VANHORN

v.

COMMISSIONER OF SOCIAL SECURITY

KILOLO KIJAKAZI,¹

Acting Commissioner of Social Security,

Defendant. ___ /

OPINION AND ORDER2

I. Status

Deborah Ann Vanhorn (“Plaintiff”) is appealing the Commissioner of the Social Security Administration’s (“SSA(’s)”) final decision denying her claim for disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the result of post-traumatic stress disorder (“PTSD”), severe anxiety, panic disorder, acute stress disorder, nightmares, flashbacks, irritable bowel syndrome, memory and concentration issues, “massive weight gain,” and

On November 14, 2017, Plaintiff filed an application for DIB, alleging a disability onset date of January 24, 2017. Tr. at 197.4 The application was denied initially, Tr. at 71-81, 82, 83, 100-02, and upon reconsideration, Tr. at 84-95, 96, 97, 104-09.

On June 27, 2019, an Administrative Law Judge (“ALJ”) held a hearing, during which she heard from Plaintiff, who was represented by counsel, a vocational expert (“VE”), and Plaintiff’s mental health counselor (James Cusack, Ph.D.).⁵ See Tr. at 32-70. On July 25, 2019, the ALJ issued a Decision finding Plaintiff not disabled through the date of the Decision. See Tr. at 15-27. Thereafter, Plaintiff requested review of the Decision by the Appeals Council, see Tr. at 194-96, and submitted additional evidence in the form of a brief authored by Plaintiff’s counsel, Tr. at 4, 5; see also Tr. at 281-83 (brief).

On February 27, 2020, the Appeals Council denied Plaintiff’s request for review,

Commissioner’s final decision. On appeal, Plaintiff argues that “[t]here was insufficient cause for the testimony of both [Plaintiff] and [Dr. Cusack] as to the limitations she experiences in day-to-day life to be given less than great weight.” Memorandum in Opposition to the Commissioner’s Decision (Doc. No. 24; “Pl.’s Mem.”), filed January 18, 2021, at 6; see id. at 2, 5-10.6 On March 19, 2021, Defendant filed a Memorandum in Support of the Commissioner’s Decision (Doc. No. 27; “Def.’s Mem.”) addressing Plaintiff’s argument. After a thorough review of the entire record and consideration of the parties’ respective memoranda, the undersigned finds that the Commissioner’s final decision is due to be affirmed. II. The ALJ’s Decision When determining whether an individual is disabled,⁷ an ALJ must follow the five-step sequential inquiry set forth in the Regulations, determining as appropriate whether the claimant (1) is currently employed or engaging in

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability pursuant to 42 U.S.C. § 405(g). Although no deference is given to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence.’” Doughty v. Apfel, 245 F. 3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F. 3d 1320, 1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395 F. 3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F. 2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard is met when there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Falge, 150 F. 3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec., 959 F. 3d 1042, 1045 (11th Cir. 2020) (citation omitted).

It is not for this Court to reweigh the evidence; rather, the entire record is reviewed to determine whether “the decision reached is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F. 2d 1143, 1145 (11th Cir. 1991) (citation omitted). The decision reached by the Commissioner must be affirmed if it is supported by substantial evidence—even if the evidence preponderates against the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

As mentioned above, Plaintiff’s argues that “[t]here was insufficient cause for the testimony of both [Plaintiff] and [Dr. Cusack] . . . to be given less than great weight.” Pl.’s Mem. at at 6; see id. at 5-10. Specifically, Plaintiff alleges that the ALJ did not sufficiently evaluate that “most activities were completed, in whole or in part, by [Plaintiff]’s spouse” and inadequately weighed “testimony of [Plaintiff’s] extreme difficulties in interaction with others” with respect to her mental health impairments. Id. at 9. Responding, Defendant asserts the ALJ did not err because “the ALJ [] considered inconsistencies within Plaintiff’s testimony, objective information from her treatment records, and Plaintiff’s treatment history, as reason to discount Plaintiff’s subjective complaints.” Def.’s Mem. at 5.8 For ease of discussion, the undersigned first addresses the arguments regarding Plaintiff’s testimony, followed by a discussion of Dr. Cusack’s testimony. A. Plaintiff’s Testimony “[T]o establish a disability based on testimony of pain and other symptoms, the claimant must satisfy two parts of a three-part showing: (1) evidence of an underlying medical condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain; or (b) that the objectively determined medical condition can reasonably be expected to give rise to the claimed pain.” Wilson v. Barnhart, 284 F. 3d 1219, 1225 (11th Cir. 2002) (citing

