United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE
appeals to this Court from a final decision of the Acting
Commissioner of Social Security (the
“Commissioner”) denying Plaintiff's
application for a period of disability, Disability Insurance
Benefits, and Supplemental Security Income pursuant to the
Social Security Act. ECF No. 1. The Commissioner has
answered, and both parties have filed briefs outlining their
respective positions. ECF Nos. 9, 16, 17. For the reasons
discussed below, it is recommended that the
Commissioner's decision be affirmed.
March 2012 applications alleged disability beginning in
December 2011. R. 240-46, 347-52. Her applications were
denied initially and upon reconsideration. R. 137-44, 145-94,
216-40. Following an initial hearing, an administrative law
judge (“ALJ”) issued a decision unfavorable to
Plaintiff in November 2013, finding that Plaintiff was
capable of performing her past relevant work as a home health
attendant. R. 199-206. In March 2015 the Appeals Council
granted review and remanded Plaintiff's case for further
consideration. R. 212-14. A different ALJ issued a second
unfavorable decision. R. 14-33. The Appeals Council denied
Plaintiff's request for review. R. 1-7.
then filed the instant appeal. ECF No. 1. Plaintiff argues
that the ALJ erred in evaluating her subjective complaints,
that the ALJ failed to develop the record, and that she
should have been found disabled because the ALJ's
residual functional capacity (“RFC”) finding is
not supported by the record, in light of her combined
impairments. ECF No. 16.
STANDARD OF REVIEW
Commissioner's findings of fact are conclusive if
supported by substantial evidence. See 42 U.S.C.
§ 405(g) (2012). Substantial evidence is more than a
scintilla, i.e., the evidence must do more than merely create
a suspicion of the existence of a fact, and must include 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) (citing Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982),
Richardson v. Perales, 402 U.S. 389, 401 (1971));
accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991).
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, 937 F.2d at 584 n.3; 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, 67 F.3d at 1560; accord Lowery
v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding
that the court must scrutinize the entire record to determine
reasonableness of factual findings); Parker v.
Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the
court must also consider evidence detracting from evidence on
which the Commissioner relied). However, the district court
will reverse the Commissioner's decision on plenary
review if the decision applies incorrect law, or if the
decision fails to provide the district court with sufficient
reasoning to determine that the Commissioner properly applied
the law. Keeton v. Dep't Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result
in death, or has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C.
§§ 416(I), 423(d)(1) (2012); 20 C.F.R. §
404.1505 (2015). The impairment must be severe, making
Plaintiff unable to do her previous work, or any other
substantial gainful activity which exists in the national
economy. § 423(d)(2); 20 C.F.R. §§
must follow five steps in evaluating a claim of disability.
20 C.F.R. § 404.1520. The claimant has the burden of
proving the existence of a disability as defined by the
Social Security Act. Carnes v. Sullivan, 936 F.2d
1215, 1218 (11th Cir. 1991). First, if a claimant is working
at a substantial gainful activity, she is not disabled.
§ 404.1520(b). Second, if a claimant does not have any
impairment or combination of impairments which significantly
limit her physical or mental ability to do basic work
activities, then she does not have a severe impairment and is
not disabled. § 404.1520(c). Third, if a claimant's
impairments meet or equal an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1, she is disabled. §
404.1520(d). Fourth, if a claimant's impairments do not
prevent her from doing past relevant work, she is not
disabled. §§ 404.1520(e)-(f). Fifth, if a
claimant's impairments (considering her RFC, age,
education, and past work) prevent her from doing other work
that exists in the national economy, then she is disabled.
burden of proof regarding the plaintiff's inability to
perform past relevant work initially lies with the plaintiff.
Walker v. Bowen, 826 F.2d 996, 1002 (11th Cir.
1987); see also Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). The burden then temporarily shifts to
the Commissioner to demonstrate that “other work”
which the claimant can perform currently exists in the
national economy. Doughty, 245 F.3d at 1278
SUMMARY OF THE RECORD
determined that Plaintiff has the severe impairments of a
seizure disorder, obesity, hypertension, degenerative disc
disease of the lumbar spine, COPD, status post
cerebrovascular accident (CVA) with residual effects
(including hemiplegia), and chronic pain syndrome. R. 19.
