and continuing basis

due to chronic pain syndrome. Second, she argues that the ALJ’s findings at

step two of the sequential evaluation process® concerning Plaintiff's diagnoses of

bipolar disorder and post-traumatic stress disorder (“PTSD”), were not supported

by substantial evidence. Defendant responds that substantial evidence supports

the ALJ’s evaluation of the medical opinion evidence and his findings as to

Plaintiff's bipolar disorder and PTSD.

A. The ALJ Properly Evaluated Dr. Anmed’s Opinion

1. Dr. Ahmed’s Opinion

On April 11, 2014, Dr. Anmed filled out a Treating Source Mental Status

Report,’ in which she opined that Plaintiff's mood and affect were “within normal

limits, [but] sometimes worsen|[ed] intermittently due to pain’; her thought process

was “within normal limits”; her concentration and memory were “intact”; and her

mental status was otherwise normal. (Tr. 425-27.) Dr. Anmed diagnosed Plaintiff

with anxiety and depression, and noted that her prognosis was “fair, given

triggers at times due to chronic pain (referred at last visit to pain management).”

(Tr. 426.) Dr. Anmed opined that Plaintiff was able to perform activities of daily

living and to mange her funds, but was incapable of sustaining work activity for

* The Commissioner employs a five-step process in determining disability. See

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

* Although this report was signed on April 11, 2014, Dr. Anmed last examined

Plaintiff on February 25, 2014. (Tr. 427.)

eight hours a day, five days a week, “due to chronic pain syndrome, currently

suspects [sic] fibromyalgia, is [Sic] going to see pain management soon.” (Tr.

427.)

2. The ALJ’s Decision

At step two of the sequential evaluation process, the ALJ found that

Plaintiffs severe impairments included a history of hypertension, hyperlipidemia,

non-insulin dependent diabetes, depression, hypothyroidism with a stable thyroid

nodule, and mild multi-level degenerative disc and joint disease of the cervical

spine. (Tr. 22.) Then, at step three, the ALJ found that Plaintiff did not have an

impairment or combination of impairments that met or medically equaled the

severity of one of the listed impairments. (Tr. 23-25.)

Before proceeding to step four, the ALJ found that Plaintiff retained the

residual functional capacity (“RFC”) to perform a reduced range of light work, as

follows:

[Plaintiff] can sit, stand and walk for at least six hours each per eight-

hour workday; lift and/or carry up to 10 pounds frequently and 20

pounds occasionally; occasionally use [] hand, arm or foot/pedal

controls with her upper or lower extremities; she can occasionally

climb ramps and stairs; never climb ladders, ropes or scaffolds;

occasionallly] balanc[e], stoop[], Kneell[], crouch[] and crawll[];

frequent[ly] reach[] in all directions, handle], finger[] and feell[] with

the upper extremities; no limitations on seeing, speaking or hearing;

she should not work at unprotected heights or around dangerous

moving machinery or in proximity to concentrated industrial vibration;

[and] she should work in a clean air environment without exposure to

temperature extremes. She can interact with the public, supervisors

and coworkers frequently; she should have no job requiring her to

meet a strict production goal or quotas[,] such as assembly work[,]

and she is able to perform both unskilled and semi-skilled work.

(Tr. 25.) This RFC was “assessed based on all the evidence[,] with consideration

of the limitations and restrictions imposed by the combined effects of all [of

Plaintiff’s] medically determinable impairments.” (Id.)

The ALJ gave little weight to Dr. Ahmed’s conclusion that Plaintiff would be

unable to sustain work activity on a regular and continuing basis due to pain

syndrome, because this conclusion was “inconsistent with the medical evidence

of record and with Dr. Ahmed’s own treatment notes.” (Tr. 29.) The ALJ added:

“The remainder of the Mental Source Statement indicates that the claimant’s

mental status examinations show results within normal limits and it states that the

claimant is able to manage money and her activities of daily living independently.

The latter conclusions are generally consistent with the record and were given

significant weight[.]” (Id.)

