CAROL MIRANDO, Magistrate Judge.
Plaintiff Rosemary Lopez appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her claim for disability and disability insurance benefits. Because the decision of the Commissioner is supported by substantial evidence, and Plaintiff has not shown any reversible error, the decision will be affirmed.
Plaintiff raises the following issues on appeal: (1) whether the Administrative Law Judge ("ALJ") properly evaluated the opinions of Plaintiff's treating physician and other medical sources as to her mental impairments; (2) whether the ALJ properly considered Plaintiff's diagnosis of cognitive disorder; (3) whether substantial evidence supports the ALJ's determination that Plaintiff failed to meet a listed impairment for mental disorders; (4) and whether substantial evidence supports the ALJ's determination of Plaintiff's residual functional capacity ("RFC").
Plaintiff, Rosemary Lopez, born in 1961, is a high school graduate. Tr. 5-8. She previously worked as a secretary in a school and in a hospital. Tr. 7. On October 24, 2012, Plaintiff filed an application for a period of disability and disability insurance benefits, alleging disability beginning October 23, 2012 due to anxiety, panic attacks, depression, stress, high blood pressure and migraines. Tr. 90, 164-70, 188, 218. The Commissioner denied Plaintiff's application initially and upon reconsideration. Tr. 107-11, 116-20. Plaintiff requested and received a hearing, which was held before ALJ Charles R. Howard on May 2, 2014.
On May 27, 2014, the ALJ issued a decision finding Plaintiff not disabled from October 23, 2012 through the date of the decision. Tr. 61-72. At step one, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2018 and had not engaged in substantial gainful activity since October 23, 2012, the alleged onset date. Tr. 63. At step two, the ALJ determined that Plaintiff has the following severe impairments: headaches, major depressive disorder with psychosis, anxiety and panic disorder. Id. At step three, the ALJ concluded that Plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." Tr. 64-65. In doing so, the ALJ considered listings 12.04, 12.06 and any other listing under section 12.00 of the listings. Tr. 64. The ALJ then determined that Plaintiff
Tr. 65. The ALJ then determined that Plaintiff is unable to perform her past relevant work as a school secretary, teacher's aide or case worker, as these positions exceed Plaintiff's RFC due to her mental impairments. Tr. 70. Next, utilizing the services of a VE, the ALJ found that based on Plaintiff's age, education, work experience, and RFC, Plaintiff is capable of performing other work that exists in significant numbers in the national economy, namely the occupations of small products assembler, sewing machine operator and housekeeping/cleaner. Tr. 71. The ALJ, therefore, concluded that Plaintiff has not been under a disability from October 23, 2012 through the date of the decision. Tr. 72.
On October 7, 2015, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. Tr. 21-24. Accordingly, the ALJ's May 27, 2014 decision is the final decision of the Commissioner. Plaintiff filed a Complaint in this Court on December 8, 2015. Doc. 1. Both parties have consented to the jurisdiction of the United States Magistrate Judge, and this matter is now ripe for review. Docs. 16, 17.
A claimant is entitled to disability benefits when she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step sequential analysis for evaluating a claim of disability. See 20 C.F.R. §416.920. The Eleventh Circuit has summarized the five steps as follows:
Atha v. Comm'r Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion through step four; and, at step five, the burden shifts to the Commissioner. Id. at 933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a scintilla, i.e., evidence that must do more than create a suspicion of the existence of the fact to be established, and such relevant evidence as a reasonable person would accept as adequate to support the conclusion." Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding that "[s]ubstantial evidence is something more than a mere scintilla, but less than a preponderance") (internal citation omitted).
