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Overton v. Commissioner of Social Security

United States District Court, M.D. Florida, Orlando Division

May 13, 2019

DELORES ANN OVERTON, Claimant,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          DANIELC. IRICK UNITED STATES MAGISTRATE JUDGE

         Delores Ann Overton (Claimant) appeals the Commissioner of Social Security's final decision denying her application for disability benefits and supplemental security income. Doc. 1. Claimant contends that the Administrative Law Judge's (ALJ) decision to deny her benefits was “arbitrary, capricious, and was not supported by the law or the evidence.” Id. Claimant requests that the Court remand the case for further consideration of her application consistent with the Social Security Administration's regulations. Id. For the reasons set forth below, it is RECOMMENDED that the Commissioner's final decision be AFFIRMED.

         I. PROCEDURAL HISTORY

         This case stems from Claimant's application for a period of disability and disability insurance benefits, and supplemental security income. Doc. 1. On July 21, 2014, Claimant filed her application for a period of disability and disability insurance benefits. Doc. 1 at 1-2; Doc. 17-2. On March 9, 2015, Claimant filed an application for supplemental security income. Id. On May 8, 2017, the ALJ found that she was not disabled within the meaning of the Social Security Act from February 9, 2015[1] through the date of the decision. R. 32. The Appeals Counsel denied Claimant's request for review on March 2, 2018. R. 1.

         II. THE ALJ'S DECISION

         In the decision, the ALJ found that Claimant has the following severe impairments: peripheral neuropathy, depression, and anxiety. R. 19. However, the ALJ determined that Claimant did not have an impairment or combination of impairments that met or medically equaled any listed impairment. R. 21.

         The ALJ found that Claimant has the Residual Functional Capacity (RFC) to perform “light work” as defined in 20 CFR §§ 404.1567(b) and 416.967(b) with the following specific limitations:

[C]an lift, push, pull, and carry 20 pounds occasionally and 10 pounds frequently; can stand, walk, and sit six hours each out of an eight-hour workday; cannot work at unprotected heights or around dangerous machinery; cannot have to drive as a condition of employment; limited to frequent fingering, handling, and feeling; limited to simple, routine tasks; and, can work with and respond appropriately to supervisors, coworkers, and the general public on an occasional basis.

R. 23. The ALJ also found that Claimant did not engage in substantial gainful activity since February 9, 2015, the amended alleged onset date. R. 19. The ALJ found that there were jobs that existed in significant numbers in the national economy that Claimant could have performed considering her age, education, work experience, and RFC. R. 32. The ALJ found that Claimant was not disabled from February 9, 2015 through the date of the decision. Id.

         III. STANDARD OF REVIEW

         The scope of the Court's review is limited to determining whether the Commissioner applied the correct legal standards, and whether the Commissioner's findings of fact are supported by substantial evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotations omitted). The Commissioner's findings of fact are conclusive if they are supported by substantial evidence, 42 U.S.C. § 405(g), which is defined as “more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the Commissioner's decision, when determining whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). The Court may not reweigh evidence or substitute its judgment for that of the Commissioner, and, even if the evidence preponderates against the Commissioner's decision, the reviewing court must affirm it if the decision is supported by substantial evidence. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

         IV. ANALYSIS

         Issue No. 1: Whether the Substantial Evidence Supports the ALJ's Assessments of Claimant's B Criteria Limitations.[2]

         Claimant contends that the ALJ “impermissibly cherry-picked entries from certain records, and failed to even reference, much less consider, critical evidence of record favorable to [Claimant].” Doc. 21 at 15. In so doing, Claimant argues that the ALJ's assessment of her limitations in the B Criteria is unsupported and “resulted in harm throughout the rest of the decision.” Id.

         The ALJ considered whether Claimant's mental impairments, considered singly and in combination, meet or medically equal the criteria of listings 12.04 (affective disorders) or 12.06 (anxiety related disorders). R. 21. 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 v. Yuckert, 482 U.S. 137, 141 (1987), cited in Sullivan v. Zebley, 493 U.S. 521, 532 (1990). The Eleventh Circuit has described how the standard is met or equaled:

In order to meet a listing, the claimant must (1) have a diagnosed condition that is included in the listing and (2) provide objective medical reports documenting that this condition meets the specific criteria of the applicable listing and the duration requirement. A diagnosis alone is insufficient. In order to equal a listing, the medical findings must be at least equal in severity and duration to the listed findings.

Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (citing 20 C.F.R. § 416.925(c)-(d)).

         Paragraph B of listing 12.04 and 12.06 require a claimant to demonstrate at least one extreme or two marked limitations in a broad area of functioning which are: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing themselves. 20 C.F.R. § 404.1520a(c)(3), 416.920a(c)(3).

