Ramirez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

FLOR T. RAMIREZ,

Plaintiff,

v. Case No. 6:19-cv-2391-Orl-NPM

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Flor T. Ramirez seeks judicial review of a denial of her applications for

disability insurance benefits and supplemental security income. The Commissioner

filed the transcript1 of the proceedings, the parties filed a Joint Memorandum (Doc.

23), and with leave of Court, Ramirez filed a Reply (Doc. 27). As discussed in this

opinion and order, the decision of the Commissioner is affirmed.

I. Eligibility for Disability Benefits and the ALJ’s Decision

A. Eligibility

The law defines disability as the inability to do any substantial gainful activity

by reason of any medically determinable physical or mental impairment that can be

1 Cited as “Tr.” followed by the appropriate page number.

expected to result in death or has lasted or can be expected to last for a continuous

period of not less than twelve months.2 The impairment must be severe, making the

claimant unable to do her previous work or any other substantial gainful activity that

exists in the national economy.3

B. Procedural history and factual background

Ramirez was born in January 1977, and completed at least a ninth grade

education, although she may have obtained a GED. (Tr. 41). Ramirez last worked as

a customer service representative, telephone solicitor, and collection clerk. (Tr. 45).

On August 3, 2017, Ramirez applied for disability benefits (“DIB”) and

supplemental security income (“SSI”), claiming she was unable to work due to

disabling conditions beginning July 21, 2015. Ramirez’s applications were

administratively denied initially on January 10, 2018, and upon reconsideration on

June 21, 2018. (Tr. 166, 167, 216, 217, 381-391).

At Ramirez’s request, Administrative Law Judge Emily Ruth Statum (“ALJ”)

held a hearing on April 30, 2019, concerning the denial of disability benefits. (Tr.

60-102). The ALJ issued a decision on July 2, 2019, finding Ramirez not disabled

from July 21, 2015, through the date of the decision. (Tr. 21-48).

2 See 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.

3 See 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911.

On October 16, 2019, the agency’s Appeals Council denied Ramirez’s request

for review. (Tr. 1-5). Ramirez then filed a Complaint (Doc. 1) with this Court on

December 19, 2019, and the case is ripe for review. The parties consented to proceed

before a United States Magistrate Judge for all proceedings. (See Doc. 16).

C. The ALJ’s decision

An ALJ must perform a five-step sequential evaluation to determine if a

claimant is disabled. 20 C.F.R. § 416.920(a)(1). This five-step process determines:

(1) whether the claimant is engaged in substantial gainful

activity; (2) if not, whether the claimant has a severe

impairment or combination of impairments; (3) if so, whether

these impairments meet or equal an impairment listed in the

Listing of Impairments; (4) if not, whether the claimant has the

residual functional capacity (“RFC”) to perform [her] past

relevant work; and (5) if not, whether, in light of [her] age,

education, and work experience, the claimant can perform

other work that exists in “significant numbers in the national

economy.”

Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x. 931, 933 (11th Cir. 2015) (internal

quotation omitted); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

The governing regulations provide that the Social Security Administration

conducts this “administrative review process in an informal, non-adversarial

manner.” 20 C.F.R. §§ 404.900(b), 416.1400. Unlike judicial proceedings, SSA

hearings “are inquisitorial rather than adversarial.” Washington v. Comm’r of Soc.

Sec., 906 F.3d 1353, 1364 (11th Cir. 2018) (quoting Sims v. Apfel, 530 U.S. 103,

111, (2000) (plurality opinion)). “Because Social Security hearings basically are

inquisitorial in nature, ‘[i]t is the ALJ’s duty to investigate the facts and develop the

arguments both for and against granting benefits.’” Id. Indeed, “at the hearing stage,

the Commissioner does not have a representative that appears ‘before the ALJ to

oppose the claim for benefits.’” Id. (quoting Crawford & Co. v. Apfel, 235 F.3d 1298,

1304 (11th Cir. 2000)). “Thus, ‘the ALJ has a basic duty to develop a full and fair

record. This is an onerous task, as the ALJ must scrupulously and conscientiously

probe into, inquire of, and explore for all relevant facts.’” Id. (quoting Henry v.

Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015)).

Nonetheless, while the claimant is temporarily relieved of the burden of

production during step five as to whether there are enough jobs the claimant can

perform, the claimant otherwise has the burdens of production and persuasion

throughout the process. See Washington, 906 F.3d at 1359; 20 C.F.R. §§ 404.1512,

416.912 (providing that the claimant must prove disability); see also Bloodsworth v.

Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983) (“The scheme of the Act places a

very heavy initial burden on the claimant to establish existence of a disability by

proving that he is unable to perform his previous work.”); Doughty v. Apfel, 245

F.3d 1274, 1280 (11th Cir. 2001) (“[T]he overall burden of demonstrating the

existence of a disability as defined by the Social Security Act unquestionably rests

with the claimant.”).

In this matter, the ALJ found Ramirez last met the insured status requirements

through December 31, 2015. At step one of the evaluation, the ALJ found Ramirez

had not engaged in substantial gainful activity since July 15, 2015, the amended

alleged onset date. (Tr. 24). Ramirez applied for both DIB and SSI benefits. For DIB,

Ramirez must prove she was disabled before her date last insured. Castle v. Colvin,

557 F. App’x 849, 853 (11th Cir. 2014). SSI benefits do not have this limitation. As

a result, the ALJ separated her findings for each type of application and the Court

will follow suit.