In determining the RFC, the ALJ noted that “Dr. Ahmed’s records show[ed]

conservative treatment primarily in the form of medication management and

monitoring.” (Tr. 26.) According to more recent progress notes from Dr. Ahmed,

Plaintiff “discontinued the medication prescribed for her alleged fibromyalgia pain

and symptoms due to side effects” and she “reported improvement in her

symptoms with diet and the use of herbal medications and vitamins.” (Id.) Also,

“[a] more recent physical assessment, in July 2016[,] was unremarkable for any

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musculoskeletal, psychiatric or neurological deficits.” (/d.)

The ALJ also stated:

The claimant sought some pain management in June 2014, at which

time her exam was fairly benign with no neurological deficits and

only some moderate range of motion limitations. She was placed on

Tramadol, but later informed Dr. Anmed that she had discontinued

her pain management treatment in favor of continuing with

chiropractic treatment, which was helping with her pain issues. As of

September 2016, she reported that she was “doing better overall.”

She was advised to return as needed. At the hearing, the claimant

said she ha[d] not recently undergone additional chiropractic

treatment, which [was] consistent with her reported improvement in

2016 (testimony; Exhibits 5F, 6F, 11F-13F and 17F).

(Id.)

In addition, the ALJ addressed the results of the diagnostic tests as follows:

Notable objective results include an MRI of the cervical spine from

June 2014, which show[ed] relatively mild multilevel degenerative

disc and joint disease from C3-4 to C6-7 (Exhibits 5F and 10F) and

MRIs of the bilateral knees from January 2015, which showed some

degenerative changes in the medial meniscus and ossification within

the patellar tendon on the left and tearing and cartilage defects, as

well as a tiny Baker’s cyst, on the right (Exhibit 7F). A November

2015 thyroid ultrasound showed a stable and benign thyroid nodule

(Exhibit 10F). August 2016 imaging studies of the thoracic spine, left

shoulder and left hand show[ed] osteopenia and mild degenerative

changes (Exhibit 17F).

(Tr. 26-27.)

After considering the RFC assessment and the testimony of the vocational

expert, the ALJ determined at step four that Plaintiff was capable of performing

her past relevant work of a waitress, as actually and generally performed, and a

food sales clerk, as generally performed in the national economy. (Tr. 29-30.)

3. Analysis

The Court finds that the ALJ gave specific reasons, supported by

substantial evidence, for according little weight to Dr. Ahmed’s conclusion that

Plaintiff was incapable of sustaining work activity for eight hours a day, five days

a week, due to chronic pain syndrome. (Tr. 427.) First, Dr. Ahmed’s conclusion

was inconsistent with her treatment notes. As the ALJ observed, Dr. Ahmed’s

records show conservative treatment, primarily in the form of medication

management and monitoring, and include references that Plaintiff discontinued

various medications. (See Tr. 365-67 (noting that Plaintiff was using Ibuprofen

for chronic pain and has not been to pain management or rheumatology as of

February 25, 2014); Tr. 533 (using Ibuprofen when needed for pain as of

February 17, 2016); Tr. 565 (using Ibuprofen when needed for pain as of July 14,

2016); Tr. 576 (using Ibuprofen when needed for pain as of October 13, 2016);

Tr. 619 (using Ibuprofen when needed for pain as of January 18, 2017); Tr. 637

(using Ibuprofen when needed for pain as of June 21, 2017); see also Tr. 506,

513, 518, 520, 548.) As reflected in these records, Plaintiff reported symptom

improvement with diet, herbal supplements, and vitamins in the fall of 2015. (See

Tr. 520-22, 527.)

Further, the results of the diagnostic tests seemed inconsistent with Dr.

