G.R. SMITH, Magistrate Judge.
On January 14, 2010, Edith Zanders applied for a period of disability and supplemental security income benefits. (Tr. 22, 196.) She was 58 years old at the time. (Tr. 22, 41.) She claimed that she could not return to work as a child placement specialist due to back pain and depression. (Tr. 196.) Her application was denied both initially and on review. (Tr. 77-80; tr. 85-92.) An Administrative Law Judge ("ALJ") conducted a hearing on August 18, 2011, and entered an order denying Zanders' benefits application on August 25. (Tr. 35-69 (hearing); tr. 17-34 (order)). The Appeals Council denied her request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.) She then filed a complaint for judicial review in this Court, contending that the ALJ erred in reaching his decision. (Doc. 1.)
Affirmance of the ALJ's decision is mandatory if his conclusions are supported by substantial evidence and based upon an application of correct legal standards. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). "Substantial evidence is something more than a mere scintilla, but less than a preponderance." Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation marks and citations omitted). It "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) (quotation marks and citations omitted). If substantial evidence supports the decision, the Court will affirm "[e]ven if the evidence preponderates against the Commissioner's findings." Id. at 1158-1159. This Court cannot substitute its judgment for that of the Commissioner. Barnes v. Sullivan, 932 F.2d 1356, 1357-1358 (11th Cir. 1991).
The burden of proving disability lies with the claimant. 20 C.F.R. § 404.1512; Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). To determine whether she has met her burden, the Court looks to the five-step evaluation process set forth in the Social Security Regulations. 20 C.F.R. § 416.920; Dixon v. Astrue, 312 F. App'x 227, 227-28 (11th Cir. 2009); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). At step one, the claimant must prove that she has not engaged in substantial gainful activity. Jones, 190 F.3d at 1228. At step two, she must demonstrate a severe impairment or combination of impairments. Id. Then, at step three, if the claimant's impairment meets or equals a listed impairment, she is automatically found disabled. Id. If not, she must advance to step four, which requires her to prove an inability to perform past relevant work. Id. If she cannot perform past relevant work, stage five shifts the burden to the Commissioner to show that "there is other work available in significant numbers in the national economy that the claimant is able to perform." Id.
Zanders is a well-educated woman.
The ALJ did not find Zanders to be credible. After reviewing the medical record and evaluating the testimony offered at the hearing, he found, at step four of the five-step analysis,
(Tr. 24.) In the end, he determined that her residual functional capacity ("RFC") permitted her to return to her work as a placement specialist.
Plaintiff contends that her case must be remanded since the ALJ erred by: (1) finding she could return to her past work; (2) failing to properly weigh the medical evidence related to her mental impairments; (3) failing to properly evaluate her credibility; and (4) relying upon flawed vocational expert ("VE") testimony. (Doc. 12 at 2.) The Court will first address grounds two and three, which relate to her mental impairments, before moving on to grounds one and four.
Zanders' general practitioner diagnosed her with depression in 2008, not long after her mother died.
After quitting her job, she helped care for two of her sons who were confined to wheel chairs through March 2010. (Tr. 47.) She eventually lost her house and was forced to move in with one of her sons. (Tr. 41.) That arrangement didn't work out, so she left and moved in with another son, who lives near Savannah. (Id.) She's been babysitting his children for at least 25 hours per week in exchange for room and board ever since, though she insists that she doesn't spend much of that time actually interacting with the kids. (Tr. 41, 47.)
After filing for disability, Zanders saw Dr. Roth on March 15, 2010 for the consultative exam mentioned above. (Tr. 334.) She presented with a melancholy mood and reported suffering from a lack of energy, poor sleep patterns, and appetite disturbances. (Id.) She also reported that she has not received any real mental health treatment in her past, was never hospitalized for emotional or mental problems, has no history of substance abuse, and has no suicidal thoughts. (Tr. 334-335.) Despite these problems, she managed her own money, cared for herself, cooked, did laundry, drove (though with some trepidation), and regularly texted and emailed her friends. (Tr. 335.)
Dr. Roth diagnosed Zanders with major depressive disorder. (Tr. 336.) As for her ability to work, the doctor found that Zanders could understand, remember, and follow simple work instructions without difficulty, though her ability to sustain focus and effort was restricted, and she was likely to decompensate under "normal levels of change, stress and expectations."
