Marone v. Commissioner of Social Security
Filing
22
OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment in favor of the Commissioner, and close the file. Signed by Magistrate Judge Carol Mirando on 3/31/2016. (ANW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT MARONE,
Plaintiff,
v.
Case No: 2:14-cv-616-FtM-CM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Robert Marone appeals the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his claim for disability
insurance benefits (“DIB”). For the reasons discussed herein, the decision of the
Commissioner is affirmed.
I.
Issues of Appeal 1
Plaintiff raises two 2 issues on appeal: (1) whether the residual functional
capacity (“RFC”) finding of Administrative Law Judge (“ALJ”) Larry J. Butler is
supported by substantial evidence; and (2) whether the ALJ erred in failing to obtain
a vocational expert (“VE”).
Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now, Inc.
v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) ([A] legal claim or argument
that has not been briefed before the court is deemed abandoned and its merits will not be
addressed.”), cited in Sanchez v. Comm'r of Soc. Sec., 507 F. App'x 855, 856 (11th Cir. 2013).
1
The Court has combined Plaintiff’s first two issues into one issue, as both issues
address the ALJ’s RFC finding.
2
II.
Procedural History and Summary of the ALJ’s Decision
Plaintiff protectively filed an application for DIB alleging a disability that
began on February 1, 2008. 3 Tr. 62, 166-69. The Social Security Administration
denied his claim initially on April 16, 2009 and upon reconsideration on July 9, 2009.
Tr. 124, 130. Plaintiff requested and received a hearing before ALJ Larry J. Butler
on September 10, 2010, during which he was represented by an attorney. Tr. 57-83.
Plaintiff testified at that hearing.
The ALJ issued an unfavorable decision on
September 21, 2010. Tr. 105-14.
The Appeals Council remanded this case on March 22, 2012 and directed the
ALJ to obtain additional evidence concerning Plaintiff’s impairments; if warranted,
obtain evidence from a medical expert to clarify the nature and severity of Plaintiff’s
impairments; consider Plaintiff’s maximum RFC and provide rationale with specific
references to evidence and, in doing so, evaluate the treating, non-treating and nonexamining sources and explain the weight given to such opinion evidence; evaluate
Plaintiff’s past relevant work and obtain supplemental evidence from a VE to
determine whether Plaintiff has acquired any skills that are transferable; and if
warranted, obtain supplemental evidence from a VE to clarify the effect of the
assessed limitations of Plaintiff’s occupational base. Tr. 120-21.
Plaintiff appeared and testified a second hearing before ALJ Butler on July 31,
2012, during which he was represented by the same attorney as his prior hearing.
In Plaintiff’s application, he alleged that he became disabled on November 2, 2006.
Tr. 166. At the administrative hearing, he clarified that his alleged onset date was February
1, 2008. Tr. 62.
3
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Tr. 25-56. On February 15, 2013, the ALJ issued a decision finding Plaintiff not
disabled and denying his claim.
Tr. 12-20.
Initially, the ALJ determined that
Plaintiff met the insured status requirements of the Social Security Act on September
30, 2010. Tr. 14. At step one, the ALJ determined that Plaintiff has not engaged
in substantial gainful activity during the period from February 1, 2008, his alleged
onset date, through September 30, 2010, his date last insured. Id. At step two, the
ALJ determined that Plaintiff has the following severe impairments: degenerative
disc disease, shoulder impingement and status-post compound hand fracture. Id.
At step three, the ALJ concluded that Plaintiff “[does] not have an impairment or
combination of impairments that [meets] or medically [equals] the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 17.
Taking into account the effects from all of Plaintiff’s impairments, the ALJ
determined that Plaintiff has the RFC to
perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff]
is limited to occasionally climbing ramps and stairs and may never
[climb] ladders, ropes, or scaffolds. [Plaintiff] may only occasionally
balance, stoop, kneel, crouch, or crawl. [Plaintiff] is limited in reaching
overhead and should avoid concentrated exposure to vibrations and
hazards such as moving machinery or unprotected heights.
Id. The ALJ found that Plaintiff’s medically determinable impairments reasonably
could be expected to cause the alleged symptoms, but his statements concerning the
intensity, persistence and the limiting effects of the symptoms are not fully credible.
Tr. 18. The ALJ found that Plaintiff is capable of performing past relevant work as
a sales manager, and this would not require the performance of work-related
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activities precluded by the Plaintiff’s RFC.
