JOEL B. TOMMEY, Magistrate Judge.
In reaching his decision, the ALJ found that Plaintiff had the severe impairments of "fibromyalgia; migraine headaches; [and] seizure disorder." (Tr. 20.) The ALJ also found that Plaintiff had the residual functional capacity ("RFC") to perform "the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b)." (Tr. 22.)
Plaintiff has exhausted her available administrative remedies and the case is properly before the Court. The Court has reviewed the record, the briefs, and the applicable law. For the reasons stated in the attached transcript of the pronouncement of recommendation on March 4, 2014, which is incorporated herein by reference (with the slight modifications noted), and as elaborated on herein, the undersigned respectfully
As the Eleventh Circuit has stated:
Carson v. Comm'r of Soc. Sec., 440 F. App'x 863, 864 (11th Cir. 2011) (per curiam) (citations omitted).
Plaintiff argues that the ALJ erred because he "found that [Plaintiff] has the severe impairment[s] of fibromyalgia, migraines, and seizures," but "the [RFC] does not take into account any limitations from any of these three severe impairments." (Doc. 23 at 14.) "Step two [of the ALJ's sequential evaluation process] is a threshold inquiry that allows only claims based on the most trivial impairments to be rejected." Gray v. Comm'r of Soc. Sec., Case No. 13-11837, 2013 WL 6840288, at *1 (11th Cir. 2013) (quotations omitted). "[A]n impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Id. (quotations omitted).
Severe impairments do not necessarily result in specific functional limitations. See, e.g., Castel v. Comm'r of Soc. Sec., 355 F. App'x 260, 264 (11th Cir. 2009) ("The ALJ determined that Castel's obesity was a severe impairment. However, the ALJ's decision reflects that Castel's obesity was ultimately determined not to result in any specific functional limitations."); Davis-Grimplin v. Comm'r, Soc. Sec. Admin., Case No. 13-12472, 2014 WL 702608, at *4 (11th Cir. 2014) ("The ALJ had ample evidence on which to conclude that Davis did not have functional limitations of her hands notwithstanding that her bilateral carpal tunnel syndrome is a severe impairment."). If no specific functional limitations from a severe impairment exist, the ALJ need not include a corresponding limitation for that impairment in the RFC. See Castel, 355 F. App'x at 263-64 (rejecting the plaintiff's argument that the ALJ erred because "even though the ALJ found her obesity to be a severe impairment, he did not specify any resulting functional limitations from such impairment.").
As discussed in the attached transcript, the ALJ specifically concluded that Plaintiff's seizures "donot cause significant limitations on her ability to work." (Tr. 23.) In reaching this conclusion, the ALJ noted that there was evidence that the seizures occurred less than once a month, that Plaintiff had a normal EEG, and that her medication seemed to prevent the seizures. (Tr. 23, 205, 416.) Additionally, the ALJ noted that Plaintiff was "very non-compliant" regarding her seizure treatment, and failed to attend follow-up appointments. (Tr. 23, 385, 416.) Thus, there was substantial evidence to support the ALJ's conclusion that Plaintiff's seizures, although a severe impairment, did not significantly limit her ability to work. Therefore, the undersigned recommends that the ALJ did not err regarding this aspect of Plaintiff's RFC.
As discussed in the attached transcript, the ALJ also adequately addressed Plaintiff's migraine headaches. He stated that Plaintiff's "definition of a migraine headache . . . appears to be subjective and not what one would typically associate with a migraine headache." (Tr. 24.) He noted Plaintiff's testimony at the hearing where she complained of a continuous migraine headache for the past two months. (Tr. 24.) The ALJ stated that this "suggests [Plaintiff] is exaggerating her symptoms." (Tr. 24.) The ALJ also observed that "[a]lthough Dr. Dalos found the claimant did have migraine headaches, the doctor also noted that she does not have migrainous symptomatology associated with the spells." (Tr. 24, 393.) The ALJ also recognized that Plaintiff had "admitted her headaches have decreased a lot since she was put on Lyrica." (Tr. 24, 333.) Thus, there was substantial evidence to support the ALJ's conclusion that Plaintiff's migraine headaches did not specifically limit her beyond a restriction to light work. Therefore, the undersigned recommends that the ALJ did not err regarding this aspect of Plaintiff's RFC.
