Salda v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARCOS A. SALDA,

Plaintiff,

v. Case No. 8:20-cv-98-AEP

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of his claim for 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 SSI (Tr. 171-75, 198-207). The Social

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

reconsideration (Tr. 71-96, 99-109). Plaintiff then requested an administrative

hearing (Tr. 110-12). Per Plaintiff’s request, the ALJ held a hearing at which

Plaintiff appeared and testified (Tr. 31-70). Following the hearing, the ALJ issued

an unfavorable decision finding Plaintiff not disabled and accordingly denied

Plaintiff’s claims for benefits (Tr. 12-30). Subsequently, Plaintiff requested review

from the Appeals Council, which the Appeals Council denied (Tr. 1-6, 167-69).

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 7, 2016

(Tr. 171). Plaintiff obtained a high school education (Tr. 37, 216). Plaintiff did not

have any past relevant work experience (Tr. 61-62). Plaintiff alleged disability due

to attention-deficit/hyperactivity disorder (“ADHD”), high-functioning autism,

bipolar disorder, post-traumatic stress disorder (“PTSD”), social anxiety, and

depression (Tr. 215).

In rendering the administrative decision, the ALJ concluded that Plaintiff

had not engaged in substantial gainful activity since January 3, 2017, the application

date (Tr. 17). After conducting a hearing and reviewing the evidence of record, the

ALJ determined Plaintiff had the following severe impairments: autism spectrum

disorder (“ASD”) (high functioning), social anxiety disorder, ADHD, and bipolar

disorder (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. 17). The ALJ then concluded that Plaintiff retained a residual

functional capacity (“RFC”) to perform a full range of work at all exertional levels

but with the following non-exertional limitations: could understand, remember, and

carry out simple instructions and maintain persistence for simple tasks throughout

a standard workday; should not work with the general public; should work in an

environment with few day-to-day changes in terms of work processes, work duties,

or work settings; and should not be required to have more than occasional

interaction with coworkers or supervisors and such interactions should not be

required to be more than work-related or superficial (Tr. 19). 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 his

symptoms were not entirely consistent with the medical evidence and other

evidence (Tr. 24). After concluding that Plaintiff possessed no past relevant work,

the ALJ obtained an assessment from a vocational expert (“VE”). Given Plaintiff’s

background and RFC, the VE testified that Plaintiff could perform jobs existing in

significant numbers in the national economy, such as a bagger, cleaner II, and

marker (Tr. 25, 62). Accordingly, based on Plaintiff’s age, education, work

experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled

(Tr. 26).

II.

To be entitled to benefits, a claimant must be disabled, meaning the claimant

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. § 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. § 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 “sequential evaluation process” to determine whether a claimant is

disabled. 20 C.F.R. § 416.920. If an individual is found disabled at any point in the

sequential review, further inquiry is unnecessary. 20 C.F.R. § 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. § 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. §

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. § 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 failing to develop a full and fair record

– specifically, by failing to properly weigh and evaluate the testimony of Plaintiff’s

mother regarding Plaintiff’s limitations with pace, shaking, self-harm, and

meltdowns. Given such failure, Plaintiff contends that the ALJ did not properly

assess Plaintiff’s limitations and, in turn, did not pose a complete hypothetical

question to the VE. Accordingly, Plaintiff argues that substantial evidence does not

support the ALJ’s decision.

Even though Social Security proceedings are inquisitorial rather than

adversarial in nature, claimants must establish their eligibility for benefits. Ingram,

496 F.3d at 1269; 20 C.F.R. § 416.912(a). During the administrative process,

therefore, a claimant must inform the SSA about or submit all evidence known to

the claimant relating to whether the claimant is blind or disabled. 20 C.F.R. §

416.912(a). 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). 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.”)

(internal 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).

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. §

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. 20 C.F.R. § 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. § 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. 20 C.F.R. §§

416.929(c)(3)(i)-(vii), 416.945(a)(3); SSR 96-8p, 1996 WL 374184 (July 2, 1996);

SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017).

