Terrell v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JEROME TERRELL, JR.,

Plaintiff,

v. Case No. 6:21-cv-597-JRK

KILOLO KIJAKAZI,

Acting Commissioner of Social

Security,

Defendant.

OPINION AND ORDER1

I. Status

Jerome Terrell, Jr. (“Plaintiff”) is appealing the Commissioner of the

Social Security Administration’s (“SSA(’s)”) final decision denying his claim for

supplemental security income (“SSI”). Plaintiff’s alleged inability to work is the

result of a “[l]earning disability” and “[s]eizures.” Transcript of Administrative

Proceedings (Doc. No. 22; “Tr.” or “administrative transcript”), filed August 16,

2021, at 63, 77, 93, 192. Plaintiff protectively filed an application for SSI on

1 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

(Doc. No. 21), filed August 16, 2021; Reference Order (Doc. No. 25), signed August 18, 2021

and entered August 19, 2021.

November 16, 2016, alleging a disability onset date of July 27, 1989.2 Tr. at

166-74. The application was denied initially, Tr. at 63-76, 77-89, 90, 91, 109-11,

and upon reconsideration, Tr. at 92-106, 107, 108, 116-21.

On February 13, 2019, an Administrative Law Judge (“ALJ”) held a

hearing, during which Plaintiff (representing himself) and a vocational expert

(“VE”) testified. Tr. at 38-61; see also Tr. at 161 (waiver of right of

representation). At the time, Plaintiff was thirty-six (36) years old. See Tr. at

48 (Plaintiff stating his date of birth). On June 6, 2019, the ALJ issued a

Decision finding Plaintiff not disabled through the date of the Decision. See Tr.

at 10-19.

Thereafter, Plaintiff obtained a non-attorney representative, who sought

review of the Decision by the Appeals Council and submitted a brief in support

of the request. See Tr. at 4-5 (Appeals Council exhibit list and order), 31-32, 34-

35 (original and duplicate appointment of representative documents), 163-65

(request for review), 273-74 (brief). On March 16, 2020, the Appeals Council

denied Plaintiff’s request for review, Tr. at 1-3, thereby making the ALJ’s

Decision the final decision of the Commissioner. On April 5, 2021, Plaintiff

commenced this action, through counsel, under 42 U.S.C. § 405(g), as

2 Although actually filed on January 11, 2017, see Tr. at 166, the protective filing

date for the SSI application is listed elsewhere in the administrative transcript as November

16, 2016, see, e.g., Tr. at 63, 77, 93.

incorporated by § 1383(c)(3), by timely3 filing a Complaint (Doc. No. 1), seeking

judicial review of the Commissioner’s final decision.

On appeal, Plaintiff raises “[w]hether the ALJ erred by failing to include

limitations opined by the State Agency’s psychological consultants in the

[residual functional capacity (‘RFC’)] finding, or explain their exclusion,

resulting in a step 5 decision that is not supported by substantial evidence.”

Joint Memorandum (Doc. No. 29; “Joint Memo”), filed December 21, 2021, at 6

(emphasis omitted).4 After a thorough review of the entire record and the

parties’ respective arguments, the undersigned finds that the Commissioner’s

final decision is due to be affirmed.

II. The ALJ’s Decision

When determining whether an individual is disabled,5 an ALJ must

follow the five-step sequential inquiry set forth in the Code of Federal

Regulations (“Regulations”), determining as appropriate whether the claimant

3 The Appeals Council granted Plaintiff’s request for an extension of time to file

a civil action. Tr. at 25.

4 Plaintiff sought and received permission to reply to Defendant’s arguments

(Doc. Nos. 30, 31), but he then elected not to file a reply (Doc. No. 32).

5 “Disability” is defined in the Social Security Act as the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).

