Ritorto v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA .

TAMPA DIVISION □

PRISCILLA RITORTO,

Plaintiff,

v. CASE NO. 8:19-cv-2668-T-TGW .

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant. □

ORDER

The plaintiff seeks judicial review of the denial of her claim for

Social Security disability benefits! Because the decision of the

Commissioner of Social Security is supported by substantial evidence, and -

the plaintiff does not identify reversible error, the decision will be affirmed.

I.

The plaintiff, who was fifty-eight years old on the date that she

was last insured for Social Security benefits, and who has a high school

diploma, has worked as a receptionist (Tr. 34, 149, 297). The plaintiff

alleges that she became disabled on May 9, 2015, due to cervical stenosis,

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

Judge (Doc. 16).

migraines, torn thumb, diabetes, high blood pressure, depression, anxiety,

thyroid problem and a torn shoulder (Tr. 149).? The plaintiff's claim was

denied initially and upon reconsideration.

The plaintiff, at her request, then received a de novo hearing

before an administrative law judge. The law judge found that, through the

date last insured of March 31, 2017, the plaintiff had severe impairments of

“cervical spine disorders, carpal tunnel syndrome (CTS), left hand.

osteoarthritis (OA), and left shoulder joint disorders with partial thickness

tear, and migraines” (Tr. 25). The law judge found that the plaintiff also had

several other medically determinable impairments, including anxiety

disorders, but that they were nonsevere (Tr. 25-26).

The law judge determined that in light of the severe

impairments the plaintiff, through the last date insured, had the following

residual functional capacity (Tr. 27):

[She could] perform sedentary work as defined in

20 CFR 404.1567(a), except the claimant is unable

to climb ladders/ropes/scaffolds, to be exposed to

vibration, to crawl, or to reach overhead with her

left upper extremity; and is occasionally able to

push/pull with her bilateral upper extremity, reach

overhead with her right upper extremity, be

exposed to extreme cold, humidity, or workplace .

*This is an amended onset date. The original alleged onset date was April 1, 2014

(Tr. 150).

,

hazards (such as unprotected heights and moving

machinery), climb ramps/stairs, stoop, balance

kneel, or crouch. The undersigned also determines

the claimant should have no exposure to more than

a moderate noise intensity level as moderate is

defined in the SCO; that the claimant must be

indoors to avoid direct exposure to sunlight; and

that the claimant is frequently able to reach in all

other directions bilaterally, and handle and finger

with her left hand.

The law judge concluded, based on the testimony of a

vocational expert, that the plaintiff's residual functional capacity did not

preclude her from performing her past relevant work as a receptionist (Tr. -

34). Consequently, the law judge found that the plaintiff was not disabled

from her alleged onset date of May 9, 2015, through March 31, 2017, her

date last insured (id.). That determination became the final decision of the

Commissioner of Social Security.

Il.

In order to be entitled to Social Security disability benefits, a

claimant must be unable “to engage in any substantial gainful activity by -

reason of any medically determinable physical or mental impairment 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). A “physical or mental

impairment,” under the terms of the Social Security Act, is one “that results

from anatomical, physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory diagnostic |

techniques.” 42 U.S.C. 423(d)(3). In this case, the plaintiff must show that

she became disabled before her insured status expired on March 31, 2017.

42 U.S.C. 423(c)(1); Demandre v. Califano, 591 F.2d 1088, 1090 (5" Cir.

1979), cert. denied, 444 U.S. 952. The Act provides further that a claimant

will be found not disabled if she can perform her previous work. 42 U.S.C.

423(d)(2)(A), 1382c(a)(3)(B).

A determination by the Commissioner that a claimant is not.

disabled must be upheld if it is supported by substantial evidence. 42 U.S.C.

405(g). Substantial evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Richardson v. Perales,

402 US. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229 (1938). Under the substantial evidence test, “findings of fact

made by administrative agencies ... may be reversed ... only when the record

compels a reversal; the mere fact that the record may support a contrary .

conclusion is not enough to justify a reversal of the administrative findings.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11" Cir. 2004) (en banc).

It is, moreover, the function of the Commissioner, and not the

courts, to resolve conflicts in the evidence and to assess the credibility of the

4

witnesses. Grant v. Richardson, 445 F.2d 656 (5" Cir. 1971). Similarly, it

is the responsibility of the Commissioner to draw inferences from the

evidence, and those inferences are not to be overturned if they are supported □

by substantial evidence. Celebrezze v. O’Brient, 323 F.2d 989, 990 (5" Cir.

1963). □

Therefore, in determining whether the Commissioner’s

decision is supported by substantial evidence, the court is not to reweigh the

evidence, but is limited to determining whether the record as a whole

contains sufficient evidence to permit a reasonable mind to conclude that the

claimant is not disabled. However, the court, in its review, must satisfy itself

that the proper legal standards were applied and legal requirements were met.

Lamb v. Bowen, 847 F.2d 698, 701 (11™ Cir. 1988).

I.

_ The pertinent time period for this disability claim is May 9,

2015, the date the plaintiff was injured in an automobile accident, through

March 31, 2017, the date she was last insured for disability benefits. The

plaintiff failed to show that the law judge erred in finding her not disabled

during this period. .

The plaintiff argues first that the law judge “did not offer good

cause for giving little weight to the opinions of ... [two] treating physicians,”

orthopedist Dr. Kevin Scott and psychiatrist Dr. Bharminder Bedi (Doc. 17,

p. 14), both of whom essentially opined that the plaintiff was disabled from

working.

