COYKENDALL

v.

COMMISSIONER OF SOCIAL SECURITY

This is an appeal of the administrative denial of disability insurance benefits (DIB) and period of disability benefits.¹ See 42 U.S.C. § 405(g). Plaintiff argues the administrative law judge (ALJ) failed to properly weigh the medical opinions, accurately assess the severity of his mental impairments, and consider the testimony of his wife and his vocational rehabilitation specialist. Plaintiff also contends the consultative examination the ALJ ordered after Plaintiff’s first administrative hearing was unconstitutional. After considering the parties’ arguments and the administrative record (docs. 12, 16), I find the Commissioner’s decision is supported by substantial evidence. I affirm.

A. Background

Plaintiff Joshua Coykendall was born on August 29, 1976, and was 38 years old on his alleged onset date of July 28, 2015 (42 years old on the date of the ALJ’s decision). (R. 26) He alleges disabling back, neck, knee, lumbar, and trapezius pain due to ankylosing spondylitis (AS)

lift 20 pounds occasionally and up to 10 pounds frequently. However, he can stand and walk for about² hours and sit for up to 6 hours in an 8-hour workday, with normal and customary breaks (i.e., he can perform work activity in increments of² hours separated by a morning break, an afternoon break, and a 30-minute lunch break). He must avoid operating foot controls and avoid climbing ladders, ropes, and scaffolds. He can occasionally climb ramps, or a stair, but he can frequently balance and occasionally stoop, kneel, crouch, and crawl. He can frequently reach but is limited to performing overhead reaching occasionally. He can frequently handle, should avoid concentrated exposure to extreme cold and excessive vibration, and must avoid all industrial hazards, defined as the use of hazardous industrial machinery and unprotected heights. Further, the claimant can work in a position where he can alternate sitting and standing nearly at-will (i.e., after 20 minutes of sitting he will need an option to stand for 1-3 minutes, but will not be off-task 10% or more of a typical day by doing so).

(R. 19) In his decision, the ALJ found that, with this RFC, Plaintiff could not perform his past work but could work as an administrative clerk or an administrative assistant. (R. 27) Plaintiff appealed the ALJ’s decision to the Appeals Council (AC), which denied review. (R. 2) His administrative remedies exhausted, Plaintiff filed this action.

B. Standard of Review

To be entitled to DIB, a claimant must be unable to engage “in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” See 42 U.S.C. § 423(d)(1)(A). A “‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” See 42 U.S.C. § 423(d)(3). The Social Security Administration, to regularize the adjudicative process, promulgated detailed regulations. These regulations establish a “sequential evaluation process” to determine if a claimant is disabled. See 20 C.F.R. § 404.1520. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4). Under this process, the Commissioner must determine, in sequence, the following: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment(s) (i.e., one that significantly limits his ability to perform work-related functions); (3) whether the severe impairment meets or equals the medical criteria of Appendix¹, 20 C.F.R. Part 404, Subpart P; (4) considering the Commissioner’s determination of claimant’s RFC, whether the claimant can perform his past relevant work; and (5) if the claimant cannot perform the tasks required of his prior work, the ALJ must decide if the claimant can do other work in the national economy in view of his RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4). A claimant is entitled to benefits only if unable to perform other work. See Bowen v. Yuckert, 482 U.S. 137, 142 (1987); 20 C.F.R. § 404.1520(f), (g). In reviewing the ALJ’s findings, this Court must ask if substantial evidence supports those findings. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The ALJ’s factual findings are conclusive if “substantial evidence consisting of relevant evidence as a reasonable person would accept as adequate to support a conclusion exists.” Keeton v. Dep’t of Health and Human Servs., 21 F. 3d 1064, 1066 (11th Cir. 1994) (citation and quotations omitted). The Court may not reweigh the evidence or substitute its own judgment for that of the ALJ even if it finds the evidence preponderates against the ALJ’s decision. See Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983). The Commissioner’s “failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F. 3d at 1066 (citations omitted).

