Swingle v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

TERESA BROWN SWINGLE,

Plaintiff,

v. CASE NO. 6:20-cv-365-Orl-MCR

COMMISSIONER OF THE SOCIAL

SECURITY ADMINISTRATION,

Defendant.

______________________________/

MEMORANDUM OPINION AND ORDER1

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

decision regarding her application for a period of disability and disability

insurance benefits (“DIB”). Following an administrative hearing held on

September 24, 2019, the assigned Administrative Law Judge (“ALJ”) issued a

decision, finding Plaintiff not disabled from May 29, 2015, the alleged disability

onset date, through October 9, 2019, the date of the ALJ’s decision.2 (Tr. 11-18,

23-46, 147.) Based on a review of the record, the briefs, and the applicable law,

the Commissioner’s decision is AFFIRMED.

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

Magistrate Judge. (Doc. 16.)

2 Plaintiff had to establish disability on or before December 31, 2020, her date

last insured, in order to be entitled to a period of disability and DIB. (Tr. 11.)

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’r 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).

II. Discussion

A. Issue on Appeal

Plaintiff argues that the ALJ erred by failing to apply the correct legal

standards and by making findings not supported by substantial evidence in

rejecting the opinion of William Erhard Eyring, III, Psy.D., a one-time examining

consultant. (Doc. 18 at 7, 9.) Plaintiff points out that the ALJ erroneously stated

that only “mild type limitations” were included in Dr. Eyring’s opinion while Dr.

Eyring specifically opined that Plaintiff was moderately impaired in her ability to

respond to day-to-day stress. (Id. at 8.) Plaintiff argues that the ALJ erred in

failing to account for this moderate limitation in the residual functional capacity

(“RFC”) assessment. (Id. (citing SSR 85-15).) Plaintiff adds that the ALJ failed

to cite to any evidence in support of his conclusory finding that Dr. Eyring’s

opinion was not supported by and consistent with the generally normal mental

status exam findings. (Id. at 9.)

Defendant responds that the ALJ properly evaluated Dr. Eyring’s opinion

under the revised rules and regulations that apply to claims, such as Plaintiff’s

application, filed on or after March 27, 2017 and found the doctor’s opinion not

fully persuasive. (Doc. 19.) Defendant argues that in light of the generally

normal mental status exam findings reported by Dr. Eyring and the other medical

sources, substantial evidence supports the ALJ’s evaluation of Dr. Eyring’s

opinion. (Id.)

B. Standard for Evaluating Opinion Evidence

The ALJ is required to consider all the evidence in the record when making

a disability determination. See 20 C.F.R. § 404.1520(a)(3). With regard to

medical opinions, the rules in 20 C.F.R. § 404.1520c apply to claims filed on or

after March 27, 2017.3 See Revisions to Rules Regarding the Evaluation of

Medical Evidence, 82 F.R. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Because

Plaintiff’s claim was filed after March 27, 2017, the Court applies the revised

rules and regulations in effect at the time of the ALJ’s decision.

Under the revised rules and regulations, the ALJ need “not defer or give

any specific evidentiary weight, including controlling weight, to any medical

opinion(s) . . . , including those from [the claimant’s] medical sources.” 20 C.F.R.

§ 404.1520c(a). The ALJ will articulate in the administrative decision how

persuasive all of the medical opinions are in the case record, 20 C.F.R. §

404.1520c(b), but need not articulate how evidence from non-medical sources

has been considered, 20 C.F.R. § 404.1520c(d).

“When a medical source provides one or more medical opinions,” those

opinions will be considered “together in a single analysis,” using the factors listed

in 20 C.F.R. § 404.1520c(c)(1) through (c)(5), as appropriate. 20 C.F.R. §

404.1520c(a), (b)(1). The ALJ is “not required to articulate how [he/she]

considered each medical opinion . . . from one medical source individually.” 20

C.F.R. § 404.1520c(b)(1).

When evaluating the persuasiveness of medical opinions, the most

3 The rules in 20 C.F.R. § 404.1527 apply to claims filed before March 27, 2017.

important factors are supportability4 and consistency.5 20 C.F.R. § 404.1520c(a),

(b)(2). Thus, the ALJ “will explain how [he/she] considered the supportability and

consistency factors for a medical source’s medical opinions” in the determination

or decision but is not required to explain how he/she considered the rest of the

factors listed in 20 C.F.R. § 404.1520c(c). 20 C.F.R. § 404.1520c(b)(2). When

“two or more medical opinions . . . about the same issue are both equally well-

supported . . . and consistent with the record . . . but are not exactly the same,”

the ALJ will articulate how he/she considered the other most persuasive factors

listed in 20 C.F.R. § 404.1520c(c)(3) through (c)(5), which include a medical

source’s relationship with the claimant,6 specialization, and other factors.7 20

C.F.R. § 404.1520c(b)(3).

