DAVIS

v.

COMMISSIONER OF SOCIAL SECURITY

MEMORANDUM OF DECISION¹

Timothy Ryan Davis (the “Claimant”), appeals a final decision of the

Commissioner of Social Security (the “Commissioner”), denying his claim for Social Security Disability Benefits (“DIB”) and supplemental social security (“SSI”). Doc. Nos. 1, 17. Claimant alleges an onset date of May 22, 2014. R. 16. Claimant’s date last insured for his DIB claim is September 30, 2015. R. 17.

Claimant filed his application for SSI on April 15, 2016. Id. Claimant argues that the Administrative Law Judge (the “ALJ”) erred in:¹) assigning limited weight to a treating physician’s opinion;²) finding Claimant’s mental impairments were not severe; and 3) failing to consider Claimant’s mental impairments in establishing his residual functional capacity (“RFC”). Doc. No. 17 at 11, 17. Upon

I. STANDARD OF REVIEW.

The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g) (2010). 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)). 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 evidence preponderates 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 Court must view the evidence as a whole, considering evidence that is favorable as well as unfavorable to the decision. Foote, 67 F. 3d at 1560. The District Court “‘may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].’” Phillips v. Barnhart, 357 F. 3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983)).

II. ANALYSIS.

The ALJ found that Claimant had the following severe impairments: status post left distal clavicle resection, hearing loss, spine disorders, and osteoarthritis. R.19. The ALJ found that Claimant's medically determinable mental impairments of anxiety, depression, and a learning disorder, considered singly and in combination, were non-severe. R. 19. The ALJ found that despite these impairments Claimant had the residual functional capacity (“RFC”) to perform light work with the following restrictions: [C]laimant is limited to lifting 20 pounds occasionally and lifting and carrying 10 pounds frequently. The claimant is limited to standing/walking for about six hours during an eight-hour workday. The claimant can sit for up to⁶ hours during an eight-hour workday. The claimant should never climb ladders, ropes, or scaffolds but can frequently climb ramps and stairs. The claimant can occasionally crawl. The claimant is a right hand dominant individual. He is limited to occasional overhead reaching with the non-dominant left upper extremity. The claimant should avoid concentrated exposure to extreme cold, vibration, use of moving machinery, and unprotected heights. He is limited to occupation with no more than a moderate noise intensity level as that terms is defined by the Dictionary of Occupational Titles (DOT).

R. 21-22.

A. Dr. Miltenberger’s Functional Capacity Opinions Dr. Miltenberger began treating Claimant in June 2018, after his date last insured, for torticollis and unspecified hip and knee pain. R. 26. On January 10, 2019, Dr. Miltenberger offered an opinion that Claimant could sit, stand or walk less than two hours each in an eight hour period, could not lift 10 pounds, could never twist, stop, crouch, or climb, would need to take unscheduled breaks, that he would miss more than four days of work per month, and that he had significant limitations in doing repetitive reaching, handling, or fingering. R. 974-76.

The ALJ gave Dr. Miltenberger’s opinion limited weight because:¹) Dr. Miltenberger’s physical exam findings were essentially unremarkable with no significant or ongoing abnormalities noted (although Claimant reported he was awaiting approval for hip surgery in October 2018) (citing Ex. 22F/26); Claimant reported waxing his car in 2015, taking yoga in 2017 (Ex. 17F), and riding a bicycle 10 miles in early 2018 (Ex. 22F/14); Claimant’s physical examination at Shands Neurology Clinic in August 2018 showed Claimant with 5/5 strength in all tested muscle groups, no edema, normal gait, and a normal EEG (citing Ex. 22F/16-18; 26F); and Claimant received conservative treatment for his pain. R. 26, 28. The ALJ found that the objective findings, course of treatment, and overall evidence were not consistent with the level of severity opined, including the inability to lift any weight, twist, stoop, crouch, or climb. Id. The ALJ also found Dr. Miltenberger’s opinion inconsistent with Claimant’s reported activities of daily living. Id., R. 27-28. Claimant argues that the ALJ did not offer “sufficient justification” for giving Dr. Miltenberger’s opinion little weight. Doc. No. 17 at 11. Claimant also argues that none of the ALJ’s findings were supported by substantial evidence because Dr. Miltenberger’s treatment notes contradict the ALJ’s reliance on unremarkable objective medical findings. Id. at 13. Claimant focuses on his own complaints that appear in the treatment notes for the most part and does not address the objective findings. Id. Claimant argues that his muscle spasms, hip, knee, and back pain support Dr. Miltenberger’s findings. Id. Claimant also argues that the record contradicts the ALJ’s finding that Claimant only received conservative treatment for his pain. Id. Claimant cites his arthroscopic surgery following his initial work accident in 2014,2 and recent records that reflect osteoarthritis in his right knee and hip, with the need for future surgery on his hip and knees, as well as degenerative changes in his cervical spine as contradicting the ALJ’s finding of conservative treatment. Id. at 13-14. Claimant next argues that the ALJ also erred in finding that Claimant’s daily activities contradicted Dr. Miltenberger’s findings because his testimony at the hearing was that he could bathe and dress himself, but he did not do chores3,

