Pittman v. Commissioner of Social Security
Filing
28
OPINION AND ORDER reversing and remanding this action to the Commissioner. Signed by Magistrate Judge Mac R. McCoy on 2/7/2017. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JANET PITTMAN,
Plaintiff,
v.
Case No: 2:15-cv-547-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Janet Pittman’s Complaint (Doc. 1) filed on September 10,
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. 1 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).
1
Plaintiff applied for supplemental security income on February 25, 2010. (Tr. at 265).
According to Plaintiff’s counsel, the supplemental security income application did not proceed
because Plaintiff claimed assets above the resource limitation of $2,000.00. (See Doc. 19 at 2;
Tr. at 267). Thus, the Court will focus on the disability insurance benefits only.
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 February 18, 2010, Plaintiff filed an application for disability insurance benefits
(“DIB”). (Tr. at 196, 261-64). Plaintiff asserted an onset date of June 1, 2009. (Tr. at 261).
Plaintiff’s application was denied initially on April 16, 2010, and on reconsideration on July 28,
2010. (Tr. at 196, 197).
A hearing was held before Administrative Law Judge Ronald S. Robbins on October 21,
2011. (Tr. at 121-43). ALJ Robins issued an unfavorable decision on March 6, 2012. (Tr. at
209-15). On June 24, 2013, the Appeals Council reviewed the March 6 decision and remanded
the action to an Administrative Law Judge to:
•
Further consider the issue of the claimant’s performance of substantial gainful
activity during the period at issue. In so doing, obtain additional evidence
concerning the claimant’s work activity and income during the period at issue
(20 CFR 404.1571-1576 and 416.971-976; Social Security Rulings 83-33, 8334, 83-35, and 84-24).
2
•
Obtain additional evidence concerning the claimant’s impairments in order to
complete the administrative record in accordance with the regulatory standards
regarding consultative examinations and existing medical evidence (20 CFR
404.1512-1513). The additional evidence may include, if warranted and
available, consultative examinations and medical source statements about what
the claimant can still do despite the impairments (20 CFR 404.1520b).
(Tr. at 221-22). On March 10, 2014, Administrative Law Judge (“ALJ”) Larry J. Butler held a
second hearing. (Tr. at 44-91). On March 25, 2015, the ALJ issued an unfavorable decision,
finding that Plaintiff was not under a disability from June 1, 2009, the alleged onset date, through
December 31, 2012, the date last insured. (Tr. at 12-29).
On August 11, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. at 14). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on September 10,
2015. This case is ripe for review. The parties consented to proceed before a United States
Magistrate Judge for all proceedings. (See Doc. 17).
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
(11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 2 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
2
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.
3
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,
2012. (Tr. at 20). 3 At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity during the period from her alleged onset date of June 1,
2009, through her date last insured of December 31, 2012. (Tr. at 20). At step two, the ALJ
found that Plaintiff suffered from the following severe impairments: “history of coronary artery
disease, history of cervical and lumbar degenerative disc disease with corresponding pain, high
cholesterol and hypertension (20 CFR 404.1520(c)).” (Tr. at 20).
At step three, the ALJ determined that through the date of December 31, 2012, the date
last insured, 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, and 404.1526). (Tr. at 21).
At step four, the ALJ determined that through the date last insured of December 31, 2012,
Plaintiff possessed the residual functional capacity (“RFC”) to perform light work as defined in
20 C.F.R. § 404.1567(b). (Tr. at 21). Additionally, the ALJ found that Plaintiff:
is able to occasionally lift/carry 20-pounds, frequently lift/carry 10-pounds,
stand/walk approximately 6-hours during an 8-hour workday and sit approximately
6-hours during an 8-hour workday. The claimant has unlimited ability to push and
pull, including operation of hand and/or foot controls. The claimant can
occasionally climb, balance, stoop, kneel, crouch and crawl. The claimant can
occasionally (up to one-third of a workday) reach overhead with her non-dominant
3
Prior to addressing the issues raised regarding Plaintiff’s disability, the ALJ addressed a Motion
for Recusal of this Case and All Cases Assigned to Kushner & Kushner, Attorneys dated March
8, 2014. (See Tr. at 14-18). This discussion does not relate to the issues raised as to Plaintiff’s
social security benefits and, if applicable, will be addressed relating to the issue raised
concerning bias.
4
left arm. The claimant has no limitations upon reaching overhead with her dominant
right arm. The claimant has no limitation with regard to handling and fingering.
The claimant should avoid exposure to hazards such as machinery and unprotected
heights.