(1) is currently employed or engaging in substantial gainful activity; (2) has a

severe impairment; (3) has an impairment or combination of impairments that

meets or medically equals one listed in the Regulations; (4) can perform past

relevant work; and (5) retains the ability to perform any work in the national

economy. 20 C.F.R. § 404.1520; see also Simon v. Comm’r, Soc. Sec. Admin., 7

F.4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); Phillips v. Barnhart,

357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of

persuasion through step four, and at step five, the burden shifts to the

Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

Here, the ALJ followed the five-step sequential inquiry. See Tr. at 12-18.

At step one, the ALJ determined Plaintiff “has not engaged in substantial

gainful activity since November 16, 2016, the application date.” Tr. at 12

(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has

the following severe impairments: a seizure disorder and intellectual disorder.”

Tr. at 12 (emphasis and citation omitted). At step three, the ALJ ascertained

that Plaintiff “does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20

[C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 13 (emphasis and citation

omitted).

The ALJ determined that Plaintiff has the following RFC:

[Plaintiff can] perform a full range of work at all exertional levels

but with the following nonexertional limitations: [Plaintiff] can

occasionally climb ramps and stairs but never climb ladders, ropes

or scaffolds. [Plaintiff] can never operate a motor vehicle as part of

his work duties. He can have no exposure to hazards, such as

unprotected heights and moving machinery. He can perform

simple, routine and repetitive tasks, but not at a production rate

pace (no fast-paced, quota-drive assembly line work). He can make

simple work-related decisions. He can have occasional interaction

with coworkers, supervisors and the general public. He can work

with occasional changes in the work setting.

Tr. at 15 (emphasis omitted).

At step four, the ALJ found that Plaintiff “has no past relevant work.” Tr.

at 17 (emphasis and citation omitted). At the fifth and final step of the

sequential inquiry, after considering Plaintiff’s age (“34 years old . . . on the

date the application was filed”), education (“limited”), lack of relevant work

experience, and RFC, the ALJ relied on the VE’s testimony and found that

“there are jobs that exist in significant numbers in the national economy that

[Plaintiff] can perform,” Tr. at 17 (emphasis and citations omitted), such as

“floor waxer,” “laundry worker,” and “trimmer,” Tr. at 18. The ALJ concluded

Plaintiff “has not been under a disability . . . since November 16, 2016, the date

the application was filed.” Tr. at 18 (emphasis and citation omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given

to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported

by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.

2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial

evidence is something ‘more than a mere scintilla, but less than a

preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial

evidence standard is met when there is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 139 S.Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,

959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court

to reweigh the evidence; rather, the entire record is reviewed to determine

whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation

omitted). The decision reached by the Commissioner must be affirmed if it is

supported by substantial evidence—even if the evidence preponderates against

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

Plaintiff argues the ALJ erred in assigning great weight to opinions of

three non-examining psychological consultants and then purportedly failing to

incorporate all aspects of their opinions in the RFC. Joint Memo at 9-12. At

issue are the opinions of Sheri Tomak, Psy.D, Sharon Ames-Dennard, Ph.D, and

Lawrence Annis, Ph.D. See id. According to Plaintiff, “the ALJ did not include

the limitations to ‘simple one and two-step tasks’ offered by Dr. Ames-Dennard,

or Dr. Annis’s limitation that he may require ‘special supervision’ for both

sustaining ordinary routine and when working on some new and multi-step

assignments and that he would ‘benefit from working with a nonconfrontational

supervisor.’” Id. at 9-10 (quoting Tr. at 87, 103-04). As to Dr. Tomak, aside from

mentioning the assignment of great weight to the opinion and summarizing its

contents, Plaintiff does not point to any specific limitations that the ALJ

allegedly did not include in the RFC. See id. at 3-4, 9-12.6 Responding,

Defendant contends the ALJ is not required to incorporate verbatim the same

language employed by the experts giving the opinions. Id. at 15. Further,

Defendant argues the ALJ adequately incorporated all of the limitations that

the experts imposed. Id. at 15-20.

6 Plaintiff includes in his argument section that he was unrepresented during the

hearing, contends the ALJ thus had a heightened duty to develop the record, and asserts the

case must be viewed against this backdrop. Joint Memo at 7. The parties disagree on the

standards that apply when a Plaintiff validly waives representation at the hearing stage.