A. Dr. Scott expressed his opinion of the plaintiff's limitations

in a Residual Functional Capacity Questionnaire form dated J anuary 9, 2018

(Tr. 1350-53). Dr. Scott opined that the plaintiff could sit only two hours,

and stand/walk up to two hours, during an eight-hour workday; sit and

stand/walk for 15 minutes at a time; and use her hands and arms only five

percent of the workday (id.). He stated that those limitations were present

since March 1, 2016 (Tr. 1353). Dr. Scott attributed these limitations to a-

list of medical diagnostic codes, which represent pain in the left shoulder,

wrist and hand; carpal tunnel syndrome in the left hand; pain and

osteoarthritis of the right knee and neck pain (Tr. 1350).

Opinions from treating physicians are entitled to substantial or

considerable weight unless there is good cause for not giving them such

weight. Hargress v. Social Security Administration, Commissioner, 883

F.3d 1302, 1305 (11 Cir. 2018). Good cause exists when the treating

physician’s opinion is not bolstered by the evidence, the evidence supports

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

physician’s own medical records. Id. “Where an ALJ articulates specific

reasons for failing to accord the opinion of a treating or examining physician

controlling weight and those reasons are supported by substantial evidence,

there is no reversible error.” Poellnitz v. Astrue, 349 Fed. Appx. 500, 502

(11 Cir. 2009).

Initially, it is noted that Dr. Scott does not provide a meaningful

explanation for his opinion of extreme limitations which is, in itself, a

recognized basis for discounting a treating physician’s opinions. See Johns

v. Bowen, 821 F.2d 551, 555 (11" Cir. 1987). Dr. Scott merely lists general,

vague symptoms of “pain, weakness, numbness, [and] tenderness” (Tr.

1350), which can vary greatly in degree and are not necessarily disabling.

See McCruter v. Bowen, 791 F.2d 1544, 1547 (11" Cir. 1986)) (A mere’

showing of “a deviation from purely medical standards of bodily perfection

or normality” is insufficient; instead, the claimant must show the effect of

the impairment on her ability to work.); see also Longworth v. Commissioner

of the Social Security Administration, 402 F.3d 591, 596 (6" Cir. 2005) (The

physician needs to translate how abnormal clinical findings affect

functioning.). A meaningful explanation is especially important here, as it

is not apparent from Dr. Scott’s treatment notes the objective findings

supporting his opinion of extreme functional limitations.

, □

The law judge acknowledged Dr. Scott’s opinion and explained

why she gave it little weight (Tr. 33): .

In January of 2018, Dr. Kevin Scott, M.D.,

completed a physical residual functional capacity

assessment on the plaintiff. Dr. Scott noted he had

been treating the claimant since March of 2016 and

that the claimant’s limitations have been in effect □

since then. Dr. Scott found the claimant was able

to sit/stand/walk fifteen minutes ... [at one time],

to sit/stand/walk a total of two hours, to lift up to

ten pounds occasionally, to use her hands/finger[s]

only 5% of the day, and to reach 5% of the day.

Dr. Scott also indicated the claimant needed an

assistive device for walking (during severe pain),

and that the claimant did not need to change

positions (Exhibit 38F, page 4). The undersigned

gives little weight to Dr. Scott’s opinions, since

they are internally inconsistent, when measured

against the medical evidence as a _ whole.

Treatment notes contained in Exhibit 32F do not

support Dr. Scott’s contentions at all. □

Nonetheless, the undersigned finds the claimant is

limited to doing sedentary work, secondary to the

impact of the claimant’s severe impairments.

The law judge’s explanation states good cause for discounting

Dr. Scott’s opinion. See Forrester v. Commissioner of Social Security, 455

Fed. Appx. 899, 902 (11" Cir. 2012). Furthermore, that determination is _

supported by substantial evidence, as the law judge identifies throughout the

decision medical and other evidence that is inconsistent with the degree of

functional limitations opined by Dr. Scott.

The law judge emphasizes Dr. Scott’s statements that the

claimant was “doing very well” after rotator cuff repair and “doing very □

well” in physical therapy (Tr. 30). Furthermore, the law judge’s finding that

Dr. Scott’s “[t]reatment notes contained in Exhibit 32F do not support [his]

contentions at all” (Tr. 33) is reasonable, considering the significant normal

clinical findings reflected in Dr. Scott’s treatment notes (see, e.g., Tr. 1274,

1275) (the plaintiff has the full range of motion of her left upper extremity,

she is neurovascularly intact, there is no impingement sign); (Tr. 1303)

(despite hypersensitivity over the left hand, the plaintiff is neurovascularly .

intact, examination of the right extremities is normal and lower left, and

upper left had a full range of motion).

The law judge also found that Dr. Scott’s opinion of disabling

functional limitations was inconsistent with “the medical evidence as a

whole” (see Tr. 33). That determination is also supported by substantial □

evidence, as the law judge identified numerous clinical findings from

3Additionally, there is no objective medical evidence supporting Dr. Scott's.

opinion that the plaintiff was limited to using her right hand and arm only five percent of

the day (see Tr. 1351).

Moreover, Dr. Scott lists knee pain as a basis for the plaintiffs opined limitations,

but Dr. Scott’s treatment records state that the plaintiff hurt her knee during a fall that’

occurred after the expiration of the insured period (see Tr. 1271). These deficiencies

make questionable the care with which Dr. Scott completed the Questionnaire and, thus,

its reliability.

9 .

multiple health providers that were normal or near normal (see Tr. 29-31).

For example, the law judge pointed out medical reports from Florida

Gastroenterology, dated October 2014 to November 2017, specified “[n]o

signs of musculoskeletal swelling/tenderness, acute distress, [or] back pain

....” and that she had normal sensations (Tr. 31). Furthermore, the law judge

noted that, from July 2015 to August 2017, primary care physician Dr.

