MONTE C. RICHARDSON, Magistrate Judge.
In reaching the decision, the ALJ found that Plaintiff "had the following severe impairments: Crohn's disease, endocervicitis and dysthymic disorder." (Tr. 14.) The ALJ also found that Plaintiff had the residual functional capacity ("RFC") to perform "less than the full exertional range of sedentary work." (Tr. 16.) After finding that Plaintiff was unable to perform any past relevant work, the ALJ found that there were jobs existing in significant numbers in the national economy that Plaintiff could perform. (Tr. 23-24.)
Plaintiff is appealing the Commissioner's decision that she was not disabled from August 20, 2010 through March 31, 2014. Plaintiff has exhausted her available administrative remedies and the case is properly before the Court. The Court has reviewed the record, the briefs, and the applicable law. For the reasons stated herein, the Commissioner's decision is
The scope of this Court's review is limited to determining whether the Commissioner applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner's findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to determine the reasonableness of the Commissioner's factual findings).
Plaintiff raises two arguments on appeal. Her first argument is that the ALJ did not provide sufficient rationale based on substantial evidence for according little weight to the March 28, 2013 opinion of Hassan Borghei, D.O., Plaintiff's treating gastroenterologist. Plaintiff asserts that the ALJ's RFC assessment, which provides for unscheduled breaks lasting five minutes as often as every two hours, conflicts with Plaintiff's testimony and with Dr. Borghei's opinion that frequent trips to the bathroom are to be expected due to her Crohn's disease.
Plaintiff's second argument is that the ALJ improperly relied on the testimony of the Vocational Expert ("VE") because his hypothetical question did not adequately reflect all of Plaintiff's limitations. Plaintiff asserts that the ALJ's hypothetical question, which included unscheduled breaks lasting five minutes as often as every two hours, did not describe a true need for unscheduled breaks and was not consistent with Dr. Borghei's opinion and Plaintiff's testimony. Plaintiff points to the VE's response that if the need to take five-minute breaks could be included within the 15- or 30-minute scheduled breaks, then there would be no issue, which begs the question what if the need to take breaks is truly unscheduled and cannot be included in the 15- or 30-minute scheduled breaks. Plaintiff argues that the ALJ's failure to ask this hypothetical question is not harmless error. Plaintiff also argues that the ALJ failed to include in the hypothetical question his own finding that Plaintiff had moderate difficulties in concentration, persistence or pace because he failed to ask how occasional difficulties with concentration, attention, and task persistence would affect the job base. Plaintiff urges the Court to remand this case "as it cannot be determined that the few restrictions listed in the RFC finding fully account for the acknowledged deficiencies in concentration, persistence, or pace." (Doc. 20 at 18.)
The ALJ found that Plaintiff had the RFC "to perform less than the full exertional range of sedentary work." (Tr. 16.) Specifically:
(Id.) In making this finding, the ALJ considered Plaintiff's subjective complaints, her mother's statements in the Third Party Function Report, Plaintiff's treatment records, including the progress notes and opinions of Dr. Borghei, the opinions of the consultative examiners, and the opinions of the State agency non-examining consultants. (Tr. 17-23.)
The ALJ addressed Plaintiff's complaints as follows:
(Tr. 17.) The ALJ found, for the reasons explained in his decision, that although Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely credible. (Tr. 21.)
With respect to Dr. Borghei's treatment records and opinions, the ALJ stated in relevant part:
(Tr. 17-18.) The ALJ gave "only some weight" to Dr. Borghei's opinion that Plaintiff may miss school and work days. (Tr. 22.) The ALJ explained: "Although[] the opinion is somewhat consistent with his own progress notes indicating issues with Crohn's disease, Dr. Borghei was not specific on how many actual days the claimant would miss. Furthermore, Dr. Borghei's opinion did not appear to take into account the claimant's part-time work during the time." (Id.)
As to the RFC assessment, the ALJ explained:
(Tr. 19-20.)
The ALJ also observed that Plaintiff was non-compliant with prescribed treatment. (Tr. 21.) As reflected in an October 12, 2010 progress note from Dr. Borghei, Plaintiff stopped taking her prescribed medication and only used over the counter Motrin for abdominal pain. (Id.) Also, despite referral from Dr. Borghei, Plaintiff failed to show up for her appointment with an infectious disease physician on January 22, 2013. (Id.) The ALJ stated: "These factors further imply the claimant's symptoms are not as severe since it is reasonable to assume the claimant would follow through on her treating gastroenterologist's advice." (Id.)
