McMillian v. Astrue
Filing
16
MEMORANDUM OPINION AND ORDER entered. Because the Court finds that substantial evidence supports both the ALJ's reasons for giving less than controlling weight to the treating source opinions and her RFC assessment, it is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be AFFIRMED. Signed by Magistrate Judge William E. Cassady on 4/30/2012. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTHONY D. McMILLIAN, Sr.,
Plaintiff,
:
:
v.
:
MICHAEL J. ASTRUE,
Commissioner of Social Security,
:
Defendant.
CA 11-00545-C
:
MEMORANDUM OPINION AND ORDER
The plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial
review of a final decision of the Commissioner of Social Security denying his application
for disability insurance benefits (“DIB”). The parties have consented to the exercise of
jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in
this Court.
(See Doc. 15 (“In accordance with provisions of 28 U.S.C. 636(c) and
Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge
conduct any and all proceedings in this case, including . . . order the entry of a final
judgment, and conduct all post-judgment proceedings.”).) Upon consideration of the
administrative record (“R.”) (Doc. 10), the plaintiff’s brief (Doc. 11), the Commissioner’s
brief (Doc. 12), and the arguments made by the parties at the March 28, 2012 Hearing, it
is determined that the Commissioner’s decision denying the plaintiff benefits should be
affirmed.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 15 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”).)
1
Relevant Background
On March 19, 2008, the plaintiff filed an application for DIB (R. 61, 102-11),
alleging disability beginning March 12, 2008 due to arthritis, sarcodosis, high blood
pressure, depression, anxiety, insomnia, reflux, cholesterol, lytic lesions on his skull,
osteoarthritis, back pain, and fibromyalgia. (See R. 123.) His application was initially
denied on July 22, 2008. (See R. 61-67.) A hearing was then conducted before an
Administrative Law Judge on November 3, 2009 (see R. 32-60). On November 13, 2009,
the ALJ issued a decision finding that the claimant was not disabled (R. 13-31), and the
plaintiff sought review from the Appeals Council. The Appeals Council declined to
review the ALJ’s determination on April 28, 2011 (see R. 1-6)—making the ALJ’s
determination the Commissioner’s final decision for purposes of judicial review, see 20
C.F.R. § 404.981—and a complaint was filed in this Court on September 21, 2011 (see Doc.
1).
Standard of Review
In all Social Security cases, the plaintiff bears the burden of proving that he or she
is unable to perform his or her previous work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th
Cir. 1986). In evaluating whether the plaintiff has met this burden, the examiner must
consider the following four factors: (1) objective medical facts and clinical findings; (2)
diagnoses of examining physicians; (3) evidence of pain; and (4) the plaintiff’s age,
education, and work history. Id. Once the plaintiff meets this burden, it becomes the
Commissioner’s burden to prove that the plaintiff is capable—given his or her age,
2
education, and work history—of engaging in another kind of substantial gainful
employment that exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836
(11th Cir. 1985).
Although at the fourth step “the [plaintiff] bears the burden of
demonstrating the inability to return to [his or] her past relevant work, the
Commissioner of Social Security has an obligation to develop a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny plaintiff
benefits is supported by substantial evidence. Substantial evidence is defined as more
than a scintilla, and means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). “In
determining whether substantial evidence exists, [a court] must view the record as a
whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.”
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Courts are precluded, however, from “deciding the facts anew or re-weighing the
evidence.” Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per
curiam) (citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “[e]ven if the
evidence preponderates against the Commissioner’s findings, [a court] must affirm if the
decision reached is supported by substantial evidence.” Id. (citing Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
3
Discussion
On appeal to this Court, the plaintiff contends that, after rejecting the opinions of
the plaintiff’s treating or examining medical sources for reasons that “fall far short of
being either legally adequate or persuasive” (Doc. 11 at 8), the ALJ rendered a residual
functional capacity assessment (the “RFC”) that is not supported by substantial
evidence.2 The plaintiff further asserts that the ALJ failed to adequately develop the
administrative record by failing to order a consultative examination after she rejected the
medical source opinions.3
Prior to considering the specific issues raised on appeal, it is necessary for the
Court to set forth the proper analysis for consideration of RFC “issues” raised in cases
like the instant one, given the Commissioner’s consistent stance in numerous cases
2
Stated succinctly,
[w]hen a treating physician’s opinion is well supported and no evidence exists to
contradict it, the administrative law judge has no basis on which to refuse to
accept the opinion. When, however, the record contains well supported
contradictory evidence, the treating physician’s opinion is just one more piece of
evidence for the administrative law judge to weigh, taking into consideration the
various factors listed in the regulation. These factors include the number of
times the treating physician has examined the claimant, whether the physician is
a specialist in the allegedly disabling condition, how consistent the physician’s
opinion is with the evidence as a whole and other factors. An administrative law
judge must provide good reasons for the weight he gives a treating source
opinion, and must base his decision on substantial evidence and not mere
speculation.
Brihn v. Astrue, 582 F. Supp. 2d 1088, 1100-01 (W.D. Wis. 2008) (citing 20 C.F.R. § 404.1527(d)(2);
other citations and quotation marks omitted).
Because the Court concludes that the ALJ’s RFC is supported by substantial
evidence, this alternative ground for remand necessarily fails.
3
4
presently pending before this Court that in past cases this Court has conflated the fourth
and fifth steps of the sequential evaluation process with respect to who has the burden of
developing the evidence necessary to determine RFC. (See Doc. 12 at 11-14.)
A.
The RFC Assessment.
The Eleventh Circuit has made clear that “[r]esidual functional capacity, or RFC,
is a medical assessment of what the claimant can do in a work setting despite any
mental, physical or environmental limitations caused by the claimant’s impairments and
related symptoms.” Peeler v. Astrue, 400 Fed. App’x 492, 493 n.2 (11th Cir. Oct. 15, 2010)
(per curiam) (citing 20 C.F.R. § 416.945(a)). Stated somewhat differently, “[a] claimant’s
RFC is ‘that which [the claimant] is still able to do despite the limitations caused by his . .