4 “The more relevant the objective medical evidence and supporting explanations

presented by a medical source are to support his or her medical opinion(s) . . . , the

more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1).

5 “The more consistent a medical opinion(s) . . . is with the evidence from other

medical sources and nonmedical sources in the claim, the more persuasive the medical

opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).

6 The relationship with the claimant factor combines consideration of the

following issues: the length of the treatment relationship, the frequency of the

examinations, the purpose of the treatment relationship, the extent of the treatment

relationship, and the examining relationship. 20 C.F.R. § 404.1520c(c)(3)(i)-(v).

7 The other factors may include: the medical source’s familiarity with the other

evidence in the claim; the medical source’s understanding of the disability program’s

policies and evidentiary requirements; and the availability of new evidence that may

render a previously issued medical opinion more or less persuasive. 20 C.F.R. §

404.1520c(c)(5).

C. Relevant Evidence of Record

1. Dr. Eyring’s Consultative Evaluation

On September 11, 2018, Plaintiff presented to Dr. Eyring for a General

Clinical Evaluation with Mental Status at the request of the Office of Disability

Determinations. (Tr. 655.) Plaintiff alleged disability due to “fibromyalgia, mental

and heart problems.” (Id.) Plaintiff reported 100% service-connected8 disability

and a history of anxiety with “a racing heart and inability to focus.” (Id.) Dr.

Eyring noted the following psychiatric history:

For the past ten years, Mrs. Swingle has been prescribed Lexapro

for anxiety (as needed; this is prescribed by a VA psychiatrist—she

avoids taking this since being prescribed Flexeril). She also takes a

dietary supplement (5-HTP) for mood stabilization. She has been

prescribed psychotropic medications since 1992 (including Buspar

and Effexor). She has received counseling for the past 18 months

(2-4 times monthly; related to conflict with her daughter). She

denied a history of psychiatric hospitalizations.

(Tr. 656.)

Plaintiff’s examination was generally normal, except “[h]er thought process

was tangential and she required some redirection to remain on task,” “[h]er affect

was blunted,” and “[h]er social judgment was fair to good.” (Id.) Dr. Eyring

8 Records from the Department of Veterans Affairs (“VA”) indicate that Plaintiff

was honorably discharged from the Air Force on September 7, 1993 and was awarded

a monthly benefit for her service-connected disabilities, including fibromyalgia, allergic

or vasomotor rhinitis, neurogenic bladder, removal of uterus and ovaries, and

neurosis/general anxiety disorder. (Tr. 261, 632-33.) Plaintiff was also found disabled

for her position as a program analyst by the Office of Personnel Management “due to

fibromyalgia, chronic pain, and numbness and tingling from head to toe on the right side

of the body,” even though Plaintiff also claimed disability due to anxiety disorder, among

other conditions. (Tr. 516.)

diagnosed somatic symptom disorder with predominant pain and generalized

anxiety disorder. (Tr. 657.) He noted:

Mrs. Swingle reported that she has a driver’s license but avoids

driving due to experiencing anxiety in heavy traffic. She maintains

close friendships and enjoys bowling and dining out. At home, she

“helps” with cooking and laundry (she does not sweep or vacuum).

She is reportedly self-sufficient with regard to her personal hygiene.

She denied recent insomnia.

. . .

Mrs. Swingle reported that her ability to work has been impaired by

daily anxiety and fibromyalgia pain since 1992 (she retired in 2015).

She reported recent financial and family stress.

(Tr. 656.)

Dr. Eyring’s prognosis was “fair.” (Tr. 657.) He recommended that Plaintiff

continue with pain management, psychotropic medication, and individual

counseling to improve her mood. (Id.) His Medical Source Statement (“MSS”)

read as follows:

The claimant’s ability to understand and remember simple

instructions was intact. Her ability to attend and follow through on

complex tasks is judged to be mildly impaired. Her ability to make

judgments appears mildly impaired, interact effectively with others

appears mildly impaired, and respond to day-to-day stress appears

moderately impaired.

(Id.)

