Bard v. Commissioner of Social Security
Filing
31
OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Douglas N. Frazier on 9/21/2015. (CAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHRISTINE BARD,
Plaintiff,
-vs-
Case No. 2:14-cv-481-FtM-DNF
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
OPINION AND ORDER
Plaintiff, Christine Bard, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration denying her claim for a period of disability, Disability
Insurance Benefits and Supplemental Security Income1. The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and
the parties filed legal memoranda in support of their positions. For the reasons set out herein, the
Court finds that the decision of the Commissioner is due to be AFFIRMED pursuant to § 205(g)
of the Social Security Act, 42 U.S.C § 405(g).
I. Social Security Act Eligibility, Procedural History, Standard of Review, and ALJ’s
Findings
The law defines disability as the inability 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
1
Because the disability definitions for DIB and SSI are identical, cases under one statute are
persuasive as to the other. Patterson v. Bowen, 799 F.2d 1455, 1456 n. 1 (11th Cir. 1986);
McCruter v. Bowen, 791 F.2d 1544, 1545 n. 2 (11th Cir. 1986).
than twelve months. 42 U.S.C. §§ 416(I), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must
be severe, making Plaintiff unable to do her previous work, or any other substantial gainful activity
which exists in the national economy. 42 U.S.C. § 423(d) (2); 20 C.F.R. §§ 404.1505-404.1511.
A.
Procedural History
On September 16, 2010, Plaintiff filed an application for a period of disability, Disability
Insurance Benefits, and Supplemental Security Income, alleging a disability onset date of January
1, 2008. (Tr. 180). Plaintiff’s request for benefits was initially denied on December 21, 2010 (Tr.
101, 105), and upon reconsideration on April 28, 2011. (Tr. 111). An administrative hearing was
held before Administrative Law Ronald S. Robins (the “ALJ”) on October 23, 2012. (Tr. 64-89).
On February 1, 2013, the ALJ rendered his decision finding Plaintiff not disabled. (Tr. 12-20).
Plaintiff’s Request for Review was denied by the Appeals Council on July 3, 2014. (Tr. 1-3).
B.
Standard of Review
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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r., 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
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applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t. of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).
The Court reviews de novo the conclusions of law made by the
Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C.A. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that she is not undertaking substantial gainful
employment. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §
404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(I).
At step two, the claimant must prove that she is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit her physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Sbpt. P. App. 1. Doughty, 245 F.3d at 1278, 20 C.F.R. §
1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of her past relevant work. 20 C.F.R. §
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1520(a)(4)(iv), 20 C.F.R. § 1520(f) . If the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(v). If the
claimant is capable of performing other work, she will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,
1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“grids”), and the second is by the use of a
vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the
Commissioner meets this burden does the burden shift back to Claimant to show that she is not
capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245
F.3d 1274, 1278 n.2 (11th Cir. 2001).
C.
The ALJ’s Findings
At step one, the ALJ found Plaintiff has not engaged in substantial gainful employment
since January 1, 2008, the alleged onset date. (Tr. 14). At step two, the ALJ determined that
Plaintiff has the following severe combination of impairments: mood disorder NOS; history of
bipolar disorder; panic disorder with agoraphobia; borderline personality disorder; opiate
dependence, continuous; sedative (treated in rehabilitation in 2009 but continued); anxiolytic
dependence, continuous; and continued alcohol abuse. (Tr. 16). At step three, the ALJ found that
the combination of Plaintiff’s impairments, including the substance use disorders, met Listings
12.04, 12.06, and 12.09. (Tr. 16). The ALJ further found, however, that Plaintiff stopped the
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substance use, she would not have a severe impairment or combination of impairments. (Tr. 16).
The ALJ found that Plaintiff’s substance use disorder is a contributing factor material to the
determination of disability because Plaintiff would not be disabled if she stopped the substance
use. (Tr. 19). Accordingly, the ALJ found that Plaintiff has not been disabled within the meaning
of the Social Security Act at any time from the alleged onset date through the date of the decision.
(Tr. 19).
II.