. impairments.’” Hanna v. Astrue, 395 Fed. App’x 634, 635 (11th Cir. Sept. 9, 2010) (per
curiam) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004)). “In making
an RFC determination, the ALJ must consider the record evidence, including evidence of
non-severe impairments.” Id. (citation omitted); compare 20 C.F.R. § 416.945(a)(1) (“We
will assess your residual functional capacity based on all the relevant evidence in your
case record.”), with 20 C.F.R. § 416.945(a)(3) (“We will assess your residual functional
capacity based on all the relevant medical and other evidence.”).
From the foregoing, it is clear that the ALJ is responsible for determining a
claimant’s RFC—a deep-seated principle of Social Security law, see 20 C.F.R. § 416.946(c)
(“If your case is at the administrative law judge hearing level under § 416.1429 or at the
Appeals Council review level under § 416.1467, the administrative law judge or the
5
administrative appeals judge at the Appeals Council (when the Appeals Council makes
a decision) is responsible for assessing your residual functional capacity.”), that this
Court has never taken issue with. See, e.g., Hunington ex rel. Hunington v. Astrue, No. CA
08-0688-WS-C, 2009 WL 2255065, at *4 (S.D. Ala. July 28, 2009) (“Residual functional
capacity is a determination made by the ALJ[.]”) (order adopting report and
recommendation of the undersigned). The regulations provide, moreover, that while a
claimant is “responsible for providing the evidence [the ALJ] . . . use[s] to make a[n]
[RFC] finding[,]” the ALJ is responsible for developing the claimant’s “complete medical
history, including arranging for a consultative examination(s) if necessary,” and helping
the claimant get medical reports from her own medical sources.
20 C.F.R. §
416.945(a)(3). In assessing RFC, the ALJ must consider any statements about what a
claimant can still do “that have been provided by medical sources,” as well as
“descriptions and observations” of a claimant’s limitations from her impairments,
“including limitations that result from [] symptoms, such as pain[.]” Id.
In determining a claimant’s RFC, the ALJ considers a claimant’s “ability to meet
the physical, mental, sensory, or other requirements of work, as described in paragraphs
(b), (c), and (d) of this section.” 20 C.F.R. § 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we first
assess the nature and extent of your physical limitations and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions (including
6
manipulative or postural functions, such as reaching, handling, stooping
or crouching), may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first assess
the nature and extent of your mental limitations and restrictions and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to carry out certain mental
activities, such as limitations in understanding, remembering, and carrying
out instructions, and in responding appropriately to supervision,
co-workers, and work pressures in a work-setting, may reduce your ability
to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically determinable
impairment(s), such as skin impairment(s), epilepsy, impairment(s) of
vision, hearing or other senses, and impairment(s) which impose
environmental restrictions, may cause limitations and restrictions which
affect other work-related abilities. If you have this type of impairment(s),
we consider any resulting limitations and restrictions which may reduce
your ability to do past work and other work in deciding your residual
functional capacity.
20 C.F.R. § 416.945(b), (c) & (d).
Against this backdrop, this Court starts with the proposition that an ALJ’s RFC
determination necessarily must be supported by substantial evidence. Compare Figgs v.
Astrue, No. 5:10–cv–478–Oc–18TBS, 2011 WL 5357907, at *1-2 (M.D. Fla. Oct. 19, 2011)
(“Plaintiff argues that the ALJ’s residual functional capacity (‘RFC’) determination is not
supported by substantial evidence. . . . [The] ALJ’s RFC Assessment is [s]upported by
substantial record evidence[.]”), report & recommendation approved, 2011 WL 5358686
(M.D. Fla. Nov. 3, 2011), and Scott v. Astrue, No. CV 110–052, 2011 WL 2469832, at *5
(S.D. Ga. May 16, 2011) (“The ALJ’s RFC Finding Is Supported by Substantial
Evidence[.]”), report & recommendation adopted, 2011 WL 2461931 (S.D. Ga. June 17, 2011),
with Green v. Social Sec. Admin., 223 Fed. App’x 915, 923-24 (11th Cir. May 2, 2007) (per
7
curiam) (“Green argues that without Dr. Bryant’s opinion, there is nothing in the record
for the ALJ to base his RFC conclusion that she can perform light work. . . . Once the ALJ
determined that no weight could be placed on Dr. Bryant’s opinion of [] Green’s
limitations, the only documentary evidence that remained was the office visit records
from Dr. Bryant and Dr. Ross that indicated that she was managing her respiration
problems well, that she had controlled her hypertension, and that her pain could be
treated with over-the-counter medication. Thus, substantial evidence supports the ALJ’s
determination that Green could perform light work.”). And while, as explained in
Green, an ALJ’s RFC assessment may be supported by substantial evidence even in the
absence of an opinion by an examining medical source about a claimant’s residual
functional capacity, specifically because of the hearing officer’s decision to give less than
controlling weight to such an opinion,4 223 Fed. App’x at 923-24; see also id. at 923
(“Although a claimant may provide a statement containing a physician’s opinion of her
remaining capabilities, the ALJ will evaluate such a statement in light of the other
evidence presented and the ultimate determination of disability is reserved for the
ALJ.”), nothing in Green can be read as suggesting anything contrary to those
An ALJ’s articulation of reasons for giving less than controlling weight to a
treating source’s RFC assessment must, of course, be supported by substantial evidence. See,
e.g., Gilabert v. Commissioner of Soc. Sec., 396 Fed. App’x 652, 655 (11th Cir. Sept. 21, 2010) (per
cuiam) (“Where the ALJ articulated specific reasons for failing to give the opinion of a treating
physician controlling weight, and those reasons are supported by substantial evidence, there is
no reversible error. In this case, therefore, the critical question is whether substantial evidence
supports the ALJ’s articulated reasons for rejecting Thebaud’s RFC.”) (citing Moore v. Barnhart,
405 F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v. Commissioner of Soc. Sec. Admin., 389 Fed. App’x
944, 947-48 (11th Cir. July 28, 2010) (per curiam) (same).