Then, at step five, the ALJ must consider the assessment of the RFC

combined with the claimant’s age, education, and work experience to determine

whether the claimant can make an adjustment to other work. Phillips v. Barnhart,

357 F.3d 1232, 1239 (11th Cir. 2004); 20 C.F.R. § 416.920(a)(4)(v). If the claimant

can make an adjustment to other work, a finding of not disabled is warranted.

Phillips, 357 F.3d at 1239. Conversely, if the claimant cannot make an adjustment

to other work, a finding of disabled is warranted. Id. At this step, the burden

temporarily shifts to the Commissioner to show other jobs exist in significant

numbers in the national economy which, given the claimant’s impairments, the

claimant can perform. See Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359

(11th Cir. 2018); see Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995); 20 C.F.R.

§ 416920(a)(4)(v). “The ALJ must articulate specific jobs that the claimant is able

to perform, and this finding must be supported by substantial evidence, not mere

intuition or conjecture.” Wilson, 284 F.3d at 1227 (citation omitted). There are two

avenues by which an ALJ may determine a claimant’s ability to adjust to other work

in the national economy; namely, by applying the Medical Vocational Guidelines

(“Grids”) and by using a VE. Phillips, 357 F.3d at 1239-40. Typically, where the

claimant cannot perform a full range of work at a given level of exertion or where

the claimant has non-exertional impairments that significantly limit basic work

skills, the ALJ must consult a VE. See id. at 1243.

When the ALJ utilizes the testimony of a VE, the ALJ must pose an accurate

hypothetical to the VE that accounts for all of the claimant’s impairments. Ingram,

496 F.3d at 1270 (citation omitted). If the ALJ properly rejects purported

impairments or limitations, the ALJ need not include those findings in the

hypothetical posed to the VE. Crawford, 363 F.3d at 1161 (“[T]he ALJ was not

required to include findings in the hypothetical that the ALJ had properly rejected

as unsupported”). For a VE’s testimony to constitute substantial evidence,

however, the ALJ must pose a hypothetical question which comprises all of the

claimant’s impairments. Wilson, 284 F.3d at 1227.

As noted, Plaintiff contends that the ALJ failed to fully consider the

testimony of Plaintiff’s mother and, as a result, failed to properly set forth Plaintiff’s

RFC, leading to an inaccurate hypothetical to the VE. Along with the medical

evidence, the ALJ may consider evidence from nonmedical sources, such as a

family member, about any issue pertaining to the claimant’s claim. 20 C.F.R. §

416.913(4). For example, the testimony of a family member can provide evidence

of a claimant’s subjective complaints, including pain. See Osborn v. Barnhart, 194 F.

App’x 654, 666 (11th Cir. 2006). Notably though, where an ALJ fails to make an

explicit finding as to a third party’s testimony or statements, a court need not find

error if the determination was implicit in the rejection of the claimant’s testimony.

Id.; see Iordan v. Comm’r, Soc. Sec. Admin., 579 F. App’x 775, 779 (11th Cir. 2014).

In this instance, Plaintiff’s mother provided testimony during the

administrative hearing regarding Plaintiff’s limitations (Tr. 55-60). Upon

questioning by Plaintiff’s counsel, Plaintiff’s mother stated that Plaintiff had autism,

among other things, for which she worked with Plaintiff since the age of one (Tr.

56). According to Plaintiff’s mother, Plaintiff stabilized somewhat during the past

two to three years, although he continued to experience some fluctuations in his

condition (Tr. 57). Plaintiff’s mother did not believe that, a year or two prior to the

hearing, Plaintiff could have performed the duties of the part-time job he currently

held because, at that time, Plaintiff experienced depression and proceeded to harm

himself at night (Tr. 57). She further indicated that, with his medication regimen,

Plaintiff did not appear to shake or move as much as he used to when she would

need to tell him to stop (Tr. 57). With respect to his ability to interact with others,

Plaintiff’s mother stated that Plaintiff got along well with a friend, his sisters, and

his parents (Tr. 57-58).