(Tr. at 21-22). The ALJ determined that through the date of last insured, December 31, 2012,
Plaintiff was capable of performing her past relevant work as a counselor. (Tr. at 28). The ALJ
found that this work did not require the performance of work-related activities precluded by
Plaintiff’s RFC. (Tr. at 28). The ALJ concluded that Plaintiff was not under a disability at any
time from June 1, 2009, the alleged onset date, through December 31, 2012, the date last insured.
(Tr. at 29).
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,
5
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 four issues. As stated by Plaintiff, they are:
1) The ALJ violated 20 C.F.R. § 404.1527 when he failed to properly consider and
weigh the medical opinion evidence from treating providers utilizing the regulatory
factors, as was ordered in the Appeals Council Remand Order of June 24, 2013.
2) The residual functional capacity (“RFC”) assessment is not supported by
substantial evidence because the ALJ failed to account for Plaintiff’s peripheral
neuropathy/carpal tunnel syndrome in evaluating her work capacity, in violation of
20 C.F.R. § 404.1545(b).
3) The ALJ’s assessment of Plaintiff’s credibility is not supported by substantial
evidence because the ALJ mischaracterized the evidence of record and applied
incorrect legal standards when he evaluated Plaintiff’s pain complaints, in violation
of 20 C.F.R. § 404.1529(c) and Social Security Ruling (“SSR”) 96-7p.
4) The ALJ is biased against disability claimants with impairments causing
nonexertional limitations and claimants represented by Kushner and Kushner,
Attorneys.
(Doc. 19 at 3). The Court will address each issue in turn.
A. Weight of Treating Physician
Plaintiff argues that the ALJ applied the incorrect criteria in evaluating Dr. Burford’s
physical capacity evaluation when affording Dr. Burford’s opinion minimal weight. (Doc. 19 at
9; Tr. at 26). Plaintiff asserts that her treating physician, Fred Burford, D.O., completed a
detailed physical capacity evaluation, indicating precisely what work-related limitations he
believed Plaintiff to have. (Doc. 19 at 9). Dr. Burford found Plaintiff to be limited in exertional
activities, such as standing, walking, and sitting in an eight-hour workday and also found
Plaintiff limited in manipulation, pushing, and pulling activities with her upper extremities.
6
(Doc. 19 at 9). The Commissioner argues in response that the ALJ properly considered and
weighed Dr. Burford’s opinion and properly afforded it minimal weight. (Doc. 22 at 5).
At the fourth step in the evaluation process, the ALJ is required to determine a
claimant’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 claimant’s age, education, and work
experience, the RFC is considered in determining whether the claimant 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 has held
that whenever a physician offers a statement reflecting judgments about the nature and severity
of a 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 F3d 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)).
7
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.
Beginning with Dr. Burford’s treatment records, Dr. Burford saw Plaintiff on December
22, 2010 for an ear infection and to go over medications to lower the cost. (TR. at 761). On
March 14, 2011, Plaintiff went to Dr. Burford for female problems, paper work, back pain, and
bleeding. (Tr. at 759). The notes indicate that Plaintiff was “[c]urrently working because needs
med. . . . temp a case manager – sits [sic] most of day . . . on Viocdin can work but needs
breaks.” (Tr. at 759). The notes indicate Plaintiff had joint pain, myalgia, and limited range of
motion. (Tr. at 759). On that same day, Dr. Burford completed a Physical Capacity Evaluation.
(Tr. at 614-615).
In the Physical Capacity Evaluation, Dr. Burford found the following:
1) Plaintiff could not stand/walk at one time in an 8-hour day;
2) Plaintiff could stand/walk for 2 hours throughout an 8-hour day with changing
positions every 20-30 minutes;
3) Plaintiff could not sit at one time in an 8-hour day;
4) Plaintiff could sit for 2 hours throughout an 8-hour day with changing positions every
20-30 minutes;
5) Plaintiff could occasionally lift up to 10 lbs.;
8
6) Plaintiff was able to use her hands for repetitive simple grasping, but not for pushing
and pulling or fine manipulation;
7) Plaintiff could not use her feet for repetitive movements as in operating foot controls;
8) Plaintiff was able to squat occasionally;
9) Plaintiff was not able to bend, crawl, or climb; and
10) Plaintiff was able to reach above shoulder level.
(Tr. at 614-15).
