Montana v. Commissioner of Social Security

Filing 25

OPINION AND ORDER reversing and remanding the decision of the Commissioner of Social Security. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Mac R. McCoy on 9/19/2016. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHELLE MONTANA,
Plaintiff,
v.

Case No: 2:15-cv-422-FtM-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause is before the Court on Plaintiff Michelle Montana’s Complaint (Doc. 1) filed
on July 13, 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, disability
insurance benefits, and supplemental security income. 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
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),
1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.

Procedural History

On September 7, 2010, Plaintiff filed an application for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”). (Tr. at 120-21, 222-23). Plaintiff initially
asserted an onset date of January 1, 2006, but later amended it to September 6, 2008. (Tr. at 22223, 256). Plaintiff’s applications were denied initially on January 11, 2011, and on
reconsideration on March 31, 2011. (Tr. at 120-23).
A hearing was held before Administrative Law Judge Larry J. Butler on August 14, 2012.
(Tr. at 32-55). ALJ Butler issued an unfavorable decision on February 22, 2013. (Tr. at 127-37).
On July 8, 2014, the Appeals Council remanded the action back to an Administrative Law Judge.
(Tr. at 142-44). On August 21, 2014, Administrative Law Judge T. Whitaker (“ALJ”) held a
second hearing. (Tr. at 56-119). The ALJ issued an unfavorable decision on January 30, 2015.
(Tr. at 11-25).
On June 8, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. at 1-5).
Plaintiff filed a Complaint (Doc. 1) in the United States District Court on July 13, 2015. This
case is ripe for review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (See Doc. 21).
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 she is disabled. Packer v. Comm’r of Social Security, 542 F. App’x 890, 891

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(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
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 her past relevant work; and (5) can
perform other work of the sort found in the national economy. 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,
2018. (Tr. at 13). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since September 6, 2008, the amended alleged onset date.
(Tr. at 13). At step two, the ALJ found that Plaintiff suffered from the following severe
impairments:
degenerative disc disease with chronic low back pain, status post vault
cystourethropexy with suspension of the urethrovesical neck with history of urinary
tract infection, dysuria, urinary frequency, urinary incontinence; status post total
abdominal hysterectomy, status post enterocele repair, bilateral salpingo
oophorectomy with history of abdominal pain secondary to hematoma following
laproscopic resection of ovarian cyst; history of female pelvic peritoneal adhesion;
ADHD, history of bereavement, anxiety, bipolar I disorder, bipolar affective
disorder, bipolar disorder mixed, alcohol abuse and dependence in remission,
cocaine dependence in remission, and polysubstance dependence (20 CFR
404.1520(c) and 416.920(c)).
(Tr. at 14).

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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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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, Subpt. P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926). (Tr. at 16).
At step four, the ALJ determined that Plaintiff has the residual functional capacity
(“RFC”) to perform light work except:
the claimant can lift, push, pull, and carry 20 pounds occasionally and 10 pounds
frequently. The claimant can sit, stand, and walk, each, for 6 hours in an 8-hour
workday. The claimant is limited to simple, routine, and repetitive tasks with
“simple” defined as unskilled tasks. The claimant is limited to a work environment
free of fast-paced production requirements. The claimant is limited to work
involving only simple work related decisions and only occasional work place
changes. The claimant is limited to work with no interaction with the public and
only occasional interaction with coworkers and supervisors. The claimant is
limited to work that allows the individual to be off task 5% of the workday and not
intermittently in addition to regularly scheduled break.
(Tr. at 18). The ALJ determined that Plaintiff was unable to return to her past relevant work.
(Tr. at 23). After considering the vocational expert’s testimony and Plaintiff’s age, education,
work experience, and residual functional capacity, the ALJ determined that there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform. (Tr. at 24). The
ALJ determined that an individual with the limitations found in Plaintiff’s RFC was able to
perform the following jobs: (1) Routing Clerk, DOT # 222.687-022, light, unskilled work; (2)
Photo Copy Machine Operator, DOT # 207.685-014, light, unskilled work; and (3) Cleaner,
DOT # 323.687-014, light, unskilled work. 2 (Tr. 24). The ALJ concluded that Plaintiff was not
under a disability from September 6, 2008 through the date of the decision. (Tr. at 25).