“When evaluating the claimant’s subjective symptoms, the ALJ must consider such things as: (1) the claimant’s daily activities; (2) the nature, location, onset, duration, frequency, radiation, and intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4) adverse side-effects of medications; and (5) treatment or measures taken by the claimant for relief of symptoms.” Davis v. Astrue, 287 F. App’x 748, 760 (11th Cir. 2008) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vi)). To reject the claimant’s assertions of subjective symptoms, “explicit and adequate reasons” must be articulated by the ALJ.

Wilson, 284 F. 3d at 1225; see also Dyer, 395 F. 3d at 1210; Marbury v. Sullivan, 957 F. 2d 837, 839 (11th Cir. 1992). In 2017, the SSA issued new guidance to ALJs about how to evaluate subjective complaints of pain and other symptoms. The SSA has “eliminat[ed] the use of the term ‘credibility’ from [its] sub-regulatory policy, as [the R]egulations do not use this term.” SSR 16-3P, 2017 WL 5180304, at *2 (Oct. 25, 2017). “In doing so, [the SSA has] clarif[ied] that subjective symptom evaluation is not an examination of an individual’s character.” Id. Accordingly,

ALJs are “instruct[ed] . . . to consider all of the evidence in an individual’s record when they evaluate the intensity and persistence of symptoms after they find that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms.” Id. “The change in wording is meant to clarify that [ALJs] aren’t in the business of impeaching claimants’ character; obviously [ALJs] will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence.” Cole v. Colvin, 831 F. 3d 411, 412 (7th Cir. 2016) (emphasis in original).

Here, the ALJ found that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in th[e D]ecision.” Tr. at 22. The ALJ determined that Plaintiff’s statements regarding the intensity, persistence, and limiting effects of her symptoms, are “inconsistent because they are not supported.” Tr. at 22.9 In support of this determination,

the ALJ provided a number of examples of Plaintiff’s testimony conflicting with the medical evidence of record. See Tr. at 22.

The ALJ further stated that Plaintiff has not had any inpatient hospitalization for her mental condition and her treatment records “note[] significant gaps in treatment[,]” suggesting that Plaintiff is not as limited as she claims. Tr. at 22 (citing Exhibit 10F (located at Tr. at 732-45)). Thus, the ALJ did not only rely on Plaintiff’s ability to perform some ADLs, such as calling and making her own appointments, but also adequately stated the reasons, including discussing Plaintiff’s medical and treatment records, for rejecting Plaintiff’s testimony. The ALJ concluded, “[Plaintiff]’s allegations [are] found to be partially supported in that she does experience some limitations in the ability to perform basic work activities and her [RFC] was adjusted accordingly.” Tr. at 24. This finding is supported by substantial evidence and need not be disturbed. B. Dr. Cusack’s Testimony The SSA revised the rules regarding the evaluation of medical evidence for claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (January 18, 2017); see also 82 Fed. Reg. 15,132 (March 27, 2017) (amending and correcting the final Rules published at 82 Fed. Reg.⁵,844). Because Plaintiff filed her claim after that date, the undersigned applies the revised rules and Regulations in effect at the time of the ALJ’s Decision. Under the new rules and Regulations, an ALJ need not “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . . , including those from [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a).¹⁰ The following factors are relevant in determining the weight to be given to a medical opinion: (1) “[s]upportability”; (2) “[c]onsistency”; (3) “[r]elationship with the claimant”; (4) “[s]pecialization”; and (5) other factors,