Tr. 20.
Thus, the ALJ found that
Plaintiff is not disabled and denied his claim. Id.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on September 10, 2014.
Tr. 1-4. Accordingly, the
February 15, 2013 decision is the final decision of the Commissioner. Plaintiff filed
an appeal in this Court on October 22, 2014. Doc. 1.
III.
Social Security Act Eligibility and Standard of Review
A claimant is entitled to disability benefits when he 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. 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 Eleventh Circuit has summarized the
five steps as follows:
(1) whether the claimant is engaged in substantial gainful activity; (2)
if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform his
past relevant work; and (5) if not, whether, in light of his age, education,
and work experience, the claimant can perform other work that exists
in “significant numbers in the national economy.”
Atha v. Comm'r, Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion
through step four; and, at step five, the burden shifts to the Commissioner. Id.;
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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 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
(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).
The Eleventh Circuit recently has restated that “[i]n determining whether
substantial evidence supports a decision, we give great deference to the ALJ’s fact
findings.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015)
(citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir.
1996)). 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
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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). It is the
function of the Commissioner, and not the courts, to resolve conflicts in the evidence
and to assess the credibility of the witnesses. Lacina v. Commissioner, 2015 WL
1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971)).
IV.
Discussion
a. Whether the ALJ’s RFC finding is supported by substantial evidence
Plaintiff contends that the ALJ’s RFC finding is not supported by substantial
evidence for five reasons: (1) the ALJ failed to explain why he did not include in the
RFC the postural limitations identified by Dr. Janet Attlesey, a state agency
consultant; (2) the ALJ failed to make his RFC finding based on preponderance of the
evidence rather than substantial evidence; (3) the ALJ focused only on the evidence
that supported his finding, while ignoring contrary evidence; (4) substantial evidence
does not support the ALJ’s findings of no limitation in activities of daily living and
mild limitations in social functioning and concentration, persistence or pace, or the
ALJ’s failure to include non-exertional mental limitations in Plaintiff’s RFC; and (5)
the ALJ failed to describe the maximum amount of overhead reaching Plaintiff can
perform. Doc. 14 at 17-22.
When an impairment does not meet or equal a listed impairment at step three,
as in this case, the ALJ will proceed to step four to assess and make a finding
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regarding the claimant’s RFC based upon all the relevant medical and other evidence
in the record. 20 C.F.R. § 404.1520(e). Here, the ALJ found that Plaintiff “does 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.”
Tr. 17.
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
his limitations. See 20 C.F.R. § 404.1545(a)(1). The ALJ is required to assess a
claimant’s RFC based on all of the relevant 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. At the hearing level,
the ALJ has the responsibility of assessing a claimant’s RFC.
See 20 C.F.R. §
404.1546(c). The determination of RFC is within the authority of the ALJ; and the
claimant’s age, education and work experience are considered in determining the
claimant’s RFC and the claimant’s ability to return to 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 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)).
1. Dr. Janet Attlesey
Plaintiff states the ALJ failed to explain why he did not include in the RFC the
postural limitations identified by Dr. Attlesey. Doc. 14 at 17. Specifically Plaintiff
argues that “despite giving significant weight to Dr. Attlesey’s (a state agency
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examiner) medical source statement (Tr. 19), the ALJ without explanation, did not
include in the RFC the postural limitations Dr. Attlesey opined and only found
[Plaintiff] ‘limited in reaching overhead,’ when Dr. Attlesey indicated a limitation in
reaching in all direction.” Id. (emphasis in original). Plaintiff elaborates that the
ALJ also failed to explain why he rejected Dr. Attlesey’s opinions that Plaintiff was
limited to occasionally balancing, stooping, kneeling, crouching and crawling. Id.
The Commissioner responds that Plaintiff’s argument should be disregarded because
the ALJ included all of the limitations identified in Dr. Attlesey’s opinion. Doc. 15
at 8. The Commissioner also states that when asked to describe how Plaintiff is
limited in his ability to reach, Dr. Attlesey opined, “‘B[ilateral] overhead 1/3 [of the
time].’” Id. at 9 (citing Tr. 774).
When determining how much weight to afford an opinion, the ALJ considers
whether there is an examining or treatment relationship and the nature and extent
thereof; whether the source offers relevant medical evidence to support the opinion;
consistency with the record as a whole; the specialization of the source, if any; and
any other factors that tend to support or contradict the opinion.