4
8
courts—including this one—that have staked the position that the ALJ must link the RFC
assessment to specific evidence in the record bearing upon the claimant’s ability to
perform the physical, mental, sensory, and other requirements of work.5
Compare, e.g.,
Saunders v. Astrue, Civil Action No. 1:11cv308–WC, 2012 WL 997222, at *5 (M.D. Ala.
In Green, such linkage was easily identified since the documentary evidence
remaining after the ALJ properly gave less than controlling weight to the RFC opinion of the
treating physician “was the office visit records from Dr. Bryant and Dr. Ross that indicated that
[claimant] was managing her respiration problems well, that she had controlled her
hypertension, and that her pain could be treated with over-the-counter medication.” 223 Fed.
App’x at 923-24. Based upon such nominal clinical findings, the court in Green found
“substantial evidence support[ing] the ALJ’s determination that Green could perform light
work.” Id. at 924; see also Hovey v. Astrue, Civil Action No. 1:09CV486-SRW, 2010 WL 5093311, at
*13 (M.D. Ala. Dec. 8, 2010) (“The Eleventh Circuit’s analysis in Green, while not controlling, is
persuasive, and the court finds plaintiff’s argument . . . that the ALJ erred by making a residual
functional capacity finding without an RFC assessment from a physician without merit. In
formulating plaintiff’s RFC in the present case, the ALJ—like the ALJ in Green—relied on the
office treatment notes of plaintiff’s medical providers.”).
5
Therefore, decisions, such as Stephens v. Astrue, No. CA 08-0163-C, 2008 WL 5233582 (S.D.
Ala. Dec. 15, 2008), in which a matter is remanded to the Commissioner because the “ALJ’s RFC
determination [was not] supported by substantial and tangible evidence” still accurately reflect
the view of this Court, but not to the extent that such decisions are interpreted to require that
“substantial and tangible evidence” must—in all cases—include an RFC or PCE from a
physician. See id. at *3 (“[H]aving rejected West’s assessment, the ALJ necessarily had to point
to a PCE which supported his fifth-step determination that Plaintiff can perform light work
activity.”) (emphasis added). But, because the record in Stephens
contain[ed] no physical RFC assessment beyond that performed by a disability
examiner, which is entitled to no weight whatsoever, there [was] simply no basis
upon which this court [could] find that the ALJ’s light work RFC determination
[was] supported by substantial evidence. [That] record [did] not reveal evidence
that would support an inference that Plaintiff [could] perform the requirements of
light work, and certainly an ALJ’s RFC determination must be supported by
substantial and tangible evidence, not mere speculation regarding what the
evidence of record as a whole equates to in terms of physical abilities.
Id. (citing Cole v. Barnhart, 293 F. Supp. 2d 1234, 1242 (D. Kan. 2003) (“The ALJ is responsible for
making a RFC determination, and he must link his findings to substantial evidence in the record
and explain his decision.”)).
9
Mar. 23, 2012) (“It is unclear how the ALJ reached the conclusion that Plaintiff ‘can lift
and carry up to fifty pounds occasionally and twenty-five pounds frequently’ and sit,
stand and/or walk for six hours in an eight hour workday, [] when the record does not
include an evaluation of Plaintiff’s ability to perform work activities such as sitting,
standing, walking, lifting, bending, or carrying.”), with 20 C.F.R. § 416.945(b), (c) & (d).
Indeed, the Eleventh Circuit appears to agree that such linkage is necessary for
federal courts to conduct a meaningful review of an ALJ’s decision. For example, in
Hanna, the panel noted that
[t]he ALJ determined that Hanna had the RFC to perform a full range of
work at all exertional levels but that he was limited to ‘occasional hand and
finger movements, overhead reaching, and occasional gross and fine
manipulation.’ In making this determination, the ALJ relied, in part, on
the testimony of the ME. . . .
The ALJ’s RFC assessment, as it was based on the ME’s testimony, is
problematic for many reasons. . . . [G]iven that the ME opined only that
Hanna’s manipulation limitations were task-based without specifying how
often he could perform such tasks, it is unclear how the ALJ concluded that
Hanna could occasionally engage in all forms of hand and finger
movements, gross manipulation, and fine manipulation. . . .
The ALJ also agreed with the VE’s testimony that, under the RFC
determination, Hanna could return to his past work. But this conclusion
is not clear from the record. The VE answered many hypothetical
questions and initially interpreted the ME’s assessment to mean that
Hanna’s gross manipulation abilities were unlimited and so, with only a
restriction to fine manipulation, he could perform his past relevant work.
In a separate hypothetical, the VE stated that a claimant could not return to
his past work as a packaging supervisor if restricted to occasional
fingering, handling, and gross and fine manipulation. The ALJ also did
not include the ME’s steadiness restriction in the RFC assessment; and the
VE testified that a person restricted to handling that required steadiness
would not be able to return to Hanna’s past work. The ALJ must state
the grounds for his decision with clarity to enable us to conduct
10
meaningful review. The ALJ has not done so here. To the extent the
ALJ based Hanna’s RFC assessment on hearing testimony by the ME and
VE, the assessment is inconsistent with the evidence. The ALJ did not
explicitly reject any of either the ME’s or VE’s testimony or otherwise
explain these inconsistencies, the resolution of which was material to
whether Hanna could perform his past relevant work. Absent such
explanation, it is unclear whether substantial evidence supported the
ALJ’s findings; and the decision does not provide a meaningful basis
upon which we can review Hanna’s case.”