Ahmed’s conclusion that Plaintiff was incapable of sustaining work activity due to

chronic pain. (See Tr. 438 (noting that the cervical MRI from June 13, 2014

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showed a degenerated disc with small annular bulges and osteophytic ridging at

C4/5, C5/6, and C6/7); Tr. 451-52 (noting that the right knee MRI from January 3,

2015 showed a horizontal obliquely oriented tear extending from the

undersurface of the medial meniscal body into the posterior horn/body junction,

subarticular edema peripherally in the medial tibial plateau, small partial thickness

articular cartilage defects in the posterior weightbearing surface of the medial

femoral condyle, and a tiny Baker’s cyst); Tr. 449 (noting that the left knee MRI

from January 15, 2015 showed a degenerative signal within the posterior horn of

the medial meniscus, without discrete meniscal tear, 3 mm focus of ossification

within the distal patellar tendon, and minimal anterior knee subcutaneous soft

tissue swelling); Tr. 483 (noting a stable ultrasound of the thyroid, with a 7 mm

benign hypoechoic nodule, mid to lower pole, left lobe, as of November 20,

2015); Tr. 592 (noting non-specific degenerative changes as reflected on the X-

ray of the left hand from August 17, 2016); Tr. 593 (noting minimal degenerative

changes as reflected on the X-ray of the left shoulder from August 17, 2016); Tr.

594 (noting slight dextrocurvature of the lower thoracic spine and osteopenia as

reflected on the thoracic spine X-ray from August 17, 2016); see also Tr. 563

(noting good lab results as of July 14, 2016).)

In addition, as noted by the ALJ, Plaintiff’s pain management examinations

from June 2014 were fairly benign with moderate range of motion limitations and

moderate tenderness to palpation in the cervical region. (Tr. 432-37.) The

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record also reflects, consistent with the ALJ’s observation, that Plaintiff

discontinued her pain management treatment in favor of continuing with

chiropractic treatment, which was reportedly helpful for her symptoms. (Tr. 503

(noting, on August 21, 2014, improvement in Plaintiff’s pain with chiropractic

treatment and reporting “a bad experience with referral to pain management”); Tr.

510-13 (noting, on October 30, 2014, that Plaintiff’s pain was much better with

chiropractic treatment, she was not going to pain management anymore, and in

light of the MRI results, she did not need to see a neurosurgeon).) Consistent

with her reported improvement, Plaintiff testified at the hearing that she had not

been to her chiropractor “for a while” as she had “been doing pretty good.” (Tr.

58-59; Tr. 585 (reporting improvement in symptoms as of August 24, 2016); Tr.

587 (reporting improvement in symptoms as of August 26, 2016); Tr. 589

(reporting improvement in symptoms as of August 31, 2016 and stating: “Patient

is doing much better. She is happy with her progress. She can return to clinic

PRN [as needed].”); Tr. 591 (noting, on September 28, 2016, that “Patient is

doing much better. She is happy with her progress. She can return to clinic PRN

[as needed].”); see also Tr. 440-47 (chiropractic records for the period October

12, 2012 to July 14, 2014), Tr. 488-501 (chiropractic records for the period

September 27, 2013 to April 10, 2015), Tr. 580-91 (chiropractic records for the

period August 17, 2016 to September 28, 2016).)

Based on the foregoing, substantial evidence supports the ALJ’s decision

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to give little weight to Dr. Anmed’s opinion that Plaintiff would be unable to

sustain work activity on a regular and continuing basis due to her chronic pain.

To the extent Dr. Anmed opined that Plaintiffs mental status was within normal

limits, that she was independent in her daily activities, and that she was able to

manage her funds, the ALJ gave those opinions significant weight as “generally

consistent with the record.” (Tr. 29.) The ALJ’s findings as to these opinions is

also supported by substantial evidence in the record. (See, e.g., Tr. 81, 104, 107,

425-27, 511-12, 518, 524, 526-27, 533, 564, 609, 611-12, 618, 622, 630, 636-37;

but see Tr. 304 (indicating inability to pay bills or count change).)