With regard to Plaintiff’s prior employment, Plaintiff’s mother indicated that

he used to get very stressed, cry, and experience meltdowns because other

employees would push him to perform in a fast environment producing fast food

(Tr. 58). As to his attempt to go to school, Plaintiff’s mother stated that Plaintiff

failed, even though he is a smart child, because he felt overwhelmed from the first

semester and would either withdraw or fail classes (Tr. 58). Plaintiff’s mother

testified that Plaintiff would get really nervous in groups of people and would not

look people in the face but rather would look down, even when she accompanied

him (Tr. 58-59).

In determining Plaintiff’s RFC, the ALJ explicitly considered the testimony

offered by Plaintiff’s mother (Tr. 21).1 Namely, in discussing the testimony of

Plaintiff’s mother, the ALJ acknowledged her statements regarding Plaintiff’s

apparent improvement and stabilization, Plaintiff’s continued fluctuations in his

condition, Plaintiff inability to perform the job that he was currently doing a year

or two ago because of the nervousness and depression he experienced at that time

that led to him hurting himself at night, and Plaintiff’s ability to get along well with

his friends and family (Tr. 21, 57). As Plaintiff asserts, however, the ALJ did not

expressly address the testimony of Plaintiff’s mother regarding Plaintiff’s purported

limitations with pace, shaking, self-harm, and meltdowns. Such omission does not

warrant remand. Rather, the record, as considered and discussed by the ALJ, does

not support the limitations set forth by Plaintiff’s mother. Further, the ALJ

specifically addressed Plaintiff’s limitations regarding pace. Beyond that, as the

Commissioner contends, the ALJ provided substantial evidence in support of the

decision, including consideration of the testimony of Plaintiff and Plaintiff’s

mother, Plaintiff’s treatment history, Plaintiff’s medication regimen, Plaintiff’s

activities of daily living, and the medical opinions of record (Tr. 15-26).

1 Plaintiff’s reliance upon cases where the ALJ failed to consider a third-party’s statement

Initially, the limitations identified by Plaintiff’s mother do not find support

in the record. Both Plaintiff and Plaintiff’s mother testified that Plaintiff’s condition

was worse a few years prior to the hearing, including the issues with self-harm and

shaking, but his condition improved upon receipt of a proper medication regimen

(Tr. 20-21, 45, 57-59). As the ALJ discussed, once Plaintiff received proper mental

health treatment and medication management, Plaintiff consistently reported a lack

of manic symptoms, perceptual disturbances, and overt delusions, and, importantly,

as of August 2017, Plaintiff reported a complete cessation of any self-harm

(punching) behavior (Tr. 22-24, 371). Notwithstanding allegations regarding

meltdowns, Plaintiff primarily presented as calm and cooperative (Tr. 340, 345-46,

350, 355, 359-60, 364, 368, 371, 373). Plaintiff also indicated that the medication

regimen improved his focus, allowing him to tend to his daily responsibilities, work

part-time, and function in his day-to-day life (Tr. 338, 342, 343, 346, 348, 351, 356).

Indeed, Plaintiff testified that, even though he failed classes and stopped attending

college courses in 2013 due to social anxiety and suicidal thoughts, he believed he

now possessed the willpower to continue with schooling (Tr. 20, 44). Further, with

the exception of a single statement by Plaintiff that he could not sit still for more

than 5 minutes and treatment notations regarding Plaintiff exhibiting “occasional

perioral movements” and appearing “fidgety” (Tr. 386, 389, 390), all of which

occurred in April 2017, the record remains devoid of findings regarding Plaintiff’s

shaking at any point following the alleged onset date.2 Given the lack of support in

the record for the limitations articulated by Plaintiff’s mother, the ALJ did not need

to consider such limitations in setting forth the RFC or in posing hypotheticals to

the VE.