Andrew Henry’s “[l]ongitudinal records of exams of the claimant revealed □

normal musculoskeletal system, normal extremity strength, [and] intact

sensations .... (id.).

Additionally, the law judge recounted that “physical exams [at

Suncoast Community Health Center, from December of 2015 to November

of 2017] consistently demonstrated a normal gait/station ... full ranges of

upper extremity motions, and intact sensations (see pages 6, 9 and 12 of

Exhibit 29F)” (Tr. 31). The law judge noted further that treatment notes □

from Hill Orthopedic Center showed “shoulder and cervical spine

tenderness,” but that the plaintiff maintained “good strength in all planes of .

neck movements” and “intact sensations” (Tr. 29). Moreover, a physical

examination at South Florida Baptist Hospital in February 2016 contradicted

a finding of debilitating physical limitations (id.; see Tr. 1047 (no tenderness

in neck or back; normal range of motion in the back and- musculoskeletal

10

system; no focal neurological deficits; full (5/5) motor strength and normal

sensation in all extremities)).

Moreover, the law judge recounted the plaintiff's diagnostic

testing results to support her rejection of Dr. Scott’s opined extreme

functional limitations. Thus, she noted that the plaintiff's August 2017

lumbar spine MRI scan “indicated only mild or minimal findings,” and the

cervical MRI scan revealed mild-to-moderate changes and no more than

small C4-5/C6-7 protrusions...” (Tr. 32, 30) (emphasis added).

Additionally, the law judge detailed that the plaintiff's left shoulder MRI in

September of 2016, “showed a supraspinatus tendon tear [which was □

subsequently repaired with surgery] ... with merely mild supraspinatus

muscle atrophy, mild sub-acromial sub-deltoid bursa, and mild

tendinopathy” (Tr. 30). Moreover, “left wrist films showed only moderate

osteoarthritic changes, with no evidence of fracture or dislocation,” and her

“electromyography (EMG) ... demonstrated merely mild CTS” (Tr. 31, 32)

(emphasis added). Finally, an MRI scan of the plaintiff's right knee revealed

no abnormalities (see Tr. 30). □

This comprehensive evidence of non-disabling clinical

examination findings and diagnostic test results clearly support the law □

judge’s determination that, while the plaintiff's impairments are substantial,

11

they do not warrant the extreme functional limitations opined by Dr. Scott.

See Belle v. Barnhart, 129 Fed. Appx. 558, 560 (11" Cir. 2005) (It is

appropriate to consider normal objective findings in determining whether

the plaintiff has functional work limitations.); 20 C.F.R. 404.1529(c)(2)

(“Objective medical evidence ... is a useful indicator to assist us in making

reasonable conclusions about the intensity and persistence of symptoms and

the effect those symptoms ... may have on [a plaintiff's] ability to work ....”);

see e.g., Lustgarten v. Commissioner of Social Security, 794 Fed. Appx. 843

(11" Cir. 2019).

The law judge also considered the plaintiff's activities of daily

living, which she could reasonably find were inconsistent with Dr. Scott’s

opined disabling limitations. See Macia v. Bowen, 829 F.2d 1009, 1012

(11" Cir. 1987); Jarrett v. Commissioner of Social Security, 422 Fed. Appx. .

869, 873 (11™ Cir. 2011) (“We have held that an ALJ does not need to give

a treating physician’s opinion considerable weight if evidence of the

claimant’s daily activities contradicts the opinion.”).

Thus, the law judge recounted the plaintiff's. reports that she

“walk[s] around the shopping center ... shop[s] in stores for groceries ...._

[a]ttend[s] baseball games ... read[s] books, bowl|[s], play[s] tennis, [and]

spend[s] time with others ....” (Tr. 28; see Tr. 308, 310, 311, 332). Notably, .

12

the plaintiff also traveled by car to Maryland at least three times, and flew

to New York, to visit family (see Tr. 141, 946, 958, 1236-38) which clearly

contradicts Dr. Scott’s opinion that the plaintiff could sit for only 15 minutes

at a time. Furthermore, the plaintiff testified that she did not have any

numbness in, or trouble using, her right hand (Tr. 119-20), contrary to Dr. -

Scott’s opinion that the plaintiff could use her right hand and arm only five

percent of the workday (Tr. 1351). See Magill v. Commissioner of Social

Security, 147 Fed. Appx. 92, 95 (11" Cir. 2005) (physician opinion

discredited because it was more restrictive than the plaintiff's testimony

about her daily activities).

In sum, the law judge’s explanation states good cause for

discounting Dr. Scott’s opinion of extreme functional limitations, and it is

supported by substantial evidence. Lewis v. Callahan, 125 F.3d 1436, 1440

(11" Cir. 1997) (“Substantial evidence is more than a scintilla and is such □

relevant evidence as a reasonable person would accept as adequate to

support a conclusion.”).

The plaintiff argues that the law judge failed to meaningfully

explain how Dr. Scott’s opinion was internally inconsistent and unsupported

by the record (Doc. 17, p. 16). This argument fails because, as discussed ©

supra, pp. 8-12, the law judge gave an ample explanation for discounting

13

Dr. Scott’s opinion of debilitating functional limitations.

The plaintiff contends further that Dr. Scott’s opinion is

supported by degenerative changes and tenderness in her cervical spine, pain

in her lumbar spine, decreased strength in her left hand, left shoulder surgery

and hypersensitivity of the left hand (Doc. 17, pp. 16-17). The plaintiff's □

argument misapprehends the standard of review in this case, which is very

deferential to the law judge. Thus, it is insufficient to identify evidence that .

is consistent with, or supports, disability; the evidence must compel that

conclusion. See Adefemi v. Ashcroft, supra, 386 F.3d at 1027 (“findings of

fact made by administrative agencies ... may be reversed ... only when the

record compels a reversal”).