20 C.F.R. §
404.1527(c)(1)-(6). Findings of fact made by state agency medical and psychological
consultants as to the nature and severity of a claimant’s impairments must be treated
as expert opinion evidence of nonexamining sources by the ALJ; but the ultimate
opinions as to whether a claimant is disabled, the severity of a claimant’s
impairments, the claimant’s RFC and the application of vocational factors are
exclusively reserved to the Commissioner. SSR 96-6p; 20 C.F.R. § 404.1527(d)(1)-
-8-
(2). Unless a treating source’s opinion is given controlling weight, the ALJ must
explain the weight given to the opinions of other consultants, doctors or medical
specialists. 20 C.F.R. § 404.1527(e)(2)(ii); Vuxta v. Comm’r of Soc. Sec., 194 F. App’x
874, 877 (11th Cir. 2006).
In the Eleventh Circuit, the law is clear that “the ALJ must state with
particularity the weight given to different medical opinions and the reasons therefor.”
Winschel, 630 F.3d at 1179 (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.
1987)). The court reiterated in Winschel, “[i]n the absence of such a statement, it is
impossible for a reviewing court to determine whether the ultimate decision on the
merits of the claim is rational and supported by substantial evidence.” 630 F.3d at
1179 (citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). An ALJ who
fails to “state with at least some measure of clarity the grounds for his decision”
cannot be affirmed because the court cannot perform its duty to “scrutinize the record
as a whole to determine whether the conclusions reached are rational.” Winschel,
630 F.3d at 1179 (citations omitted).
On June 17, 2009, Dr. Attlesey completed a Physical Residual Functional
Capacity Assessment of Plaintiff. Tr. 771-78.
Dr. Attlesey opined that Plaintiff
can lift/carry up to twenty pounds occasionally and up to ten pounds frequently. Tr.
772. Plaintiff has the ability to stand/walk for about six hours in an eight-hour
workday and sit for a total of six hours in an eight-hour workday. Id. Plaintiff also
has an unlimited ability to push and/or pull. Id. Dr. Attlesey further opined that
Plaintiff has the following postural limitation: climbing ramps/stairs occasionally and
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never climbing ladders, ropes or scaffolds; and balancing, stooping, kneeling,
crouching and crawling occasionally. Tr. 773. Dr. Attlesey marked that Plaintiff
has an unlimited ability for handling, fingering and feeling, but he was limited in his
ability to reach in all directions including overhead. Tr. 774. As the Commissioner
noted, however, when Dr. Attlesey was asked to describe how the activities marked
“limited” were impaired, Dr. Attlesey stated, “B[ ] 4 overhead 1/3.” Id. Dr. Attlesey
does not state that Plaintiff is limited in reaching in all directions, as Plaintiff asserts.
See id; Doc. 14 at 17.
Finally, Dr. Attlesey opined that Plaintiff should avoid
exposure to vibration and hazards (machinery, heights, etc.). Tr. 775.
Here, the ALJ also found that Plaintiff is limited to “occasionally climbing
ramps and stairs and may never [climb] ladders, ropes, or scaffolds. [Plaintiff] may
only occasionally balance, stoop, kneel, crouch, or crawl. [Plaintiff] is limited in
reaching overhead and should avoid concentrated exposure to vibrations and hazards
such as moving machinery or unprotected heights.” Tr. 17. The Court does not find
that the ALJ’s RFC is in any way inconsistent with that of Dr. Attlesey. The ALJ
gave Dr. Attlesey’s opinion significant weight, and the ALJ’s opinion is consistent
with that of Dr. Attlesey. Thus, there are no opinions of Dr. Attlesey that the ALJ
rejected without explanation, as he appears to have incorporated Dr. Attlesey’s entire
opinion.
“B” is a typical abbreviation used by medical professionals to denote the word
“bilateral.”
http://www.medilexicon.com/medicalabbreviations.php?keywords=bilateral&search=definiti
on
4
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2. Legal Standard
Plaintiff next argues that the ALJ failed to base the RFC on the preponderance
of the evidence. Doc. 14 at 17. Specifically, Plaintiff states, “the ALJ asserted that
he rejected treating physician Dr. [Thomas] Mattras’ opinion because ‘it [was]
inconsistent with substantial evidence of record.’”