Plaintiff argues that the ALJ erred in failing to state the weight given to Dr. Borghei's opinion that frequent trips to the bathroom are to be expected and in giving only some weight to Dr. Borghei's opinion that Plaintiff may miss school and work days, that the ALJ completely ignored the latter opinion because his RFC does not include any anticipated absences due to flare-ups of Crohn's disease, and that the ALJ's RFC assessment conflicts with Dr. Borghei's opinion, Plaintiff's testimony, and the latest research on Crohn's disease, all of which allegedly support greater limitations than found by the ALJ. The Court finds no error.
First, the ALJ properly considered and weighed Dr. Borghei's opinions. On April 29, 2013, Plaintiff called Dr. Borghei's office asking for "a letter that she can not work 40 hours a week, [was] applying for financial aid to go to school, [and could] do part time but not full time" work. (Tr. 441.) When Dr. Borghei received this message, he asked, "why can not she wor[k] full time?" (Id.) On May 28, 2013, Dr. Borghei signed a letter, stating in relevant part:
(Tr. 440.)
The ALJ addressed this letter in his decision, but ultimately decided to give Dr. Borghei's opinion that Plaintiff may miss school/work days "only some weight." (Tr. 18, 22.) The ALJ explained: "Although[] the opinion is somewhat consistent with his own progress notes indicating issues with Crohn's disease, Dr. Borghei was not specific on how many actual days the claimant would miss. Furthermore, Dr. Borghei's opinion did not appear to take into account the claimant's part-time work during the time." (Tr. 22.) Although the ALJ did not separately weigh Dr. Borghei's opinion that frequent trips to the bathroom are to be expected, the ALJ considered all of Dr. Borghei's opinions. (See Tr. 17-18, 22.) The ALJ stated that although Plaintiff "presented symptomatic conditions that allegedly affect [her] potential to perform work, including frequent use of the bathroom . . ., the medical records, including the results of diagnostic examinations do not support the allegations." (Tr. 19.) The ALJ then discussed specific medical records showing unremarkable physical examinations and noted that Plaintiff's daily activities have been under-reported given that she was apparently self-sufficient, was able to work part-time and drive, and was applying to school. (Id.) The ALJ also noted that although "there has been no documentation by any physician indicating the claimant needed to use the bathroom a certain number of times" or that Plaintiff's "part-time employment was terminated due to this,"
The Court finds that the ALJ's reasons for giving only some weight to Dr. Borghei's opinions are supported by substantial evidence. (See, e.g., Tr. 349 (noting normal esophagogastroduodenoscopy, status post random biopsies of duodenum, gastric, and gastroesophageal junction); Tr. 363 (noting normal gastrointestinal examination); Tr. 36 & 47-48 (testimony by Plaintiff that she lives by herself and drives to Lakeland to visit her children).) Plaintiff seems to argue that the ALJ should have given more weight to Dr. Borghei's opinions given that they were "somewhat consistent with his own progress notes indicating issues with Crohn's disease." (Tr. 22.) However, the ALJ noted that "the records of treating gastroenterologist Dr. Borghei documented many normal examinations, including the most recent examination dated November 26, 2012." (Tr. 19.) The ALJ also noted that Dr. Borghei's October 12, 2010 progress note indicated that Plaintiff "stopped taking her prescribed medication and instead admitted she was only using over the counter Motrin to address her abdominal pains for weeks." (Tr. 17.)
The ALJ's findings are supported by substantial evidence. To the extent Plaintiff invites the Court to re-weigh the evidence or substitute its decision for that of the ALJ, the Court cannot do so. As long as the ALJ's findings are based on correct legal standards and are supported by substantial evidence, the Commissioner's decision must be affirmed even if the reviewer would have reached a different conclusion. Plaintiff contends that the ALJ erred in failing to include any anticipated absences due to flare-ups of Crohn's disease in the RFC assessment. However, the ALJ was not required to include limitations in the RFC or the hypothetical questions, which the ALJ had properly discounted. Moreover, the ALJ's RFC assessment did not need to mirror or match the findings or opinions of any particular medical source because the responsibility for assessing the RFC rests with the ALJ. Kopke v. Astrue, 2012 WL 4903470, *5 (M.D. Fla. Sept. 26, 2012) (report and recommendation adopted by 2012 WL 4867423 (M.D. Fla. Oct. 15, 2012)). Moreover, considering that Dr. Borghei's opinions are somewhat vague, Plaintiff does not show what additional limitations would be warranted that have not been included in the RFC assessment.