Analysis
Plaintiff raises three issues on appeal. They are: (1) whether the ALJ erred in failing to
find that Plaintiff’s back impairment was severe; (2) whether the ALJ erred by not fully developing
the record; and (3) whether the ALJ erred in finding that Plaintiff’s mental impairment would not
be severe if substance abuse was not present. The Court addresses each issue raised in turn.
a) Whether the ALJ erred in failing to find Plaintiff’s back impairment was severe.
Plaintiff argues that the ALJ erred in failing to find that she had the severe impairment of
herniated discs at levels L4-L5 and L5-S1 with moderate spinal stenosis and annular tears at L3L4 and L4-L5. (Doc. 26 p. 5). Plaintiff notes that an MRI from 2003 revealed that she had annular
tears at L3-L4 and L4-L5, and that other records from 2003 showed a herniated disc at L4-L5 and
L5-S1. (Doc. 26 p. 7). Defendant responds that substantial evidence supports the ALJ’s finding
that Plaintiff’s back impairment was non-severe. (Doc. 29 p. 6).
At issue here is step two of the ALJ’s disability determination, where severity is analyzed.
At this step, “[a]n impairment is not severe only if the abnormality is so slight and its effect so
minimal that it would clearly 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
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Cir. 1986). A severe impairment must bring about at least more than a minimal reduction in a
claimant’s ability to work, and must last continuously for at least twelve months. See 20 C.F.R. §§
404.1505(a). This inquiry “acts as a filter” so that insubstantial impairments will not be given much
weight. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). While the standard for severity is
low, the severity of an impairment “must be measured in terms of its effect upon ability to work,
and not simply in terms of deviation from purely medical standards of bodily perfection or
normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
In his opinion, the ALJ acknowledged Plaintiff’s treatment with the Florida Spine Institute
prior to her alleged onset date of January 1, 2008, and found that her treatment records indicate
that her back condition improved. (Tr. 18). The Court finds that substantial evidence supports the
ALJ’s determination.
Prior to Plaintiff’s alleged onset date her medical providers ceased
prescribing pain medication after they determined Plaintiff was engaged in drug seeking behavior
and addicted to the medications. (Tr. 77-78). Even without pain medication, examination of
Plaintiff’s back after her alleged onset date were generally unremarkable, showing a non-tender
spine with normal range of motion in all of Plaintiff’s joints. (Tr. 530, 537, 540, 559, 571, 587,
589-90, 603-04, 630, 642, 658, 661-62, 666-67). Further, as Defendant notes, the evidence
suggests that Plaintiff’s reports of extreme back pain were exaggerated and likely associated with
her admitted drug-seeking behavior. Plaintiff’s reports of back pain to her various providers were
inconsistent, and Plaintiff often denied having back pain altogether. (Tr. 505, 558, 565, 589, 603,
661, 666).
On occasions when Plaintiff did complain of back pain, the record shows that her providers
were concerned that her complaints of pain were not credible. For example, upon presentation to
the David Lawrence Center in January 2008, Plaintiff rated her pain as a 10 on a scale of 1 to 10.
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(Tr. 305). Plaintiff’s provider found it “noteworthy” that while Plaintiff rated her pain so highly,
her presentation only suggested “slight discomfort” and that Plaintiff did not appear to be in severe
pain. (Tr. 305). Likewise, in October 2008, upon presentation to the David Lawrence Center,
Plaintiff described her current level of pain as a “10.” (Tr. 313). Her provider found it notable,
however, that despite Plaintiff’s complaint of extreme pain, Plaintiff appeared very flexible, sitting
with her knees up on her chair, hugging her knees, and did not flinch or wince. (Tr. 313). Again,
notes from Plaintiff’s visit to Physicians Regional Medical Center in May 2010 reveal that while
Plaintiff requested Dilaudid, her doctor advised her “that there are medications over the counter
suitable for her complaint.” (Tr. 581).
Plaintiff’s contention that her back pain constituted a severe impairment is further
undermined by her reported activities of daily living. As the ALJ noted in his opinion, Plaintiff
reported that she would ride her bicycle as a means of transportation, shop for groceries weekly,
prepare her own meals daily, wash her car weekly, and perform household chores for a few hours
daily. (Tr. 74, 240-41, 301, 432). Such activities belie her claim that her back pain limits her
ability to work. See Hennes v. Comm’r Soc. Sec., 130 F. App’x 343, 348-49 (11th Cir. 2005)
(providing that a plaintiff’s complaints were belied by her ability to perform activities of daily
living such as shopping, cooking, washing clothes, and crocheting).