Id. at 18 (quoting Tr. 19).
Plaintiff contends that this was an explicit statement by the ALJ that he found
Plaintiff not disabled based on substantial evidence, rather than a preponderance of
the evidence. Id. In response, the Commissioner states that Plaintiff’s argument
lacks merit, because, “while the ALJ’s decision should be based upon a preponderance
of the evidence, the regulations impose a different standard when the ALJ weighs the
medical opinion evidence.”
Doc. 15 at 9 (citing 20 C.F.R. §§ 404.953(a),
404.1527(c)(2)).
The regulations provide “[t]he Administrative Law Judge must base the
decision on the preponderance of the evidence offered at the hearing or otherwise
included in the record.” 20 C.F.R. § 404.953(a). When evaluating opinion evidence,
however, generally the ALJ gives more weight to a treating physician as long as the
opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence” of record. 20
C.F.R. § 404.1527(c)(2). The term “not inconsistent” means, “that a well-supported
treating medical source opinion need not be supported directly by all of the evidence
(i.e., it does not have to be consistent with all the other evidence) as long as there is
no substantial evidence in the case record that contradicts or conflicts with the
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opinion.”
SSR 96-2p, 1996 WL 374188, at *3.
Sometimes there will be obvious
inconsistencies, while other times it will be less obvious; but the determination of
whether a medical opinion is “not consistent” is a judgment that the ALJ must make
in each case. Id. Moreover, simply because an opinion may be inconsistent with
the other substantial evidence of records does not mean the opinion should be
rejected, but rather that it should not be entitled to controlling weight. Id. at *4.
Plaintiff relies upon a case from the Fifth Circuit 5 for the proposition that even
if the Court finds that substantial evidence supports the decision, the ALJ’s failure
to apply the proper legal standard requires reversal. Western v. Harris, 633 F.2d
1204, 1206 (5th Cir. 1981) (citing Knox v. Finch, 427 F.2d 919, 920 (5th Cir. 1970)).
In Western, the ALJ improperly shifted the burden to the claimant to show not only
that she could not perform her past relevant work, but also to prove that she could
not perform other work. Id. The court noted that once the claimant met her burden
of showing that she could not perform her past relevant work, the burden shifted to
the Secretary to show that there was other types of work the claimant could perform.
Id. The court reversed the decision of the ALJ because he failed to apply the proper
legal standard. Id.
Here, however, the ALJ applied the proper legal standard when evaluating the
weight accorded to Dr. Mattras. As discussed by the Commissioner, the regulations
state that when evaluating the opinion of a treating physician, the opinion must not
The Eleventh Circuit adopted as binding precedent, the decisions of the Fifth
Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207
(11th Cir. 1981).
5
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be inconsistent with other substantial evidence of record. Doc. 9 at 15 (citing 20
C.F.R. § 404.1527(c)(2)). The ALJ gave no weight to Dr. Mattras’ opinion because he
concluded that it was inconsistent with substantial evidence of record, which included
Plaintiff’s extensive activities of daily living and objective testing revealing only mild
irregularities. Tr. 19. Although Plaintiff states that under SSR 96-2p, the ALJ
should not have rejected the opinion of Dr. Mattras, there is nothing in the
regulations stating that the ALJ could not reject the opinion as being inconsistent
with other evidence of record. See SSR 96-2p. Plaintiff does not appear to contest
the weight given to Dr. Mattras, as Plaintiff states that the issue is not whether a
preponderance of the evidence supports the rejection of Dr. Mattras, but whether the
ALJ based his rejection on a preponderance of the evidence. Doc. 14 at 18. Plaintiff
appears only to contest the legal standard applied. Id.
In the reply brief, however, Plaintiff argues for the first time that substantial
evidence does not support the ALJ’s decision to reject Dr. Mattras’ opinion, and that
Dr. Mattras’ opinion should have been given greater weight than the opinion of Dr.
Attlesey because it was based on a more complete record. Doc. 21 at 5. Plaintiff
also asserts that the decision is not supported by substantial evidence because the
ALJ failed to consider all of the regulatory factors set forth in 20 C.F.R. § 404.1527(c).
As discussed supra, 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
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factors. See 20 C.F.R. § 404.1527(c)(1)-(6). Opinions of treating sources usually are
given more weight because treating physicians are the most likely to be able to offer
detailed opinions of the claimant’s impairments as they progressed over time and
“may bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations . . . .”