2

“DOT” refers to the Dictionary of Occupational Titles.

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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 Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
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 evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); and 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) (court must scrutinize the
entire record to determine reasonableness of factual findings).
II.

Analysis

On appeal, Plaintiff raises two issues. As stated by Plaintiff, they are:
1) The Administrative Law Judge’s decision was in error in failing to give
controlling weight to the opinion of the treating psychiatrist.
2) The Administrative Law Judge’s decision was in error in relying on a response
by a vocational expert to an incomplete hypothetical.

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(Doc. 23 at 6, 8).
A. Weight of Treating Psychiatrist
Plaintiff asserts that the ALJ failed to properly weigh the medical opinion of Luis Rives
M.D., Plaintiff’s treating psychiatrist. (Doc. 23 at 6-8). Plaintiff claims that she visited Dr.
Rives on a regular basis from 2012 until the date of the hearing. (Doc. 23 at 7). Nevertheless,
the ALJ afforded Dr. Rives’ opinion little weight. (Doc. 23 at 8). Plaintiff argues that the ALJ
failed to provide reasons or references to evidence of record and, thus, the ALJ failed to support
this finding. (Doc. 23 at 7). The Commissioner responds that the ALJ properly weighed Dr.
Rives’ opinion and provided reasons why Dr. Rives’ opinion was entitled to little weight. (Doc.
24 at 15-16).
After consideration of Dr. Rives’ medical source statement, the ALJ accorded Dr. Rives’
opinion little weight. (Tr. at 22). The ALJ indicated that Dr. Rives opined the following: “the
claimant had fair to poor/or no ability to make occupational adjustments, performance
adjustments, or social adjustments.” (Tr. at 22). The ALJ found, “[h]owever, the opinion [of Dr.
Rives] is not well supported by the totality of the claimant’s medical records including mental
health treating records and [Plaintiff’s] activities of daily living.” (Tr. at 22).
In Dr. Rives’ Medical Assessment of Ability To Do Work-Related Activities Report, Dr.
Rives found Plaintiff’s abilities to be either fair or “poor to none.” (Tr. at 802-04). Dr. Rives
found Plaintiff’s abilities to be fair in the following areas: (1) ability to follow work rules; (2)
ability to relate to co-workers; (3) ability to interact with supervisors; (4) ability to function
independently; (5) ability to understand, remember and carry out simple job instructions; and (6)
ability to maintain personal appearance. (Tr. at 802-04). Dr. Rives found Plaintiff’s ability to be
“poor or none” in the following areas: (1) ability to deal with the public; (2) ability to use

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judgment; (3) ability to deal with work stresses; (4) ability to maintain attention/concentration;
(5) ability to understand, remember and carry out complex job instructions; (6) ability to
understand, remember and carry out detailed, but not complex job instructions; (7) ability to
behave in an emotionally stable manner; (8) ability to relate predictably in social situations; and
(9) ability to demonstrate reliability. (Tr. at 802-04). By further explanation, Dr. Rives added in
a handwritten section that Plaintiff has:
severe [and] unpredictable mood swings, being treated for bi-polar illness,
depression, and severe anxiety. Has periods of depression for days, isolating, lack
of energy/initiative [and] crying. Significant impairments in focus, concentration
and at times limited ability to follow-through. Anxiety at times is paralyzing and
does experience panic attacks. Has irregular sleep patterns from one extreme to
another. Has periods of fleeting hopelessness.
(Tr. at 803-04).
At the fourth step in the evaluation process, the ALJ is required to determine a
plaintiff’s RFC and based on that determination, decide whether the plaintiff is able to return to
his or her previous work. McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). The
determination of a claimant’s RFC is within the authority of the ALJ. Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997). Along with the plaintiff’s age, education, and work
experience, the RFC is considered in determining whether the plaintiff can work. Id.
Weighing the opinions and findings of treating, examining, and non-examining physicians is an
integral part of the ALJ’s RFC determination at step four. See Rosario v. Comm’r of Soc. Sec.,
877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012).
“The Secretary must specify what weight is given to a treating physician’s opinion and
any reason for giving it no weight, and failure to do so is reversible error.” MacGregor v.
Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). The Eleventh Circuit held that
whenever a physician offers a statement reflecting judgments about the nature and severity of a