Furthermore, with respect to pace, the ALJ specifically considered Plaintiff’s

ability to concentrate, persist, or maintain pace, finding that Plaintiff experienced

moderate limitations as to those functional categories (Tr. 18). As the ALJ

explained, Plaintiff claimed that he experienced limitations in concentrating

generally, focusing generally, and completing tasks, yet Plaintiff maintained the

ability to drive, watch television, read on a daily basis, play video games, and use

the internet (Tr. 18). In setting forth the RFC, the ALJ included non-exertional

limitations to account for Plaintiff’s issues with concentration, persistence, or pace,

limiting Plaintiff to understanding, remembering, and carrying out simple

instructions and maintaining persistence for simple tasks throughout a standard

workday in an environment with few day-to-day changes in terms of work

processes, work duties, or work settings (Tr. 19). The ALJ therefore did not fail to

consider Plaintiff’s limitations regarding pace.

Going further, the ALJ provided substantial evidence in support of his

findings at steps four and five of the sequential evaluation. For example, the ALJ

2 The treatment and discharge notes from Plaintiff’s partial hospitalization program in

October 2016 reference reduced psychomotor activity with no extrapyramidal symptoms

but do no indicate whether such activity involved shaking (Tr. 290-97). Notably, however,

highlighted the lack of significant mental health issues noted during treatment with

Dr. Alan Feldman from November 2015 through October 2016 (Tr. 21, 303-18).

Although, as the ALJ noted, Plaintiff experienced a decompensation episode that

led to admission into the partial hospitalization program and intensive outpatient

program in October and November 2016, the ALJ also noted that the treatment and

discharge notes showed significant improvement (Tr. 21-22, 290-97). Following

that, as the ALJ indicated, during a consultative examination in March 2017,

Plaintiff demonstrated no abnormalities in thought content or thought process and

his behavior was within normal limits (Tr. 22, 299-301). Likewise, as the ALJ

thoroughly discussed, from at least July 2017 to September 2018, Plaintiff

repeatedly and consistently reported some combination of improvements to his

mood, anxiety, concentration, and focus with his medication regimen; no thoughts

of self-harm; no manic symptoms; no suicidal ideations; fair insight and judgment;

a reduction in social anxiety, with occasional residual symptoms; less irritability;

and optimism about the future (Tr. 22-23, 338-80).

In setting for the RFC, the ALJ also considered the opinions of the state

agency psychological consultants, affording their opinions only partial weight and

providing Plaintiff with “the utmost benefit of the doubt” by adding additional

restrictions, i.e. social limitations, beyond those identified by the state agency

psychological consultants (Tr. 24, 71-81, 84-94). See 20 C.F.R. § 416.913a(b)(1).

Additionally, the ALJ discussed Plaintiff’s reports of activities of daily living (Tr.

20-21, 24). As the ALJ highlighted, Plaintiff maintained a number of daily activities

– including but not limited to going to a bookstore daily, volunteering for a political

organization, planning events, seeing movies at movie theaters with friends, and

working 20-25 hours at his part-time job – suggesting that his mental impairments

were not as severe as alleged (Tr. 20-21, 24, 46-47, 50, 52-53). See 20 C.F.R. §

416.929(c)(3)(i).

Given the comprehensive consideration of the evidence of record, and the

lack of support for the limitations suggested by Plaintiff’s mother, the ALJ

appropriately concluded that Plaintiff maintained a full range of work at all

exertional levels with the stated non-exertional limitations (Tr. 19). Based on the

correct RFC assessment, including the omission of limitations not supported in the

record, the ALJ posed appropriate hypotheticals to the VE. See Crawford, 363 F.3d

at 1161. To summarize, the ALJ properly considered the testimony of Plaintiff’s

mother, along with the rest of the evidence of record, in determining Plaintiff’s RFC

and ability to perform other work. In doing so, the ALJ applied the correct legal

standards. Based on the foregoing, the ALJ’s decision is supported by substantial

evidence, and 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 23rd day of March,

2021.

ANTHON E. PORCELLI

United Sfates Magistrate Judge

cc: Counsel of Record