The indeterminate abnormalities identified by the plaintiff do

not compel acceptance of Dr. Scott’s opined disabling limitations, especially

considering that the plaintiff's cervical degenerative changes were only mild -

to moderate, her carpal tunnel syndrome was mild, and her left shoulder

surgery was successful. See Lawton v. Commissioner of Social Security,

431 Fed. Appx. 830, 833 (11 Cir. 2011) (“While the record does contain

some evidence that is contrary to the ALJ’s determination, we are not

permitted to reweigh the importance attributed to the medical evidence.”).

14

The plaintiff also argues that Dr. Scott’s opinion is supported

by the plaintiffs reports of “significant pain” (Doc. 17, p. 16). However,

the law judge was not required to accept uncritically the plaintiff's .

allegations of pain in determining the weight to give Dr. Scott’s opinion

because the law judge found the plaintiffs subjective complaints were not

fully credible. See Majkut v. Commissioner of Social Security, 394 Fed.

Appx. 660, 664 (11" Cir. 2010) (discounting the weight given to a treating

physician in part because the opinion was based on the plaintiff's subjective

complaints which the law judge found were not credible).

In sum, the plaintiffs citation to some evidence that could -

arguably support a finding of disability is insufficient because, as discussed

above, there was ample evidence supporting the law judge’s finding that the

plaintiff was not disabled, and the law judge’s resolution of any purportedly

conflicting evidence is entitled to deference. See Lawton v. Commissioner

of Social Security, supra, 431 Fed. Appx. at 833. Thus, the plaintiff's

disagreement with the law judge essentially is a difference of opinion as to

the weight to be given to certain circumstances. The law judge, however, is

given the responsibility to assess those circumstances so that the plaintiff's

different opinion must yield. Graham v. Bowen, 790 F.2d 1572, 1575 (11" □

Cir. 1986) (“The weighing of evidence is a function of the factfinder, not of

15

the district court.”).

B. The plaintiff also argues the law judge.

did not state good cause for rejecting the opinions of her psychiatrist, Dr.

Bedi, who completed on her behalf a Mental Capacity Assessment form

regarding 20 areas of her mental functioning (Doc. 17, pp. 17-21; see Tr.

1358-62). Dr. Bedi opined, by placing checkmarks on the form, that the

plaintiff had moderate-to-marked limitations related to understanding and

memory, sustained concentration and persistence, and social interaction and

adaptation (see Tr. 1358-62).

Notably, Dr. Bedi was directed to “describe the

medical/clinical findings” supporting his assessment and base “the degree

of limitation resulting from PSYCHOLOGICAL FACTORS only” (Tr.

1358-60) (emphasis in original). However, to the extent that Dr. Bedi’s

written responses were legible, his comments were conclusory and he

improperly attributed physical abnormalities, e.g., headaches, left hand

problems, as contributing to the opined mental limitations (see Tr. 1358,

1360). Dr. Bedi also wrote on the form to “ask-Medical MD” and “ask PCP”

about his opined limitations, which further convolutes the psychological □

basis for these opinions (Tr. 1359, 1361). See Brown v. Commissioner of

Social Security, 442 Fed. Appx. 507, 512 (11"" Cir. 2011) (rejecting treating

16

physician’s opinion as conclusory because he did not reference his treatment

records or adequately explain his opinions).

The law judge considered Dr. Bedi’s opinion and stated (Tr.

33):

The undersigned assigns little weight to Dr.

Bharminder Bedi’s mental capacity assessment,

_wherein Dr. Bedi indicated the claimant had

marked limitations in maintaining concentration,

performing activities within a schedule, working

with others, completing a normal

workday/workweek, setting realistic goals, and

travelling to unfamiliar places. Dr. Bedi also noted

the claimant had moderate restrictions in getting

along with peers/co-workers, accepting criticism

appropriately, making simple work-related

decisions, sustaining an ordinary work routine,

and understanding/remembering very short simple

instructions (Exhibit 40F). The undersigned

accords little weight to Dr. Bedi’s opinions since

they are inconsistent with the medical evidence as

a whole and with the opinions of DDS physicians.

The undersigned notes it is unclear what the

claimant’s global assessment functioning is, and

that the date is not clear.

The law judge states good cause for discounting Dr. Bedi’s opinion that the .

plaintiff had moderate-to-marked mental functioning limitations. See

Hargress v. Social Security Administration, Commissioner, supra, 883 F.3d

at 1305.

17

Furthermore, that determination is supported by substantial

evidence. Thus, the law judge noted that the plaintiff's “mental status exams □

are generally normal,” and that the plaintiff reported to doctors that “she was

doing well overall and that her medications were working well” (Tr. 29, 30).

Furthermore, the law judge recounted treatment notes from psychiatrist

Ashit Vijapura and his colleagues (who treated the plaintiff for the vast

majority of this alleged disability period), specifying that the plaintiff's

mental status exams revealed normal motor

functions, normal speech, appropriate insight,

□ organized thought processes, relevant thought □

content, full orientation, and a fair outlook, with

no hallucinations or delusions (see pages 1-3 of

Exhibit 11F; and pages 2-6, 8-12, and 16-21 of

Exhibit 16F). These findings indicated the

claimant was essentially able to function mentally.

(Tr. 30). See 20 C.F.R. 404.1527(c)(3) (an opinion supported by medical

signs is given greater weight).

The law judge also summarized from Dr. Vijapura’s treatment

notes (Tr. 30):

In March and April of 2016, the claimant reported

she was doing well overall, and that her

medications were working well. The claimant’s

condition was improving (see pages 18 and 20 of

Exhibit 16F). In December of 2016, the claimant

stated her medications were working well, and that

her appetite was improving. The claimant denied

having suicidal/homicidal thoughts or sleep

18

problems. The claimant was deemed stable (see

pages 4-5 of Exhibit 16F)....