The Eleventh Circuit has restated that "[i]n determining whether substantial evidence supports a decision, we give great deference to the ALJ's fact findings." Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). 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 preponderance of the evidence is 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 record as a whole, taking into account evidence favorable as well as unfavorable to the decision." Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings). It is the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses. Lacina v. Comm'r, Soc. Sec. Admin., 606 F. App'x 520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)). The Court reviews the Commissioner's conclusions of law under a de novo standard of review. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
Plaintiff first argues the ALJ failed to provide good cause for giving little weight to the opinions of Plaintiff's treating psychiatrist, Miriam Ajo, M.D. Doc. 22 at 16-19. The Commissioner argues that the ALJ properly evaluated Dr. Ajo's opinions and identified good reasons supported by the record for according the opinions little weight. Doc. 23 at 9. The Court finds the ALJ provided good cause for giving little weight to Dr. Ajo's opinions.
Dr. Ajo was Plaintiff's treating psychiatrist from approximately January 2013 through March 2014. Tr. 373-77, 416-19, 422-33, 442-51, 462-64. On March 24, 2014, Dr. Ajo completed a form medical source statement, entitled "Mental Capacity Assessment," one of the opinions at issue here. Tr. 452-55. The same date, she also completed another form questionnaire, an RFC assessment. Tr. 456-57.
The ALJ discussed Plaintiff's mental health treatment records at length, beginning with treatment records in May 2011. See Tr. 66-67. As noted by the ALJ, when Plaintiff was last seen by Dr. Ajo in March 2014, Plaintiff denied any complaints, and her mental status evaluation was "essentially normal," except that her sister reported that she had been irritable. Tr. 67, 462-66. At the time, Dr. Ajo added Klonopin to Plaintiff's medications and suggested that she return in sixty days. Tr. 464-66.
The ALJ took into consideration Plaintiff's mental impairments when assessing her RFC:
Tr. 67.
As to the opinions at issue, the ALJ discussed these opinions at length and the reasons for giving them little weight:
Tr. 69-70.
When determining how much weight to afford an opinion, the ALJ considers whether there is an examining or treatment relationship and the nature and extent thereof; whether the source offers relevant medical evidence to support the opinion; consistency with the record as a whole; the specialization of the source, if any; and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(1)-(6).
The undersigned finds that substantial evidence supports the ALJ's decision to accord little weight to Dr. Ajo's opinions, the ALJ clearly articulated his reasons and provided good cause for doing so. First, the ALJ noted that the opinions were inconsistent with Dr. Ajo's own treatment notes, and Plaintiff had been maintained on the same medications and dosages for most of her treatment with Dr. Ajo. Tr. 70. Conservative treatment and inconsistency with other treatment notes, including those of the treating physician, are valid reasons for an ALJ to discount a treating physician's opinion. See Peters v. Astrue, 232 F. App'x 866, 871 (11th Cir. 2007). As discussed in the ALJ's opinion, Plaintiff's treatment records with Dr. Ajo reflect that Plaintiff's condition had remained relatively stable, and her condition had improved over time. Tr. 67. From January 2013 through May 2013, Dr. Ajo noted that Plaintiff had been more active, was going to church and had better hygiene. Tr. 373-77, 416-19. Although a May 2013 treatment note indicated Plaintiff still was delusional at that time, by a September 2013 visit Plaintiff was feeling better some days, and her delusions had improved. Tr. 418, 427-31. On the other hand, Dr. Ajo also noted that Plaintiff could not drive or draw a clock, and Plaintiff may be experiencing early signs of dementia. Tr. 429. But in November 2013, Dr. Ajo reported that Plaintiff seemed to be improving, her mood was better, and she was no longer delusional. Tr. 447-51. In the same visit, Plaintiff's mood and affect were appropriate, and results of a CT scan of Plaintiff's head revealed it was within normal limits. Tr. 448-49. Dr. Ajo continued Plaintiff on her same medications. Tr. 450. In February 2014, Plaintiff still was experiencing some memory issues and delusions, but Dr. Ajo continued her on her same medications. Tr. 444-45. As noted, by March 2014, Plaintiff had no complaints, and her mental status evaluation essentially was normal, except for the irritability cited by her sister. Tr. 464-65. Plaintiff was not to return for another sixty days. Tr. 465.
