MONTE C. RICHARDSON, Magistrate Judge.
Plaintiff appealed the denial to this Court, and upon the Commissioner's unopposed motion for remand, the case was remanded on May 29, 2012. (Tr. 605-11.) The Appeals Council vacated the ALJ's decision and remanded the case to the ALJ for further proceedings. (Tr. 612-16.) The ALJ held a supplemental hearing on August 26, 2014. (Tr. 481-549.) By a decision dated October 23, 2014, the ALJ found Plaintiff not disabled since December 16, 2008. (Tr. 451-80.) Plaintiff has exhausted her available administrative remedies and is appealing the Commissioner's decision that she was not disabled since December 16, 2008. The undersigned has reviewed the record, the briefs, and the applicable law. For the reasons stated herein, the undersigned respectfully
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 issues on appeal: (1) that the ALJ failed to consider the July 24, 2014 opinion from her mental health counselor, Sophia Mas, and (2) that the ALJ failed to apply the correct legal standards to the medical opinions of record.
On July 24, 2014, Ms. Mas completed a questionnaire, which is attached to Plaintiff's brief and is not a part of the administrative record. (Doc. 16-1 at 2-3.) In the questionnaire, Ms. Mas opined that Plaintiff had a depressive syndrome, a manic syndrome, a bipolar syndrome, generalized persistent anxiety, and recurrent severe panic attacks. (Id.) In addition, Ms. Mas opined that Plaintiff had: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence or pace; marked limitations in the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; marked limitations in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; marked limitations in the ability to interact appropriately with the public; and repeated episodes of decompensation each of extended duration. (Id.) She also opined that Plaintiff's impairments and limitations would exist even if Plaintiff completely abstained from substance abuse and would be expected to last or had lasted for at least twelve continuous months, precluding Plaintiff from performing any work activity on a reliable and sustained basis eight hours per day, five days per week. (Id.)
On August 25, 2014, the day before the supplemental hearing with the ALJ, Plaintiff's counsel submitted this questionnaire to ODAR. (Doc. 16-2.) However, at the August 26, 2014 hearing, the ALJ did not have this questionnaire or any of the other updated records that Plaintiff submitted from Flagler County Free Clinic, Stewart-Marchman-Act Behavioral Health Care ("Stewart-Marchman-Act"), and Florida Hospital Flagler. (Tr. 485-87, 524.) The ALJ left the record open for seven days to give Plaintiff an opportunity to resubmit these records. (Tr. 488.) On August 28, 2014, Plaintiff's counsel resubmitted Ms. Mas's July 24, 2014 questionnaire to ODAR. (Doc. 16-3.) Nevertheless, the questionnaire did not become a part of the administrative record and there is no indication that the ALJ considered it before rendering a decision on October 23, 2014.
Plaintiff argues that this case should be remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g), because the "ALJ indisputably failed to consider Ms. Mas's opinion." (Doc. 16 at 17.) Defendant responds that the standard for a sentence six remand should apply because the evidence was not considered by the Commissioner or included in the administrative record. Defendant argues that regardless of which standard is used, a remand is not warranted in this case because Ms. Mas's opinion is not material in that it is not likely to change the administrative result. Defendant points out that because Ms. Mas is not an acceptable medical source, the ALJ would not be required to explicitly consider or assign weight to her opinion, that Ms. Mas has failed to provide any support for or explanation of her opinions in the questionnaire in which she merely checked or circled answers on a form, that her opinion does not appear to be based on any evidence that was not before the ALJ, and that her opinion is inconsistent with the record evidence.
The undersigned agrees with Defendant that the standard for a sentence six remand should apply because Ms. Mas's questionnaire was not considered by the Commissioner or included in the administrative record. See Timmons v. Comm'r of Soc. Sec., 522 F. App'x 897, 903 (11th Cir. July 9, 2013) ("[B]ecause the Appeals Council failed to refer to Timmons's three additional letters in its decision and did not include them in the certified administrative record, those letters should be considered evidence submitted for the first time to the district court under sentence six of § 405(g)."); Milano v. Bowen, 809 F.2d 763, 766-67 (11th Cir. 1987) (treating the evidence submitted to the Appeals Council out of time as if it had been first presented to the district court and determining that the case should be evaluated under sentence six); see also Cummings v. Comm'r of Soc. Sec., 165 F. App'x 809, 812 (11th Cir. Feb. 3, 2006). Under this standard:
Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986).
