MONTE C. RICHARDSON, Magistrate Judge.
In reaching the decision, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease of the cervical and lumbar spine, hypertension, obesity, and history of hernia repair. (Tr. 65.) The ALJ also found that Plaintiff had the residual functional capacity ("RFC") to perform sedentary work with "a sit-stand option and no overhead work." (Tr. 66.)
Plaintiff is appealing the Commissioner's decision that he was not disabled from September 2, 2010 through July 30, 2013. Plaintiff has exhausted his 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 herein, the Commissioner's decision is
The scope of this Court's review is limited to determining whether the Commissioner applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner's findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). "Substantial evidence is more than a scintilla and 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). 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. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to determine the reasonableness of the Commissioner's factual findings).
Plaintiff raises several issues on appeal. First, Plaintiff argues that the new evidence submitted to the Appeals Council, which included a psychological report by Philip R. Yates, Ph.D., a vocational report by Richard Grissinger, M.S., C.V.E., and records from Dr. Chidi Uche and LSU Health Care Services, was not adequately considered. More specifically, Plaintiff argues that the Appeals Council's denial of review was a "perfunctory adherence" to the ALJ's decision, and that the Appeals Council failed to consider Plaintiff's intellectual impairment resulting in slow capacity for performance and his questionable capacity for sustained performance of competitive work. Plaintiff also argues that in light of Dr. Yates's report, the Appeals Council should have considered whether Plaintiff's impairment either met and/or equaled Listing 12.05C. Defendant responds that Plaintiff has failed to show that the new evidence submitted to the Appeals Council affected the substantial evidence supporting the ALJ's decision.
First, to the extent Plaintiff argues that the Appeals Council's denial of review was a "perfunctory adherence" to the ALJ's decision, the Court disagrees. Where, as here, the Appeals Council denies review, it is "not required to provide a detailed rationale for denying review." Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014). The Appeals Council considered Dr. Uche's records from April 30, 2013 to June 19, 2013, and LSU Health Care records from January 10, 2013 to August 4, 2013, but determined that this information did not provide a basis for changing the ALJ's decision. (Tr. 2.) The Appeals Council also looked at Dr. Uche's records from September 10, 2013 to October 10, 2013, Dr. Yates's December 2, 2013 evaluation, and Mr. Grissinger's February 4, 2014 evaluation, but determined that this information did not affect the decision about whether Plaintiff was disabled on or before July 30, 2013 because it was about a later time.
Moreover, the new evidence would not have changed the ALJ's decision that Plaintiff was not disabled. Even with the benefit of the new evidence, Plaintiff has not shown that his impairment either met or equaled Listing 12.05C. See 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3); Harris v. Comm'r of Soc. Sec., 330 F. App'x 813, 815 (11th Cir. May 22, 2009) (per curiam) ("The claimant has the burden of proving at Step 3 that an impairment meets or equals a listed impairment."). To meet Listing 12.05, a claimant must show that his impairment satisfies both the diagnostic description of mental retardation in the introductory paragraph of Listing 12.05 and any one of the four sets of additional criteria. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A); Harris, 330 F. App'x at 815. The introductory paragraph of Listing 12.05 describes intellectual disability as "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested" before age 22.
Here, there was no evidence of any mental impairment or intellectual disability in the record prior to the ALJ's decision. After the ALJ's decision, Dr. Yates evaluated Plaintiff and assessed a full scale IQ score of 67. (Tr. 12.) Although Dr. Yates opined that Plaintiff showed "overall intellect that is in the Mild range of Mental Retardation," he also opined that Plaintiff did "not show any deficiencies in his adaptive functioning." (Tr. 15.) Dr. Yates elaborated that Plaintiff showed "good capacity to learn through verbal means, to have good working memory, his academic skills [were] quite strong in terms of his reading abilities, he [was] adequate in spelling and oral reading, but extremely poorly developed in his math computational skills." (Id.) Further, while Dr. Yates noted that occupationally, Plaintiff "would be expected to work slowly but steadily," he also noted that Plaintiff "should be given every opportunity to seek employment," particularly when his physical condition improves. (Tr. 16.) Importantly, Dr. Yates's diagnostic impressions included only a mathematics disorder and a learning disorder not otherwise specified. (Id.)
Therefore, to the extent Plaintiff relies on Dr. Yates's opinion to show that his impairment meets or equals Listing 12.05C, this opinion does not show deficits in adaptive functioning as required by the Listing.
Further, to the extent Plaintiff relies on Mr. Grissinger's vocational report, this report does not render the Commissioner's denial of benefits erroneous. In the report, Mr. Grissinger opined that Plaintiff was "not a good candidate for employment even in a part-time capacity" as he was "unable to perform competitive work in a sustained manner." (Tr. 24.) However, this was an opinion on an issue reserved to the Commissioner and, as such, it was not entitled to any special significance. 20 C.F.R. §§ 404.1527(d), 416.927(d). In addition, it does not appear that Mr. Grissinger is an acceptable medical source. Therefore, the Commissioner would not be required to assign and explain the weight given to Mr. Grissinger's opinions or consider these opinions in determining the existence of Plaintiff's impairments.
Finally, with respect to the records from Dr. Uche and LSU Health Care, Plaintiff has not shown how these records would have affected the Commissioner's ultimate decision. The Court has reviewed these records and finds that together with Dr. Yates's evaluation and Mr. Grissinger's report, they do not render the Commissioner's denial of benefits erroneous. Therefore, Plaintiff's first argument on appeal is rejected.
