CAROL MIRANDO, Magistrate Judge.
Plaintiff Gilda E. Rivero seeks judicial review of the denial of her claims for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") by the Commissioner of the Social Security Administration ("Commissioner"). The Court has reviewed the record, the briefs and the applicable law. For the reasons discussed herein, the decision of the Commissioner is
Plaintiff raises three issues on appeal:
Plaintiff filed her applications for DIB on May 10, 2012 and SSI on May 18, 2012, alleging her disability began November 12, 2010
Tr. 20. Next, at step four, the ALJ found Plaintiff was unable to perform any past relevant work. Tr. 26. Relying on the testimony of the vocational expert ("VE"), the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. Tr. 27-28. As a result, she found Plaintiff was not disabled. Tr. 28.
The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).
The Eleventh Circuit has restated that "[i]n determining whether substantial evidence supports a decision, we give great deference to the ALJ's fact findings." Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citation omitted). 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 or found that the preponderance of the evidence is 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); see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings). The Court reviews the Commissioner's conclusions of law under a de novo standard of review. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
The ALJ found Plaintiff's major depressive disorder, depressive order not otherwise specified ("NOS"), bipolar disorder, mood disorder NOS, generalized anxiety disorder, panic disorders with or without acrophobia, alcohol dependence and poly-substance abuse disorder are severe impairments. Tr. 15. Next, the ALJ considered whether Plaintiff's mental impairments meet any listings and decided they do not. Tr. 17-19. In support, the ALJ considered four broad functional areas known as the "paragraph B" criteria.
Id.
In assessing Plaintiff's RFC, the ALJ further considered various assessments of Plaintiff's mental RFC, including those of the state agency's psychologists, Michelle Butler, Psy.D and James L. Meyers, Psy.D. Tr. 25-26, 99-103, 114-18. The ALJ discussed:
Tr. 25-26.
Based on the assessments of Drs. Butler and Meyers, Plaintiff argues the ALJ should have found that she has marked limitations in concentration, persistence and pace and social functioning. Doc. 23 at 16-18. Plaintiff asserts these findings would have led to the ALJ's determination that her anxiety disorder meets Listing 12.06. Id. The Commissioner responds the assessments of Drs. Butler and Meyers do not support Plaintiff's arguments, and substantial evidence supports the ALJ's evaluation of Plaintiff's mental impairments. Doc. 27 at 22-26.
A claimant's mental impairment satisfies Listing 12.06 if the requirements in both paragraphs A and B or in both paragraphs A and C are satisfied. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06. Paragraph A contains the types of symptoms a claimant must show. Id., § 12.06A. Paragraph B requires a claimant to demonstrate at least two of the following:
Id. § 12.06B. The burden of establishing that a claimant's impairments meet or equal a listing rests with the claimant, who must produce specific medical findings that satisfy all the criteria of a particular listing. 20 C.F.R. § 404.1520(a)(4). If a plaintiff contends that an impairment meets a listing, as she does here, she bears the burden of "present[ing] specific medical findings that meet the various tests listed under the description of the applicable impairment." Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987).
Here, Plaintiff does not meet her burden to present appropriate medical evidence. See id.; 20 C.F.R. § 404.1520(a)(4). She relies on the assessments of Drs. Butler and Meyers to argue her mental impairments satisfy the paragraph B criteria. Doc. 23 at 17-18. In contrast, the doctors did not find Plaintiff's mental impairments satisfy the paragraph B criteria or meet any listings. Tr. 99-100, 114-15. As the ALJ correctly noted, Drs. Butler and Meyers found Plaintiff has mild restrictions in activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace and no repeated episodes of decompensation, each of extended duration. Tr. 25, 100, 115. Thus, the doctors concluded Plaintiff's mental impairments do not satisfy the paragraph B criteria or meet any listings consistent with the ALJ's findings. Tr. 19, 99-100, 114-15. Plaintiff also presents the general history of her absences from work, but does not submit any medical findings establishing a medical necessity for this pattern of absences. Doc. 23 at 18; see Wilkinson, 847 F.2d at 662.
Next, Plaintiff claims the ALJ erred by finding her severe anxiety disorder and panic disorder with acrophobia do not meet the paragraph A criteria because she lacks an ability to appropriately deal with public. Doc. 23 at 18-19. The Commissioner responds substantial evidence supports the ALJ's findings. Doc. 27 at 22-26.
