WELCH

v.

COMMISSIONER OF SOCIAL SECURITY

MEMORANDUM OF DECISION¹

THIS CAUSE is before the Court on Claimant’s appeal of an administrative decision denying her application for disability insurance benefits. In a decision dated September 26, 2019, the Administrative Law Judge (ALJ) found that Claimant had not been under a disability, as defined in the Social Security Act, from March 18, 2017, the alleged disability onset date, through December 31, 2017, Claimant’s date last insured.² Having considered the parties’ memoranda and being otherwise fully advised, the Court concludes, for the reasons set forth herein, that the Commissioner’s decision is due to be AFFIRMED.

I. Issues on Appeal

Claimant makes the following four arguments on appeal:¹) The ALJ failed to adequately support his rejection of Dr. Nimbargi’s opinion. See Doc. 28 at 26. 2) The ALJ failed to properly evaluate Claimant’s testimonial evidence. See Doc. 28 at 28.

II. Standard of Review

As the Eleventh Circuit has stated:

In Social Security appeals, we must determine whether the Commissioner’s decision is supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner]. Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1178 (11th Cir. 2011) (citations and quotations omitted). “With respect to the Commissioner’s legal conclusions, however, our review is de novo.” Lewis v. Barnhart, 285 F. 3d 1329, 1330 (11th Cir. 2002).

III. Discussion

A. Dr. Nimbargi’s Opinion Here, Claimant argues that the ALJ erred in discounting the opinion of Dr. Nimbargi. The Court rejects this argument. At step four of the sequential evaluation process, the ALJ assesses the claimant’s residual functional capacity (RFC) and ability to perform past relevant work. Phillips, 357 F. 3d at 1238. “The residual functional capacity is an assessment, based upon all of the relevant evidence of a claimant’s remaining ability to do work despite his impairments.” Lewis v. Callahan, 125 F. 3d 1436, 1440 (11th Cir. 1997).

The ALJ is responsible for determining the claimant’s RFC. 20 C.F.R. §§ 404.1546(c); 416.946(c).

In doing so, the ALJ must consider all relevant evidence, including, but not limited to, the medical opinions of the treating, examining, and non-examining medical sources. 20 C.F.R. §§ 404.1545(a)(1), (3); 416.945(a)(1), (3); see also Rosario v. Comm’r of Soc. Sec., 877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012).3 The consideration of medical source opinions is an integral part of steps four and five of the sequential evaluation process. The Social Security Administration revised its regulations regarding the consideration of medical evidence—with those revisions applicable to all claims filed after March 27, 2017. See 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017).

Because Claimant filed her claim after March

22, 2017,4 20 C.F.R. § 404.150c and 20 C.F.R. § 416.920c are applicable in this case. Under these provisions, an ALJ must apply the same factors in the consideration of the opinions from all medical sources and administrative medial findings, rather than affording specific evidentiary weight to any particular provider’s opinions. 20 C.F.R. §§ 404.1520c(a); 416.920c(a). The ALJ must consider:¹) supportability;²) consistency;³) relationship with the claimant;⁵ 4) specialization; and⁵) “other factors that tend to support or contradict a medical opinion or prior administrative medical finding.” 20 C.F.R. §§ 404.1520c(c)(1)–(5); 416.920c(c)(1)–(5).

After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except with the following limitations: The claimant can frequently balance, stoop, kneel, crouch, crawl, and climb stairs and ramps. The claimant is limited to frequently handling and fingering with her bilateral upper extremities. The claimant must avoid concentrated exposure to extreme cold temperatures, wetness, humidity, and pulmonary irritants.

R. 34.

The undersigned considered a November 20, 2017 Medical Source Statement of Claimant’s Physical Abilities completed by the claimant’s treating physician, family medicine doctor, Stephen Nimbargi, M.D. (Ex. 11F).