No. 3:06-cv-1101-J-MCR, 2008 WL 68593 at *11 (M.D. Fla. Jan.⁴, 2008); Paltan v. Comm’r of Soc. Sec., No. 6:07-cv-932-Orl-19DAB, 2008 WL 1848342 at *5 (M.D. Fla. Apr. 22, 2008) (“The ALJ’s failure to explain how [the treating doctor’s] opinion was ‘inconsistent with the medical evidence’ renders review impossible and remand is required.”). Claimant is essentially asking this Court to reweigh the record evidence, which is something the Court cannot do. Dyer v. Barnhart, 395 F. 3d 1206, 1210 (11th Cir. 2005). The Court finds that there was substantial evidence to support the ALJ’s decision to afford Dr. Miltenberger’s opinion little weight. The ALJ relied on the objective medical findings and Claimant’s activities of daily living.

Thus, there was substantial evidence to support the ALJ’s decision and the Court finds no reason to disturb that decision on review. See D’Andrea v. Comm’r of Soc. Sec., 389 F. App’x 944, 948 (11th Cir. 2010) (per curiam) (rejecting argument that

ALJ failed to accord proper weight to treating physician's opinion “because the ALJ articulated at least one specific reason for disregarding the opinion and the record supports it.”).

When a claimant presents a “colorable” claim of a mental impairment, the ALJ must apply the Psychiatric Review Technique (“PRT”) at step two. Moore v. Barnhart, 405 F. 3d 1208, 1213-14 (11th Cir. 2005); 20 C.F.R. § 404.1520a. The ALJ must assess a claimant’s degree of functional limitation in four areas, including a claimant’s ability to:¹) understand, remember, or apply information;²) interact with others; 3) concentrate, persist, or maintain pace; and⁴) adapt or manage oneself. 20 C.F.R. § 404.1520a(c)(2). The ALJ’s decision “must include a specific finding as to the degree of limitation in each of the functional areas” identified. Id. § 404.1520a(e)(4); Moore v. Barnhart, 405 F. 3d 1208, 1214 (11th Cir. 2005) (“social security regulations require the ALJ to complete a PRT [form] and append it to the decision, or incorporate its mode of analysis into his findings and conclusions”). If, after applying the PRT, the ALJ rates the functional limitations caused by the claimant’s mental impairment to be “none” or “mild,” then the ALJ will generally conclude that the impairment is not severe "unless the evidence otherwise indicates that there is more than a minimal limitation in [the claimant’s] ability to do basic work activities.” 20 C.F.R. § 404.1520a(d)(1).

The ALJ must provide a specific explanation for her opinion, including the degree of limitation found in the functional areas. 20 C.F.R. § 404.1520a(c)(4), (e)(4). The ALJ must incorporate the results of the PRT into the findings and conclusions. Jacobs v. Comm'r of Soc. Sec., 520 F. App'x 948, 950 (11th Cir. 2013).

Here, the ALJ properly applied the PRT and found that Claimant’s mental impairments of anxiety, depression, and a learning disorder, considered singly or in combination were non-severe and caused no more than mild limitation in his ability to perform basic mental work activities. R. 19. The ALJ fo und that Claimant had no more than mild limitations in interacting with others and concentrating, persistence, and pace. R. 20-21. The ALJ found Claimant had no limitations in understanding, remembering, and applying information, and in adapting and managing oneself. R. 21. The ALJ relied on record evidence that:¹) Claimant’s symptoms were wellmanaged with a conservative course of treatment with prescription drugs (Ex. 9F);

2) Claimant received mental health treatment from Dr. Tikku at the psychiatry clinic at Fish Memorial Hospital (Ex. 21F); 3) his mental status examinations were generally normal from October 2016 to June 2018, other than one report in June

2018 that he had an anxious affect (Exs. 9F, 17F, and 21F/36); 4) Claimant reported good control with Zoloft (Ex. 9F, 17F, and 21F);⁵) Claimant’s learning disorders, first diagnosed while he was attending school to be a nurse practitioner/physician assistant after college, had not precluded him from performing skilled work (Ex. 11F, 13F/15); and⁶) while affording his learning diagnosis great weight, the ALJ assigned the accommodations partial weight because Claimant had been able to perform skilled past relevant work at SGA levels, despite his learning impairments and his reported activities were inconsistent with significant mental impairments as he was able to: write a screenplay that won a semi-finalist award at a film festival, write a children’s novel, and was starting to do graphic design work (Ex.

