GARY R. JONES, Magistrate Judge.
Plaintiff appeals to this Court from a final decision of the Commissioner of Social Security (the "Commissioner") denying Plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). ECF No. 1. The Commissioner has answered, and both parties have filed briefs outlining their respective positions. ECF Nos. 6, 9, 12. For the reasons discussed below, the undersigned recommends that the Commissioner's decision be
Plaintiff protectively filed an application for DIB and SSI benefits on August 25, 2011, alleging disability beginning September 1, 2010. R. 57, 232-44. His claim was denied initially and upon reconsideration. At Plaintiff's request, a hearing was held before an Administrative Law Judge ("ALJ"), on July 30, 2013, at which Plaintiff, his girlfriend, and a vocational expert (VE) testified. R. 54-77. The ALJ issued an unfavorable decision on August 6, 2013; the Appeals Council denied review. R. 34-48, 9-14.
This appeal followed. Plaintiff raises two issues for review: (1) Whether substantial evidence supports the ALJ's assessment of the medical opinion evidence; and (2) Whether the ALJ correctly applied controlling Eleventh Circuit law in assessing Plaintiff's credibility. ECF No. 9.
The Commissioner's findings of fact are conclusive if supported by substantial evidence.
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.
The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than twelve months.
The ALJ must follow five steps in evaluating a claim of disability.
The burden of proof regarding the plaintiff's inability to perform past relevant work initially lies with the plaintiff.
However, the ALJ should not exclusively rely on the Grids when "the claimant has a non-exertional impairment which significantly limits his or her basic work skills or when the claimant cannot perform a full range of employment at the appropriate level of exertion."
The ALJ may use the Grids as a framework to evaluate vocational factors so long as he introduces independent evidence of the existence of jobs in the national economy that the claimant can perform.
The ALJ determined that Plaintiff has the severe impairments of substance addiction disorders (cocaine and ETOH dependence) and schizophrenia. Plaintiff does not have an impairment or combination of impairments that meets or equals the listings. In assessing the severity of Plaintiff's mental impairments, the ALJ considered the "paragraph B" criteria and found that Plaintiff has no restriction in activities of daily living, moderate difficulties in social function, mild difficulties in concentration, persistence, or pace, and no episodes of decompensation. Therefore, the "paragraph B" criteria were not satisfied. The ALJ found that the "paragraph C" criteria were not satisfied. Based on the degree of limitation found in the "paragraph B" mental function analysis, the ALJ determined that Plaintiff has the RFC to perform a full range of work at all exertional levels, with the following nonexertional limitations: simple, routine, and repetitive tasks; he can relate adequately to supervisors; he is limited to only occasional contact with co-workers and the general public; and he can deal with changes in the work setting. The ALJ determined that Plaintiff's statements expressing greater limitations were not entirely credible because of evidence in the record relating to employment after the alleged onset date, because of Plaintiff's significant history of legal trouble, and because Plaintiff's subjective complaints were not supported by the medical records. Relying on the testimony of a VE, the ALJ found that for a person with Plaintiff's age, education, work experience, and RFC, there are jobs that exist in substantial numbers in the national economy that Plaintiff can perform, such as: marker; cleaner/housekeeping; and routing clerk. The ALJ therefore found that Plaintiff was not disabled. R. 37-48.
William Beaty, Ph.D, performed a consultative psychological evaluation of Plaintiff in October 2011,
Plaintiff reported that he had abstained from drugs and alcohol for the past 60 days, but Dr. Beaty reported that a clinic note from Meridian dated 10/3/11 evidenced Plaintiff was drinking a half case of beer daily and last used cocaine three weeks previously. Plaintiff stated that he believed his depression was due to his substance abuse and not being able to find work. Plaintiff described being able to care for his personal needs, do some shopping with his fiancé, attend church, and do some laundry and yard work. R. 349-51.
Dr. Beaty diagnosed Plaintiff with schizoaffective disorder, alcohol and cocaine abuse in remission, and antisocial personality disorder. Based on Plaintiff's statements regarding his ability to do work-related tasks, Dr. Beaty reported that Plaintiff could sit for 15 minutes, stand for 10 minutes, walk for 20 minutes, and lift and carry only 5-10 pounds. The only work-related task directly observed by Dr. Beaty was that Plaintiff changed position frequently while sitting. Dr. Beaty noted no deficits in Plaintiff's hearing, vision, and speech. Plaintiff reported that his mind wanders, he is forgetful, and he is easily distracted. Plaintiff interacts most easily with family and others well-known to him, and avoids strangers and public crowds. R. 351.
