Davis v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

TIMOTHY RYAN DAVIS,

Plaintiff,

v. Case No. 6:20-cv-1053-GJK

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

MEMORANDUM OF DECISION1

Timothy Ryan Davis (the “Claimant”), appeals a final decision of the

Commissioner of Social Security (the “Commissioner”), denying his claim for

Social Security Disability Benefits (“DIB”) and supplemental social security

(“SSI”). Doc. Nos. 1, 17. Claimant alleges an onset date of May 22, 2014. R. 16.

Claimant’s date last insured for his DIB claim is September 30, 2015. R. 17.

Claimant filed his application for SSI on April 15, 2016. Id. Claimant argues that

the Administrative Law Judge (the “ALJ”) erred in: 1) assigning limited weight to

a treating physician’s opinion; 2) finding Claimant’s mental impairments were not

severe; and 3) failing to consider Claimant’s mental impairments in establishing

his residual functional capacity (“RFC”). Doc. No. 17 at 11, 17. Upon

1 Magistrate Judge David A. Baker substituting for Magistrate Judge Gregory J. Kelly.

consideration of the parties’ arguments and the record, the final decision of the

Commissioner is AFFIRMED.

I. STANDARD OF REVIEW.

The Commissioner’s findings of fact are conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g) (2010). Substantial evidence is more than a

scintilla–i.e., the evidence must do more than merely create a suspicion of the

existence of a fact and must include such relevant evidence as a reasonable person

would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553,

1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982);

Richardson v. Perales, 402 U.S. 389, 401 (1971)). 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 Court must view the evidence as

a whole, considering evidence that is favorable as well as unfavorable to the

decision. Foote, 67 F.3d at 1560. The District Court “‘may not decide the facts anew,

reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].’”

Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v.

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

II. ANALYSIS.

The ALJ found that Claimant had the following severe impairments: status

post left distal clavicle resection, hearing loss, spine disorders, and osteoarthritis.

R.19. The ALJ found that Claimant's medically determinable mental impairments

of anxiety, depression, and a learning disorder, considered singly and in

combination, were non-severe. R. 19. The ALJ found that despite these

impairments Claimant had the residual functional capacity (“RFC”) to perform

light work with the following restrictions:

[C]laimant is limited to lifting 20 pounds occasionally

and lifting and carrying 10 pounds frequently. The

claimant is limited to standing/walking for about six

hours during an eight-hour workday. The claimant can

sit for up to 6 hours during an eight-hour workday. The

claimant should never climb ladders, ropes, or scaffolds

but can frequently climb ramps and stairs. The claimant

can occasionally crawl. The claimant is a right hand

dominant individual. He is limited to occasional

overhead reaching with the non-dominant left upper

extremity. The claimant should avoid concentrated

exposure to extreme cold, vibration, use of moving

machinery, and unprotected heights. He is limited to

occupation with no more than a moderate noise intensity

level as that terms is defined by the Dictionary of

Occupational Titles (DOT).

R. 21-22.

A. Dr. Miltenberger’s Functional Capacity Opinions

Dr. Miltenberger began treating Claimant in June 2018, after his date last

insured, for torticollis and unspecified hip and knee pain. R. 26. On January 10,

2019, Dr. Miltenberger offered an opinion that Claimant could sit, stand or walk

less than two hours each in an eight hour period, could not lift 10 pounds, could

never twist, stop, crouch, or climb, would need to take unscheduled breaks, that

he would miss more than four days of work per month, and that he had significant

limitations in doing repetitive reaching, handling, or fingering. R. 974-76.

The ALJ gave Dr. Miltenberger’s opinion limited weight because: 1) Dr.