Plaintiff does not have an impairment or combination of
impairments that meets or equals the listings. R. 20. The ALJ
determined that Plaintiff has the RFC for light work, with
additional exertional, postural, environmental, and mental
limitations. Id. The ALJ concluded that
Plaintiff's subjective complaints regarding the limiting
effects of her impairments were not entirely consistent with
the objective medical evidence. Upon evaluating the
additional factors that must be considered when assessing the
persuasiveness of subjective complaints, the ALJ concluded
that Plaintiff's subjective complaints and alleged
limitations were not fully persuasive. R. 23-25. To support
this finding, the ALJ extensively discussed the relevant
medical evidence, including the assessment of an examining
consulting physician, Dr. Eftim Adhami, and the opinions of
non-examining consultants who concluded that Plaintiff could
perform work at greater than the light exertional level. R.
determined that Plaintiff was unable to return to her past
relevant work as a Resident Care Aide, which she had
performed at the “very heavy” exertional level.
Based upon the testimony of a VE, the ALJ determined that in
view of Plaintiff's age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform, such as office
helper, mail clerk, and router. The ALJ therefore found that
Plaintiff was not disabled. R. 26-27.
Medical and Opinion Evidence
records that are relevant to Plaintiff's claims in this
appeal may be summarized as follows. Plaintiff was treated
from January 2011 through May 2013, at Putnam Community
Medical Center for complaints relating to hypertension,
recurrent seizures, and headaches. Plaintiff's CT scans
were negative for intracranial hemorrhage, subdural
collections, or focal abnormalities. R. 462-63; 566-67.
was treated at UF/Shands between October 27, 2011, and
January 5, 2012, for treatment of her seizure disorder. An
EEG was normal and negative for epileptiform discharges. R.
May 2012 to late 2015, Plaintiff was treated at Family
Medical and Dental Centers/Azalea Health for localized
osteoarthritis of the right ankle, hypertension, seizure
disorder, COPD and chronic pain syndrome. R. 472-73. Clinic
notes reflect that her COPD and chronic pain were fairly
well-controlled with medication. Plaintiff was counseled on
the importance of medication compliance and smoking
cessation. In December 2013, Plaintiff reported having a
generalized tonic-clonic seizure for the first time in six
months. Her medication was increased and was increased again
at a follow-up visit after she had a nocturnal seizure. Her
medication was adjusted after Plaintiff reported drowsiness.
In February 2014, Plaintiff reported having no further
seizures but she complained of drowsiness. R. 680-794.
February 2015, Plaintiff was treated at Putnam Community
Medical Center for complaints of slurred speech and facial
droop. She was treated for acute CVA (stroke) as well as
breakthrough seizures and hypertension. Clinic notes reflect
that she had subtherapeutic levels of her medication. A
consulting neurologist assessed that Plaintiff's
breakthrough seizures were “likely due to
subtherapeutic Dilantin level as well as noncompliance with
anticonvulsant medications.” R. 808. Plaintiff was
discharged in stable condition with a referral for physical
therapy and recommendations to quit smoking and maintain
medication compliance. R. 809-28.
after her discharge, Plaintiff presented at UF/Shands with
the same complaints and was treated for two more days. Her
EEG was normal, but imaging confirmed a subacute infarct in
the right basal ganglia and right thalamus. The neurologist
observed that Plaintiff had “no significant
disability” and that she was able to “carry out
all usual activities”, despite some symptoms. She was
discharged in good condition, with recommendations to stop
smoking and maintain medication compliance. Plaintiff
followed up at Azalea where she exhibited mildly impaired
short-term memory and non-dominant left-sided weakness with
slight gait abnormality. R. 755-60; 922-44.
presented to the emergency department on other occasions in
2014-15 for complaints of breakthrough seizures and/or back
pain. R. 832-33, 836-38, 844-46. Treatment records from April
2015 reflect that Plaintiff had not complied with lifestyle
changes such as smoking cessation, diet, and exercise, nor
had she followed through with referrals to an internist, for
lab work, and an EEG. R. 680-794, 848, 1056, 1057-59. The
notes state that Plaintiff would “run out of
anti-epileptic drugs and will go days up to one week before
refilling them” and noted her seizures were
“refractory due to intermittent non-adherence to
medication.” R. 764. July 2015 treatment notes reflect
that a second anti-seizure medication would be added to ...