13F, 9F/13). R. 19-20. The ALJ also noted: Dr. Nicotra⁶ found Claimant had an average working memory (Ex. 13F/11); Claimant was calm with euthymic mood, able to drive, had friends according to his own testimony, and had been a competitive cyclist (Ex. 22F/14); and Claimant was generally alert and oriented upon examination, and maintained intact judgment and insight (Ex. 5E). R. 20. Claimant argues that the record evidence contradicts the ALJ’s findings.

Claimant relies on Dr. Nicotra’s note that he had weak auditory processing skills that limited his ability to read, understand, and write when under pressure to perform and that his reading disorder would require additional time to complete assignments. Id.

Claimant is essentially asking this Court to reweigh the record evidence, which is something the Court cannot do. Dyer v. Barnhart, 395 F. 3d 1206, 1210 (11th Cir. 2005). The Court finds that there was substantial evidence to support the ALJ’s finding that Claimant mental impairments were non-severe. The ALJ relied on objective medical findings, Claimant’s own reports to providers that his mental impairments were well-managed with treatment and prescription medication, Claimant’s own self-reported activities, Dr. Tikku’s treatment records, and Dr. Nicotra’s testing records. R. 19-21, 28-29. Thus, there was substantial evidence to support the ALJ’s decision and the Court finds no reason to disturb that decision on review.

Claimant also argues that the ALJ failed to incorporate his mental limitations into his RFC, and as such, the error in finding his mental impairments non-severe was not harmless. Doc. No. 17 at 20. The finding of any severe impairment is enough to satisfy step two and if an ALJ finds any severe impairment at step two and proceeds beyond that step in the sequential analysis, any error in failing to find a claimant suffered from other severe impairments is harmless. Lucas, 2019 U.S. Dist. LEXIS 31788, at *7 (citing Gray v. Comm’ r of Soc. Sec., 550 F. App’x 850, 853-54 (11th Cir. 2013)). However, after making such a determination, an ALJ has an obligation to consider all of a claimant’s impairments in combination. Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 903 (11th Cir. 2011). “Consideration of all impairments, severe and non-severe, is required when assessing a claimant’s RFC.” Sumlin v. Saul, 2020 U.S. Dist. LEXIS 231058, at *17 (M.D. Fla. Nov. 23, 2020) (quoting Schink v. Comm'r of Soc. Sec., 935 F. 3d 1245,

1269 (11th Cir. 2019) In addition to the ALJ’s discussion of Claimant’s mental impairments in the step two analysis, the ALJ addressed Claimant’s mental impairments with respect to the RFC. R. 24, 27-29. The ALJ discussed Claimant’s treatment at Town Center Family Practice, his report of a history of good control of his anxiety on Zoloft, the statement of Lynn Bregman Blass, LMFT, the psychoeducational assessment conducted in February 2010 by Dr. Nicotra, Claimant’s reading disorder diagnosis, Claimant’s skilled past relevant work, Claimant’s own reports of activities that are inconsistent with significant mental impairment, including writing a screenplay and a children’s book, giving great weight to the opinions of

Nancy Dinwoodie, M.D. and James G. Brown, Ph.D., state agency psychiatric/psychological consultants who opined Claimant had no more than mild limitations, and Claimant’s treatment records which have generally shown normal findings associated with Claimant’s impairments of anxiety disorders, affective disorders, and history of learning disorders. R. 24, 27-29. The ALJ concluded that the RFC was consistent with the overall evidence. R. 29. The ALJ’s detailed discussion of Claimant’s treatment records, her assignment of weight to various opinions and statements regarding Claimant’s mental impairments, as well as consideration of Claimant’s own statements and activities reflect that she considered the combined effects of all Claimant’s impairments. R. 24-29. See Nicols v. Comm’r of Soc. Sec., 679 F. App’x 792, 797 (11th Cir. 2017). As such, remand is not required on this issue. Lucas, 2019 U.S. Dist. LEXIS 31788, at *7; Gray, 550 F. App’x at 853-54.

Accordingly, it is ORDERED that: 1. This matter is AFFIRMED; and

2. The Clerk is directed to close the case.

DONE in Orlando, Florida, on June², 2021.

DAVID A. BAKER

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Bartholomew C. Zadel Morgan & Morgan 988 Woodcock Road Orlando, Florida 32803 Maria Chapa Lopez United States Attorney John F. Rudy, II Assistant United States Attorney 400 N. Tampa St. Suite 3200 Tampa, FL 33602 Christopher G. Harris, Chief Counsel, Region IV John C. Stoner, Deputy Regional Chief Counsel Megan E. Gideon, Branch Chief Reginald V. Speegle, Assistant Regional Counsel Social Security Administration Office of the General Counsel Atlanta Federal Center 61 Forsyth Street, S.W., Suite 20T45 Atlanta, Georgia 30303-8920 The Honorable Melinda Hart Administrative Law Judge

Office of Hearing Operations SSA Oho Hearing Ofc Bldg 400, Suite 400 8880 Freedom Crossing Trail Jacksonville, Florida 32256-1224