Miltenberger’s physical exam findings were essentially unremarkable with no

significant or ongoing abnormalities noted (although Claimant reported he was

awaiting approval for hip surgery in October 2018) (citing Ex. 22F/26); Claimant

reported waxing his car in 2015, taking yoga in 2017 (Ex. 17F), and riding a bicycle

10 miles in early 2018 (Ex. 22F/14); Claimant’s physical examination at Shands

Neurology Clinic in August 2018 showed Claimant with 5/5 strength in all tested

muscle groups, no edema, normal gait, and a normal EEG (citing Ex. 22F/16-18;

26F); and Claimant received conservative treatment for his pain. R. 26, 28. The

ALJ found that the objective findings, course of treatment, and overall evidence

were not consistent with the level of severity opined, including the inability to lift

any weight, twist, stoop, crouch, or climb. Id. The ALJ also found Dr.

Miltenberger’s opinion inconsistent with Claimant’s reported activities of daily

living. Id., R. 27-28.

Claimant argues that the ALJ did not offer “sufficient justification” for

giving Dr. Miltenberger’s opinion little weight. Doc. No. 17 at 11. Claimant also

argues that none of the ALJ’s findings were supported by substantial evidence

because Dr. Miltenberger’s treatment notes contradict the ALJ’s reliance on

unremarkable objective medical findings. Id. at 13. Claimant focuses on his own

complaints that appear in the treatment notes for the most part and does not

address the objective findings. Id. Claimant argues that his muscle spasms, hip,

knee, and back pain support Dr. Miltenberger’s findings. Id. Claimant also argues

that the record contradicts the ALJ’s finding that Claimant only received

conservative treatment for his pain. Id. Claimant cites his arthroscopic surgery

following his initial work accident in 2014,2 and recent records that reflect

osteoarthritis in his right knee and hip, with the need for future surgery on his hip

and knees, as well as degenerative changes in his cervical spine as contradicting

the ALJ’s finding of conservative treatment. Id. at 13-14.

Claimant next argues that the ALJ also erred in finding that Claimant’s daily

activities contradicted Dr. Miltenberger’s findings because his testimony at the

hearing was that he could bathe and dress himself, but he did not do chores3,

2 Claimant was involved in a bicycle accident in December 2013 while working as a service

technician at a bicycle shop. R. 592. He suffered a shoulder contusion, knee contusion, and face

contusion. R. 539. As a result, in May 2014 he had a left shoulder arthroscopy, closed Mumford

procedure, a resection of his distal clavicle, and acromioplasty. R. 550-51.

3 The ALJ noted that Claimant does not do household chores because he has a housecleaner

who is paid by his mother. R. 23.

instead he takes medications and lays on the couch using heating pads, ice and

stretching exercises. Id. at 14. Claimant argues that his inability to complete

simple daily tasks without exacerbating his pain contradicts the ALJ’s finding that

he could perform light work. Id.

Claimant next argues that the ALJ erred by giving more weight to another

expert’s opinion than to Dr. Miltenberger’s opinion. Id. Claimant first saw Dr.

Schwartzberg in September 2014 for evaluation and treatment related to his

shoulder. R. 23. Based on a functional capacity evaluation performed in

October 2014, Dr. Schwartzberg opined that Claimant could lift no more than 50

pounds to waist level, and 30 pounds overhead, lifting no more than 15 pounds

with the upper left extremity.4 R. 27 (citing Ex. 6F/8 (R. 589)). In the same

functional capacity evaluation, Claimant was also found to have no limitations

in standing, sitting, or walking and he demonstrated an ability to perform

all postural activities at least frequently and could function at the medium

physical demand category (Ex. 8F/15 (R. 648)). R. 24. The ALJ gave Dr.

Schwartzberg’s opinion partial weight finding that Claimant’s restrictions were

more consistent with a reduced range of light exertion work. R. 27.

4 Claimant argues that the opinion indicates that he could lift more weight with his injured left

shoulder than his non-injured right shoulder, but the opinion offered by Dr. Schwartzberg does

not support this argument as there are follow-up notes, cited by the ALJ, with the correct

information even though the underlying evaluation appears to have transposed the two

restrictions. R. 589.

In Winschel v. Commissioner of Social Security, the Eleventh Circuit held that

whenever a physician offers a statement reflecting judgments about the nature and

severity of a claimant’s impairments, including symptoms, diagnosis, and

prognosis, what the claimant can still do despite his impairments, and the

claimant’s physical and mental restrictions, the statement is an opinion requiring

the ALJ to state with particularity the weight given to it and the reasons therefor.