Assuming that Ms. Mas's questionnaire is new, noncumulative evidence and that there was good cause for the failure to incorporate this evidence into the administrative record, the undersigned agrees with Defendant that the evidence is not material because there is no reasonable possibility that it would change the administrative result. As an initial matter, the evidence reflects the opinion of a mental health counselor who is not considered an acceptable medical source, but rather an "other source." See 20 C.F.R. §§ 416.913(a), (d). Thus, the ALJ would not be required to assign and explain the weight given to Ms. Mas's questionnaire. McMahon v. Comm'r, Soc. Sec. Admin., 583 F. App'x 886, 892 (11th Cir. Sept. 24, 2014) (per curiam); Voronova v. Astrue, 2012 WL 2384414, *2 (M.D. Fla. May 7, 2012) (report and recommendation adopted by 2012 WL 2384044 (M.D. Fla. June 25, 2012)) ("Although the Eleventh Circuit has made clear that the ALJ has a duty to `state with particularity the weight given to different medical opinions and the reasons therefor,' . . . Plaintiff has cited no case and the Court has found none, indicating that this duty pertains to opinions from a non-acceptable medical source[.]").
Although the ALJ may consider the questionnaire in determining the severity (rather than the existence) of Plaintiff's impairments and how it affects her ability to work, McMahon, 583 F. App'x at 892, 20 C.F.R. § 416.913(d), there is no reasonable possibility that it would change the administrative result because Ms. Mas merely checked boxes without providing support for her opinion. See Hammersley v. Astrue, 2009 WL 3053707, *6 (M.D. Fla. Sept. 18, 2009) ("[C]ourts have found that check-off forms . . . have limited probative value because they are conclusory and provide little narrative or insight into the reasons behind the conclusions.") (citing, inter alia, Spencer ex rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985)). Also, to the extent Ms. Mas opined that Plaintiff would be precluded from performing any work activity on a reliable and sustained basis eight hours per day, five days per week, her opinion would not be entitled to any special weight because it is on an issue reserved for the Commissioner. See 20 C.F.R. § 416.927(d).
Moreover, Ms. Mas's opinion in the questionnaire appears inconsistent with substantial evidence in the record on which the ALJ relied. The ALJ found that Plaintiff had several severe impairments, including depression, anxiety, and a history of substance abuse. (Tr. 454.) The ALJ further found that Plaintiff had the residual functional capacity ("RFC") to perform a reduced range of light work with the following mental limitations:
(Tr. 456.)
The ALJ found that the record did not support more severe mental limitations given that Plaintiff's mental health examinations were generally normal, her mental health treatment was limited, she had a history of noncompliance with treatment recommendations, she had not required inpatient psychiatric care or prolonged psychiatric counseling (in fact, on many of the isolated episodes of hospitalizations, she was non-compliant with treatment and had increased symptoms when drinking large amounts of alcohol), her mental impairments were found to be non-severe by a State agency psychological consultant, and she was able to watch television, read Christian books, shop with a neighbor, use public transportation, and do some household chores. (Tr. 463-68.) Further, the ALJ found that the record did not support a marked limitation in Plaintiff's ability to interact with others (Tr. 465), because Plaintiff reported she got along well with authority figures, she had never been fired from a job due to interpersonal problems, she had not had problems getting along with family, friends and/or neighbors, she had demonstrated an ability to interact effectively at her doctor's visits and hospitalizations, and she had even been able to purchase benzodiazepines off the street, which required some level of social interaction (Tr. 179, 210, 342, 387, 850).
There is substantial evidence in the record to support the ALJ's conclusions. Despite her depressed and/or anxious mood, Plaintiff's mental health examinations were generally normal, her treatment was relatively limited, she had no psychiatric hospitalizations, she was frequently non-compliant with treatment recommendations, and there was evidence of alcohol/substance abuse exacerbating her symptoms.