Dr. Nimbargi noted an impairment of fibromyalgia. He opined the claimant could work less than⁴ cumulative hours in an 8-hour workday. She could occasionally lift 1-10 pounds, but never more than 10 pounds. The claimant could stand and walk less than² hours’ total in an 8-hour workday. The claimant could stand and walk greater than one hour at one time without interruption. The claimant could sit² to less than⁴ hours’ total in an 8-hour workday, and greater than one hour at one time without interruption. Dr. Nimbargi did not assess postural limitations, or limitations with regard to the use of the arms/hands. No environmental limitations were assessed. The claimant’s conditions would require 2-4 unplanned absences per month. Dr. Nimbargi noted no side effects were established as a result of medication or treatment.

Contrarily, the record also documented a second medical source statement, also dated November 20, 2017 from Dr. Nimbargi, related to the claimant’s impairment of hypothyroidism and diabetes mellitus, type II. In this statement, Dr. Nimbargi opined the claimant could work 4-6 cumulative hours in an 8-hour workday, sit, stand, or walk less than² hours total, and 15-30 minutes at one time (Ex. 12F).

The undersigned finds Dr. Nimbargi’s opinion is not persuasive in this determination. Similarly, the opinion is not consistent with his exam findings as noted above, and is not consistent with the claimant’s reported activities of daily living, which included working out at the gym and walking three miles, five times a week.

. . .

The record further documented an April 2018 rheumatology medical assessment from primary care provider, Dr. Stephen Nimbargi, who noted the claimant was affected in⁴ of 18 tender points as classified by the American College of Rheumatology. Although this assessment is beyond the date last insured, the undersigned considered the assessment for completeness, as Dr. Nimbargi has been the claimant’s primary care physician since she established care in December 2016 (See 13F/2).

Dr. Nimbargi reports the claimant’s pain is precipitated by overexertion. Dr. Nimbargi opined the claimant pain would be expected to cause more than⁴ unexpected absences per month, and she would need unplanned breaks of 1- 10 minutes every² hours or more. In this statement, Dr. Nimbargi opined the claimant could occasionally reach or twist with her hands, and occasionally handle, finger, feel, write or type with her right hand (Ex. 15F).

As above, the undersigned finds Dr. Nimbargi’s statement regarding the claimant’s limitations are not supported by his very physical findings, and are not persuasive in this determination. The undersigned notes in particular, the findings represent a significant change from the November 20, 2017 statements, and the changes are not reflected or documented in his objective/physical findings. The undersigned notes also, that the exam findings do not meet the criteria to establish fibromyalgia pursuant SSR 12-2p.

Finally, the undersigned notes that the treatment entries do not establish the claimant’s pain or symptoms have caused unexpected absences from activities, and the recommended breaks of 1-10 minutes every two hours are recognized as normal breaks from most any employer. R. 37–39. The ALJ found Dr. Nimbargi’s medical source statements to be inconsistent with Dr. Nimbargi’s own exam findings. Id. Indeed, the ALJ even found that two of Dr. Nimbargi’s source statements—dated the exact same day—were inconsistent with each other. For example, Dr. Nimbargi opined that Claimant could not work more than four cumulative hours in a workday. See R.

443.

However, the ALJ noted that Dr. Nimbargi’s contrary source statement—dated the same day—stated Claimant could work from four to six cumulative hours in a workday. R.

38.

Thus, after considering Dr. Nimbargi’s source statements and findings the ALJ found the opinion unpersuasive. R.

38.

Further, the ALJ explained that Dr. Nimbargi’s source statements are also inconsistent with the record evidence. R.

38. For example, Dr. Nimbargi opined that Claimant can stand and walk for less than two hours, sit two to four hours, and occasionally lift one to ten pounds. R.

37.

However, the ALJ found that this was inconsistent with the Claimant’s “reported activities of daily living, which included working out at the gym and walking three miles, five times a week.”7 R. 7 Claimant also argues that the ALJ misrepresented Claimant’s testimony. R. 26, 28.