631 F.3d 1176, 1178-79 (11th Cir. 2011) (citing 20 C.F.R. §§ 404.1527(a)(2),

416.927(a)(2)); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). The opinions

of examining physicians are generally given more weight than non-examining

physicians, treating more than non-treating, and specialists more than non-

specialists. 20 C.F.R. § 404.1527(c). A treating physician’s opinion is still entitled

to significant weight even if he did not treat the claimant until after the relevant

adjudicatory period. Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983).

Absent good cause, the opinion of a treating physician must be accorded

substantial or considerable weight. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir.

1988). Good cause exists to give a treating physician’s opinion less than

substantial weight when the opinion is not bolstered by the evidence, the evidence

supports a contrary finding, or the opinion is conclusory or inconsistent with the

physician’s medical records. Johnson v. Barnhart, 138 F. App’x 266, 270 (11th Cir.

2005) (quoting Phillips, 357 F.3d at 1240-41).5 A failure to specifically articulate

evidence contrary to treating doctor’s opinion requires remand. Poplardo v. Astrue,

No. 3:06-cv-1101-J-MCR, 2008 WL 68593 at *11 (M.D. Fla. Jan. 4, 2008); Paltan v.

Comm’r of Soc. Sec., No. 6:07-cv-932-Orl-19DAB, 2008 WL 1848342 at *5 (M.D. Fla.

Apr. 22, 2008) (“The ALJ’s failure to explain how [the treating doctor’s] opinion

was ‘inconsistent with the medical evidence’ renders review impossible and

remand is required.”).

Claimant is essentially asking this Court to reweigh the record evidence,

which is something the Court cannot do. Dyer v. Barnhart, 395 F.3d 1206, 1210

(11th Cir. 2005). The Court finds that there was substantial evidence to support

the ALJ’s decision to afford Dr. Miltenberger’s opinion little weight. The ALJ

relied on the objective medical findings and Claimant’s activities of daily living.

Thus, there was substantial evidence to support the ALJ’s decision and the Court

finds no reason to disturb that decision on review. See D’Andrea v. Comm’r of Soc.

Sec., 389 F. App’x 944, 948 (11th Cir. 2010) (per curiam) (rejecting argument that

ALJ failed to accord proper weight to treating physician's opinion “because the

ALJ articulated at least one specific reason for disregarding the opinion and the

record supports it.”).

5 In this circuit, “[u]npublished opinions are not considered binding precedent, but they may be

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

B. Claimant’s Mental Impairments

Next, Claimant argues that the ALJ erred in finding Claimant’s mental

impairments were not severe at step two. Doc. No. 17 at 17. At step two, the ALJ

must determine whether Claimant has a medical impairment which is severe. 20

C.F.R. § 416.920(a)(4)(ii). The severity of an impairment is “measured in terms of

its effect upon ability to work, and not simply in terms of deviation from purely

medical standards of bodily perfection or normality.” Lucas v. Berryhill, No. 8:17-

cv-2246, 2019 U.S. Dist. LEXIS 31788, at *6 (M.D. Fla. Feb. 28, 2019) (quoting Wind

v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005)).

When a claimant presents a “colorable” claim of a mental impairment, the

ALJ must apply the Psychiatric Review Technique (“PRT”) at step two. Moore v.

Barnhart, 405 F.3d 1208, 1213-14 (11th Cir. 2005); 20 C.F.R. § 404.1520a. The ALJ

must assess a claimant’s degree of functional limitation in four areas, including a

claimant’s ability to: 1) understand, remember, or apply information; 2) interact

with others; 3) concentrate, persist, or maintain pace; and 4) adapt or manage

oneself. 20 C.F.R. § 404.1520a(c)(2). The ALJ’s decision “must include a specific

finding as to the degree of limitation in each of the functional areas” identified.

Id. § 404.1520a(e)(4); Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005) (“social

security regulations require the ALJ to complete a PRT [form] and append it to the

decision, or incorporate its mode of analysis into his findings and conclusions”).

