Jeppesen v. Commissioner of Social Security
Filing
25
OPINION AND ORDER affirming in part and reversing and remanding in part the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. See Opinion and Order for details. Signed by Magistrate Judge Mac R. McCoy on 2/8/2017. (JTM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LESLIE JEPPESEN,
Plaintiff,
v.
Case No: 2:15-cv-774-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause is before the Court on Plaintiff Leslie Jeppesen’s Complaint (Doc. 1) filed on
December 11, 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 AFFIRMED IN PART and REVERSED AND
REMANDED IN PART pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
Social Security Act Eligibility, the ALJ’s 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)(B); 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
Plaintiff filed applications for disability insurance benefits and for supplemental security
income asserting an onset date of August 25, 2010. (Tr. at 32). Plaintiff’s disability insurance
benefits application was denied initially on October 3, 2011, and on reconsideration on
November 22, 2011. (Tr. at 121-22). A hearing was held before Administrative Law Judge
(“ALJ”) M. Dwight Evans on March 20, 2014. (Tr. at 50-101). The ALJ issued an unfavorable
decision on July 17, 2014. (Tr. at 29-49). The ALJ found Plaintiff not to be under a disability
from August 25, 2010, through the date of the decision. (Tr. at 43).
On October 26, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. at
1-7). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on December 11,
2015. Defendant filed an Answer (Doc. 12) on February 18, 2016. Both parties filed
memoranda in support of their positions. (Docs. 23-24). The parties consented to proceed
before a United States Magistrate Judge for all proceedings. (See Doc. 16). 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 she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2
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 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 March 31,
2015. (Tr. at 34). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since August 25, 2010, the alleged onset date. (Tr. at 34).
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
cerebrovascular accident, chronic pain, fibromyalgia, arthritis, degenerative disc disease, and
degenerative joint disease. (Tr. at 34). 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, 416.920(d), 416.925 and 416.926). (Tr. at 36).
After review of the record, the ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to perform “sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
1
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
except claimant is limited to only occasional work in close proximity to moving mechanical
parts.” (Tr. at 36).
At step four, the ALJ determined that Plaintiff is capable of performing her past relevant
work as a telemarketer and appointment clerk, finding that this work does not require the
performance of work-related activities precluded by Plaintiff’s RFC. (Tr. at 42). Specifically,
the ALJ stated that “the vocational expert testified that the claimant has past work as a
Telemarketer, DOT #299.357-014, which is performed at the sedentary exertional level and has
an SVP of 3; and Appointment Clerk, DOT #237.367-010, which is performed at the sedentary
exertional level and has an SVP of 3.” (Tr. at 42). 2 The ALJ stated that “[t]he vocational expert
testified that a hypothetical individual with the above RFC would be able to perform the jobs of
both telemarketer and appointment clerk.” (Tr. at 42). Accordingly, in comparing the Plaintiff’s
RFC with the physical and mental demands of this work, the ALJ found that Plaintiff was able to
perform it as generally performed. (Tr. at 42).
Because the ALJ determined at step four that Plaintiff could perform past relevant work,
the ALJ did not proceed to make findings for step five. (See Tr. at 42-43). The ALJ concluded
that Plaintiff was not under a disability from August 25, 2010, through the date of the decision.
(Tr. at 43).
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
2
“DOT” refers to the Dictionary of Occupational Titles, and “SVP” refers to the Specific
Vocational Preparation Code.
4
(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 the court must scrutinize
the entire record to determine reasonableness of factual findings).
II.
Analysis
Plaintiff argues three issues on appeal:
1. Whether the ALJ erred in evaluating the severity of the Plaintiff’s mental
impairments and failed to provide corresponding mental limitations in the
Plaintiff’s [RFC].
2. Whether the ALJ failed to properly evaluate the treating source opinion of
Dr. Hightower, the Plaintiff’s treating psychologist.
3. Whether substantial evidence documenting the Plaintiff’s right upper
extremity manipulative limitations conflicts with the lack of manipulative
limitations found in the ALJ’s RFC assessment.
(Doc. 23 at 1). The Court addresses each of these issues in turn below.
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A.
The Severity of Plaintiff’s Mental Impairments
Plaintiff first contends that the ALJ erred by failing to find her mental impairments to be
severe. (Doc. 23 at 13). Defendant disagrees, arguing that “[a]s long as the ALJ finds that a
claimant has at least one severe impairment, the analysis proceeds to step three.” (Doc. 24 at 5
(citing 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); Jamison v. Bowen, 814 F.2d 585, 588
(11th Cir. 1987))). Defendant argues that because the ALJ found that Plaintiff had severe
impairments at step two, the ALJ did not err on this ground. (See Doc. 24 at 5).