         Here, the ALJ found that Claimant had moderate limitations in all four of the areas of functioning. R. 21. As such, the ALJ determined that the “paragraph B” criteria were not satisfied because her mental impairments did not cause at least two marked limitations or one extreme limitation. Id., citing 20 CFR part 404, subpart P, app'x 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).[3]

         In support of her claim that the record was “cherry-picked, ” Claimant argues that the ALJ failed to consider: (1) the “longitudinal findings from Park Center;” (2) “critical” evidence from Claimant's functional report; (3) “critical” evidence from Dr. Roy's examination; (4) the GAF score of 47; (5) the Indiana Family and Social Services Administration's finding that Claimant is “medically frail;” and (6) physical examination findings, which further reveal the extent of her severe anxiety and depression. Doc. 21 at 16-18.

         There is some authority to support Claimant's argument that the evidence may not be “cherry-picked.” See Dicks v. Colvin, 2016 WL 4927637, at *4 (M.D. Fla. Sept. 16, 2016) (finding that the “ALJ is obligated to consider all relevant medical evidence and may not cherry-pick facts to support a finding of non-disability while ignoring evidence that points to a disability finding.”). However, the undersigned is not persuaded that Claimant's “cherry-picking” argument entitles her to relief under the circumstances of this case.

         As an initial matter, with regard to the first three arguments, Claimant essentially provides a list of “findings” that the ALJ allegedly failed to consider and does not specify how the “findings” pertain to each of the four areas of functioning. She states that certain findings were “noted” in the records and were ignored (Doc. 21, pgs. 16, 17), but does not explain how consideration of these notes supports a finding of an extreme or marked limitation in any of the areas. Thus, Claimant waived the argument. See Jacobus v. Comm'r of Soc. Sec., 2016 WL 6080607, at *n.2 (11th Cir. 2016) (stating that claimant's perfunctory argument was arguably abandoned.).

         The only one of these three arguments that includes any level of specificity is her claim that the ALJ failed to consider critical evidence from Dr. Roy's examination. Without further analysis, Claimant states that “[u]ltimately, Dr. Roy opined that Plaintiff would have moderate limitations in her ability to understand, remember, and carry out even simple instructions in a sustained manner due to her trauma, depression, and anxiety.” Doc. 21 at 17, citing R. 506. As such, it would appear that Claimant asserts that this finding should have been considered with regard to “understanding, remembering, or applying information.”

         Indeed, the ALJ did not cite to Dr. Roy's opinion in the discussion of this area of functioning. See R. 22. Even so, the ALJ determined that the evidence that was considered was “inconsistent with more than moderate limitations in this area of functioning, ” which is actually consistent with Dr. Roy's opinion. R. 22. In other words, even if Claimant provided an adequate argument to explain why the ALJ erred by not considering the opinion, there is no showing that Claimant had anything more than the assigned limitation. See Caldwell v. Barnhart, 261 Fed.Appx. 188, 189 (11th Cir. 2008) (finding that the ALJ's failure concerning doctor's opinions was harmless error because the application of the doctor's limitations would not have changed the result.).

         The undersigned recognizes that Claimant complains that the ALJ should have considered other notations in Dr. Roy's examination. Doc. 21 at 17. But again, Claimant does not discuss how these portions of the record lead to anything more than a moderate limitation, and the argument is, therefore, waived. In any event, Claimant states that the ALJ should have considered Dr. Roy's notation that Claimant had to be “admonished to breathe deep and slow down a couple of times during examination.” Doc. 21 at 17. It appears that Claimant cites to the notation in an attempt to challenge the ALJ's finding that Claimant's concentration was “strong.” The ALJ considered Dr. Roy's “disability evaluation” with regard to the area of concentrating, persisting, or maintaining pace. R. 22. In doing so, the ALJ stated that Claimant's concentration was “strong.” R. 22. Under the category of “concentration and attention, ” Dr. Roy provides “[i]n tasks above, (calculation, counting, etc.) and additional observations of the client in the context of this evaluation, her performance was consistently strong. She was reminded however, to deep breathe and slow down a couple of times.” R. 505-506. Thus, while Claimant is correct that Dr. Roy reminded her to breath deeply and slow down, that does not undermine Dr. Roy's concurrent opinion that Claimant's performance was strong; an opinion consistent with the ALJ's findings.

         Further, the undersigned notes with regard to the same area of function that the ALJ stated that Dr. Roy's evaluation reflected that there was no evidence of “distortion in thought form.” R. 22. This is incorrect. Dr. Roy actually stated under the content, form, and complexity of cognition category of the evaluation that “Delores showed some evidence of distortion in form.” R. 506.

         Even if the ALJ based the “moderate limitation” in the concentrating, persisting, or maintaining pace area on the foregoing inaccurate or incomplete citations to the record or failed to consider the other findings in Dr. Roy's report, the undersigned still finds that any error was harmless. Nowhere in Dr. Roy's report does it reference “marked” or “extreme” limitations. As such, consideration of the report as a whole does not support a finding of a greater limitation. Notably, assuming that Dr. Roy's findings would actually support a marked limitation in this area, because there is certainly no persuasive argument that there was an extreme limitation, Claimant has not demonstrated that there is another area of marked limitation and, therefore, no basis for relief. See Golden v. Comm'r of Soc. Sec., 2015 U.S. Dist. LEXIS 174323 (M.D. Fla. 2015) (finding the ALJ's determination would not be affected as the claimant failed to establish a marked limitation in an additional domain or an extreme limitation in one domain.).

