Palencia v. Commissioner of Social Security Administration

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GRACIE PALENCIA,

Plaintiff,

v. Case No. 8:19-cv-1062-T-AEP

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of her claim for a period of disability and

Supplemental Security Income (“SSI”). As the Administrative Law Judge’s (“ALJ”) decision

was based on substantial evidence and employed proper legal standards, the Commissioner’s

decision is affirmed.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability and SSI (Tr. 214-221). The Social

Security Administration (“SSA”) denied Plaintiff’s claims both initially and upon

reconsideration (Tr. 93-114, 117-137). Plaintiff then requested an administrative hearing (Tr.

154-160). Per Plaintiff’s request, the ALJ held a hearing at which Plaintiff appeared and

testified (Tr. 35-64). Following the hearing, the ALJ issued an unfavorable decision finding

Plaintiff not disabled and accordingly denied Plaintiff’s claims for benefits (Tr. 13-28).

Subsequently, Plaintiff requested review from the Appeals Council, which the Appeals Council

denied (Tr. 1-6). Plaintiff then timely filed a complaint with this Court (Doc. 1). The case is

now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1991, claimed disability beginning July 8, 2017 (Tr. 16).

Plaintiff obtained a high school education (Tr. 27). Plaintiff’s past relevant work experience

included work as fast food cashier, dog bather, and retail store cashier (Tr. 27). Plaintiff alleged

disability due to bipolar disorder, post-traumatic stress disorder, clinical depression Generalized

anxiety disorder, social anxiety disorder, panic disorder, insomnia, asthma, herniated disc,

degenerative disc disorder. OCD, diabetes, cartilage problem (right knee), polycystic ovarian

syndrome, acid reflux, and diabetic nerve pain (Tr. 93-94).

In rendering the administrative decision, the ALJ concluded that Plaintiff met the

insured status requirements through and had not engaged in substantial gainful activity since

March 13, 2018, the application date (Tr. 18). After conducting a hearing and reviewing the

evidence of record, the ALJ determined Plaintiff had the following severe impairments:

degenerative disc disease; gastroesophageal reflux disease; asthma; diabetic peripheral

neuropathy; degenerative joint disease; obesity; bipolar disorder; generalized anxiety disorder;

posttraumatic stress syndrome; obsessive-compulsive disorder; polysubstance abuse in

remission; and depression (Tr. 18). Notwithstanding the noted impairments, the ALJ

determined Plaintiff did not have an impairment or combination of impairments that met or

medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1

(Tr. 19). The ALJ then concluded that Plaintiff retained a residual functional capacity (“RFC”)

to perform:

[L]ight work as defined in 20 CFR 416.967(b) except she can stand and/or

walk 6 hours in an 8 hour workday and sit for 6 hours in an 8 hour workday;

she can never climb ladders, ropes, or scaffolds; she must have no exposure

to unprotected heights or hazardous machinery; she is limited to no more

than occasional exposure to chemicals, dust, fumes, or gases; she is limited

to no more than occasional interaction with coworkers, supervisors, and

public; she can maintain concentration, persistence, and pace for 95% of the

workday exclusive of breaks; and she will likely miss or leave work early 6

days per year.

(Tr. 22). In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective complaints

and determined that, although the evidence established the presence of underlying impairments

that reasonably could be expected to produce the symptoms alleged, Plaintiff’s statements as to

the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with

the medical evidence and other evidence (Tr. 23).

Considering Plaintiff’s noted impairments and the assessment of a vocational expert

(“VE”), however, the ALJ determined Plaintiff could not perform her past relevant work (Tr.

27). Given Plaintiff’s background and RFC, the VE testified that Plaintiff could perform other

jobs existing in significant numbers in the national economy, such as a retail marker, garment

sorter, and laundry folder (Tr. 28). Accordingly, based on Plaintiff’s age, education, work

experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 28).

II.