As discussed in the attached transcript, the ALJ noted that Dr. Dalos found that Plaintiff's fibromyalgia was stable on medication. (Tr. 24, 417.) Additionally, the ALJ pointed out that Plaintiff's physical examination revealed that she had normal gait, strength, tone, and reflexes. (Tr. 24, 417.) Further, the ALJ did limit Plaintiff to light work, which does address Plaintiff's fibromyalgia. Therefore, the undersigned recommends that the ALJ did not err regarding this aspect of Plaintiff's RFC.
Plaintiff argues generally that two progress notes from Dr. Dalos dated May 24, 2011 (Tr. 451-52) and September 22, 2011 (Tr. 449-50), as well as two progress notes from Dr. Passaro dated June 3, 2011 (Tr. 444-46) and August 12, 2011 (Tr. 434-36) constitute new, non-cumulative evidence. (Doc. 23 at 15.) Plaintiffalsoargues that there is a reasonable possibility that this evidence would change the administrative outcome; therefore, remand is appropriate. (Id.) "To succeed on her claim that a remand is appropriate, [Plaintiff] must show that: (1) there is new, noncumulative evidence; (2) the evidence is material, that is, relevant and probative so there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for the failure to submit the evidence at the administrative level." Vega v. Comm'r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001) (quotations omitted). "Evidence is irrelevant and immaterial when it relates to a time period after the eligibility determination at issue." Carroll v. Soc. Sec. Admin., Comm'r, 453 F. App'x 889, 892 (11th Cir. 2011).
As discussed in the attached transcript, all four progress notes were submitted to and reviewed by the Appeals Council ("AC"), which concluded that such notes would not change the ALJ's decision. (Tr. 1-2.) The undersigned agrees. Moreover, the relevant period of alleged disability was from December 1, 2009, through July 12, 2011, the date of the ALJ's decision. (Tr. 18-25.) As such, Dr. Dalos's progress notes dated September 22, 2011 and Dr. Passaro's progress notes dated August 8, 2011 are outside of the relevant time period. See Carroll, 453 F. App'x at 892. Nevertheless, even assuming that all four notes constitute new, non-cumulative, material, and relevant evidence, and that good cause existed for Plaintiff's failure to submit the evidence to the ALJ, there is no reasonable possibility that these notes would change the administrative result. Both of Dr. Passaro's progress notes essentially provided impressions that more testing was necessary to properly diagnose and treat Plaintiff. (Tr. 435, 445.) Both of Dr. Dalos's progress notes also provided impressions that were consistent with the medical evidence discussed and relied on by the ALJ. (See Tr. 23-24, 435, 445, 450, 452.) Plaintiff points to nothing specific in any of those notes to support her argument. Therefore, the undersigned recommends that remand is not necessary on this issue because there is no "reasonable possibility that [this evidence] would change the administrative result." See Vega, 265 F.3d at 1218.
Plaintiff argues that the ALJ erred in not specifically discussing Dr. Passaro's June 3, 2011 progress notes, which were filed the day before the hearing. (Doc. 23 at 18.) "[T]he ALJ must state with particularity the weight given to different medical opinions and the reasons therefor." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). However, an ALJ's failure to mention specific medical evidence does not necessarily require reversal, as "any error in failing to address [a physician's] report explicitly in the ALJ's determination [is] harmless [when the physician's] observations in the report [are] consistent with the ALJ's determination." See East v. Barnhart, 197 F. App'x 899, 901 n.3 (11th Cir. 2006).