Additionally, the law judge noted that Dr. Bedi’s own mental status

evaluations of the plaintiff, to the extent that they were legible, “appeared to

reflect motor behavior, ... thoughts, and cognitive functions that were

normal ...” (see Tr. 32).

Notably, Dr. Bedi completed, two weeks before the plaintiff's

disability insurance expired, a comprehensive Mental Status Examination in

which he opined that the plaintiff had “Good” memory, judgment, insight,

logic, abstraction and general information (Tr. 1082).* Dr. Bedi added that,

despite a depressed and anxious mood, the plaintiff exhibited a cooperative

attitude and behavior, normal motor behavior, and appropriate and coherent

content of speech and thought (Tr. 1081).

Moreover, the law judge mentioned that other health providers

documented normal or near-normal mental status examinations. For.

example, mental status examinations of the plaintiff by treating physician

Thomas DiGeronimo “frequently indicated ... a normal mood/affect or only

mild malaise/a slightly flat affect, a normal attitude, normal memory

“The mental status examination form appears to define “Good” as above average

(see Tr. 1082). □

19

functions, and normal insight as well as judgment” (Tr. 32). Treating -

physician Dr. Andrew Henry consistently recorded that the plaintiff had

“intact cognitive functions” (Tr. 31). Furthermore, mental status

examinations at Plant City Family Care showed that, despite a depressed

mood, the plaintiff had “a pleasant affect, logical goal-directed thoughts.... □

[n]o signs of suicidal/homicidal ideations, mania, [or] psychomotor

agitation.... (Tr. 32). The law judge summarized that (Tr. 31):

several [other] medical reports reflected the

claimant exhibited an appropriate mood/affect,

alertness, intact orientation ....[and nJo signs of...

acute distress ... anxiety, or depression were

detected [e.g., see pages 1-3 of Exhibit 4F; pages □

5-7, 9-10, and 13-14 of Exhibit 13F; and page 3 of

Exhibit 22F](Exhibits 4F, 6F, 13F, and 22F).

(see also Tr. 29, 32). In sum, the law judge could reasonably find that these

normal and near-normal mental status examination findings are inconsistent

with Dr. Bedi’s opinions of moderate-to-marked limitations in the plaintiff's

mental functioning (see Tr. 1358-60).

Additionally, the law judge concluded that the plaintiff's

activities of daily living show no more than mild mental functioning

limitations (Tr. 26-27). In this respect, the law judge evaluated the four

broad areas of mental functioning, and found that the plaintiff engaged in

activities that were inconsistent with greater mental limitations, such as

20

cooking, operating a computer, walking around the shopping center,

shopping in stores for groceries, managing funds, paying bills, attending

baseball games, watching television shows, reading books, bowling, playing

tennis, and spending time with others (Tr. 26—28).

Finally, the law judge considered, and gave substantial weight

to, the opinions of non-examining reviewing psychologists David Tessler

and Jennifer Meyer, who opined that the plaintiff had only mild limitations

in the primary areas of mental functioning (Tr. 33; see Tr. 154, 169). Dr.

Meyer explained that, “[w]hile significant symptomology is alleged [by the

plaintiff], generally only mild mental status issues have been observed at

treatment appts” (Tr. 170). Dr. Tessler similarly opined that “some [of the

plaintiff's] statements ... are disproportionate” to the overall objective

evidence (Tr. 154-55). The law judge explained, in giving these opinions |

substantial weight, that they are “consistent with the bulk of the medical

evidence,” and that the reviewing psychologists “are experts as well as are

familiar with program rules and the expected limitations of impairments”

(Tr. 33).

The plaintiff argues the law judge’s explanation is inadequate ©

because she “failed to provide any analysis or citations to support her

conclusion that Dr. Bedi’s opinion was ‘inconsistent with the medical |

21

evidence as a whole’” (Doc. 17, p. 18). This contention is baseless (see

supra, pp. 17-21).

As the Commissioner states (Doc. 18, p. 11):

In the paragraphs that preceded the ALJ’s

weighing of the opinions, the ALJ thoroughly

summarized the evidence that both supported her

RFC finding and that conflicted with the opinions

reached by Drs. Bedi and Scott (Tr. 29-32). Thus,

there can be no doubt of the evidence the ALJ

found inconsistent with the doctors’ opinions. It

was not necessary for the ALJ to recap, for a

second time, all of the evidence she had just

discussed in relation to the doctors’ opinions.

Moreover, I had no difficulty whatsoever in conducting a meaningful review -

of this decision, which further buttresses the adequacy of the decision. See

Owens v. Heckler, 748 F.2d 1511, 1514-15 (11" Cir. 1984) (The court must .

have the ability to conduct a review that is both limited and meaningful.).

The plaintiff also argues that the law judge erred in finding that

Dr. Bedi’s opinion is inconsistent with the evidence (Doc. 17, p. 18). She

contends (id., pp. 18-19): .

The doctor’s own records showed that Plaintiff □

had symptoms such as a depressed mood,

circumstantial speech, moderate anxiety,

palpitations, shaking, fear, and panic attacks ....

Other mental status examinations in the record .

showed that Plaintiff had a depressed, anxious, or

tearful mood.... She also has a history of panic

attacks.... All of this evidence supports Dr. Bedi’s

22

finding that Plaintiff's mental health symptoms

caused marked limitations in her ability to

complete a regular work schedule....

As stated supra, pp. 14-16, it is not enough for the plaintiff to

identify some evidence that supports her claim; the plaintiff has to identify

evidence that compelled the law judge to accept Dr. Bedi’s opinions. See

Adefemi v. Ashcroft, supra, 386 F.3d at 1027; MacGregor v. Bowen, 786.