2. State Agency Non-Examining Consultants

On September 26, 2018, after reviewing the records available as of that

date (including Dr. Eyring’s evaluation), Jermaine Robertson, Ph.D. completed a

Psychiatric Review Technique (“PRT”), opining that Plaintiff’s mental impairments

were non-severe and she was “mentally capable of engaging in work-related

activity.” (Tr. 53-54.) Dr. Robertson opined that Plaintiff had mild limitations in

interacting with others and in concentration, persistence, or pace, and no

limitations in understanding, remembering, or applying information, and in

adapting or managing oneself. (Tr. 53.)

On December 5, 2018, after reviewing the records available as of that

date, Lawrence Annis, Ph.D. completed a PRT, opining that Plaintiff’s mental

condition was non-severe. (Tr. 68-69.) He stated: “Account of ADLs [i.e.

activities of daily living] and objective evidence indicate [a] mild overall functional

impairment due to [the claimant’s] mental condition. [Claimant] presents the

mental capacity to perform simple and complex occupational tasks within her

physical ability.” (Tr. 69.) Dr. Annis opined that Plaintiff had mild limitations in

interacting with others and in concentration, persistence, or pace, and no

limitations in understanding, remembering, or applying information, and in

adapting or managing oneself. (Id.)

D. The ALJ’s Decision

At step two of the sequential evaluation process,9 the ALJ found that

Plaintiff had the following severe impairments: degenerative disc disease of the

cervical spine, osteopenia, fibromyalgia, mitral valve prolapse, and intestitial lung

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

20 C.F.R. § 404.1520(a)(4).

disease. (Tr. 13.) The ALJ determined that Plaintiff’s generalized anxiety

disorder and adjustment disorder, among others, were non-severe impairments,

because:

Overall, the claimant’s impairments . . . were mild in nature and

appeared to be controlled with medical management and monitoring

. . . . In addition, the State agency psychological consultants

completed psychiatric review techniques and opined that the

claimant’s mental impairments are not severe . . . . The opinion of

the doctors are [sic] supported by a review of the medical evidence

of record and consistent with the claimant’s conservative medical

management. In addition, another consultative examiner opined

similar findings indicating mild type limitations upon a psychological

evaluation (Ex. 5F). The opinion is considered not fully persuasive,

as no specific work limits were given[,] and it was not supported by

and consistent with the generally normal mental status exam

findings. . . .

The claimant’s medically determinable mental impairments, as

mentioned, such as generalized anxiety disorder and adjustment

disorder considered singly and in combination, do not cause more

than minimal limitation in the claimant’s ability to perform basic

mental work activities and are therefore non[-]severe.

(Tr. 13-14.)

Also as part of step two, the ALJ addressed the four broad areas of mental

functioning, known as the “paragraph B” criteria, as follows:

The first functional area is understanding, remembering, or applying

information. In this area, the claimant has no limitation. The

claimant was noted to have issues with memory, understanding and

following instructions. However, the claimant was noted to have the

ability to perform numerous activities of daily living. Furthermore,

the claimant was able to adequately report mental health symptoms

to medical providers in the medical evidence of record . . . .

The next functional area is interacting with others. In this area, the

claimant has a mild limitation. The claimant reported issues with

getting along with others due to ongoing mental health symptoms.

However, the claimant was noted to live with family, and spend time

with others . . . .

The third functional area is concentrating, persisting, or maintaining

pace. In this area, the claimant has a mild limitation. The claimant

reported issues with memory, completing tasks, concentration,

understanding, and following instructions. However, the claimant

was able to perform numerous activities of daily living that require a

degree of concentration, persistence, and pace . . . .

The fourth functional area is adapting or managing oneself. In this

area, the claimant has no limitation. The claimant lives with family,

takes care of pets, attends to personal care needs, prepares meals,

performs household duties, drives a car, shops in stores, plays

games, and spends time with others . . . .

(Tr. 14.)

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. 15.) Then, before proceeding to step four, the ALJ

determined that Plaintiff had the RFC to perform light work, except she could

frequently balance; occasionally stoop, kneel, crouch, crawl, and climb ramps,

stairs, ladders, ropes, or scaffolds; and have occasional exposure to unprotected

heights, moving mechanical parts, dust, odors, fumes, pulmonary irritants,

extreme cold, extreme heat, and vibration. (Id.) In making these findings, the

ALJ discussed Plaintiff’s complaints, the medical evidence, and the medical

opinions regarding Plaintiff’s physical impairments/limitations. (Tr. 16-18.) In

support of his RFC assessment, the ALJ stated:

The undersigned has reviewed and analyzed all evidence of record,

including medical records, whether or not they have been specifically

discussed in the decision. In sum, the above [RFC] assessment is

supported by the objective medical evidence contained in the record.

