United States District Court, M.D. Florida, Tampa Division
ORDER AFFIRMING COMMISSIONER'S DECISION
Patricia D. Barksdale, United States Magistrate Judge
a case under 42 U.S.C. §§ 405(g) and 1383(c)(3) to
review a final decision of the Commissioner of Social
Security denying Matthew Peters's claim for disability
insurance benefits and supplemental security
income. He seeks reversal, Doc. 22; the
Commissioner, affirmance, Doc. 23. This order adopts the
summaries of facts in the Administrative Law Judge's
(“ALJ's”) decision, Tr. 17-25, and in the
Commissioner's brief, Doc. 23 at 2-4.
Social Security Administration uses a five-step sequential
process to decide if a person is disabled, asking whether (1)
he is engaged in substantial gainful activity, (2) he has a
severe impairment or combination of impairments, (3) the
impairment meets or equals the severity of anything in the
Listing of Impairments, 20 C.F.R. Part 404, Subpart P,
App'x 1, (4) he can perform any of his past relevant work
given his residual functional capacity (“RFC”),
and (5) there are a significant number of jobs in the
national economy he can perform given his RFC, age,
education, and work experience. 20 C.F.R. §§
presents three issues: (1) whether the ALJ erred at step two
by failing to find morbid obesity, psoriasis (reddish,
silvery-scaled lesions, typically on the elbows, knees,
scalp, and trunk),  and arthralgia (severe, noninflammatory
joint pain) severe impairments; (2) whether the ALJ erred by
failing to develop the record; and (3) whether the ALJ
complied with the Eleventh Circuit's pain standard. Doc.
22 at 2, 7-8.
was born in 1979 and last worked in March 2008. Tr. 177, 184,
202, 215. He has a high-school education and experience as a
stocker at a grocery store, a stocker and shipper at a
distribution center, a shipper at a bagel factory, and a
concession-stand worker at a movie theater. Tr. 203, 215. He
alleges he became disabled in March 2008 from a learning
disability and other mental impairments. Tr. 177, 184, 202.
He is insured for disability insurance benefits through
September 2008. Tr. 190. He was represented by an attorney
during the administrative process. Tr. 15. He proceeded
through the administrative process, failing at each level.
Tr. 1-6, 12-29, 72-73, 82-83. This case followed. Doc. 1.
to transcripts from Peters's high school, his grades
ranged from an F in English to an A in band. Tr. 264. A
technical assessment completed at the school rated his
general learning ability in the average range and recommended
the following programs: auto body technology, auto services
technology, construction trades technology, architectural
drafting, heating/ventilating/cooling, machine trades
technology, welding technology, electronics technology,
graphic arts technology, and video/applied communications.
Tr. 265. He scored above critical norms in spatial aptitude,
form perception, manual dexterity, general learning ability,
numerical aptitude, and clerical perception. Tr. 266-67.
Peters was in the eleventh grade, an examiner reported he had
struggled with school and staff members were concerned but he
was a “bright young man who has much potential.”
Tr. 273. Math was a strength; he performed at a ninth-grade
level and could apply knowledge to everyday life. Tr. 273. He
read at almost an eighth-grade level and was “able to
gain meaning from what he [read] even if he [was] unable to
read each and every word in a passage.” Tr. 273. He
often had to re-read a passage and needed time to process but
could produce the correct response if given enough time. Tr.
273. His written-language skills were deficient, and he
spelled at almost a fifth-grade level, though he appeared to
understand sentence-writing mechanics. Tr. 273. His general
knowledge was at a seventh-grade level. Tr. 273.
Individualized Educational Planning Committee report
completed before graduation designates no primary handicap
and indicates he completed a special education curriculum and
regular vocational education. Tr. 268-70.