Compare id. at 7, with id. at 21. Regardless, Plaintiff has not even attempted to show prejudice

or evidentiary gaps as a result of his being unrepresented at the hearing, so any argument

about the ALJ’s duty to develop the record necessarily fails. See Henry v. Comm’r of Soc. Sec.,

802 F.3d 1264, 1267 (11th Cir. 2015) (quoting Brown v. Shalala, 44 F.3d 931, 935 (11th Cir.

1995)) (remand is appropriate if “the record reveals evidentiary gaps which result in

unfairness or clear prejudice”).

“Medical opinions7 are statements from [physicians or other] acceptable

medical sources that reflect judgments about the nature and severity of [a

claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and

prognosis, what [the claimant] can still do despite impairment(s), and [the

claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1).

Acceptable medical sources include licensed physicians, licensed psychologists,

licensed optometrists, licensed podiatrists, and qualified speech-language

pathologists. 20 C.F.R. § 404.1502(a).8

The Regulations establish a hierarchy among medical opinions that

provides a framework for determining the weight afforded each medical

opinion. See 20 C.F.R. § 404.1527. Essentially, “the opinions of a treating

physician are entitled to more weight than those of a consulting or evaluating

health professional,” and “[m]ore weight is given to the medical opinion of a

source who examined the claimant than one who has not.” Schink v. Comm’r of

7 On January 18, 2017, the SSA revised the Rules regarding the evaluation of

medical evidence and symptoms for claims filed on or after March 27, 2017. See Revisions to

Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5,844, 5,844 (January 18,

2017); see also 82 Fed. Reg. 15,132 (Mar. 27, 2017) (amending and correcting the final Rules

published at 82 Fed. Reg. 5,844). Because Plaintiff filed his claim before that date, the

undersigned cites the older Rules and Regulations (that are applicable to the date the claim

was filed).

8 For claims filed on or after March 27, 2017, acceptable medical sources also

include licensed audiologists, licensed Advanced Practice Registered Nurses, and licensed

Physician Assistants. 20 C.F.R. § 404.1502(a)(6)-(8).

Soc. Sec., 935 F.3d 1245, 1259, 1260 n.5 (11th Cir. 2019). Further, “[n]on-

examining physicians’ opinions are entitled to little weight when they

contradict opinions of examining physicians and do not alone constitute

substantial evidence.” Id. at 1260 (citing Sharfarz v. Bowen, 825 F.2d 278, 280

(11th Cir. 1987) (per curiam)). The following factors are relevant in determining

the weight to be given to a physician’s opinion: (1) the “[l]ength of the treatment

relationship and the frequency of examination”; (2) the “[n]ature and extent of

[any] treatment relationship”; (3) “[s]upportability”; (4) “[c]onsistency” with

other medical evidence in the record; and (5) “[s]pecialization.” 20 C.F.R.

§ 404.1527(c)(2)-(5); see also 20 C.F.R. § 404.1527(f); Walker v. Soc. Sec. Admin.,

Comm’r, 987 F.3d 1333, 1338 (11th Cir. 2021) (citation omitted); McNamee v.

Soc. Sec. Admin., 164 F. App’x 919, 923 (11th Cir. 2006) (citation omitted)

(stating that “[g]enerally, the opinions of examining physicians are given more

weight than those of non-examining physicians[;] treating physicians[’

opinions] are given more weight than [non-treating physicians;] and the

opinions of specialists are given more weight on issues within the area of

expertise than those of non-specialists”).

An ALJ is required to consider every medical opinion. See 20 C.F.R.

§ 404.1527(c) (stating that “[r]egardless of its source, we will evaluate every

medical opinion we receive”). While “the ALJ is free to reject the opinion of any

physician when the evidence supports a contrary conclusion,” Oldham v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (citation omitted); see also 20

C.F.R. § 404.1527(c)(2), “the ALJ must state with particularity the weight given

to different medical opinions and the reasons therefor,” Winschel v. Comm’r of

Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz, 825 F.2d at

279); Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005); Lewis, 125 F.3d

at 1440.