such as “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of [the SSA’s] disability program’s policies and evidentiary requirements.” 20 C.F.R. § 404.1520c(c). Supportability and consistency are the most important factors, and the ALJ must explain how these factors were considered. 20 C.F.R. § 404.1520c(b)(2). Generally, the ALJ is not required to explain how he or she evaluated the remaining factors. 20 C.F.R. § 404.1520c(b)(2). However, if the ALJ “find[s] that two or more medical opinions . . . about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same, [the ALJ must] articulate how [he or she] considered the other most persuasive factors . . . .” 20 C.F.R. § 404.1520c(b)(3). When a medical source provides multiple opinions, the ALJ is also not required to articulate how he or she evaluated each medical opinion individually. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). Instead, the ALJ

Here, it does not appear that Dr. Cusack, in his capacity as a licensed mental health counselor, is an “acceptable medical source” as defined in the Regulations. See 20 C.F.R. § 404.1502(a) (listing acceptable medical sources such as licensed physician, psychologist, optometrist, podiatrist); see also Tr. at

39 (Dr. Cusack, when asked whether he is “a licensed psychologist,” responding that he is a licensed mental health counselor); Tr. at 38 (Dr. Cusack discussing his education and degrees). In any event, even if Dr. Cusack qualifies an “acceptable medical source,” the ALJ articulated reasons for discounting his testimony consistent with the Regulations. See 20 C.F.R. § 404.1520c(b)(2); see also 20 C.F.R. § 404.1520c(c). The ALJ summarized Dr. Cusack’s testimony about Plaintiff’s treatment and visits, including Dr. Cusack’s testimony that Plaintiff’s PTSD is “severe” and she suffers from various symptoms of anxiety. See Tr. at 21; see also Tr. at 39-42 (testimony). The ALJ also noted that Dr. Cusack testified that Plaintiff cannot function on her own, needs assistance from her husband, and would not be able to handle life on her own. Tr. at 21; see also Tr. at 42-44 (testimony).

Finally, the ALJ summarized Dr. Cusack’s testimony that Plaintiff’s Global Assessment of Functioning (“GAF”) scores¹¹ were consistently below 50; Plaintiff’s ability to concentrate, focus, interact with others, and independently function were severely impaired; and that Plaintiff’s prognosis would not be improving anytime soon. Tr. at 21; see also Tr. at 44-46 (testimony). In the Decision, the ALJ found, as—to both Dr. Cusack’s opinions about Plaintiff’s mental health limitations in conjunction with her ability to function and her GAF scores—“that Dr. Cusack’s testimony was not persuasive, in that it is not supported by the evidence of record.” Tr. at 21. The ALJ did not err in rejecting Dr. Cusack’s testimony. The ALJ gave examples of why she rejected Dr. Cusack’s testimony, such as Plaintiff retaining the ability “to take care of her personal care, talk on the phone, cook and clean at times with only some help from her husband.” Tr. at 21; see Tr. at 49-50. The ALJ also noted (albeit in a different part of the Decision) that there were “severe gaps in treatment” and that Dr. Cusack’s notes “do[] not indicate any significant worsening of [Plaintiff’s] symptoms.” Tr. at 22; see Tr. at 732-45.

[Plaintiff]’s functioning persist[s] at these levels.” Tr. at 21. The ALJ also found a GAF score of 65, given on April¹, 2019, “slightly more persuasive than Dr[]. Cusack’s testimony” as it was assessed after a personal examination of Plaintiff. Tr. at 25; see also Tr. at 725 (noting the GAF score of 65); Tr. at 727 (noting a

GAF score of 55). While the ALJ did not cite any other exhibits in the paragraph rejecting Dr. Cusack’s testimony, it is clear the ALJ reviewed all the evidence contained in the administrative transcript in reaching her conclusion. See Tr. at 22-25.12

V. Conclusion

After a thorough review of the entire record, the undersigned finds that the ALJ’s Decision is supported by substantial evidence. Accordingly, it is ORDERED:

2. The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on September⁷, 2021.

Neate Row Rice

JAMES R. KLINDT

United States Magistrate Judge keh Copies: Counsel of Record