As discussed in the attached transcript, Plaintiff visited Dr. Passaro 13 days prior to the hearing, and filed Dr. Passaro's progress notes the day before the hearing. (Doc. 23 at 16.) Plaintiff's counsel agreed to the exhibits that would be admitted at the hearing, which did not include Dr. Passaro's June 3, 2011 progress notes. (Tr. 34-35.)
Regardless, assuming the progress notes were properly presented to the ALJ, the undersigned recommends that the ALJ did not err in failing to specifically address them. As discussed above, these progress notes merely provided impressions that more testing was necessary to properly diagnose and treat Plaintiff. (Tr. 445.) Therefore, they arguably do not even fall within the definition of a "medical opinion" that the ALJ was required to address. See 20 CFR § 404.1527(a)(2) (Medical opinions . . . reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.") (emphasis added.) However, even if the progress notes do constitute a "medical opinion," the undersigned recommends that any error in failing to specifically address them was harmless because nothing in the notes was inconsistent with the medical evidence specifically addressed by the ALJ, the RFC, or the ALJ's decision. See East, 197 F. App'x at 901 n.3.
Plaintiff argues that the ALJ's determination that she was not fully credible is not supported by substantial evidence. "If the ALJ finds that the testimony of the claimant is not credible the ALJ must articulate the reasons for finding a lack of credibility." Castel, 355 F. App'x at 264. "[T]he reasons for finding a lack of credibility must be clear enough that they are obvious to a reviewing court." Id. at 265. "A clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court." Id. (quotations omitted). "Substantial evidence supports the ALJ's adverse credibility determination [when:] (1) the ALJ proffered specific and adequate reasons for discounting [Plaintiff's] testimony; and (2) medical records from other physicians indicated that [Plaintiff's] subjective complaints were improbable . . . ." Id. at 266.
As discussed in the attached transcript, the ALJ clearly articulated explicit and adequate reasons for discounting Plaintiff's credibility. First, the ALJ "did not find the claimant credible at the hearing," in part, because "[h]er allegations about her difficulties sitting and walking were vague and not supported by the record." (Tr. 23.) In fact, they "seemed to appear out of nowhere." (Tr. 23.) Substantial evidence supports this conclusion. For example, multiple records revealed that Plaintiff's gait was normal. (Tr. 319, 334, 384, 389, 417, 423, 451.) The ALJ also found that Plaintiff was "exaggerating her symptoms and impairments." (Tr. 23.) The ALJ noted that Plaintiff testified at the hearing that "she presently had [a migraine headache] and had it for the past two months," which is not typical of a migraine headache. (Tr. 24.) Additionally, the ALJ pointed out that "Dr. Dalos appeared suspicious of the claimant's allegations, noting the alleged one-hour episodes are `very atypical for seizures.'" (Tr. 23.) Therefore, the undersigned recommends that, to the extent the ALJ discounted Plaintiff's credibility, he articulated specific and adequate reasons for doing so, and this determination was supported by substantial evidence. See Castel, 355 F. App'x at 264-66.
The Court does not make independent factual determinations, re-weigh the evidence 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. Applying this standard of review, the undersigned respectfully recommends that the ALJ's decision be affirmed.
Accordingly, it is respectfully
1. The Commissioner's decision be
2. The Clerk of Court be
PLAINTIFF'S COUNSEL:
DEFENSE COUNSEL:
COURT REPORTER:
(Proceedings recorded by mechanical stenography; transcript produced by computer.)
COURT SECURITY OFFICER: All rise. The United States District Court in and for the Middle District of Florida is now in session. The Honorable Joel B. Toomey presiding. Please be seated.
THE COURT: All right. We're here on the case of Teri Knuckles-Kopcsik versus Commissioner of Social Security. And it's case No. 8:13-cv-1288-SDM-JBT.
And we're here for pronouncement of recommendation to the district judge. And I gave the attorneys the option of appearing, or not appearing, if they wanted to, and if they wanted to appear they could appear by telephone.
But the hearing was set for eleven and it's now almost ten after and no one has called in. So from that I'm assuming that neither attorney wanted to attend.