As the ALJ correctly discussed, paragraph A requires medical documents demonstrating certain symptoms or signs. Tr. 18; 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06A. To rebut the ALJ's findings, Plaintiff presents the opinions of Maribel Aguilera, M.D., dated January 16, 2013 and Wayne Meddock, LMHC, a clinical director at SalusCare, Inc. Doc. 23 at 19; Tr. 621-26, 804-11. The ALJ already discussed and analyzed these opinions:
Tr. 17-18.
The ALJ properly accorded little weight to Dr. Aguilera's assessment because her opinion was inconsistent with her own treatment notes. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (finding good cause to discount the weight accorded to a treating physician's opinion if the opinion is inconsistent with the doctor's own medical records). The ALJ also correctly gave little weight to Mr. Meddock's assessment because, as a mental health counselor, he is not a licensed physician or psychologist and thus is not an acceptable medical source under the regulations. Farnsworth v. Soc. Sec. Admin., 636 F. App'x 776, 783-84 (11th Cir. 2016) (citing 20 C.F.R. §§ 404.1513(a), 416.913(a)) ("While the ALJ was required to consider the opinions of . . . other medical sources, the ALJ was not required to give their opinions controlling weight over the opinions of acceptable medical sources."). After evaluating appropriate evidence on the record, the ALJ assessed Plaintiff's anxiety disorder does not satisfy the requirements of paragraphs A and B and properly found Plaintiff's anxiety disorder does not meet Listing 12.06. Tr. 17-19. Thus, the Court finds substantial evidence supports the ALJ's findings, and Plaintiff does not present sufficient medical evidence to rebut the ALJ's findings.
In addition, Plaintiff argues the ALJ should have accounted for all of the mental RFC limitations opined by Drs. Butler and Meyers in posing her hypothetical question to the VE. Doc. 23 at 20. Here, the Court determined the ALJ properly discussed and analyzed the opinions of Drs. Butler and Meyers. Tr. 25-26. Based on her assessment of various medical evidence, the ALJ did not incorporate all of the limitations opined by the two doctors into her RFC findings. Tr. 20-26. While an ALJ's hypothetical question must take into account all of a claimant's impairments, Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002), the question need not include impairments that the ALJ has properly determined to be unsupported by the evidence in the record. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004). Accordingly, the Court finds the ALJ did not err by posing a hypothetical question to the VE that excluded certain RFC limitations opined by Drs. Butler and Meyers.
The ALJ found Plaintiff has the RFC to perform a range of medium work with certain limitations, including that "[Plaintiff] is limited to . . . work that allows the individual to be off task five percent of the workday in addition to regularly scheduled breaks." Tr. 20. The ALJ noted, "[d]ue to difficulties with concentration, persistence or pace, [Plaintiff] is limited to simple, routine, and repetitive task[s] and to work that allows the individual to be off task five percent of the workday." Tr. 26. During the hearing before the ALJ, the ALJ posed the following hypothetical to the VE:
Tr. 76 (emphasis added). The VE answered the hypothetical person would not be able to perform any past relevant work, but identified four jobs this person could perform. Tr. 76-78. The ALJ further limited her hypothetical question to a range of medium exertional work, lifting, carrying, push and pulling 50 pounds occasionally and 25 pounds frequently and sitting, standing and walking each six hours out of an eight-work work day. Tr. 78. The VE's answer did not change. Tr. 78-79. The ALJ additionally asked:
Tr. 81.
Plaintiff argues her past medical records show her frequent absences from work to attend medical appointments, demonstrating her need to be absent from work at least two and one half days per month in addition to being off task for five percent of the work day. Doc. 23 at 13. Thus, Plaintiff asserts she could not perform the jobs identified by the VE. Id. She also claims the ALJ's finding that she needs to be off task for five percent of the work day is arbitrary, and substantial evidence does not support this finding. Id. at 14-16. The Commissioner responds Plaintiff's argument erroneously assumes that being absent from work is equivalent to being off-task, and her alleged need to be absent from work at least two and one half days per month is speculation. Doc. 27 at 14-19.
The Court finds the ALJ properly limited Plaintiff's RFC to being off task five percent of the workday in addition to regularly scheduled breaks. Tr. 20. The ALJ has the responsibility of assessing a claimant's RFC at the hearing level, and such "task of determining a claimant's RFC and ability to work is within the province of the ALJ, not of doctors." Robinson v. Astrue, 365 F. App'x 993, 999 (11th Cir. 2010). The ALJ supported her RFC findings by stating, "[d]ue to difficulties with concentration, persistence or pace, [Plaintiff] is limited to simple, routine, and repetitive task[s] and to work that allows the individual to be off task five percent of the workday." Tr. 26. As noted, the ALJ fully explained her findings of moderate limitations in concentration, persistence of pace and analyzed the relevant evidence. Tr. 17-19.
