Ready v. Commissioner of Social Security
Filing
32
OPINION AND ORDER affirming 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. Signed by Magistrate Judge Mac R. McCoy on 9/27/2017. (JTM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LETA A. READY,
Plaintiff,
v.
Case No: 2:16-cv-573-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause is before the Court on Plaintiff Leta A. Ready’s Complaint (Doc. 1) filed on
July 21, 2016. 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 pursuant to § 205(g) of the Social Security Act, 42
U.S.C. § 405(g). 1
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
1
Plaintiff moved “the Court to enter judgment” pursuant to Fed. R. Civ. P. 56. (Doc. 23 at 1).
This Court’s role in social security matters is governed by 42 U.S.C. § 405(g). Accordingly, the
standard of review pursuant to 42 U.S.C. § 405(g) is set forth in this Opinion and Order.
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.
B.
Procedural History
On February 12, 2010, Plaintiff filed an application for a period of disability and
disability insurance benefits. (Tr. at 253). Subsequently, on February 26, 2010, Plaintiff filed an
additional application for supplemental security income. (Tr. at 260). In both applications,
Plaintiff asserted an onset date of May 14, 2008. (Tr. at 253, 260). Plaintiff’s applications were
denied initially on June 29, 2010 (Tr. at 184-85), and upon reconsideration on November 5, 2010
(Tr. at 194-95). A hearing was held before Administrative Law Judge (“ALJ”) M. Dwight Evans
on January 19, 2012. (Tr. at 148-83). The ALJ issued an unfavorable decision on May 4, 2012.
(Tr. at 199-213).
On August 28, 2013, the Appeals Council vacated the ALJ’s decision and remanded the
case to the ALJ. (Tr. at 214-18). On remand, ALJ Evans conducted an additional hearing on
June 4, 2014. (Tr. at 105-47). The ALJ issued an additional unfavorable decision on November
17, 2014. (Tr. at 9-35). The ALJ found Plaintiff not to be under a disability from May 14, 2008,
through the date of the decision. (Tr. at 27).
On June 28, 2016, the Appeals Council denied Plaintiff’s request for review. (Tr. at 1-6).
Plaintiff filed a Complaint (Doc. 1) in this Court on July 21, 2016. Defendant filed an Answer
(Doc. 13) on September 30, 2016. The parties filed memoranda in support. (Docs. 23, 25, 31).
2
The parties consented to proceed before a United States Magistrate Judge for all proceedings.
(See Doc. 17). 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.
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) has the residual functional capacity (“RFC”) to 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 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,
2013. (Tr. at 15). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since May 14, 2008, the alleged onset date. (Tr. at 15).
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
“history of fibromyalgia, history of hypothyroidism, history of migraines, neck pain, chronic
back pain without radiculitis, hip pain, leg pain with numbness, and obesity.” (Tr. at 15). At
step three, the ALJ determined that Plaintiff did not have an impairment or combination of
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
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 18).
Based on the evidence, the ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to perform the full range of light work as defined in 20 C.F.R. §§ 404.1567(b)
and 416.967(b). (Tr. at 19). Nonetheless, the ALJ stated:
[Plaintiff] is able to occasionally lift/carry 20 pounds, frequently lift/carry 10
pounds, stand/walk 6 hours in an 8-hour workday, sit 6 hours in an 8-hour workday,
and has unlimited ability to push and pull to the extent allowed for lifting/carrying.
The claimant can frequently climb ramps and stairs, balance, stoop, kneel, crouch,
and crawl. The claimant can occasionally climb ladders, ropes, and scaffolds. The
claimant is limited to occasional exposure to extreme cold conditions.
(Tr. at 19).
At step four, the ALJ determined that Plaintiff is capable of performing past relevant
work, finding that “[t]his work does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity.” (Tr. at 26). Specifically, the ALJ
noted that the vocational expert (“VE”) testified that Plaintiff could perform her past relevant
work as a:
1) Cashier Checker – (Dictionary of Occupational Titles, #211.462-014) classified
as light with an SVP of 3 (semi-skilled);
2) Manager Trainee – (Dictionary of Occupational Titles, #189.167-018)
classified as light with an SVP of 6 (skilled); and
3) Store Manager – (Dictionary of Occupational Titles, #185.167-034) classified
as sedentary with an SVP of 7 (skilled) however the claimant performed this
job at the light level.
(Tr. at 26). 3
3
“SVP” is an acronym for Specific Vocational Preparation code.
4
In comparing Plaintiff’s RFC with the physical and mental demands of her past relevant
work, the ALJ found that Plaintiff is able to perform it as actually and generally performed. (Tr.
at 26). The ALJ stated that Plaintiff’s “ability to perform light work allows her to perform work
at an equal or lesser exertional level, and she does not have a severe mental impairment or other
nonexertional limitations that preclude her from performing semi-skilled or skilled work.” (Tr.
at 26).
Although the ALJ found that Plaintiff is capable of performing her past relevant work at
step four, the ALJ proceeded to make alternative findings at step five of the sequential
evaluation. (Tr. at 26). At step five, after considering Plaintiff’s age, education, work
experience, and RFC, the ALJ determined that there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform. (Tr. at 26). Specifically, the ALJ noted the
VE’s testimony that an individual with Plaintiff’s age, education, past relevant work experience,
and RFC could perform representative occupations that include:
1) Companion (Dictionary of Occupational Titles, #309.677-010) classified as
light, semiskilled work (SVP 3) with 103,546 in the nation;
2) Sales Person of General Merchandise (Dictionary of Occupational Titles,
#279.357-054) classified as light, semi-skilled work (SVP 3); and
3) Gate Guard (Dictionary of Occupational Titles, #372.667-030) classified as
light, semiskilled work (SVP 3) with 581,584 in the nation.
