PATTI v. BERRYHILL

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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

SARA ASHLEY PATTI,

Plaintiff,

vs. Case No.: 3:18cv616/EMT

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

Defendant.

______________________________/

MEMORANDUM DECISION AND ORDER

This case has been referred to the undersigned magistrate judge for disposition

pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the

parties’ consent to magistrate judge jurisdiction (see ECF Nos. 8, 9). It is now before

the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”), for

review of a final decision of the Commissioner of the Social Security Administration

(“Commissioner”) denying Plaintiff’s application for disability insurance benefits

(“DIB”) under Title II of the Act, 42 U.S.C. §§ 401–34.

Upon review of the record before this court, it is the opinion of the undersigned

that the findings of fact and determinations of the Commissioner are supported by

substantial evidence; thus, the decision of the Commissioner should be affirmed.

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I. PROCEDURAL HISTORY

On January 8, 2015, Plaintiff filed an application for DIB, and in the application

she alleged disability beginning April 6, 2013 (tr. 10).1 Her application was denied

initially and on reconsideration, and thereafter she requested a hearing before an

administrative law judge (“ALJ”). A hearing was held on January 12, 2017, and on

June 1, 2017, the ALJ issued a decision in which she found Plaintiff “not disabled,”

as defined under the Act, at any time through the date of her decision (tr. 10–19). The

Appeals Council subsequently denied Plaintiff’s request for review. Thus, the

decision of the ALJ stands as the final decision of the Commissioner, subject to

review in this court. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262

(11th Cir. 2007). This appeal followed.

II. FINDINGS OF THE ALJ

In denying Plaintiff’s claims, the ALJ made the following relevant findings (see

tr. 10–19):

1 All references to “tr.” refer to the transcript of Social Security Administration record filed

on June 15, 2018 (ECF No. 11). Moreover, the page numbers refer to those found on the lower

right-hand corner of each page of the transcript, as opposed to those assigned by the court’s

electronic docketing system or any other page numbers that may appear.

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(1) Plaintiff last met the insured status requirements of the Act on June 30,

20132;

(2) Plaintiff did not engage in substantial gainful activity during the relevant

period;

(3) Plaintiff had the following severe impairments: disorders of the

abdominal/gastrointestinal system including malrotated bowel and delayed gastric

emptying, gastroesophageal reflux disease, and degenerative disc disease of the

cervical spine;

(4) Plaintiff had no impairment or combination of impairments that met or

medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1;

(5) Plaintiff had the residual functional capacity (“RFC”) to perform the full

range of light work;

(6) Plaintiff was able to perform her past relevant work as a cashier-retail,

cashier-I, assistant manager retail, and catering helper, as this work did not require the

performance of work-related activities precluded by Plaintiff’s RFC;

(7) Plaintiff was not under a disability, as defined in the Act, at any time

from April 6, 2013, through June 30, 2013, the relevant period.

III. STANDARD OF REVIEW

Review of the Commissioner’s final decision is limited to determining whether

the decision is supported by substantial evidence from the record and was a result of

the application of proper legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218

2 Thus, the time frame relevant to Plaintiff’s claim for DIB is less than three months, from

April 6, 2013 (date of alleged onset), through June 30, 2013 (date last insured).

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(11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only

when convinced that it is not supported by substantial evidence or that proper legal

standards were not applied.”); see also Lewis v. Callahan, 125 F.3d 1436, 1439 (11th

Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A determination

that is supported by substantial evidence may be meaningless . . . if it is coupled with

or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th

Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd.,

921 F.2d 1210, 1214 (11th Cir. 1991). As long as proper legal standards were applied,

the Commissioner’s decision will not be disturbed if in light of the record as a whole

the decision appears to be supported by substantial evidence. 42 U.S.C. § 405(g);

Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); Lewis, 125 F.3d at 1439; Foote

v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a

scintilla, but not a preponderance; it is “such relevant evidence as a reasonable person

would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938));

Lewis, 125 F.3d at 1439. The court may not decide the facts anew, reweigh the

evidence, or substitute its judgment for that of the Commissioner. Martin v. Sullivan,

894 F.2d 1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence

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preponderates against the Commissioner’s decision, the decision must be affirmed if

supported by substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.

