Bault v. Commissioner of Social Security
Filing
19
OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner. The Clerk of Court is further directed to close the file. Signed by Magistrate Judge Carol Mirando on 12/30/2014. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DENISE BAULT,
Plaintiff,
v.
Case No: 2:13-cv-814-FtM-CM
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
Plaintiff, Denise Bault, appeals the final decision of the Commissioner of Social
Security Administration (“Commissioner”) denying her claim for a period of
disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income
(“SSI”).
As the decision of the Administrative Law Judge (“ALJ”) was based on
substantial evidence and employed proper legal standards, the Commissioner’s
decision is affirmed.
I.
Issues on Appeal
Plaintiff argues two issues on appeal: (1) whether the ALJ improperly
discounted a treating source’s opinion; and (2) whether the ALJ failed to complete an
accurate function-by-function analysis in assessing Plaintiff’s residual functional
capacity (“RFC”).
II.
Procedural History and Summary of the ALJ’s Decision
On July 6, 2011, Plaintiff protectively filed an application for a period of
disability and DIB, alleging she became disabled and unable to work on June 11,
2010, due to fibromyalgia and mood/affective disorder. Tr. 75-76, 151-57. On July
28, 2011, Plaintiff also filed an application for SSI, alleging the same disability onset
date.
Tr. 158-67.
The Social Security Administration (“SSA”) denied her claim
initially on September 28, 2011 and upon reconsideration on December 12, 2011. Tr.
107-11, 114-23. Plaintiff then requested and received a hearing before an ALJ on
June 21, 2012, during which she was represented by an attorney.
Tr. 37-62.
Plaintiff testified at the hearing.
On January 18, 2013, the ALJ issued a decision, finding Plaintiff not disabled
and denying her claim. Tr. 19-29. The ALJ first determined that Plaintiff met the
insured status requirements of the Social Security Act through June 30, 2016. Tr.
21. At step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity since June 11, 2010, the alleged onset date.
Id. At step two, the ALJ
determined that Plaintiff had the following severe impairments: fibromyalgia,
vomiting, irritable bowel, TMJ, and headache. Id. at 21-25. The ALJ also found
that Plaintiff’s depressive disorder and mental impairments were non-severe. Tr.
23-24. At step three, the ALJ concluded that Plaintiff did “not have an impairment
or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” 1
Tr. 25.
Taking into account the effects from all of Plaintiff’s impairments – both severe and
Appendix 1 is the listing of impairments (“Listing”) that “describes for each of the
major body systems impairments that we consider to be severe enough to prevent an
individual from doing any gainful activity, regardless of his or her age, education, or work
experience.” 20 C.F.R. § 405.1525(a).
1
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non-severe – the ALJ then determined that Plaintiff had the RFC to perform the full
range of light work, as defined in 20 C.F.R. § 404.1567(b) and 416.967(b). 2 Tr. 25.
The ALJ also found that Plaintiff’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 these
symptoms are not credible to the extent they are inconsistent with the [ALJ’s RFC]
assessment.”
Tr. 26.
In making this finding, the ALJ considered Plaintiff’s
testimony that she can no longer work due to the effects of fibromyalgia, TMJ, sleep
apnea and episodes of vomiting.
Tr. 25.
Taking into consideration his RFC
determination and the physical and mental demands of Plaintiff’s past relevant work,
the ALJ found that Plaintiff could perform her past relevant work as a self-employed
insurance agent, which is classified as light work under the Dictionary of
Occupational Titles. Tr. 28.
Following the ALJ’s decision, Plaintiff filed a Request for Review by the
Appeals Council, which was denied on October 30, 2013. Tr. 1-6. Accordingly, the
ALJ’s January 18, 2013 decision is the final decision of the Commissioner.
On
November 20, 2013, Plaintiff timely filed her Complaint with this Court under 42
2
The regulations define “light work” as follows:
(b) Light work. Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. . . .
20 C.F.R. § 404.1567(b).
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U.S.C. §§ 405(g), 1383(c)(3). Doc. 1.
III.
Social Security Act Eligibility and Standard of Review
A claimant is entitled to disability benefits when she is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months.
