KEPLAR

v.

COMMISSIONER OF SOCIAL SECURITY

The Plaintiff seeks judicial review of the Commissioner’s denial of his claim for Disability Insurance Benefits (DIB). For the reasons discussed below, the Commissioner’s decision is affirmed.

I.

The Plaintiff was born in 1969, completed the eleventh grade, and has past relevant work experience as a window repairer. (R. 44-45, 58-59). In December 2014, the Plaintiff applied for DIB, alleging disability as of June 15, 2012, due to diabetes

F. 3d at 1305 n.2 (quoting Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1158 (11th Cir. 2004)). In evaluating whether substantial evidence supports the Commissioner’s decision, the Court “may not decide the facts anew, make credibility determinations, or re-weigh the evidence.” Carter, 726 F. App’x at 739 (citing Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005)). “[W]hile the court accords deference to the Commissioner’s factual findings, no such deference is given to [his] legal conclusions.”

Keel-Desensi v. Berryhill, 2019 WL 1417326, at *2 (M.D. Fla. Mar. 29, 2019) (citations omitted).

III.

On appeal, the Plaintiff contends that the ALJ failed to properly: (1) assess the retrospective opinion of his treating physician, Dr. Brandi Johnson; (2) evaluate his subjective complaints; and (3) consider all of the relevant medical evidence. (Doc. 22 at 10-31). The Commissioner counters that the ALJ’s treatment of the evidence was both appropriate and adequately supported by the record. Id. Upon thorough review of the record and the parties’ submissions, the Court finds no basis for reversal or remand.

A. Medical Opinions

In evaluating an individual’s disability claim, an ALJ “must consider all medical opinions in a claimant’s case record, together with other relevant evidence.” McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 962 (11th Cir. 2015) (citing 20 C.F.R. § 404.1527(b)).⁴ “‘Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite [his] impairment(s),

Here, the Plaintiff’s treating physician, Dr. Johnson, provided care to the Plaintiff from March to June 2015 for burns on his right leg and foot that he claims stemmed from his diabetes and peripheral neuropathy. (Doc. 22 at 8-9). On May 13, 2017, Dr. Johnson performed a physical functional capacity assessment of the Plaintiff and provided a retrospective assessment of his restrictions dating back to November¹, 2014, roughly two months before his date last insured. (R. 33-36). In her assessment, Dr. Johnson opined that, after November¹, 2014, the Plaintiff suffered from a number of significant exertional limitations that confined him to less than sedentary work during the relevant time frame. (R. 16, 34). In his decision, the ALJ afforded Dr. Johnson’s opinion “little weight.” As support for this assessment and as noted above, the ALJ found that the Plaintiff was less restricted than Dr. Johnson determined and that his claimed impairments were not disabling. Id. The ALJ also found that the Plaintiff’s diabetes mellitus, one of his impairments, was under control. Id. The Plaintiff now argues that the ALJ “erred by summarily dismissing Dr. Johnson’s opinion” on the grounds that she did not begin treating the Plaintiff until after his date last insured. (Doc. 22 at 15). This contention rests upon a misapprehension of the ALJ’s reasoning. A fair reading of the ALJ’s decision shows that he did not discount Dr. Johnson’s opinion due to the start date of her treating relationship with the Plaintiff. (R. 16). Rather, the ALJ noted the timeframe of that relationship as part of his finding that Dr. Johnson’s opinion was inconsistent with the treatment records prior to the Plaintiff’s date last insured. Id.5 This inconsistency— not the fact that Dr. Johnson did not treat the Plaintiff before his date last insured— led the ALJ to discount Dr. Johnson’s opinions. Contrary to the Plaintiff’s suggestion, the ALJ’s assessment of Dr. Johnson’s opinion is supported by substantial evidence. In evaluating the consistency of Dr. Johnson’s opinion with the record as a whole, the ALJ highlighted medical records of the Plaintiff’s primary care treatment with Suncoast Community Health Centers (Suncoast) in November 2014, as well as records reflecting other medical treatment he received before his date last insured. Id. The November 2014 Suncoast treatment records revealed that the Plaintiff denied a host of symptoms, complained of only uncontrolled hypertension, and rated his pain at a zero out of ten. (R. 308-09). The nurse practitioner at Suncoast who examined the Plaintiff during that period observed him to be in no acute distress and found his diabetes to be under control. Id. In addition, a review of the Plaintiff’s systems was deemed unremarkable, and the Plaintiff refused additional care from Suncoast for his hypertension at that time. Id. The Plaintiff’s earlier treatment records largely show more of the same. In June