Dr. Ndiya Nkongho, Ph.D., a non-examining medical consultant who prepared a mental residual functional capacity assessment for Zanders, concluded that Zanders' depressive symptoms would intermittently impair concentration and task persistence. (Tr. 340.) Nevertheless, she could get along with supervisors and co-workers and "would fare well in a low-stress working environment." (Id.) While the doctor opined that Zanders had mild restrictions in activities of daily living, and moderate restrictions in social functioning and maintaining concentration, persistence, or pace, she was not expected to experience extended episodes of decompensation, though she "could" decompensate under stress. (Tr. 352, 354.)
The ALJ found that claimant's depression caused more than minimal limitations on work-related activities and was thus "severe" under the applicable regulations at step two, though it didn't meet a step-three Listing since she had no marked restrictions in daily living, social functioning, concentration, persistence, or pace, or repeated episodes of extended decompensation.
When a plaintiff attempts to establish disability through her own testimony concerning pain or other subjective symptoms, she "must satisfy two parts of a three-part test showing: (1) evidence of an underlying medical condition; and (2) either (a) objective medical evidence confirming the severity of the alleged [symptoms]; or (b) that the objectively determined medical condition can reasonably be expected to give rise to the claimed [symptoms]." Wilson, 284 F.3d at 1225; Hernandez v. Comm'r of Soc. Sec., 2013 WL 3722107 (11th Cir. July 17, 2013). "The claimant's subjective testimony supported by medical evidence that satisfies the standard is itself sufficient to support a finding of disability." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per curiam). Nevertheless, "[a]fter considering a claimant's [subjective] complaints ..., the ALJ may reject them as not creditable." Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (per curiam).
Here, the ALJ believed that Zanders had held certain relevant facts back during her exam with Dr. Roth. (Tr. 27.) It particularly troubled him that she failed to tell Dr. Roth that she cared for her grandchildren. (Id.) While Zanders insisted at the hearing that she didn't do much to supervise the children, the ALJ did not believe her. The children were two and four years old, an age range where children require at least some interaction and supervision. (Id.; tr. 41.) He was also troubled by the fact that she had never sought out any mental health counseling or treatment; it had only come up in passing with her general practitioners. (Tr. 26.) And despite her depression and back pain, she still managed to maintain some level of activity, including driving a car, cooking, doing laundry, watching television, and spending time on the computer using Facebook. (Tr. 27-28.)
In a rather blatant attempt to reverse the burden of proof, she claims that the ALJ was required to accept her testimony as to her grandchildren absent evidence in the record suggesting that she lied. (Doc. 12 at 13-14.) As explained above, the ALJ is not required to accept everything that he is told. He may reject testimony that he finds to be incredible. He was thus free to reject her assertion that she did little to no work monitoring the children for 25+ hours per week. Next, she states that her ability to continue engaging in minimal daily activities shouldn't be determinative. Id. While daily activities may not be determinative on the issue of credibility they are certainly a factor to be considered.
Finally, she claims that her failure to seek mental health treatment is not a fair basis for disbelieving her subjective complaints, since the ALJ never specifically asked the reasons why she failed to seek treatment.
Zanders next asserts that the ALJ improperly weighed the opinions of Doctors Roth and Nkongho in making his RFC assessment. (Doc. 12 at 8-12.)
In assessing RFC, the ALJ must state with particularity the weight given different medical opinions and the reasons for doing so. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987); see Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (without this explanation, a reviewing court cannot determine whether the decision was supported by substantial evidence). The ALJ has wide latitude to determine what weight to assign to those opinions, so long as he operates within the regulatory and judicial frameworks. For instance, when discounting a medical opinion, he should consider several factors, including the examining relationship, the treatment relationship, the doctor's specialization, whether the opinion is amply supported, and whether the opinion is consistent with the record. 20 C.F.R. §§ 404.1527(c), 416.927(c).
Zanders' entire case turns on the opinions of the state examiners, since she has proffered no evidence from a treating physician other than a brief scrawl from her general practitioner — a doctor not trained in psychiatry or psychology — noting that she was depressed and prescribing her medication. Dr. Roth was not a treating physician, despite her examination. Instead, she acted as a consulting, examining psychologist.