1986).

The Act defines a disability as an “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). To qualify

as a disability the physical or mental impairment must be so severe that the claimant

is not only unable to do her previous work, “but cannot, considering [her] age,

education, and work experience, engage in any other kind of substantial gainful work

which exists in the national economy.” Id. § 423(d)(2)(A). Pursuant to 20 C.F.R.

§ 404.1520(a)–(g), the Commissioner analyzes a disability claim in five steps:

1. If the claimant is performing substantial gainful activity, she is not

disabled.

2. If the claimant is not performing substantial gainful activity, her

impairments must be severe before she can be found disabled.

3. If the claimant is not performing substantial gainful activity and she has

severe impairments that have lasted or are expected to last for a continuous period of

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at least twelve months, and if her impairments meet or medically equal the criteria of

any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is

presumed disabled without further inquiry.

4. If the claimant’s impairments do not prevent her from doing her past

relevant work, she is not disabled.

5. Even if the claimant’s impairments prevent her from performing her past

relevant work, if other work exists in significant numbers in the national economy that

accommodates her RFC and vocational factors, she is not disabled.

The claimant bears the burden of establishing a severe impairment that keeps

her from performing her past work. 20 C.F.R. § 404.1512. If the claimant establishes

such an impairment, the burden shifts to the Commissioner at step five to show the

existence of other jobs in the national economy which, given the claimant’s

impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052

(11th Cir. 1986). If the Commissioner carries this burden, the claimant must then

prove she cannot perform the work suggested by the Commissioner. Hale v. Bowen,

831 F.2d 1007, 1011 (11th Cir. 1987).

IV. PLAINTIFF’S PERSONAL, EMPLOYMENT, AND MEDICAL HISTORY

A. Relevant Personal and Employment History

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Plaintiff was thirty years of age on January 12, 2017, the date of her hearing

before the ALJ (tr. 33). She testified she had completed the twelfth grade and some

college (id.). She stated that she was living with her husband of ten years and her

eight-year-old son (tr. 32–33). She noted she had a driver’s license but was unable to

drive long distances due to neck pain (tr. 33–34).

Plaintiff last worked in 2008 as an assistant manager at a pharmacy (tr. 35). She

worked full-time for around ten hours per day, and her duties included filling

medications, running the cash register, and helping customers (tr. 34–35). She stated

she was “let go” from this position because she missed work due to issues with her

neck and because she had been placed on bed rest for a high risk pregnancy (tr.

35–36). Prior to this employment, Plaintiff worked full-time as a food server; she also

assisted with catering on nights and weekends, which required her to load prepared

food into a van, drive it to catering locations, unload and set up the food, cater to

guests during the event, and then clean and reload the van (tr. 36). She also

previously worked as a cashier and in customer service at a grocery store and was

promoted to assistant front-end manager (tr. 37–38). As manager, she was responsible

for scheduling the cashiers’ shifts, accounting for the cashiers’ “tills,” and accounting

for all money in the office.

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As to her depression and anxiety, Plaintiff recalled that she first sought

treatment in or about 2012 or 2013,3 after her mother was diagnosed with cancer, at

which time she began taking anxiety medication and attending weekly therapy

sessions (tr. 51). She testified that she still sees a psychiatrist once every three months

(id.). She noted that her prescription for Zoloft had been increased four times because

it had not kept her anxiety under control (tr. 52). At the time of the hearing, Plaintiff

was taking 200mg of Zoloft per day—the maximum dosage—and she indicated that

if this proved to be ineffective she might have to try a different medication (id.). She

testified she previously had panic attacks, but no longer has them and instead has

episodes which cause her to be “anxious,” “nervous,” and unable to concentrate or

focus (id.).

B. Relevant Medical History4

Evidence that Pre-dates the Relevant Period

Plaintiff sought emergency care for “flank pain” on February 5, 2013, at which

time she also reported a history of acute anxiety (tr. 368). The provider found her to

be “mildly anxious” but alert and oriented to person, place, and time (tr. 369).