2013, the Plaintiff was hospitalized after falling due to leg weakness and numbness. (R. 334-40). The Plaintiff, however, had not been taking medication or receiving any

which noted that he had not seen a primary care provider since 2009 and characterized his diabetes as uncontrolled. (R. 325). However, throughout his treatment with Suncoast, which continued through December 2014, the Plaintiff made few complaints regarding his extremities, was observed to be in no acute distress, and was assessed with diabetes mellitus that had been brought under control.⁶ E.g., (R. 310, 312, 314-18, 320-23, 325). While he reported numbness and tingling in his legs in October 2014 (R. 332), the Plaintiff’s December 2014 records reflect that he had no leg pain while performing routine activities, no rest pain, and no leg swelling (R. 399-400). His treatment provider recommended that he engage in regular exercise and gain good control over his diabetes. (R. 400). In addition to supporting the ALJ’s finding that Dr. Johnson’s opinion was at odds with the Plaintiff’s November 2014 medical records, the treatment records discussed above also bear out the ALJ’s finding that the Plaintiff’s diabetes mellitus

[c]ourt must affirm, even if the proof preponderates against it.”) (quoting Philips, 357 F. 3d at 1240 n.8).

B.

Subjective Complaints

The Plaintiff’s second contention, that the ALJ did not properly evaluate his subjective complaints, is likewise without merit. (Doc. 17 at 17-24). While the Plaintiff alleges that the ALJ committed various legal and factual errors in conducting this analysis, the thrust of his argument appears to be that the ALJ erred in discrediting the Plaintiff’s subjective complaints because the Plaintiff was noncompliant with his treatment. Id. at 17-22. As noted above, at step four of the sequential evaluation process, the ALJ must assess the claimant’s RFC and his ability to perform his past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545. To determine a claimant’s RFC, an ALJ must assess from all the relevant evidence of record what a claimant can do in a work setting notwithstanding any physical or mental limitations caused by the claimant’s impairments and related symptoms. Id. at § 404.1545(a)(1). As a result, in rendering the RFC determination, the ALJ must consider any medical opinions of record, all of the claimant’s medically determinable impairments (both severe and non-severe), the total limiting effects of each impairment, and the claimant’s subjective symptoms. Id.

at §§ 404.1520(e), 404.1545(a); see Jamison v. Bowen, 814 F. 2d 585, 588 (11th Cir. 1987) (stating that the “ALJ must consider the applicant’s medical condition taken as a whole” throughout the sequential evaluation process).

The evaluation of a claimant’s subjective complaints is governed by the “pain standard.” Dyer, 395 F. 3d at 1210. Under this standard, the claimant must show “(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from the condition or (3) that the objectively determined medical condition is of such severity that it can be reasonably expected to give rise to the alleged pain.” Id. (quoting Holt v. Sullivan, 921 F. 2d 1221, 1223 (11th Cir. 1991)).

Where a claimant satisfies this “pain standard,” the Regulations dictate that the ALJ then assess the intensity and persistence of the symptoms to determine how they limit the claimant’s capacity for work. 20 C.F.R. § 404.1529(c); see also SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017) (applicable as of Mar. 28, 2016). Considerations relevant to this evaluation include the objective medical evidence; evidence of factors that precipitate or aggravate the claimant’s symptoms; medications and treatments available to alleviate those symptoms; the type, dosage, effectiveness, and side effects of such medications and treatments; how the symptoms affect the claimant’s daily activities; and the claimant’s past work history. Id. A “claimant’s subjective testimony supported by medical evidence that satisfies the standard is itself sufficient to support a finding of disability.” Brown v. Sullivan, 921 F. 2d 1233, 1236 (11th Cir. 1991) (citations omitted). “After considering a claimant’s complaints of pain, the ALJ may reject them as not creditable, and that determination will be reviewed for substantial evidence.” Marbury v. Sullivan, 957 F. 2d 837, 839 (11th Cir. 1992) (citing Wilson v. Heckler, 734