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claimant’s impairments, including symptoms, diagnosis, and prognosis, what the claimant can
still do despite his or her impairments, and the claimant’s physical and mental restrictions, the
statement is an opinion requiring the ALJ to state with particularity the weight given to it and
the reasons therefor. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir.
2011). Without 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.” Id. (citing Cowart v. Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinions of treating physicians are entitled to substantial or considerable weight
unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th
Cir. 2004). The Eleventh Circuit has concluded that 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. Id.
Plaintiff claims that the ALJ made findings that are inconsistent with the evidence of
record, which undermined the ALJ’s entire analysis and warrants a remand for reconsideration.
(Doc. 23 at 7). Without citation to the record, Plaintiff argues that the ALJ mischaracterized the
evidence when stating that Plaintiff “submitted limited ongoing treatment records.” (Doc. 23 at
7). Plaintiff argues that she saw Dr. Rives on a regular basis for four years. (Doc. 23 at 7).
In the decision, the ALJ noted that Plaintiff “submitted limited ongoing treating records”
but also noted that an update from the David Lawrence Center indicated that Plaintiff had seen a
therapist for “approximately 18 months on a bi-weekly basis ending in August 2013 and is
currently seeing another therapist from December 2013 to the present (August 2014) on a weekly
basis.” (Tr. at 21). The ALJ commented on the lack of treatment records, not the lack of

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treatment. In fact, Plaintiff acknowledges that some psychotherapy records were not contained
in the claim file. (Doc. 23 at 8). Thus, the ALJ’s statement is accurate as to the lack of treatment
records and consistent with the evidence of record.
Plaintiff also contends that when discounting a treating physician’s opinion, an ALJ
cannot simply state that the treating physician’s opinion is not well supported by the totality of
the mental health records and activities of daily living. (Doc. 23 at 7). Rather, Plaintiff claims
that the ALJ must provide specific reasons or references to evidence of record to support this
contention. (Doc. 23 at 7). Plaintiff argues that the ALJ erred in failing to support her decision
to afford Dr. Rives’ opinion little weight. (Doc. 23 at 7).
Upon review of the ALJ’s decision, the Court finds that the ALJ carefully considered Dr.
Rives’ opinion and stated with particularity why she afforded his opinion little weight. The ALJ
noted that Dr. Rives’ opinion did not comport with his treatment notes. (Tr. at 21). The ALJ
summarized Dr. Rives’ treatment records as follows. 3 Dr. Rives treated Plaintiff for
bereavement, ADHD, and bipolar disorder. (Tr. at 21). He prescribed psychotropic medications
for Plaintiff. (Tr. at 21). Plaintiff attended AA meetings and underwent treatment to maintain
her sobriety. (Tr. at 21). Even though Plaintiff complained of excessive anxiety, she was never
diagnosed with this condition. (Tr. at 21). Despite Plaintiff’s complaints, Dr. Rives found her
mood “seemed pretty good and her affect was better than usual” with no evidence of mania or
suicidal ideation. (Tr. at 21). Plaintiff’s appearance was appropriate, attitude cooperative, mood
euthymic, affect blunted, thought process linear, speech spontaneous, insight intact, judgment
intact, and psychomotor activities were unremarkable. (Tr. at 21). Plaintiff’s medications were
3

Dr. Rives is not mentioned by name in this portion of the ALJ’s decision. (Tr. at 21-22).
However, the exhibit numbers cited by the ALJ, “24F” and “26F,” correspond to Dr. Rives’
treatment notes.