In November 2011, Lance Chodosh, M.D., completed a consultative examination of Plaintiff. Plaintiff reported a history of chronic low back and neck pain following a motor vehicle accident. Plaintiff stated that his legs jump and twitch and that he suffers from nocturnal leg cramps. He reported a history of substance abuse, in remission for two months. Plaintiff said he had auditory hallucinations and a history of incarceration. Plaintiff stated that he last worked as a cook in September 2010, and had previously worked as a concrete finisher, construction worker, and pipe layer. Plaintiff reported that he is able independently to perform activities of daily living but must sit at times when showering because of leg pain. He cannot walk more than ½ block or stand continuously for more than 10 minutes, and he must change positions frequently when sitting. He stated he cannot squat completely and can only occasionally bend at the waist. He stated that he cannot lift more than 15 pounds or drive further than short distances. Plaintiff also reported a history of lumbar spine surgery and treatment for left shoulder separation. Dr. Chodosh observed that Plaintiff appeared healthy, was fully oriented, had normal speech pattern, and normal affect. Plaintiff was cooperative and displayed minimal pain behavior and normal systems, with the exception of some very minor decreased motion of his shoulders, toes, and hips. Plaintiff could not walk on his toes and indicated that he could not squat and rise completely, though no attempt was made. R. 360-68.
Dr. Chodosh diagnosed Plaintiff with psychiatric illness, including alcohol and substance abuse, reportedly in remission, chronic back pain, and moderate obesity. Dr. Chodosh concluded that Plaintiff could stand, walk, sit, bend over at the waist, kneel, lift, carry and handle objects and could probably squat occasionally. He also concluded that Plaintiff could see, speak, and hear normally. R. 368.
Linda Skalsky, ARNP, provided mental health care to Plaintiff from September 2010 through June 2013. Ms. Skalsky completed a mental impairment questionnaire in July 2013. She noted that Plaintiff missed appointments and was discharged before resuming services in June. Plaintiff had ongoing psychosis, anxiety, and panic episodes. She observed that his medication side effects included drowsiness and lethargy. R. 459. On a checklist, she identified the following signs and symptoms: decreased energy, blunt/flat/inappropriate affect, generalized persistent anxiety, mood disturbance, difficulty thinking or concentrating, paranoid thinking or inappropriate suspiciousness, perceptual or thinking disturbances, and hallucinations or delusions. R. 460. Ms. Skalsky concluded Plaintiff had moderate restrictions of activities of daily living, marked difficulties in social functioning, marked deficiencies of concentration, persistence, or pace, and three repeated episodes of decompensation, each of at least two weeks duration, within a 12-month period. R. 461. Ms. Skalsky concluded Plaintiff had a medically documented history of a chronic organic mental, schizophrenic, or affective disorder of at least two years' duration causing more than a minimal limitation of ability to do any basic work activity with a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate. R. 462. Ms. Skalsky responded "unknown" regarding whether Plaintiff was a malingerer and opined that he could manage any benefits in his own best interests. R. 462.
In June 2013, state agency medical consultants Dorothy Holmes, Ph.D., and Maxine Ruddock, Ph.D., reviewed Plaintiff's medical records and concluded that his psychiatric problems did not cause more than a "moderate" functional limitation. R. 101-105, 114-115 117-119.
Plaintiff testified that he has not worked since September 2010. He testified that he hears voices "mostly all the time" and sometimes sees things that aren't there. He was never fired from a job because of that. He does not like to be around crowds. In a typical day, he gets up, walks his dog, and watches television. He does not have problems following a program but loses interest after about 30 minutes. He does some sweeping but does not cook because he has trouble seeing the directions. Plaintiff's fiancé does the housework. Plaintiff calls friends if he needs a ride somewhere. He sometimes goes grocery shopping. He has a short memory. He sleeps "pretty good" since being on medication, but wakes up at 2:00 or 3:00 a.m. He does not nap a lot. R. 56-64.
On questioning by his representative, Plaintiff testified that he takes medication for bipolar and schizophrenia. He testified that his condition is not getting better. His medication has been increased to help him rest at night. Plaintiff testified that his medications cause sleepiness and fatigue. He couldn't describe his energy level, but stated it was different now than it used to be. He still has anxiety, and has good days and bad days with staying on task. He denied an ability to stay focused during a workday. R. 64-67.