At step two, with respect to DIB, the ALJ characterized Ramirez’s severe

impairments as: “Meniere’s disease, disequilibrium, sensorineural hearing loss

bilaterally, tinnitus, minor multilevel lumbar degenerative disc disease with annular

fissures, gastritis, history of blackout episodes with no confusion, history of asthma,

mild degenerative disc disease of the cervical spine.” (Tr. 24). As to SSI, the ALJ

characterized Ramirez’s severe impairments as: “chronic sinusitis, diabetes mellitus,

hyperlipidemia, degenerative disc disease of the lumbar spine, mild cervical disc

disease with associated cervicalgia, mild intermittent asthma, peripheral venous

insufficiency, varicose veins of lower extremity status-post ablation, headache,

sensorineural hearing loss left, Meniere’s disease, major depressive disorder,

posttraumatic stress disorder (PTSD), generalized anxiety disorder and bipolar

disorder.” (Tr. 26).

At step three, the ALJ determined Ramirez did not have an impairment or

combination of impairments that met or medically equaled the severity of an agency-

listed impairment. (Tr. 26).

As a predicate to step four for DIB, the ALJ arrived at the following RFC:

[T]he claimant had the residual functional capacity to perform

light work as defined in 20 [C.F.R. §] 404.1567(b) except with

standing and or walking 4 hours in an 8 hour workday, sitting

about 6 hours in an 8 hour workday, with occasional climbing

ramps or stairs, no climbing of ladders, ropes or scaffolds,

occasional balancing, occasionally stooping, kneeling,

crouching, or crawling, with decreased hearing with the left ear

working in an environment with no loud noises but with an

ability for hearing conversation in a business or office setting,

avoiding even moderate exposure to fumes, odors, dusts, gases

or poor ventilation and no exposure to hazards such as

machinery or heights.

(Tr. 28-29).

For SSI, the ALJ arrived at the following RFC:

[T]he claimant has the residual functional capacity to perform

light work as defined in 20 [C.F.R. §] 416.967(b) except with

standing and or walking 4 hours in an 8 hour workday, sitting

about 6 hours in an 8 hour workday, with occasional climbing

ramps or stairs, no climbing of ladders, ropes or scaffolds,

occasional balancing, occasionally stooping, kneeling,

crouching, or crawling, with decreased hearing with the left ear

working in an environment with no loud noises but with an

ability for hearing conversation in a business or office setting,

avoiding even moderate exposure to fumes, odors, dusts, gases

or poor ventilation and no exposure to hazards such as

machinery or heights. She has the ability for understanding and

remembering simple instructions, and completing simple tasks

and work procedures with frequent but not constant contact

with coworkers and general public.

(Tr. 33).

Consequently for DIB, the ALJ found Ramirez capable of performing her past

relevant work as a customer service representative, telephone solicitor, and

collection clerk as generally performed during the relevant period of July 21, 2015

through December 31, 2015. The ALJ determined that this work does not require the

performance of work-related activities precluded by Ramirez’s RFC. (Tr. 45). In the

alternative, the ALJ made step-five findings. In support, the vocational expert

identified two representative occupations an individual with Ramirez’s age (38 years

old on the alleged disability onset date), education (limited), work history, and RFC

could perform:

(1) Ticket Seller, DOT 211.467-030, light as defined by the DOT but

performed at a sedentary level with a sit/stand option, unskilled, SVP

2; and

(2) Call Out Operator, DOT 237.367-014, sedentary, unskilled, SVP 2.

(Tr. 45-46).

With respect to SSI, the ALJ determined Ramirez was not capable of

performing her past relevant work, finding the job demands exceeded Ramirez’s

RFC. (Tr. 46). At step five, the ALJ found Ramirez could perform other jobs that

existed in significant numbers in the national economy. In support, the vocational

expert identified the same two representative occupations an individual with

Ramirez’s age (40 years old on the application date), education (limited), work

experience, and RFC could perform:

(1) Ticket Seller, DOT 211.467-030, light as defined by the DOT but

performed at a sedentary level with a sit/stand option, unskilled, SVP

2; and

(2) Call Out Operator, DOT 237.367-014, sedentary, unskilled, SVP 2.

(Tr. 46-47). The ALJ found Ramirez not disabled from July 21, 2015, through the

date of the decision. (Tr. 46-48).

II. Analysis

Ramirez’s appeal presents the following issues:

(1) Whether the ALJ erred by failing to find additional severe impairments.

(2) Whether the ALJ erred by finding Ramirez’s impairments did not meet

or medically equal a listed impairment.

(3) Whether the ALJ erred when considering the physicians’ opinions.

(4) Whether the ALJ erred in her assessment of the subjective evidence.

(5) Whether the ALJ properly considered the combined effects of

Ramirez’s impairments on her RFC.

(6) Whether the vocational expert’s testimony constituted substantial

evidence.

(Doc. 23, pp. 27-51; 51-56).

