Perez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

VERONICA RIVERA PEREZ,

Plaintiff,

v. Case No: 6:20-cv-79-Orl-LRH

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

MEMORANDUM OF DECISION

Veronica Rivera Perez (“Claimant”) appeals the final decision of the Commissioner of

Social Security (“Commissioner”) denying her application for disability benefits. (Doc. 1). The

Claimant raises a single argument challenging the Commissioner’s final decision, and, based on that

argument, requests that the matter be reversed and remanded for further proceedings. (Doc. 19 at

19-23, 29). The Commissioner argues that the Administrative Law Judge (“ALJ”) committed no

legal error and that her decision is supported by substantial evidence and should be affirmed. (Id.

at 23-29). Upon review of the record, the Court finds that the Commissioner’s final decision is due

to be AFFIRMED.

I. Procedural History

This case stems from the Claimant’s August 3, 2015 application for disability insurance

benefits, in which she alleged a disability onset date of November 7, 2014. (R. 233-39). The

application was denied on initial review and on reconsideration. The matter then proceeded before

an ALJ, who held a hearing on April 2, 2018. (R. 44-69). The Claimant and her representative

attended the hearing. (Id.). On January 24, 2019, the ALJ entered a decision denying the

Claimant’s application for disability benefits. (R. 21-37). The Claimant requested review of the

ALJ’s decision, but the Appeals Council denied her request. (R. 1-3). This appeal followed.

II. The ALJ’s Decision

The ALJ performed the five-step evaluation process set forth in 20 C.F.R. § 404.1520(a)(4)

in reaching her decision.1 First, the ALJ found the Claimant met the insured status requirements

of the Social Security Act through December 31, 2019, and that she has not engaged in substantial

gainful activity since the alleged onset date. (R. 23). The ALJ next found that the Claimant suffers

from the following severe impairments: bilateral carpal tunnel syndrome; Raynaud’s syndrome;

obesity; cardiomegaly; osteoarthritis; and, degenerative disc disease. (R. 24). The ALJ also found

the Claimant suffers from the following non-severe impairments: diabetes mellitus; hypertension;

history of deep vein thrombosis; anxiety disorder with panic attacks; and, major depressive disorder,

mild. (R. 26). The ALJ, however, found that none of the Claimant’s impairments, individually or

in combination, met or medically equaled any listed impairment. (R. 29-30).

The ALJ next found that the Claimant has the residual functional capacity (“RFC”) to

perform light work as defined by 20 C.F.R. § 404.1567(b)2 with the following additional

1 An individual claiming Social Security disability benefits must prove that he or she is

disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Jones v. Apfel, 190 F.3d

1224, 1228 (11th Cir. 1999)). The five steps in a disability determination include: (1) whether the

claimant is performing substantial, gainful activity; (2) whether the claimant’s impairments are

severe; (3) whether the severe impairments meet or equal an impairment listed in 20 C.F.R. Part

404, Subpart P, Appendix 1; (4) whether the claimant can return to his or her past relevant work;

and (5) based on the claimant’s age, education, and work experience, whether he or she could

perform other work that exists in the national economy. See generally Phillips v. Barnhart, 357

F.3d 1232, 1237 (11th Cir. 2004) (citing 20 C.F.R. § 404.1520).

2 Light work is defined as “lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a

job is in this category when it requires a good deal of walking or standing, or when it involves sitting

most of the time with some pushing and pulling of arm or leg controls. To be considered capable

of performing a full or wide range of light work, you must have the ability to do substantially all of

these activities.” 20 C.F.R. § 404.1567(b).

limitations:

[S]he can frequently balance, stoop, kneel and climb ramps and stairs. The claimant

can occasionally crouch, crawl and climb ladders, ropes and scaffolds. She can

occasionally handle, finger and feel bilaterally.

(R. 30). In light of this RFC, the ALJ found that the Claimant is unable to perform her past relevant

work. (R. 35). The ALJ, however, found that the Claimant could perform other work in the

national economy, including work as a counter clerk and furniture rental consultant. (R. 35-36).

Accordingly, the ALJ concluded that the Claimant was not disabled between her alleged onset date

(November 7, 2014) through the date of the decision (January 24, 2019). (R. 36-37).

III. Standard of Review

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

the correct legal standards and whether the Commissioner’s findings of fact are supported by

substantial evidence. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The

Commissioner’s findings of fact are conclusive if they are supported by substantial evidence, 42

U.S.C. § 405(g), which is defined as “more than a scintilla and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F.3d

1436, 1440 (11th Cir. 1997). The Court must view the evidence as a whole, taking into account

evidence favorable as well as unfavorable to the Commissioner’s decision, when determining

whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d 1553, 1560

(11th Cir. 1995). The Court may not reweigh evidence or substitute its judgment for that of the

Commissioner, and, even if the evidence preponderates against the Commissioner’s decision, the

reviewing court must affirm it if the decision is supported by substantial evidence. Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

IV. Analysis

The Claimant raises a single argument on appeal – the ALJ failed to satisfy her duty to fully

and fairly develop the record with respect to her mental impairments. (Doc. 19 at 19-23). The

Commissioner contends that the ALJ had sufficient evidence to make an informed decision and the

Claimant has not shown any evidentiary gaps in the record that prejudiced her claim for disability

benefits. (Id. at 23-29).

