Woodward v. Commissioner of Social Security

Filing 24

OPINION AND ORDER. The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 9/20/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BEVERLY FONDA WOODWARD,
Plaintiff,
v.

Case No: 2:16-cv-572-FtM-DNF

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.1
_____________________________
OPINION AND ORDER
Plaintiff, Beverly Fonda Woodward, 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 (“DIB”). The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and
the parties filed memoranda setting forth their respective 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).
I.

Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in

1 Nancy A. Berryhill became the Acting Commissioner of the Social Security on January 23, 2017.
Pursuant to Fed. R. Civ. P. 25(d)(1), Nancy A. Berryhill is substituted as the defendant in this case.

death or which 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), 1382(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 which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).

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The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that she is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit her physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If

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the claimant is capable of performing other work, she will be found not disabled. Id.

In

determining whether the Commissioner has met this burden, the ALJ must develop a full and fair
record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d
1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination.
The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the
use of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Only after the Commissioner meets this burden does the burden shift back to the claimant to show
that she is not capable of performing the “other work” as set forth by the Commissioner. Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for a period of disability and DIB on February 2, 2012,
alleging a disability onset date of February 10, 2011. (Tr. 186). Plaintiff’s application was denied
initially on April 16, 2012, and upon reconsideration on June 29, 2012. (Tr. 133, 140). Plaintiff
requested a hearing and a hearing was held before Administrative Law Judge Tammy Whitaker
(“the ALJ”) on November 18, 2014. (Tr. 60-108). On January 22, 2015, the ALJ entered a
decision finding that Plaintiff was not disabled. (Tr. 14-31). Plaintiff requested review of this
decision and the Appeals Council denied Plaintiff’s request on April 25, 2016. (Tr. 1-8). Plaintiff
initiated the instant action by Complaint (Doc. 1) on June 24, 2016. The parties having filed
memoranda setting forth their respective positions, this case is ripe for review.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since February 10, 2011, the alleged onset date. (Tr. 16). At step two,
the ALJ found that Plaintiff had the following severe impairments: history of recurring deep vein

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thrombosis on anticoagulation therapy; trochanteric bursitis of right hip; degenerative disk disease,
degenerative joint disease, and spondylosis of cervical spine with bilateral radiculopathy and
history of headache and cephalgia with chronic pain; history of right shoulder pain; obstructive
sleep apnea with history of hypersomnia; asthma with history of dyspnea; obesity; depressive
disorder not otherwise specified; mood disorder secondary to chronic pain; anxiety disorder; and
panic disorder with agoraphobia. (Tr. 16). At step three, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that meets or medically equals the severity of any
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 17).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform
light work as defined in 20 CFR 404.1567(b) except she can lift, push, pull
and carry 10 pounds frequently and 20 pounds occasionally; can sit for six
hours of an eight hour workday; and stand and walk, in combination, for
six hours of an eight hour workday; she is limited to work that allows the
individual to sit, walk, and stand alternatively provided that the individual
can sit for one hour at one time; stand for one hour at one time; and walk
for 20 minutes at one time; no foot control operation; frequently handling
and fingering; never climb ladders, ropes, and scaffolds; occasionally
balance, kneel, crouch, crawl and climb ramps and stairs; only
occasionally stooping but never repetitive stooping below the waist;
occasional exposure to respiratory irritants, such as, fumes, odors, dusts,
and gases; no exposure to unprotected cutting hazards; and the claimant’s
work is limited to simple, routine, and repetitive tasks with “simple”
defined as unskilled tasks.
(Tr. 19). At step four, the ALJ found that Plaintiff was capable of returning to her past relevant
work as an office helper. (Tr. 30). The ALJ concluded that Plaintiff was not under a disability
from February 10, 2011, through the date of the decision. (Tr. 30).
II.

Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ erred by finding that Plaintiff

can return to her past relevant work; (2) whether the ALJ erred by failing to provide good cause
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for rejecting the opinions of Plaintiff’s treating and consulting physicians; and (3) whether the ALJ
erred by discrediting Plaintiff subjective complaints. (Doc. 19 p. 2). The Court begins by
addressing Plaintiff’s second raised argument.
Plaintiff argues the ALJ erred by improperly rejecting the opinion of treating physician
Fred Liebowitz, M.D., on the basis that the opinion was “internally inconsistent with the
longitudinal treatment records” and inconsistent with Plaintiff’s report that should could perform
daily chores without interruption. (Doc. 19 p. 13). Plaintiff contends that the ALJ’s rationale for
rejecting Dr. Liebowitz’s opinion is not consistent with the record and does not constitute good
cause for rejection. (Doc. 19 p. 13). Plaintiff argues that contrary to the ALJ’s finding, the
longitudinal treatment records from Dr. Liebowitz, who treated Plaintiff on a monthly basis for
several years throughout the relevant time period, fully supported Dr. Liebowitz’s opinion. (Doc.
19 p. 14). Plaintiff further argues that the ALJ improperly rejected the opinion of Plaintiff’s
treating psychiatrist, Daryl Tanski, M.D., effectively on the basis that Plaintiff could not comply
with physician’s advice to seek mental health treatment. (Doc. 19 p. 15).
Defendant argues that the ALJ had good cause to reject Dr. Liebowtiz’s opinion on the
basis that the opinion was inconsistent with the longitudinal treatment records and the nature and
extent of Plaintiff’s activities. (Doc. 22 p. 8).
“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

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statement is an opinion requiring the ALJ to state with particularity the weight given to it and the
reasons therefor. Winschel v. Commissioner of Social Security, 631 F.3d 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)).
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: “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.
In her decision, the ALJ addressed Dr. Liebowitz’s opinion as follows:
On November 13, 2014, Dr. Liebowitz completed a medical source
statement that the claimant was essentially limited to sedentary exertion
with the ability to lift 10 pounds, stand/walk, in combination, a total of
two hours and sit a total of four hours, each, in an 8-hour workday. While
Dr. Liebowitz opined the claimant could not perform postural movements,
the claimant had no significant problems with fine or gross manipulation
or with foot controls (Exhibit 22F)
I give little weight to the above opinion, as it is internally inconsistent with
the longitudinal treatment records. I find the claimant is capable of at least
light work as set forth herein given her reports based upon the objective
evidence and the nature and extent of her activities as described
throughout the decision. For example, the claimant said she was able to do
daily chores without interruption. The claimant also filed reports she
performed typical light household chores such as laundry, cleaning, and
shopping (Exhibit 5E).
(Tr. 28).
Here, the Court finds that the ALJ erred by failing to provide good cause for rejecting Dr.
Liebowitz’s opinion. Contrary to the ALJ’s statement, it is not clear that Dr. Liebowitz’s opinion
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was “internally inconsistent with the longitudinal treatment records.” (Tr. 28). To the contrary,
Dr. Liebowtiz’s longitudinal treatment notes support his opinion rather than undermine it. As just
a few examples, as noted by Plaintiff, the record shows that:


Treatment notes dated August 19, 2011, show persistent right-sided low
back pain with regular use of MS Contin and abnormal physical exam
findings. (Tr. 390-92).



Treatment notes dated March 21, 2012, show low back pain with
radiation to the thigh with positive straight leg raise and limited range of
motion in the spine. (Tr. 363-65).



Treatment notes dated June 18, 2012, show progressively worsening
neck pain with radiation and no effective pain relief with positive
straight leg raise (Tr. 353-55).



Treatment notes dated December 10, 2012, show worsening neck pain
radiating to the upper extremities following a car accident. (Tr. 672-73).



Treatment notes dated January 7, 2013, show persistent neck pain with
radiation causing intense headaches. Physical examination showed
multiple abnormalities, including antalgic gait and positive straight leg
raise. (Tr. 668-70).



Treatment notes dated March 29, 2013, show persistent neck pain
radiating to upper extremities and lower back pain requiring new
medication regimen. Again, there are numerous and progressively
worsening physical examination findings. (Tr. 653-56).



Treatment notes dated July 30, 2013, shows persistent pain with right
lower extremity getting "progressively worse" with muscle weakness and
falling. Again, there are numerous objective physical examination
findings. (Tr. 635-37).



Treatment notes dated September 26, 2013, show persistent low back
pain with associated left leg weakness and occasional falling. (Tr. 61719).



Treatment notes dated December 27, 2013, show that pain is radiating
into her back and hips and that she has lower left extremity weakness
and is dragging the foot. Again, she has numerous abnormal examination
findings, including positive straight leg raise and antalgic gait. (Tr. 59801).
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

Additional treatment notes show continued treatment and abnormal
examination findings progressively worsening into 2014. At all times,
Claimant has required pain management with opioid pain medications.
(Tr. 593-96).



