Felker v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DARLENE LOUISE FELKER,

Plaintiff,

v. Case No.: 2:22-cv-221-KCD

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

ORDER

Plaintiff Darlene Louise Felker sues under 42 U.S.C. §§ 405(g) and

1383(c)(3) for judicial review of the Commissioner of Social Security’s decision

denying her application for disability insurance benefits. (Doc. 1.)1 For the

reasons below, the Commissioner’s decision is affirmed.

I. Background

The procedural history, administrative record, and law are summarized

in the parties’ briefs (Doc. 20, Doc. 21) and are not fully repeated here. Felker

filed for disability benefits claiming she could not work because of neuropathy,

PTSD, auto immune problems, nash, retorcle, sleep apnea, and high blood

1 Unless otherwise indicated, all internal quotation marks, citations, and alterations have

been omitted in this and later citations.

pressure. (Tr. 121.) After her application was denied, Felker sought review by

an administrative law judge (“ALJ”). (Tr. 10.)

Following a hearing, the ALJ agreed that Felker was not disabled.

(Tr. 11, 20.) To make this determination, the ALJ used the multi-step

evaluation process established by the Commissioner. See 20 C.F.R. §

404.1520(a).2 The ALJ found that although several of Felker’s impairments

qualified as severe, she retained the residual functional capacity (“RFC”) to

perform light work with restrictions:

[She can] lift/carry 10 pounds occasionally and five

pounds frequently; sit for six hours in an eight-hour

workday; stand and/or walk for two hours in an eight-

hour workday; no operation of foot controls; must be

permitted to stand and stretch after 60 minutes of

work while being off task for up to two minutes;

occasional climbing of ramps or stairs but no climbing

of ladders, ropes or scaffolds; occasional balancing,

stooping, kneeling, and crouching; no crawling;

frequent handling and fingering; and no exposure to

hazardous machinery or unprotected heights.

2 An individual claiming Social Security disability benefits must prove that she is

disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The Social

Security Regulations outline a five-step, sequential evaluation process used to

determine whether a claimant is disabled: (1) whether the claimant is currently

engaged in substantial gainful activity; (2) whether the claimant has a severe

impairment or combination of impairments; (3) whether the impairment meets or

equals the severity of the specified impairments in the Listing of Impairments; (4)

based on a residual functional capacity assessment, whether the claimant can

perform any of his or her past relevant work despite the impairment; and (5) whether

there are significant numbers of jobs in the national economy that the claimant can

perform given the claimant’s RFC, age, education, and work experience.” Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

(Tr. 16.) After considering the RFC and other evidence, including vocational

expert testimony, the ALJ ultimately concluded that Felker could perform her

past relevant work as an accounts receivable clerk. (Tr. 20.) Thus, Felker was

not disabled as that term is defined in this context. (Tr. 20.)

Felker further exhausted her administrative remedies, and this lawsuit

timely followed. (Doc. 1.)

II. Standard of Review

Review of the Commissioner’s (and, by extension, the ALJ’s) decision

denying benefits is limited to whether substantial evidence supports the

factual findings and whether the correct legal standards were applied. 42

U.S.C. § 405(g); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.

2002). Substantial evidence means “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,

139 S. Ct. 1148, 1154 (2019). It is more than a mere scintilla but less than a

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

Supreme Court recently explained, “whatever the meaning of ‘substantial’ in

other contexts, the threshold for such evidentiary sufficiency is not high.”

Biestek, 139 S. Ct. at 1154.

When determining whether the decision is supported by substantial

evidence, the court must view the record as a whole, considering evidence

favorable and unfavorable to the Commissioner. Foote v. Chater, 67 F.3d 1553,

1560 (11th Cir. 1995). The court may not reweigh the evidence or substitute its

judgment for that of the Commissioner. And even if the evidence preponderates

against the Commissioner’s decision, the reviewing court must affirm if the

decision is supported by substantial evidence. Bloodsworth v. Heckler, 703 F.2d

1233, 1239 (11th Cir. 1983). Finally, “[u]nder a substantial evidence standard

of review, [the claimant] must do more than point to evidence in the record that

supports [her] position; [she] must show the absence of substantial evidence

supporting the ALJ’s conclusion.” Sims v. Comm’r of Soc. Sec., 706 F. App’x

595, 604 (11th Cir. 2017).