B. The ALJ’s Findings at Step Two Are Supported by

Substantial Evidence

Plaintiff argues that the ALJ’s findings at step two regarding her diagnoses

of bipolar disorder and PTSD were not supported by substantial evidence. The

Court does not find any reversible error. In the Eleventh Circuit, “[t]he finding of

any severe impairment... is enough to satisfy step two because once the ALJ

proceeds beyond step two, he is required to consider the claimant's entire

medical condition, including impairments the ALJ determined were not severe.”

Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 902 (11th Cir. Mar. 30, 2011).

Therefore, even if the ALJ erred by not finding Plaintiff's bipolar disorder and

PTSD to be severe impairments, the error is harmless because the ALJ found at

least one severe impairment. See Heatly v. Comm’r of Soc. Sec., 382 F. App’x

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823, 824-25 (11th Cir. 2010) (per curiam) (“Even if the ALJ erred in not indicating

whether chronic pain syndrome was a severe impairment, the error was harmless

because the ALJ concluded that [plaintiff] had a severe impairment: [sic] and that

finding is all that step two requires. . . . Nothing requires that the ALJ must

identify, at step two, all of the impairments that should be considered severe.”).

Here, the ALJ found that Plaintiff's severe impairments included a history of

hypertension, hyperlipidemia, non-insulin dependent diabetes, depression,

hypothyroidism with a stable thyroid nodule, and mild multi-level degenerative

disc and joint disease of the cervical spine. The ALJ acknowledged that Plaintiff

sought treatment for and/or was diagnosed with a bipolar disorder and PTSD, but

stated that the evidence did not show findings “supportive of the mental

impairments diagnosed as per the DSM-V or SSR 12-2p and/or show that these

impairments have imposed vocationally restrictive limitations for a period of 12

continuous months.” (Tr. 23.) Accordingly, the ALJ found “these impairments

only had a minimal effect on the claimant’s ability to perform work-related

activities and [were] therefore not severe within the meaning of the Regulations.”

Nevertheless, the ALJ “considered the combined impact of both the severe

and non-severe impairments in formulating the [RFC].” (/d.)

Then, in determining the RFC, the ALJ noted that Eneida Gomez, M.D.,

diagnosed Plaintiff with a bipolar disorder and PTSD, among other conditions, but

gave these diagnoses “less weight than those noted by Dr. Ahmed, which [were]

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more consistent with the longitudinal record and the physical and mental

assessments offered by Dr. Anmed.” (Tr. 26.) The ALJ also noted Plaintiff's

testimony that she “receive[d] mental health treatment at the recommendation of

her primary care physician due to aggression and anxiety” and that “[h]er

symptoms [had] improved with medication.” (Tr. 27; Tr. 52-53; Tr. 54 (“She just

increased the dosage and it seems to be better. I’m not as aggressive.”); Tr. 58

(testifying that the medications prescribed by Dr. Gomez have been helpful and

that Plaintiff has been taking them as directed); see a/so Tr. 28 (noting that

Plaintiff had been compliant with the medications for her mental conditions, which

had “resulted in stable and well-controlled symptoms’); Tr. 368, 370, 372, 374,

575, 611.) Then, the ALJ noted that Plaintiff's mental status examinations, like

her physical examinations, “ha[d] shown minimal and intermittent abnormalities.”

(Tr. 27-28; see also Tr. 425-27, 511-12, 518, 524, 526-27, 533, 564, 609, 611-12,

618, 622, 630, 636-37; but see Tr. 379, 504-05, 521-22, 600.)

Further, the ALJ stated:

[S]o far as [Plaintiff's] mental health is concerned, . . . the evidence in

this file is relatively sparse. It does not appear that the claimant has

a history of mental health treatment while residing in Puerto Rico or

[has] ever been hospitalized at any mental health facility. She was

apparently able to work at Publi[x] for quite some time until she was

fired from her job in 2013, allegedly due to a conflict with a coworker.