Plaintiff argues that, in addition to Dr. Borghei's opinion, Plaintiff's own testimony and the latest research on Crohn's disease support greater limitations than found by the ALJ. However, as Plaintiff acknowledges, "Crohn's disease symptoms range from mild to severe. They may vary over time and from person to person, depending on what part of the gastrointestinal (GI) tract is inflamed." (Doc. 20 at 10 n.1.) As such, there is no "one size fits all" that an ALJ may be able to glean from the latest research on Crohn's disease. Instead, what the ALJ was expected to do was to consider the entire record, taking into account Plaintiff's individual symptoms and limitations, in formulating the RFC.
As the ALJ did that here, he found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible. (Tr. 21.) The ALJ provided explicit and adequate reasons for his credibility determination. For example, the ALJ stated that "the medical records, including the results of diagnostic examinations[,] do not support [Plaintiff's] allegations." (Tr. 19.) The ALJ noted that on multiple occasions, Plaintiff's physical examinations did not reveal abdominal or gastrointestinal issues. (Tr. 18-19.) The ALJ also noted that despite complaints of abdominal pain and rectal bleeding, Plaintiff's physical examination on January 6, 2014 indicated a non-tender abdomen with normal bowel sounds. (Tr. 18.) In addition, the ALJ stated:
(Tr. 20.) The ALJ added:
(Tr. 21.)
As shown above, the ALJ provided adequate reasons for his credibility determination. Moreover, these reasons are supported by substantial evidence. (See, e.g., Tr. 337 (noting that as of October 12, 2010, Plaintiff had no abdominal pain, she was taking her medication only once a day after stopping it for two weeks, and had been taking Motrin for abdominal pain for weeks; Plaintiff was also prescribed Prednisone, which she did not take, as of August 30, 2012); Tr. 444 (noting a referral for a consult for history of ringworm) & 481 (noting no show on January 22, 2013); Tr. 183 (earnings of $1,798.56 and $2,612.83 for 2010 and 2011, respectively, indicating part-time employment); Tr. 37-38, 192, & 218 (listing Plaintiff's employment history).)
Because the Court finds that the ALJ's credibility determination and RFC assessment are supported by substantial evidence, Plaintiff's argument that the ALJ improperly relied on the testimony of the VE because his hypothetical question allegedly failed to adequately reflect all of Plaintiff's limitations, also fails. The ALJ was not required to include in the hypothetical question any limitations or opinions that he properly rejected. See Crawford, 363 F.3d at 1161 (stating that the ALJ is not required to include findings in the hypothetical question that the ALJ has properly rejected as unsupported by the record). Thus, to the extent Plaintiff argues that the hypothetical question was inconsistent with Dr. Borghei's opinions and Plaintiff's testimony, the ALJ was not required to include opinions or statements that he had properly rejected.
Plaintiff also argues that the ALJ erred when he did not ask the VE whether there could be an issue with Plaintiff's employment if the need to take breaks is truly unscheduled and cannot be included in the 15- or 30-minute scheduled breaks. Plaintiff does not explain why her counsel did not seek clarification on this issue during the administrative hearing or soon after the hearing when the record remained open. Nevertheless, the VE testified that there is typically a break every two hours, i.e., a morning break, a lunch break, and an afternoon break. (Tr. 50.) The ALJ determined that Plaintiff would need a break every two hours, not every hour as stated in hypothetical question number three. (Tr. 51.) To the extent Plaintiff argues that she needs more frequent breaks based on Dr. Borghei's opinions or her own subjective complaints, the ALJ found that these opinions and statements are not supported by the record, and his finding is supported by substantial evidence.
Plaintiff further argues that the ALJ failed to include in the hypothetical question his own finding that Plaintiff had moderate difficulties in concentration, persistence, or pace because he failed to ask how occasional difficulties with concentration, attention, and task persistence would affect the job base. This argument also lacks merit. In Winschel v. Commissioner of Social Security, 631 F.3d 1176 (11th Cir. 2011), the Eleventh Circuit held that moderate limitations in concentration, persistence, and pace must be considered in assessing a claimant's RFC. Id. at 1180-81. However, the court also held that if the medical evidence demonstrates that the claimant "can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace," the ALJ properly accounts for these limitations if he includes unskilled work in his hypothetical questions and RFC assessment. Id. at 1180.
Here, as part of his evaluation of Plaintiff's mental impairments, the ALJ assessed moderate limitations in Plaintiff's concentration, persistence, or pace (Tr. 15), and then found that Plaintiff had the RFC to perform a reduced range of sedentary work, limited to, inter alia, "simple, routine and repetitive tasks" and "low stress work, meaning that the claimant could not perform jobs with strict time frames in which tasks must be completed" (Tr. 16).
Accordingly, it is
1. The Commissioner's decision is
2. The Clerk of Court is directed to enter judgment consistent with this Order and close the file.