To rebut the ALJ's findings, Plaintiff merges two separate limitations of being off task and being absent from work and does not provide any controlling law or specific medical evidence supporting this argument or her need to be absent from work for more than two days per month. Doc. 23 at 13-16. Her argument is based on the analysis of her general medical history, but the ALJ extensively analyzed Plaintiff's medical evidence throughout her opinion. Id.; Tr. 16-26. The Court will not re-assess this medical evidence because "when there is credible evidence on both sides of an issue it is the Secretary, acting through the ALJ, and not the court, who is charged with the duty to weigh the evidence and to determine the case accordingly." Powers v. Heckler, 738 F.2d 1151, 1152 (11th Cir. 1984) (citing Richardson, 402 U.S. at 389-409). Thus, the Court will not overturn the ALJ's decision simply because, as Plaintiff argues, the medical evidence may support a finding contrary to the ALJ's finding. Doc. 23 at 13-14. See Powers, 738 F.2d at 1152; Lacina v. Comm'r, Soc. Sec. Admin., 606 F. App'x 520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)) ("It is `solely the province of the Commissioner' to resolve conflicts in the evidence and assess the credibility of witnesses."). The Court finds the ALJ properly assessed Plaintiff's RFC, and substantial evidence supports the RFC findings.
The VE testified during the hearing that a hypothetical person with Plaintiff's RFC could perform four jobs: a marker, a router, a janitor and an assembler. Tr. 77-79. The VE further testified his opinion is consistent with the Dictionary of Occupational Titles ("DOT"), although the DOT does not address the limitations of being off-task and absent from work. Tr. 81. He stated his opinions regarding these limitations are based on his knowledge, education, training and experience. Tr. 81-82. The ALJ relied on the VE's testimony and found Plaintiff could perform the positions of marker, router, janitor and assembler. Tr. 28.
Plaintiff argues the ALJ erred by relying on the VE's testimony because although the VE's testimony varied from the DOT, the VE misinformed the ALJ that his testimony was consistent with the DOT. Doc. 23 at 21-23. The Commissioner responds the ALJ properly relied on the VE's testimony. Doc. 27 at 19-21. The Court finds the ALJ properly relied on the VE's testimony.
Under SSR 00-4p, "[w]hen a VE . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT." SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000). If there is a conflict, the ALJ is to "obtain a reasonable explanation for the apparent conflict." Id. Here, the ALJ properly asked the VE about a possible conflict between his opinion and the DOT, and the VE responded his opinion was consistent with the DOT, except two aspects, and provided reasonable explanations for those exceptions. Tr. 81-82; see id.
Even if any conflict exists between the VE's testimony and the DOT, the Eleventh Circuit has found "when the VE's testimony conflicts with the DOT, the VE's testimony `trumps' the DOT." Jones v. Apfel, 190 F.3d 1224, 1230 (11th Cir. 1999). Thus, the ALJ did not err when she exclusively relied on the VE's testimony without resolving a conflict, if any, between the VE's testimony and the DOT. See Miller v. Comm'r of Soc. Sec., 246 F. App'x 660, 662 (11th Cir. 2007) ("Even assuming that an inconsistency existed between the testimony of the [VE] and the DOT, the ALJ did not err when, without first resolving the alleged conflict, he relied on the testimony of the [VE]. Our precedent establishes that the testimony of a [VE] `trumps' an inconsistent provision of the DOT in this Circuit."); Jones v. Comm'r of Soc. Sec., 423 F. App'x 936, 939 (11th Cir. 2011) ("The ALJ was permitted to base his findings about these three jobs exclusively on the VE's testimony, irrespective of any inconsistency with the DOT, and was not required to seek further explanation.").
Next, Plaintiff argues she could not perform the jobs identified by the ALJ, arguing the Social Security Administration ("SSA") determined she was limited to jobs with a SVP
Upon review of the record, the Court concludes that the ALJ applied the proper legal standards, and the ALJ's determination that Plaintiff was not disabled is supported by substantial evidence.
ACCORDINGLY, it is hereby
1. The decision of the Commissioner is
2. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner, and close the file.
20 C.F.R. §§ 404.1567(c), 416.967(c).