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adjusted to accommodate her, but she was ambivalent to these medication changes, and was – at
times – non-compliant by not following through with these recommended changes. (Tr. at 21).
When non-compliant, Plaintiff’s symptomatology returned and/or increased. (Tr. at 21). The
ALJ concluded that when Plaintiff was compliant with a treatment and medication regimen, then
her mental health condition was not disabling. (Tr. at 22).
In addition, the ALJ considered Plaintiff’s activities of daily living that included, inter
alia, frequent contact with family and friends, bowling, attending support groups, caring for her
personal needs, cooking, preparing meals, sweeping, mopping or vacuuming. (Tr. at 22). The
ALJ concluded that these activities did not support Dr. Rives’ opinion that Plaintiff had, as stated
previously, “fair to poor/or no ability to make occupational adjustments, performance
adjustments, or social adjustments.” (Tr. at 22).
Moreover, the ALJ afforded great weight to the opinions of the State agency
psychological examiners whose opinions differed from Dr. Rives’ opinion. (Tr. at 22).
Specifically, one State agency non-examining psychologist, Eric Wiener, Ph.D., completed a
Psychiatric Review Technique and found Plaintiff’s limitations were not as severe as found by
Dr. Rives, and that Plaintiff’s limitations were less than “Marked” in all categories. (Tr. at
21,456-68). The Court finds that the ALJ carefully considered the opinion of Dr. Rives and
stated with particularity why she afforded Dr. Rives’ opinion little weight. Thus, the Court finds
that the ALJ did not err in affording little weight to Dr. Rives’ opinion, and the ALJ’s decision as
to Dr. Rives’ opinion is supported by substantial evidence.
B. Incomplete Hypothetical
Plaintiff argues that there is an inconsistency between the hypothetical question posed to
the vocational expert and Plaintiff’s RFC finding in the decision. (Doc. 23 at 9). The

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Commissioner argues that any discrepancy is merely a typographical error. (Doc. 24 at 20). The
alleged inconsistency relates to the percentage of time a person with Plaintiff’s limitations would
be off-task during a workday.
Focusing on the exact language, the ALJ posed a hypothetical to the vocational expert
that included the following limitation: that the work would allow this person “to be off task five
percent of the workday in addition to regularly scheduled breaks.” (Tr. at 111). The vocational
expert testified that a person with the limitations set forth in the hypothetical could perform
work, but only “as long as the five percent is intermittent throughout the workday and not at any
one time.” (Tr. at 111). The ALJ amended the hypothetical to reflect “that the person needs
work that allows them [sic] to be off task intermittently five percent of the workday in addition
to regularly scheduled breaks.” (Tr. at 111). The vocational expert testified that a person with
the limitations listed in the hypothetical was able to perform other work in the national economy.
(Tr. at 112).
In contrast, the ALJ found the following limitation in Plaintiff’s RFC: “clamant is
limited to work that allows the individual to be off task 5% of the workday and not intermittently
in addition to regularly scheduled breaks.” (emphasis added). (Tr. at 18). The language of the
RFC directly conflicts with the language in the hypothetical given to the vocational expert
concerning the terms intermittently versus not intermittently.
“The general rule is that after determining the claimant’s RFC and ability or inability to
return to past relevant work, the ALJ may use the grids to determine whether other jobs exist in
the national economy that a claimant is able to perform.” Phillips v. Barnhart, 357 F.3d 1232,
1242 (11th Cir. 2004). An ALJ may use the Medical Vocational Guidelines or may obtain the
testimony of a vocational expert to determine whether there a jobs that exist in the national

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economy that a claimant can perform. Winchell v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th
Cir. 2011). If the ALJ decides to use a vocational expert, for the vocational expert’s opinion to
constitute substantial evidence, “the ALJ must pose a hypothetical question which comprises all
of the claimant’s impairments.” Id. (citing Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002)).
Here, the ALJ posed a hypothetical question to the vocational expert with a requirement
that the person was off-task intermittently five percent of the workday. However, the RFC is
inconsistent with the hypothetical in that the RFC contained language indicating that Plaintiff
would be off-task for five percent of the workday, but “not intermittently.” (Tr. at 18). From the
record, the Court cannot simply assume that it was a typographical error on the part of the ALJ.
The vocational expert specifically required the individual to be off-task “intermittently” and
identified jobs that exist if this condition was met. The Court cannot determine if jobs exist in
the national economy if Plaintiff will be off-task five-percent of the work day, not intermittently.
The Court remands this action to the Commissioner to reconsider the issue of Plaintiff’s
limitation of being off-task during the workday.
III.

Conclusion

Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence as to the weight
afforded Dr. Rives’ opinion, but is not supported by substantial evidence concerning the
hypothetical posed to the vocational expert. Therefore, on remand the Commissioner should
reevaluate the language of the RFC and the language of the hypothetical posed to a vocational
expert concerning any limitation as to being off-task during the workday.

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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 language
of the RFC and the language of the hypothetical posed to a vocational expert
concerning being off-task during the workday.
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 September 19, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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