I am going to recommend that the Commissioner's decision be affirmed in this case. And there were four arguments that were presented by the plaintiff. And I'll go through each one of them.
Of course, I will enter a written report and recommendation which will incorporate this transcript.
The first argument made was that the residual functional capacity of the claimant was not supported by substantial evidence because the ALJ found that the claimant had these the severe impairments of fibromyalgia, migraine headaches, and seizures, but the RFC did not take into account any limitations from any of those severe impairments.
First of all, I disagree that the RFC is not supported by substantial evidence. I think it is supported by
substantial evidence.
As the ALJ noted in his decision, the determination of whether some ailment is a severe impairment is different than the determination of what limitations go into the RFC.
On page 21, the ALJ — of the transcript, the ALJ notes that in order to be a severe impairment it must just have more than a minimal effect on the claimant's ability to do work-related activities.
So based on that standard, the ALJ did find that the fibromyalgia, the migraine headaches, and the seizure disorder did qualify as substantial impairments.
The ALJ noted that there was some question about what type of seizures the claimant was actually experiencing. And there was a question whether or not they were partial complex seizures.
But, at any rate, the ALJ found that these restrictions did have more than a minimal effect. But then the ALJ did discuss all three impairments and addressed all of them.
And the ALJ's conclusions as to all three impairments are supported by substantial evidence. And this discussion is on pages 23 and 24 of the record.
First, in terms of the seizures, the ALJ found that — quotes, It is apparent they do not cause significant limitations on her ability to work, close quotes.
And then he discusses the seizures and notes several things about them, notes that the claimant is non-compliant, according to some of the progress notes, that she had a normal EEG, and her medication seemed to prevent the seizures, that the seizures occurred less than once a month.
So he gave a number of reasons in support of the conclusion that the seizures did not cause significant limitations on her ability to work. And so I think that conclusion is supported by substantial evidence. And then on page 24 he discusses the migraine headaches and the fibromyalgia.
I should note that the ALJ's RFC limited the claimant to performing a full range of light work.
And so the ALJ has stated that as for the claimant's migraines — that her definition of a migraine headache appeared to be subjective and not what one would typically associate with a migraine headache.
For example, she — she testified at the hearing that she had been having a migraine headache for the past two months. The ALJ noted that this lended support to his conclusion that the claimant was exaggerating her symptoms.
And so obviously the ALJ did not see fit to incorporate any other limitations into the RFC, other than light work, in regard to the migraine headaches. I think this conclusion is supported by substantial evidence as well.
All of the observations the ALJ made, I think a reasonable fact finder could make those observations and conclusions.
And, similarly, as to the fibromyalgia, the ALJ discussed that.
Also on page 24, he noted that one of the doctors, Dr. Dalos, found that it was stable on medications, that she had a normal gait, normal strength, et cetera, on a physical examination; that although there was some tenderness, her gait was normal.
And so, again, the ALJ did limit her to light work, which — which I think does address the fibromyalgia, and arguably somewhat the migraines as well.
But, at any rate, the claimant cites no authority for the proposition that every severe impairment that's found must have a corresponding limitation in the RFC.
That's not the law in the Eleventh Circuit. And there's no burden on the ALJ to have to correspond each substantial impairment with — with a limitation in the RFC.
Again, it's two different standards. And I think the issue is whether or not the ALJ adequately addressed the substantial impairments. And I think the ALJ did — did that and his conclusions are supported by substantial evidence. So as to the first argument, I do reject that argument. And I'm going to recommend that the ALJ's decision be affirmed as to that.
The second argument made was that the case should be remanded because there was new, non-cumulative evidence, and that there was a reasonable possibility that it would change the administrative outcome.
I disagree with that argument as well. The new evidence consists of progress notes from two doctors, Dr. Dalos and Dr. Passaro.
Dr. Dalos, there were progress notes from May 24th, 2011, and September 22nd, 2011. As to Dr. Passaro, there were progress notes from June 3rd, 2011, and August 12th, 2011.