To be entitled to benefits, a claimant must be disabled, meaning he or she must be 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 twelve months. 42 U.S.C. §§

423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results

from anatomical, physiological, or psychological abnormalities, which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3),

1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential review,

further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the

ALJ must determine, in sequence, the following: whether the claimant is currently engaged in

substantial gainful activity; whether the claimant has a severe impairment, i.e., one that

significantly limits the ability to perform work-related functions; whether the severe

impairment meets or equals the medical criteria of 20 C.F.R. Part 404 Subpart P, Appendix 1;

and whether the claimant can perform his or her past relevant work. 20 C.F.R. §§

404.1520(a)(4), 416.920(a)(4). If the claimant cannot perform the tasks required of his or her

prior work, step five of the evaluation requires the ALJ to decide if the claimant can do other

work in the national economy in view of his or her age, education, and work experience. 20

C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). A claimant is entitled to benefits only if unable

to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§

404.1520(g)(1), 416.920(g)(1).

A determination by the Commissioner that a claimant is not disabled must be upheld if

it is supported by substantial evidence and comports with applicable legal standards. See 42

U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation

marks omitted)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). While the court reviews

the Commissioner’s decision with deference to the factual findings, no such deference is given

to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007)

(citations omitted).

In reviewing the Commissioner’s decision, the court may not reweigh the evidence or

substitute its own judgment for that of the ALJ, even if it finds that the evidence preponderates

against the ALJ’s decision. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th

Cir. 2004) (citation omitted). The Commissioner’s failure to apply the correct law, or to give

the reviewing court sufficient reasoning for determining that he or she has conducted the proper

legal analysis, mandates reversal. Ingram, 496 F.3d at 1260 (citation omitted). The scope of

review is thus limited to determining whether the findings of the Commissioner are supported

by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. §

405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (per curiam) (citations

omitted).

III.

Plaintiff argues that the ALJ erred by (1) failing to fully and fairly develop the record;

(2) failing to properly consider the opinion of Dr. Pasman when rendering Plaintiff’s mental

RFC; and (3) rendering an RFC that was not supported by substantial evidence. For the

following reasons, the ALJ applied the correct legal standards and the ALJ’s decision is

supported by substantial evidence.

A. Failure to Develop the Record

First, Plaintiff contends that the ALJ failed to fairly and fully develop the record by not

issuing a subpoena to Dr. Kamat for his medical records regarding Plaintiff’s migraine

headaches. Even though Social Security proceedings are inquisitorial rather than adversarial in

nature, claimants must establish their eligibility for benefits. Ingram v. Comm’r of Soc. Sec.

Admin., 496 F.3d 1253, 1269 (11th Cir. 2007); 20 C.F.R. §§ 404.1512(a), 416.912(a). During

the administrative process, therefore, a claimant must inform the Social Security Administration

about or submit all evidence known to the claimant relating to whether the claimant is blind or

disabled. 20 C.F.R. §§ 404.1512(c), 416.912(c). Though the claimant bears the burden of

providing medical evidence showing she is disabled, the ALJ is charged with developing a full

and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The ALJ maintains

this basic obligation to develop a full and fair record without regard for whether the claimant is

represented by counsel. Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (citation omitted).

When the plaintiff demonstrates that the record reveals evidentiary gaps which result in

unfairness or “clear prejudice,” remand is warranted. Id. at 935; Henry v. Comm’r of Soc. Sec.,

802 F.3d 1264, 1267 (11th Cir. 2015) (“Remand for further factual development of the record

before the ALJ is appropriate where the record reveals evidentiary gaps which result in

unfairness or clear prejudice.”) (quotation and citation omitted); Graham v. Apfel, 129 F.3d

1420, 1423 (11th Cir. 1997) (“However, there must be a showing of prejudice before it is found

that the claimant’s right to due process has been violated to such a degree that the case must be

remanded to the [Commissioner] for further development of the record.”) (citation omitted).

Although the ALJ has a duty to develop the record, the ALJ is not required to order a

consultative examination when the record contains sufficient evidence upon which the ALJ can

make an informed decision. Ingram, 496 F.3d at 1269 (citing Doughty v. Apfel, 245 F.3d 1274,

1281 (11th Cir. 2001)); 20 C.F.R. §§ 404.1512(e), 404.1519a, 416.912(e), 416.919a. The

decision to recontact a medical source or to order a consultative examination remains within

the discretion of the Commissioner. See, generally, 20 C.F.R. §§ 404.1520b(c), 416.920b(c).