F. 2d 513. 517 (11th Cir. 1984)). If the ALJ elects not to credit the claimant’s subjective complaints, he must articulate explicit and adequate reasons for doing so. Dyer, 395 F. 3d at 1210 (quotation and citation omitted). An ALJ, however, “need not cite particular phrases or formulations” in this evaluation, so long as the reviewing court can be satisfied that he “considered the claimant’s medical condition as a whole.” Id. at 1210 (quoting Foote v. Chater, 67 F. 3d 1553, 1561 (11th Cir. 1995)) (internal quotation marks omitted). A reviewing court will not disturb a clearly articulated credibility finding⁸ that is supported by substantial evidence in the record. Foote, 67 F. 3d at 1562 (citation omitted). Here, the ALJ gave “little probative weight” to the Plaintiff’s subjective reports as to the severity of his impairments because the ALJ found the Plaintiff’s complaints to be inconsistent with the relevant treatment records. (R. 16). In support of this finding, the ALJ cited the Plaintiff’s ability to perform various activities of daily living, medical evidence demonstrating the Plaintiff’s full strength and lack of focal neurological deficits, the Plaintiff’s noncompliance with his treatment, and the presence of a significant gap in that treatment. Id.

The Plaintiff’s challenges to the ALJ’s evaluation of his subjective complaints do not survive scrutiny. Citing Social Security Ruling (SSR) 82-599 and cases such as

882-83 (citations omitted); see also Smith v. Berryhill, 2019 WL 2755054, at *4 (M.D. Fla. July², 2019) (explaining that SSR 82-59 is “applied in situations in which a claimant would be found to be disabled but the claimant fails, without justifiable cause, to follow treatment prescribed by a treating source”). As Mack makes clear, SSR 82-59 has no application here. The ALJ did not deny the Plaintiff benefits because he failed to adhere to his prescribed treatment. Rather, the Plaintiff’s failure to comply with his treatment was but one factor upon which the ALJ relied in discounting the Plaintiff’s subjective reports regarding the severity of his symptoms. As such, the ALJ was under no obligation to follow SSR

82-59. See Crane v. Comm’r of Soc. Sec., 2017 WL 541571, at *13 (M.D. Fla. Feb.¹⁰, 2017) (distinguishing ALJ’s use of noncompliance with prescribed treatment to assess (11th Cir. 2010) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 n.9 (1990)). While they do not bind the courts, they are generally afforded deference. Id. (citation omitted). SSR 82-59, in particular, was rescinded and replaced effective October 29, 2018, but was in effect at the time of the ALJ’s decision. SSR 18-3P, 2018 WL 4945641 (S.S.A. Oct.², 2018). plaintiff’s subjective complaints from ALJ’s use of such noncompliance to deny plaintiff’s claim for benefits). The Court similarly discerns no error in the ALJ’s decision to discount the Plaintiff’s subjective complaints based, in part, upon his noncompliance with treatment and the significant gap that existed in that treatment. The Plaintiff’s argument on this front is two-fold: (1) he did not fail to comply with prescribed treatment; and (2) even if he did, any such noncompliance resulted from his financial inability to do so. (Doc. 22 at 19-20). Neither contention has merit. With respect to the former, there is adequate support for the ALJ’s finding that the Plaintiff did not comply with his treatment. (R. 16). After the Plaintiff established a primary care relationship with Suncoast in July 2013, records from this provider evidence a break in his treatment from February to August 2014. Although the Plaintiff avers he had been taking medication during this time frame, his August 29, 2014, treatment records show that he canceled all of his appointments during that period and also failed to follow a diabetic diet. (R. 315). As to the latter, the record does not buttress the Plaintiff’s contention that this significant treatment gap stemmed from a lack of financial resources. The only evidence the Court has located regarding the Plaintiff’s ability to obtain medical treatment concerns an earlier period, before he began his relationship with Suncoast in July 2013. (R. 40-41, 294, 325). Further, that evidence establishes only that the Plaintiff did not have insurance prior to that time. It does not specify that his lack of insurance resulted from a financial inability, as he now contends. (R. 294).

