Roman v. Commissioner of Social Security

Filing 25

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is REVERSED and this action is REMANDED for further proceedings. The Clerk is directed to enter judgment accordingly, and close the file. Signed by Magistrate Judge Carol Mirando on 9/26/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BAUDILIO NUNEZ ROMAN,
Plaintiff,
v.

Case No: 2:16-cv-500-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Plaintiff Baudilio Nunez Roman seeks judicial review of the denial of his claims
for Social Security disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). The Court has reviewed the record, the briefs and the applicable law.
For the reasons discussed herein, the decision of the Commissioner is REVERSED,
and this matter is REMANDED pursuant to 42 U.S.C. § 405(g), sentence four.
I.

Issue on Appeal 1

Plaintiff raises one issue on appeal: whether the Administrative Law Judge
(“ALJ”) improperly rejected the opinion of Plaintiff’s treating psychiatrist, Miriam
Ajo, M.D.

Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now, Inc.
v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument
that has not been briefed before the court is deemed abandoned and its merits will not be
addressed.”).
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II.

Procedural History and Summary of the ALJ’s Decision

Plaintiff filed applications for DIB and SSI on November 18, 2011. Tr. 211-20,
234-37. Plaintiff alleged that his disability began April 15, 2008 due to his broken
right hand, knee and back problems and mental problems. Tr. 106, 119. Plaintiff
later amended his disability onset date to September 2, 2011. 2 Tr. 233. Plaintiff’s
claims were denied initially and upon reconsideration. Tr. 139-44, 147-51. Plaintiff
requested a hearing before an ALJ and received a hearing before ALJ Maria C.
Northington on September 5, 2014. Tr. 46-89. Plaintiff, who was represented by
counsel during the hearing, appeared and testified at the hearing with the assistance
of an interpreter. Tr. 48, 57-79. A vocational expert also appeared and testified at
the hearing. Tr. 46, 79-88.
On February 6, 2015, the ALJ issued a decision finding Plaintiff not disabled
since April 15, 2008 3 through the date of the decision. Tr. 19-32. At step one of the
ALJ’s decision, the ALJ found that Plaintiff met the insured status requirements of
the Social Security Act through December 31, 2015, and Plaintiff has not engaged in
substantial gainful activity since the amended onset date of September 2, 2011. Tr.
21. At step two, the ALJ found that Plaintiff has the following severe impairments:
unspecified affective disorder, mild lumbar degenerative disc disease with sciatica

Plaintiff had previously filed applications for DIB and SSI and appealed the denial
of his initial claims, which were before ALJ Frederick McGrath. Tr. 93-101. On September
1, 2011, ALJ McGrath issued a decision finding Plaintiff not disabled from April 1, 2003
through September 1, 2011. Tr. 93-101. This decision is not before the Court.
2

Although Plaintiff amended his disability onset date to September 2, 2011, the ALJ
still found Plaintiff not disabled from April 15, 2008, his previously alleged onset date. Tr.
31, 233.
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and a history of polysubstance abuses in remission. Tr. 22. The ALJ then found that
Plaintiff does not have “an impairment or combination of impairments that meets or
medically equals the severity of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1.” Id. At step four, the ALJ found that Plaintiff had the residual
functional capacity (“RFC”) to perform a wide range of medium work 4 with the
following limitations:
[Plaintiff] is capable of performing all postural functions except no
crawling, no kneeling, and no climbing and no overhead reaching with
the bilateral upper extremities. Secondary to his mental impairments,
he retains the capacity to understand, remember and carryout simple
instructions and to perform simple routine repetitive tasks as consistent
with unskilled work. [Plaintiff] is to perform no work that would involve
hazardous situations such as work at unprotected heights or work
around dangerous machinery that may cause harm to self or others. In
the course of work, he is to have no required oral and written fluency of
the English language, but incidental and simple English
communications remain intact. In the course of work, he is to have no
required reading and writing as part of a job. In the course of work, he
is to have no contact with the public and only occasional contact with
coworkers and supervisors, occasional being defined as occasional
interaction and coordination, but not necessarily proximity to the same.
Tr. 23-24. Next, the ALJ determined that Plaintiff is unable to perform any past
relevant work. Tr. 29. The ALJ found that considering Plaintiff's age, education,
work experience and RFC, there are jobs that exist in significant numbers in the
national economy Plaintiff can perform. Tr. 30. As a result, the ALJ concluded that

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The regulations define medium work as follows:

Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If someone can do
medium work, we determine that he or she can also do sedentary and light
work.
20 C.F.R. § 404.1567(c).