A. Standard of review

While the Court must account for evidence both favorable and unfavorable to

a disability finding and view the evidence as a whole, Foote v. Chater, 67 F.3d 1553,

1560 (11th Cir. 1995), the Court’s review of the agency’s decision is limited to

determining whether “it is supported by substantial evidence and based on proper

legal standards.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.

2004). “Substantial evidence is more than a scintilla and is such relevant evidence

as a reasonable person would accept as adequate to support a conclusion.” Goode v.

Comm’r of Soc. Sec., 966 F.3d 1277, 1280 (11th Cir. 2020) (quoting Crawford, 363

F.3d at 1158)).

“[T]he threshold for such evidentiary sufficiency is not high.” Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019). The inquiry is “case-by-case,” and “defers

to the presiding ALJ, who has seen the hearing up close.” Id. at 1157. If supported

by substantial evidence, the ALJ’s findings of fact are conclusive. 42 U.S.C.

§ 405(g). This means the district court will affirm, even if the court would have

reached a contrary result as finder of fact, and even if the court finds that the evidence

“preponderates against” the agency’s decision. Noble v. Comm’r of Soc. Sec., 963

F.3d 1317, 1323 (11th Cir. 2020) (quoting Barnes v. Sullivan, 932 F.2d 1356, 1358

(11th Cir. 1991)).

Before addressing each specific issue, the Court addresses the

Commissioner’s general contention that Ramirez waived her arguments. (Doc. 23,

p. 37). First, the Commissioner contends Ramirez failed to cite to the administrative

record for factual support for many of her arguments. (Id.). And second, the

Commissioner argues many of Ramirez’s arguments are conclusory in nature and

lack citation to legal authority. (Id.).4

4 The Commissioner also argues Ramirez’s conclusory arguments invite the Court to improperly

The Scheduling Order requires Ramirez to: “concisely set forth his or her

contentions supported by legal authority and by reference to facts in the Statement

of Facts, including citations to the page(s) of the administrative record where cited

evidence is found, and complete citations to relevant legal authority.” (Doc. 15, pp.

4-5). By failing to cite to the record and failing to cite to legal authority in many

instances, Ramirez has failed to comply with the Scheduling Order (Doc. 15) and

failed to meet her burden of developing her arguments to show the ALJ’s decision

lacked substantial evidence. Williams v. Saul, No. 5:18-CV-158-MJF, 2019 WL

4280055, *21 (N.D. Fla. Sept. 9, 2019). It is well settled in the Eleventh Circuit,

“[i]ssues raised in a perfunctory manner, without supporting arguments and citation

to authorities, are generally deemed to be waived.” Battle v. Comm’r, Soc. Sec.

Admin., 787 F. App’x 686, 687 (11th Cir. 2019) (quoting N.L.R.B. v. McClain of

Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998)); see, e.g., Outlaw v. Barnhart, 197

F. App’x 825, 828 n.3 (11th Cir. 2006) (holding claimant waived an issue because

he did not elaborate on claim or provide citation to authority regarding claim).

Ramirez did correct some—but by no means all—of these issues in her Reply

(Doc. 27). The Court will therefore address only those arguments with citation to the

reweigh the evidence, citing Moore v. Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005). (Tr. 37-

38). The Court will address this issue during its discussion.

administrative record and citation to legal authority. The Court deems the remaining

arguments waived.

B. Whether the ALJ erred by failing to find additional severe

impairments

Ramirez briefly asserts the ALJ failed to mention pelvic or abdominal

impairments, PTSD, rape trauma, shoulder limitations, venous impairments,

medication side effects, or persistent vomiting as severe impairments. (Id. , pp. 51-

52). A severe impairment must bring about at least more than a minimal reduction

in a claimant’s ability to work, and must last continuously for at least twelve months.

See 20 C.F.R. §§ 404.1505(a). This inquiry “acts as a filter” so that insubstantial

impairments will not be given much weight. Tuggerson-Brown v. Comm’r of Soc.

Sec., 572 F. App'x 949, 950 (11th Cir. 2014) (quoting Jamison v. Bowen, 814 F.2d

585, 588 (11th Cir. 1987)). While the standard for severity is low, the severity of an

impairment “‘must be measured in terms of its effect upon ability to work.’”

D’Andrea v. Comm'r of Soc. Sec. Admin., 389 F. App’x 944, 945 (11th Cir. 2010)

(quoting McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)).

“Nothing requires that the ALJ must identify, at step two, all of the

impairments that should be considered severe.” Heatly v. Comm’r of Soc. Sec., 382

F. App’x 823, 825 (11th Cir. 2010). Instead, the ALJ is only required to consider a

claimant’s impairments in combination, whether severe or not. Id. If any impairment

or combination of impairments qualifies as “severe,” step two is satisfied and the

claim advances to step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852

(11th Cir. 2013) (citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)).

“[B]eyond the second step, the ALJ must consider the entirety of the claimant’s

limitations, regardless of whether they are individually disabling.” Griffin v. Comm’r

of Soc. Sec., 560 F. App’x 837, 841-42 (11th Cir. 2014) (internal citations omitted).

In other words, as long as the ALJ considered Ramirez’s severe impairments in

combination with Ramirez’s non-severe impairments any potential error at step two

is harmless. See Griffin, 560 F. App’x at 841-42.