Second, the ALJ noted that Plaintiff had not been hospitalized for a severe mental disorder at any time during the period at issue. Tr. 70. Although Plaintiff correctly notes Plaintiff had hospital visits during that time period, it is speculation that these visits could have resulted in a period of hospitalization. Instead, the record indicates that Plaintiff's condition improved since those visits, and she was not otherwise hospitalized during that time.
Third, the ALJ properly considered that Dr. Ajo's opinions were not supported by Plaintiff's reported activities of daily living. Tr. 70; see Phillips, 357 F.3d at 1241. Earlier in his opinion, the ALJ considered the four broad functional areas set out in the regulations for evaluating mental disorders and in section 12.00C of the Listing of Impairments, the so-called "paragraph B" criteria.
Moreover, form questionnaires or so-called "checklist" opinions such as those completed by Dr. Ajo generally are disfavored. See Foster v. Astrue, 410 F. App'x 831, 833 (5th Cir. 2011) (physician's use of "questionnaire" format typifies "brief or conclusory" testimony); Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) ("Form reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best."); Hammersley v. Astrue, No. 5:08-cv-245-Oc-10GRJ, 2009 WL 3053707, *6 (M.D. Fla. Sept. 18, 2009) ("[C]ourts have found that check-off forms . . . have limited probative value because they are conclusory and provide little narrative or insight into the reasons behind the conclusions."). Furthermore, to the extent Plaintiff points to treatment notes that may contradict some portions of the evidence relied upon by the ALJ, "when there is credible evidence on both sides of an issue it is the Secretary, acting through the ALJ, and not the court, who is charged with the duty to weigh the evidence and to determine the case accordingly." Powers v. Heckler, 738 F.2d 1151, 1152 (11th Cir. 1984) (quoting Richardson, 402 U.S. at 389-409). Moreover, the task of determining a claimant's RFC and ability to work is the province of the ALJ, not a physician such as Dr. Ajo. See 20 C.F.R. § 404.1546(c).
Overall, Dr. Ajo's treatment notes do not support the restrictive limitations in her opinions. Thus, substantial evidence supports the ALJ's decision to give little weight to these opinions. The inconsistency between Dr. Ajo's office notes and her opinions, as well as Plaintiff's activities of daily living, as discussed provide good cause for the ALJ to accord Dr. Ajo's opinions little weight.
Plaintiff also notes that the ALJ likewise did not give more than limited weight to any of the agency psychologists' opinions. Doc. 22 at 19. But there, the ALJ discussed these opinions and found that Plaintiff's impairments were more severe than reflected in those opinions and inconsistent with the RFC. Tr. 68-69. For example, one psychologist opined that Plaintiff had no severe mental impairment, but the ALJ noted that this opinion was given prior to evidence that revealed otherwise; thus he discounted it. Tr. 68. Another agency psychologist indicated that Plaintiff had no understanding and memory limitations, no sustained concentration and persistence limitations, and no adaptation limitations, among other opinions discussed by the ALJ. Tr. 68-69. The ALJ gave this opinion little weight after considering Plaintiff subjective complaints and the objective evidence. Tr. 69.
Findings of fact made by state agency medical and psychological consultants as to the nature and severity of a claimant's impairments must be treated as expert opinion evidence of nonexamining sources by the ALJ, but the ultimate opinions as to whether a claimant is disabled, the severity of a claimant's impairments, the claimant's RFC and the application of vocational factors are exclusively reserved to the Commissioner. SSR 96-6p; 20 C.F.R. § 404.1527(d)(1)-(2). Unless a treating source's opinion is given controlling weight, the ALJ must explain the weight given to the opinions of state agency medical consultants as the ALJ must do for other consultants, doctors or medical specialists. 20 C.F.R. § 404.1527(e)(2)(ii); Vuxta v. Comm'r of Soc. Sec., 194 F. App'x 874, 877 (11th Cir. 2006). Here, contrary to Plaintiff's assertion that the ALJ improperly substituted his lay opinion for those of the medical professionals, the undersigned finds the ALJ properly explained the weight given to the state agency medical consultants and Plaintiff's treating physician, and substantial evidence supports his determination.