A cervical MRI study from December 2014 shows degenerative disc
disease with radiculopathy caused by flattening of the ventral cord at the
C4-C5 level. (Tr. 801).

The ALJ provided no examples as to how Dr. Liebowitz’s opinion was “internally
inconsistent with the longitudinal treatment records” and it is not apparent from the ALJ’s
discussion of the record proceeding his explanation. Such conclusory reasons, without reference
to the record, do not constitute good cause for rejecting the opinion of a treating physician.
The ALJ’s remaining reason for rejecting Dr. Liebowitz’s opinion also does not constitute
good cause. The ALJ failed to sufficiently articulate how Plaintiff’s daily activities undermine Dr.
Liebowitz’s opinion, as the performance of light chores does not constitute good cause to reject a
medical opinion. See Barreto v. Comm’r of Soc. Sec., 2012 WL 882520, at *4 (M.D. Fla. Mar.
15, 2012) (citing Venette v. Apfel, 14 F.Supp.2d 1307, 1314 (S.D. Fla. 1998)).
Turning to the opinion of Plaintiff’s treating psychiatrist Dr. Tanski, the ALJ’s decision
noted that Dr. Tanski had completed a medical source statement at Plaintiff’s request and opined
that Plaintiff had marked limitations with her ability to perform at production levels expected by
most employers; marked limitations with her ability to respond appropriately to work changes and
to remember instructions; extreme limitations with the ability to behave predictably, reliably, and
in an emotionally stable manner, and with her ability to tolerate work pressures; mild to moderate
limitations with social interaction and no more than moderate limitations with concentration,
persistence, and pace for her ability to complete work tasks and carry through instructions. (Tr.

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26). After reviewing Dr. Tanski’s opinion, the ALJ explained her decision for rejecting the opinion
as follows:
I give little weight to the above opinion, as it is unsupported given the
minimal health treatment and is clearly based on the claimant’s subjective
allegations. The opinion is internally inconsistent with the mental health
records, which showed no more than mild to moderate impairment.
Indeed, the claimant’s GAF was borderline with a GAF of 60, when seen
in April 2014. Moreover, as noted above, the claimant’s mood disorder
was situational and episodic secondary to marital conflicts and financial
concerns. There is no indication claimant has significant deficits with
activities of daily living, social functioning, or concentration, persistence
and pace related to a mental impairment. When seen with other treating
physicians, psychiatric examinations have shown euthymic mood and
little evidence of memory deficits (Exhibits 13F and 18F). Indeed, the pain
specialist, Dr. Liebowitz has consistently noted the claimant has adequate
memory, fund of knowledge, and capacity for sustained mental activity
(Exhibits 17F and 22F), consistent with Dr. Tanski’s opinion that the
claimant was able to manage her own finances. Moreover, the claimant
testified she continued to drive, attend church, read the Bible, and use a
computer/phone to access the internet, check her emails, and maintain a
social media account. I find the evidence is compelling the claimant is
capable of at least simple, routine, and repetitive tasks with “simple”
defined as unskilled tasks.
(Tr. 26).
Here, the Court finds that the ALJ provided good cause for rejecting Dr. Tanski’s opinion.
Unlike her treatment of Dr. Liebowitz’s opinion, the ALJ explained the reasons for rejecting Dr.
Tanski’s by direct citation to the record. Contrary to Plaintiff’s claim, the ALJ did not reject Dr.
Tanski’s opinion based on Plaintiff’s noncompliance with medical advice due to financial
problems, but on the basis that the record did not support Dr. Tanski’s limitation findings.
Accordingly, the Court finds no error in the ALJ’s decision to reject Dr. Tanski’s opinion.
Because the ALJ’s error in her treatment of Dr. Liebowitz’s opinion may impact the ALJ’s
findings concerning Plaintiff’s subjective complaints, Plaintiff’s RFC, and the question of whether
Plaintiff can return to her past relevant work, the Court defers from addressing Plaintiff’s other

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raised issues as this time. On remand, the ALJ shall further evaluate the opinion of Dr. Liebowitz
and conduct any further proceedings as necessary.
III.

Conclusion

The decision of the Commissioner is REVERSED AND REMANDED pursuant to
sentence four of Section 405(g) for further proceedings. The Clerk of the Court is directed to enter
judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on September 20, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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