March 2013, Thomas Antonek, Ph.D., examined Peters at the
request of the Florida Department of Health, Division of
Disability Determinations. Tr. 258-60. He conducted a
clinical interview and a mental status examination, reviewed
background information from the Division of Disability
Determinations, and reported the following. Tr. 258.
parents drove him to the appointment, and he completed the
written paperwork “without incident.” Tr. 258. He
was dressed casually, exhibited adequate hygiene, and looked
his stated age. Tr. 258. His psychomotor movements were
within normal limits. Tr. 258. He was cooperative and had
adequate conversation skills but spoke softly; limited the
conversation to short, simple, and concrete responses; showed
marked impairment in the use of multiple nonverbal behaviors;
and showed a lack of social and emotional reciprocity. Tr.
258. He had slow and concrete thought processes; no loose
associations or flight of ideas; adequate concentration and
attention; intact immediate, recent, and remote memory;
impaired judgment and insight; low average intellectual
ability; depressed mood; and congruent affect. Tr. 258. He
was oriented to person, place, time, and situation and denied
hallucinations and suicidal ideation. Tr. 258.
reported he had been diagnosed with learning disabilities in
reading, writing, and comprehension in the second grade and
was in special education classes throughout school. Tr. 259.
He did not have many friends in school and preferred to be
alone. Tr. 259. He began mental health treatment for
depression in January 2013 (two months before the
consultative exam). Tr. 259. He experiences sadness,
helplessness, increased irritability, concentration
difficulties, motivational difficulties, social isolation,
withdrawal, and low self-esteem. Tr. 259. In a normal day, he
gets up, watches television, showers, eats, and plays video
games. Tr. 259. He can perform activities of daily living but
lacks motivation. Tr. 259. His longest job was just over two
years at a movie theater, but he was fired because he watched
a few seconds of a movie. Tr. 259. His most recent job was
working at a factory for about a year, but he left that job
to move to Florida. Tr. 259. He has never lived
independently, living first with his parents, then with his
sister, and now with his grandparents. Tr. 259. He takes no
medication. Tr. 259.
Antonek summarized, “Overall, the score obtained on the
‘Mini Mental Status Exam' was in the High or Normal
Range of functioning. This indicates that the claimant is
unlikely to be suffering from cognitive impairment which
would interfere with daily functioning.” Tr. 259
(internal emphasis omitted). He listed diagnoses of recurrent
major depressive disorder, rule out Asperger's disorder,
rule out reading disorder, and rule out disorder of written
expression; assigned a Global Assessment of Functioning
(“GAF”) scale rating of 50; and opined Peters
can manage funds. Tr. 260. He recommended individual
psychotherapy to help coping skills, consultation with a
psychiatrist or nurse for psychotropic medication,
intellectual testing to assess baseline cognitive function
and potential learning disabilities, and referral to
vocational rehabilitation. Tr. 260. He opined Peters's
emotional and psychological functioning are
“guarded” and mitigating factors include
“the chronic nature of the multiple co-morbid
psychiatric conditions, the absence of any consistent
contemporary employment history, the lack of independent
living skills, and the inability to secure continuity of
health care without health insurance or the economic
resources to pay for services rendered.” Tr. 260.
2014, the Division of Vocational Rehabilitation referred
Peters to Jeffrey Merin, Ph.D., P.A., for evaluation of his
learning disability and a personality assessment. Tr. 277-83.
Dr. Merin reviewed Peters's history and, in addition to
the history described in other reports, noted he had been
found guilty of possession of child pornography, had been
sentenced to five years' probation (ending in 2019), and
is a registered sex offender. Tr. 277-78. He also noted
Peters complained of chest pain, palpitations, profuse
sweating, generalized fear, and emotional factors that
aggravate his psoriasis. Tr. 278.
mental status examination showed Peters was cooperative,
compliant, and oriented in all spheres with no evidence of a
formal thought disorder or manic condition. Tr. 278. He
exerted “good levels of effort and motivation”
but had trouble responding “in a cogent and timely
manner.” Tr. 278. He had simplistic, concrete, and
limited communication skills; gave coherent and logical
information; displayed appropriate affect with no evidence of
emotional distress; and described his mood as mildly
depressed and anxious due to his probationary status and
unemployment. Tr. 279. He wore a long-sleeved shirt though it
was a hot day, explaining the sleeves protect his psoriasis.