F.2d 1050, 1053 (11" Cir. 1986) (“Even if ... the evidence preponderates

against the [Commissioner’s] decision, we must affirm if the decision is

supported by substantial evidence.”). The evidence identified by the plaintiff

does not satisfy this requirement.

Furthermore, the law judge found that, despite a depressed or

anxious mood, the plaintiff's mental status examinations were otherwise

essentially normal and, therefore, the law judge could reasonably conclude -

that the plaintiffs abnormalities of mood caused no more than mild

limitations in mental functioning (see Tr. 26-27, 29-30). The law judge

also found that the plaintiff's statements regarding the intensity, persistence

and limiting effects of her symptoms were not fully credible, and that

determination is supported by substantial evidence (see infra). Therefore,

the law judge was not required to accept uncritically the plaintiff's subjective

reports of disabling symptoms in determining the weight afforded to Dr. -

23

Bedi’s opinions. See Majkut v. Commissioner of Social Security, supra, 394

Fed. Appx. at 664.

The plaintiff also contends that the law judge erred in accepting

the opinions of the reviewing psychologists over those of Dr. Bedi (Doc. 17, -

p. 19). She asserts, frivolously, that the law judge “offered no explanation

as to why she found the non-examining opinions to be more persuasive” (id.,

pp. 19-20). However, the law judge explained (Tr. 33):

The undersigned gives substantial weight to the

DDS medical opinions, since they are consistent

with the bulk of the medical evidence, and as they

are experts as well as are familiar with program

rules and the expected limitations of impairments.

These experts had the opportunity to review a

substantial portion of the medical evidence, and

evidence received after those opinions were

rendered reveal the claimant to be on a stable

steady course, and do not support a finding that the

claimant’s condition is materially worse than it

was at the time the opinions were rendered.

The plaintiff argues further that the law judge erred in relying

upon the reviewers’ opinions because “[t]he vast majority of Plaintiff's .

psychiatric visits occurred after” their evaluations and, consequently,

“InJeither of the[m]... had a complete picture of Plaintiffs mental health

functioning throughout the time period in question” (Doc. 17, p. 19). This

argument fails because the law judge reviewed the entirety of the record and

24

concluded that the “evidence received after [the reviewers’] opinions ... do

not support a finding that the claimant’s condition [] materially worse[ned]” □

(Tr 33). See Cooper v. Commissioner of Social Security, 521 Fed. Appx.

803, 807 (11"" Cir. 2013) (No error in relying upon the opinion of the non-

examining doctor who was unable to review all of the records, because “the

ALJ who made the ultimate determination had access to the entire record.”).

Thus, the reviewers’ opinions were probative of the plaintiff's mental □

functioning throughout the alleged disability period.

Additionally, the plaintiff notes that “the opinion of a non-_

examining source is generally accorded less weight than the opinion of a

treating psychiatrist” (Doc. 17, p. 19). However, where, as here, the law

judge states good cause to discount the opinion of the treating doctor, the

law judge may give greater weight to the opinion of a non-examining doctor.

See Forsyth v. Commissioner of Social Security, 503 Fed. Appx. 892, 893 □

(11th Cir. 2013); Wilkinson v. Commissioner of Social Security, 289 Fed.

Appx. 384, 386 (11" Cir. 2008). Therefore, the law judge did not err □□

giving significant weight to the opinions of the non-examining reviewing

psychologists.

Additionally, the plaintiff argues that the law judge “did not

explain why [her] GAF score was relevant to the analysis of Dr. Bedi’s

25

opinion” (Doc. 17, p. 20).° The plaintiff is referring to the law judge’s

comment that “it is unclear what the claimant’s global assessment

functioning is” (Tr. 33). The comment, which appears to be an afterthought,

is immaterial to the law judge’s finding because the law. judge expressly

stated that “[global assessment functioning] scores do not make the

claimant’s mental health severe” (id.). See Thornton v. Commissioner,

Social Security Administration, 597 Fed. Appx. 604, 613 (11" Cir. 2015) □

(The Commissioner has concluded that the GAF scale “does not have a

direct correlation to the severity requirements in [the] mental disorders

listings.”). Furthermore, the law judge expressly limited his reasons for

discounting Dr. Bedi’s opinions to their “inconsisten[cy] with the medical

evidence as a whole and with the opinions of the DDS physicians” (Tr. 33),

not GAF scores. .

Finally, the plaintiff argues that the law judge “erred by citing -

concerns about the date of [Dr. Bedi’s] opinion as a reason for giving it little

weight” (Doc. 17, p. 21). The law judge correctly stated that the date Dr.

Bedi completed the Mental Capacity Assessment form “is not clear” (Tr. 33)

[The GAF scale “[c]onsider[s] psychological, social, and occupational □

functioning on a hypothetical continuum of mental health-illness.” Diagnostic and

Statistical Manual of Mental Disorders, (DSM-IV-TR) (4" ed., Text Revision), p. 34.

GAF scores were omitted from the current version of the Diagnostic and Statistical

Manual of Mental Disorders.

26

because the form is undated.

It appears that Dr. Bedi completed the form in January 2018

(see Tr. 1363). That is nine months after the date the plaintiff was last □

insured. Furthermore, Dr. Bedi did not indicate that his opinion was

retroactive to the insured period.® Thus, the law judge’s concem about the □

date Dr. Bedi completed the form is valid because a treating physician’s

opinion describing a claimant’s condition after the date last insured is “not

particularly relevant to whether [a claimant] [i]s disabled for purposes of

DIB.” Hughes v. Commissioner of Social Security Administration, 486

Fed. Appx. 11, 14 (11" Cir. 2012); Anderson v. Schweiker, 651 F.2d 306, □

311 n.3 (5" Cir. 1981).