395 Fed. App’x at 635-36 (emphasis added and internal citations and footnotes omitted);
see also Ricks v. Astrue, No. 3:10–cv–975–TEM, 2012 WL 1020428, at *9 (M.D. Fla. Mar. 27,
2012) (“‘The existence of substantial evidence in the record favorable to the
Commissioner may not insulate the ALJ’s determination from remand when he or she
does not provide a sufficient rationale to link such evidence to the legal conclusions
reached.’ Where the district court cannot discern the basis for the Commissioner’s
decision, a sentence-four remand may be appropriate to allow him to explain the basis
for his decision.”) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. Fla. 2005))
(emphasis added); cf. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th
Cir. 1994) (“The [Commissioner’s] failure to apply the correct law or to provide the
reviewing court with sufficient reasoning for determining that the proper legal analysis
has been conducted mandates reversal.”) (citation omitted); Dixon v. Astrue, 312 Fed.
App’x 226, 229 (11th Cir. Fed. 13, 2009) (per curiam) (after noting,“‘[w]hile we may not
supply a reasoned basis for [an] agency’s action that the agency itself has not given, we
will uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned[,]’” vacating a district court’s decision to affirm the ALJ where “the ALJ’s path
11
[was] not reasonably discernible”) (quoting Zahnd v. Secretary, Dep’t of Agric., 479 F.3d
767, 773 (11th Cir. 2007)).
Such linkage, moreover, may not be manufactured speculatively by the
Commissioner—using “the record as a whole”—on appeal, but rather, must be clearly
set forth in the ALJ’s decision.
See, e.g., Durham v. Astrue, Civil Action No.
3:08CV839-SRW, 2010 WL 3825617, at *3 (M.D. Ala. Sep. 24, 2010) (rejecting the
Commissioner’s request to affirm an ALJ’s decision because, according to the
Commissioner, overall, the decision was “adequately explained and supported by
substantial evidence in the record”; holding that affirming that decision would require
that the court “ignor[e] what the law requires of the ALJ[; t]he court ‘must reverse [the
ALJ’s decision] when the ALJ has failed to provide the reviewing court with sufficient
reasoning for determining that the proper legal analysis has been conducted’”) (quoting
Hanna, 395 Fed. App’x at 636 (internal quotation marks omitted)); see also id. at *3 n.4 (“In
his brief, the Commissioner sets forth the evidence on which the ALJ could have relied . .
. . There may very well be ample reason, supported by the record, for [the ALJ’s
ultimate conclusion]. However, because the ALJ did not state his reasons, the court
cannot evaluate them for substantial evidentiary support. Here, the court does not hold
that the ALJ’s ultimate conclusion is unsupportable on the present record; the court
holds only that the ALJ did not conduct the analysis that the law requires him to
conduct.”).
B.
Analysis.
12
In short, given the standard set forth above, the Court, in this case, must first
determine whether the reasons articulated by the ALJ for not giving controlling weight
the opinions of the treating sources are supported by substantial evidence. See, e.g.,
Thomas v. Astrue, No. CA 11–0406–C, 2012 WL 1145211, at *9 (S.D. Ala. Apr. 5, 2012)
(“Because the undersigned finds that the ALJ did not explicitly articulate an adequate
reason, supported by substantial evidence, for rejecting a portion of [the treating
physician’s] PCE assessment, this Court must necessarily find that the ALJ’s RFC
determination is not supported by substantial evidence.”).
If substantial evidence
supports the reasons for not giving controlling weight to the treating source opinions
articulated by the ALJ, the Court then must determine whether the ALJ’s RFC
assessment is linked to specific evidence in the record regarding the plaintiff’s ability to
perform the physical, mental, sensory, and other requirements of work. If the ALJ’s
decision provides such linkage—that is, it gives this Court a sufficient rationale to link
the remaining record evidence to her legal conclusions—the ALJ’s decision is supported
by substantial evidence and will be affirmed.
1.
Treating source opinions.
As one district court outside of this Circuit has recently put it:
In every case, a treating physician will have greater access to the medical
records, and more familiarity with the patient and his condition than will
an examining physician or a physician who merely reviewed the record
evidence. This is the reason for the treating physician rule whereby
greater deference is usually accorded to the opinion of a treating physician
than the opinion of a physician who has only examined the patient one
time or the opinion of a physician who has merely reviewed the medical
13
records. This is the reason the courts require an ALJ to provide specific,
legitimate reasons for discounting a treating physician’s opinion.
Vine v. Astrue, Civil Action No. 09-2212-KHV-GBC, 2010 WL 2245079, at *11 (D. Kan.
May 11, 2010) (internal citations omitted), report & recommendation adopted, 2010 WL
2245076 (D. Kan. June 2, 2010). And the law in this Circuit is that
[t]he opinion of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997). Good cause is shown
when the: “(1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004).
Where the ALJ articulate[s] specific reasons for failing to give the opinion
of a treating physician controlling weight, and those reasons are supported
by substantial evidence, there is no reversible error. Moore [v. Barnhart],
405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert, 396 Fed. App’x at 655.
a.
Dr. Fontana.
Dr. Fontana has treated the plaintiff since February, 2003. Prior to the hearing
before the ALJ, he completed both a clinical assessment of pain (R. 548), in August, 2009,
and an arthritis RFC (R. 551-552), in November, 2009. Dr. Fontana also completed a
work capacity evaluation in May, 2010 (R. 554), which postdates the ALJ’s
determination, but was provided to the Appeals Council. As to Dr. Fontana, the ALJ
found:
Dr. Fontana opined that the claimant has pain to such an extent as to be
distracting to the adequate performance of work activities and that
medication side effects can be expected to be severe and to limit the
claimant’s effectiveness due to distraction, inattention, drowsiness, etc
(Exhibit 24F). He opined that, based on the claimant’s symptoms, he can
14
sit for [no] more than two hours at a time, and stand and/or walk for less
than two hours in an eight hour workday. He can lift and carry up to
twenty pounds occasionally. He must use a cane or other assistive device
when engaging in occasional standing or walking. Emotional factors
contribute to the severity of the claimant’s symptoms and functional
limitations. Pain is frequently severe enough to interfere with attention
and concentration. These assessments are inconsistent with the medical
evidence of record, including Dr. Fontana’s treatment of the claimant.