42 U.S.C. §§ 416(i)(1),
423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability. See 20 C.F.R. § 404.1520.
The claimant bears the burden of persuasion through step four, and, at step five, the
burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings are supported by
substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988)
(citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). The district court must
consider the entire record, including new evidence submitted to the Appeals Council
for the first time, in determining whether the Commissioner’s final decision is
supported by substantial evidence. Ingram v. Astrue, 496 F.3d 1253, 1265 (11th Cir.
2007).
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence.
42 U.S.C. § 405(g).
Substantial evidence is “more than a
scintilla, i.e., evidence that must do more than create a suspicion of the existence of
the fact to be established, and such relevant evidence as a reasonable person would
accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560
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(11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a
mere scintilla, but less than a preponderance”) (internal citation omitted).
Where the Commissioner’s decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result
as finder of fact, and even if the reviewer finds that the preponderance of the evidence
is against the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). “The
district court must view the record as a whole, taking into account evidence favorable
as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the factual findings).
IV.
Discussion
A.
Treating Physician
On appeal, Plaintiff first argues that the ALJ failed to properly follow the
treating physician rule when he considered the opinions of her treating physician, Dr.
David Baldinger. Plaintiff asserts that substantial evidence supports a finding of
disability due to Plaintiff’s fibromyalgia and its symptoms, as evidenced by Dr.
Baldinger’s
treatment
records
and
the
Fibromyalgia
Residual
Functional
Questionnaire (“questionnaire”), completed by Dr. Baldinger on January 4, 2012.
Tr. 684-90.
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Dr. Baldinger indicated on the questionnaire that Plaintiff could work less
than one hour in a day; stand and walk less than two hours in a day; sit for fifteen
minutes a day; and occasionally lift up to ten pounds. Tr. 686. He stated that her
prognosis was “poor” and that her pain interferes with her attention and
concentration “constantly.” Tr. 684-85. The ALJ discussed the questionnaire and
assigned Dr. Baldinger’s opinion little weight because it was inconsistent with other
substantial evidence in the record. Tr. 28. Specifically, the ALJ found that the
symptoms and pain described by Dr. Baldinger are not supported by the medical
record and his treatment notes, and Dr. Baldinger appears to rely heavily on
Plaintiff’s subjective complaints.
Id.
Plaintiff asserts this was in error as Dr.
Baldinger is the only physician that has treated Plaintiff for fibromyalgia and there
are no other opinions in the file to contradict his findings concerning fibromyalgia
and its symptoms.
When an impairment does not meet or equal a listed impairment at step 3, the
ALJ will proceed to step 4 to assess and make a finding regarding the claimant’s RFC
based upon all of the relevant medical and other evidence in the record. 20 C.F.R. §
404.1520(e). In this case, the ALJ found Plaintiff “did not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” Tr. 25. The ALJ then
proceeded to assess and make a finding regarding the claimant’s RFC. The RFC is
the most that a claimant can do despite her limitations. See 20 C.F.R. § 404.1545(a).
As noted, the ALJ is required to assess a claimant’s RFC based on all of the relevant
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evidence in the record, including any medical history, medical signs and laboratory
findings, the effects of treatment, daily activities, lay evidence, and medical source
statements. Id. The determination of RFC is within the authority of the ALJ; and
the claimant’s age, education, and work experience is considered in determining the
claimant’s RFC and whether she can return to her past relevant work. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1520(f)). The
RFC assessment is based upon all the relevant evidence of a claimant’s remaining
ability to do work despite her impairments. Phillips v. Barnhart, 357 F.3d 1232,
1238 (11th Cir. 2004); Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1545(a)).
The ALJ is required to review all of the medical findings and other evidence
that supports a medical source’s statement that a claimant is disabled. Moreover,
opinions on some issues, such as the claimant’s RFC and whether the claimant is
disabled or unable to work, “are not medical opinions, . . . but are, instead, opinions
on issues reserved to the Commissioner because they are administrative findings that
are dispositive of a case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p. The ALJ, therefore, is
responsible for making the ultimate determination about whether a claimant meets
the statutory definition of disability. 20 C.F.R. § 404.1527(d)(1). The ALJ is not
required to give any special significance to the status of a physician as treating or
non-treating in weighing an opinion of whether the claimant meets a listed
impairment, a claimant’s RFC (20 C.F.R. §§ 404.1545, 404.1546) or the application of
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vocational factors, because that ultimate determination is the sole province of the
Commissioner. 20 C.F.R. § 404.1527(e).