20 C.F.R. § 404.1527(c)(2). If the opinion of a treating physician as to the nature and
severity of a claimant’s impairment is supported by acceptable medical evidence and
is not inconsistent with other substantial evidence of record, the treating physician’s
opinion is entitled to controlling weight. Id.
By contrast, if the ALJ does not afford controlling weight to a treating
physician’s opinion, he must clearly articulate the reasons for doing so. Winschel
631 F.3d at 1179. The ALJ did so here. Although the regulations require that the
ALJ consider all factors set forth in 20 C.F.R. § 404.1527(c), the ALJ is not required
to expressly address each factor so long as he demonstrates good cause to reject the
opinion. Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir. 2011).
“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.’” Castle v.
Colvin, 557 F. App’x 849, 854 (11th Cir. 2014) (quoting Phillips, 357 F.3d at 1240);
Green v. Soc. Sec. Admin., 223 F. App’x 915, 922 (11th Cir. 2007) (“Good cause to
discount a treating physician may arise where a report ‘is not accompanied by
objective medical evidence or is wholly conclusory.’”) (quoting Crawford v. Comm’r of
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Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004)). “The ALJ may also devaluate the
opinion of a treating physician where the opinion is contradicted by objective medical
evidence.” Green, 223 F. App’x at 922.
Here, the ALJ determined that Dr. Mattras’ opinion was contradicted by
objective medical evidence.
The Eleventh Circuit has held that an ALJ is not
required to explicitly address each regulatory factor when rejecting an opinion,
provided the ALJ shows good cause. See Lawton, 431 F. App’x at 833. In this case,
the Court concludes that ALJ applied the correct legal standard and showed good
cause in rejecting the opinion of Dr. Mattras when he concluded that the physician’s
opinions were inconsistent with other substantial evidence of record.
3. Contrary Evidence
Next, Plaintiff argues that the ALJ focused only on the evidence supporting his
RFC finding and ignored all contrary evidence. Doc. 14 at 18. Plaintiff alleges that
the ALJ ignored objective evidence indicating repeated observations that Plaintiff
had a limp, walked slowly, and had multiple examinations revealing tenderness to
palpation of his shoulders and/or lumbar spine and pain with shoulder range of
motion. Id. at 29. The Commissioner responds that there is no requirement that
the ALJ specifically refer to every piece of evidence in his decision. Doc. 15 at 10
(citing Dyer, 395 F.3d at 1211).
Moreover, the Commissioner states that the MRI
and progress notes indicating that Plaintiff walks with a limp do not establish that
Plaintiff has additional functional limitations. Id. Additionally, the Commissioner
argues that Plaintiff is not entitled to relief on his claim that the ALJ ignored the
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findings of tenderness and pain on range of motion when they were the basis for Dr.
Attlesey’s decision and the ALJ’s RFC finding is nearly identical to Dr. Attlesey’s
opinion; thus, they are fully incorporated in the ALJ’s decision. Id.
As previously addressed, the ALJ is required to assess a claimant’s RFC based
on all of the relevant evidence in the record. 20 C.F.R. § 404.1545(a)(1). The ALJ
cannot simply focus on the evidence that supports his decision, while disregarding
other contrary evidence. McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986)
(citing Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984)).
The ALJ must
evaluate the record as a whole. Id. The Eleventh Circuit, however, has held that
“there is no rigid requirement that the ALJ specifically refer to every piece of evidence
in his decision, so long as the ALJ's decision . . . is not a broad rejection” that is
insufficient to permit the district court “to conclude that the ALJ considered [the
claimant’s] medical condition as a whole.” Dyer, 395 F.3d at 1211.
Plaintiff argues that the ALJ discussed only one instance of an observed limp,
when there are numerous observations in the records. Doc. 14 at 18-19. He also
states the ALJ only discusses two instances of shoulder tenderness and one instance
of foot tenderness, when the records contain multiple observations showing that
Plaintiff walked slowly and had tenderness in his shoulders and/or lumbar spine and
pain with shoulder range of motion. Id. at 19. Plaintiff, however, fails to explain
how this additional evidence establishes that he has additional functional limitations.
The ALJ recognized that Plaintiff had a limp and complaints of foot pain. Tr. 15-16.