She was referred to Dr. Gomez in 2016 for psychiatric issues. A

review of the information offered by this provider is hardly very

impressive. The symptoms related by the claimant are not entirely

consistent with the other information in the hearing record. More

importantly, the diagnostic impressions offered by the treating

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psychiatrist are not congruent with the descriptions of a bipolar

disorder or PTSD as explained and detailed in the DSM-V. The

symptoms reported by the claimant are simply not consistent with

these diagnoses. .. . These observations cast significant concerns

over the treatment being offered by this medical provider. Her

mental status exams are also inconsistent with the diagnoses

offered. It also appears that her symptoms are judged to be stable

on her more recent office visits.

(Tr. 28-29.)

Although Plaintiff's diagnoses of bipolar disorder and PTSD were not

included in the list of severe impairments, the ALJ did not ignore these

diagnoses. Importantly, however, “a ‘mere diagnosis . . . says nothing about the

severity of the condition.” Ward v. Astrue, 2008 WL 1994978, *3 (M.D. Fla. May

8, 2008); see also Hutchinson v. Astrue, 408 Fed. App’x 324, 326 (11th Cir. Jan.

18, 2011) (per curiam) (“[P]roof of the mere existence of impairments does not

prove the extent to which they limit a claimant’s ability to work.”) (citing McCruter

v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986) (“In other words, the ‘severity’ of

a medically ascertained disability must be measured in terms of its effect upon

ability to work, and not simply in terms of deviation from purely medical standards

of bodily perfection or normality.”)); Sellers v. Barnhart, 246 F. Supp. 2d 1201,

1211 (M.D. Ala. 2002); McCray v. Massanari, 175 F. Supp. 2d 1329, 1334 (M.D.

Ala. 2001). Here, despite arguing that the ALJ’s rejection of the two diagnoses

was improper, Plaintiff does not seem to point to any greater or additional

functional limitations resulting from these diagnoses, which were not accounted

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for in the RFC assessment.

As shown by the ALJ’s decision, he adequately considered all of Plaintiff's

impairments, both severe and non-severe, in combination at subsequent steps of

the sequential evaluation process. See Tuggerson-Brown v. Comm’r of Soc.

Sec., No. 13-14168, 572 F. App’x 949, 951-52 (11th Cir. July 24, 2014) (per

curiam) (“[T]he ALJ stated that he evaluated whether [plaintiff] had an ‘impairment

or combination of impairments’ that met a listing and that he considered ‘all

symptoms’ in determining her RFC. Under our precedent, those statements are

enough to demonstrate that the ALJ considered all necessary evidence.”).

Furthermore, while the ALJ considered all of Plaintiff's impairments, he

incorporated into the RFC assessment only those limitations resulting from the

impairments, which he found to be supported by the record. For instance, the

ALJ noted that Plaintiff complained of difficulty staying focused, handling stress,

and interacting with others. (Tr. 28.) Then, after consideration of the totality of

the evidence, the ALJ determined that Plaintiff should be limited to jobs involving

frequent interaction with the public, supervisors, and co-workers; jobs without

strict production goals or quotas; and jobs that are either unskilled or semi-skilled.

(Tr. 25.)

In sum, even if the ALJ erred in finding that Plaintiff's diagnoses of a bipolar

disorder and PTSD were non-severe impairments, a remand is not warranted

here, because the ALJ considered all of Plaintiff's impairments, both severe and

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non-severe, in combination at subsequent steps of the sequential evaluation

process and his decision is supported by substantial evidence.

lll. Conclusion

The Court does not make independent factual determinations, re-weigh the

evidence, or substitute its decision for that of the ALJ. Thus, the question is not

whether the Court would have arrived at the same decision on de novo review;

rather, the Court’s review is limited to determining whether the ALJ’s findings are

based on correct legal standards and supported by substantial evidence. Based

on this standard of review, the Court concludes that the ALJ’s decision that

Plaintiff was not disabled within the meaning of the Social Security Act for the

time period in question is due to be affirmed.

Accordingly, it is ORDERED:

1. The Commissioner's decision is AFFIRMED.

2. The Clerk of Court is directed to enter judgment consistent with this

Order, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, on September 9, 2019.

MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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