III. Analysis

Felker argues that the ALJ failed to properly evaluate her mental health

limitations. (Doc. 20 at 3.) Upon closer inspection, her argument is essentially

twofold: first, the ALJ wrongly considered her mental limitations to be mild at

step two of the sequential evaluation process; and second, this error resulted

in an inaccurate RFC finding at step four. (Doc. 20 at 16.) Thus, the Court

considers whether substantial evidence supports the ALJ’s treatment of

Felker’s mental health limitations at these two steps.

A. Step Two

At step two, the ALJ must determine whether the claimant has a

medically determinable impairment that is “severe” or a combination of

impairments that is “severe.” 20 C.F.R. § 404.1520(c). And when the claimant

alleges a mental impairment, as here, “the ALJ makes determinations as to

the claimant’s abilities in four broad functional areas known as ‘Paragraph B’

criteria. The four areas consider the 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 herself.” Buckwalter v.

Acting Comm’r of Soc. Sec., 5 F.4th 1315, 1324-25 (11th Cir. 2021) (citing 20

C.F.R. § 404.1520a(c)(3)). The ALJ rates the claimant’s limitations in each area

as none, mild, moderate, marked, or extreme and must explain why. Id. at

1325. Ultimately, “to find the presence of a [severe] mental impairment, the

ALJ must find that a claimant has an ‘extreme’ limitation in one of the four

functional areas or a ‘marked’ limitation in two.” Id.

Finally, important for present purposes, an ALJ need not identify every

severe impairment to satisfy step two. Tuggerson-Brown v. Comm’r of Soc.

Sec., 572 F. App’x 949, 951 (11th Cir. 2014); Heatly v. Comm’r of Soc. Sec., 382

F. App’x 823, 825 (11th Cir. 2010) (“Nothing requires that the ALJ must

identify, at step two, all of the impairments that should be considered severe.”).

“[S]tep two of the sequential evaluation acts as a ‘screening’ or ‘filter’ to

eliminate groundless claims. Accordingly, we have recognized that step two

requires only a finding of ‘at least one’ severe impairment to continue on to the

later steps.” Tuggerson-Brown, 572 F. App'x at 951. In other words, so long as

the ALJ identifies any severe impairment at step two, there is no reversible

error because that is enough for the claimant “to continue on to the later steps.”

Id.; see also Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (“[T]he

finding of any severe impairment, whether or not it qualifies as a disability . .

. [,] is enough to satisfy the requirement of step two.”).

The ALJ found that Felker had several severe impairments. (Tr. 13.)

Thus, regardless of any mistake with the treatment of her mental limitations,

there is no reversible error with step two. See, e.g., Tippenhaver v. Kijakazi,

No. 20-CV-62555, 2022 WL 3344625, at *4 (S.D. Fla. Aug. 12, 2022) (upholding

ALJ’s decision that failed to address the claimant’s should impairment at step

two because “he found [the claimant] to have at least one severe impairment

and, consequently, proceeded to the next step of the sequential evaluation”).

B. Step Four

The real crux of Felker’s argument rests on the ALJ’s analysis at step

four of the sequential evaluation process. She asserts “the ALJ erred when he

failed to properly include mental limitations described by the consultative

psychological examiner, Dr. Visser.” (Doc. 20 at 6.) According to Felker, this

improper evaluation of a medical source then led to the ALJ disregarding

important evidence in his RFC assessment. The Court addresses the medical

source evaluation before turning to the RFC construction.

1. Whether the ALJ Improperly Assessed a Medical Opinion

Under the current standard of review, the Court considers whether

substantial evidence supports the ALJ’s decision to discount Dr. Visser’s

medical opinions. Dr. Visser found Felker struggles with anxiety and

depression. (Tr. 1049.) He further ranked her persistence as “capable but

affected by pain.” (Tr. 1050.) For some categories he provided a little more

nuance. For example, in her ability to remember, Dr. Visser noted “some

difficulty with immediate recall and delayed recall.” (Tr. 1050.) And as for

Felker’s capacity to sustain concentration, Dr. Visser said “she had difficulty

doing multi-step mathematical problems.” (Tr. 1050.) When asked to describe

Felker’s ability to handle work pressure and changes, Dr. Visser stated: “She

has had some self-confidence issues throughout her life.” (Tr. 1050.) And

finally, he found that “Ms. Felker is capable of managing her finances.” (Tr.