3 As will be discussed more fully infra, the medical records show that Plaintiff first presented

for mental heath counseling in November of 2013, after the relevant period.

4 Because the issues in this appeal relate to Plaintiff’s mental impairments only, the court’s

summary of the medical evidence will primarily focus on the same.

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Plaintiff was assessed with abdominal pain, mild reflux, and mild diverticulosis (but

no psychological impairment), and she was discharged (tr. 371, 373). At a follow-up

appointment on February 12, 2013, with David Campbell, M.D., Plaintiff inquired

about a counselor for her anxiety but indicated she did not want to take medication to

treat it (tr. 359). Dr. Campbell noted Plaintiff’s report of anxiety in the “Review of

Systems” section of his treatment record, but he did not assess Plaintiff with an

anxiety disorder or any other mental impairment (see tr. 360–62).

Evidence from the Relevant Period (April 6, 2013, to June 30, 2013)

Plaintiff’s claims file contains no records from the relevant period.

Evidence that Post-dates the Relevant Period

On October 4, 2013, Plaintiff reported to the emergency room for abdominal

pain and was noted to be “negative” for depression, anxiety, suicidal ideation,

homicidal ideation, and hallucinations (tr. 380). She was also oriented as to person,

place, and time, and she displayed normal behavior, affect, and mood (tr. 381).

Plaintiff first reported to Bridgeway Center, Inc., on November 5, 2013, for

mental health therapy/counseling and was seen by intern Jennifer Gautney, MSHS (tr.

353). She complained of “catastrophic thinking” as well as anxiety that purportedly

affected her relationships with others (id.). Plaintiff returned on November 27, 2013,

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and Ms. Gautney noted that she was euthymic and cooperative and that she denied

homicidal or suicidal ideation (tr. 351). Plaintiff returned again on December 2, 2013,

and was evaluated by Kay Whitten, ARNP (tr. 423–24). Plaintiff reported anxiety

since age eight but stated it had increased over the past year and a half after she found

out her stepmother had been diagnosed with stage-four cancer (tr. 423). ARNP

Whitten noted that Plaintiff’s mood was anxious but that she was alert, oriented, and

appropriately dressed, and she had satisfactory hygiene and judgment (id.). Plaintiff

was assessed with generalized anxiety disorder, prescribed 50 mg of Zoloft daily, and

advised to follow up in two months and to continue her counseling sessions (tr.

423–24).

Plaintiff presented for therapy with Intern Gautney on January 2, 2014, and

reported feeling “much less anxious” since increasing her medication dosage (tr. 350).

On January 24, 2014, Plaintiff reported “doing well” and working on using the

techniques learned in therapy, but she did report compulsive behavior (tr. 349). On

February 26, 2014, Plaintiff reported having a “tough week” but noted she was able

to respond in a “normal” way (tr. 348). She also reported having compulsive behavior

but expressed a desire to work on it during therapy (id.).

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Plaintiff returned to ARNP Whitten for a follow-up appointment on April 21,

2014 (tr. 421). Plaintiff conveyed that her mother had passed away but that she was

grieving “fairly well” and the Zoloft was helping “quite a bit” (id.). In August of

2014, Plaintiff reported some “breakthrough anxiety,” and her Zoloft prescription was

increased to 100mg daily (tr. 419). On November 3, 2014, Plaintiff reported that the

Zoloft had a “pretty good result” and that she had “no depression or anxiety” (tr. 418).

Plaintiff stated she was volunteering with the American Cancer Society and becoming

involved with volunteer work in the community (id.). Plaintiff next followed up more

than three months later, on February 6, 2015, and reported she was doing “very well,”

was “feeling great,” was “very pleased” with the effects of her Zoloft, and was feeling

like herself again (tr. 427). She reported no anxiety or depression and advised that she

spent her time home-schooling her son and being with family (id.). On February 20,

2015, Plaintiff advised Ms. Gautney that she was “managing well” and taking Zoloft

“with [a] pretty good result,” but she reported symptoms of excessive anxiety and

worry, difficulty controlling the worry, fatigue, restlessness, and irritability (tr. 449).

