# Salda v. Commissioner of Social Security

> District Court, M.D. Florida · March 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10107179

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107179

## How later opinions describe it (automated extraction)

- stating that the “ALJ must consider the applicant’s medical condition taken as a whole”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107179. Public record. Not legal advice.