Plaintiff next asserts the ALJ committed error by failing to consider Dr. Ajo's diagnosis that Plaintiff had a cognitive disorder. Doc. 22 at 20; Tr. 36, 429, 456. Dr. Ajo provided this diagnosis on her RFC form. Tr. 456. Plaintiff further argues that the ALJ did not fully and fairly develop the record when he failed to order a neuropsychological evaluation to "flesh out" her cognitive problems and determine what role they played in Plaintiff's work limitations. Doc. 22 at 21.
Two of Dr. Ajo's records are cited by Plaintiff to support her argument. Doc. 22 at 20. The first is a treatment record dated September 4, 2013, in which Dr. Ajo commented about Plaintiff, "I suspect she is developing dementia." Tr. 429. The second, as noted, was on the RFC form in which she included as one of her diagnoses cognitive disorder, not otherwise specified. Tr. 456. As noted, the ALJ assigned this assessment little weight. Tr. 69-70. Plaintiff does not identify elsewhere in the record where either Dr. Ajo, in her treatment notes, or any other physician made this diagnosis, or how such an impairment resulted in greater limitations than those included in the ALJ's RFC assessment. As noted by the Commissioner, "the mere existence of [] impairments does not reveal the extent to which they limit her ability to work or undermine the ALJ's determination in that regard." Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005); see also McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.1986) ("the `severity' of a medically ascertained disability must be measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality"). Likewise, based on this scant evidence of a diagnosis, some of which was accorded little weight by the ALJ, and the evidence in the record available to and considered by the ALJ, Plaintiff has not demonstrated that the ALJ was required to order a consultative mental evaluation. See 20 C.F.R. §§ 404.1519a(a), (b) (listing situations that may require a consultative examination, none of which exist here).
The ALJ considered whether Plaintiff's mental impairments, considered singly and in combination, meet or medically equal the criteria of listings 12.04 (Affective Disorders), 12.06 (Anxiety Related Disorders) or any other listing under section 12.00 of the listings, and determined they do not. Tr. 64-65. Plaintiff asserts this determination was not supported by substantial evidence. Doc. 22-23.
The listings describe impairments that the Commissioner considers severe enough to prevent a person from doing "any gainful activity, regardless of his or her age, education, or work experience." See 20 C.F.R. §§ 404.1625(a), 416.925(a). If an adult's impairment "meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. . . ." Bowen, 482 U.S. at 141, cited in Sullivan v. Zebley, 493 U.S. 521, 532 (1990). The Eleventh Circuit has described how the standard is met or equaled:
Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (citing 20 C.F.R. § 416.925(c)-(d)). The burden of establishing that a claimant's impairments meet or equal a listing rests with the claimant, who must produce specific medical findings that satisfy all the criteria of a particular listing. 20 C.F.R. § 404.1520(a)(4).
If Plaintiff contends that an impairment meets a listing, as she does here, she bears the burden of "present[ing] specific medical findings that meet the various tests listed under the description of the applicable impairment." Wilkinson ex rel. Wilkinson, 847 F.2d at 662. In doing so, Plaintiff must have a diagnosed condition that is included in the listings. Id. Diagnosis of a listed impairment, however, is not enough; as the claimant must also provide objective medical reports documenting that her impairment meets the specific criteria of the applicable listing. Id.; accord Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). Further, "[a]n impairment that manifests only some of [the specific] criteria [of the applicable impairment], no matter how severely, does not qualify." Sullivan, 493 U.S. at 530.