She conveyed that she wanted to address her grief, improve her mood, and obtain

relief from anxiety and depression (id.). Thereafter, Plaintiff attended four more

therapy sessions (every few weeks or so) and made reports similar to those made on

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February 20 (see tr. 451–56). On May 12, 2015, however, Plaintiff stated she wished

to “take a break” from therapy to focus on her medical conditions and because she was

“in a better place to manage her anxiety” (tr. 456).

Plaintiff was seen again by ARNP Whitten on August 3, 2015, for a follow-up

appointment (tr. 457). Plaintiff reported “doing well” but stated she wished to

increase her Zoloft dosage because she was experiencing “breakthrough anxiety” (id.).

On November 6, 2015, Plaintiff reported that the increased Zoloft was “working

great” and she felt “less depressed” and “more energetic” (tr. 461).

Plaintiff was seen four more times between February 8, 2016, and October 3,

2016 (tr. 462, 463, 464, 596). She reported good results with her dosage of Zoloft and

expressed no concerns related to her depression or anxiety (id.). Finally, as of the date

of Plaintiff’s hearing before the ALJ (January 12, 2017), she was taking 200mg of

Zoloft daily and seeing a provider every three months, but she was no longer attending

therapy (tr. 28, 341).

C. Other Information Within Plaintiff’s Claim File

Plaintiff completed a Function Report on January 26, 2015, and indicated that

she suffers from depression and social anxiety, in addition to her various physical

ailments (tr. 255). She claimed that her anxiety affects her sleep, but she reported no

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problems with personal care, remembering to take her medication or take care of her

personal needs, handling her finances, or getting along with others (tr. 256–58, 260).

She also indicated that she enjoys watching TV, reading, watching her son play, and

hanging out with others (tr. 259). She claimed that she can pay attention for an hour,

does “OK” with written instructions, does “pretty well” with spoken instructions, and

gets along “pretty well” with authority figures, but she does not handle stress or

changes in routine well (tr. 260–61). She also claimed that she is “OCD” and is

“terrified” of death and dying (tr. 261). She noted that she was prescribed Zoloft, but

it made her “spacey/jittery” (tr. 262).

Plaintiff also completed a Supplemental Anxiety Questionnaire on January 26,

2015 (tr. 266). She indicated that she began having anxiety attacks at the age of eight,

that her last anxiety attack was on December 20, 2014, that she has attacks “almost

everyday,” and that she had suffered sixty attacks in the last six months (tr. 266–67).

Plaintiff claimed that the attacks are caused by every day stress, are worsened by

everything, are relieved by nothing, and last about twenty minutes during which she

gets dizzy, cries uncontrollably, screams, fights with family, and experiences

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increased heart rate and blood pressure (tr. 267). She claimed that when she has an

attack, she can only “sit in a dark room and ride it out” (tr. 268).5

On February 18, 2015, a non-examining agency psychologist, George Grubbs,

Psy.D., assessed Plaintiff’s mental limitations (tr. 152). He opined that Plaintiff’s

anxiety-related disorder caused no functional limitations (in activities of daily living;

in maintaining social functioning; and in maintaining concentration, persistence or

pace) or repeated episodes of decompensation, and that the impairment was non-

severe (id.). On April 29, 2015, Pauline Hightower, Psy.D, another agency consultant,

assessed Plaintiff’s mental limitations and made findings that are identical to those of

Dr. Grubbs (tr. 172).

Vocational Expert (“VE”) Gayle Gerald testified at Plaintiff’s hearing (tr.