Plaintiff carries the burden at step two of proving the existence of a severe impairment.
Hardenbrook v. Astrue, 2011 WL 4031098, at *4 (M.D. Fla. Aug. 3, 2011) (citing Bowen v.
Yuckert, 482 U.S. 137, 146 (1987)). Plaintiff failed to carry her burden. The ALJ’s determination
that Plaintiff’s back pain was not severe was supported by substantial evidence and is due to be
affirmed.
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b) Whether the ALJ erred by not fully developing the record.
Plaintiff contends that the ALJ barely discussed Plaintiff’s back impairment in the decision,
and did not make a pain standard analysis regarding Plaintiff’s complaints of pain. (Doc. 26 p. 8).
Plaintiff argues that at a minimum, the ALJ should have ordered a consultative examination to
include completion of a residual functional capacity assessment form. (Doc. 26 p. 8). Defendant
responds that the ALJ fulfilled his obligation to develop a full and fair record. (Doc. 29 p. 9).
Defendant argues that the record contained more than sufficient evidence supporting the ALJ’s
finding that Plaintiff’s back impairment was non-severe. (Doc. 29 p. 10).
“Because a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic
obligation to develop a full and fair record.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.
1981). The Commissioner may order a consultative examination if a plaintiff’s medical sources
cannot or will not give the Commissioner sufficient medical evidence about an impairment to
allow him to make a disability determination. See 20 C.F.R. §§ 404.1517, 404.1519a(a), 416.917,
416.919a(a). Situations that may require a consultative examination include, but are not limited
to: (1) where additional evidence needed is not contained in the records of the claimant’s medical
sources; (2) where the evidence that may have been available from the claimant’s treating or other
medical sources cannot be obtained for reasons beyond the claimant’s control, such as death or
noncooperation of a medical source, (3) where highly technical or specialized medical evidence
that is needed is not available from the claimant’s treating or medical sources, or (4) where there
is an indication of a change in the claimant’s condition that is likely to affect the claimant’s ability
to work. 20 C.F.R. § 416.919a(b). Remand for failure to develop the record is only warranted if a
claimant can demonstrate that he or she was prejudiced. See Graham v. Apfel, 129 F.3d 1420, 1423
(11th Cir. 1997); Robinson v. Astrue, 365 F. App’x 993, 995-96 (11th Cir. 2010). To demonstrate
prejudice, the claimant must show “that the ALJ did not have all of the relevant evidence before
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him in the record (which would include relevant testimony from claimant), or that the ALJ did not
consider all of the evidence in the record in reaching his decision.” Kelley v. Heckler, 761 F.2d
1538, 1540 (11th Cir. 1985) (citing Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir. 1982)).
In this case, the Court finds that Plaintiff, who has been represented by counsel throughout
the application and appeals process, has failed to demonstrate that she has been prejudiced by the
ALJ’s development of the record pertaining to her back pain. In his opinion, the ALJ addressed
Plaintiff’s back pain and specifically considered Plaintiff’s treatment records from the Florida
Spine Institute, ultimately finding that Plaintiff’s condition has improved through medication. (Tr.
18). As noted above, substantial evidence of record supported the ALJ’s decision to find Plaintiff’s
back pain non-severe. Despite her claim that the ALJ should have ordered a consultative
examination regarding her back pain, there is no indication the circumstances justifying the usage
of a consultative examiner were present in this case, i.e. that additional evidence needed was not
in Plaintiff’s medical file, that there was evidence beyond Plaintiff’s control, that there was
specialized medical evidence not available from Plaintiff’s treating physicians, or a change in
Plaintiff’s condition likely to affect her ability to work.
It is not the Commissioner’s duty, but the Plaintiff’s, to establish disability. See 20 C.F.R.
§ 416.912(a). Plaintiff failed to carry her burden in this case as to her back pain. Accordingly, the
Court will not reverse and remand this case for failure to develop the record as to the ALJ’s
treatment of Plaintiff’s back pain.
c) Whether the ALJ erred in finding that Plaintiff’s mental impairment would not
be severe if substance abuse was not present.