Also, in an April 13, 2009 Psychiatric Review Technique, Dr. Robin M. Johnson, a State agency consultant, found Plaintiff's mental impairments were not severe. (Tr. 318.) In addition, during a psychological evaluation on July 9, 2011, Vivian A. Loret de Mola-Roy, Ph.D. noted that Plaintiff was alert and oriented to the four spheres, her mood was neutral and her affect was consistent with her mood, her judgment and insight were adequate, her abstract thinking was good, and there was no evidence of a thought disorder or of any other psychotic process. (Tr. 1103.) Further, Plaintiff reported she was able to watch television, read books, shop with a neighbor, use public transportation, and do some household chores. (Tr. 292, 528-29, 1102.)
In addition, as Defendant points out, Ms. Mas's opinion in the questionnaire does not appear to be based on any evidence that was not before the ALJ. See Harrison v. Comm'r of Soc. Sec., 569 F. App'x 874, 880-81 (11th Cir. June 24, 2014) (rejecting a claimant's argument that remand was warranted for consideration of additional evidence submitted to the Appeals Council because, inter alia, the additional records appeared to be cumulative with previous treatment notes that the ALJ had already considered). For example, on February 26, 2014, Ms. Mas stated:
(Tr. 1392.) Ms. Mas stated further:
(Tr. 1397.)
The ALJ had access to these and other records from Stewart-Marchman-Act (see, e.g., Tr. 1407), but nevertheless decided that Plaintiff was not as limited as these records suggest. As shown earlier, substantial evidence in the record supports the ALJ's decision. Therefore, Plaintiff has not shown a reasonable possibility that Ms. Mas's opinion in the questionnaire would change the administrative result.
Plaintiff's second argument is that the ALJ failed to apply the correct legal standards to the opinions of Dr. Verones and Ms. Mas. Specifically, Plaintiff argues that the ALJ failed to state with particularity the weight accorded to Dr. Verones's March 26, 2009 consultative opinion, and his reasons for apparently rejecting the opinion were not sufficient or supported by substantial evidence. With respect to Ms. Mas, Plaintiff argues that the ALJ failed to state and explain the weight he gave to her February 26, 2014 opinion.
With respect to Ms. Mas's opinion, as stated earlier, the ALJ was not required to assign and explain the weight given to the opinion of a non-acceptable medical source. As stated earlier, the ALJ considered the totality of the evidence, including the February 26, 2014 records from Stewart-Marchman-Act and decided that Plaintiff was not as limited as these records suggest. Substantial evidence in the record supports the ALJ's decision.
Further, the ALJ's consideration of Dr. Verones's opinion does not warrant a remand. Dr. Verones performed a psychological evaluation of Plaintiff on March 26, 2009. (Tr. 290-93.) Dr. Verones did not observe any unusual behaviors. (Tr. 290.) Dr. Verones noted that Plaintiff "served as the informant, and the information provided appeared to be sketchy." (Id.) Under "Mental Status Findings," Dr. Verones stated:
(Tr. 291-92.)
Dr. Verones also stated:
(Tr. 292-93.)
The ALJ discussed Dr. Verones's opinions and stated:
(Tr. 464-65.)
Although the ALJ did not explicitly state the weight accorded to Dr. Verones's opinion, the ALJ provided specific reasons supported by substantial evidence for his apparent rejection of that opinion.
To the extent Plaintiff argues that the ALJ's reasons for the apparent rejection of Dr. Verones's opinion are insufficient, it appears that Plaintiff is asking the Court to re-weigh the evidence. However, the Court does not re-weigh the evidence, make independent factual determinations, or substitute its decision for that of the ALJ. Thus, the question is not whether the Court would have arrived at the same decision on de novo review; rather, the Court's review is limited to determining whether the ALJ's findings are based on correct legal standards and are supported by substantial evidence. Based on the foregoing, the undersigned recommends that the ALJ's rejection of Dr. Verones's opinion is supported by substantial evidence and the ALJ's failure to explicitly state the weight given to this opinion is at most a harmless error.
Accordingly, it is respectfully
1. The Commissioner's decision be
2. The Clerk of Court be directed to enter judgment accordingly and close the file.