1050.)

When dealing with a medical opinion, the ALJ must consider its

persuasiveness using several factors: “(1) supportability; (2) consistency; (3)

relationship with the claimant, which includes (i) length of the treatment

relationship, (ii) frequency of examinations, (iii) purpose of the treatment

relationship, (iv) extent of the treatment relationship, and (v) examining

relationship; (4) specialization; and (5) other factors.” 20 C.F.R. § 404.1520c(a).

Supportability and consistency “are the most important factors” in

determining persuasiveness. Id. § 404.1520c(b)(2). And because of their

importance, the ALJ must explain “how [he] considered the supportability and

consistency factors for a medical source’s medical opinions.” Id. Put simply, the

ALJ must assess the factors of supportability and consistency for each medical

opinion. “Supportability” refers to how well a medical opinion is bolstered by

objective medical evidence and explanations provided by the medical source

giving the opinion. “Consistency” is a measure of how the medical opinion

aligns with evidence from other sources (medical and nonmedical). Id. §

404.1520c(c).

Here, the ALJ explained how he evaluated these factors:

The opinions of the psychological consultative

examiner are not persuasive (16F). The examiner

opined that the claimant had some difficulty with

immediate and delayed recall and doing multistep

mathematical problems. First, there are no function-

by-function limitations, as these appear to be mental

status observations, so these opinions are not helpful

in creating mental limitations. Further, this one-time

exam is inconsistent with normal cognition from

multiple providers including the psychiatric nurse

practitioner, family nurse practitioner, orthopedic

specialist, and physical consultative examiner, all of

which were generally normal. Finally, these opinions

are not consistent with the claimant’s activities of

daily living that include work activity, like driving,

shopping, and socializing with friends that require

sustained memory and concentration as mentioned

throughout the record (14F/1; 15F/3; 18F/9; 20F/11;

25F/2)

(Tr. 19-20.) The ALJ’s comments about Dr. Visser’s recall and mathematical

problem observations relate to supportability. Further, they are bolstered by

substantial evidence because they identify a shortcoming in Dr. Visser’s

analysis. A medical opinion is “a statement from a medical source about what

[the claimant] can still do despite [her] impairment(s) and whether [she has]

one or more impairment-related limitations or restrictions[.]” 20 C.F.R. §

404.1513(a)(2).

When viewed in this light, Dr. Visser’s observation about Felker’s recall

difficulties fails to express what she is still capable of despite her limitations.

Further, Dr. Visser’s comment may be read as a description of Felker’s mental

state during the assessment rather than a projection of her current capacity

for work, an issue noted by the ALJ. (Tr. 19 (“these appear to be mental status

observations”).) Dr. Visser’s comment about Felker’s ability to sustain

concentration, as written in the past tense, is certainly subject to this criticism.

(Tr. 1050 (“She had difficulty doing multi-step mathematical problems.”)

(emphasis added).) Thus, Dr. Visser did not adequately describe whether and

how Felker can sustain concentration despite her impairments. As a result, the

ALJ was right to label these findings as “not helpful in creating mental

limitations.” (Tr. 19.)

Substantial evidence favors the ALJ’s consistency finding too. He

correctly noted that Dr. Visser’s observations are contradicted by the otherwise

“general normal” findings from other medical professionals including the

psychiatric nurse practitioner (Tr. 19, 1183-1209), family nurse practitioner

(Tr. 19, 1210-1223), orthopedic specialist (Tr. 19, 1162-1182), and physical

consultative examiner (Tr. 19, 87-98, 100-119). For example, just two months

after beginning mental health treatment, Felker reported feeling “significantly

better,” that counseling was “very helpful” and that she was “functioning better

overall.” (Tr. 18, 1192.) All this despite working two jobs. (Tr. 1192.) The ALJ

also noted that Felker’s activities of daily living, including working, driving,

shopping, and socializing with friends, do not support Dr. Visser’s

observations. (Tr. 19-20, 1029, 1037, 1070, 1091, 1163.) Thus, the ALJ properly

addressed the supportability requirement.