Since the alleged onset of disability, Dr. Fontana has prescribed Tylenol #3
for the claimant’s pain and nothing else, which is very conservative
treatment and does not support a finding that the claimant has pain or
limitations as severe as assessed. Next, the objective findings from
physical examination and objective testing have been minimal.
Additionally, while the claimant mentioned side effects in the application
documents, the treatment notes do not reflect that he has complained to his
doctors of severe side effects from his regular medication. Further,
treatment notes show that the claimant is able walk without a cane (Exhibit
2F-19), which is contrary to Dr. Fontana’s report. Finally, Dr. Fontana’s
residual functional capacity assessment is internally inconsistent. He
stated that the claimant could stand for two hours at a time, but could only
stand and/or walk for less than two hours in an eight hour workday.
Also, I note that the questionnaire did not give an option for sitting,
standing, or walking for more than four hours in an eight hour workday,
therefore, leaving out the option to sit or stand and/or walk for six hours
in an eight hour workday. In light of the inconsistencies between the
assessments and the objective evidence, Dr. Fontana’s assessments are
given little weight.
(R. 24)
While the Court takes issue with several reasons the ALJ articulated for giving
less than controlling weight to Dr. Fontana’s opinions, because: (1) Dr. Fontana
characterized his treatment of the plaintiff’s pain as “conservative” (see, e.g., R. 560
(indicating that although the plaintiff complained of “worse pain recently” and there
were discussions regarding treatment options, including injections, the plaintiff elected
“to continue conservative treatment”); R. 568 (April 13, 2010 Letter in which Dr. Fontana
15
states that the plaintiff “has been treated conservatively for multiple orthopedic
problems . . . .”)); (2) Dr. Fontana’s opinion that the plaintiff, “[w]hile engaging in
occasional standing/walking, must . . . use a cane or other assistive device” (R. 552
(emphasis added) is neither consistent with other medical records (see, e.g., R. 195 (“He
uses a cane since 2001 off and on for support.”); 197 (“He uses a cane. Able to walk
without a cane. Gait normal.”)) nor the plaintiff’s own testimony (see R. 38 (stating that
he last used his cane “[a] couple of months ago”), see, e.g., Madison v. Astrue, No.
08-1243-JTM, 2009 WL 1873811, at *5 (D. Kan. June 30, 2009) (“An ALJ may give less
weight to the opinion of a physician when it is inconsistent with the other substantial
evidence in the record.”) (citing Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007));
and (3) Dr. Fontana’s opinion appears to be internally inconsistent in that it states that
while the plaintiff can stand continuously for two hours, he can only “stand/walk” for
less than two hours in an eight-hour workday (R. 551), the ALJ has provided adequate
reasons, supported by substantial evidence, to discount Dr. Fontana’s opinion(s).6
While the Commissioner concedes that the fifth reason given by the ALJ—that the
structure of the questionnaire completed by Dr. Fontana left out the option to sit or stand and/or
walk for six hours in an eight hour workday—is incorrect, the Court must also register some
concerns regarding other reasons the ALJ provided to support her decision not to give
controlling weight to Dr. Fontana’s opinion.
6
First, while “[i]t is entirely appropriate for the ALJ to rely on the conservative nature of
treatment in assessing the extent of impairment and . . . to discount [a] treating physician’s
conclusions[,]” Beveridge v. Commissioner of Soc. Sec., No. 10–12883, 2011 WL 4407564, at *6 (E.D.
Mich. July 18, 2011) (citing cases), contrary to the ALJ’s finding that “[s]ince the alleged onset of
disability[—March 12, 2008—]Dr. Fontana has prescribed Tylenol #3 for the claimant’s pain and
nothing else” (R. 24), it appears that, in 2009, Dr. Fontana prescribed both Tylenol #3 for mild
pain and Lortab for moderate pain (see R. 555, 565). Further, the plaintiff testified that he took
Tylenol #3, Lortab, and Tramadol, which is used to relieve moderate to moderately severe pain.
16
(R. 42 (“I try to change them up but the Loratab [sic] is usually always for the most severe pain.
And they make me nauseous so I, sometimes I just deal with the pain instead of . . . being
nauseous.”).) The Court realizes that while the treatment records cited pre-date the ALJ’s
decision, the ALJ did not have access to them prior to issuing her decision. The Appeals
Council, however, did receive these records (see R. 4), and “[b]ecause it did not follow the
procedure at 20 C.F.R. § 404.976(b)(1), [it] presumably concluded [that] all [ ] records submitted
to them related to the alleged disability period decided by the ALJ,” Banks v. Apfel, No.
98–4214–SAC, 2000 WL 1863382, at *1 n.1 (D. Kan. Nov. 13, 2000).
As to the asserted lack of physical examination and objective testing, “[i]t is improper to
reject a treating physician’s opinion based on lack of objective medical findings where he
provided at least some objective observations and testing in addition to subjective opinions.”
Rodriguez v. Astrue, No. CV 08-3815-PLA, 2009 WL 2136296, at *7 (C.D. Cal. July 15, 2009)
(citations omitted). Here, for example, eight of the 13 separate clinic notes authored by Dr.