Here, for both DIB and SSI, the ALJ determined Ramirez had severe

impairments and continued to step three. (Tr. 24, 26). As the Court discusses at

length in the following sections, the ALJ thoroughly considered the medical records

and all of Ramirez’s impairments, whether severe or non-severe, for the relevant

time periods for both DIB and SSI. (Tr. 24-45). The Court finds no error at step two.

C. Whether the ALJ erred by finding Ramirez’s impairments did not

meet or medically equal a listed impairment

Ramirez contends the ALJ erred in analyzing whether Ramirez’s mental

impairments met or equaled Listings 12.04 and 12.06.5 (Doc. 23, pp. 34-36).

5 Ramirez also asserts: “Based on the foregoing, the ALJ failed to apply the correct legal standards

in evaluating the medical and testimonial evidence of record, failed to determine the credibility, or

lack thereof, of Ramirez and his [sic] witness, and in that decision perpetrated an error of analysis

that should have determined Ramirez met the requirements of listed impairment 1.02.” (Doc. 23,

p. 36). Ramirez provided no supporting argument or citation to authority as to Listing 1.02. The

Court therefore finds Ramirez waived this argument. See Battle v. Comm’r, Soc. Sec. Admin., 787

F. App’x 686, 687 (11th Cir. 2019).

Ramirez claims the ALJ failed to consider all of Ramirez’s mental impairments and

associated evidence, but Ramirez mostly fails to cite to the administrative record or

legal authority in support of this argument. (Id., p. 34). Simply put, Ramirez broadly

argues the ALJ erred in discounting much of the record and testimonial evidence.

(Id.).

A claimant has the burden of proving an impairment meets or medically

equals a listed impairment. Barclay v. Comm’r of Soc. Sec. Admin., 274 F. App’x

738, 741 (11th Cir. 2008). To meet a listing, a claimant must have a diagnosis

included in a listing and provide medical reports documenting that the conditions

meet the specific criteria of a listing and the duration requirement. Id. (citing Wilson

v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002)). Listing 12.04 provides a

claimant “is disabled if she has a sufficiently severe ‘disturbance of mood,

accompanied by a full or partial manic or depressive syndrome.’” Id. (citing 20

C.F.R. § 404, Subpt. P, App. 1, Listing 12.04). Listing 12.06 provides a claimant “is

disabled if she suffers from anxiety and that ‘anxiety is either the predominant

disturbance or it is experienced if the individual attempts to master symptoms; for

example, confronting the dreaded object or situation in a phobic disorder or resisting

the obsessions or compulsions in obsessive compulsive disorders.’” Id. (citing 20

C.F.R. § 404, Subpt. P, App. 1, Listing 12.06).

In order to meet these listings, a claimant must meet the criteria of either

paragraphs A and B or paragraphs A and C. 20 C.F.R. Pt. 404, Subpt. P, App. 1.

Paragraph A lists the medical symptoms that must be present in the medical

evidence, and paragraph B requires extreme limitation of one, or marked limitation

of two of the functional areas listed in the decision. Id. Paragraph C requires a

claimant to have a medically documented history of the existence of a disorder for

over two years. Id.

For DIB, while the ALJ noted that Ramirez had an assessment of anxiety, the

ALJ pointed to treatment notes documenting unremarkable or normal psychiatric

examinations during the relevant time period. The ALJ also cited to Ramirez’s

anxiety being treated conservatively with prescribed medication without dose

change and no reports of panic attacks at office visits. Finally, the ALJ noted that

Ramirez sought treatment for anxiety from Urgent Care physicians and not from

mental health providers. In the four functional areas, the ALJ found Ramirez to have

no limitations. In support, the ALJ cited to examinations on April 29 and August 14,

2015, which revealed Ramirez had normal mood and affect with intact judgment,

memory, and insight. The ALJ concluded that “there is no medical evidence of

record of any work related limitations because of anxiety.” (Tr. 25-26). In further

support, the ALJ cited to the State Agency medical consultants who found Ramirez

did not meet or equal the listings for purposes of DIB. (Tr. 26, 108, 120). The Court

finds substantial evidence supports the ALJ’s findings.

For SSI, the ALJ found Ramirez to have moderate limitations in: (1)

understanding, remembering or applying information; (2) interacting with others;

and (3) concentrating, persisting or maintaining pace. And the ALJ found Ramirez

to have mild limitations in adapting or managing oneself. While the ALJ considered

both Ramirez’s and her mother’s testimony regarding Ramirez’s need for assistance,

the ALJ contrasted that testimony with Ramirez being able to use a computer or

smartphone, living with her daughter (which demonstrates some interaction with

others), doing some chores, and going out alone to shop, at least to some degree. (Tr.

27-28). The ALJ also relied on the opinions of Theodore Weber, Psy.D. and James

Brown, Ph.D. that Ramirez is able to understand and remember simple instructions,

complete simple tasks or work procedures, could cooperate and be socially

appropriate, and would be able to react or adapt appropriately to the work

environment. (Tr. 27-28, 162). Furthermore, as the ALJ noted, Drs. Weber and

Brown determined Ramirez’s impairments do not meet or equal a listed impairment.