Plaintiff's second argument is that the ALJ did not consider how Plaintiff's obesity could have contributed to, or exacerbated, his abdominal pain from recurring hernias, back pain associated with L4-5 broad based disc protrusion, obstructive sleep apnea resulting in fatigue, and low lung volumes contributing to poor stamina.
SSR 02-1p provides in relevant part:
SSR 02-1p. "However, we will not make assumptions about the severity or functional effects of obesity combined with other impairments. Obesity in combination with another impairment may or may not increase the severity or functional limitations of the other impairment." Id. Each case is evaluated "based on the information in the case record." Id. Further, although the three levels of obesity describe the extent of obesity, "they do not correlate with any specific degree of functional loss." Id.
Here, the ALJ found that Plaintiff's obesity was a severe impairment and stated that "the effect that this condition has on the claimant's overall ability to perform work related functions, either singly or in combination with other impairments, has been considered in accordance with SSR 02-1p." (Tr. 65-66.) Then, in the RFC assessment, the ALJ limited Plaintiff to sedentary work with "a sit-stand option and no overhead work." (Tr. 66.)
There is no indication that the ALJ failed to consider Plaintiff's obesity either singly or in combination with his other impairments. To the contrary, the ALJ expressly stated that he considered it in accordance with SSR 02-1p and found it to be a severe impairment. Moreover, Plaintiff has not shown that his obesity caused any additional limitations beyond those assessed by the ALJ. Although Plaintiff has been diagnosed with obesity, "a `mere diagnosis . . . says nothing about the severity of the condition.'" Ward v. Astrue, 2008 WL 1994978, *3 (M.D. Fla. May 8, 2008). Further, Plaintiff's doctors have not expressed an opinion on the effect of Plaintiff's obesity on his ability to work or on his abdominal pain, back pain, sleep apnea, or low lung volumes. (See, e.g., Tr. 359-62.) Dr. Debra Troiano, a consulting physician who reviewed the records, stated that Plaintiff's "morbid obesity compounds his back complaints." (Tr. 113.) Despite this statement, Dr. Troiano assessed less severe functional limitations than found by the ALJ. (Compare Tr. 66 with Tr. 112-14.) Therefore, the ALJ properly evaluated Plaintiff's obesity and his decision is supported by substantial evidence.
Plaintiff's final argument is that the ALJ did not properly evaluate the opinions of the non-examining and examining physicians. To the extent Plaintiff "is concerned about the potential lack of clarity in distinguishing between Dr. Troiano's opinion and Mr. Williford's conclusions," which are included in Exhibits 5A and 6A, the Court does not find a reason for concern. With respect to Dr. Troiano's non-examining opinion, the ALJ stated that he "has considered the opinion of the State agency medical consultant who reviewed the record on reconsideration (Exhibits 5A and 6A)," and accorded it "some weight, as the doctor is a disability specialist who reviewed the evidence of record and considered all of the objective facts at the time [s]he rendered [her] opinion." (Tr. 69.) The ALJ further stated: "However, giving the claimant some benefit of the doubt, the undersigned has included additional limitations" in the RFC assessment. (Id.)
Although Exhibits 5A and 6A include the signatures of both Dr. Troiano, a State agency medical consultant who reviewed the record, and William Williford, a disability adjudicator/examiner, the ALJ made it clear that he was referring to "the State agency medical consultant who reviewed the record," i.e., Dr. Troiano. (Id.) Therefore, the ALJ did not give some weight to Mr. Williford's opinion, but rather to Dr. Troiano's opinion.
Plaintiff is also "concerned about the ALJ's review of the opinions expressed by the Commissioner's examining physician, Sigrid Sanchez, M.D." (Doc. 26 at 9.) Plaintiff argues that the ALJ erred in accepting portions of Dr. Sanchez's opinions and rejecting the rest without re-contacting the doctor for clarification, and in failing to identify the medical source(s) upon which the ALJ based his RFC assessment.
Contrary to Plaintiff's argument, the ALJ's RFC assessment did not need to mirror or match the findings or opinions of any particular medical source because the responsibility for assessing the RFC rests with the ALJ. Kopke v. Astrue, 2012 WL 4903470, *5 (M.D. Fla. Sept. 26, 2012) (report and recommendation adopted by 2012 WL 4867423 (M.D. Fla. Oct. 15, 2012)). Here, the ALJ properly considered the evidence of record and his RFC assessment is supported by substantial evidence.
Specifically, the ALJ gave "great weight" to Dr. Sanchez's opinions to the extent they were consistent with the RFC and "little weight" to the extent they included "greater or additional restrictions," because such restrictions were "not consistent with the medical evidence of record or supported by the record as a whole." (Tr. 69.) The ALJ explained:
(Tr. 68.) Also, the ALJ stated that Dr. Sanchez's report "appears to contain inconsistencies," which render her opinion "less persuasive." (Id.) The ALJ explained:
(Id.)
The Court finds that the ALJ provided adequate reasons supported by substantial evidence to partially discount Dr. Sanchez's opinions. Contrary to Plaintiff's position, the ALJ did not have a duty to re-contact Dr. Sanchez for clarification, because the record included sufficient evidence to decide Plaintiff's case. Although there were inconsistencies in Dr. Sanchez's report, it was the ALJ's responsibility to weigh the evidence and see whether he could determine whether Plaintiff was disabled based on the available evidence. See 20 C.F.R. §§ 404.1520b, 416.920b. Because the ALJ apparently determined that he could make a decision based on the record and his decision is supported by substantial evidence, there was no need to seek clarification from Dr. Sanchez. Based on the foregoing, the Commissioner's decision is due to be affirmed.
Accordingly, it is
1. The Commissioner's decision is
2. The Clerk of Court is directed to enter judgment consistent with this Order and close the file.