If the evidence is consistent but the Commissioner does not have sufficient evidence to

determine whether a claimant is disabled, or, if after weighing the evidence, the Commissioner

determines that a conclusion cannot be reached about whether the claimant is disabled, the

Commissioner will determine the best way to resolve the inconsistency or insufficiency,

including re-contacting a treating physician or medical source or asking the claimant to undergo

a consultative examination. 20 C.F.R. §§ 404.1520b(c)(1) & (3), 416.920b(c)(1) & (3).

Further, an ALJ may issue subpoenas for the production of records at the request of a party

when it is “reasonably necessary for the full presentation of the case.” 20 C.F.R. §

404.950(d)(2). The party’s written request for a subpoena must “state the important facts that

the ... document is expected to prove and indicate why these facts could not be proven without

issuing a subpoena.” Id.

In this instance, Plaintiff informed the ALJ that the records from Orthopedic Medical

Group and Dr. Kamat were outstanding and that they would produce those records as soon as

they could (T. 61). The ALJ stated that he would wait until he received those documents before

rending a decision and that it was critical for him to see them (T. 61). The ALJ gave Plaintiff

two weeks, until January 21, 2019, to submit the records (T. 38). On January 21, 2019, Plaintiff

notified the ALJ that the records from Dr. Kamat were still not produced and that Dr. Kamat

could not process the records until January 25, 2019, and Plaintiff subsequently requested the

ALJ to issue a subpoena for the records (T. 327). The ALJ did not issue a subpoena and

rendered his decision finding Plaintiff not disabled and denied her claim for benefits (T. 13-28).

Plaintiff contends that the ALJ’s failure to issue a subpoena warrants remand and that based

upon the ALJ’s statements at the hearing, Plaintiff has proven that Dr. Kamat’s records are

probative. Plaintiff’s arguments fail for several reasons.

First, Plaintiff’s subpoena request did not state the pertinent facts that Dr. Kamat’s

documents were expected to prove as required under 20 C.F.R. § 416.1450(d)(2). Instead,

Plaintiff merely informed the ALJ that the records would not be produced on time and requested

the ALJ issue a subpoena to a listed address (T. 327). Notably as well, Plaintiff did not produce,

nor has yet to produce, the records from Dr. Kamat. Plaintiff did not produce any additional

evidence to the Appeals Council and still has not produced any of Dr. Kamat’s records for

consideration (Tr. 1-4). Further, Plaintiff has failed to provide any argument as to how the ALJ’s

failure to consider the records of Dr. Kamat has resulted in an evidentiary gap or prejudice to

her. Plaintiff attempts to argue that the ALJ’s commentary at the administrative hearing, namely

his statement that the records were critical, satisfies this burden. See Henry 802 F.3d at 1267.

However, the ALJ’s statements do not establish that there exists an evidentiary gap or that

Plaintiff would be prejudiced should these records not be considered. Plaintiff bears the burden

of establishing an evidentiary gap or prejudice and not only has she not produced any records

from Dr. Kamat, but importantly Plaintiff has also failed to even establish what specific

evidence from Dr. Kamat exists and is favorable to her. Therefore, it appears Plaintiff only

speculates that further development of the record to include Dr. Kamat’s opinions might have

produced evidence favorable to her, which is insufficient to warrant remand. See Sarria v.

Comm’r of Soc. Sec., 579 Fed.Appx. 722, 724 (11th Cir. 2014).

Further, it appears that the evidence relied upon by the ALJ was neither inconsistent nor

insufficient. Rather, as the decision indicates, the record contained sufficient evidence,

including medical evidence discussing Plaintiff’s migraine headaches (T. 423, 426, 540, 556,

562, 570, 590, 593, 598, 602, 604, 605, 620, 624, 640, 648, 653, 658, 673, 684, 689, 691, 704,

706, 722, 732, 737, 747, 799, 804, 816, 821, 832, 863, 867, 870). Plaintiff was represented

during the administrative process and was responsible for producing evidence related to her

disability. See 20 C.F.R. § 416.912(a)(c). Thus, Plaintiff’s expansive medical records,

consisting of numerous evidence discussing migraine headaches, provided sufficient evidence

for the ALJ to determine whether Plaintiff’s migraine headaches were disabling. Again,

Plaintiff failed to demonstrate how she was prejudiced by the ALJ’s decision not to issue a

subpoena and has not shown the existence of an evidentiary gap. See Henry, 802 F.3d at 1267.