If, after applying the PRT, the ALJ rates the functional limitations caused by

the claimant’s mental impairment to be “none” or “mild,” then the ALJ will

generally conclude that the impairment is not severe "unless the

evidence otherwise indicates that there is more than a minimal limitation in [the

claimant’s] ability to do basic work activities.” 20 C.F.R. § 404.1520a(d)(1).

The ALJ must provide a specific explanation for her opinion, including the

degree of limitation found in the functional areas. 20 C.F.R. § 404.1520a(c)(4),

(e)(4). The ALJ must incorporate the results of the PRT into the findings and

conclusions. Jacobs v. Comm'r of Soc. Sec., 520 F. App'x 948, 950 (11th Cir. 2013).

Here, the ALJ properly applied the PRT and found that Claimant’s mental

impairments of anxiety, depression, and a learning disorder, considered singly or

in combination were non-severe and caused no more than mild limitation in his

ability to perform basic mental work activities. R. 19. The ALJ fo und that

Claimant had no more than mild limitations in interacting with others and

concentrating, persistence, and pace. R. 20-21. The ALJ found Claimant had no

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

adapting and managing oneself. R. 21.

The ALJ relied on record evidence that: 1) Claimant’s symptoms were well-

managed with a conservative course of treatment with prescription drugs (Ex. 9F);

2) Claimant received mental health treatment from Dr. Tikku at the psychiatry

clinic at Fish Memorial Hospital (Ex. 21F); 3) his mental status examinations were

generally normal from October 2016 to June 2018, other than one report in June

2018 that he had an anxious affect (Exs. 9F, 17F, and 21F/36); 4) Claimant reported

good control with Zoloft (Ex. 9F, 17F, and 21F); 5) Claimant’s learning disorders,

first diagnosed while he was attending school to be a nurse practitioner/physician

assistant after college, had not precluded him from performing skilled work (Ex.

11F, 13F/15); and 6) while affording his learning diagnosis great weight, the ALJ

assigned the accommodations partial weight because Claimant had been able to

perform skilled past relevant work at SGA levels, despite his learning impairments

and his reported activities were inconsistent with significant mental impairments

as he was able to: write a screenplay that won a semi-finalist award at a film

festival, write a children’s novel, and was starting to do graphic design work (Ex.

13F, 9F/13). R. 19-20. The ALJ also noted: Dr. Nicotra6 found Claimant had an

average working memory (Ex. 13F/11); Claimant was calm with euthymic mood,

able to drive, had friends according to his own testimony, and had been a

competitive cyclist (Ex. 22F/14); and Claimant was generally alert and oriented

upon examination, and maintained intact judgment and insight (Ex. 5E). R. 20.

Claimant argues that the record evidence contradicts the ALJ’s findings.

6 Dr. Nicotra performed Claimant’s psychoeducational assessment and diagnosed his reading

disorder in 2010. R. 734.

Doc. No. 17 at 19. Claimant argues that he has at least moderate limitations in

adapting or managing himself. Id. Claimant points to his reports of erratic sleep

and feeling overwhelmed by his physical health issues and his anxiety. Id. (citing

R. 892, 901, 905, 913, 920, 923). Claimant also claims that he has at least moderate

limitations in understanding, remembering, and applying information. Id.

Claimant relies on Dr. Nicotra’s note that he had weak auditory processing skills

that limited his ability to read, understand, and write when under pressure to

perform and that his reading disorder would require additional time to complete

assignments. Id.

Claimant is essentially asking this Court to reweigh the record evidence,

which is something the Court cannot do. Dyer v. Barnhart, 395 F.3d 1206, 1210

(11th Cir. 2005). The Court finds that there was substantial evidence to support

the ALJ’s finding that Claimant mental impairments were non-severe. The ALJ

relied on objective medical findings, Claimant’s own reports to providers that his

mental impairments were well-managed with treatment and prescription

medication, Claimant’s own self-reported activities, Dr. Tikku’s treatment

records, and Dr. Nicotra’s testing records. R. 19-21, 28-29. Thus, there was

substantial evidence to support the ALJ’s decision and the Court finds no reason

to disturb that decision on review.

