CHARLES A. STAMPELOS, Magistrate Judge.
This is a Social Security case referred to the undersigned magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration (SSA) denying Plaintiff's application Supplemental Security Income (SSI) pursuant to Title XVI of the Social Security Act. After consideration of the record, it is recommended that the decision of the Commissioner be affirmed.
On February 4, 2012, Plaintiff, Jeffrey S. Garrison, II, filed an application for SSI alleging disability beginning January 2, 2008, based on bipolar and anxiety disorder, not otherwise specified (NOS) ADHD; oppositional defiat [sic] disorder; paranoid tendencies; physchophrentic [sic] tendencies; and anxiety disorder. Tr. 24, 173, 202, 206, 243.
Plaintiff's applications were denied initially on February 15, 2013, and upon reconsideration on July 19, 2013. Tr. 24, 76, 89. On August 16, 2013, Plaintiff requested a hearing. Tr. 24, 37-65, 106. On March 17, 2014, Plaintiff's counsel requested an on the record decision, which was denied on April 14, 2014. Tr. 116-25.
On March 6, 2015, Administrative Law Judge (ALJ) M. Hart held a video hearing in which Plaintiff appeared and testified in Gainesville, Florida, and the ALJ presided over the hearing from Jacksonville, Florida. Tr. 24, 37-65. Ted D. Mitchell, an impartial vocational expert, testified during the hearing. Tr. 24, 60-64, 163 (Resume), 258 (past work summary). Elizabeth F. Stakenborg, an attorney, represented Plaintiff. Tr. 24, 90-92, 133-34. Archie Blair, a paralegal and co-representative from the same law firm of Sims and Stakenborg, represented Plaintiff at the hearing. Tr. 37, 39, 172.
On May 16, 2015, the ALJ entered a decision and denied Plaintiff's application for benefits concluding that Plaintiff has not been under a disability since February 4, 2012, the date the application was filed. Tr. 24-32.
On July 9, 2015, Plaintiff requested review of the ALJ's decision. Tr. 9. On July 31, 2015, the Appeals Council granted Plaintiff more time to submit "more evidence or a statement about the facts and the law in this case." Tr. 12. On November 18, 2016, the Appeals Council granted Plaintiff's current counsel additional time to provide additional information. Tr. 5. On January 19, 2017, the Appeals Council denied Plaintiff's request for review of the ALJ's decision making it the final decision of the Commissioner. Tr. 1-3. See 20 C.F.R. § 416.1481.
On March 17, 2017, Plaintiff filed a Complaint with the United States District Court seeking review of the ALJ's decision. ECF No. 1. The parties filed memoranda of law, ECF Nos. 18-19, which have been considered.
The ALJ made several findings:
This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g);
"In making an initial determination of disability, the examiner must consider four factors: `(1) objective medical facts or clinical findings; (2) diagnosis of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by [other observers, including family members], and (4) the claimant's age, education, and work history.'"
Pursuant to 20 C.F.R. § 416.920(a)(4)(i)-(v), the Commissioner analyzes a claim in five steps:
A positive finding at step one or a negative finding at step two results in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. Consideration is given to the assessment of the claimant's RFC and the claimant's past relevant work. If the claimant can still do past relevant work, there will be a finding that the claimant is not disabled. If the claimant carries this burden, however, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work in the national economy in light of the claimant's RFC, age, education, and work experience.
As the finder of fact, the ALJ is charged with the duty to evaluate all of the medical opinions of the record resolving conflicts that might appear. 20 C.F.R. § 416.927.
A claimant bears the burden of proving he or she is disabled, and consequently, is responsible for producing evidence in support of the claim. See 20 C.F.R. § 416.912(a);
Plaintiff argues that the ALJ should have found him disabled at step 5 of the sequential evaluation process
ECF No. 18 at 35. According to Plaintiff, the record supports only one conclusion and that is he is not "able to function in a normal manner, with regard to absenteeism and tardiness, day in and day out." Id. at 37. Plaintiff also argues the ALJ erred at step 4. Id.