In sum, the plaintiffs challenge to the law judge discounting □

Dr. Bedi’s opinions of the plaintiff's functioning fails. See Adefemi v.

Astrue, supra, 386 F.3d at 1027.

$Notably, Dr. Bedi saw the plaintiff only once during the alleged disability period.

Thus, it is arguable whether Dr. Bedi was a “treating physician” for the purpose of opining -

on the plaintiff's mental functioning during the relevant time period. Cf. Crawford v.

Commissioner of Social Security, 363 F.3d 1155, 1160 (11" Cir. 2004) (the opinion of a

physician who treated the plaintiff on one occasion was not entitled to great weight).

27

IV. .

The plaintiffs final argument is that the law judge “did not

provide a sufficient justification for rejecting Plaintiff's testimony” (Doc. 17,

p. 21). This argument is meritless.

It is well-established that responsibility for making credibility

determinations is reposed in the Commissioner and his determination

entitled to deference. Moore v. Barnhart, 405 F.3d 1208, 1212 (11" Cir.

2005); Pettaway v. Astrue, 376 Fed. Appx. 889, 890 (11 Cir. 2010)

(“Credibility determinations about subjective testimony generally are

reserved to the ALJ.”). Consequently, to overturn the Commissioner’s

credibility finding, the plaintiff must demonstrate that the evidence compels

the contrary finding. See Adefemi v. Ashcroft, supra. The plaintiffs

criticisms of the credibility finding do not amount to such a showing.

The law judge summarized the plaintiffs hearing testimony

(Tr. 28): □

The claimant testified she [has] a torn hand tendon,

a trigger finger with a cyst, migraines, a torn

rotator cuff, weakness, CTS, left hand numbness,

left shoulder discomfort, anxiety, GERD, past

suicidal thoughts, fatigue, sleep disturbance,

PTSD with flashbacks, constant panic attacks, and

sharp neck/back pains that radiate into her

shoulders and back. She stated her pain is

exacerbated by activities such as lifting and

28

reaching overhead, which is consistent with the

undersigned’s finding that the claimant - has

reaching restrictions and is limited to doing

sedentary work. The claimant insisted she is

unable to use her left hand. She estimated she has

migraines three to four times per week, but noted

the migraines only last about one hour, and that she

is able to sit twenty minutes, to lift a gallon of

liquid, and to stand/walk up to thirty minutes. The

claimant reported her medications cause

sluggishness and only occasional focus problems.

According to the claimant, she has panic attacks

three times a week, and flashbacks twice a week,

and her panic attacks are precipitated by fear or

nervousness. She asserted she does not perform

any chores or drive, and that her husband assist(s]

her with showering.

The Eleventh Circuit has established a standard for evaluating

complaints of pain and other subjective complaints. Dyer v. Barnhart, 395

F.3d 1206, 1210 (11" Cir. 2005). As the court of appeals explained in

Landry v. Heckler, 782 F.2d 1551, 1553 (11" Cir. 1986), the pain standard

“require[s] evidence of an underlying medical condition and (1) objective

medical evidence that confirms the severity of the alleged pain arising from

that condition or (2) that the objectively determined medical condition is of.

such a severity that it can be reasonably expected to give rise to the alleged

pain.” If the law judge discounts the claimant's testimony concerning

subjective complaints, she must articulate explicit and adequate reasons for

doing so. Dyer v. Barnhart, supra, 395 F.3d at 1210.

29 □

The law judge cited to the pertinent regulations and Social

Security Rulings (Tr. 28). This demonstrates that she applied the proper

standard. See Wilson v. Barnhart, 284 F.3d 1219, 1225-26 (11" Cir. 2002).

Furthermore, the law judge concluded, using language in conformity with

the Eleventh Circuit standard, that (Tr. 29):

the claimant’s medically | determinable

impairments could reasonably be expected to

cause 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 ....

Significantly, the law judge credited, to a substantial extent, the

plaintiff's allegations of physical limitations, as she greatly restricted the

plaintiff to a reduced range of sedentary work (Tr. 27). The law judge only

discredited the allegations of total disability. □

The law judge explained (Tr. 34):

[T]he ... residual functional capacity assessment is

supported by the claimant’s medical records and

severe impairments, in addition to the mental

opinions of DDS physicians .... The undersigned

finds the claimant is limited to doing sedentary

work, with certain postural, manipulative, and

reaching limitations, in addition to restrictions in

exposure to certain environmental conditions,

secondary to the effects of the claimant’s severe

CTS, spinal disorders, OA and migraines. The

claimant’s medical records reflected the claimant

30

was essentially able to function mentally and

physically, even with her impairments. In

addition, the claimant’s probative test results often

indicated only mild, minimal, negative or

sometimes moderate findings. The claimant’s

medical reports also showed the claimant’s

medical conditions improved with treatment ....

Furthermore, the claimant’s adult function reports

indicated the claimant was basically able to

function ....

The law judge’s credibility determination is more than adequate

to discount the plaintiffs subjective complaints of disabling functional

limitations. See Heppell-Libsansky v. Commissioner of Social Security, 170°

Fed. Appx. 693, 699 (11 Cir. 2006); Grant v. Social Security

Administration Commissioner, 710 Fed. Appx. 426 (11" Cir. 2018). As_

discussed supra, the law judge detailed diagnostic test results and clinical

examination findings that are inconsistent with the debilitating limitations

asserted by the plaintiff (see Tr. 29-32). See Social Security Ruling 96-7p

(S.S.A.), 1996 WL 374186 at *2 (“an individual’s symptoms, including pain,

will be determined to diminish the individual’s capacity for basic work

activities to the extent that the ... symptoms can reasonably be accepted as

consistent with the objective medical evidence and other evidence in the case .

record”).

