# Ritorto v. Commissioner of Social Security

> District Court, M.D. Florida · December 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10642102

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642102. Public record. Not legal advice.