The ALJ considered Dr. Burford’s treatment records as well as the Physical Capacity
Evaluation. (Tr. at 26). The ALJ afforded Dr. Burford’s Physical Capacity Evaluation minimal
weight noting that Dr. Burford “opined that the claimant could not even perform sedentary
work.” (Tr. at 26). The ALJ accurately summarized Dr. Burford’s findings and then listed many
reasons why he afforded Dr. Burford’s Physical Capacity Evaluation minimal weight. (See Tr. at
27-28). The initial reasons mainly relate to the Physical Capacity Evaluation form. (See Tr. at
27-28). For example, the ALJ found that the Physical Capacity Evaluation: (1) was not
organized in the standard manner (2) did not incorporate definition of terms such as “frequently”
or “occasionally;” (3) did not reflect an allowance for normal breaks; (4) did not address whether
it applied to upper or lower extremities regarding pushing and pulling; (5) did not include the
specific postural limitations of balancing, stooping, kneeling and crouching but instead used the
terms “bend” and “squat;” (6) did not indicate if reaching overhead was limited bilaterally; (7)
did not indicate how limited the hands were for repetitive simple grasping, pushing and pulling
and fine manipulation or whether it was limited bilaterally; and (8) failed to include an
acknowledgement that Dr. Burford’s opinion was expressed in terms of reasonable medical
certainty. (Tr. at 27-28).
9
Plaintiff contends that the above reasons are not sufficient to afford Dr. Burford’s opinion
minimal weight. The Court agrees that some, if not most, of the above reasons do not rise to the
level of discounting a treating physician’s opinion. Statements such as the Evaluation not being
organized in a standard manner and failing to incorporate definitions to commonly used terms
are not sufficient.
However, the ALJ did not simply rely on this list of reasons alone. In addition to the
above reasons, the ALJ also found that Dr. Burford’s opinion was not supported by objective
medical findings and his opinion was not consistent with the weight of the available evidence.
(Tr. at 28). The ALJ found that Dr. Burford treated Plaintiff primarily for fever, hypertension,
and cholesterol issues and he found little correlation between Dr. Burford’s contemporaneous
treatment notes and Dr. Burford’s extremely restricted exertional abilities for Plaintiff. (Tr. at
28). Moreover, the ALJ noted that Dr. Burford failed to provide any basis for his conclusions
as to Plaintiff’s extremely limited exertional abilities. (Tr. at 28).
The Court finds that these reasons are sufficient to support affording Dr. Burford’s
opinion minimal weight. See Phillips, 357 F.3d at 1240. Good cause to discount a treating
physician’s opinion includes when the treating physician’s opinion is not bolstered by the
evidence and when the treating physician’s opinion is conclusory. Id. In the instant case, the
treatment notes from the date the Physical Capacity Evaluation was completed indicate that
Plaintiff was then-currently working as a temporary case manager and that she sits most of the
day, can work even though she is taking Vicodin, but she does need breaks. (See Tr. at 759).
These treatment notes are a far cry from someone who is only able to sit for 2 hours in an 8hour day, or stand for 2 hours in an 8-hour day. (See Tr. at 614). Clearly, being able to work,
even on a temporary basis, does not support Dr. Burford’s opinion as to Plaintiff’s extreme
10
limitations. Moreover, Dr. Burford failed to explain the contradiction in his findings that
Plaintiff was unable to sit or stand/walk for more than 2 hours in and 8-hour day, yet Plaintiff
was able to work and the work encompassed sitting most of the day. (Tr. at 759). Absent a
clear explanation and support by Dr. Burford for his findings, the Court finds that Dr. Burford’s
conclusory statements are not supported by his treatment notes and he fails to indicate other
medical evidence of record that supports these extreme limitations. Accordingly, the Court
determines that the ALJ’s opinion is supported by substantial evidence and the ALJ did not err
in affording minimal weight to Dr. Burford’s opinion as set forth in the Physical Capacity
Evaluation.
B. Peripheral Neuropathy
Plaintiff argues that the ALJ erred in failing to consider or mention her impairment of
peripheral neuropathy in her upper extremities when determining Plaintiff’s RFC. (Doc. 19 at
14). Plaintiff contends that she was diagnosed with peripheral neuropathy from an acceptable
medical source, takes medication for her condition, and testified as to the limitations caused by
this condition. (Doc. 19) at 14). The Commissioner argues that the ALJ did not find Plaintiff’s
peripheral neuropathy a severe impairment and Plaintiff failed to demonstrate that she suffered
from work-related limitations from her peripheral neuropathy prior to December 31, 2012, her
date last insured. (Doc. 22 at 11).
At the fourth step in the evaluation process, the ALJ is required to determine a claimant’s
RFC and based on that determination, decide whether the plaintiff is able to return to 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 and along with the claimant’s age
education, and work experience, the RFC is considered in determining whether the claimant can
11
work. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). “The residual functional
capacity is an assessment, based upon all of the relevant evidence, of a claimant’s remaining
ability to do work despite his impairments.” Id. An individual’s RFC is her ability to do
physical and mental work activities on a sustained basis despite limitations secondary to her
established impairments. Delker v. Comm’r of Soc. Sec., 658 F. Supp. 2d 1340, 1364 (M.D. Fla.