Listing 12.04 defines an affective disorder as "a disturbance of mood, accompanied by a full or partial manic or depressive syndrome." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04. Listing 12.06 defines anxiety related disorders as disorders where "anxiety is either the predominant disturbance or it is experienced if the individual attempts to master symptoms; for example, confronting the dreaded object or situation in a phobic disorder or resisting the obsessions or compulsions in obsessive compulsive disorders." Id. § 12.06. Both listings provide that the claimant meets the listing if the requirements in both paragraphs A and B are satisfied.
Id. §§ 12.04B. 12.06B.
In the present case, the ALJ evaluated the paragraph B criteria of each listing and determined that the severity of Plaintiff's mental impairments does not meet or medically equal Listings 12.04 and 12.06 or any other listing under 12.00 of the listings. Tr. 64. In order to evaluate the severity of a mental impairment, the Commissioner's regulations require the application of a "special technique," which the ALJ applied in this case. 20 C.F.R. § 404.1520a; see Tr. 64. Under the special technique, the ALJ will rate the degree of functional limitation in four broad functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). The degree of limitation in the first three areas are rated on a five point scale of none, mild, moderate, marked, and extreme; and the fourth area is rated as none, one or two, three, four or more. 20 C.F.R § 404.1520a(c)(4). The ALJ's decision must incorporate findings and conclusions based on the special technique. 20 C.F.R. § 404.1520a(e)(4).
Specifically, the ALJ here found:
Tr. 64. Plaintiff argues that she met the requirements of paragraph B of the listings based on Dr. Ajo's mental capacity assessment (Tr. 459-61), to which, as noted, the ALJ accorded little weight and the undersigned already has concluded substantial evidence supports that decision. Doc. 22 at 22. Accordingly, the Court finds that the ALJ properly evaluated Plaintiff's mental impairments under the paragraph B criteria and adequately explained his findings; thus substantial evidence supports his determination that Plaintiff does not meet one of the listed impairments.
Plaintiff finally contends, in a conclusory fashion, the ALJ erred in determining Plaintiff's RFC because he failed to include several of Plaintiff's limitations, again based on the assessment of Dr. Ajo, which was properly discounted by the ALJ. Doc. 22 at 23.
The RFC is the most that a claimant can do despite her limitations. See 20 C.F.R. § 404.1545(a). At the hearing level, the ALJ has the responsibility of assessing a claimant's RFC. See 20 C.F.R. § 404.1546(c). The ALJ is required to assess a claimant's RFC based on all of the relevant evidence in the record, including any medical history, daily activities, lay evidence and medical source statements. 20 C.F.R. § 404.1545(a). The claimant's age, education, work experience, and whether she can return to her past relevant work are considered in determining her RFC, Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1520(f)), and the RFC assessment is based upon all relevant evidence of a claimant's ability to do work despite her impairments. Phillips, 357 F.3d at 1238; Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1545(a)).
Here, in determining Plaintiff's RFC, the ALJ considered all of Plaintiff's impairments. Tr. 65-70. He specifically discussed the evidence related to Plaintiff's mental limitations, and "[d]ue to her mental impairments" limiting her RFC to simple, routine repetitive tasks and work that requires no more than occasional interaction with the public, co-workers or supervisors. Tr. 65. He discussed that his conclusion was supported by Plaintiff's treatment records and her activities of daily living. Tr. 67. As noted, the ALJ discussed at length Plaintiff's treatment records and opinions of Dr. Ajo, but properly discounted the weight of the opinions for the reasons discussed in this opinion. Tr. 69-70. Accordingly, substantial evidence supports the ALJ's conclusion as to Plaintiff's RFC.
The undersigned concludes that the ALJ applied the proper legal standards, and his determination that Plaintiff was not disabled from October 23, 2012 through May 27, 2014, the date of the ALJ decision, is supported by substantial evidence.
ACCORDINGLY, it is hereby
1. The decision of the Commissioner is
2. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner and close the file.
20 C.F.R. §§ 404.1567(b), 416.967(b).