Fontana in the record at R. 166-178 contain a section titled “physical examination.” All of those
notes also contain a “subjective” section. A detailed physical examination finding also appears
in Dr. Fontana’s July 31, 2008 clinic note. (See R. 407-408.) Further, given Dr. Fontana’s lengthy
relationship with the plaintiff, it is worthwhile to note that the United States Court of Appeals
for Veterans Claims has held—and this Court thinks it is obvious—that “there are other means
by which a private physician can become aware of critical medical facts, not the least of which is
by treating the claimant for an extended period of time[.]” Cohen v. Shinseki, No. 09–3769, 2011
WL 2636968, at *5 (Vet. App. July 6, 2011) (citation omitted).
Finally, the Court must address the ALJ’s reason that “while the claimant mentioned side
effects in the application documents, the treatment notes do not reflect that he has complained to
his doctors of severe side effects from his regular medication” (R. 24), which was articulated to
discredit Dr. Fontana’s pain assessment (R. 548), in which Dr. Fontana noted that “[m]edication
side effects can be expected to be severe.” First, the claimant testified that his Lortab “makes
[him] nauseous.” (R. 42.) Second, this Court’s review of the medical records from the VA
reveals that those records are replete with notes regarding side effects from medication. His
claim is, moreover, explicitly noted in Dr. Fontana’s records (R. 565), included in evidence
submitted to the Appeals Council, which it “presumably concluded [was applicable to the]
alleged disability period decided by the ALJ” by not following § 404.976(b)(1), Banks, 2000 WL
1863382, at *1 n.1. Moreover, unlike where a plaintiff’s claim regarding alleged side effects from
his medications is rejected by an ALJ because the ALJ finds “that there was no notation in [the
physician’s] records indicating either that [the plaintiff] complained that his medications were
causing side effects or that [the physician] believed that the medications were causing the
symptoms complained of by [the plaintiff] in his hearing[,]” Carter v. Commissioner of Soc. Sec., 411
Fed. App’x 295, 297 (11th Cir. Feb. 1, 2011) (per curiam), a treating physician’s own
opinion—expressed in a pain assessment—that medication side effects can be expected to be
severe should not be given less weight because the ALJ finds that a plaintiff’s medical records,
unlike this plaintiff’s medical records, did not contain a specific complaint regarding the side
effects. See Ryan v. Commissioner of Soc. Sec., 528 F.3d 1194, 1199 (9th Cir. 2008) (“[A]n ALJ does
not provide clear and convincing reasons for rejecting an examining physician’s opinion by
17
b.
Dr.
Robert
Dr. Howard.
Howard’s
treatment
of
the
plaintiff
for
fibromyalgia
is
well-established in the record. (See, e.g., R. 468-471, 500-503, 536-539, 598-601, 658-662,
696-699 (treatment notes from November, 2008 through May, 2010).)
Dr. Howard
completed a fibromyalgia RFC questionnaire in October, 2009 (R. 549-550; see also R.
696-699 (treatment note stating that the plaintiff requested that Dr. Howard fill out a
medical disability form)), in which, as set out in the ALJ’s decision, Dr. Howard
stated that the claimant meets the American Rheumatological criteria for
fibromyalgia, but[, according to the ALJ,] the medical evidence of record
does not confirm this. He opined that the claimant’s pain will frequently
interfere with attention and concentration. He has a severe limitation in
his ability to deal with work stress. He can sit for one hour at a time and
four hours in an eight hour workday. He can stand for forty five minutes
at a time and stand and/or walk for about two hours in an eight hour
workday. He can lift and carry up to twenty pounds occasionally.
(R. 25.)
The ALJ found the plaintiff’s fibromyalgia, in isolation, to be non-severe7 (R. 18
(stating, in part, that although the plaintiff has been diagnosed with fibromyalgia, as
well as other ailments, “[h]e is under appropriate medical care for the stated conditions,
questioning the credibility of the patient’s complaints where the doctor does not discredit those
complaints and supports his ultimate opinion with his own observations.”) (citing Edlund v.
Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001)); cf. Birdwell v. Barnhart, No. 2:06-0063, 2008 WL
2414828, at *13 (M.D. Tenn. June 12, 2008) (remanding an ALJ’s decision that “insufficiently
explained . . . the relevance of Plaintiff’s credibility to the evaluation of [treating] medical source
opinions under 20 C.F.R. § 416.927(d)(2)-(6)”).
Although “fibromyalgia [is] an impairment which, not surprisingly, is routinely
recognized as a severe impairment[,]” Jiles v. Astrue, No. CA 07-0718-C, 2008 WL 2225780, at *4
(S.D. Ala. May 23, 2008) (collecting cases), the plaintiff, on appeal, does not take issue with this
finding.
7
18
all of which are apparently stable and under control. There is no indication of on-going
symptoms, complications, or end-organ damage. These conditions will be considered
in combination with the severe impairments.”)), and also stated the following in her
decision regarding the plaintiff’s fibromyalgia:
The claimant was [ ] diagnosed with fibromyalgia in February 2007
(Exhibit 18F). All fibromyalgia points were positive on examination, but
he has received very little treatment for this condition. The claimant
continued to work with the fibromyalgia and there is no evidence that the
fibromyalgia has worsened since the claimant worked full time.
Although, I have found that the fibromyalgia is non-severe, I have
considered the effects of this condition when determining the residual
functional capacity: specifically, the residual functional capacity resulting
from the arthritis. The fibromyalgia does not cause any additional
limitations that [sic] those identified above resulting from the arthritis.
(R. 22.)
As the Sixth Circuit has explained, “a diagnosis of fibromyalgia does not
automatically entitle [a claimant] to disability benefits; particularly so [ ] where there is
substantial evidence to support the ALJ’s determination that [the claimant’s]
fibromyalgia was either improving or, at worst, stable.” Vance v. Commissioner of Soc.