2009).
In determining a claimant’s RFC, the ALJ must consider all of the relevant evidence of
record. Barrio v. Comm’r of Soc. Sec., 394 F. App’x 635, 637 (11th Cir. 2010); Phillips v.
Barnhart, 357 F.3d at 1238-39; 20 C.F.R. § 404.1520(e). The Eleventh Circuit has consistently
held that “the claimant bears the burden of proving that [she] is disabled, and consequently, [she]
is responsible for producing evidence in support of her claim.” Ellison v. Barnhart, 355 F.3d
1272, 1276 (11th Cir. 2003). Further, in order to be entitled to disability insurance benefits
under Title II of the Act, a claimant must establish that she became disabled on or prior to the
expiration of her insured status. See 20 C.F.R. §§ 404.315; Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (noting that a claimant must prove she was disabled on or before the date
last insured for disability insurance benefits).
Turning to the evidence of record, on October 29, 2008, Plaintiff was diagnosed with
“unspecified idiopathic peripheral neuropathy” due to wrist cysts as evidenced in an MRI. (Tr.
at 556). The condition was managed with medicine. (Tr. at 556). Plaintiff continued to be
diagnosed with peripheral neuropathy, inter alia, on March 9, 2009, January 12, 2012, February
10, 2012, July 19, 2012, October 31, 2012, February 28, 2013, July 3, 2013, and August 7, 2013.
(Tr. at 553, 710, 711, 717, 725, 733, 741, 747, 842). On October 31, 2012, July 13, 2013, and
August 7, 2013, the treatment notes indicated that Plaintiff reported “that the gabapentin is
12
somewhat effective in helping with her neuropathy although it is still present.” (Tr. at 711, 726,
841). 4 At the hearing, Plaintiff testified that she has a lot of “numbness in my hands” and is
unable to “do a lot of computer work either.” (Tr. at 63). She also testified that it is worse in her
dominant right hand, she wears wrist braces at night, and takes medication. (Tr. at 63). Further,
Plaintiff testified that she has trouble holding things and they just fall out of her hands. (Tr. at
64).
The Commissioner agrees that Plaintiff was diagnosed with peripheral neuropathy, but
argues that diagnosis alone is not sufficient to prove the existence of an impairment. (Doc. 22 at
11). The Court concurs that a diagnosis alone is “insufficient to establish that a condition caused
functional limitations.” Wood v. Astrue, 2012 WL 834137, *5 (M.D. Fla. Feb. 14, 2012) (citing
Moore v. Barnhart, 405 F.3d 1207, 1213 n.6 (11th Cir. 2005)). In the instant case, however, the
issue is whether the ALJ considered the diagnosis of peripheral neuropathy and any limitations
stemming from this diagnosis.
In the decision, the ALJ fails to mention or consider Plaintiff’s diagnosis of peripheral
neuropathy. (Tr. at 13-29). The RFC does not include any manipulation limitations and
specifically states that Plaintiff “has no limitations with regard to handling and fingering.” (Tr.
at 21-22). The only mention in the decision of any issues with Plaintiff’s hands is when the ALJ
summarized Plaintiff’s testimony and noted that Plaintiff “experiences numbness in both hands,
right worse than left. Claimant has been prescribed wrist braces and she sleeps with the braces
4
The Commissioner argues that Plaintiff failed to provide evidence supporting her position that
peripheral neuropathy limited her ability to work prior to her date last insured of December 31,
2012, citing to an August 2013 note that indicting Plaintiff experienced breakthrough symptoms
even while taking medication. (Doc. 22 at 12, n.3; Tr. at 20). Upon review of the record, the
Court finds that Plaintiff had the same complaint on October 31, 2012, prior to Plaintiff’s date
last insured.
13
on.” (Tr. at 23). Other than that mention, the decision contains no references to Plaintiff’s
diagnoses of peripheral neuropathy.
Remand is warranted “when an ALJ fails to consider properly a claimant’s condition
despite evidence in the record of the diagnosis.” Vega v. Comm’r of Soc. Sec., 265 F.3d 1214,
1219 (11th Cir. 2001) (citing Marbury v. Sullivan, 957 F.2d 837, 839-40 (11th Cir. 1992)). In
the instant case, Plaintiff was diagnosed with peripheral neuropathy in 2008 and continued to be
diagnosed with peripheral neuropathy from that time through the date last insured and beyond.