Therefore, remand is unwarranted.

B. Medical Opinion Evidence1

Next, Plaintiff contends that the ALJ erred by failing to state what weight was given to

the psychological consultative examination by Dr. Lawrence N. Pasman. Medical opinions,

which include physician statements regarding the nature and severity of the claimant's

impairments, may support the ALJ's determination of whether a claimant suffers from a severe

impairment. 20 C.F.R. § 404.1527(a)(2). When assessing the medical evidence, the ALJ must

state with particularity the weight afforded to different medical opinions and the reasons

therefor. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). In determining

the weight to afford a medical opinion, the ALJ considers the following factors: the examining

and treatment relationship between the claimant and doctor, the length of the treatment and the

frequency of the examination, the nature and extent of the treatment relationship, the

supportability and consistency of the evidence, the specialization of the doctor, and other factors

that tend to support or contradict the opinion. Hearn v. Comm’r Soc. Sec. Admin., 619

Fed.Appx. 892, 895 (11th Cir. 2015). Plaintiff bears the burden of showing that she has a severe

impairment or combination of impairments that may qualify as a disability. Hutchinson v.

Astrue, 408 Fed.Appx. 324, 326 (11th Cir. 2011)(citing McDaniel v. Bowen, 800 F.2d 1026,

1Plaintiff also attempts to argue that the ALJ should have re-contacted Dr. Lawrence N.

Pasman to complete a mental residual functional capacity evaluation. However, the decision

to recontact a medical source or to order a consultative examination remains within the

discretion of the Commissioner. See, generally, 20 C.F.R. §§ 404.1520b(c), 416.920b(c). If

the evidence is consistent but the Commissioner does not have sufficient evidence to

determine whether a claimant is disabled, or, if after weighing the evidence, the

Commissioner determines that a conclusion cannot be reached about whether the claimant is

disabled, the Commissioner will determine the best way to resolve the inconsistency or

insufficiency, including re-contacting a treating physician or medical source or asking the

claimant to undergo a consultative examination. 20 C.F.R. §§ 404.1520b(c)(1) & (3),

416.920b(c)(1) & (3). Significantly, it appears Dr. Pasman did complete a mental evaluation

of Plaintiff in which the ALJ considered (T. 25, 679-685). Therefore, Plaintiff’s argument

appears misplaced and the Court will focus solely on the Plaintiff’s second issue that the ALJ

1031 (11th Cir. 1986). Further, “[t]o the extent that the administrative law judge erred by failing

to state with particularity the weight assigned to [treating physicians’] medical opinions, the

error is harmless” if it does not “affect the administrative law judge’s ultimate determination.”

Hunter v. Comm’r of Soc. Sec., 609 Fed.Appx. 555, 558 (11th Cir. 2015) (finding that the ALJ's

decision was supported by substantial evidence and, therefore, the ALJ's failure to explicitly

state the weight afforded to treating physicians’ testimony was harmless error); Tillman v.

Comm’r Soc. Sec. Admin., 559 Fed.Appx. 975, 976 (11th Cir. 2014) (recognizing harmless error

analysis in the context of an ALJ's failure to address a treating source's opinion and concluding

that “when the ALJ's error did not affect its ultimate findings, the error is harmless, and the

ALJ's decision will stand”); Caldwell v. Barnhart, 261 Fed.Appx. 188, 191 (11th Cir. 2008)

(finding that the ALJ's failure to state the weight given to a physician's opinions was harmless

error because the opinions did not otherwise contradict the ALJ's findings); Wright v. Barnhart,

153 Fed.Appx. 678, 684 (11th Cir. 2005)(finding harmless error for the ALJ's failure to

explicitly state what weight he afforded to a number of physicians’ medical opinions when the

opinions did not directly contradict the ALJ's findings).

Here, Dr. Pasman is a consultative examiner and, as such, his opinion is not entitled to

the deference normally given treating sources. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir.