Because substantial evidence supports the ALJ’s treatment of Dr.

Visser’s medical opinions, there was no error at this stage of the assessment.

2. Whether Substantial Evidence Supports the RFC

In step four of the analytical process, the ALJ also assesses a claimant’s

RFC and ability to do past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv).

The RFC, defined as the most the claimant can still do despite her limitations,

is based on an evaluation of all the relevant evidence in the record. See id. §§

404.1520(e), 404.1545(a)(1) and (a)(3); Social Security Ruling (“SSR”) 96-8p,

1996 WL 374184 (July 2, 1996). Error arises only when the ALJ rejects medical

evidence from the RFC “without (at least) providing a good reason for doing

so.” Sneed v. Comm’r of Soc. Sec., No. 6:13-CV-1453-ORL-TBS, 2015 WL

1268257, at *7 (M.D. Fla. Mar. 19, 2015); see also Marbury v. Sullivan, 957

F.2d 837, 840 (11th Cir. 1992) (Johnson, J., concurring) (“Although the ALJ

could have legitimately discounted the diagnoses, he could have done so only

if he had clearly articulated his reasons for such action[.]”); Whisby v. Colvin,

No. 5:13-CV-360 MTT, 2015 WL 150188, at *3-5 (M.D. Ga. Jan. 12, 2015)

(finding error when the ALJ made an arbitrary determination). And finally,

the task of determining a claimant’s RFC and ability to work rests with the

ALJ, not a medical source. See Moore v. Soc. Sec. Admin., Comm’r, 649 F. App’x

941, 945 (11th Cir. 2016).

Felker essentially argues that substantial evidence does not support the

RFC because the ALJ failed to address the mild mental limitations he found

in step two. (Doc. 20 at 9-13.) According to Felker, he had to do so while

evaluating “the claimant’s entire medical condition,” including non-severe

limitations. Burgin v. Comm'r of Soc. Sec., 420 F. App’x 901, 902 (11th Cir.

2011). Contrary to Felker’s claim, the ALJ did not err in this respect. As noted

above, he evaluated the mild mental limitations found by Dr. Visser and

compared them to the record as a whole, including other medical opinions and

Felker’s own reported activities of daily living. (Tr. 18-20.) He properly rejected

Dr. Visser’s report as unpersuasive. (Tr. 19.) Additionally, during the RFC

assessment, the ALJ thoroughly discussed Felker’s own testimony related to

her mental impairments and found her claims unsupported by the medical

evidence. (Tr. 18.) Ultimately, the ALJ concluded that “[w]hile she has some

mental symptoms on occasion, overall, her mental status exams and activities

of daily living are generally normal and do not more than minimally affect her

ability to work.” (Tr. 19.) This is all he needed to do. See, e.g. Mielbeck v.

Comm'r of Soc. Sec., No. 2:20-CV-987-JLB-MRM, 2022 WL 8206071, at *15

(M.D. Fla. Aug. 11, 2022). The ALJ did not have to include mental limitations

in the RFC itself because he found only mild mental impairments that did not

affect Felker’s ability to work. See Williams v. Soc. Sec. Admin., 661 F. App’x

977, 979-80 (11th Cir. 2016); Mielbeck, 2022 WL 8206071, at *15 (“[P]ersuasive

precedent demonstrates that ALJs are not obligated to include mental

limitations in the RFC even when they find ‘mild’ limitations [at step 2.]”).

Thus, the ALJ did not err in building the RFC.

That leaves one final issue. Felker argues the ALJ’s errors were not

harmless. (Doc. 20 at 15-16.) But harmlessness only comes to bear if there were

errors. Felker has failed to demonstrate any, and thus this argument is moot.

IV. Conclusion

Considering the record as a whole, substantial evidence supports the

ALJ’s findings. Accordingly, the Court AFFIRMS the Commissioner’s decision

and directs the Clerk to enter judgment for the Commissioner and against

Darlene Louise Felker and close the file.

ENTERED in Fort Myers, Florida this April 18 2023.

fhe LS wih

Ke C. Dudek □

United States Magistrate Judge

Copies: All Parties of Record

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