The ALJ has a basic duty to develop a full and fair record. Graham v. Apfel, 129 F.3d 1420,

1422 (11th Cir. 1997).3 This obligation requires the ALJ to develop the claimant’s complete

medical history for at least the 12 months preceding the month in which the application was filed,

assist the Claimant in obtaining evidence from his or her treating sources, and order a consultative

examination when such an examination is necessary to make an informed decision. 20 C.F.R. §

404.1512(b)(1)-(2). “Ordering a consultative examination is a discretionary matter for the ALJ and

would be sought ‘to try to resolve an inconsistency in the evidence or when the evidence as a whole

is insufficient to support a determination or decision’ on the claim.” Banks for Hunter v. Comm’r,

Soc. Sec. Admin., 686 F. App’x 706, 713 (11th Cir. 2017); 20 C.F.R. § 404.1519a(b).4

There must be a showing that the ALJ’s failure to develop the record led to evidentiary gaps

in the record, which resulted in unfairness or clear prejudice, before the court will remand a case for

further development. Graham, 129 F.3d at 1423 (citing Brown, 44 F.3d at 934-35). At a

3 The basic duty to develop the record rises to a “special duty” where the claimant has not

waived his or her right to representation and is not represented during the administrative

proceedings. Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995). In this case, the Claimant

was represented during the administrative proceedings. (R. 21, 44, 46). The ALJ therefore only

had a basic duty to develop the record.

4 In the Eleventh Circuit, “[u]npublished opinions are not considered binding precedent, but

they may be cited as persuasive authority.” 11th Cir. R. 36-2.

minimum, clear prejudice “requires a showing that the ALJ did not have all of the relevant evidence

before him in the record . . . or that the ALJ did not consider all of the evidence in the record in

reaching his decision.” Kelly v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985); see also 20 C.F.R.

§ 404.1519a(b) (listing situations that may require a consultative examination).

The Claimant has a lengthy history of mental impairments, including depression and

anxiety disorder with panic attacks. (E.g. R. 399, 577, 605, 745). Prior to the alleged onset date,

the Claimant treated with several psychiatrists, who, among other things, prescribed the Claimant

several medications, including paroxetine and clonazepam, to control her mental impairments.

(R. 803-04, 814-50). The Claimant continued this course of treatment into the relevant period.

(E.g. R. 574, 580-81, 745).

After the Claimant applied for disability benefits, she was referred for two mental health

evaluations. (R. 802-13). The first evaluation occurred on September 17, 2015, at which the

Claimant was found to have: adequate visual contact; cooperative attitude; adequate speech;

logical, relevant, and coherent train of thought; dysthymic mood; congruent affect; normal thought

process and content; no perceptual disorder; and, adequate attention. (R. 808-13). The second

evaluation occurred on March 1, 2016, at which the Claimant, who had just experienced the death

of a grandparent, was found to look tense, anxious, and tearful. (R. 802-07). The Claimant was

also found to have: good eye contact; restricted affect; depressed mood; logical, coherent, and

relevant thinking process; no suicidal or homicidal ideations; no perceptual disturbances; and

relatively good memory, attention, and concentration.5 (R. 805).

5 It appears the Claimant had some short-term memory deficits, while her immediate, recent,

and long-term memory appeared to be intact. (R. 805).

The medical records post-dating the second mental health evaluation contain scant

evidence, none of which are from a mental health professional, about the Claimant’s mental

impairments. This appears to be so because the Claimant often did not complain of any mental

health issues, other than to report that she has a history of anxiety, depression, and panic attacks

for which she has been and continues to be treated with medication. (See R. 602-05, 702, 708-

23, 744-46). Even though the Claimant did not complain about her mental impairments, her

primary care physician gave her a psychiatry referral in February 2018. (R. 718-23). The

Claimant apparently did not follow through with the referral since the record does not contain any

psychiatric treatment records post-dating February 2018. (See R. 708-18, 744-46). Instead, a

treatment note from the Claimant’s primary care physician dated March 2, 2018, reveals that she

continued to take paroxetine and clonazepam and her panic disorder was stable. (R. 745).

Subsequent treatment notes are all but silent about the Claimant’s mental impairments. (R. 708-

18).