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Plaintiff had not been under a disability from April 15, 2008 through February 6,
2015. Tr. 31.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on May 26, 2016. Tr. 1-4. Accordingly, the ALJ’s February
6, 2015 decision is the final decision of the Commissioner. Plaintiff filed an appeal in
this Court on June 24, 2016. Doc. 1. Both parties have consented to the jurisdiction
of the United States Magistrate Judge, and this matter is now ripe for review. Docs.
18, 20.
III.

Social Security Act Eligibility and Standard of Review

A claimant is entitled to disability benefits when he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A);
20 C.F.R. § 404.1505(a). 5 The Commissioner has established a five-step sequential

The Court notes that after Plaintiff filed his applications and the ALJ issued the
decision, certain Social Security rulings and regulations have been amended, such as the
regulations concerning the evaluation of medical opinions and evaluation of mental
impairments. See e.g., 20 C.F.R. §§ 404.1520a, 404.1520c and 404.1527 (effective March 27,
2017); SSR 16-3p, 2016 WL 1119029 (March 16, 2016). The Court will apply rules and
regulations in effect at the time of the ALJ’s decision, unless regulations specify otherwise.
Green v. Soc. Sec. Admin., Comm’r, — F. App’x —, 2017 WL 3187048, at *4 (11th Cir. July
27, 2017) (in reviewing the ALJ’s decision, refusing to apply SSR 16-3p retroactively because
“administrative rules are not generally applied retroactively.”); Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988) (“[C]ongressional enactments and administrative rules will
not be construed to have retroactive effect unless their language requires this result.”); 20
C.F.R. § 404.1527 (effective March 27, 2017) (“For claims filed . . . before March 27, 2017, the
rules in this section apply.”). See also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)
(holding that when the Appeals Council denies review of the ALJ’s decision, appellate courts
review the ALJ’s decision as the Commissioner’s final decision).
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analysis for evaluating a claim of disability. See 20 C.F.R. §416.920. The Eleventh
Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful activity; (2)
if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform his
past relevant work; and (5) if not, whether, in light of his age, education,
and work experience, the claimant can perform other work that exists
in “significant numbers in the national economy.”

Atha v. Comm’r Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion
through step four; and, at step five, the burden shifts to the Commissioner. Id. at
933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court’s review
is limited to determining whether the ALJ applied the correct legal standards and
whether the findings are supported by substantial evidence. McRoberts v. Bowen,
841 F.2d 1077, 1080 (11th Cir. 1988) (citing 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., 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.” Foote v. Chater, 67 F.3d 1553, 1560
(11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a
mere scintilla, but less than a preponderance”) (internal citation omitted).
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The Eleventh Circuit has restated that “[i]n determining whether substantial
evidence supports a decision, we give great deference to the ALJ’s fact findings.”

Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (citing Black
Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). 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 preponderance of the evidence is 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 record as a whole, taking into account evidence favorable as well as
unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979
F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record
to determine the reasonableness of the factual findings). It is the function of the
Commissioner, and not the courts, to resolve conflicts in the evidence and to assess
the credibility of the witnesses. Lacina v. Comm’r, Soc. Sec. Admin., 606 F. App’x
520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)).
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 v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

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IV.

Discussion

Whether the ALJ improperly rejected the opinion of Plaintiff’s treating
psychiatrist, Dr. Ajo
Dr. Ajo treated Plaintiff for his affective disorder and substance and alcohol
dependence in remission from November 7, 2011 to May 12, 2014. Tr. 348-64, 37380, 390-489.