Plaintiff does not articulate how the ALJ discussing the additional notations in the
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record indicating foot pain would establish that Plaintiff has additional functional
limitation. The ALJ has a responsibility to consider all of the relevant evidence of
record; but again, there is no rigid requirement that the ALJ specifically refer to every
piece of evidence in his decision. 20 C.F.R. § 404.1545(a)(1); Dyer, 395 F.3d at 1211.
Thus, the Court finds that the ALJ’s decision is supported by substantial evidence
even though he did not refer to every piece of evidence in his decision.
4. Mental Impairments
Next Plaintiff argues that substantial evidence does not support the ALJ’s
findings of no limitation in activities of daily living, mild limitations in social
functioning and concentration, persistence, or pace or his exclusion of non-exertional
mental limitations in the RFC. Doc. 14 at 20. Plaintiff again asserts that the ALJ
ignored evidence contrary to his findings. Id. The Commissioner responds that
only Dr. Keith Bauer and Dr. Steven Wise, both state agency consultants, rendered
opinions concerning Plaintiff’s mental functioning. Doc. 15 at 11; Tr. 749, 779. The
Commissioner states that their opinions were rendered before Dr. Cecilia
Sunnenberg, Plaintiff’s treating psychiatrist, rendered her opinions, and many of Dr.
Sunnenberg’s opinions are from after Plaintiff’s date last insured. Id. at 11 n.6.
The Commissioner notes, however, that the ALJ reviewed Dr. Sunnenberg’s records
and found them to be consistent with that of Dr. Bauer and Dr. Wise. Doc. 15 at 12;
Tr. 19.
On April 15, 2009, Dr. Bauer completed a psychiatric review technique and
concluded that Plaintiff not does have a severe impairment. Tr. 749. He concluded
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that Plaintiff has an adjustment disorder with depressed mood and a mood disorder
not otherwise specified.
Tr. 752.
He found that Plaintiff has no limitations in
activities of daily living, mild limitations in social functioning, concentration,
persistence or pace and no episodes of decompensation. Tr. 759. Dr. Bauer noted
that Plaintiff did not report any current mental health sources on his application and
did not list being prescribed psychotropic medication. Tr. 761. Dr. Bauer reviewed
Plaintiff’s past medical records indicating Plaintiff’s history of alcohol and cocaine
dependence and depression due to dealing with chronic pain. Id. Dr. Bauer found
that Plaintiff has no more than mild functional limitation that can be reasonably
attributed to his recent onset of depression secondary to his pain. Id.
On July 7, 2009, Dr. Wise also completed a psychiatric review technique and
concluded that Plaintiff does not have a severe impairment. Tr. 779.
Dr. Wise
found that Plaintiff has depression that appears non-severe. Tr. 782. He concluded
that Plaintiff has no limitations in activities of daily living, mild limitations in social
functioning
and
concentration,
persistence
or
pace
and
no
episodes
of
decompensation. Tr. 789. Dr. Wise also opined that Plaintiff has a distant history
of depression with a recent follow-up depicting mild depressive issues. Tr. 791. He
further noted that Plaintiff’s prior substance abuse does not currently appear
relevant. Id.
Dr. Sunnenberg’s records generally reveal that while Plaintiff exhibited a
depressed mood, his thought process was logical and coherent, he had no intent on
harming himself, and he denied homicidal ideation, auditory and visual
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hallucinations, and paranoia. Tr. 469, 477, 804, 821, 856-57, 861, 864, 880. Dr.
Sunnenberg routinely made adjustments to Plaintiff’s medication. Tr. 804, 821, 85657, 880. Dr. Sunnenberg also noted that Plaintiff struggles with insomnia and has
prescribed him medication accordingly. Tr. 856-57, 863-64, 880.
In Plaintiff’s function report, he reported that he lives in a house with friends,
and he does not do anything. Tr. 242. He reported that he is in severe pain day and
night. Tr. 243. He does not take care other anyone else. Id. He needs reminders
to take his medication, but he is able to take care of his personal needs and grooming.
Tr. 244. He is able to go shopping, count change, handle a savings account and use
a checkbook. Tr. 245. On April 27, 2010, Plaintiff reported to Dr. Sunnenberg that
he was able to visit his son in Virginia and that he continued to help his significant
other who is disabled. Tr. 860.
The ALJ found that Plaintiff has no limitations in his activities of daily living.