testing placed Peters in the average range for verbal
comprehension and perceptual reasoning but revealed
significant weaknesses in abstraction and vocabulary and
relative weaknesses in attention, concentration, and fine
motor dexterity under timed conditions. Tr. 280. His
nonverbal abilities were in the average to above-average
range. Tr. 280.
of achievement factors showed “multiple learning
disabilities including reading, writing, and
arithmetic.” Tr. 280. Dr. Merin opined Peters has
marked difficulties, is functioning between elementary- and
middle-school levels, and has “exceptionally
poor” processing speed and general vocabulary. Tr. 280.
He was unable to read, comprehend, and respond reliably to a
personality inventory, but other tests showed mild depression
and compromised psychological factors. Tr. 281. Dr. Merin
opined Peters's difficulties processing complex
information beyond the middle-school level could
“preclude an array of jobs that require basic academics
as well as problem-solving strategies.” Tr. 282. He
diagnosed Peters with reading disorder, disorder of written
expression, mathematics disorder, persistent depressive
disorder, major depressive disorder, generalized anxiety
disorder, and an other specified personality disorder, and
noted he had psoriasis and a felony conviction. Tr. 283. He
The combination of physical, cognitive/intellectual, as well
as academic difficulties significantly compromises Mr.
Peters'[s] capacity to maintain gainful employment at
this time. However, with assistance and appropriate
intervention, Mr. Peters may be capable of part-time work. A
job coach will be necessary. Additionally, proper and
appropriate psychiatric intervention will be necessary in
order to help Mr. Peters minimize the negative effects of
social withdrawal. In the absence of improvement, Mr.
Peters'[s] prognosis for gainful employment is poor.
Tr. 283. He recommended a psychiatric evaluation to determine
appropriate medication and job placement and that those with
whom Peters works should clearly articulate all goals,
responsibilities, and communications in writing. Tr. 283.
September 2014, Ernesto Rodriguez, M.D., examined Peters as a
new rheumatology patient. Tr. 284-87. Dr. Rodriguez observed
he was a “pleasant white male in no distress, ”
could walk without adaptive devices, was obese, was
accompanied by his father, and used a right ankle monitoring
brace. Tr. 284. Physical findings were normal except for
diffuse psoriatic lesions over the trunk and extremities,
sacroiliac joint tenderness to palpation, thoracic spine
tenderness, sciatic notch tenderness, and dactylitis (finger
inflammation) over the second digit of his left hand. Tr.
284-85. On a 28-joint exam, swelling was seen on one and
tenderness on none. Tr. 286. Peters reported his current pain
was 6 on a 10-point scale and, in the past week, his average
pain level had been 5, his best pain level had been 3, and
his worst pain level had been 8. Tr. 286. Dr. Rodriguez's
assessment was “arthralgias, rule out inflammatory
polyarthritis”; “questionable evidence of
dactylitis”; well-controlled psoriasis; and morbid
obesity that is likely contributing to his musculoskeletal
complaints. Tr. 286. Dr. Rodriguez prescribed medication for
the arthralgia, ordered imaging and lab work, and advised him
to lose weight. Tr. 286- 87.
March 2013, in connection with the Social Security
Administration's initial decision, Robin McCallister,
Ph.D., reviewed the evidence and completed a psychiatric
review technique assessment. Tr. 65-66. She opined Peters has
a severe affective disorder and a mild restriction in
activities of daily living; mild difficulties maintaining
social functioning; moderate difficulties maintaining
concentration, persistence, or pace; and has had no episode
of decompensation of extended duration. Tr. 65.
McCallister also completed a mental RFC assessment. Tr.