Treatment notes in the record do not sustain the claimant’s

allegations of a disabling impairment. The persuasiveness of the

claimant’s allegations is weakened by inconsistencies between her

allegations and the medical evidence of record. The undersigned

finds that the claimant experienced some limitations but only to the

extent described in the [RFC] above.

(Tr. 18.)

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

performing her past relevant work of both a payroll clerk and a program analyst,

as generally performed. (Id.) Thus, the ALJ concluded that Plaintiff was not

disabled from May 29, 2015 through October 9, 2019. (Id.)

E. Analysis

The Court finds that the ALJ’s decision is based on correct legal standards

and is supported by substantial evidence in the record. The ALJ properly

addressed the supportability and consistency factors set forth in 20 C.F.R. §§

404.1520c(c)(1) & (c)(2) in regard to Dr. Eyring’s opinion. (Tr. 14.) Also, the

ALJ’s finding that Dr. Eyring’s opinion was “not fully persuasive,” because “no

specific work limits were given and it was not supported by and consistent with

the generally normal mental status exam findings”, is supported by substantial

evidence in the record.

First, the ALJ properly observed that Dr. Eyring did not assess any specific

work limits.10 (Tr. 14, 655-57.) The ALJ also correctly noted that Dr. Eyring’s

10 Dr. Eyring opined that Plaintiff was mildly impaired in her ability to attend to

and follow through on complex tasks, to make judgments, and to interact effectively with

findings were similar to those of the State agency psychological consultants, Dr.

Robertson and Dr. Annis, in that he “indicat[ed] mild[-]type limitations.” (Tr. 14,

657 (indicating a mild limitation in the ability to attend to and follow through on

complex tasks, to make judgments, and to interact effectively with others).)

Although Dr. Eyring also indicated that Plaintiff’s ability to “respond to day-to-day

stress appear[ed] moderately impaired” (Tr. 657), the ALJ found Dr. Eyring’s

opinion “not supported by and consistent with the generally normal mental status

exam findings” (Tr. 14). The ALJ’s finding as to the supportability and

consistency of Dr. Eyring’s opinion is supported by substantial evidence in the

record. (See, e.g., Tr 544-50 (noting, as of June 21, 2017, that Plaintiff’s mood

was normal, her screen for depression was negative, and she stopped Lexapro,

which was prescribed for adjustment disorder); Tr. 538 & 716 (noting mild

depression and mild anxiety based on screening performed on February 5, 2018

and also noting that Plaintiff “ask[ed] for ongoing therapy to help with her

adjusting to all of the changes in her life as well as for a refill of escitalopram”);

Tr. 708 (noting normal mood and affect as of June 29, 2018); Tr. 670-73 (noting

mild depression and mild anxiety based on screening performed on November

others, and moderately impaired in her ability to respond to day-to-day stress. (Tr. 657.)

If the ALJ had found some or all of these impairments supported by and consistent with

the record, the ALJ would have assessed specific work-related limitations to account for

the impairments. However, as stated infra, the ALJ did not need to take into account

Dr. Eyring’s assessed impairments when determining the RFC, because Dr. Eyring’s

opinion was not supported by substantial evidence in the record. Cf. SSR 85-15 (“Any

impairment-related limitations created by an individual’s response to demands of work

[i.e., stress] . . . must be reflected in the RFC assessment.”) (emphasis added).

21, 2018); Tr. 761-68 (noting minimal depression and mild anxiety as of February

19, 2019, and reporting that the medical marijuana was helping a lot with the

anxiety and was helping Plaintiff “focus on one thing at a time”); Tr. 729 (noting

normal mental examination findings as of June 6, 2019); Tr. 731 (noting normal

mental examination findings as of June 13, 2019); Tr. 755 (noting normal mood

and affect as of June 27, 2019); but see Tr. 646-51 (noting, as of September 8,

2018, that Plaintiff “exhibited mental abnormalities, angry demeanor, [was]

anxious, [and] her responses had a ‘bitter’ tone to them,” and opining that

Plaintiff’s mental problems “seem[ed] to be the vast majority of her problems” and

that she needed a psychological evaluation11); Tr. 773-76 (noting anxious and

dysphoric mood, blunted affect, moderate depression, and mild anxiety as of

December 17, 2018).) Because the ALJ’s evaluation of Dr. Eyring’s opinion was

based on correct legal standards and was supported by substantial evidence, the

ALJ did not err in failing to account for Dr. Eyring’s assessed impairments in the

RFC assessment.

III. 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

11 This examination by Dr. Donna Lester took place two days before Dr. Eyring’s

evaluation.

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

on this standard of review, 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 accordingly,

terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, on November 16, 2020.

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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