Dr. Roth concluded that Zanders suffered from major depression and would be restricted in maintaining production standards and adherence to a normal work schedule. (Tr. 337.) The only foundations for the diagnosis and resulting limitations were Zanders herself, whom the ALJ had decided was not entirely trustworthy, and the brief diagnosis made by her primary care doctor some years before — again, a doctor who was not trained in psychiatry. Dr. Roth lacked a true longitudinal perspective,
Plaintiff also asserts that the ALJ omitted almost every limitation found by Dr. Nkongho in the Mental Residual Functional Capacity Assessment form. (Doc. 12 at 9.) The form she sites to, however, is merely a worksheet. POMS DI 24510.060(B)(2) (section I is "merely a worksheet," but section III contains "the
Zanders makes much of the fact that the ALJ had limited her to a Specific Vocational Profile ("SVP") of 1-4 (unskilled work) based on her RFC, but her past work qualified as skilled and had an SVP of 7. Since she can only perform SVP 1-4 work, she reasons that she cannot return to work as a placement specialist. (Doc. 12 at 6.)
The argument completely misconstrues the ALJ's assessment. He never limited her to SVP 1-4. Instead, he found that she could perform SVP 1-4 jobs without limitation. (Tr. 24, 63.) That does not mean that she is limited to SVP 1-4 jobs. The ALJ also found that while she "has some limitations in her ability to perform complex work ... she is still able to perform this work satisfactorily." (Tr. 24.) Since he found that she could perform detailed, complex tasks, she was not limited solely to unskilled work in the SVP 1-4 levels. (Tr. 24.) Instead, she could perform some skilled work, which corresponds to SVP 5-9.
Finally, Zanders claims that the ALJ erred by relying upon flawed testimony from the Vocational Expert ("VE"). She contends that the ALJ failed to present a hypothetical that accurately described her mental limitations. He found that she had "moderate restrictions in concentration, persistence, or pace," but he did not include that limitation in the hypothetical to the VE.
"In order for a vocational expert's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments." Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam). Here, claimant relies upon Winschel v. Commissioner of Social Security, 631 F.3d 1176 (11th Cir. 2011), which held that an ALJ could not rely upon a vocational expert's assessment where that ALJ failed to pose a hypothetical question specifically accounting for claimant's "moderate limitation in maintaining concentration, persistence, and pace." Id. at 1181.
At a glance, then, Winschel appears to favor claimant. But Winschel also explained that "when medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, courts have concluded that limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations." Id. at 1180 (emphasis added), citing Simila v. Astrue, 573 F.3d 503, 521-22 (7th Cir. 2009), Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-76 (9th Cir. 2008), and Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001). The ALJ in Winschel failed to indicate whether the claimant could perform simple, repetitive tasks or unskilled work. Winschel, 631 F.3d at 1181. Here, in contrast, the ALJ found that Zanders could perform not just simple, repetitive tasks, but some skilled work despite any deficiencies in maintaining concentration, persistence, or pace. (Tr. 24.) He posed the following hypothetical:
(Tr. 64-65 (emphasis added).) The ALJ was not required to mention the limitations as to concentration, persistence or pace because he had already found that, despite the limitations, Zanders could perform skilled work. Hence, the hypothetical was adequate under Winschel.
Based on the foregoing, the Commissioner's decision denying benefits should be
Zanders relies on several out-of-circuit cases criticizing the use of similar boilerplate, but in those cases there were several other problems with the structure of the ALJ's decision and obvious errors in the conclusions that he reached. (Doc. 12 at 12 (over-reading Bjornson v. Astrue, 671 F.3d 640, 645-646 (7th Cir. 2012). Here, the ALJ did not apply an incorrect legal standard. Rather than making the RFC finding first, as plaintiff suggests, the ALJ simply led with the result, then explained his reasons for reaching it. There is nothing wrong with addressing the standard using such an approach. See Mendez v. Astrue, 2012 WL 1493732 at *3 (M.D. Fla. Mar. 21, 2012) (noting that the "boilerplate" language appropriately addresses the Eleventh Circuit's credibility standard).