Tr. 16. In making this finding, the ALJ stated that Plaintiff repeatedly reported that
his activities of daily living were limited because of his physical pain and not his
mental symptoms. Id. The ALJ discussed Plaintiff traveling out of state and his
ability to help his significant other who is disabled. Id.
The ALJ opined that Plaintiff has a mild limitation in social functioning and
in concentration, persistence or pace. Id. The ALJ stated that Plaintiff appeared
generally pleasant and cooperative and was able to get along with well with others.
Id. The ALJ acknowledged that Plaintiff’s concentration appeared limited by his
reports of chronic pain. Id. The ALJ stated that testing revealed that Plaintiff’s
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attention and concentration were within normal limits, but his memory did appear
impaired. Id.
Thus, the ALJ found that that Plaintiff had a mild limitation in
concentration, persistence or pace. Id. The ALJ found that Plaintiff has had no
episodes of decompensation which have been of extended duration. Id.
When evaluating Plaintiff’s RFC, the ALJ noted that Plaintiff was on three
different anti-depressants.
Tr. 18.
The ALJ also considered that Plaintiff has
depression, anxiety, mood swings, and irritability and does not like to deal with
people as much as he used to. Id. The ALJ discussed that Plaintiff has the ability
to bathe and dress himself. Id. The ALJ further discussed Plaintiff’s medication
adjustments and reports of Plaintiff engaging in significant daily living throughout
the record. Tr. 19. The ALJ noted that Plaintiff can handle his finances and does
not have difficulties taking care of his daily activities. Id. The ALJ considered the
reports from Dr. Bauer, Dr. Wise and Dr. Sunnenberg. Id. The Court finds that the
ALJ’s decision is largely consistent with those reports and thus, supported by
substantial evidence. An ALJ is not required to discuss every piece of evidence in
his decision. Dyer, 395 F.3d at 1211.
Moreover, based on the ALJ’s conclusions
regarding Plaintiff’s functional limitations, the Court finds no error in the ALJ failing
to include any mental limitations in Plaintiff’s RFC.
5. Overhead Reaching
Plaintiff also asserts that the ALJ erred by not articulating the maximum
amount of overhead reaching Plaintiff could perform.
Doc. 14 at 21.
Plaintiff
further argues that because the ALJ did not define the maximum amount of overhead
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reaching that Plaintiff can perform, it was impossible for the ALJ to correctly
compare the RFC to the demands of Plaintiff’s past relevant work.
Id.
The
Commissioner responds that if there was any error in failing to articulate the
maximum amount of overhead reaching, it was harmless error.
Doc. 15 at 12.
First, the Commissioner states that it appears that the ALJ adopted the opinion of
Dr. Attlesey who opined that Plaintiff was limited to bilateral overhead reaching for
no more than one-third of the workday. Id. Second, the Commissioner argues that
Plaintiff never indicated that his past relevant work required him to do any overheard
reaching, and thus, any error did not affect the ALJ’s ultimate conclusion. Id. at 1213 (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)). The Commissioner
also argues that Plaintiff failed to meet his burden of showing that he was unable to
perform his past relevant work as a sales manager. Id. at 13-14.
The claimant bears the burden of persuasion through step four and at step five
the burden shifts to the Commissioner.
Bowen, 482 U.S. at 146 n.5. A claimant is
entitled to benefits only if the ALJ determines that he is unable to perform his past
work or any other work.
Id. at 141-42.
The regulations provide that an RFC
assessment must “describe the maximum amount of each work-related activity the
individual can perform based on the evidence available in the case record.” SSR 968p, 1996 WL 974184, at *7. When making a disability determination, the ALJ will
consider his RFC finding and compare it with the physical and mental demands of
the claimant’s past relevant work. 20 C.F.R. § 404.1520(f).
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Here, the ALJ concluded that Plaintiff was capable of performing his past
relevant work as a sales manager. Tr. 20. In comparing the ALJ’s RFC finding to
the mental and physical demands of Plaintiff’s past relevant work the ALJ stated:
“[P]laintiff indicated that he performed this job at the sedentary exertional level 6 and
was never required to lift more than ten pounds. The job did not require noteworthy
climbing, stooping, kneeling, crouching, crawling, reaching or handling (2E, 6E,
16E).” Tr. 20. Thus, the ALJ concluded that Plaintiff was able to perform his past
relevant work as it was actually performed. Id.