Plaintiff's fiancé, Vickie Salley, testified that she has known Plaintiff for eight years. She testified that his emotions have decreased and he doesn't really have emotions anymore. Ms. Salley testified that Plaintiff used to be physically violent. She reminds him to do things because he is not independent anymore, such as changing his shirt and socks. Plaintiff is paranoid and has no energy. He lays down a lot during the day. He does not have friends or social activities. In her opinion, Plaintiff could not stay focused to work an eight-hour day. He likes to stay in the bed. R. 68-73.
The VE testified that a person of Plaintiff's age, education, and past work experience, with no physical limitations, but with the nonexertional limitations identified in the ALJ's RFC, could not return to Plaintiff's past work in construction. There are other jobs such a person could perform, including the light, unskilled jobs of marker, cleaner/housekeeping, and routing clerk. R. 74-75.
Plaintiff first contends that substantial evidence does not support the ALJ's decision, which he claims improperly ignored the observations and diagnosis of the consulting psychologist, Dr. Beaty, and Plaintiff's treating ARNP Linda Skalsky. ECF No. 9 at 11.
It is well-established that substantial or considerable weight must be given to the opinion, diagnosis and medical evidence of a treating physician unless "good cause" is shown to the contrary.
While there is no requirement for the ALJ to discuss every medical record in the administrative record, he is "required to state with particularity the weight he gave the different medical opinions and the reasons therefor."
With respect to Dr. Beaty's consultative examination, the ALJ determined that "little weight" should be afforded to his conclusions regarding Plaintiff's functional limitations because they were based almost entirely on Plaintiff's subjective reports. The work-related limitations noted by Dr. Beaty were largely based on Plaintiff's alleged physical impairments (back and leg problems), which are not at issue in this appeal. See R. 351. To the extent that Dr. Beaty identified nonexertional limitations in concentration, persistence, pace, and social functioning, the ALJ addressed such limitations in formulating the RFC, which limits Plaintiff to simple, routine, and repetitive tasks, and which provides for restrictions in social contact. On this record, the Court finds that the ALJ's decision to afford "little weight" to the other functional limitations identified by Dr. Beaty is supported by substantial evidence.
With respect to the opinion of ARNP Skalsky, as the Commissioner points out under the Social Security regulations, a nurse practitioner (ARNP) does not qualify as an "acceptable medical source," 20 C.F.R. § 404.1513(a), and cannot establish the existence of a medically determinable impairment. See SSR 06-03p. However, Social Security Ruling 06-03p further points out that "[w]ith the growth of managed health care in recent years and the emphasis on containing medical costs," medical sources, such as licensed clinical social workers, "have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists." SSR 06-03p. Therefore,"[o]pinions from these medical sources, who are not technically deemed `acceptable medical sources' under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file." Id.
In this case, the ALJ afforded "no weight" to ARNP Skalsky's opinion finding moderate restrictions of ADL's and marked difficulties in social functioning and concentration, persistence, or pace. R. 45. The ALJ carefully articulated his reasons for assigning the opinion no weight: (1) the opinion is not from an acceptable medical source and cannot establish the existence of a medically determinable impairment; (2) the opinion is not supported by Plaintiff's treatment records which reflect no complaints of medication side effects and reflect that Plaintiff reported having good energy, and Plaintiff's statements that he independently performed ADL's;
(3) ARNP Skalsky's questionnaire is internally inconsistent because despite finding marked difficulties in concentration, persistence, or pace, and repeated episodes of decompensation, she opined that Plaintiff could manage his own finances; and (4) ARNP Skalsky's questionnaire fails to address Plaintiff's history of drug and alcohol abuse and fails to discuss his failure to comply with treatment. Id.
The ALJ's decision is supported by substantial evidence in the record. For example, Meridian outpatient progress notes in January 2012 show that Plaintiff had identified a list of "coping skills" to deal with depression and anxiety, which included reading, basketball, watching TV, and talking with family and church members. Plaintiff reported that he was playing basketball twice a week and walking his dogs daily, and that he listened to jazz music 3-4 times a week. R. 441. The notes of Plaintiff's participation in outpatient group therapy over a period of many weeks generally reflect that he was an active participant, gave good feedback during the group, and he described himself as "determined and a hard worker" and a "spiritual and positive person." R. 437-38. One note states that Plaintiff "continues to shine in group — proactive with his comments." R. 436. ARNP Skalsky's objective assessment in her clinic notes in February 2012 show that Plaintiff had good ADL's, appropriate manner, normal speech, grossly intact cognition, and logical and organized thought processes. R. 433; see also R. 424 (September 2012 notes); R. 420 (February 2013 notes). Plaintiff complained of ongoing symptoms of paranoia, hallucinations, anxiety, and depression, according to June 2013 medication management notes, but ARNP Skalsky noted that Plaintiff was experiencing "recent severe stressful events/problems," ordered a change in medication, and assessed only moderate difficulties in social or occupational functioning. R. 416.