The ALJ considered the foregoing evidence, which lead her to conclude that the Claimant’s

mental impairments were not severe. (R. 26-29). The Claimant, however, contends the record

before the ALJ was inadequate because it contained large gaps between the last time she treated

with a mental health professional (August 25, 2014), underwent a mental health evaluation (March

1, 2016), and the date of the ALJ’s decision (January 24, 2019). (Doc. 19 at 20-22). The

Claimant argues that she continued to suffer from mental impairments after the second mental

health evaluation and, as a result, the ALJ should have “obtained updated mental health treatment

records (if there were any such records after August 25, 2014) or . . . ordered an updated mental

consultative examination” so she could make an informed decision about the severity of the

Claimant’s mental impairments and any limitations they may cause. (Id. at 22-23). Since the

ALJ did neither, the Claimant argues that she was prejudiced by the ALJ’s failure to fully and

fairly develop the record. (Id. at 23). The Court is not persuaded.

The Claimant has not shown any evidentiary gaps when it comes to her mental

impairments. Instead, the record contains ample evidence on the subject, including treatment

notes both pre-dating and post-dating the alleged onset date that address the Claimant’s mental

impairments, and two mental health evaluations post-dating the alleged onset date. Indeed, the

fact that the Claimant did not identify a single treatment note missing from the record (see Doc.

19 at 23) undermines her position that the ALJ did not fully and fairly develop the record. See

Pennington v. Comm’r of Soc. Sec., 652 F. App’x 862, 871-72 (11th Cir. 2016) (holding that the

plaintiff could not show prejudice from the ALJ’s alleged failure to develop the record where the

plaintiff failed to assert the existence of any medical records that were not considered by the ALJ);

Nunez v. Berryhill, No. 1:16-cv-23692-LFL, 2018 WL 6308681, at *11 (S.D. Fla. Sept. 27, 2018)

(finding ALJ did not fail to develop the record, in part, because the claimant did not identify any

specific piece of evidence that was purportedly missing from the administrative record).6

The same is true with respect to the Claimant’s argument regarding the procurement of a

third mental health evaluation. The ALJ considered two such evaluations from the relevant

period. (R. 26-27 (citing R. 802-13)). While the evaluations occurred early during the relevant

6 The Claimant contends that this case is similar to Pastures v. Colvin, No. 3:14-cv-718-J-

JRK, 2015 WL 5714761, at *4-6 (M.D. Fla. Sept. 28, 2015), wherein the court found that the ALJ

did not satisfy his duty to develop a full and fair record because he was aware of missing medical

records relevant to the claimant’s case and failed to either obtain those records or order a consultative

examination. (Doc. 19 at 20). Pastures is distinguishable because there is nothing in the present

case showing that the ALJ was aware of evidence that was not in the record. Indeed, the ALJ had

no reason to think there was additional evidence since the Claimant’s representative confirmed that

the record was complete. (R. 48). Moreover, as noted above, the Claimant has not identified any

missing treatment notes or other medical records. Accordingly, the Claimant’s reliance on

Pastures is misplaced.

period, the Claimant has not shown any inconsistency in the evidence discussing her mental

impairments or that her mental impairments worsened following the evaluations. Instead, the

record tends to show that the Claimant’s mental impairments were, at the very least, stable. This

is evident from the Claimant’s lack of mental health complaints (See R. 602-05, 702, 708-23, 744-

46), the failure to follow through with a psychiatric referral, and a report that her panic disorder

was stable (R. 745). Considering this evidence, all of which post-dates the last mental health

evaluation, the Court finds there was no evidentiary gap that needed to be filled with a third mental

health evaluation. See Wind v. Barnhart, 133 F. App’x 684, 693 (11th Cir. 2005) (noting that an

ALJ is “not required to seek additional independent expert medical testimony before making a

disability determination if the record is sufficient and additional expert testimony is unnecessary”).

In light of the foregoing, the Court finds that the Claimant has not shown any evidentiary

gaps with respect to her mental impairments. Further, even if a gap existed, the Claimant has not

shown how the lack of additional evidence, particularly a third mental health evaluation,

prejudiced her claim for disability. Instead, as discussed above, the evidence post-dating the

Claimant’s two mental health evaluations essentially show that her mental impairments, while still

being treated with medication, were stable to the point where she did not complain about them to

her treating providers. (See R. 602-05, 702, 708-23, 744-46). In light of this evidence, which

the ALJ considered, the Claimant has not shown that an updated mental health examination would

have affected the ALJ’s ultimate determination. Accordingly, the Claimant has not shown that

the ALJ failed to develop a full and fair record and, therefore, her sole assignment of error is

rejected.

V. CONCLUSION

Based on the foregoing, itis ORDERED that:

1. The final decision of the Commissioner is AFFIRMED.

2. The Clerk of Court DIRECTED to enter judgment in favor of the Commissioner

and CLOSE the case.

DONE and ORDERED in Orlando, Florida on January 28,2021.

LESLIE R. HOFFMAN

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

Unrepresented Parties

The Court Requests that the Clerk

Mail or Deliver Copies of this order to:

The Honorable Emily Kirk

Administrative Law Judge

Office of Hearings Operations

3505 Lake Lynda Dr

Suite 300

Orlando, FL 32817-9801