(See Tr. at 553, 710, 711, 717, 725, 733, 741, 747, 841, 842). Further, Plaintiff testified as to her
limitations regarding her peripheral neuropathy at the hearing. (See Tr. at 63).
Although the Commissioner asserts that physical examinations show a full range of
motion in Plaintiff’s shoulder, elbows, and wrists and that Plaintiff’s medication was somewhat
effective in treating neuropathy, the ALJ failed to cite to these medical records in connection
with Plaintiff’s peripheral neuropathy. (See Doc. 22 at 12). Additionally, even though the ALJ
did not find Plaintiff’s statements concerning intensity, persistence, and limiting effects of these
symptoms to be entirely credible, the ALJ did not make any mention or findings related to
Plaintiff’s peripheral neuropathy. (See Tr. at 26). Thus, to assume that the ALJ found Plaintiff’s
statements as to the numbness in her hands and her manipulation limitations not credible, the
Court would have to rely on the post hoc rationale of the Commissioner to support the ALJ’s
decision, especially when it is clear that the ALJ failed to mention or consider Plaintiff’s
peripheral neuropathy in combination with Plaintiff’s other impairments. See Watkins v.
Comm’r of Soc. Sec., 457 F. App’x 868, 872 (11th Cir. 2012) (citation and internal quotation
marks omitted). Given the ALJ’s lack of analysis as to Plaintiff’s peripheral neuropathy
impairment, the Court is unable to conduct a meaningful judicial review of the ALJ’s opinion
14
concerning his conclusion that Plaintiff had no limitations with regard to handling and fingering
as found in Plaintiff’s RFC. See Robinson v. Astrue, No. 8:08-CV-1824-T-TGW, 2009 WL
2386058, at *4 (M.D. Fla. Aug. 3, 2009).
Accordingly, the Court finds that the ALJ erred in failing to consider Plaintiff’s
impairment of peripheral neuropathy and possible associated limitations in combination with
Plaintiff’s other limitations in formulating Plaintiff’s RFC. Thus, the Court finds that remand is
warranted.
C. Credibility
Plaintiff’s third issue focuses on the ALJ’s credibility determination. The issue of
credibility cannot be resolved until it is clear to the Court that the ALJ properly considered
Plaintiff’s peripheral neuropathy impairment in combination with Plaintiff’s other impairments.
Because the Court finds that, upon remand, the ALJ must evaluate Plaintiff’s peripheral
neuropathy impairment and that evidence may impact the Court’s analysis of other elements of
the ALJ’s decision, the Court finds that any ruling of the issue of Plaintiff’s credibility is
premature at this time.
D. Bias
Plaintiff also argues that if this matter is remanded, a different ALJ should be assigned to
the remanded case. Plaintiff contends that ALJ Butler has demonstrated signs of bias in cases
that involve Plaintiff’s counsel and in cases involving nonexertional limitations. The Court
reviewed the record, including the hearing transcript. Absent a specific citation to the record that
shows bias or prejudice by ALJ Butler, the Court finds that on its face, the record fails to reflect
evidence of bias or prejudice by ALJ Butler. Moreover, this Court cannot consider matters that
do not relate to this case in determining whether to remand this action to different ALJ. See Roth
15
v. Comm’r of Soc. Sec., No. 608-CV-296-ORL-28DAB, 2009 WL 536522, at *8 (M.D. Fla. Mar.
3, 2009).
The Court recognizes that an ALJ “shall not conduct a hearing if he or she is prejudiced
or partial with respect to any party or has any interest in the matter pending for decision.” 20
C.F.R. § 404.940. Plaintiff has failed to show specific instances of prejudice or bias by ALJ
Butler in this case. Thus, the Court will not require that the Commissioner appoint a different
ALJ on remand. Although the Court declines to direct the Commissioner to assign this remand
to an ALJ other than ALJ Butler, the Court will require the Commissioner to consider the issue
of whether a remand to an ALJ other than ALJ Butler is appropriate to avoid any appearance of
bias, but leaves this decision to the discretion of the Commissioner.
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 as to the issue of
Plaintiff’s residual function capacity. Upon remand, the Commissioner should reevaluate
Plaintiff’s residual functional capacity by considering Plaintiff’s peripheral neuropathy
impairment in combination with Plaintiff’s other impairments when determining Plaintiff’s
residual functional capacity and reevaluate Plaintiff’s credibility.
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 reevaluate Plaintiff’s
residual functional capacity by considering Plaintiff’s peripheral neuropathy
impairment in combination with Plaintiff’s other impairments and to reevaluate
Plaintiff’s credibility.
16
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 February 7, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?