Wood v. Commissioner of Social Security

Filing 26

OPINION AND ORDER adopting 24 Report and Recommendations; overruling 25 Objection. The Decision of the Commissioner is reversed and remanded for the purposes set forth in the Opinion and Order. The Clerk enter judgment accordingly and close the file. Signed by Judge John E. Steele on 9/15/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TAMARA LEE WOOD,
Plaintiff,
v.

Case No: 2:15-cv-437-FtM-99CM

COMMISSIONER
SECURITY,

OF

SOCIAL

Defendant.
OPINION AND ORDER
This

matter

is

before

the

Court

on

consideration

of

Magistrate Judge Carol Mirando’s Report and Recommendation (Doc.
#24), filed on August 2, 2016, recommending that the Decision of
the Commissioner be reversed and remanded with instructions to the
Commissioner.

The Commissioner filed an Objection to the Report

and Recommendation (Doc. #25) on August 12, 2016.

Plaintiff did

not file a response, and the time to respond has expired.
The Court reviews the Commissioner’s decision to determine if
it is supported by substantial evidence and based upon proper legal
standards.

Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158

(11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997)).

Substantial evidence is more than a scintilla

but less than a preponderance, and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing
Crawford,

363

F.3d

at

1158-59).

Even

if

the

evidence

preponderates against the Commissioner’s findings, the Court must
affirm

if

evidence.

the

decision

Crawford,

reached

363

F.3d

is
at

supported
1158-59

by

substantial

(citing

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

Martin

v.

The Court does

not decide facts anew, make credibility judgments, reweigh the
evidence, or substitute its judgment for that of the Commissioner.
Moore, 405 F.3d at 1211 (citing Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983)); Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (citing Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004)).

The Court reviews the Commissioner’s

conclusions of law under a de novo standard of review.

Ingram v.

Comm’r of SSA, 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin,
894 F.2d at 1529).
Magistrate Judge Findings
The

Magistrate

Judge

noted

that

the

ALJ

found

that

Dr.

Linguar’s conclusions were inconsistent with his own treatment
records,

but

the

ALJ

did

not

state

that

the

inconsistent with those of other medical sources.

records

were

The Magistrate

Judge found that the ALJ failed to articulate “with sufficient

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clarity
decision

and
is

specificity
rational

(Doc. #24, p. 20.)

for

and

the

Court

supported

by

to

determine

substantial

that

the

evidence.”

As a result, plaintiff’s RFC was not found be

supported by substantial evidence.
The Magistrate Judge further found that the ALJ’s decision to
accord great weight to Dr. Blum’s findings, without also discussing
the impact of later evidence on Dr. Blum’s findings (whether
supportive or contradictory) and also without indicating why the
treating

physician

was

not

given

controlling

weight,

was

unsupported by substantial evidence.
Third, the Magistrate Judge found that the ALJ improperly
discounted the weight of Dr. McAndrew’s opinion partly based on
plaintiff’s lack of treatment without stating whether the ALJ
considered plaintiff’s record evidence of an inability to pay as
an excuse for noncompliance.

The Magistrate Judge also found that

the ALJ’s RFC finding was unsupported by substantial evidence
because there was no explanation as to why plaintiff’s presentation
at the examination caused the ALJ to reduce the weight allotted
Dr. McAndrew.
The Magistrate Judge further found that on remand the ALJ
should be required to state with specificity whether plaintiff is
able to perform simple, repetitive tasks, and to also reconsider

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plaintiff’s credibility.

As a result of finding that the RFC was

unsupported by substantial evidence, the Magistrate Judge found
that a new hypothetical question must be posed to the vocational
expert that includes all of plaintiff’s limitations.
Objections of Commissioner
The Commissioner argues that remand is not required for the
ALJ to fully explain the weight given to the treating physician,
Dr. Lingaur.

The Commissioner argues that it is sufficiently

clear that the July 25, 2012 treatment notes were considered in
discounting the opinion of Dr. Lingaur.

(Doc. #25, p. 3.)

same arguments were raised before the Magistrate Judge.
#24, pp. 17-18.)

The
(Doc.

The ALJ acknowledged the July 25, 2012 visit,

including that Dr. Lingaur’s inspection showed plaintiff’s abdomen
was normal.

(Doc. #16-2, Tr. 15.)

The ALJ summarized Dr.

Lingaur’s opinion that plaintiff was unable to work but gave it
little weight, “as it is not consistent with relatively benign
treatment records.”
reached

this

inconsistent

(Id., Tr. 17.)

conclusion,
with

his

or

how

treatment

It is unclear how the ALJ
Dr.

Linguar’s

records.