54–59). She classified Plaintiff’s past work as an assistant manager as light, unskilled

work; as a head cashier as sedentary, skilled work; and as a cashier-retail, waitress,

5 Plaintiff’s husband, Scott Patti, also completed the same two forms in late January 2015 (tr.

280, 291). Mr. Patti reported that Plaintiff had rather severe deficits with concentration, paying

attention, handling stress, and medication side effects (see tr. 285–87). He also reported that

Plaintiff had frequent and long-lasting panic attacks, which (in pertinent part) rendered her unable

to function (see tr. 291–93). The ALJ discounted these reports as inconsistent with Plaintiff’s own

statements and the medical evidence of record (see tr. 17), such as the treatment records and notes

from Bridgeway that recorded Plaintiff’s progress and her own statements regarding the efficacy of

her medications. Plaintiff raises no issue in this appeal regarding Mr. Patti’s statements (or her own,

for that matter), so they are not discussed further herein. Nevertheless, the court notes that the ALJ’s

reasons for discounting the more extreme statements are well supported by the record.

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catering helper, and customer service clerk as light, semi-skilled work (tr. 56–57).

Because all of Plaintiff’s past jobs were performed at the light (or sedentary) level of

exertion, and Plaintiff’s RFC is for the full range of light work, Plaintiff could perform

her past relevant work and thus was not disabled during the relevant period (see tr.

18).

V. DISCUSSION

Plaintiff asserts one ground for relief, namely, that the ALJ erred at step two of

the sequential evaluation in failing to find her anxiety disorder to be a severe

impairment (see ECF No. 16 at 2, 4).6

At step two of the sequential evaluation process, a claimant must prove that she

is suffering from a severe impairment or combination of impairments, that have lasted

(or must be expected to last) for a continuous period of at least twelve months, and

which significantly limit her physical or mental ability to perform “basic work

activities.” See 20 C.F.R. §§ 404.1509, 404.1520(c) 404.1521(a). Basic work

activities include mental functions such as understanding, carrying out, and

remembering simple instructions; using judgment; responding appropriately to

6 Plaintiff also contends that the ALJ’s “opinion is not based on substantial evidence” (see

ECF No. 16 at 2, 4), but all of her arguments relate to the ALJ’s findings at step two (with respect

to her anxiety). The court therefore construes the two claims as raising the same issue and will

discuss them as such.

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supervisors, co-workers, and usual work situations; and dealing with changes in a

routine work setting, as well as physical functions not at issue here. 20 C.F.R.

§ 404.1521(b). An impairment can be considered non-severe “only if it is a slight

abnormality which has such a minimal effect on the individual that it would not be

expected to interfere with the individual’s ability to work, irrespective of age,

education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.

1984); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (“The severity regulation

increases the efficiency and reliability of the evaluation process by identifying at an

early stage those claimants whose medical impairments are so slight that it is unlikely

they would be found to be disabled even if their age, education and experience were

taken into account”). Although the claimant carries the burden at step two, the burden

is mild. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (“Step two is a

threshold inquiry. It allows only claims based on the most trivial impairments to be

rejected.”). A claimant need only show that “her impairment is not so slight and its

effect is not so minimal.” Id.

In evaluating the severity of mental impairments, an ALJ must follow a “special

technique,” which requires that the ALJ first evaluate a claimant’s “pertinent

symptoms, signs, and laboratory findings to determine whether [the claimant has] a

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medically determinable mental impairment(s).” 20 C.F.R. § 404.1520a. If so, the

ALJ must then rate the degree of functional limitation resulting from the

impairment(s) in four broad functional areas: (1) understanding, remembering, or

applying information; (2) interacting with others; (3) concentrating, persisting, or

maintaining pace; and (4) adapting or managing oneself. Id. § 404.1520a(c)(3). The

ALJ must rate the degree of limitation in each of these areas on a five-point scale,

using the following terms: none, mild, moderate, marked, or extreme. If a claimant

has no more than mild functional limitations, the ALJ “will generally conclude that

[the claimant’s] impairment(s) is not severe . . . .” Id. § 404.1520a(d)(1). Here, the

ALJ found that Plaintiff’s generalized anxiety disorder was a medically determinable

mental impairment (tr. 13). Applying the special technique, the ALJ next found that

Plaintiff had no limitations in interacting with others and, “at most,” mild limitations

in the other three functional areas and thus no severe mental impairment (tr. 14).