Here, the ALJ properly considered and analyzed Plaintiff’s alleged
impairments related to her fibromyalgia in assessing her RFC. In doing so, the ALJ
considered and assigned little weight to the opinion of Dr. Baldinger. Generally,
when determining a plaintiff’s RFC “[a]n ALJ must give a treating physician’s opinion
substantial weight, unless good cause is shown.” Castle v. Colvin, ––– F. App’x –––
–, 2014 WL 595284 (11th Cir. Feb. 18, 2014) (citing Phillips, 357 F.3d at 1240); 20
C.F.R. § 404.1527(c)(2); Lewis, 125 F.3d at 1440; Sabo v. Comm’r of Soc. Sec., 955 F.
Supp. 1456, 1462 (M.D. Fla. 1996).
“Good cause exists 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.’” Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1179 (11th Cir. 2011) (quoting Phillips, 357 F.3d at 1240).
Under the
regulations, the ALJ must weigh any medical opinion based on the treating
relationship with the claimant, the length of the treatment relationship, the evidence
the medical source presents to support his opinion, how consistent the opinion is with
the record as a whole, the specialty of the medical source and other factors. See 20
C.F.R. § 404.1527(c), (c)(2)(i)-(ii), (c)(3)-(6); Edwards, 937 F.2d 580 (ALJ properly
discounted treating physician’s report where the physician was unsure of the
accuracy of his findings and statements); Lewis, 125 F.3d at 1440. Where a treating
physician merely has made conclusory statements, the ALJ may afford them such
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weight as is supported by clinical or laboratory findings and other consistent evidence
of a claimant’s impairments. Schnor v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987);
Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986); Social Security Ruling
(“SSR”) 96-2p.
In this case, the Court finds that the ALJ properly considered Dr. Baldinger’s
findings in the questionnaire and assigned them little weight because there was no
objective evidence to bolster his opinion.
Contrary to Plaintiff’s assertions, the
majority of Plaintiff’s medical records do not consist of records from Dr. Baldinger.
Doc. 18 at 2. Rather, the Court has reviewed Dr. Baldinger’s records, consisting of
approximately 15 pages, and agrees with the ALJ’s finding that there is no objective
evidence to support Dr. Baldinger’s findings in his medical records. Tr. 424-28, 46372, 529-33. The ALJ found Dr. Baldinger’s opinion inconsistent with other evidence
in the record, including Dr. Baldinger’s own records, which show that prior to
completing the fibromyalgia questionnaire, Dr. Baldinger noted upon examination
that Plaintiff exhibited no motor weakness, no joint inflammation or neurologic
changes, but had some diffuse muscle tenderness. Tr. 425, 427, 531, 533, 464, 466,
469, 471. Dr. Baldinger also reported Plaintiff had no gross motor deficits. Tr. 473.
Plaintiff denied constipation, confusion, gait instability, excessive drowsiness,
nausea, vomiting, or joint swelling. Tr. 464, 532, 469, 471. In April 2012, Plaintiff
further denied leg weakness and radicular pain. Tr. 530. Thus, Dr. Baldinger’s
opinion is inconsistent with even his own treatment records.
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The objective medical findings of other doctors who treated Plaintiff also
provide substantial evidence to support the ALJ’s assessment of Plaintiff’s RFC. In
November 2010, Plaintiff exhibited normal mobility, no tenderness in her back, no
pain on straight leg raise test, non-tender spinal examination, intact facial sensation,
5/5 muscle strength, normal muscle tone, symmetric muscle bulk, intact sensory
examination, 2+ reflexes, normal gait, and normal finger to nose testing. Tr. 39697. Plaintiff also denied weight loss, chest pain, joint pain, joint swelling, back pain,
and muscle pain.
Tr. 396.
