Laraby v. Commissioner of Social Security

Filing 27

OPINION AND ORDER reversing and remanding the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. See Opinion and Order for further details. Signed by Magistrate Judge Mac R. McCoy on 7/29/2016. (JTM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CARRIE A. LARABY,
Plaintiff,
v.

Case No: 2:15-cv-174-FtM-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause comes before the Court on Plaintiff Carrie A. Laraby’s Complaint (Doc. 1)
filed on March 18, 2015. Plaintiff seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for a period of
disability and disability insurance benefits. 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
decision of the Commissioner is REVERSED AND REMANDED pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A. Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason

of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A); 20 C.F.R. §§ 404.1505. The impairment must be
severe, making the claimant unable to do her previous work, or any other substantial gainful

activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2); 20 C.F.R. §§ 404.1505 404.1511.
B. Procedural History
On December 6, 2011, Plaintiff filed an application for disability insurance benefits
asserting an onset date of April 15, 2011. (Tr. at 144). Plaintiff’s application was denied
initially on February 8, 2012, and on reconsideration on April 11, 2012. (Tr. at 97, 108). A
hearing was held before Administrative Law Judge (“ALJ”) Maria C. Northington on June 9,
2014. (Tr. at 46-88). The ALJ issued an unfavorable decision on September 12, 2014. (Tr. at
24-45). The ALJ found Plaintiff not to be under a disability from April 15, 2011 through the
date of the decision. (Tr. at 41).
On January 23, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. at
1-6). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on March 18, 2015.
Defendant filed an Answer (Doc. 16) on July 1, 2015. Both parties filed memoranda in support
of their positions. (Docs. 24 and 26). The parties consented to proceed before a United States
Magistrate Judge for all proceedings. (Doc. 17). This case is ripe for review.
C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Comm’r of Social Security, 542 F. App’x 890, 891
(11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must
determine whether the claimant: (1) is performing substantial gainful activity; (2) has a severe

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Unpublished opinions may be cited as persuasive on a particular point. The Court does not rely
on unpublished opinions as precedent. Citation to unpublished opinions on or after January 1,
2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.

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impairment; (3) has a severe impairment that meets or equals an impairment specifically listed in
20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past relevant work; and (5) can
perform other work of the sort found in the national economy. Packer, 542 F. App’x at 891
(citing 20 C.F.R. § 404.1520; Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir. 2004)).
The claimant has the burden of proof through step four and then the burden shifts to the
Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913, 915 n.2
(11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2016. (Tr. at 29). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since April 15, 2011, the alleged onset date. (Tr. at 29).
At step two, the ALJ found that Plaintiff suffered from the following severe impairments: “mild
lumbar degenerative disc disease with scarring, facet arthropathy status-post fusion in 2000 with
lumbar pain/ fibromyositis (a secondary pain term) and radiculopathy.” (Tr. at 29). At step
three, the ALJ determined 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 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (Tr. at
30). At step four, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”)
to perform light work:
[W]ith the ability to occasionally lift and/or carry up to 20 pounds as defined in the
Dictionary of Occupational Title (DOT) [sic] and regulations, as well as, lift/carry
10 pounds frequently. This includes sedentary work as defined in DOT and the
regulations. The claimant has no limits for sitting in an eight-hour workday. In
deference to her pain allegations despite the mild lumbar findings, she is capable of
standing and/or walking for up to four hours in an eight-hour workday. She is able
to perform occasional postural functions of climbing ramps/stairs and stooping. In
the course of work, she should be allowed the ability to optionally alternate between
sitting and standing, but such would not cause her to be off-task. She is to perform
no crawling, no crouching, no kneeling and no climbing of ladders/ropes/scaffolds.

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(Tr. at 31).
At step four, the ALJ determined that Plaintiff is able to perform her past relevant work
as a Court Clerk, (DOT #243.362-010), sedentary work with an SVP of 6; Supervisor of Clerks,
(DOT #209.132-010), sedentary with an SVP of 6; and Receptionist, (DOT #352.667-010), light
work with an SVP of 3. (Tr. at 39). 2 The ALJ wrote that “[i]n comparing [Plaintiff’s] residual
functional capacity with the physical and mental demands of this work, the undersigned finds
that [Plaintiff] is able to perform it as actually and generally performed.” (Tr. at 39). Moreover,
the ALJ specifically noted that a vocational expert testified that “all three jobs also accommodate
standing/walking to as little as two hours in an eight hour workday.” (Tr. at 39).
Although the ALJ determined at step four that Plaintiff could perform past relevant work,
the ALJ proceeded to make alternative findings for step five. (Tr. at 39-40). For these
alternative findings, the ALJ considered Plaintiff’s age, education, and work experience. (Tr. At
39-40). The ALJ noted that, even if Plaintiff was prevented from performing any of her past
relevant work, the vocational expert testified that there were other occupations that an individual
with the same age, education, past relevant work experience, RFC, and past acquired skills could
perform. (Tr. at 40). The ALJ further noted that, even with additional hypothetical restrictions
such as “stand and/ or walk for two hours in an eight-hour workday,” there were still jobs that
existed in significant numbers. (Tr. at 40).
The ALJ determined that the vocational expert’s testimony was consistent with the
information contained in the Dictionary of Occupational Titles. (Tr. at 41). Ultimately, the ALJ

2

“DOT” refers to the Dictionary of Occupational Titles, and “SVP” refers to the Specific
Vocational Preparation Code.