The period of time at issue in this case is from December 1st, 2009, through July 18th, 2011. The hearing was held on June 16th, 2011.
So there were two progress notes that were prior to the hearing and still within the relevant period, but then there were two progress notes that were outside of the relevant time period.
And all of these notes were submitted to the Appeals Council. The Appeals Council reviewed them and concluded that there was nothing that would change the ALJ's decision. And I agree with that.
There's nothing in these progress notes that would lead to a reasonable possibility that they would change the administrative outcome. The plaintiff has pointed to nothing specific in these notes that would change anything.
As I said, there are two notes that are outside the time period. And so, arguably, those notes are not even relevant.
The June 3rd progress note from Dr. Passaro essentially just contains some of — some of his impressions. And he noted that at this time it was not clear if she was having epileptic or non-epileptic seizures, or both, and, essentially, he was going to obtain more testing, including a brain MRI with epilepsy protocol and a 24-hour ambulatory EEG.
The May 24th progress note from Dr. Dalos similarly — similarly just contains impressions that, as I stated, when compared to the prior progress notes, don't change anything. So I would — I'm going to recommend that the second argument be rejected as well.
The third argument also relates to Dr. Passaro's June 3rd, 2011, progress note. And the argument is that the ALJ failed to determine what weight to give to the opinions of Dr. Passaro, a neurologist who first saw the claimant approximately 13 days prior to the hearing.
So this progress note is, as noted, very close to the hearing date. I would first note that the — at the hearing the claimant, who was represented by an attorney, agreed at the hearing with the exhibits that were going to be admitted at that hearing and did not make any mention of this progress note.
So the argument is that somehow this progress note got submitted, I believe electronically, to the Commissioner. But it certainly should have been brought to the ALJ's attention at the hearing. And that wasn't done.
Secondly, as I just stated earlier, there's nothing in this progress note that — that changes anything or leads to a reasonable possibility of a different result.
Again, the doctor really just had impressions that were not clear because further testing was needed. So I don't think there was any error at all in the ALJ not stating the weight given to the opinion of this doctor.
To the extent that there was any error, I'm going to recommend that it's harmless error, because there's nothing in this progress note that really required the ALJ to — to make any comment about what weight he was giving it. And the ALJ didn't — it wasn't brought to his attention at the hearing.
And then, finally, the fourth argument is that the ALJ's credibility finding as to the plaintiff is not supported by substantial evidence.
I'm going to recommend that the ALJ's credibility finding is well supported by substantial evidence. And throughout the decision, particularly on pages 23 and 24, the ALJ makes reference to the claimant's credibility.
On page 23, he states that he did not find the claimant credible at the hearing. The claimant's allegations about her difficulty sitting and walking were vague and not supported by the record. These allegations seem to appear out of nowhere.
I think that finding is supported by substantial evidence in that there were a number of progress notes that note that the claimant's gait is normal.
And the ALJ, in a couple of places, finds support in the record for his impression that the claimant was exaggerating her symptoms.
For example, on the bottom of page 23, he notes that Dr. Dalos appeared suspicious of her allegations, in that her one-hour episode of seizures were very atypical for seizures.
The ALJ states that this suspicion dovetails with his impression of the claimant at the hearing that she was exaggerating.
He notes that again on page 24, where he notes that her presentation regarding migraine headaches appears to be unusual. And, again, this suggests that she was exaggerating her symptoms.
And so the case law is well established that the credibility of the claimant is a determination that the ALJ is — is to make. And if the ALJ is going to discount that credibility, it need be supported only by explicit and adequate reasons.
And I think the ALJ gave a number of explicit and adequate reasons to discount the claimant's credibility. And I would note that he didn't discount it completely, because he did give her an RFC that limited her to light work.
So as I stated, I will enter a written report and recommendation that the Commissioner's decision be affirmed. And court will be in recess.
(The proceedings concluded at 11:24 a.m.)