The ALJ begins a discussion of Plaintiff's RFC with Plaintiff's allegations (hearing testimony) that he is disabled "for limitations resulting from his impairments." Tr. 28. Plaintiff is 23 years old as of the hearing, stands 6 feet 4 inches tall, and weighs 350 pounds. He completed the 12th grade and earned a special diploma." Id.; Tr. 40, 54, 59. Plaintiff described his living arrangements with his mother and brother and the reasons he cannot work, including having trouble waking up on time and being sleepy during the day. Tr. 28; Tr. 43. He has difficulty following orders and finishing things, and has problems being around people he does not know. He is fearful of getting attacked if he is not with people he knows. Id.; Tr. 42-44. He says he "cannot work because finishing a task is a hassle which makes him want to quit doing the task altogether. Tr. 28; Tr. 53. "He takes medication which he indicated does not help him as much as he feels it should." Tr. 28. He continues to hear voices "[o]nce in a while . . . but not all the time," "couple of times a week," and receives therapy a couple of times a year. Id.; Tr. 45-46, 55.
The ALJ summarized Plaintiff's reported daily activities, including spending time at the park playing baseball and basketball with family and friends. Tr. 28-30; Tr. 50-53.
The ALJ noted that there were records that predate the filing of the application of February 4, 2012, "which are considered for longitudinal history purposes. Subsequent medical records show overall stabilization of the claimant's symptoms and good activities of daily living with fair to good compliance with treatment (portions of 4F-Exhibits 11F)." Tr. 29. Portions of Exhibits 4F through 11F are treatment records from Sarkis Family Psychiatry (Sarkis) covering the time prior to the application filing date of February 4, 2012. See Tr. 319-58, 363-93.
The ALJ reviewed the medical evidence of record starting with patient records from Sarkis beginning November 8, 2012. Tr. 29; 347-48.
A February 14, 2013, note indicates he was working occasionally at the apartment complex for his mother, although he loses motivation for unspecified reasons. He completed his SSI application online and talked with an attorney about his claim. Tr. 29, 351. On September 3, 2013, Plaintiff reported going on vacation out-of-state (Virginia), which "went well." Tr. 29, 365. He was prescribed several medications, including Lamictal. He "was not taking meds regularly, isolating self but starting to pull out of depression." His grandparents came to stay with him for a while. Tr. 365.
On March 6, 2014, treatment records noted Plaintiff had no big rage outbursts and no little ones either; he would also go for walks and try to stay out of drama. Tr. 30, 381-82. As of November 18, 2014, Plaintiff was taking three medications, including Prozac daily. Tr. 325.
On March 19, 2013, Kathy Noffsinger, ARNP, from Sarkis, filled out a Residual Mental Capacity Assessment form and indicated that Plaintiff has Bipolar Affective Disorder, Type I and ADHD, Combined.
The ALJ considered Nurse Noffsinger as a non-acceptable medical source, although her opinions were considered regarding the severity of Plaintiff's impairments. Tr. 29. Nurse Noffsinger noted, in part, that Plaintiff's ability to perform work-related activities on a day-to-day basis in a regular setting was "extreme," which precluded performance for more than 20% of an eight-hour workday. Tr. 356-57. Nurse Noffsinger opined that Plaintiff has moderate restrictions in activities of daily living, marked difficulties in maintaining social functioning, and marked difficulties in concentration, persistence, or pace, and indicated he had three episodes of decompensation. Id.; Tr. 358. She further opined that Plaintiff would miss more than five days a week per month and that these limitations have been in effect since Plaintiff's birth. Id.
On December 10, 2013, Nurse Noffsinger completed another Residual Mental Capacity Assessment with greater limitations, including marked functional limitations regarding difficulties in maintaining social functioning and episodes of deterioration or decompensation. Tr. 30; 371-74.
In a letter dated February 18, 2015, Nurse Noffsinger noted that Plaintiff has been diagnosed with Bipolar Affective Disorder, Type I; ADHD, combined type; and anxiety disorder. She opined that Plaintiff "is a worthy candidate for Social Security disability benefits." Tr. 30 (citation omitted); Tr. 393. She also noted that Plaintiff's current medication regimen includes Abilify, Trileptal, and Prozac. Tr. 393.