31

Furthermore, the law judge found that the plaintiff's activities

of daily living belied her allegations of debilitating functional limitations.

Thus, the law judge discussed that, although the plaintiff testified (Tr. 28):

she does not perform any chores or drive, and that

her husband assist[s] her with showering [due to

her impairments].... in her adult function reports

dated November of 2015 and February of 2016,

the claimant noted she was able to cook, operate a

computer, walk around the shopping center, feed

herself, shop in stores for groceries, manage funds,

pay bills, count change, attend baseball games,

watch television shows, read books, bowl, play

tennis, spend time with others, get along with other

people, and get along with authority figures/bosses

(Exhibits SE and 14E).

Moreover, the law judge considered that the plaintiff's

treatment was successful in reducing her symptoms (Tr. 30). Specifically, :

the law judge recounted plaintiffs reports to her physicians that

“[psychiatric] medications were working well” (id.), the “trigger point

injections had improved her migraine symptoms” (Tr. 32) and she was

“doing very well in physical therapy” (Tr. 30; see also Tr. 937 (“These

medications allow ... [the plaintiff] to increase [her] normal activity level

and decrease[] the limitations placed on her from [her] pain ....”)).

The plaintiff argues that the law judge’s credibility”

determination was deficient because “the decision does not contain ‘specific

32

reasons’ for her evaluation of Plaintiff's testimony” and, therefore, the □

decision is not subject to meaningful judicial review (Doc. 17, p. 23). This

contention is baseless (see supra, pp. 31-33).

The plaintiff contends further that “the evidence that the ALJ

described in the decision is actually consistent with Plaintiff's testimony

about her limitations,” citing to findings of tenderness, muscle spasms,

trigger points, reduced range of motion in her spine and upper extremities,

and grip weakness and decreased sensation (Doc. 17, pp. 23-24). However, □

the plaintiff does not show these symptoms (which can vary greatly in

severity) compelled the law judge to accept the plaintiff's testimony of

debilitating limitations, especially considering that the law judge identified

treatment records where those symptoms are not even present (see, e.g., Tr.

29 (intact grip strength); Tr. 31 (normal sensations, full ranges of upper

extremity motions, no musculoskeletal swelling/tenderness and normal

extremity strength), See Martin v. Sullivan, 894 F.2d 1520, 1529 (11" Cir.

1990) (a court may not “re-weigh the evidence or substitute our own

judgment” for that of the ALJ, even if the court were to conclude that the

evidence preponderates against the ALJ's decision); McCullars v.

Commissioner of Social Security Administration, 825 Fed. Appx. 685, 695

n.1 (11" Cir. 2020) (*ALJ[]s are permitted, and in fact, required, to use.

33

judgment in weighing competing evidence and reaching a final

determination as to whether an applicant is disabled.”).

The plaintiff also argues that “the decision does not address

Plaintiff's daily activities” and that she is “[un]ab{le] to perform even simple,

brief daily activities without assistance” (Doc. 17, p. 24). This argument is

meritless. The law judge repeatedly references the plaintiff's activities of

daily living to support her determination that the plaintiff is not disabled (see

Tr. 26-27, 34).

Finally, the plaintiff argues that the decision “fails to address’

Plaintiff's medications and their acknowledged side effects” (Doc. 17, p. 24).

This argument is unpersuasive. The law judge acknowledged that the.

plaintiff took several medications (see Tr. 30, 32, 34). She also recounted

the plaintiff's testimony that “her medications cause sluggishness and ...

occasional focus problems” (Tr. 28).

The law judge’s references to the plaintiff's medications, and

her citation to legal authority that she had to consider any side effects in her

credibility determination (Tr. 28), are sufficient to show that the law judge

considered the alleged side effects and discounted them. See Walker v..

Commissioner of Social Security, 404 Fed. Appx. 362, 367 (11" Cir. 2010)

(The law judge’s finding that the plaintiffs statements concerning the

34

intensity, persistence and limiting effects of her symptoms were not entirely

credible is “a finding that encompassed her testimony about her side

effects.”); Gantea v. Commissioner of Social Security, 380 Fed. Appx. 950, □

951 (11" Cir. 2010) (It is implicit in the credibility determination that the

law judge found that the plaintiff's allegations of disabling medication side

effects were not credible.); see also Dyer v. Barnhart, supra, 395 F.3d at 1211

(“There is no rigid requirement that the ALJ specifically refer to every piece

of evidence in his decision.”).

The plaintiff argues, in particular that her mental health

medications caused “side effects such as nightmares, increased anxiety,

nausea, feelings that she is going crazy and suicidal ideation” (Doc. 17, pp.

24-25). However, as the Commissioner points out, the plaintiff discontinued

the medications which caused those symptoms (see Tr. 951, 957, 962). The

plaintiff subsequently reported that her medication regimen was “working

well” (see, e.g., Tr. 946-47, 960, 962).

Therefore, the plaintiff's criticisms of the credibility decision,

which is supported by substantial evidence, clearly do not compel a contrary

conclusion. See Adefemi v. Astrue, supra, 386 F.3d at 1027 (“findings of

fact made by administrative agencies ... may be reversed . only when the .

record compels a reversal”).

35

V.

It is, therefore, upon consideration,

ORDERED:

That the Commissioner’s decision is hereby AFFIRMED.

The Clerk shall enter judgment in accordance with this Order and CLOSE

this case.

DONE and ORDERED at Tampa, Florida, this Say of

December, 2020. □

a Wien

THOMAS G. WILSON

UNITED STATES MAGISTRATE JUDGE

36