         The same holds true for the other arguments concerning the “longitudinal findings” and Claimant's “function report.” Notwithstanding waiver, Claimant invites the Court to reweigh the evidence, which is not permitted. See Heckler, 703 F.2d at 1239. To be sure, Claimant contends that “this is not a matter of reweighing the facts; rather, the inquiry is whether the ALJ ever properly considered the evidence before him.” Doc. 21 at 18. But the undersigned notes that there is a fine line between evaluating the decision for “cherry-picking” and reweighing the evidence. Assuming that Claimant's argument goes beyond a simple request that the Court reweigh the evidence, the undersigned still finds that there is substantial evidence to support the ALJ's decision on the “paragraph B” criteria, and that the ALJ did not impermissibly “cherry pick” evidence supporting the ALJ's conclusions and ignore substantial, contrary evidence. Indeed, there is substantial evidence supporting the ALJ's finding that Claimant had less than marked limitations in all of the areas of functioning.

         In addition to the first three arguments, Claimant next contends that the ALJ failed to consider her GAF score of 47, which she says indicates “serious symptoms or a serious impairment in social, occupational, or school functioning.” Doc. 21 at 17, citing R. 592.[4] The GAF score indicates the clinician's subjective assessment of the individual's overall functioning, but does not itself reveal a particular type of limitation and does not constitute an assessment of a claimant's ability to work. Thornton v. Comm'r, Soc. Sec. Admin., 597 Fed.Appx. 604, 613 (11th Cir. 2015); Ward v. Astrue, 2008 WL 1994978, at *3 (M.D. Fla. May 8, 2008). Furthermore, GAF scores bear no direct correlation to the severity requirements of the mental disorder listings. See Thornton, 597 Fed.Appx. at 613; Lacina v. Comm'r, Soc. Sec. Admin., 2015 WL 1453364, at *6 (11th Cir. Apr. 1, 2015). In fact, the Commissioner has "declined to endorse the GAF scale for use in the Social Security and SSI disability programs, and has indicated that GAF scores have no direct correlation to the severity requirements of the mental disorder listing." Wind v. Barnhart, 133 Fed.Appx. 684, 692 n.5 (11th Cir. 2005) (per curiam) (quoting 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000) (internal quotations omitted)).

         Here, the ALJ's decision was supported by substantial evidence even though the ALJ did not refer to the GAF score. See Lacina, 2015 WL 1453364, at *6 (finding that the ALJ's failure to mention or assign weight to GAF scores of 35 and 40 that can reflect major mental impairments was harmless error.). Accordingly, the undersigned finds the ALJ's failure to consider the score does not entitle Claimant to relief.

         In her fifth argument under this “issue, ” Claimant asserts that the ALJ improperly failed to consider the Indiana Family and Social Services Administration's finding that she is “medically frail.” Doc. 21 at 17. Claimant states this finding “. . . means, in relevant part, either: (1) disability mental disorder; (2) chronic substance abuse disorder; (3) serious and complex medical condition; or (4) physical, intellectual or developmental disability that significantly impairs the individual's ability to perform one or more activities of daily living.” Id. at 17-18.

         While she correctly provides that SSR 06-03p identifies public and private social welfare agency personnel as other sources which provide special knowledge and insight into the severity of the impairment, Claimant's assertion does not show how the ALJ's finding regarding the “paragraph B” criteria limitation was unsupported. There is no analysis to assist the Court in connecting the “medical frailty” finding to her conclusion that one of the disorders, conditions or impairments exist because that finding was made and the overall relevance of that finding. The undersigned finds that the argument is waived. See NLRB v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a perfunctory manner, without supporting arguments and citation to authorities, are generally deemed to be waived.”). Further, there is also “no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision" so long as the decision considers the claimant's medical condition as a whole. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam). The undersigned finds that the decision meets this requirement. See also, Voronova v. Astrue, 2012 WL 2384044, at *1 (M.D. Fla. June 25, 2012) (where the ALJ's opinion extensively discussed other evidence in record, failure to mention opinion of "other source" was not reversible error, as substantial evidence supported the ALJ's decision to essentially afford no weight to the opinion).

         Lastly, Claimant argues that the ALJ “fail[ed] to consider physical examination findings, which further reveal the extent of [her] severe anxiety (Tr. 515) and depression (Tr. 447-49, 509, 711-15).” This statement is the entirety of the argument and there is no analysis. Besides including the citation to the records, Claimant does not identify the findings that the ALJ allegedly failed to take into consideration or provide any argument beyond this conclusory sentence. As such, the undersigned finds that Claimant has waived this argument. See Singh v. U.S. Att'y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (explaining that “simply stating an issue exists, without further argument or discussion constitutes abandonment of that issue.”).[5]

         In sum, it is recommended that the Court reject Claimant's assignment of error with respect to the ...


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