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concluded that a finding of “not disabled” was appropriate and that Plaintiff was not under a
disability from April 15, 2011, through the date of the decision. (Tr. at 41).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, 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., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include 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) (citing Richardson, 402 U.S. at 401;
Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
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 the finder of fact,
and even if the reviewer finds that “the evidence preponderates 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 evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding that the court must
scrutinize the entire record to determine reasonableness of factual findings).

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II.

Analysis
Plaintiff argues three issues on appeal:
1. The Commissioner erred in failing to articulate good cause for not crediting
the treating opinion of Dr. Gross and in improperly substituting her
layperson opinion for that of a medical expert.
2. The Commissioner erred in failing to make adequate credibility findings
regarding Ms. Laraby’s pain and other symptoms and in improperly relying
on multiple mistakes of fact due to Commissioner’s [sic] misreading of the
evidence.
3. The Commissioner failed to address why she was not crediting the opinion
of Dr. Sonstein, a neurosurgeon, that Ms. Laraby suffered from a permanent
injury to her cervical spine and needed to avoid high impact activity and
overhead lifting.

(Doc. 24 at 1). The Court addresses Plaintiff’s argument as to Dr. Sonstein first.
A. Dr. Sonstein’s Opinion
i. The Parties’ Positions
Plaintiff argues that the ALJ failed to address why she was not crediting the opinion of
Dr. Sonstein. (Doc. 24 at 22-23). Plaintiff notes that Dr. Sonstein performed a consultative
examination on Plaintiff in August 2011. (Id. at 23). Plaintiff further notes that Dr. Sonstein
“concluded that Ms. Laraby sustained a permanent injury to the cervical spine area and should
avoid high impact activity and overhead lifting.” (Id.). Plaintiff contends, however, that “[t]he
ALJ concluded that Ms. Laraby did not have a severe cervical spine condition.” (Id. at 22).
Plaintiff argues that “Dr. Sonstein’s opinion took into account the very same MRI findings that
the ALJ used as a basis for determining that [Plaintiff’s] cervical condition was not even
minimally severe.” (Id. at 25 (citing Tr. at 30)). Plaintiff contends, therefore, that the ALJ erred
by not stating why she was “not crediting the limitations indicating that the impairment was

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more than minimally limiting.” (Id. at 23). Plaintiff argues that the ALJ’s failure to
meaningfully analyze Dr. Sonstein’s opinion warrants reversal and remand. (Doc. 24 at 25).
In response, Defendant concedes that “the ALJ did not explicitly address Dr. Sonstein’s
opinion.” (Doc. 26 at 15). Defendant, however, argues that “such error is harmless because it
does not affect the ALJ’s ultimate finding.” (Id. (citing Tillman v. Comm’r, Soc. Sec. Admin.,
559 F. App’x 975, 975 (11th Cir. 2014) (“[W]hen the ALJ’s error did not affect its ultimate
findings, the error is harmless, and the ALJ’s decision will stand.”))). Defendant argues that the
two limitations that Dr. Sonstein opined – i.e., avoiding high impact activities and overhead
lifting – are accounted for within the limitations in the RFC. (Doc. 26 at 15 (citing Tr. at 31)).
Specifically, Defendant argues that the limitations in the RFC “would preclude high impact
activities as opined by Dr. Sonstein.” (Doc. 26 at 15 (citing Tr. at 540, 191)). Defendant further
contends that Dr. Sonstein’s limitation of no overhead lifting is contradicted by the opinions of
Dr. Gross, Plaintiff’s treating physician. (Id.).
Nevertheless, Defendant notes that the RFC does not explicitly limit Plaintiff’s reaching.
(Doc. 26 at 15-16). Defendant argues, however, that “[h]ad the ALJ credited Dr. Sonstein’s
opinions and included limitations on high impact work and overhead reaching in the RFC, the
outcome would not have changed.” (Id. at 16). Further, Defendant argues that, even with
additional limitations, the ALJ’s alternate findings that Plaintiff could perform other work
demonstrates that Plaintiff has not met her burden of showing that she cannot perform her past
relevant work. (Id.).
Defendant argues that “the Commissioner properly considered the relevant evidence and
properly performed his [sic] duty as the trier of fact in resolving any conflicts in the evidence.”
(Id.). Defendant contends that “[e]ven if this Court disagrees with the ALJ’s resolution of the