On July 3, 2012, Dr. Ajo completed a mental RFC questionnaire

regarding Plaintiff’s mental RFC. Tr. 386-89. The ALJ discussed Dr. Ajo’s opinion
as follows:
Dr. Ajo opined that [Plaintiff] had marked limitation in social
interaction, sustained concentration and persistence, and adaption. I
find Dr. Ajo opinions are ridiculous and unsupported by her own
progress notes. Dr. Ajo had a pattern of documenting these SAME
findings for all of her patients. The undersigned understands that Dr.
Ajo does not generate these opinions for secondary personal gain, which
is commendable, however, she appears to be merely trying to help her
patients get disability in order to get medical care, but in the long-run,
her credibility is questionable as every single patient of hers cannot
possible be this mentally limited. If these patients were so markedly and
extremely mentally limited, there would certainly be a recurrence of
psychiatric admissions. To wit, [Plaintiff] has not incurred any inpatient
psychiatric admissions (Exhibit B9F).
...
More importantly, Dr. Ajo’s [opinion] is unsupported by her own exams.
She has a pattern of documenting that ALL of her patients have extreme
and marked mental findings, which makes the validity of her opinions
suspect and unreliable.
Tr. 28-29 (emphasis in original).
Plaintiff argues that the ALJ inappropriately rejected Dr. Ajo’s opinion based
on the ALJ’s personal past experiences with Dr. Ajo, which compromised the
disability determination process. Doc. 23 at 8-10. The Commissioner responds that
substantial evidence supports the ALJ’s decision to accord little weight to Dr. Ajo’s
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opinion, and Plaintiff received a full and fair hearing. Doc. 24 at 4-10. The Court
finds that the ALJ’s personal bias against Dr. Ajo may have compromised her
decision, and thus Plaintiff did not receive full and fair consideration of his claims.
The Social Security Act requires that a claimant’s hearing is both full and fair.

Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam). The ALJ plays a
“crucial role in the disability review process” and has a duty to “develop a full and fair
record” and to “carefully weigh the evidence, giving individualized consideration to
each claim.” Id. at 1401. Accordingly, the ALJ must “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.” Id. at 1400 (quoting 20 C.F.R. § 404.040).

A claimant who

fears that a particular ALJ will not provide a fair hearing must notify the ALJ at the
“earliest opportunity.” 20 C.F.R. § 404.940. If the ALJ declines to withdraw, the
claimant may seek reconsideration by raising the issue before the Appeals Council.

Id. Here, the ALJ’s assessment of Dr. Ajo’s opinion was evident in her decision that
was issued after the hearing. Tr. 28-29. Plaintiff objected at the earliest opportunity
by raising this issue before the Appeals Council. Tr. 2. The Appeals Council found
that the ALJ did not abuse her discretion in assessing Dr. Ajo’s opinion. Id.
Here, the Court finds that the ALJ’s personal bias against Dr. Ajo warrants
remand. The ALJ in Miles, as here, discounted the opinion of a medical examiner,
who evaluated the claimant, because the ALJ found that the doctor “almost
invariably conclude[d] that the person being examined is totally disabled.” 84 F.3d
at 1399. The Eleventh Circuit held that the ALJ’s comment, “without any evidence

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in support thereof, reflect[ed] that the process was compromised in this case.” Id. at
1401.

Accordingly, the court remanded the case to a different ALJ so that the

claimant may receive “an unbiased reconsideration of her application for benefits
before a different ALJ.” Id.
Similar to the ALJ in Miles, the ALJ here found Dr. Ajo’s findings “ridiculous”
because she “had a pattern of documenting these SAME findings for all of her
patients.” Tr. 28 (emphasis in original); see id. at 1399. The ALJ further described
Dr. Ajo as a person who “appears to be merely trying to help her patients get disability
in order to get medical care, but in the long-run, her credibility is questionable as
every single patient of hers cannot possible be this mentally limited.”

Tr. 28.

Accordingly, the ALJ here, as in Miles, discredited Dr. Ajo’s opinion partially based
on her personal experiences with Dr. Ajo without any evidence supporting her view
of Dr. Ajo. Tr. 28-29; Miles, 84 F.3d at 1399-1401. Thus, the Court finds that remand
is appropriate because the ALJ’s bias against Dr. Ajo compromised the process in
Plaintiff’s case. Miles, 84 F.3d at 1401. To ensure that Plaintiff receives a full and
fair consideration of his claims, the Court will remand this case to a different ALJ.

See id.
V.

Conclusion

Upon review of the record, the undersigned concludes that for the reasons cited
in this Opinion and Order, the ALJ’s personal bias compromised the process in this
case. Accordingly, the Court will remand this case to a different ALJ for further
proceedings.

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ACCORDINGLY, it is hereby
ORDERED:
1.

The decision of the Commissioner is REVERSED, and this matter is

REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for
the Commissioner to:
A.
B.
2.

Consider and evaluate the treatment notes and opinions of
Miriam Ajo, M.D.; and
Conduct any further proceedings deemed appropriate.

The Commissioner shall reassign this case for rehearing to an

Administrative Law Judge other than Administrative Law Judge Maria C.
Northington.
3.

The Clerk of Court is directed to enter judgment accordingly, and close

the file.
DONE and ORDERED in Fort Myers, Florida on this 26th day of September,
2017.

Copies:
Counsel of record

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