1987)(finding that opinions of consultative examining physicians “are not entitled to deference

because as one-time examiners they were not treating physicians”); Crawford v. Comm’r of

Soc. Sec., F.3d 1155, 1160-61 (11th Cir. 2004)(“The ALJ correctly found that, because [a

consultative examiner] examined [claimant] on only one occasion, her opinion was not entitled

to great weight.”); 20 C.F.R. § 404.1527(c)(2) (explaining that treating sources are given greater

weight because their opinions “may bring a unique perspective to the medical evidence that

cannot be obtained from the objective medical findings alone or from reports of individual

examinations, such as consultative examinations or brief hospitalizations”). Dr. Pasman is not

Plaintiff's treating physician, rather he examined Plaintiff to provide opinions as to Plaintiff's

social security applications. Thus, his opinion is not entitled to significant weight.

Contrary to Plaintiff's argument, the ALJ specifically addressed the opinion of Dr.

Pasman (Tr. 24-25). The ALJ, however, did not assign a particular weight to his opinion. The

ALJ noted Dr. Pasman’s consultative examination and his opinion that Plaintiff mental status

examination described her as “alert, fully oriented, slightly impaired in recent memory, no

perceptual deficits, adequate appearance, psychomotor deficits, normal speech, difficulty in

establishing/maintaining rapport, reported tired mood/affect, impaired concentration, impaired

impulse control, intact association, intact abstraction, impaired computation, intact insight and

questionable judgement.” (Tr. 24-25.) Notably, the ALJ’s failure to afford a particular weight

to Dr. Pasman’s opinion is harmless. Tillman, 559 Fed.Appx at 975-76 (recognizing harmless

error analysis in the context of an ALJ's failure to address a treating source's opinion and

concluding that “when the ALJ's error did not affect its ultimate findings, the error is harmless,

and the ALJ's decision will stand”); Caldwell, 261 Fed.Appx., at 191 (finding that the ALJ's

failure to state the weight given to a physician's opinions was harmless error because the

opinions did not otherwise contradict the ALJ's findings); Wright, 153 Fed.Appx. at 684

(finding harmless error for the ALJ's failure to explicitly state what weight he afforded to a

number of physicians’ medical opinions when the opinions did not directly contradict the ALJ's

findings).

Plaintiff points to the ALJ’s failure to discuss Dr. Pasman’s opinion that Plaintiff’s

prognosis was guarded, her bi-polar disorder was “severe to moderate” and, she had deficits in

self-care and safety, social interpersonal skills and work skills. (Doc. 20, at 24). However, the

ALJ discussed Dr. Pasman’s opinions and explicitly addressed his assessment that Plaintiff's

memory was impaired, with difficulties in concentration, and that Plaintiff had psychomotor

deficits, difficulty maintaining rapport, with impaired impulse control and questionable

judgment. (T. 25). The ALJ's RFC assessment accounts for Plaintiff's mental impairments,

restricting Plaintiff to light work and limited to no more than occasional interaction with

coworkers, supervisors, and public, and recognized the ability to maintain concentration,

persistence, and pace for 95% of the workday exclusive of breaks (Tr. 22). In light of the ALJ's

RFC assessment, it is unclear how assigning a particular weight to Dr. Pasman’s opinions would

have changed the ALJ's assessment or how Dr. Pasman’s opinion conflicts with the ALJ's

findings. Thus, any error in the ALJ's failure to assign Dr. Pasman’s opinions a particular weight

is harmless. Hunter, 609 Fed.Appx. at 558; Tillman, 559 Fed.Appx. at 975-76; Caldwell, 261

Fed.Appx at 191.; Wright, 153 Fed. Appx. at 684. Therefore, Plaintiff's contention does not

warrant reversal.

Additionally, Plaintiff contends that the ALJ erred by affording more weight to the

examination of Dr. David Tessler, Psy.D, a non-examining psychologist (Tr. 21,23) as opposed

to Dr. Pasman. The opinion of an examining physician is generally entitled to more weight than

the opinion of a non-examining physician. Broughton v. Heckler, 776 F. 2d 960, 961 (11th Cir.

1985), Choquette v. Comm’r of Soc. Sec., 695 F. Supp. 2d 1311 (M.D. Fla. 2010). The

administrative law judge need not defer to the opinion of a physician who conducted a single

examination because that physician is not a treating physician. McSwain v. Bowen, 814 F.2d

617, 619 (11th Cir. 1987). The opinion of a non-examining physician “taken alone” does not

constitute substantial evidence to support an administrative law judge’s decision. Swindle v.

Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990). But an administrative law judge can rely on a

non-examining physician’s report in denying benefits where it does not contradict information

in the examining physicians’ reports. See Edward v. Sullivan, 937 F.2d 580, 584-85 (11th Cir.

1991). Although the opinion of an examining physician is ordinarily entitled to greater weight

than that of a non-examining physician, the administrative law judge is free to reject the opinion

of any physician when the evidence supports a contrary conclusion. Sryock v. Heckler, 765 F.2d

834, 835 (11th Cir. 1985).

When considering an examining, non-treating medical opinion, “[t]he more a medical

source presents relevant evidence to support an opinion, particularly medical signs and

laboratory findings, the more weight [the administrative law judge] will give that opinion. The

better an explanation a source provides for an opinion, the more weight [the administrative law

judge] will give that opinion.” 20 C.R.F. § 404.1527(c)(3). Moreover, “because non-examining

sources have no examining or treating relationship with [the applicant], the weight [the

administrative law judge] will give their opinions will depend on the degree to which they

provide supporting explanations for their opinions.” Id. In addition, “the more consistent an

opinion is with the record as a whole, the more weight [the administrative law judge] will give

to that opinion.” Id. § 404.1527(c)(4).

Here, substantial evidence supports the weight the ALJ gave to the medical opinions of

Dr. Pasman and Dr. Tessler. As a one-time examiner, Dr. Pasman was not a treating physician,

and the ALJ was not required to afford special deference to his opinions. See McSwain, 814

F.2d at 619. As stated, the ALJ did consider the opinion of Dr. Pasman and the ALJ’s failure to

assign specific weight was harmless. Further, although the opinion of an examining physician

is ordinarily entitled to greater weight than the opinion of a non-examining physician, the ALJ

was free to reject the opinions of Dr. Pasman. Id. The non-examining physician, Dr. Tessler,

explained his conclusions about Plaintiff’s residual functional capacity and his opinion was

consistent with the treatment records as a whole, thus the weight afforded to Dr. Tessler’s

opinion was not in error.

C. Residual Functional Capacity

Finally, Plaintiff contends that the ALJ’s RFC was not supported by substantial

evidence. The ALJ rendered an RFC that Plaintiff could:

[S]tand and/or walk 6 hours in an 8 hour workday and sit for 6 hours in an 8 hour

workday; she can never climb ladders, ropes, or scaffolds; she must have no exposure

to unprotected heights or hazardous machinery; she is limited to no more than

occasional exposure to chemicals, dust, fumes, or gases; she is limited to no more than

occasional interaction with coworkers, supervisors, and public; she can maintain

concentration, persistence, and pace for 95% of the workday exclusive of breaks; and

she will likely miss or leave work early 6 days per year.

(T. 22). At step four of the sequential evaluation process, the ALJ assesses the claimant’s RFC

and ability to perform past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545,

416.920(a)(4)(iv), 416.945. To determine a claimant’s RFC, an ALJ makes an assessment

based on all the relevant evidence of record as to what a claimant can do in a work setting

despite any physical or mental limitations caused by the claimant’s impairments and related

symptoms. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In rendering the RFC, therefore,

the ALJ must consider the medical opinions in conjunction with all the other evidence of record

and will consider all the medically determinable impairments, including impairments that are

not severe, and the total limiting effects of each. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(2) &

(e), 416.920(e), 416.945(a)(2) & (e); see Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)

(stating that the “ALJ must consider the applicant’s medical condition taken as a whole”). In

doing so, the ALJ considers evidence such as the claimant’s medical history; medical signs and

laboratory findings; medical source statements; daily activities; evidence from attempts to

work; lay evidence; recorded observations; the location, duration, frequency, and intensity of

the claimant’s pain or other symptoms; the type, dosage, effectiveness, and side effects of any

medication or other treatment the claimant takes or has taken to alleviate pain or other

symptoms; treatment, other than medication, the claimant receives or has received for relief of

pain or other symptoms; any measures the claimant uses or has used to relieve pain or

symptoms; and any other factors concerning the claimant’s functional limitations and

restrictions. SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017); SSR 96-8p, 1996 WL 374184

(July 2, 1996); 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 404.1545(a)(3), 416.929(c)(3)(i)-(vii),

416.945(a)(3).