Upon review, the Court agrees with Defendant. At step two, “[a]n impairment is not
severe only if the abnormality is so slight and its effect so minimal that it would clearly not be
expected to interfere with the individual’s ability to work, irrespective of age, education or work
experience.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). A severe impairment
must bring about at least more than a minimal reduction in a claimant’s ability to work, and must
last continuously for at least twelve months. See 20 C.F.R. §§ 404.1505(a). This inquiry “acts
as a filter” so that insubstantial impairments will not be given much weight. Jamison, 814 F.2d
at 588. While the standard for severity is low, the severity of an impairment “must be measured
in terms of its effect upon ability to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547
(11th Cir. 1986).
Nevertheless, “[n]othing requires that the ALJ must identify, at step two, all of the
impairments that should be considered severe,” but only that the ALJ considered the claimant’s
impairments in combination, whether severe or not. Heatly v. Comm’r of Soc. Sec., 382 F.
App’x 823, 825 (11th Cir. 2010). If any impairment or combination of impairments qualifies as
6
“severe,” step two is satisfied and the claim advances to step three. Gray v. Comm’r of Soc. Sec.,
550 F. App’x 850, 852 (11th Cir. 2013) (citing Jamison, 814 F.2d at 588).
In this case, the ALJ made a determination that Plaintiff suffered from the following
severe impairments: cerebrovascular accident, chronic pain, fibromyalgia, arthritis, degenerative
disc disease, and degenerative joint disease. (Tr. at 34). Because the ALJ made a determination
that Plaintiff suffered from at least one severe impairment, the ALJ was not required to list every
impairment that may be classified as severe. See Heatly, 382 F. App’x at 825. The only
requirement is that the ALJ considered Plaintiff’s impairments in combination, whether severe or
non-severe. See id.
Here, the record demonstrates that the ALJ evaluated all of Plaintiff’s impairments in
combination, whether severe or non-severe. Specifically, in making his RFC determination, the
ALJ stated that:
the undersigned has considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence, based on the requirements of 20 CFR 404.1529 and
416.929 and SSRs 96-4p and 96-7p. The undersigned has also considered opinion
evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927
and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
(Tr. at 36) (emphasis added). The Court specifically notes that the ALJ considered Plaintiff’s
mental impairments and the medical evidence associated with them in determining Plaintiff’s
RFC. (See Tr. 36-42). Moreover, the Court notes that the ALJ specifically found that Plaintiff’s
medically determinable mental impairments of depression/anxiety and PTSD were non-severe.
(Tr. at 34).
Based on these statements, the Court concludes that the ALJ considered all of Plaintiff’s
impairments, whether severe or not, when he considered the evidence of record. Thus,
regardless of whether the ALJ erred in this conclusion that Plaintiff’s mental impairments were
7
non-severe, the record nevertheless demonstrates that the ALJ considered Plaintiff’s mental
impairments in combination with Plaintiff’s other impairments. Therefore, the ALJ applied the
correct legal standard. See Heatly, 382 F. App’x at 825. Accordingly, the Court affirms the
ALJ’s decision as to his analysis at step two.
B.
The Weight Given to Plaintiff’s Treating Psychiatrist, Dr. Pauline Hightower
The Court next addresses the weight given to Plaintiff’s treating psychiatrist, Dr. Pauline
Hightower.
Plaintiff contends that the ALJ erred in giving Dr. Hightower’s opinion little weight.
(Doc. 23 at 18). Plaintiff contends that “[w]hen properly analyzed, the evidentiary record
substantially supports Dr. Hightower’s findings, which in turn, establish that the Plaintiff suffers
from disabling psychological limitations.” (Id.). Specifically, Plaintiff points to her GAF scores
and Dr. Hightower’s mental status examinations as demonstrating that the ALJ incorrectly
concluded that Plaintiff only has minor limitations. (Id. at 19). Additionally, Plaintiff alleges
that the ALJ relied on dated information by asserting that “notes from late 2011 and early 2012
show no clinical signs or observations of mental illness and appear to merely annotate the
claimant’s subjective reports.” (Id. at 20 n.9 (citing Tr. at 39)). Plaintiff states that “[t]he ALJ’s
reliance on the lack of evidence during 2011 and early 2012 belies the fact that he did not issue a
hearing decision until July 2014 and must consider the probative value of the remaining two and
half years of medical evidence.” (Id.).
Defendant disagrees, arguing that “the ALJ considered Dr. Hightower’s opinion and
properly assigned it little weight because it was inconsistent with and unsupported by the
medical evidence in the record, including Dr. Hightower’s own treatment notes.” (Doc. 24 at 13
(citing Tr. at 41)). Defendant states that, as noted by the ALJ, the “examination notes throughout
8
the relevant period show that Plaintiff was pleasant and cooperative, her mood was normal, her
affect was appropriate, her thought content, thought processing, and psychomotor activity were
unremarkable, and her social interaction and attention span were normal.” (Doc. 24 at 14 (citing
Tr. at 38, 41, 607, 613)). Additionally, Defendant states that “Plaintiff received little to no
treatment for her mental impairments until she began seeing Dr. Hightower in August 2013,
three years after her alleged disability onset date.” (Doc. 24 at 14 (emphasis in original) (citing
Tr. at 34-35, 39)). Defendant further points out that the ALJ noted that Plaintiff’s daily activities
did not support Dr. Hightower’s limitations. (Id. at 14). Additionally, although not articulated
by the ALJ, Defendant states that Dr. Hightower’s opinion was based on a limited treatment
history. (Id.). Similarly, Defendant also contends that Dr. Hightower did not identify any
clinical or diagnostic finding to support the severe limitations she opined. (Id. at 15).
In reviewing this issue, the Court notes that 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), 416.927(a)(2). An ALJ is required to consider every medical opinion. Bennett
v. Astrue, No. 308-cv-646-J-JRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing 20
C.F.R. §§ 404.1527(d), 416.927(d)). 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).
9
For treating physicians, the Eleventh Circuit has held that the opinion of a treating
physician must be given substantial or considerable weight unless “good cause” is shown to the
contrary. Phillips, 357 F.3d at 1240-41 (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997)). “Good cause” exists when: (1) the treating physician’s opinion was not bolstered
by the evidence; (2) evidence supported a contrary finding; or (3) the treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records. Id. at 1241.
When an ALJ elects to disregard the opinion of a treating physician, he or she must clearly
articulate the reasons. Id. An “ALJ may reject any medical opinion if the evidence supports a
contrary finding.” Lacina v. Comm’r, Soc. Sec. Admin., 606 F. App’x 520, 526 (11th Cir. 2015)
(quoting Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987)). However, the ALJ must “state
with particularity the weight he gave the different medical opinions and the reasons therefor.”
Id. (quoting Sharfarz, 825 F.2d at 279). In situations where an ALJ “articulates specific reasons
for failing to accord the opinion of a treating or examining physician controlling weight and
those reasons are supported by substantial evidence, there is no reversible error.” Poellnitz v.
Astrue, 349 F. App’x 500, 502 (11th Cir. 2009) (citing Moore v. Barnhart, 405 F.3d 1208, 1212
(11th Cir. 2005)).
In this case, the ALJ stated the following in reviewing Dr. Hightower’s opinion:
Dr. Hightower opined in December 2013 that the claimant suffered marked to
extreme limitations in several areas related to concentration and persistence,
adaptation, and social interaction based on the claimant’s low GAF score and
multiple diagnoses (27F). The undersigned gives this opinion little weight as it is
not supported by the weight of the medical evidence and greatly overstates the
claimant’s limitations. As noted above, repeated examination over the course of
several years showed minor mental abnormalities and the claimant retained the
ability to perform a wide range of daily activities within her physical limitations.
(Tr. at 41).
10
In this case, the Court finds that the ALJ articulated specific reasons for not according Dr.
Hightower’s opinion controlling weight. See Poellnitz, 349 F. App’x at 502. Specifically, the
ALJ stated that (1) repeated examination over the course of several years showed minor mental
abnormalities; (2) Dr. Hightower’s opinion was not supported by the weight of the medical
evidence and greatly overstated Plaintiff’s limitations; and (3) Plaintiff retained the ability to
perform a wide range of daily activities within her physical limitations. (Tr. at 41). Upon
review, however, the Court finds that the ALJ’s specifically articulated reasons are not supported
by substantial evidence. See Poellnitz, 349 F. App’x at 502.
First, the Court cannot find that substantial evidence supports the ALJ’s conclusion that
repeated examination over the course of several years showed only minor mental abnormalities.
(See Tr. at 41). On this point, the Court acknowledges that medical records from 2011 and 2012
appear to show only minor mental abnormalities. For instance, records from Lee Memorial
Health System dated November 25, 2011 showed normal neurological functioning. (Tr. at 480).
Similarly, records from June 2012 showed a normal mental status. (Tr. at 648). Those records
noted that Plaintiff was oriented to time, place, and person and that her mood and affect were
appropriate. (Tr. at 648). The records also showed that Plaintiff’s recent and remote memory
were intact and that her attention and concentration were normal. (Tr. at 648). Additionally,
language function – including naming, repetition, and spontaneous speech – were noted to be
normal. (Tr. at 648). Similarly, Plaintiff’s fund of knowledge and vocabulary were appropriate.
(Tr. at 648). While the above-cited medical records seem mostly normal and, thus, appear to the
support the ALJ’s conclusion, a review of only these records ignores the substantial medical
evidence of record from December 2012 to the date of the decision showing more than minor
mental abnormalities.
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For instance, the ALJ noted that in December 2012, Plaintiff “reported to the ER with an
altered mental status.” (Tr. at 38). The ALJ stated that the “[m]ental examination showed
claimant to be pleasant and cooperative. Her mood was normal but intermittently sad. Affect
was appropriate. Thought content, thought processing, and psychomotor activity were
unremarkable. Social interaction and attention span was normal. Claimant appeared well and
was discharged.” (Tr. at 38). A closer review of those records, however, shows that Plaintiff
was hospitalized for three days. (Tr. at 610). In fact, an addendum to the records states that
“[t]he patient was planned to be sent home yesterday but was still somewhat anxious and
showing irritability, so I asked for a psychiatry consult. Dr. Dutchak stopped by here today and
she agreed to send the patient home with close follow up to an outpatient psychiatrist in the Ruth
Cooper Center.” (Tr. at 610). Thus, this record shows that the treating doctors kept Plaintiff an
extra day in the hospital due to her mental status. (See Tr. at 610). Moreover, the doctors
specifically recommended follow up treatment based on her mental condition. (See Tr. at 610).
Furthermore, even at discharge, Plaintiff was still diagnosed with “altered mental state.” (Tr. at
609).
Additional records show that Plaintiff followed up with treatment at the Ruth Cooper
Center. (Tr. at 663-83). These records also appear to show more than minor mental
abnormalities. (See Tr. at 663-83). Indeed, records from January 2013 show that Plaintiff had
impaired short-term memory, impaired long-term memory, and fund of knowledge. (Tr. at 669).
Judgment and insight were noted to be poor. (Tr. at 669). Mood and affect were noted to be
depressed. (Tr. at 669). Additional records from February 2013 show a diagnosis of organic
hallucinations syndrome and unspecified affective psychosis. (Tr. at 682). By October 2013,
Plaintiff appeared to have made some improvements. (See Tr. at 675). For instance, only short-
12
term memory was noted to be impaired. (Tr. at 675). Similarly, judgment and insight had
improved to fair from poor. (Tr. at 675). Nevertheless, Plaintiff was still noted to be tangential
and circumstantial in her thoughts. (Tr. at 675). Moreover, Plaintiff’s mood and affect were
noted to be depressed and constricted. (Tr. at 675).
As noted above, 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, 67
F.3d at 1560. Further, if 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. See Edwards, 937
F.2d at 584 n.3. In this instance, however, the Court cannot ignore the significant evidence of
record cited above demonstrating that Plaintiff had more than minor mental abnormalities. Thus,
the Court cannot accept the ALJ’s reason for discrediting Dr. Hightower’s opinion on this
ground as the ALJ’s reason is not supported by substantial evidence of record.
The second reason given by the ALJ for discrediting Dr. Hightower’s opinion was the
ALJ’s conclusion that Dr. Hightower’s opinion was not supported by the weight of the medical
evidence and greatly overstated Plaintiff’s limitations. (Tr. at 41). The Court finds, however,
that this reason is also not supported by substantial evidence.
Specifically, in August 2013, Dr. Hightower diagnosed Plaintiff with major depressive
disorder, posttraumatic stress disorder, and generalized anxiety disorder. (Tr. at 769). In
October 2013, Defendant appeared with symptoms of depression, anxiety, and cognitive
impairment. (Tr. at 760). Similar symptoms were noted in November 2013 (Tr. at 755) and
early 2014 (Tr. at 854-859). Furthermore, a mental capacity assessment completed by Dr.
13
Hightower evaluated Plaintiff in the areas of sustained concentration and persistence, social
interaction, and adaptation. (Tr. at 771-72). Dr. Hightower opined that Plaintiff had “marked”
limitations for carrying out short and simple instructions; maintaining attention and
concentration for extended periods; sustaining an ordinary routine without special supervision;
working in coordination with or proximity to others without being distracted by them; making
simple work-related decisions; asking simple questions or requesting assistance; accepting
instructions and responding appropriately to criticism from supervisors; and maintaining socially
appropriate behavior. (Tr. at 771-72). Dr. Hightower opined that Plaintiff had “extreme”
limitations in carrying out detailed instructions; performing activities within a schedule and
maintaining regular attendance; completing a normal workday without interruptions from
psychologically based symptoms; performing at a consistent pace; responding appropriately to
changes in work setting; and setting realistic goals or making plans. (Tr. at 771-72). Dr.
Hightower also opined that Plaintiff would likely have an extreme number of absences from
work. (Tr. at 771).
As discussed above, the medical records from 2012 and 2013 show that Plaintiff had
more than minor abnormalities. Dr. Hightower’s records show that Plaintiff suffered from
significant mental issues such as major depressive disorder, posttraumatic stress disorder, and
generalized anxiety disorder. (Tr. at 769). These diagnoses are at least consistent with records
from the Ruth Cooper Center and records from her hospitalization, which records show that
Plaintiff suffered from depression and anxiety. (Tr. at 610, 669, 675). Thus, contrary to the
ALJ’s finding, the Court finds that Dr. Hightower’s opinion is consistent with and bolstered by
the medical evidence of record, especially the medical evidence of record from late 2012 through
the date of decision. See Phillips, 357 F.3d at 1241.
14
Moreover, the Court finds that Dr. Hightower’s opinion does not appear to greatly
overstate Plaintiff’s limitations. Specifically, Dr. Hightower opined that Plaintiff had various
marked and extreme limitations. (Tr. at 771-72). Upon review, however, the limitations from
Dr. Hightower’s opinion do not appear to be inconsistent with issues noted in the records from
the Ruth Cooper Center, which records show impairments to Plaintiff’s short-term and long-term
memory along with impaired judgment and insight. (Tr. at 669, 675). Furthermore, the fact of
Plaintiff’s in-patient hospitalization for a mental issues only serves to support Dr. Hightower’s
opinion that Plaintiff has significant mental issues. See Tr. at 610. At the very least, the abovecited medical evidence of record certainly does not support findings contrary to those made by
Dr. Hightower. See id. Accordingly, the Court finds that the evidence of records does not
support the ALJ’s finding that Dr. Hightower’s opinion greatly overstated Plaintiff’s limitations.
The third reason given by the ALJ was that Plaintiff retained the ability to perform a wide
range of daily activities within her physical limitations. On this point, it is unclear to the Court
how this conclusion could support a finding that Plaintiff’s treating psychiatrist is entitled to little
weight when her opinion concerns Plaintiff’s mental impairments. Simply stating that Plaintiff
can perform daily activities based on her physical limitations does not demonstrate why Dr.
Hightower’s opinion was incorrect or why it was entitled to little weight as to mental limitations.
Thus, the Court finds that this reason given by the ALJ is also not supported by substantial
evidence.
In sum, the Court finds that the reasons articulated by the ALJ do not establish “good
cause” to give little credit to Dr. Hightower’s opinion. See Phillips, 357 F.3d at 1240-41.
Because the ALJ erred on this ground, the Court reverses and remands the decision of the
Commissioner. Upon remand, the ALJ need not give any particular weight to Dr. Hightower’s
15
opinion as Plaintiff’s treating psychiatrist. Instead, the Commissioner must re-evaluate the
weight given to Dr. Hightower’s opinion, state what weight is given to Dr. Hightower’s opinion,
and explain the reasons for giving Dr. Hightower’s opinion such weight.
C.
The ALJ’s RFC Assessment of Plaintiff
The RFC is the most a plaintiff is able to do despite her physical and mental limitations.
20 C.F.R. § 416.945(a)(1). The ALJ must determine a plaintiff’s RFC using all of the relevant
medical and other evidence in the record. Phillips, 357 F.3d at 1238; 20 C.F.R. § 416.945(e). In
this case, because the Court finds that the ALJ erred in determining the weight given to
Plaintiff’s treating psychiatrist, Dr. Hightower, and because a re-determination of the weight
given to Dr. Hightower’s opinion may impact the ALJ’s RFC determination on remand, the
Court directs the Commissioner, on remand, to fully consider Plaintiff’s mental and physical
impairments in combination with her other medically determinable impairments of record to
determine Plaintiff’s RFC.
III.
Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court hereby ORDERS that:
1) The decision of the Commissioner is hereby AFFIRMED IN PART pursuant to
sentence four of 42 U.S.C. §405(g) as to the ALJ’s analysis at step two.
2) The decision of the Commissioner is REVERSED AND REMANDED IN PART
pursuant to sentence four of 42 U.S.C. § 405(g) for the Commissioner to re-evaluate
the weight given to Dr. Hightower’s opinion and for re-determination of Plaintiff’s
residual functional capacity.
16
3) The Clerk of Court is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the case.
4) 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 8, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
17
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