The

opinion

was

Commissioner

provides a summary of inconsistencies in its Memorandum in Support
of the Commissioner’s Decision, Doc. #23, pp. 7-8, but the Court
cannot determine if the ALJ’s good cause finding to not grant Dr.

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Linguar substantial or considerable weight was in any way based on
these inconsistencies because the ALJ did not list them.

Winschel

v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)
(reasons for disregarding a treating physician’s opinion must be
clearly articulated).

See also Baker v. Comm'r of Soc. Sec., 384

F. App'x 893, 896 (11th Cir. 2010) (the Court may not consider
“post hoc rationalizations for agency actions”); Watkins v. Comm'r
of Soc. Sec., 457 F. App'x 868, 872 (11th Cir. 2012) (“We cannot
affirm based on a post hoc rationale that “might have supported
the

ALJ's

conclusion.”).

As

the

Court

cannot

reweigh

the

evidence, the objection will be overruled.
The Commissioner argues that the ALJ explained the weight
given to Dr. Blum, and that the ALJ explained why the later
evidence

was

consistent

with

Dr.

Blum’s

opinion.

The

ALJ

considered the opinion of Dr. Blum, and stated: “I give Dr. Blum's
opinion great weight, as he was able to review the entire record
available to him at the time and it is consistent with the finding
of full strength and reflexes.”

(Doc. #16-2, Tr. 17.)

The ALJ

considered evidence post-Dr. Blum’s opinion, and the Court agrees
with the Magistrate Judge that the ALJ considered the entire
record.

(Doc. #24, p. 23.)

arguments,

the

Magistrate

In considering the Commissioner’s

Judge

found

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Russell

persuasive

and

Cooper distinguishable.

(Id.)

In Cooper, the ALJ determined that

plaintiff was actually more limited than what the opinion of the
non-examining doctor concluded, and therefore the court found that
the ALJ did not give undue weight to the opinion of the nonexamining doctor.

The court further found that any undue reliance

on the non-doctor decision maker was harmless because the ALJ had
access to the entire record and claimant Cooper’s testimony in
making the ultimate determination.

Cooper v. Comm'r of Soc. Sec.,

521 F. App'x 803, 807 (11th Cir. 2013).

In Russell, the ALJ relied

solely on a state agency doctor’s opinion rendered nearly 3 years
before the ALJ’s decision.

The court found that the ALJ erred by

not explaining why the later 3 years of evidence were irrelevant
to, or consistent with, that opinion.
Supp. 2d 1355, 1378 (N.D. Ga. 2010).

Russell v. Astrue, 742 F.
There is no dispute that the

record was fully reviewed, however the ALJ must still articulate
specific

reasons

for

the

decision

and

those

reasons

must

supported by sufficient evidence to support the conclusion.

be

See,

e.g., Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (The
"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." (citation omitted)); Moore v. Barnhart, 405 F.3d

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1208, 1211 (11th Cir. 2005) (same).

The Court agrees that ALJ

failed to articulate how the later evidence in the record supported
Dr. Blum’s opinion.
The

Therefore, the objection is overruled.

Commissioner

argues

that

the

Magistrate

Judge

cited

several cases about evaluating credibility and noncompliance due
to inability to pay, but that those cases are irrelevant to the
ultimate issue of whether ALJ properly evaluated Dr. McAndrew’s
opinion.

The objection will be overruled.

The ALJ gave the

opinion moderate weight and then rejected the opinions finding
that plaintiff was not “limited to this extent based on a lack of
mental health treatment and her presentation at the consultative
examination.”

(Doc. #16-2, Tr. 18.)

The ALJ made her own

negative inference without considering good cause explanations, or
articulating the weight given to the negative inference.
requires a remand for further consideration.

This

Henry v. Comm'r of

Soc. Sec., 802 F.3d 1264, 1268 (11th Cir. 2015).
After an independent review and as discussed above, the Court
agrees with the findings and recommendations in the Report and
Recommendation.
Accordingly, it is now
ORDERED:

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1.

The Report and Recommendation (Doc. #24) is accepted and

adopted by the Court.
2.

The Commissioner's Objection (Doc. #25) is OVERRULED.

3.

The Decision of the Commissioner of Social Security is

reversed and the matter is remanded to the Commissioner of Social
Security pursuant to sentence four of 42 U.S.C. § 405(g) so that
the Commissioner can: (a) sufficiently explain the weight accorded
to each of the medical providers and non-examining consultants;
(b)

reevaluate

Plaintiff’s

credibility;

(c)

pose

a

new

hypothetical to a VE consistent with the RFC findings; and (d)
make any further determinations consistent with this Report and
Recommendation, or in the interest of justice.
4.

The Clerk of the Court shall enter judgment accordingly

and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2016.

Copies:
Hon. Carol Mirando
U.S. Magistrate Judge
Counsel of Record

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15th

day