(Tr. 26, 154-155, 203-204). The ALJ comprehensively and sufficiently analyzed

whether Ramirez’s impairments met or medically equaled Listings 12.04 and 12.06.

(Tr. 25-28). The ALJ specifically found: “The severity of the claimant’s mental

impairments, considered singly and in combination, do not meet or medically equal

the criteria of Listings 12.04 and 12.06.” (Tr. 27).

At bottom, the ALJ considered Listings 12.04 and 12.06 and supported her

findings that Ramirez did not meet or medically equal a listing with citations to the

evidence of record. While Ramirez is correct that contrary evidence exists, the ALJ

considered the subjective testimony, but found it not supported by other evidence in

the record. The Court “‘may not decide facts anew, reweigh the evidence, or

substitute our judgment for that of the [Commissioner.]’” Dyer v. Barnhart, 395 F.3d

1206, 1210 (11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8

(11th Cir. 2004)); see also Jordan v. Comm’r of Soc. Sec. Admin., 470 F. App’x 766,

769 (11th Cir. 2012) (refusing to adopt the plaintiff’s contention that the ALJ should

have discounted the opinions of mental health experts and instead give greater

weight to her testimony and that of her mother’s). That Ramirez identifies other

evidence in the record which may support a different finding (i.e., greater limitations

arising from mental impairments) does not mean that the ALJ’s decision is

unsupported by substantial evidence. See Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004) (“[T]he mere fact that the record may support a contrary conclusion

is not enough to justify a reversal of the administrative findings.”). The Court finds

no error in the ALJ’s consideration of the Listings.

D. Whether the ALJ erred when considering the physicians’ opinions

While unclear, it appears that Ramirez assigns error to the ALJ’s decision

because the ALJ did not assign certain weight to unnamed physicians’ opinions.

(Doc. 23, pp. 28-29, 35-36, 52; Doc. 27, p. 3). But the Court rejects Ramirez’s point

of error because for disability cases filed after March 27, 2017, such as this one, an

ALJ does not defer or give any specific evidentiary weight to a medical opinion. 20

C.F.R. §§ 404.1520c(a); 416.920c(a). Instead, an ALJ assesses the persuasiveness

of a medical source’s opinions in light of the following five factors, with the first

two being the most important: (1) supportability; (2) consistency; (3) relationship

with the claimant, including the length, frequency, and purpose of the examining and

any treatment relationship; (4) specialization; and (5) other factors, such as the

source’s familiarity with other evidence concerning the claim, that tend to support

or contradict the medical opinion. 20 C.F.R. §§ 404.1520c(b)-(c); 416.920c(b)-(c).

In addition to employing the wrong standard, Plaintiff also fails to specify any error

by the ALJ as to a particular medical provider and her general comments are not

supported by citation to the record. As such, these perfunctory arguments are

waived. See Battle, 787 F. App’x at 687. Nonetheless, the Court considered the

ALJ’s discussion of the physicians’ records and opinions and finds the ALJ

thoroughly evaluated the medical records and opinions when determining their

persuasiveness. (See e.g., Tr. 32, 41, 43, 44, 45).

As a result, the Court finds the ALJ properly considered the physicians’

opinions.

E. Whether the ALJ erred in her assessment of the subjective evidence

Ramirez claims the ALJ almost entirely disregarded the testimony of Ramirez

and her mother as to Ramirez’s subjective complaints. (Doc. 23, pp. 29, 30-31, 32-

33, 54). The Court disagrees.

To show disability based on pain or other symptoms, a claimant must: “show

an underlying medical condition and either (1) objective medical evidence

confirming the severity of the alleged pain [or other symptoms] arising from that

condition or (2) that the medical condition is severe enough that it can reasonably be

expected to give rise to the alleged pain [or other symptoms].” Morales v. Comm’r

of Soc. Sec., 799 F. App’x 672, 676 (11th Cir. 2020) (citing Foote v. Chater, 67 F.3d

1553, 1562 (11th Cir. 1995)). “‘The standard applies to complaints of subjective

conditions other than pain.’” Hollingsworth v. Comm’r of Soc. Sec., No. 20-11678,

2021 WL 406914, *2 (11th Cir. Feb. 5, 2021) (quoting Holt v. Sullivan, 921 F.2d

1221, 1223 (11th Cir. 1991)). After a claimant has established a qualifying medical

condition, then the ALJ must consider all the evidence about the intensity,

persistence, and functionally limiting effects of pain or other symptoms in deciding

whether the claimant is disabled. Morales, 799 F. App’x at 676. If the ALJ does not

credit the claimant’s subjective testimony, she must articulate “explicit and adequate

reasons” for her decision. Hollingsworth, 2021 WL 406914, at *2. Here, the ALJ

complied with the requirements of SSR 16-3p. (Tr. 29, 33-34 (citing SSR 16-3p,

2016 WL 1119029 (March 16, 2016)).6

For DIB, the ALJ summarized Ramirez’s testimony concerning her subjective

complaints. The ALJ found “Claimant’s alleged symptoms and functional

limitations are not entirely consistent [ ] from the alleged onset date of disability of

July 31, 2015 to the date last insured to December 31, 2015.” (Tr. 30). The ALJ then

summarized the medical records and noted instances of normal physical

examinations, and normal laboratory results. (Tr. 29-31). The ALJ found:

In view of the conservative limited treatment from the alleged

onset date of disability through the date last insured, the

apparent improvement of symptoms with medication and the

mostly unremarkable clinical signs of record highlighted

earlier, the undersigned found that the symptom and limitations

alleged by the claimant and her mother prior concerning the

Title II application with a remote date last insured of December

31, 2015 are not entirely persuasive, supported or consistent

with the medical record. From the alleged onset date through

the date last insured, the claimant did not present to the

emergency department or an office visit with intractable pain

or any uncontrollable symptoms. Her treatment has been very

conservative consisting of some prescribed medications.