C. Discussion

1. Lay witness and “other source” testimony

Plaintiff argues the ALJ erred because he did not discuss either Plaintiff’s wife’s statements (made to Earl Teller, Ph.D. during a April², 2018 psychological evaluation) that Plaintiff’s struggles with anxiety and depression impact his daily life (R. 2896-2897) or the opinion of Ms. Salek, who opined in March 2018 that Plaintiff does not have the RFC to perform even sedentary work. (R. 411) The Commissioner acknowledges that the ALJ’s decision does not reference these sources but contends this omission is, at most, harmless error. I agree with the Commissioner. Regarding Plaintiff’s wife’s statements, under the regulations in effect when Plaintiff filed his claim, third-party testimony by a lay person is considered “other source” testimony. 20 C.F.R. § 404.1513. This evidence may be used in addressing the nature and severity of an impairment. Id. In evaluating the evidence, the ALJ should consider whether the evidence is consistent with the other evidence in the case, the nature and extent of the claimant’s relationship to a witness, and any other factors that tend to support or refute the evidence. SSR 06-3p.2 According to the Eleventh Circuit:

The testimony of family members is evidence of a claimant’s subjective feeling of pain. See Tieniber v. Heckler, 720 F. 2d 1251, 1253 (11th Cir. 1983). Even if the ALJ fails to make an explicit credibility determination as to a family member’s testimony or statements, however, we will not find error if the credibility determination was implicit in the rejection of the claimant’s testimony. Id. at 1254- 55 (citing Allen v. Schweiker, 642 F. 2d 799 (5th Cir. 1981)).

Osborn v. Barnhart, 194 F. App’x 654, 666 (11th Cir. 2006); see also Williams v. Saul, No. 5:18- cv-158-MJF, 2019 WL 4280055, at *16 (N.D. Fla. Sept. 9, 2019). And, of course, the ALJ does not need to discuss every piece of evidence, so long as he considered Plaintiff’s medical condition as a whole. Mitchell v. Comm’r of Soc. Sec., 771 F. 3d 780, 782 (11th Cir. 2014); Dyer v. Barnhart, 395 F. 3d 1206, 1211 (11th Cir. 2005). Plaintiff’s wife attended his April 2018 consultative psychological evaluation with Dr. Teller and offered her observations of Plaintiff’s symptoms and how they impact his life, which Dr. Teller referenced in his report. For example, Dr. Teller wrote: “According to Mr. Coykendall and his wife Raequel, he has been experiencing numerous symptoms of both depression and anxiety over the past several years.” (R. 2896) And, “[a]ccording to Raequel, who is a school teacher, his functioning has deteriorated significantly, especially over the last five years.” (Id.)

59, 91-103) Plaintiff does not challenge either the VE’s testimony, the ALJ’s reliance on it, or the ALJ’s RFC determination. Neither does Plaintiff point me to any specific evidence supporting Ms. Salek’s opinion, opting instead for the bare bones argument that her findings are “clearly probative.” (Doc. 16 at 14). Under these circumstances, I find the ALJ’s failure to mention Ms. Salek’s opinion was harmless error. See Iordan v. Comm’r of Soc. Sec., 579 F. App’x 775, 779 (11th Cir. 2014) (“[r]emand is unnecessary when it would amount to a waste of judicial resources in the face of an ample record”); Sanchez v. Comm’r of Soc. Sec., 507 F. App’x 855, 856 (11th Cir. 2013) (courts should decline “to remand for express findings when doing so would be a wasteful exercise in light of the evidence of record and when no further findings could be made that would alter the ALJ’s decision.”) (internal quotation marks omitted). Plaintiff’s first argument is unavailing.