The Plaintiff’s remaining objections to the ALJ’s assessment of his subjective complaints are likewise unavailing. (Doc. 22 at 22-23). Notwithstanding the Plaintiff’s assertion to the contrary, the ALJ did not unduly rely on the Plaintiff’s ability to perform certain activities of daily living in finding that his subjective complaints lacked the requisite evidentiary support. (R. 16). Instead, the ALJ observed that the Plaintiff retained the ability to engage in a wide variety of daily activities, such as driving, walking for exercise, and participating in some household chores. Id. The ALJ then found that, in conjunction with certain medical evidence and the Plaintiff’s noncompliance with medical treatment, his capacity for activities of daily living undermined his subjective reports. Id. This analysis comports with the pertinent regulations and case law. 20 C.F.R. § 416.929(c)(3)(i) (listing daily activities as a factor relevant to an evaluation of a claimant’s symptoms); Kalishek v. Comm’r of Soc. Sec., 470 F. App’x 868, 871 (11th Cir. 2012) (citing 20 C.F.R. § 404.1529) (providing that ALJ may consider claimant’s daily activities when determining whether his testimony regarding her symptoms finds adequate support in the record). The cases on which the Plaintiff relies, where ALJs have found a plaintiff’s limited ability to engage in daily activities dispositive of his disability claim, are readily distinguishable and need not be addressed here. (Doc. 22 at 22-23). Nor is the Court persuaded by the Plaintiff’s reliance on the fact that his treatment providers diagnosed certain of his impairments as severe as support for his subjective reports. Id. It is well settled that a mere diagnosis of an impairment does not speak to the severity and limiting effects of the underlying condition. McCruter v. Bowen, 791 F. 2d 1544, 1547 (11th Cir. 1986) (“[T]he ‘severity’ of a medically ascertained disability must be measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality.”). As a result, this argument also fails.

C.

ALJ’s Consideration of Relevant Evidence

The Plaintiff’s final claim of error is also two-fold: (1) the ALJ failed to discuss two pieces of evidence supportive of his claim—namely, nerve conduction studies and a treatment provider’s observation that the Plaintiff had severe peripheral neuropathy, both falling after his date last insured;¹⁰ and (2) the ALJ failed to call a medical expert to testify as to the Plaintiff’s disability onset date. (Doc. 22 at 26-29). Both of these contentions are without merit. Contrary to the Plaintiff’s assertion, an ALJ is not obligated to discuss each piece of evidence as long as the ALJ’s decision demonstrates that he considered the claimant’s medical condition as a whole. Dyer, 395 F. 3d at 1211. By the Court’s lights, the ALJ’s decision shows that he considered the entire record in evaluating the Plaintiff’s medical condition as a whole, including records regarding treatment he received after his date last insured. The ALJ’s alleged failure to enlist the services of a medical expert to determine the Plaintiff’s disability onset date is also readily disposed of. The Plaintiff cites McManus v. Barnhart, 2004 WL 3316303 (M.D. Fla. Dec. 14, 2004), in support of this

The Eleventh Circuit has instructed, albeit in unpublished decisions, that SSR 83-20 applies “only after there has been a finding of disability and it is then necessary to determine when the disability began.” Caces v. Comm’r, Soc. Sec. Admin., 560 F. App’x 936, 939 (11th Cir. 2014) (citation omitted); see also Klawinski v. Comm’r of Soc. Sec., 391 F. App’x 772, 776 (11th Cir. 2010) (concluding “that the ALJ did not contravene SSR 83-20 because the ALJ ultimately found that [plaintiff] was not disabled, and SSR 83-20 only required the ALJ to obtain a medical expert in certain instances to determine a disability onset date after a finding of disability”). Thus, even if the Plaintiff succeeded in establishing that the relevant evidence was inadequate or ambiguous—a finding the Court does not make—his argument still fails because the ALJ did not find him disabled. In any event, the Court is satisfied that the record evidence prior to the Plaintiff’s date last insured (much of which is discussed above)

IV.

For the foregoing reasons, it is hereby ORDERED: 1. The Commissioner’s decision is affirmed. 2. The Clerk is directed to enter Judgment in the Defendant’s favor and to close the case. DONE and ORDERED in Tampa, Florida, this 30th day of September 2019.

rerhrp less RP ALG

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge

Copies to: Counsel of record