Further, as the ALJ thoroughly discussed in his
credibility analysis, despite her limitations, Plaintiff continues to engage in
significant activities of daily living and is self-reliant.
Tr. 25-28.
In assessing
Plaintiff’s credibility, the ALJ considered Plaintiff’s complaints of muscle pain related
to her fibromyalgia and noted that despite her report of pain to Dr. Baldinger, she
has engaged in significant activities of daily living, such as travelling, exercising
daily, preparing meals, taking care of pets, driving, shopping and cleaning. Tr. 27.
The ALJ supported his decision and showed good cause for assigning little
weight to Dr. Baldinger’s opinion in compliance with the applicable rules and
regulations by citing to specific evidence in the record demonstrating that Dr.
Baldinger’s opinions were inconsistent with the record as a whole, were conclusory or
inconsistent with the medical records, and made no reference to any clinical or
laboratory diagnostic techniques to support the opinions. See Winschel, 631 F.3d at
1179. Consequently, the ALJ properly followed the treating physician rule and had
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good cause to discount Dr. Baldinger’s opinion and not give it controlling weight,
which the Court finds is supported by substantial evidence.
Moreover, as the Government argues, Dr. Baldinger’s questionnaire
essentially concluded that Plaintiff was disabled. A statement that a claimant is
disabled or unable to work is not a medical opinion and that statement is not entitled
to controlling weight or any special significance. 20 C.F.R. § 404.1527(d).
B.
Function-by-Function Assessment
Plaintiff next argues that the ALJ did not perform a function-by-function
assessment before finding that Plaintiff could perform light work. Tr. 25. In so
arguing, Plaintiff asserts that the ALJ provides no analysis as to how he reached the
conclusion that Plaintiff was capable of performing light work. Plaintiff states that
no doctor indicates that Plaintiff retains an RFC to perform the full range of light
work; and, although the ALJ found fibromyalgia to be a severe impairment, he failed
to address how Plaintiff’s chronic fatigue, pain, weakness, depression, and reduced
range of motion impact Plaintiff’s RFC and her ability to work. Doc. 14 at 22. Thus,
Plaintiff argues, this matter should be remanded for proper consideration of
Plaintiff’s fibromyalgia and its related limitations. Id. at 23.
“The RFC assessment must first identify the individual’s functional limitations
or restrictions and assess . . . her work-related abilities on a function by function
basis. . . . Only after that may RFC be expressed in terms of exertional levels of
work, sedentary, light, medium, heavy, and very heavy.”
SSR 96-8p, 1996 WL
374184. Here, after the ALJ found that fibromyalgia was a severe impairment, the
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ALJ properly considered the evidence regarding Plaintiff’s fibromyalgia and its
related limitations when assessing her RFC in accordance with SSR 96-8p and found
that Plaintiff’s condition was not as limiting as she alleged. In doing so, the ALJ
evaluated and discussed Dr. Baldinger’s questionnaire, the other medical records,
Plaintiff’s testimony, and opinion evidence, the latter of which he assigned little
weight. Tr. 25-28. The ALJ stated that Plaintiff testified that she can no longer
work due to the effects of fibromyalgia, TMJ, sleep apnea, and episodes of vomiting,
and the ALJ then went on to discuss each impairment and whether her claims were
supported by the record.
Tr. 25.
The ALJ specifically considered Plaintiff’s
complaints of myalgia related to her fibromyalgia and found that her complaints were
not supported by the record. Tr. 27. Moreover, the determination of a claimant’s
RFC is reserved exclusively to the Commissioner and is not the province of Plaintiff’s
physicians to determine. 20 C.F.R. § 404.1527(d); SSR 96-5p.
V.
Conclusion
After a thorough review of the entire record, the undersigned finds that the
ALJ’s decision is supported by substantial evidence.
Accordingly, it is
ORDERED:
1.
The decision of the Commissioner is AFFIRMED.
2.
The Clerk of Court is directed to enter judgment pursuant to sentence
four of 42 U.S.C. § 405(g) in favor of the Commissioner.
3.
The Clerk of Court is further directed to close the file.
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DONE and ORDERED in Fort Myers, Florida on this 30th day of December, 2014.
Copies:
Counsel of record
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