2. Severity of Mental Impairments

Next, Plaintiff argues the ALJ erred in considering his depression, anxiety, and ADD/ADHD to be non-severe impairments at step two of the sequential evaluation process. I disagree. Plaintiff’s emphasis on step two is somewhat misguided.¹ Step two requires only that

1 The Eleventh Circuit has held that “a claimant’s impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience.” McDaniel v. Bowen, 800 F. 2d 1026, 1031 (11th Cir. 1986); see also 20 C.F.R. § 404.1521(a) (“An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.”). the ALJ determine whether Plaintiff suffers from at least one severe impairment. See Jamison v. Bowen, 814 F. 2d 585, 588 (11th Cir. 1987) (holding “the finding of any severe impairment . . . whether or not it results from a single severe impairment or a combination of impairments that together qualify as severe” is enough to satisfy step two). “Nothing requires that the ALJ must identify, at step two, all of the impairments that should be considered severe.” Heatly v. Comm’r of Soc. Sec., 385 F. App’x 823, 825 (11th Cir. 2010) (citing Bowen v. Heckler, 748 F. 2d 629, 635 (11th Cir. 1984)). At step two the ALJ found Plaintiff suffers from the severe impairments of recurrent lipomas, chronic sinusitis, status post-anterior lumbar interbody fusion, degenerative disc disease, AS, lumbar radiculopathy, hypertension, status post-hypertensive TIA, and cervical spine and shoulder disorders. (R. 17) In reaching this finding, the ALJ considered Plaintiff’s other impairments and concluded: Plaintiff’s “anxiety, depression, and ADD/ADHD, considered singly and in combination, do not cause more than minimal limitations in the claimant’s ability to perform basic mental work activities and, therefore, are non-severe.” (R. 18) This satisfies the step two inquiry and constitutes substantial evidence that the ALJ considered the combined impacts of a claimant’s impairments. Wilson v. Barnhart, 284 F. 3d at 1223. Plaintiff appears to conflate the ALJ’s duty at step two to evaluate Plaintiff’s severity of impairments with his duties and steps four and five. At steps two and three, the ALJ employs a special technique for evaluating mental impairments (called the Psychiatric Review Technique, or PRT) to assess the claimant’s functional limitations in four areas: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. 20 C.F.R. § 404.1520a(c)(3); see Moore v. Barnhart, 405 F. 3d 1208, 1213-14 (11th Cir. 2005). The ALJ incorporates the results of the PRT into his findings and conclusions at steps four and five of the sequential evaluation process. Jacobs v. Comm’r of Soc. Sec., 520 F. App’x 948, 950 (11th Cir. 2013). But the PRT is separate from the ALJ’s evaluation of a claimant’s RFC, which is an assessment of a claimant’s maximum ability to do work despite her impairments. The mental RFC is a more detailed assessment of the claimant’s ability to function. Winschel, 631 F. 3d at 1180. In other words, an ALJ must be more thorough in evaluating a claimant’s RFC at step four than in assessing the severity of mental impairments at steps two and three. Id. Plaintiff makes only vague and conclusory arguments that the ALJ erred at step two; Plaintiff does not cite to any specific evidence contained in the almost³,000-page administrative record to support his contention that the ALJ failed in assessing his mental impairments. Instead, Plaintiff avers, “[i]t is impossible to determine how the ALJ came to the conclusion that Mr. Coykendall’s mental impairments were no more than mild.” (Doc. 16 at 27). And, “the ALJ does not explain how an inability to perform serial sevens does not cause more than minimal limitations.” (Id.) This evinces a fundamental misunderstanding of the ALJ’s step two burden,

explained above. In his application for benefits, Plaintiff did not allege disability based on mental impairments, but at the administrative denial and reconsideration stages, state agency psychologists opined Plaintiff’s mental impairments were non-severe. (R. 109-110, 124-25, 267) The ALJ then employed the PRT, considering each of the four areas of mental functioning based on the relevant evidence available to him (R. 18) and found at step two that Plaintiff’s mental impairments were non-severe. The ALJ incorporated Plaintiff’s PRT into his findings at steps four and five. I agree with the Commissioner that the ALJ fulfilled his step two burden. Plaintiff’s second argument fails.