The record thus reflects that the ALJ specifically stated the weight afforded to the ARNP Skalsky's opinion and then articulated detailed reasons for affording the opinion no weight. Those reasons are supported by the clinic notes. On this record, the Court finds that the ALJ's rejection of ARNP Skalsky's assessment of Plaintiff's mental functional limitations is supported by substantial evidence.
Plaintiff's second issue asserts that the ALJ's credibility assessment violates the Eleventh Circuit's pain standard. ECF No. 9 at 20.
A claimant may establish his disability through his own testimony of pain or other subjective symptoms. See Dyer v. Barnhart, 395 F.3d 1206, 1210 (11
If the record shows that the claimant has a medically-determinable impairment that could reasonably be expected to produce his symptoms, the ALJ must evaluate the intensity and persistence of the symptoms in determining how they limit the claimant's capacity for work. 20 C.F.R. § 404.1529(c)(1). In doing so, the ALJ considers all of the record, including the objective medical evidence, the claimant's history, and statements of the claimant and his doctors. Id. § 404.1529(c)(1)-(2). The ALJ may consider other factors, such as: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms; (3) any precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of the claimant's medication; (5) any treatment other than medication; (6) any measures the claimant used to relieve his pain or symptoms; and (7) other factors concerning the claimant's functional limitations and restrictions due to his pain or symptoms. Id. § 404.1529(c)(3). The ALJ then will examine the claimant's statements regarding his symptoms in relation to all other evidence, and consider whether there are any inconsistencies or conflicts between those statements and the record. Id. § 404.1529(c)(4).
If the ALJ decides not to credit the claimant's testimony as to his subjective symptoms, the ALJ must articulate explicit and adequate reasons for doing so or the record must be obvious as to the credibility finding. See Foote, 67 F.3d at 1561-62. While the ALJ does not have to cite particular phrases or formulations, broad findings that a claimant was incredible and could work are, alone, insufficient for the Court to conclude that the ALJ considered the claimant's medical condition as a whole. Id. at 1562. The ALJ's articulated reasons must also be supported by substantial evidence. Jones v. Dep't of Health & Human Servs., 941 F.2d 1529, 1532 (11th Cir.1991). The Court will not disturb a properly articulated credibility finding that is supported by substantial evidence. Foote, 67 F.3d at 1562. The failure to articulate reasons for discrediting a claimant's subjective testimony, however, requires that the testimony be accepted as true and becomes grounds for remand where credibility is critical to the outcome of the case. Id.
In this case, the ALJ applied the correct pain standard and found that while Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Plaintiff's statements concerning the limiting effects of such symptoms were not entirely credible. R. 42. The ALJ then articulated reasons for this conclusion. The ALJ's determination that Plaintiff complaints of disabling symptoms were not credible was based largely on Plaintiff's history, which is a factor that may be considered. 20 C.F.R. § 404.1529(c)(1)-(2). The ALJ noted that Plaintiff had a consistent work history until 2010, when he stopped working and began collecting unemployment benefits which required verification that Plaintiff was willing, able, and ready to work. In January 2012, Plaintiff missed a group therapy session because he was working. R. 444. The ALJ pointed to Plaintiff's extensive history of legal problems, as well as his dishonorable discharge from the Army, in concluding that Plaintiff's honesty was questionable. For these reasons, the ALJ concluded that the objective evidence of record should be relied on more heavily than Plaintiff's statements. R. 43.
As the ALJ then carefully explained, the medical evidence of record as a whole did not reveal significant functional limitations that would prevent Plaintiff from performing work at all exertional levels with the limitations included in the RFC. R. 42-46. Although Plaintiff challenges the ALJ's credibility determination, he does not point to evidence in the record that undermines this conclusion. The evidence of record therefore provides substantial evidence to support the ALJ's finding that Plaintiff allegations of disabling limitations were not credible. See Werner v. Comm'r of Soc. Sec., 421 F. App'x 935, 939 (11th Cir. 2011) ("The question is not . . . whether the ALJ could have reasonably credited [claimant's] testimony, but whether the ALJ was clearly wrong to discredit it.").
In view of the foregoing, it is respectfully