The ALJ gave limited weight to Nurse Noffsinger's evaluations and stated:
Tr. 30.
Nurse Noffsinger is not an acceptable medical source such as a licensed physician or licensed or certified psychologist or the like. 20 C.F.R. § 416.913(a)(1)-(2). Rather, nurse-practitioners, like Nurse Noffsinger, are considered other medical sources. 20 C.F.R. § 416.913(d)(1). "Accordingly, a nurse practitioner's opinion is not entitled to the same weight as afforded the opinion of a treating psychiatrist or psychologist. Cf.
In addition to evidence from listed acceptable medical sources, as noted by the ALJ, Tr. 29, the Commissioner "may also use evidence from other sources [such as a nurse practitioner] to show the severity of [a claimant's] impairment(s) and how it affects [their] ability to work." 20 C.F.R. § 416.913(d) (emphasis added). Further, the opinion is afforded weight to the extent that it is supported by the factors listed in 20 C.F.R. § 416.927(d), including the treatment provided, the extent of the examinations and testing performed, the consistency with the other evidence, and the degree of explanation provided with the opinion. See SSR 06-3p, 2006 SSR LEXIS 5, at *5-7 (Aug. 9, 2006) (rescinded eff. Mar. 27, 2017).
The ALJ explained the reasons for giving Nurse Noffsinger's opinions little weight. Tr. 29-30. Substantial evidence supports the ALJ's consideration of Nurse Noffsinger's opinions.
On May 18, 2013, Plaintiff presented for a mental consultative examination with Dr. Beaty. Tr. 29. The ALJ summarized Dr. Beaty's evaluation as follows:
Tr. 29-30; Tr. 360-62.
In addition to the ALJ's summary from Dr. Beaty's evaluation, the results of Dr. Beaty's mental exam indicates that Plaintiff's mood was normal and affect appropriate; his orientation was okay as to person, place, time, date and reason for his coming to the evaluation; his speech was normal, thought processes were intact and organized, no delusions or paranoia were exhibited and otherwise appropriate to topics discussed; his attention impairment was normal for the most part; he was responsive verbally, alert, and had fair insight and extractive ability with estimated average cognitive ability; his memory was not impaired and no hallucinations and perceptual disturbances were observed, although he had a history of auditory and visual hallucinations and ADHD behaviors; he had no history of homicidal or suicidal ideation and none was elicited; he was pleasant, cooperative, had good eye contact, responded to questions and spontaneously elaborated many answers. Tr. 361-62. His prognosis was guarded and he cannot manage his own funds. Tr. 362.
Substantial evidence supports the ALJ's determination to give "great weight" to Dr. Beaty's opinion. Tr. 29-30.
The ALJ gave great weight to the opinions of State agency medical (psychological) consultants, James Levasseur, Ph.D., and Jessica Anderton, Psy.D. Tr. 30; Tr. 69-75 (May 21, 2013); Tr. 81-88 (July 19, 2013); see 20 C.F.R. § 416.927(e)(2)(i)-(iii); SSR 96-6p, 1996 SSR LEXIS 3 (July 2, 1996) (rescinded and replaced by SSR 17-2p, eff Mar. 27, 2017).
The ALJ noted these psychologists opined that Plaintiff's organic mental and affective disorders resulted in mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no repeated episodes of decompensation, each of extended duration. Tr. 30; Tr. 72-74, 84-96; see infra at n.11.
An ALJ can assign great weight to State agency physician opinions where the expert opinions are supported by and consistent with the record as a whole.
The ALJ analyzed Plaintiff's hearing testimony and the medical evidence, including the consultative evaluations. Tr. 28-30. The ALJ concluded the RFC assessment:
Tr. 30-31.
Courts "have affirmed an ALJ's decision that a claimant's testimony as to the alleged levels of pain and symptoms he experienced as not credible where the allegations were inconsistent with activities of daily living, limited use of pain medication, and effectiveness of treatment."
At step 4, after consulting with the vocational expert, the ALJ determined that Plaintiff can perform past relevant work in building maintenance, both as generally and actually performed. Tr. 31; Tr. 61-62. Plaintiff briefly argues the ALJ erred when making this determination. According to Plaintiff, the ALJ should have included his ratings from the four functional areas found in the Psychiatric Review Technique (PRT). ECF No. 18 at 36-37.