3. Constitutional Issues

Next, Plaintiff argues the Commissioner’s decision is unconstitutional because it was arbitrary and capricious for the ALJ to order a consultative examination after Plaintiff’s first administrative hearing. The Commissioner counters that the ALJ exercised his discretion to order the consultative examination in accordance with 20 C.F.R. § 404.1519a(b), which permits an ALJ to order a consultative examination when the evidence in the record is insufficient for ALJ to make a determination. I agree with the Commissioner. Plaintiff argues, “[i]n this case, the post-hearing CE was unnecessary. Therefore, it violates the Constitutional Principles of Fair Process. An additional opinion would not have clarified the record. Rather, it would seem that the only real value it could provide would be to potentially damage the claimant’s already well-developed case.” (Doc. 16 at 32). Plaintiff states that the posthearing CE conducted by Dr. Owi is “the only examining source opinion that the ALJ gave ‘some weight,’ whereas the ALJ gave little weight to all other examining physician opinions.” (Id.) Plaintiff’s argument then takes a turn: despite arguing Dr. Owi’s CE was unnecessary, Plaintiff contends the ALJ was constitutionally bound to develop the record even more by ordering a second CE, because he assigned Dr. Owi’s opinion less than full weight. Plaintiff cites Gonzales v. United States, 348 U.S. 407 (1955), Withrow v. Larkin, 421 U.S. 35 (1975), and Douglas v. Shinseki, 23 Vet. App. 19, 24 (U.S. Ct. App. Vet. Cl. 2009), which stand for the indisputable principle that a fair trial before a fair tribunal is a basic due process requirement applicable to administrative proceedings. Plaintiff does not explain how these cases undermine the ALJ’s decision, and he admits that he “has found no such cases directly dealing with scheduling an arbitrary and capricious post-hearing CE in a claim for Social Security disability benefits[.]” (Doc. 16 at 31-32). To be sure, an ALJ has a basic obligation to develop a full and fair record. Henry v. Comm’r of Soc. Sec., 802 F. 3d 1264, 1267 (11th Cir. 2015); cf. Ingram v. Comm’r of Soc. Sec., 496 F. 3d 1253, 1269 (11th Cir. 2007) (ALJ has duty to develop the record where appropriate but is not required to order a CE if the record contains sufficient evidence for the ALJ to make an informed decision). This is an “onerous task” as the ALJ must “scrupulously and conscientiously probe into, inquire of, and explore all relevant facts.” Henry, 802 F. 3d at 1267 (citation and internal quotation marks omitted). Here, the ALJ determined that a CE was necessary to create a full and fair record, in accordance with 20 C.F.R. § 404.1519a, and Plaintiff offers no support for his contention that this decision was unconstitutional. Instead, Plaintiff’s due process concerns appear to be an attempt to repackage the argument that the ALJ cherry-picked evidence in denying his claim. I address this in the next section regarding the weight the ALJ assigned to different medical opinions. But to frame this argument in context of due process principles is baseless.

4. Weight of medical opinions

Finally, again without pinpointing any specific medical evidence in the almost³,000-page administrative record, Plaintiff contends “[t]he ALJ erred by improperly weighing the medical opinions, giving more weight to non-examining physicians and limited [to] no weight to numerous examining physicians including treating physicians, whose opinions were all consistent with one another.” (Doc. 16 at 19). The Commissioner retorts that Plaintiff’s general reference to medical evidence contrary to the ALJ’s findings is not enough to “extinguish the substantial evidence supporting” them (Id. at 22). I agree with the Commissioner. The method for weighing medical opinions under the Social Security Act is in the regulations at 20 C.F.R. § 404.1527(c).³ Relevant here, the opinions of examining physicians are

Marr. 4. Kos MARK A. PIZZO So

UNITED STATES MAGISTRATE JUDGE