6 Effective March 28, 2016, SSR 16-3p superseded SSR 96-7p. See SSR 16-3p, 2016 WL 1119029

(March 16, 2016). SSR 16-3p explains that “we are eliminating the use of the term ‘credibility’

from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that

subjective symptom evaluation is not an examination of an individual’s character.” Id. The

Commissioner republished SSR 16-3p in October 2017. 82 Fed. Reg., 49,462 (Oct. 25, 2017).

(Tr. 31). The ALJ clearly articulated explicit and adequate reasons for not crediting

Ramirez’s subjective complaints and supported these reasons with citations to the

record.

As to SSI, the ALJ thoroughly summarized the relevant medical evidence,

Ramirez’s contentions, and her mother’s testimony. (Tr. 34-35, 42). The ALJ found:

After careful consideration of the evidence, the undersigned

finds that the claimant’s medically determinable impairments

could reasonably be expected to cause some of the alleged

symptoms. However, the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms

are not entirely consistent with the medical evidence and other

evidence in the record for the reasons explained in this

decision.

(Tr. 35). The ALJ then summarized the relevant medical records and determined:

The undersigned considered claimant’s complaints of pain.

However, the extent of the symptoms and pain alleged are not

entirely consistent with the conservative treatment received or

the observable clinical signs of record. Furthermore, even

though she alleges that she does nothing at home, [she] is the

responsible parent of a 13 year old, which requires supervision

and care. Her alleged inactivity is inconsistent with the

observable clinical signs of record that can be unremarkable

(see Ex. 44F at 5; 48F at 3, 12, 20). Even though there is

evidence of anger, anxiety attacks and a low intellectual

functioning (Ex. 24F at 31 48F at 2, 29), she has been described

as cooperative, attentive (Ex. 48F at 34), alert, and oriented

(Ex. 44F at 5). The claimant testified that she drives [and] that

requires concentration and attention.

(Tr. 41). The ALJ also found inconsistencies in Ramirez’s testimony versus

objective evidence in the record. For example, Ramirez testified she has a 9th grade

education, but in a treatment note she indicated she has a GED. Ramirez also testified

she could not finish a task even as a child and had panic attacks since she was a

child, but the ALJ noted that she was able to work at a substantial-gainful-activity

level for multiple years. The ALJ reasoned: “Although the inconsistent information

provided by the claimant may not be the result of a conscious intention to mislead,

nevertheless the inconsistencies suggest that the information provided by the

claimant is not entirely reliable.” (Tr. 41).

The ALJ also summarized Ramirez’s mother’s testimony and found it not

persuasive. The ALJ noted:

The mother of the claimant is a non-medical source and the

extent of the limitations and symptoms she reported are not

only internally inconsistent but inconsistent with claimant’s

own statements and most importantly inconsistent with the

observable clinical signs of record. While Mrs. Ramirez

reported the claimant could not concentrate or focus, she then

reported the claimant plays on her phone all day and night,

which includes playing games on her phone, which requires

concentration. Ms. Ramirez noted the claimant could not go

out alone, drive and she does not shop, but the claimant

testified that she drives to the pharmacy and the grocery store.

Additionally, Ms. Ramirez alleged spending three times per

week with the claimant doing cooking and cleaning for the

claimant (Exhibit l 7E/l) and that the claimant experienced 120

panic attacks in the previous six months that can last for several

hours and that the claimant began experiencing them at the age

of 11 or 12. However, the number of alleged panic attacks do

not add up as she then reported that she had witnessed only 20

of them. Ms. Ramirez reported the claimant needed help using

the restroom but this is not reflected in treatment notes (Exhibit

21E/2). The extent of the symptoms and limitations claimant’s

mother alleged are simply not supported or consistent with the

medical record.

(Tr. 42). The ALJ again clearly articulated explicit and adequate reasons for not

crediting Ramirez’s subjective complaints and her mother’s testimony and supported

these reasons by citation to the record.

The ALJ properly considered all relevant evidence, including Ramirez’s

subjective complaints and her mother’s testimony, and articulated explicit and

adequate reasons to discount both. The Court finds no error.