In applying the special technique, an ALJ must first determine whether a claimant has a "medically determinable mental impairment." See 20 C.F.R. § 416.920a(b); see also 20 C.F.R § 416.908. If such an impairment exists, the ALJ must then complete a PRT and append it to the decision or incorporate its mode of analysis into the findings and conclusions.
At steps 2 and 3, the ALJ used the PRT ratings that Plaintiff had severe mental impairments,
As noted above, the opinions of Dr. Beaty and the opinions of the State agency psychologists provide substantial evidence to support the ALJ's assessment of Plaintiff's mental limitations. Tr. 29-30, 72-74, 84-86, 360-62.
Notwithstanding, the vocational expert testified that Plaintiff's past relevant work is classified in the DOT as heavy exertion and unskilled with an SVP rating of 2. See supra at n.2. The hypothetical question posed to the vocational expert mirrored the ALJ's RFC determination.
Contrary to Plaintiff's arguments, the ALJ's RFC findings and the hypothetical question posed to the vocational expert sufficiently accounted for his PRT ratings because the record, as discussed by the ALJ, supports the ALJ's assessment of Plaintiff's mental limitations.
In the alternative, the ALJ asked the vocational expert whether there were jobs in the national economy that Plaintiff can also perform. Tr. 31, 62-64; see supra at n.10.
In determining whether a successful adjustment to other work can be made, the ALJ considered Plaintiff's RFC and other criteria in conjunction with the Medical-Vocational Guidelines (the Grids). Tr. 31. Plaintiff's ability to perform work at all exertional levels has been compromised by non-exertional limitations. Id. To determine the extent to which these limitations erode the occupational base of unskilled work at all exertional levels, the ALJ asked the vocational expert whether jobs exist in the national economy for an individual with Plaintiff's criteria. Tr. 61-62. The vocational expert testified that given these factors, such an individual, here Plaintiff, would be able to perform the requirements of several representative jobs. Tr. 62-63; see supra at 5-6 and nn.10-11.
Plaintiff has only non-exertional limitations and, as a result, section 204.00 of the Grids provides a framework for decision making. Tr. 31. Based on the testimony of the vocational expert and the criteria examined, the ALJ determined that a finding of "not disabled" is appropriate under section 204.00. Id. No error has been shown.
Plaintiff did not prove that the ALJ improperly evaluated the opinion evidence. The ALJ stated with particularity the weight he gave the opinions of the medical sources and non-medical sources and the reasons for doing so. See
Plaintiff has not demonstrated that the ALJ overlooked material evidence, mischaracterized the evidence, or improperly evaluated the medical opinion evidence in this record. Also, substantial evidence supports the ALJ's RFC determination and conclusion that Plaintiff can perform prior work and, in the alternative, other work in the national economy.
Finally, the law defines disability as the inability to do any substantial gainful activity because of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A); 20 C.F.R. §§ 416.905(a), 416.909. The impairment must be severe, making the claimant unable to do his or her previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.905-.911. Although Plaintiff has had challenges and difficulties, the only issue before the Court is whether the decision by the Commissioner that Plaintiff did not meet this standard is adequately supported by the evidence and was made in accordance with proper legal standards. As the Court finds that to be the case, it is recommended that the decision be affirmed. No error has been shown.
Considering the record as a whole, the findings of the ALJ are based upon substantial evidence in the record and the ALJ correctly applied the law. Accordingly, it is respectfully recommended that the decision of the Commissioner to deny Plaintiff's application for Social Security benefits be
Tr. 61-62. The vocational expert opined that "[t]he individual with these limitation is able to perform the past work of building maintenance both as typically performed and as performed by" Plaintiff and, in addition, is able to perform other jobs in the national economy. Tr. 62-63. The vocational expert also explained customary employer tolerances regarding an employee being late to work and having unscheduled absences. Tr. 63-64. The vocational expert stated that his testimony was consistent with and in accordance with the DOT. Tr. 64.