In support of her findings, the ALJ pointed to Plaintiff’s lack of treatment for,

or complaints of, mental impairments prior to June 30, 2013, the date she was last

insured. This factor is well supported by the record, as the undersigned has found no

mental diagnosis prior to the date last insured or any mental health treatment records

from that time frame (and Plaintiff has pointed the court to none). Instead, the record

reveals only occasional complaints of anxiety made by Plaintiff when she presented

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for treatment for physical problems in February of 2013, as the ALJ noted (tr. 13).7

Because these complaints were made before Plaintiff’s alleged onset date of April 6,

2013, they are not necessarily probative of Plaintiff’s condition during the relevant

time frame. More important, even if the complaints had been made during the

relevant period, they clearly fall far short of establishing the existence of severe

impairment. See, e.g., Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per

curiam) (a claimant bears the burden of proving her disability, so she is responsible

for producing evidence to support her claim); Hutchinson v. Astrue, 408 F. App’x

324, 327 (11th Cir. 2011) (no error in finding mental impairment non-severe where:

(1) “[t]he bulk of the evidence [the claimant] presented about her depression and

anxiety was subjective”; (2) “[t]he scant objective evidence, even if viewed in [the

claimant’s] favor, merely established at most that the depression and anxiety existed”;

and (3) the claimant “had no objective history of treatment for mental impairments

and never sought counseling or hospitalization for her depression or anxiety”);

Watson v. Heckler, 738 F.2d 1169, 1173 (11th Cir. 1984) (in addition to objective

medical evidence, it is proper for ALJ to consider use of painkillers, failure to seek

7 Specifically, the ALJ cited a February 2013 emergency department record where Plaintiff

presented for flank pain and was noted to be alert and oriented to person, place, and time (tr. 368),

and a follow-up treatment record from one week later where Plaintiff inquired about counseling but

declined medication, and where the physician’s notes listed no change in sleep pattern, no

depression, no concentration difficulties, and a normal status examination (tr. 13, 359–60).

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treatment, daily activities, conflicting statements, and demeanor at the hearing);

Williams v. Sullivan, 960 F.2d 86, 89 (8th Cir. 1992) (absence of treatment indicates

that a mental impairment is non-severe). Thus, because Plaintiff has “not objectively

show[n] when or how [her anxiety] affected her ability to perform basic work skills,”

she has failed to meet her burden at step two. Hutchinson, 408 F. App’x at 327; see

also McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986) (“[T]he ‘severity’ of

a . . . disability must be 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.”).

Plaintiff attempts to support her argument by pointing to treatment records from

Bridgeway (see ECF No. 16 at 3, 6), but the court is unpersuaded. Plaintiff first

presented to Bridgeway in November of 2013, more than four months after her date

last insured (see tr. 353). As such, all of the Bridgeway records are marginally

relevant, at best. Even so, the ALJ did not overlook these records in making her

findings at step two. For example, the ALJ noted that during Plaintiff’s weekly

therapy sessions at Bridgeway she reported good results with medication, and her

mood was consistently noted to be euthymic and cooperative (tr. 13, citing tr.

417–18). See Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004) (“If an

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impairment can be controlled by treatment or medication, it cannot be considered

disabling.”) (citations and quotation omitted); see also Dawkins v. Bowen, 848 F.2d

1211, 1213 (11th Cir. 1988) (citation omitted). Moreover, the Bridgeway records

show that Plaintiff’s treatment was conservative in nature, consisting of therapy

sessions and medication management only. See Wolfe v. Chater, 86 F.3d 1072, 1078

(11th Cir. 1996) (ALJ may consider that treatment is “entirely conservative in nature”

in discrediting a claimant’s testimony); Miller v. Astrue, Case No. 8:07cv2074, 2009

WL 3516, at *5 (M.D. Fla. January 6, 2009) (same); Woodum v. Astrue, Case No.

8:07cv404, 2008 WL 759310, at *3 (M.D. Fla. Mar. 20, 2008) (ALJ properly

considered that “limited and conservative treatment . . . is inconsistent with the

medical response that would be expected if the physician(s) found the symptoms and

limitations to be as severe as reported by the claimant”).