Sec., 260 Fed. App’x 801, 806 (6th Cir. Jan. 15, 2008) (citing Sarchet v. Chater, 78 F.3d 305,
306-07 (7th Cir. 1996) (“Some people may have a severe case of fibromyalgia as to be
totally disabled from working . . . but most do not and the question is whether [claimant]
is one of the minority.”) (citations omitted)). The task for the ALJ is to consider the
plaintiff’s work-related limitations due to fibromyalgia. And this Court’s role is limited
to determining whether the ALJ’s resultant findings are supported by substantial
19
evidence. Davison, 370 Fed. App’x at 996; see, e.g., Harmon v. Astrue, No. 5:09CV2765,
2011 WL 834138, at *4 (N.D. Ohio Feb. 8, 2011) (recommending that the Court find that
substantial evidence supports the ALJ’s decision where the ALJ considered the effects of
fibromyalgia on the RFC, including “that there was little evidence of treatment for
fibromyalgia, and neither [the] examining physician . . . nor Plaintiff’s primary care
physician [ ] indicated that Plaintiff ha[d] work related limitations due to fibromyalgia”)
(citing Howard v. Commissioner of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002) (“RFC is meant
to describe the claimant’s residual abilities or what a claimant can do, not what maladies
a claimant suffers from”)), report & recommendation adopted, 2011 WL 825710 (N.D. Ohio
Mar. 4, 2011).
Although, here, Dr. Howard found that the plaintiff had work-related limitations
due to fibromyalgia (see R. 549-550), the Court finds that the ALJ has provided adequate
reasons, supported by substantial evidence, to give less than controlling weight to Dr.
Howard’s opinion(s). First, the ALJ noted that the plaintiff has received very little
treatment for fibromyalgia and, while he was diagnosed in February, 2007, he continued
to work. This reason is supported by Dr. Howard’s treatment notes, which reflect that
he saw the plaintiff every several months. (Compare R. 500-503 (March, 2009 (noting
that “all fibromyalgia tender points are positive” and that sarcoidosis is “normal,
stable”)), with R. 536-539 (June, 2009 (noting “no new concerns”)), with R. 696-699
(October, 2009 (noting that the plaintiff “requests that I fill out a medical disability
form”)), with R. 658-662 (March, 2010), with R. 598-601 (May, 2010 (noting that, with
20
regards to fibromyalgia, plaintiff obtains “relief from tramadol”)).) Cf. Smith v. Astrue,
No. 4:07-cv-0103-SEB-WGH, 2008 WL 3982067, at *3 (S.D. Ind. Aug. 22, 2008)
(concluding that the ALJ’s determination to give less than controlling weight to a
treating physician’s opinion—“because the limitations Dr. Fineman assessed were
inconsistent with the level of treatment provided, the lack of prescribed pain
medications, and Smith’s account of her daily activities”—was “supported by
substantial evidence”). The ALJ’s second reason—that there was no evidence that the
plaintiff’s fibromyalgia has worsened—is also supported by the record. (See R. 598-601,
536-539, 500-503.) Cf. Coryea v. Commissioner of Soc. Sec., Civil Action No. 07-01210, 2008
WL 4279809, at *7 (W.D. Pa. Sep. 16, 2008) (concluding that the ALJ’s finding that the
plaintiff’s fibromyalgia was not disabling was supported by substantial evidence where
the record indicated that “although Plaintiff suffers from fibromyalgia and rheumatoid
arthritis, those conditions are stable with medication”). Moreover, in support of the
ALJ’s finding that “[t]here is no evidence that the claimant cannot sit for six hours in an
eight hour workday,” contravening Dr. Howard’s opinion, Dr. Fontana indicated in the
work capacity evaluation he completed in May, 2010 (R. 554), which was presented to
the Appeals Council, that the plaintiff is able to sit for eight hours.
c.
Dr. Sackheim.
The plaintiff submitted medical evidence (office visit notes from May and June,
2008) and a physical capacities evaluation, dated August 26, 2008, from Dr. Robert
Sackheim. (See R. 411-414.) As to Dr. Sackheim, the ALJ only rejected that portion of
21
his opinion regarding the plaintiff’s inability to “sit for more than two hours in an eight
hour workday.” (R. 24.) The ALJ then went on to recognize that “[t]he remainder of
[his] opinion is not inconsistent with the medical evidence of record or the residual
functional capacity and is given great weight.” (Id.) As stated, immediately above, the
portion of Dr. Sackheim’s opinion rejected by the ALJ is at odds with Dr. Fontana’s May,
2010 Evaluation, concluding that the plaintiff is able to sit for eight hours. (See R. 554.)
And, as stated by the court in Clore v. Astrue, Civil Action No. 1:08CV77-J, 2009 WL
1010875 (W.D. Ky. Apr. 14, 2009), “[a] treating source medical opinion is entitled to
controlling weight if it is ‘well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
case record,’” id. at *4 (quoting 20 C.F.R. § 404.1527(d)(2)).
One “obvious inconsistency [is] when two medical sources provide
inconsistent medical opinions about the same issue.” Social Security
Ruling (SSR) 96-2p. The [Court] concludes that, in light of the obvious
inconsistency between the opinions of the treating sources, the ALJ was
not required to give controlling weight to Dr. [Sackheim’s] [sitting
limitation]. Instead, the ALJ[, as affirmed by the Appeals Council,] could
have given controlling weight to Dr. [Fontana’s] [sitting limitation, or lack
thereof].
Id.
2.
Substantial evidence supports the ALJ’s RFC determination.