The RFC assessment “is the most [a claimant] can still do despite [his or

her] limitations.” 20 C.F.R. § 404.1545(a)(1). It is used at step four to determine

whether a claimant can return to his or her past relevant work, and if necessary,

it is also used at step five to determine whether the claimant can perform any

other work that exists in significant numbers in the national economy. 20 C.F.R.

§ 404.1545(a)(5). In assessing a claimant’s RFC, the ALJ “must consider

limitations and restrictions imposed by all of an individual’s impairments, even

those that are not ‘severe.’” SSR 96-8P, 1996 WL 374184 at *5; see also Pupo v.

Comm’r, Soc. Sec. Admin., 17 F.4th 1054, 1064 (11th Cir. 2021) (citing Schink

v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268 (11th Cir. 2019)); Swindle v.

Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating that “the ALJ must

consider a claimant’s impairments in combination”) (citing 20 C.F.R. §

404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984)).

Here, the opinions at issue are from non-examining psychological

consultants. As to Dr. Tomak’s opinion, the ALJ assigned it “great weight

because it is consistent with the evidence showing moderate limits within the

paragraph B criteria.” Tr. at 16 (citations omitted). Since Plaintiff does not raise

any specific points of error regarding any portions of this opinion that were not

incorporated into the RFC, it need not be addressed any further.

As to Dr. Ames-Dennard’s opinion, the ALJ assigned it “great weight

because it is supported by the psychological consultative examination.” Tr. at

16 (citation omitted). Plaintiff contends the ALJ failed to include Dr. Ames-

Dennard’s assigned limitation of “simple one and two-step tasks.” Joint Memo

at 10 (citing Tr. at 87). But, Dr. Ames-Dennard did not find that Plaintiff had

such a limitation. Instead, she found Plaintiff “not significantly limited” in “the

ability to carry out very short and simple instructions”; “capable of

understanding and recalling simple instructions”; and “capable of . . .

understand[ing] and remember[ing] simple one and two-step task[s].” Tr. at 87-

88 (some capitalization omitted). These findings are not inconsistent with the

ALJ’s assigned RFC abilities to “perform simple, routine and repetitive tasks,

but not at a production rate pace” and to “make simple work-related decisions.”

Tr. at 15.

As to Dr. Annis’s opinion, the ALJ assigned it “great weight because it is

also supported by the consultative examiner[’]s clinical observations.” Tr. at 16.

Plaintiff contends the ALJ failed to account for the following assigned

limitations: “he may require ‘special supervision’ for both sustaining ordinary

routine and when working on some new and multi-step assignments’ and that

he ‘would benefit from working with a nonconfrontational supervisor.’” Joint

Memo at 10 (emphasis added, quoting Tr. at 103-04). But, Plaintiff has not

accurately characterized Dr. Annis’s opinion as to the first limitation (special

supervision). Dr. Annis actually wrote: “Additional supervision may be required

when working on some new and multi-step assignments.” Tr. at 104 (emphasis

added). Special supervision for sustaining ordinary routine is quite a bit

different than special supervision when working on some new and multi-step

assignments. In any event, as to both the “supervision” and the

“nonconfrontational supervisor” comments, Dr. Annis used the “may” qualifier,

evincing that he did not intend an absolute restriction. The ALJ did not err by

electing not to include these verbatim restrictions in the RFC, instead including

that Plaintiff should have “occasional interaction with . . . supervisors” and

“occasional changes in the work setting.” Tr. at 15.

V. Conclusion

The ALJ’s Decision is supported by substantial evidence. Based on the

foregoing, it is

ORDERED:

1. The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), as incorporated by § 1383(c)(3),

AFFIRMING the Commissioner’s final decision.

2. The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on September 7, 2022.

Verge Boo KAS

JAMES R. KLINDT

United States Magistrate Judge

kaw

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