Plaintiff argues that there is no medical opinion evidence in the record to support the ALJ’s
finding that substance abuse is a factor material to the determination of disability. (Doc. 26 p. 9).
Plaintiff contends that the ALJ should have called a medical advisor and asked the medical advisor
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for an opinion as to whether Plaintiff would have a severe mental impairment even if she were to
abstain from substance abuse. (Doc. 26 p. 9). Defendant responds that the ALJ properly relied on
Plaintiff’s treatment records when he found that Plaintiff’s mental impairments would be nonsevere if Plaintiff ceased her substance abuse. (Doc. 29 p. 11).
An individual will be found not disabled if alcoholism or drug addiction is found to be a
contributing factor material to the Commissioner’s determination that the individual is disabled.
42 U.S.C. § 423(d)(2)(C). The key factor in determining whether drug addiction or alcoholism is
a contributing factor material to the determination of disability is whether the Commissioner would
still find a claimant disabled if he or she stopped using drugs or alcohol. 20 C.F.R. § 404.1535(b).
“[I]n materiality determinations pursuant to 42 U.S.C. § 423(d)(2)(C), the claimant bears of the
burden of proving that his alcoholism or drug addiction is not a contributing factor material to his
disability determination.” Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001).
In his opinion, the ALJ determined that while Plaintiff combination of impairments meet
the Listings, if Plaintiff stopped her substance use, she would no longer have any severe
impairments. (Tr. 16). Accordingly, the ALJ found that substance use disorder is a contributing
factor material to the determination of disability because Plaintiff would not be disabled if she
stopped her substance use. (Tr. 19).
The Court finds that the ALJ did not err in his finding that Plaintiff’s substance abuse is
material and that Plaintiff would not have any severe impairments if she ceased her substance
abuse. The record indicates that the state agency consultants who examined Plaintiff found that
she did not have disabling limitations, even with her substance abuse. Thus, as Defendant notes,
the ALJ actually found Plaintiff’s combination of impairments caused even great limitations than
those found by the state agency medical consultants. (Doc. 29 p. 13). For example, on December
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15, 2010, Marvin Blase, M.D., while acknowledging that Plaintiff had affective, anxiety, and
substance addiction disorders (Tr. 438, 446), did not find Plaintiff disabled. To the contrary, Dr.
Blase found that Plaintiff retained the ability to understand and recall simple instructions and work
locations; that she retained the ability to perform simple tasks; that she could sustain concentration,
persistence, and pace throughout the extended day; that her psychological signs and symptoms
would rarely intrude during the usual workday/workweek; that she could sufficiently handle
ordinary supervision; that she would not distract others based on the presence of her
psychologically based behaviors; and that she could avoid hazards and could sufficiently adapt to
workplace changes. (Tr. 436).
Likewise, on April 15, 2011, medical consultant Lief Davis, Psy.D., noted Plaintiff’s
substance addiction disorders (Tr. 452) but nevertheless made the following functional capacity
assessment:
The claimant’s ability to understand and remember complex or detailed
instructions is not limited, however they may at times experience
mild/moderate difficulties maintaining attention/concentration for
extended periods of time.
Basic memory processes are intact. They can perform work in a stable
environment. Moreover, they are capable working within a work schedule
and at a consistent pace. They would be able to maintain regular
attendance and be punctual. Also, the claimant would not require special
supervision in order to sustain a work routine. There are no restrictions in
abilities to socially interact and adapt. The claimant is able to meet the
basic mental demands of competitive work on a sustained basis despite
these limitations resulting from an impairment.
(Tr. 468).
In light of the findings of these medical consultants, the Court finds that substantial
evidence supports the ALJ’s findings that substance abuse was a contributing factor material to
Plaintiff’s disability and that Plaintiff’s impairments would not be severe in the absence of
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substance abuse. Plaintiff failed to carry her burden of proving that her substance abuse was not
a contributing factor to her disability determination. Accordingly, the Court will not disturb the
ALJ’s findings on appeal.
III.
Conclusion
The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C.
§ 405(g). The Clerk of Court is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida on September 21, 2015.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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