F. Whether the ALJ properly considered the combined effects of

Ramirez’s impairments on her RFC

Ramirez argues generally the ALJ erred by not addressing the entirety of the

record and failed to apply the correct legal standards to the opinions and weight of

the evidence. (Doc. 23, pp. 27-28; 51-54; Doc. 27, p. 4). In determining a claimant’s

RFC, the ALJ must consider all the relevant evidence of record. Barrio v. Comm’r

of Soc. Sec., 394 F. App’x 635, 637 (11th Cir. 2010). In short, an individual’s RFC

is her ability to do physical and mental work activities on a sustained basis despite

limitations secondary to her established impairments. Delker v. Comm’r of Soc. Sec.,

658 F. Supp. 2d 1340, 1364 (M.D. Fla. 2009). An ALJ is not required to include

limitations in the RFC not supported by the record. Lee v. Comm’r of Soc. Sec., 448

F. App’x 952, 953 (11th Cir. 2011) (citing Crawford v. Comm’r Of Soc. Sec., 363

F.3d 1155, 1161 (11th Cir. 2004)). And in the end, a claimant must demonstrate that

she cannot adjust to other jobs sufficiently available in the economy, because

ultimately, “the claimant bears the burden of proving that [s]he is disabled.” Ellison

v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).

Here, the ALJ considered the relevant evidence in a thorough and

comprehensive manner for both DIB and SSI claims. The ALJ discussed the relevant

medical history, other evidence of record, and the hearing testimony, which included

Ramirez’s subjective complaints and daily activities. (Tr. 28-45). The ALJ

repeatedly stated she carefully considered the entire record, including “all symptoms

and the extent to which these symptoms can reasonably be accepted as consistent

with the objective medical evidence and other evidence” before reaching her

decision. (Tr. 24, 29, 33). Generally, an ALJ’s statement that she carefully

considered the entire record is sufficient to show that she has done so. Heatly v.

Comm’r of Soc. Sec., 382 F. App’x 823, 825 n.3 (11th Cir. 2010) (citing Jones v.

Dep’t of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991)); see also

Cooper v. Comm’r of Soc. Sec., 521 F. App’x 803, 808 (11th Cir. 2013) (“Despite

[claimant’s] assertions to the contrary, the ALJ stated that he considered the record

in its entirety, and he was not required to discuss every piece of evidence in denying

her application for disability benefits.”). Further, the Court is mindful that “there is

no rigid requirement that the ALJ specifically refer to every piece of evidence in

[her] decision, so long as the ALJ’s decision was not a broad rejection that did not

enable the court to conclude that the ALJ considered the claimant’s medical

condition as a whole.” Edgecomb v. Comm’r of Soc. Sec., No. 20-11752, 2020 WL

7774948, *2 (11th Cir. Dec. 30, 2020) (citing Dyer v. Barnhart, 395 F.3d 1206, 1211

(11th Cir. 2005)).

Specifically for DIB, the ALJ discussed the treatment notes of Refaat El-Said,

M.D. and German Calero, M.D., who reported generally normal physical and

psychiatric examinations. The ALJ summarized Ramirez’s condition prior to the

date last insured and found she received conservative limited treatment from the

alleged onset date through the date last insured, had apparent improvement with

medication, and had mostly unremarkable clinical findings. The ALJ then

considered the opinions of Samuel Hopkins, M.D., Jeaudine Hill, M.D., Theodore

Weber, Psy.D., and Jane Cornier, Ph.D. in determining Ramirez’s limitations and

accommodated Ramirez to a greater degree in the RFC. (Tr. 30-32).

For SSI, the ALJ exhaustively discussed Ramirez’s medical records and other

evidence of record. The ALJ summarized the many treatments and procedures

performed on Ramirez throughout the relevant time period and the outcomes. (Tr.

34-44). The ALJ considered these records and found, overall, Ramirez received

medication, injections, and physical therapy for her ailments, which amounted to

conservative treatment; had no emergency department visits; and her office visits

were without “intractable pain or uncontrollable symptoms.” The ALJ also noted

that the office visit reports amounted to essentially normal physical examinations.

(Tr. 39).

The ALJ found Ramirez limited to understanding and remembering simple

instructions, completing simple tasks and work procedures, and frequent but not

constant contact with co-workers and the general public. The ALJ considered

Ramirez’s involuntary commitment after having attempted suicide, but noted

Ramirez was discharged the next day after a report of a normal mental status

evaluation. The ALJ also considered treatment notes from, among others, Katherine

Muir, Ph.D., Concepcion Barreto, M.D., and Hilda Cruz, M.D. The ALJ summarized

the treatment records and found that when Ramirez was compliant with her

medications, her condition improved. (Tr. 39-40).

As noted previously, the Court rejects Ramirez’s broad contention that the

ALJ failed to discuss certain medical records or weigh medical opinion evidence.

Ramirez failed to specifically identify the records or medical providers, and she

failed to cite to the administrative record or legal authority in support of her

arguments. (Doc. 23, pp. 27-33, 36). 7 Ramirez attempted to remedy these

shortcomings in the Reply (Doc. 27, pp. 3-4). But Ramirez simply lumped her

diagnoses together. (Doc. 27, pp. 3-4; n.1). Even so, a diagnosis alone is insufficient,

7 At one point, Ramirez does cite the administrative record, “(Tr. 574-2259),” but this citations is

unhelpful. (Doc. 23, p. 52). The Court should not be tasked with reviewing over 1600 pages of the

administrative record to find support for Ramirez’s contentions.

instead a claimant must show the effect of an impairment on her ability to work.

Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005). Ramirez has not.