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factual issues, and would resolve those disputed factual issues differently, her decision must be
affirmed where, as here, it is supported by substantial evidence in the record as a whole.” (Id. at
17). Thus, Defendant argues that “the ALJ applied the proper legal standards in evaluating
Plaintiff’s case and the findings are supported by substantial evidence.” (Id.).
ii. Legal Standard
Medical opinions are statements from physicians, psychologists, or other acceptable
medical sources that reflect judgments about the nature and severity of impairments, including
symptoms, diagnosis and prognosis, what a claimant can still do despite impairments, and
physical or mental restrictions. 20 C.F.R. §§ 404.1527(a)(2). When evaluating a medical
source, the factors to be considered by an ALJ include: “(1) the length of the treatment
relationship and the frequency of examination; (2) the nature and extent of any treatment
relationship; (3) supportability; (4) consistency with other medical evidence in the record; and
(5) specialization.” Id. (citations omitted).
An ALJ is required to consider every medical opinion. Bennett v. Astrue, No. 308-CV646-J-JRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing 20 C.F.R. §§ 404.1527(d),
416.927(d)). Further, an ALJ must state with particularity the weight given to different medical
opinions and the reasons therefor. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th
Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.1987)); see also Jusick v.
Comm’r of Soc. Sec., No. 6:10-cv-126-ORL-GJK, 2011 WL 1059106, at *10 (M.D. Fla. Mar. 21,
2011); 20 C.F.R. §§ 404.1527(a)(2). “In 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.” Winschel, 631 F.3d at 1179 (quoting Cowart v.
Schwieker, 662 F.2d 731, 735 (11th Cir. 1981)). When an ALJ fails to “state with at least some

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measure of clarity the grounds for his decision,” the Court will decline to affirm “simply because
some rationale might have supported the ALJ’s conclusion.” Winschel, 631 F.3d at 1179
(quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)). The Eleventh Circuit has
held that “[i]n such a situation, ‘to say that [the ALJ’s] decision is supported by substantial
evidence approaches an abdication of the court’s duty to scrutinize the record as a whole to
determine whether the conclusions reached are rational.’” Winschel, 631 F.3d at 1179 (quoting
Cowart, 662 F.2d at 735)). Thus, failure to state with particularity the weight given to different
medical opinions and the reasons therefor constitutes reversible error. Jusick, 2011 WL
1059106, at *10 (citing MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)).
Nevertheless, the Court is not forced to reverse an ALJ’s decision when the ALJ’s error does not
affect the ultimate findings. Tillman, 559 F. App’x at 975. If the error is harmless, the ALJ’s
decision will stand. Id. (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).
In looking at relevant case law, this Court has reversed the decision of the Commissioner
when the ALJ failed to state with particularity the weight assigned to various medical opinions.
Jusick, 2011 WL 1059106, at *10 (M.D. Fla. Mar. 21, 2011). For instance, in Jusick, the
plaintiff argued that the ALJ failed to properly weigh and consider the opinion evidence. Id.
The Court agreed and stated that “[w]ithout clearly stating the weight given to those medical
opinions, it is impossible for the Court to determine whether the final decision is supported by
substantial evidence, particularly in this case where the various medical opinions contain
conflicting evidence.” Id. (citing Winschel, 631 F.3d at 1178-79)). Such a failure by the ALJ
constituted reversible error. Jusick, 2011 WL 1059106, at *10 (citing MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986)).

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In Tillman, however, the claimant argued that the ALJ failed to explicitly assign weight
to the opinions of two doctors that treated the claimant during his hospitalization following a
stroke. Tillman, 559 F. App’x at 976. The Court, however, affirmed the ALJ’s decision even
though the ALJ failed to assign the particular weight given to the different medical opinions. Id.
The Court noted that the ALJ “expressly noted and considered the diagnostic evidence on which
[the doctors] relied in forming their opinions, and that evidence, along with other objective
medical evidence in the record and [the claimant’s] own testimony, showed that he was not
disabled and incapable of work.” Id. at 975. The Court further noted that the doctors’ opinions
“concerned matters ultimately reserved to the Commissioner for final determination (i.e.,
whether [the claimant] was legally disabled) and were therefore not entitled to controlling
weight.” Id. While acknowledging that the ALJ’s failure to specifically reference the opinions
of the doctors would ordinarily constitute reversible error, the Court, nevertheless, concluded
that the failure did not affect the result in that case. Id.
iii. Analysis
Dr. Sonstein, a board certified neurosurgeon, performed a consultative examination on
Plaintiff on August 30, 2011. (Tr. at 364). Dr. Sonstein took Plaintiff’s history and reviewed
cervical and lumber MRIs performed on Plaintiff on July 12, 2011. (Tr. at 364). Dr. Sonstein
wrote that “the cervical study shows a disc protrusion, questionable 1-2mm protrusion at C3-C4”
and that “the lumbar study shows s/p L5-S1 fusion.” (Tr. at 364). Dr. Sonstein’s assessment of
Plaintiff stated: “1. Status post MVA, dated 4/15/11. 2. Displacement of cervical disc. 3.
Lumbar sprain/strain.” (Tr. at 364). In Dr. Sonstein’s opinion, “the patient has suffered a
permanent injury to the cervical areas as a direct result of the motor vehicle accident that
occurred on 4/15/11.” (Tr. at 364). As a result of his findings, Dr. Sonstein recommended, in