First, Plaintiff argues that the ALJ erred when opining that Plaintiff would likely only

miss six days of work per year. According to the record, and as Plaintiff details, between 2017-

2018, Plaintiff was in the hospital or absent due to doctor’s appointments for a total of 26 days.

(Doc. 20, at 30). However, as the Commissioner contends, only one of Plaintiff’s Baker Act

hospitalizations occurred during the relevant period and was for drug and alcohol intoxication

(Tr. 23, 43-45, 549). Further, the Commissioner contends that many of Plaintiff’s visits were

for follow-up appointments that could be made during non-work hours (Doc. 20, at 36);(Tr.

396-99, 430-34, 624-27, 686). The Court agrees with the Commissioner and does not find

Plaintiff’s absenteeism argument availing.

To begin, Plaintiff’s number of medical appointments do not render her disabled.

“[W]hether the number of medical appointments affects her ability to work is not an appropriate

consideration for assessing her residual functional capacity because that determination

considers only the functional limitations and restrictions resulting from medically determinable

impairments.” Cherkaoui v. Comm’r of Soc. Sec., 678 Fed.Appx. 902, 904 (11th Cir.

2017)(citing SSR 96-8p). Moreover, the number of medical appointments she attended “is not

a functional limitation caused by her impairments that would affect her physical or mental

capabilities.” Id. However, in determining a Plaintiff’s RFC, the ALJ must consider all the

relevant evidence of record, including the effects of treatment, taking into consideration

limitations or restrictions imposed by the mechanics of treatment, such as the frequency of

treatment, duration, and disruption to routine. SSR 96-8p, 1996 WL 374184, at *5 (July 2,

1996). Though the Eleventh Circuit has rejected the argument that numerous medical

appointments render a claimant disabled, Cherkaoui 678 F.Appx. at 904, the ALJ must still

consider the effects of a claimant’s treatment in conjunction with the other evidence of record.

In this instance, the ALJ did so. The ALJ discussed Plaintiff’s hospitalizations and all the

medical treatment Plaintiff received prior to the date of the decision (Tr. 24-27). In doing so,

the ALJ considered the length and nature of the treatment (Tr. 24-27).

Additionally, as the Commissioner contends, and as the record supports, Plaintiff was

not required, nor would be required, to schedule her medical appointments during working

hours so that they would interfere with her ability to obtain work. Id. Further, although Plaintiff

was Baker Acted a total of four times since 2017, only the Baker Act in April 2018 was during

the relevant period and it was partly due to drug and alcohol intoxication (Tr. 24, 548-51).

Plaintiff was subsequently released after treatment with medication (T. 550). The ALJ also

accounted for Plaintiff’s absenteeism in rendering her RFC by stating that Plaintiff would miss

approximately six days of work a year (T. 22). Therefore, Plaintiff failed to demonstrate that

her condition, or any attendant medical treatment or hospitalizations, established disabling

limitations for a consecutive twelve-month period. See 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A); 20 C.F.R. §§ 404.1509, 416.909. Nor did Plaintiff establish that her

impairments prevented her from performing work within the confines of the RFC or as

identified by the VE. Instead, the ALJ properly considered the evidence of record, including

the evidence from Plaintiff’s 2017-2018 hospitalizations, medical appointments, and all

subsequent treatment notes. In this regard, substantial evidence supports the ALJ’s decision,

and the ALJ applied the proper legal standards.

Next, Plaintiff contends that the ALJ failed to properly consider her physical and mental

limitations2 with regard to her use of a cane, as well as her chronic and acute asthma and

bronchitis when rendering her RFC. Plaintiff argues that substantial evidence does not support

the RFC that she can stand and walk for six out of eight hours a day as well as occasional

exposure to chemicals, dusts, fumes, or gases. First, the record supports that the ALJ properly

considered Plaintiff’s use of her cane and diagnosis of diabetic peripheral neuropathy when

rendering Plaintiffs RFC. “To find that a hand-held assistive device, such as a cane, is medically

required, there must be medical documentation establishing the need for a hand-held assistive

device to aid in walking or standing, and describing the circumstances for which it is needed

(i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and

any other relevant information)” Norman v. Comm’r of Soc. Sec., 2015 WL 4397150, at *5

(M.D. Fla. July 16, 2015) (citing Wright v. Colvin, 2014 WL 5591058, at *4 (S.D. Ga. 2014).