Additionally, some of these specifically listed diagnoses or impairments were

discussed by the ALJ, for example abdominal pain and cramping, vestibular

therapies, vertigo, gait, strength, and pain. (Tr. 28, 30, 31, 34, 35, 36).

While Ramirez argues generally the ALJ failed to address physical and mental

diagnostic findings and symptomology, Ramirez simply lumped medical records

together without specifically asserting why these particular medical records are

relevant to the decision. (Doc. 27, pp. 3-4). Not only that, but the ALJ discussed

many of the medical records of the urgent care and emergency visits cited by

Ramirez. (Tr. 35-38).

In the Reply, Ramirez does specifically cite the record for one mental health

professional, Concepcion Barreto, M.D. in support of her argument that the ALJ did

not consider all of the mental health medical records in determining the RFC. (Doc.

27, p. 4). Ramirez claims Dr. Barreto observed on July 7, 2017, that Ramirez had

anxiety, restlessness, irritability, trembling, fidgeting, short attention span, and noise

sensitivity, all of which she claims interfere with her daily life. (Id., (citing Tr. 802-

803)). Dr. Barreto recommended treatment and prescribed medication. (Tr. 803).

The ALJ specifically considered Dr. Barreto’s reports, including reports showing

Ramirez was irritable, talkative with rapid speech, expressed inappropriate anger,

defensive, disheveled but tense, anxious, and presented as manic. (Tr. 36-37, 39, 40).

The ALJ also specifically mentioned and considered Dr. Barreto’s records of

October 19, 2017, showing Ramirez not compliant with her medications, and a later

November 3, 2017 medical record documenting Ramirez’s behavior as stable and

uneventful and her medication compliance was good. (Tr. 40, 1464). Dr. Barreto

reported Ramirez had no apparent serious mental status abnormalities, and found

Ramirez generally in the normal range. (Tr. 1464-1465). Contrary to Ramirez’s

contentions, the ALJ did consider Dr. Barreto’s opinions and records in formulating

the RFC and the Court may not reweigh this evidence. Dyer v. Barnhart, 395 F.3d

1206, 1210 (11th Cir. 2005).

In sum, the ALJ properly considered all relevant evidence and her decision is

supported by substantial evidence. The Court finds no error.

G. Whether the vocational expert’s testimony constituted substantial

evidence

Ramirez also mentions that by disregarding the combined effects of Ramirez’s

impairments, the ALJ posed an incomplete or incorrect hypothetical to the

vocational expert, rendering the vocational expert’s opinion not supported by

substantial evidence. (Doc. 23, p. 53; Doc. 27, pp. 4-5). At step five of the sequential

evaluation, the ALJ must determine whether jobs exist in significant numbers in the

national economy that a plaintiff can perform. Winschel v. Comm’r of Soc. Sec., 631

F.3d 1176, 1180 (11th Cir. 2011). An ALJ may obtain the testimony of a vocational

expert to determine whether there are jobs that exist in the national economy that a

claimant can perform. Id. For the vocational expert’s opinion to constitute

substantial evidence, “the ALJ must pose a hypothetical question which comprises

all of the claimant’s impairments.” Id. (citing Wilson v. Barnhart, 284 F.3d 1219,

1227 (11th Cir. 2002)). “If the ALJ presents the vocational expert with incomplete

hypothetical questions, the vocational expert’s testimony will not constitute

substantial evidence.” Jacobs v. Comm’r of Soc. Sec., 520 F. App’x 948, 950 (11th

Cir. 2013). But an ALJ is not required to include findings in the hypothetical that the

ALJ found to be unsupported by the record. Lee v. Comm’r of Soc. Sec., 448 F.

App’x 952, 953 (11th Cir. 2011) (citing Crawford v. Comm’r of Soc. Sec., 363 F.3d

1155, 1161 (11th Cir. 2004)).

Ramirez does not assert the hypothetical to the vocational expert did not

include all the limitations in both RFC findings. Ramirez’s argument therefore fails

because her contentions about the hypothetical question and vocational expert

testimony are identical to those leveled at the ALJ’s RFC determination, and as

discussed above, the Court found the RFCs are supported by substantial evidence.

See Ybarra v. Comm’r of Soc. Sec., 658 F. App’x 538, 543 (11th Cir. 2016) (finding

that the plaintiff’s criticism of the hypothetical question was actually an attack on

the RFC determination, which the Court already found was supported by substantial

evidence).®

H. Conclusion

Upon consideration of the submissions of the parties and the administrative

record, the Court finds substantial evidence supports the ALJ’s decision and there

was either no error or no harmful error in the ALJ’s application of the correct legal

standard.

Accordingly, the decision of the Commissioner is AFFIRMED pursuant to

sentence four of 42 U.S.C. § 405(g). The Clerk of Court is directed to enter

judgment, terminate any pending motions and deadlines, and close the case.

DONE and ORDERED in Fort Myers, Florida on March 31, 2021.

Lida Ee La ell.

NICHOLAS P. MIZEL

UNITED STATES MAGISTRATE JUDGE

8 The remaining arguments concerning the vocational expert’s testimony are perfunctory and are

not supported by citation to the record or citation to supporting authority. See Battle v. Comm’r,

Soc. Sec. Admin., 787 F. App’x 686, 687 (11th Cir. 2019). Thus, they are waived. /d.

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