67-69. She opined Peters has no understanding or memory
limitation. Tr. 67. On concentration, persistence, and pace,
she opined Peters has moderate limitations in his ability to
carry out detailed instructions, maintain attention and
concentration for extended periods, work in coordination with
or in proximity to others without being distracted by them,
complete a normal workday and workweek without interruptions
from psychologically based symptoms, and perform at a
consistent pace without an unreasonable number and length of
rest periods; and no significant limitations in his ability
to carry out very short and simple instructions, perform
activities within a schedule, maintain regular attendance, be
punctual, sustain an ordinary routine without special
supervision, and make simple work-related decisions. Tr.
67-68. On social functioning, she opined he has moderate
limitations in his ability to maintain socially appropriate
behavior and adhere to basic standards of neatness and
cleanliness; no significant limitation in his ability to ask
simple questions, request assistance, and get along with
coworkers and peers without distracting them or exhibiting
behavioral extremes; and no evidence of limitation in his
ability to interact appropriately with the general public,
accept instructions, and respond appropriately to criticism
from supervisors. Tr. 68. On adaptation, she opined he has
moderate limitations in his ability to respond appropriately
to changes in work setting and no significant limitation in
his ability to be aware of normal hazards, take appropriate
precautions, travel in unfamiliar places, use public
transportation, set realistic goals, and make plans
independently of others. Tr. 68-69.
Dr. McCallister opined Peters can understand and remember
simple and detailed instructions, carry out simple and some
detailed instructions in two-hour increments in an eight-hour
day, relate adequately without potential for significant
problems with coworkers and supervisors, and adapt to changes
and pressures in a routine work environment. Tr. 69.
reconsideration, Pauline Hightower, Psy.D., repeated Dr.
McCallister's opinions. Tr. 88-92.
February 2013, Peters, with the help of his sister, completed
a function report and reported the following.
lives in a house with his family. Tr. 207. During the day, he
showers, eats, visits his parents next door, watches
television, eats again, sleeps, eats again, then sleeps
again. Tr. 208. He sometimes sleeps all day and is up all
night or does not sleep at all. Tr. 208. His sister sometimes
drops off an animal for him to watch for a few days, but his
grandmother helps him and he otherwise does not take care of
any people or animals. Tr. 208. Daily, he prepares food such
as spaghetti, sandwiches, hot dogs, or grilled food. Tr. 209.
He can spend two hours doing laundry, two hours mowing, and
one hour doing dishes, but only if someone asks him to. Tr.
209. He sometimes goes outside for an hour and travels by
walking or driving. Tr. 210. He shops for groceries at Publix
one or two times a week for ten minutes at a time but has to
“hurry and get out.” Tr. 210. His hobbies are
watching television and learning about history, and he does
them daily. Tr. 211. He visits his parents daily and goes to
church weekly, though he needs reminders to go places and
needs someone to accompany him. Tr. 211.
conditions affect his ability to work because he cannot
comprehend what he reads, has “high anxiety with lots
of people, ” writes on a second-grade level, is
“easily raged, ” and is depressed. Tr. 207. He
has trouble talking, concentrating, understanding, following
instructions, and getting along with others. Tr. 212. Those
conditions have been present since childhood. Tr. 208. He has
no problem with personal care and needs no reminders to take
care of personal needs, groom himself, or take medicine. Tr.
walk about 280 feet before he needs to rest for 10 minutes.
Tr. 212. His attention span varies depending on what he is
paying attention to, and he does not finish what he starts,
has trouble with written instructions because he cannot
comprehend them, and has trouble with spoken instructions
because he needs to be told multiple times. Tr. 212. He
cannot pay bills, handle a savings account, or use a
checkbook or money orders because he has never done so
before. Tr. 210. Sometimes people make him mad for no reason,
and since his conditions began, he keeps more to himself. Tr.
212. He was fired from a job at a movie theater because the
supervisor did not like him but otherwise is