Having found that substantial evidence supports the ALJ’s reasons for giving less
than controlling weight to the treating source opinions authored by Drs. Fontana and
Howard (R. 551-552 and R. 549-550, respectively) and a portion of the treating source
22
opinion authored by Dr. Sackheim (R. 412),8 the Court now turns to whether the ALJ has
provided the Court with a sufficient rationale to link the remaining record evidence to
her RFC, which is:
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform less than a full range of light
work as defined in 20 CFR 404.1567(b). He cannot stand or walk for more
than thirty minutes at a time or more than two hours in an eight hour
workday. He can perform jobs with short, simple instructions, but cannot
perform jobs with complex or detailed job instructions. He is limited to
rarely reaching overhead. He can frequently reach at waist or bench
height. He is limited to no more than occasionally operating foot controls,
climbing stairs and ramps, bending, stooping, or crouching. He cannot
climb ladders or scaffolds, kneel, or crawl.
(R. 20.)
Because the Court concludes that the ALJ’s RFC assessment is linked to specific
evidence in the record regarding the plaintiff’s ability to perform the physical, mental,
sensory, and other requirements of work, her decision is supported by substantial
evidence. The ALJ first discusses the record evidence—including the objective findings
and treatment history—concerning the plaintiff’s arthritis (R. 21-22), and provides an
assessment of limitations “[b]ased on the mild objective findings and the very
In addition to explaining the weight she gave the treating source opinions, as
examined in this order, the ALJ also explained the weight she gave the plaintiff’s pain
testimony—after performing the requisite credibility analysis, see, e.g., Minor v. Astrue, No. CA
10–605–C, 2011 WL 2621069, at *2 (S.D. Ala. July 5, 2011) (“When an ALJ rejects pain testimony,
there must be an explanation of the rationale for finding a plaintiff not credible. Moreover, if an
ALJ fails to explicitly discredit the subjective testimony of a plaintiff concerning pain—giving
reasons for that decision—the Eleventh Circuit has held that the pain testimony must be
accepted as true as a matter of law.”) (citations omitted)—the assessed GAF score, and the VA’s
disability determination (see R. 23-25); none of these determinations by the ALJ are challenged on
appeal.
8
23
conservative and routine treatment that the claimant has received” (R. 22). The ALJ
then moves on to the plaintiff’s fibromyalgia, which, as stated previously, she concluded
did “not cause any additional limitations [than] those identified [ ] resulting from the
arthritis.” (R. 22.) She then turns to the plaintiff’s sarcoidosis and, after noting that the
plaintiff had not received treatment for that condition in approximately one year (based
on his own testimony), concludes that, when considered with the plaintiff’s arthritis, his
sarcoidosis does not impose additional limitations but was considered in her setting out
his physical limitations. (R. 22-23.) Next, she considers the effects of his depression
and the side effects of his medication and explains how those impact to the RFC
assessment. (R. 23.) In formulating the RFC assessment, as to each asserted disability,
the ALJ cited to specific evidence to explain how, and to what extent, each claimed
disability affects the plaintiff’s ability to meet either the physical, mental, sensory, or
other requirements of work. Thus, the ALJ has provided the linkage necessary for this
Court to conduct a meaningful review and affirm that her legal conclusions are
supported by substantial evidence. See Hanna, 395 Fed. App’x at 635-36; Ricks, 2012 WL
1020428, at *9.
Further, that the ALJ, after properly discounting the opinions, in part, of the
treating sources, relied on the medical and other record evidence, including the treating
sources’ own records (even comparing treating opinions/records against each other), is
entirely proper. See, e.g., Casey v. Astrue, 503 F.3d 687, 691-93 (8th Cir. 2007) (initially
noting that “[t]he ALJ had a duty to evaluate the medical evidence as a whole[,] then that
24
it was “important to note that contrary to [the plainitff’s] suggestion, the ALJ did not
reject all of [his treating rheumatologist,] Dr. Rettenmaier’s opinions.
The ALJ
discussed and gave weight to Dr. Rettenmaier’s treatment records of December 2001 to
May 2004. The ALJ only refused to give weight to Dr. Rettenmaier’s opinion expressed
in a Fibromyalgia RFC Questionnaire completed in July 2004[,]” and, finally, that it is
acceptable to contrast the treating medical source’s “opinion with the medical records of
other treating physicians”); Armijo v. Astrue, Civil Action No. 08-cv-02150-CMA, 2009
WL 1580319, at *10 (D. Colo. June 2, 2009) (affirming ALJ’s decision to deny benefits after
initially noting that it was “somewhat troubled by the ALJ’s decision to discredit the
opinion of the only substantial treating medical source in the records. However, [like
here,] the ALJ did not totally reject [his] opinions; the ALJ merely declined to give
weight to certain purported functional limitations that [he] found Plaintiff to possess,
while, at the same time, adopting other more objective components of [his] treating
records to arrive at [the] RFC assessment, e.g., the nerve function test and MRI results.
Thus, the Court ultimately conclude[d] that ALJ acted within his province in declining to
give controlling weight to [the treating medical source’s] opinions.”); Santiago v.
Barnhart, 367 F. Supp. 2d 728, 736-37 (E.D. Pa. 2005) (“It bears noting that the ALJ did not
reject Dr. Blender’s opinions outright, but rather accepted them to the extent they were
supported by his own treatment notes and objective findings, and the record evidence as
a whole. The ALJ was entitled to afford Dr. Blender’s opinions less weight in view of
the lack of support for them and the record evidence to the contrary. The ALJ properly
25
considered all the medical evidence and concluded that plaintiff has the RFC to perform
a limited range of light work. For the foregoing reasons, this conclusion is supported by
substantial evidence.”) (internal citation omitted); cf. Brihn, 582 F. Supp. 2d at 1100
(“Although an administrative law judge must consider all medical opinions of record, he
is not bound by those opinions.”) (citing Haynes v. Barnhart, 416 F.3d 621, 630 (7th Cir.
2005)).
Conclusion
Because the Court finds that substantial evidence supports both the ALJ’s reasons
for giving less than controlling weight to the treating source opinions and her RFC
assessment, it is ORDERED that the decision of the Commissioner of Social Security
denying plaintiff benefits be AFFIRMED.
DONE this the 30th day of April, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
26
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