However, the Claimant did state that she walks three miles, five times a week both during the hearing (R. 63–64) and in reporting to her doctor (R. 460, 490). The ALJ noted this in the decision. R. 35,

37.

Thus, it is unclear to the Court how the ALJ misrepresented Claimant’s testimony.

38.

Consequently, the ALJ found Dr. Nimbargi’s source statements inconsistent with the record evidence.

In sum, the ALJ found Dr. Nimbargi’s medical source statements to be inconsistent with each other, unsupported by Dr. Nimbargi’s own exam findings, and inconsistent with the record evidence. Claimant’s arguments to the contrary essentially ask the Court to reweigh the evidence,

which is not this Court’s function.⁸ Winschel, 631 F. 3d at 1178. The ALJ’s findings as to Dr. Nimbargi’s opinion are supported by substantial evidence, and thus the Court finds no reversible error. B. Claimant’s Testimony Next, Claimant argues that the ALJ failed to support her analysis of Claimant’s subjective complaints with substantial evidence. The Court rejects this argument. An individual seeking disability benefits has the burden to prove she is disabled and unable to perform her past relevant work. Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005). A claimant may establish “disability through his own testimony of pain or other subjective symptoms.” Dyer v. Barnhart, 395 F. 3d 1206, 1210 (11th Cir. 2005). A claimant seeking to establish disability through his or her own testimony must show:

But even considering the argument, the Lowell General Hospital documents appear to be medical records from two separate emergency room visits. See R. 274–303; 318–379. If there are medical opinions expressed in these records, Claimant does not point the Court to where—within the nearly 100 pages—any medical opinions are expressed. See, e.g., Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 602 n.6 (11th Cir. 2017).

Further, the ALJ did explicitly reference the records from Claimant’s second emergency room visit. See R. 36, 318–379.

Accordingly, the Court rejects this argument. (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) (per curiam); see also 20 C.F.R. § 404.1529 (setting out standards for evaluating pain and other symptoms).

If the ALJ determines that the claimant has a medically determinable impairment that could reasonably produce the claimant’s alleged pain or other symptoms, the ALJ must then evaluate the extent to which the intensity and persistence of those symptoms limit the claimant’s ability to work. 20 C.F.R. § 404.1529(c)(1).

In doing so, the ALJ considers a variety of evidence, including, but not limited to, the claimant’s history, the medical signs and laboratory findings, the claimant’s statements, medical source opinions, and other evidence of how the pain affects the claimant’s daily activities and ability to work. Id. at § 404.1529(c)(1)–(3). “If the ALJ decides not to credit a claimant’s testimony as to her pain, he must articulate explicit and adequate reasons for doing so.” Foote v. Chater, 67 F. 3d 1553, 1561–62 (11th Cir. 1995).

The Court will not disturb a clearly articulated credibility finding that is supported by substantial evidence. See id. at 1562 (11th Cir. 1995).

Here, the ALJ found that “[C]laimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of symptoms are not entirely consistent with the medical evidence and other evidence in the record . . . .” R.

37. The ALJ provided further explanation in support of her credibility determination as follows: [Claimant’s statements concerning the intensity, persistence, and limiting effects of symptoms] are inconsistent because treatment entries in the record reflect generally conservative treatment and overall relief of symptoms with medication (See Ex. 14F/8, 13, 15, & 24). More importantly, the claimant reports the ability to regularly engage in physical activities, including going to the gym, and walking³ miles five times a week (See Ex. 13F/14 & 14F/12).

Additionally, the claimant’s subjective complaints are not supported by objective and diagnostic findings in the record, certainly not to the extent to which she alleges, as primary care exam findings are generally benign, the brain CT and venous Doppler were negative. A careful review of the evidence reveals no related significant findings on subsequent exams status post treatment with meds for alleged fibromyalgia.

Accordingly, the undersigned has appropriately considered the claimant’s subjective complaints and medically documented functional limitations in the residual functional capacity assessment, through the date last insured.

R.