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pertinent part, that “[t]he patient is to avoid high impact activity and overhead lifting.” (Tr. at
364).
As Plaintiff notes, the ALJ did consider the MRI findings that Dr. Sonstein used in
formulating his assessment of Plaintiff. (Doc. 24 at 24 (citing Tr. at 30)). The ALJ did not,
however, state with particularity the weight assigned to the medical opinion of Dr. Sonstein and
the reasons therefore. In fact, the ALJ failed to make any reference to Dr. Sonstein’s opinion or
Plaintiff’s restrictions from Dr. Sonstein’s opinion.
This failure comes despite the ALJ’s specific finding that Plaintiff’s cervical injuries
were not severe. (Tr. at 30). On this point, Dr. Sonstein rendered a medical opinion regarding
Plaintiff’s cervical back, including a statement that Plaintiff suffered a permanent injury to her
cervical areas and that “[t]he patient is to avoid high impact activity and overhead lifting.” (Tr.
at 364). While Defendant makes a fair argument that the outcome would have remained the
same even if the ALJ had taken Dr. Sonstein’s opinion into consideration, (see Doc. 26 at 15-16),
the Court is not in a position to make such findings. The Court cannot say with certainty that the
ALJ’s determinations, as to Plaintiff’s RFC and ultimately her disability, would have been the
same had she properly considered Dr. Sonstein’s medical opinion. Moreover, in this instance,
the Court is not inclined to affirm the ALJ’s decision “simply because some rationale might have
supported the ALJ’s conclusion.” Winschel, 631 F.3d at 1179 (quoting Owens, 748 F.2d at
1516).
The Court further finds that the Tillman decision relied upon by Defendant is inapposite.
Like Tillman, a review of the ALJ’s opinion in this case shows that the ALJ considered the same
diagnostic evidence on which Dr. Sonstein relied. (See Tr. at 30). Nevertheless, unlike Tillman,
Dr. Sonstein’s opinion does not concern “matters ultimately reserved to the Commissioner for

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final determination” – i.e., whether Plaintiff is legally disabled. Tillman, 559 F. App’x at 976.
Dr. Sonstein’s opinion does not give a statement on whether Plaintiff is disabled, but rather states
that Plaintiff has a permanent injury to her cervical areas. (See Tr. at 364). Moreover, unlike
Tillman, because the Court cannot say with certainly that the ALJ’s findings would have been the
same had she properly considered Dr. Sonstein’s medical opinion, the Court cannot conclude
here that the ALJ’s error was harmless.
Accordingly, in light of the clear requirements in the regulations and the case law that an
ALJ must state with particularity the weight given to different medical opinions and the reasons
therefor, the Court finds that the ALJ’s failure to do so in this case is reversible error. See
Winschel, 631 F.3d at 1179.
B. Plaintiff’s Remaining Arguments
Plaintiff’s remaining arguments focus on a number of issues that cannot be resolved until
it is clear to the Court that the ALJ properly considered all of the relevant medical evidence in
the record. Because the Court has found that, upon remand, the ALJ must evaluate certain
medical opinions, which contain impairment evidence, and that evidence may impact the Court’s
analysis of other elements of the ALJ’s Decision, the Court finds that any ruling on Plaintiff’s
remaining arguments would be premature at this time.
III.

Conclusion
Upon consideration of the submissions of the parties and the administrative record, the

Court finds that the decision of the ALJ is not supported by substantial evidence because the ALJ
did not evaluate the medical opinion of Dr. Sonstein. Upon remand, the Commissioner should
reevaluate all of the medical opinions, and should specifically consider the medical opinion of
Dr. Sonstein.

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IT IS HEREBY ORDERED:
1) The decision of the Commissioner is REVERSED and REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g) for the Commissioner to reconsider the medical
evidence and the opinion of Dr. Sonstein.
2) The Clerk of Court is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the file.
3) If Plaintiff prevails in this case on remand, Plaintiff must comply with the Order
(Doc. 1) entered on November 14, 2012, in Misc. Case No. 6:12-mc-124-Orl-22.
DONE AND ORDERED in Fort Myers, Florida on July 29, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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