In particular, Plaintiff appears to rely upon an entry in the Bridgeway records

which states, “Sara is seen for medication management and monitoring of symptoms

that include Anxiety as evidenced by excessive anxiety and worry about a number of

events, difficulty controlling the worry, restlessness, fatigue, and irritability that

causes significant distress” (ECF No. 16 at 6). But Plaintiff’s reliance on this entry

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is misplaced.8 First, assuming Plaintiff is referring to a Progress Note dated February

20, 2015, which contains the quoted entry, supra, this note reflects Plaintiff’s

condition nearly two years beyond her date last insured. Second, the remainder of the

same Progress Note indicates that Plaintiff was “managing well” and continuing to

take her Zoloft with a “pretty good result,” and it notes no symptoms of depression

or anxiety (or panic attacks, at all, much less panic attacks occurring at the rate and

severity alleged by Plaintiff and her husband) (tr. 449). The Note also includes

Plaintiff’s report that she had been volunteering with the American Cancer Society

and “becoming involved in” other community-based volunteer work (tr. 449).

Further, it describes Plaintiff as alert, oriented, smiling, cheerful, pleasant, and

cooperative, with a euthymic mood, bright affect, and satisfactory attention, focus, and

concentration (tr. 449). Thus, when read in context, the 2015 entry actually supports

the ALJ’s overall findings.

Continuing, in finding no severe mental impairment at step two, the ALJ

considered that Plaintiff never reported any difficulty with self-care and, by her own

account, she was able to prepare some meals, assist with household chores, travel

independently, and care for her son (tr. 13, 355–60). The ALJ also pointed to

8 Plaintiff failed to provide a citation to the transcript indicating where this entry appears in

the record; as such, per the terms of this court’s Scheduling Order, her contention based on this entry

need not be considered (see ECF No. 12). Nevertheless, the court will address it as best it can.

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Plaintiff’s report that she had no difficulty with memory, completing tasks,

understanding, or following instruction (id.). Additionally, the ALJ noted that

Plaintiff had never been fired or laid off from a job due to an inability to get along

with other people, and in fact, had a history of skilled managerial-type positions (tr.

13, 331). Last, the ALJ referenced the opinions of the two non-examining state

agency consultants who, after reviewing Plaintiff’s medical history, found no severe

mental impairment (tr. 14).9

VI. CONCLUSION

For the foregoing reasons, the court concludes that the ALJ committed no error

at step two in finding that Plaintiff had no severe mental impairment. Moreover, the

Commissioner’s ultimate decision is supported by substantial evidence and should not

be disturbed. 42 U.S.C. § 405(g); Lewis, 125 F. 3d at 1439; Foote, 67 F.3d at1560.

9 Plaintiff states, “Any weight given to [the] State agency psychological consultants is not

based on substantial evidence and erroneous.” (ECF No. 16 at 6). But Plaintiff does not develop this

argument or explain how the ALJ erred (see id. at 6–7). After careful review, the court finds no

error. An ALJ is required to consider the opinions of non-examining consultants because they “are

highly qualified physicians . . . who are also experts in Social Security disability evaluation.” See

20 C.F.R. § 404.1527(e). Moreover, an ALJ may rely on opinions of non-examining sources when

they do not conflict with those of examining sources. Edwards v. Sullivan, 937 F.2d 580, 584–85

(11th Cir. 1991). Here, the ALJ considered and then assigned partial weight to the opinions of the

state agency consultants, but the ALJ did so in a manner that favored Plaintiff (the consultants found

no mental limitations whatsoever, but the ALJ found mild limitations in three areas). Put simply,

the ALJ committed no error in partially relying upon the opinions of agency experts.

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Finally, Plaintiff has failed to show that the ALJ applied improper legal standards,

erred in making her findings, or that any other ground for reversal exists.

Accordingly, it is hereby ORDERED that:

1. The decision of the Commissioner is AFFIRMED, and this action is

DISMISSED.

2. JUDGMENT is entered, pursuant to sentence four of 42 U.S.C. § 405(g),

AFFIRMING the decision of the Commissioner.

3. The Clerk is directed to close the file.

At Pensacola, Florida this 14th day of June 2019.

/s/ Elizabeth M. Timothy

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE