Dalrymple v. Commissioner of Social Security
Filing
21
OPINION AND ORDER accepting and adopting 19 Report and Recommendations. The Decision of the Commissioner of Social Security is affirmed. The Clerk of the Court shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 9/18/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RONALD GERALD DALRYMPLE,
Plaintiff,
v.
Case No:
COMMISSIONER
SECURITY,
OF
2:16-cv-295-FtM-99CM
SOCIAL
Defendant.
OPINION AND ORDER
This
matter
is
before
the
Court
on
consideration
of
Magistrate Judge Carol Mirando’s Report and Recommendation (Doc.
#19), filed on August 10, 2017, recommending that the Decision of
the Commissioner be affirmed.
On August 24, 2017, plaintiff filed
his Objections to Report and Recommendation Dated August 10, 2017
(Doc. #20).
I.
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
(citing
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
substantial
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 Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007)
(citing Martin, 894 F.2d at 1529).
II.
The Magistrate Judge recommends that the ALJ provided good
cause for giving little weight to Dr. Galang’s March 2011 and
January 2013 opinions on plaintiff’s ability to work based on the
medical treatment notes over the course of treatment indicating to
the contrary.
(Doc. #12-7, Tr. 417-420; Doc. #12-8, Tr. 491-494.)
- 2 -
The Magistrate Judge further noted the Commissioner’s argument
that the January 2013 opinion was a form questionnaire, but the
Magistrate Judge did not conclude that the ALJ rejected the opinion
on this basis.
The Magistrate Judge recommends that the ALJ’s
decision to discount plaintiff’s credibility as to his subjective
complaints was supported by substantial evidence.
The Magistrate Judge also recommends finding that substantial
evidence supports the ALJ’s finding that plaintiff could perform
his past relevant work because Dr. Galang’s opinions were properly
discounted.
The Magistrate Judge further recommends finding no
error in the ALJ’s reliance on the testimony of the vocational
expert, or the determination based on the testimony.
III.
Plaintiff objects that the ALJ did not provide explicit and
adequate reasons for rejecting the March 9, 2011 opinion of a
treating physician, Dr. Galang.
Specifically that the ALJ failed
to discuss how Dr. Galang’s opinion that plaintiff could not
tolerate sitting or standing for more than about 15 minutes at a
time was inconsistent with plaintiff’s daily activities, and that
the ALJ failed to discuss what “other observation” supported
rejection of Dr. Galang’s opinion.
- 3 -
The Court finds that the ALJ never explicitly rejected the
medical diagnosis or medical opinion of Dr. Galang, but rather
found that the speculation that plaintiff could not tolerate
sitting for more than 15 minutes or that he was unable to continue
his practice was unsupported by the medical findings, and should
be given little weight in light of plaintiff’s daily activities
and the ALJ’s own observations of plaintiff.
(Doc. #12-2, Tr.
46.)
The ALJ found that plaintiff’s subjective pain complaints
were not fully credible as they were inconsistent with the totality
of the medical evidence.
(Id., Tr. 45.)
The ALJ “observed”
plaintiff, and noted no obvious pain or discomfort during the
hearing, and noted that he lacked the general physical appearance
of someone who might have been experiencing prolonged or severe
pain.
(Id.,
Tr.
44.)
The
ALJ
found
“the
totality
of
the
supporting medical evidence does not provide clinical correlation
of
his
symptomology
to
the
degree
objective findings on examination.”
After
hearing
plaintiff’s
of
debility
alleged
with
(Id., Tr. 45.)
testimony,
the
ALJ
noted
that
plaintiff had an active driver’s license, drives daily, and runs
errands or sees a patient or two before returning home.
The ALJ
noted that plaintiff works part-time at his psychology practice,
- 4 -
for 2-3 hours a day, and that he last worked full-time in November
2010, but was still seeing patients in early 2013. 1
44.)
(Id., Tr. 42,
The ALJ went on to note that plaintiff performed housekeeping
in short bursts 2, prepares simple meals in the microwave, but does
not socialize or go out much due to his condition 3, but regularly
drives to North Florida 4.
(Id., Tr. 42-43, 45.)
Plaintiff had no
hospitalizations in the previous 12 months, and no emergency room
visits in the previous 6 months.
(Id., Tr. 83.)
The ALJ concluded that plaintiff’s “impairment or combination
of impairments” did not significantly limit his ability to perform
basic work-related activities based on symptoms “consistent with
the objective medical evidence”, and the observations noted above.
(Doc. #12-2, Tr. 42.)
evidence.
The conclusion is supported by substantial
The objection is overruled.
1
Plaintiff testified that he lies back on his recliner, with
a pillow, while seeing patients, and then takes about an hour break
between patients, if possible, to lie down and stretch.
(Doc.
#12-2, Tr. 83-84.)
2
Plaintiff testified that he vacuumed once a month, but no
sweeping or mopping.
Plaintiff has someone come in to help.
(Doc. #12-2, Tr. 73.)
3
Plaintiff testified that he lies down on a pallet in the
same position most of the day, approximately 7 hours watching
television and reading. (Doc. #12-2, Tr. 76-77.)
4
Plaintiff testified that he takes the “grueling” drive every
few months to see his 88 year old mother, but stops numerous times
along the way. (Doc. #12-2, Tr. 78.)
- 5 -
IV.
Plaintiff further objects to the Magistrate Judge’s reliance
on the Commissioner’s position that the ALJ rejected Dr. Galang’s
January 14, 2013 opinion because Dr. Galang simply completed a
form questionnaire by checking off boxes.
Plaintiff argues that
the ALJ never stated that it was a basis for rejecting the opinion,
it is simply Commissioner’s conjecture, and the ALJ’s finding that
the opinion was “not supported by substantial objective findings,
diagnostic imaging, or physical examination”, id., Tr. 46, was
simply a conclusory statement.
In
January
2013,
Dr.
Galang
expressed
his
opinion
that
claimant would be unable to work for more than three hours a day,
and would be unable to engage in even simple light work due to his
spinal condition in response to questions submitted by counsel.
This opinion was given little weight because it was not supported
by the medical evidence presented in Dr. Galang’s own records.
(Doc. #12-2, Tr. 46.)
More specifically, the ALJ observed after review of the
records:
MRI of the lumbar spine from August 2011
showed only mild disc bulging at multiple
levels
and
MRI
of
the
left
hip
was
unremarkable. Reports and examination in
January 2012 were unchanged.
Primary care
notes from May 2013 showed normal gait,
- 6 -
strength, reflexes, and sensory function.
Upper and lower extremity strength and tone
appeared normal.
Into 2012 and 2013,
treatment
notes
from
Dr.
Galang
show
examination with normal gait and station,
strength, and no spasm.
Straight leg raise
was positive however and the claimant had an
abnormal spinal curvature and a reduced range
of motion. Examination in late 2012 with Dr.
Lin was largely unremarkable and showed a
normal gait and muscle strength.
Range of
motion in all extremities and the cervical and
lumbar spines was normal. Claimant's reflexes
were unremarkable and straight leg raising
negative.
(Doc. #12-2, Tr. 45.)
The ALJ found plaintiff to be highly
intelligent and skilled, that plaintiff sat for an hour hearing
and stood up once, and appeared to move well with is cane, and
maintain eye contact.
could
reasonably
The ALJ found that plaintiff’s impairments
produce
the
alleged
symptoms,
but
that
plaintiff’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible to
the extent that all work is precluded.”
(Id., Tr. 44.)
The ALJ
gave significant weight to the State agency physical examiner’s
finding that plaintiff was capable of a range of light work.
Tr. 46.)
(Id.,
The ALJ even went on to assume a severe impairment, and
still found that plaintiff would retain the residual functional
capacity to perform light work.
(Id.)
- 7 -
After
an
independent
review,
the
Court
agrees
with
the
findings and recommendations in the Report and Recommendation.
Accordingly, it is now
ORDERED:
1.
The Report and Recommendation (Doc. #19) is accepted and
adopted by the Court.
2.
The Decision of the Commissioner of Social Security is
affirmed.
3.
The Clerk of the Court shall enter judgment accordingly
and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2017.
Copies:
Hon. Carol Mirando
U.S. Magistrate Judge
Counsel of Record
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18th
day
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