Plaintiff argues that the ALJ’s description of his past relevant work as not
requiring “noteworthy” reaching fails to describe the demands of Plaintiff’s past
relevant work, just as “limited” fails to describe the maximum amount of overhead
reaching. Doc. 14 at 22. In response, the Commissioner states Plaintiff failed to
meet his burden of proving that he could not perform his past relevant work, because
based on Plaintiff’s work history reports, there was substantial evidence for the ALJ
to conclude that Plaintiff could perform his past relevant work; and at no point did
Plaintiff indicate that his job as a sales manager required him to do any reaching.
Doc. 15 at 14.
Plaintiff prepared a work history report on January 5, 2009. Doc. 234-41.
Plaintiff reported three different types of sales positions he previously has worked.
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job
is defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.” 20 C.F.R. § 416.967(b).
6
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Id. When Plaintiff worked in auto sales, he reported that he did not have to use
machines, tool or equipment. Tr. 235. He also reported that he did not have to do
any lifting or carrying, but if he did the heaviest weight was less than ten pounds.
Id. He also did not indicate whether he did any walking, standing, sitting, climbing,
stooping, kneeling, crouching, crawling, handling or reaching.
Id.
Plaintiff
reported that he could not describe those physical requirements. Id. Plaintiff also
had past work selling electrical items and components.
Tr. 236.
The physical
requirements he reported were nearly identical to those he reported for his position
in auto sales, except he reported that he did very little lifting rather that no lifting.
Id. He again reported that he could not describe the physical requirements. Id. In
Plaintiff’s past work selling mobility equipment, he again provided a similar report.
Tr. 237.
First, the Court finds no error in the ALJ stating that Plaintiff was limited in
overhead reaching. This finding has no bearing on the ALJ’s ability to compare the
RFC to Plaintiff’s past relevant work.
Here, the ALJ relied upon Plaintiff’s
description of his past relevant work to determine whether Plaintiff could perform
his past relevant work when compared to the RFC finding. The ALJ found that
Plaintiff’s past relevant work did not require any noteworthy climbing, stooping,
kneeling, crouching, crawling, reach or handlings. Tr. 20. This is consistent with
the work history reports prepared by Plaintiff. Tr. 235-37. “The [Plaintiff] is the
primary source for vocational documentation, and statement by the [Plaintiff]
regarding past work are generally sufficient for determining the skill level; exertional
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demands and nonexertional demands of such work.” SSR 82-62, 1982 WL 31383, at
*3. Thus, the ALJ properly relied upon this evidence, and the Court finds the ALJ’s
conclusion that Plaintiff can perform his past relevant work supported by substantial
evidence.
Plaintiff has failed to meet his burden of establishing that he cannot
perform his past work as a sales manager.
b. Whether the ALJ erred in failing to obtain a VE
Plaintiff contends that the ALJ must obtain testimony from a VE about
whether Plaintiff has any transferable skills. Doc. 14 at 23. The Commissioner
argues that this claim lacks merit because the ALJ was only required to consider
Plaintiff’s transferable skills if he found that Plaintiff could not perform his past
relevant work. Doc. 15 at 15. The Court agrees.
In a disability determination, once a claimant proves that he can no longer
perform his PRW, “the burden shifts to the Commissioner to show the existence of
other jobs in the national economy which, given the claimant's impairments, the
claimant can perform.” Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). Here,
because the Court finds that substantial evidence supports the ALJ’s finding that
Plaintiff can perform his past relevant work, the ALJ was not required to elicit
testimony from a VE to determine whether Plaintiff has any transferable skills and
whether jobs exist in the national economy that Plaintiff can perform.
V.
Conclusion
Upon review of the record, the undersigned concludes that the ALJ applied the
proper legal standards, and his determination that Plaintiff is not disabled is
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supported by substantial evidence. Where, as here, the Commissioner’s decision is
supported by substantial evidence, the Court must affirm, even if the reviewer would
have reached a contrary result as finder of fact, and even if the preponderance of the
evidence is against the Commissioner’s decision.
Edwards, 937 F.2d at 584 n.3;
Barnes, 932 F.2d at 1358.
ACCORDINGLY, it is hereby
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, and close the file.
DONE and ORDERED in Fort Myers, Florida on this 31st day of March, 2016.
Copies:
Counsel of record
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