(quoting SSR 96–9p, 1996 WL 374185, at *7) (internal quotations omitted). “Moreover, a

prescription or the lack of a prescription for an assistive device is not necessarily dispositive of

medical necessity.” See Id. (citing Staples v. Astrue, 329 F. Appx. 189, 191 (10th Cir. 2009).

Here, the ALJ listed diabetic peripheral neuropathy as one of Plaintiff’s severe

impairments (T. 18). The ALJ did recognize that Plaintiff has limitations caused by her back,

knee, and hip pain, but the ALJ incorporated those limitations into his RFC by restricting her

to light work. In rendering her RFC, the ALJ relied upon treatment notes and hospital records

indicating right knee, hip, and back pain, but noted conservative treatments (T. 408, 695-696).

The ALJ explained that May 2017 imaging revealed no abnormalities of the back, and Plaintiff

2 Plaintiff also argues that the ALJ erred in rendering her RFC by failing to consider the

medical records of Dr. Kamat as well as not affording proper weight to Dr. Pasman’s report.

As the Court has already addressed these arguments, the Court will focus only on Plaintiff’s

remaining two issues regarding the ALJ’s consideration of Plaintiff’s walking and breathing

was diagnosed with back sprain and treated conservatively (Tr. 25-26, 728). Plaintiff

subsequently reported right lower extremity pain following a fall, but the ALJ noted that her

examination revealed full range of motion, intact sensation, and full strength, as well as negative

x-ray findings (Tr. 26, 430-33). Additionally, multiple reports indicate that Plaintiff had normal

gait/station, normal coordination, full range of motion of the bilateral knees, and no weakness

(Tr. 26, 800, 805, 822, 848, 864, 868, 871). Indeed, the ALJ noted that treatment notes in May

of 2018 showed Plaintiff was using a cane due to right foot, right hip, and right knee pain (T.

18). However, the ALJ discussed that the treatment notes revealed the cane was used for balance

due to right lower extremity pain, but there was no indication that a cane was prescribed or

medically necessary for the Plaintiff (T. 19). Further, the ALJ explained that “examination notes

from Tampa Orthopedic Medical Group in December of 2018 indicated normal gait/station,

normal coordination, full range of motion of the bilateral knees, no valgus/varus instability of

the bilateral knees, no weakness of the bilateral knees, no effusion/crepitus of the bilateral

knees, no tenderness of the left knee, and lateral joint line tenderness of the right knee (Hearing

Testimony and Exhibits B11F, B25F, B26F, and B28F).” (T. 19, 862-872). Thus, the ALJ

determined that the cane was not medically necessary and relied upon sufficient evidence in

rendering Plaintiff’s RFC.

Similarly, the ALJ listed asthma as a severe impairment for Plaintiff (T. 18). The ALJ

considered Plaintiff’s breathing impairments throughout his decision and therefore limited

Plaintiff to only occasional exposure to chemicals, dust, fumes, or gases (T. 25-26). The ALJ

noted that Plaintiff had normal pulmonary/chest examinations consistently indicating normal

effort, normal breath sounds, no respiratory distress, no wheezes, and no rales, and an

unremarkable spirometric pulmonary function test (Tr. 25, 389, 401, 410, 442, 445, 616, 693,

698, 723, 727, 742, 817, 832). The ALJ also explained that Plaintiff’s asthma was treated

conservatively with breathing treatments (Tr. 25, 789). Plaintiff has failed to demonstrate that

her asthma is more limiting than occasional exposure precluding her from working as a retail

marker, garment sorter, and laundry folder. Thus, based upon the record, the ALJ relied upon

sufficient evidence in rendering Plaintiff’s RFC and properly accounted for her breathing and

walking limitations. As such, remand is unwarranted.

IV.

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is AFFIRMED.

2. The Clerk is directed to enter final judgment in favor of the Commissioner and close

the case.

DONE AND ORDERED in Tampa, Florida, on this 25th day of September, 2020.

Fe ce

Le]. Ys —

pry Pee

ANTHONY © PORCELLL

United Sfates Magistrate Judge

cc: Counsel of Record