Claimant also argues that the ALJ failed to incorporate his mental

limitations into his RFC, and as such, the error in finding his mental impairments

non-severe was not harmless. Doc. No. 17 at 20. The finding of any severe

impairment is enough to satisfy step two and if an ALJ finds any severe

impairment at step two and proceeds beyond that step in the sequential analysis,

any error in failing to find a claimant suffered from other severe impairments is

harmless. Lucas, 2019 U.S. Dist. LEXIS 31788, at *7 (citing Gray v. Comm’ r of Soc.

Sec., 550 F. App’x 850, 853-54 (11th Cir. 2013)). However, after making such a

determination, an ALJ has an obligation to consider all of a claimant’s impairments

in combination. Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 903 (11th Cir.

2011). “Consideration of all impairments, severe and non-severe, is required

when assessing a claimant’s RFC.” Sumlin v. Saul, 2020 U.S. Dist. LEXIS 231058, at

*17 (M.D. Fla. Nov. 23, 2020) (quoting Schink v. Comm'r of Soc. Sec., 935 F.3d 1245,

1269 (11th Cir. 2019)

In addition to the ALJ’s discussion of Claimant’s mental impairments in the

step two analysis, the ALJ addressed Claimant’s mental impairments with respect

to the RFC. R. 24, 27-29. The ALJ discussed Claimant’s treatment at Town

Center Family Practice, his report of a history of good control of his anxiety on

Zoloft, the statement of Lynn Bregman Blass, LMFT, the psychoeducational

assessment conducted in February 2010 by Dr. Nicotra, Claimant’s reading

disorder diagnosis, Claimant’s skilled past relevant work, Claimant’s own reports

of activities that are inconsistent with significant mental impairment, including

writing a screenplay and a children’s book, giving great weight to the opinions of

Nancy Dinwoodie, M.D. and James G. Brown, Ph.D., state agency

psychiatric/psychological consultants who opined Claimant had no more than

mild limitations, and Claimant’s treatment records which have generally shown

normal findings associated with Claimant’s impairments of anxiety disorders,

affective disorders, and history of learning disorders. R. 24, 27-29. The ALJ

concluded that the RFC was consistent with the overall evidence. R. 29.

The ALJ’s detailed discussion of Claimant’s treatment records, her

assignment of weight to various opinions and statements regarding Claimant’s

mental impairments, as well as consideration of Claimant’s own statements and

activities reflect that she considered the combined effects of all Claimant’s

impairments. R. 24-29. See Nicols v. Comm’r of Soc. Sec., 679 F. App’x 792, 797 (11th

Cir. 2017). As such, remand is not required on this issue. Lucas, 2019 U.S. Dist.

LEXIS 31788, at *7; Gray, 550 F. App’x at 853-54.

Accordingly, it is ORDERED that:

1. This matter is AFFIRMED; and

2. The Clerk is directed to close the case.

DONE in Orlando, Florida, on June 2, 2021.

DAVID A. BAKER

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Bartholomew C. Zadel

Morgan & Morgan

988 Woodcock Road

Orlando, Florida 32803

Maria Chapa Lopez

United States Attorney

John F. Rudy, II

Assistant United States Attorney

400 N. Tampa St.

Suite 3200

Tampa, FL 33602

Christopher G. Harris, Chief Counsel, Region IV

John C. Stoner, Deputy Regional Chief Counsel

Megan E. Gideon, Branch Chief

Reginald V. Speegle, Assistant Regional Counsel

Social Security Administration

Office of the General Counsel

Atlanta Federal Center

61 Forsyth Street, S.W., Suite 20T45

Atlanta, Georgia 30303-8920

The Honorable Melinda Hart

Administrative Law Judge

Office of Hearing Operations

SSA Oho Hearing Ofc

Bldg 400, Suite 400

8880 Freedom Crossing Trail

Jacksonville, Florida 32256-1224