(Tr. at 27).
Pursuant to Social Security Ruling (“SSR”) 00-4p, the ALJ found the VE’s testimony to
be consistent with the information contained in the Dictionary of Occupational Titles. (Tr. at
27).
Based on Plaintiff’s RFC for the full range of light work and considering Plaintiff’s age,
education, and work experience, the ALJ determined that a finding of “not disabled” was
5
appropriate under the framework of Medical-Vocational Rule 202.21. (Tr. at 27). Accordingly,
the ALJ concluded that Plaintiff was not under a disability from May 14, 2008, through the date
of the decision. (Tr. at 27).
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); 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) (stating that the court must
scrutinize the entire record to determine reasonableness of factual findings).
II.
Analysis
On appeal, Plaintiff raises three issues:
6
(1) The ALJ committed harmful error when he found that Ready’s mental
impairments were non-severe. Additionally, the ALJ’s methodology used in
determining the severity of Ready’s mental impairments is contrary to 20
C.F.R. §§ 404.1521, 416.921.
(2) The weight the ALJ assigned the findings and opinions of Ready’s treating and
examining physicians is not supported by substantial evidence.
(3) The [RFC] assessment is not supported by substantial evidence because it does
not account for limitations arising from Ready’s need for a hand-held assistive
device in violation of 20 C.F.R. §§ 404.1545(b), 416.945(b).
(Doc. 23 at 2-3). The Court addresses these issues below.
A.
Plaintiff’s Mental Impairments
The Court first addresses Plaintiff’s contention that the ALJ committed harmful error by
finding her medically determinable mental impairments to be non-severe. (Doc. 23 at 13-17).
Defendant disagrees, arguing that substantial evidence supports the ALJ’s severity assessment.
(Doc. 25 at 8-14).
On this issue, the Court notes that an impairment is “severe” under the Commissioner’s
regulations if it “significantly limits [a claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). According to the Eleventh Circuit, however,
“[n]othing requires that the ALJ must identify, at step two, all of the impairments that should be
considered severe.” Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010).
Rather, the ALJ must only consider the claimant’s impairments in combination, whether severe
or not. Id. If any impairment or combination of impairments qualifies as “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 v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)).
In this case, the ALJ made a determination that Plaintiff suffered from a number of severe
impairments including: history of fibromyalgia, history of hypothyroidism, history of migraines,
7
neck pain, chronic back pain without radiculitis, hip pain, leg pain with numbness, and obesity.
(Tr. at 15). 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. Rather, the only requirement is that the ALJ
considered all of 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. In fact, the record shows that the ALJ specifically
analyzed the severity of Plaintiff’s mental impairments and found the mental impairments were
non-severe. (Tr. at 15-18). Moreover, in making his RFC determination, the ALJ stated:
In making this finding, 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-Sp, 96-6p and 06-3p.
(Tr. at 19).
In sum, regardless of whether the ALJ erred in his conclusion that Plaintiff’s mental
impairments were non-severe, the record demonstrates that the ALJ considered Plaintiff’s mental
impairments in combination with Plaintiff’s other impairments. Therefore, the ALJ applied the
correct legal standard and did not err in failing to find Plaintiff’s mental impairments are severe,
or if he did err, the error was harmless. See Heatly, 382 F. App’x at 825.
Furthermore, while Plaintiff argues the ALJ failed to include any of her mental
impairments in the RFC assessment, the record shows that the ALJ properly considered
Plaintiff’s mental impairments in making his RFC assessment and that substantial evidence
supports the ALJ’s decision not to include mental impairments in the RFC determination. (See
Tr. at 15-25). Specifically, the ALJ determined that Plaintiff’s mental impairments “do not cause
8
more than minimal limitation in [Plaintiff’s] ability to perform basic mental work activities and
are therefore nonsevere.” (Tr. at 15-16). In making this finding, the ALJ stated that “[t]here are
quite simply a lack of medical records, which would support a finding of severity with regard to
the alleged mental impairments.” (Tr. at 16).
On this point, Plaintiff takes issue with the ALJ’s methodology. (See Doc. 23 at 13-14).
Plaintiff contends that the ALJ erred by making his determination based on a lack of records
rather than an analysis of the effects of the impairments on Plaintiff’s ability to work. (Id.). The
Court does not construe the ALJ’s statement regarding the “lack of medical records” as a
statement that the record is incomplete. (See Tr. at 16). Instead, the Court construes the ALJ’s
statement as concluding that the record evidence is insufficient to support another conclusion—
i.e., that Plaintiff’s mental impairments are severe. (See Tr. at 16).
Moreover, contrary to Plaintiff’s assertion, it appears that the ALJ did not fail to analyze
the effects of Plaintiff’s mental impairments on her ability to work. For instance, in making his
severity determination, the ALJ cited medical records from multiple sources, in addition to
Plaintiff’s testimony. (Tr. at 16-17). Upon review, these records – including the records from
Dr. Melissa Vilardebo, Bruce Crowell, Ph.D., Lee Mental Health Center, and Cheryl Kasprzak,
Psy.D. – do not suggest that Plaintiff has more than mild mental impairments. For example,
while Dr. Vilardebo noted that Plaintiff had poor concentration and thought block, the ALJ
nonetheless noted Dr. Vilardebo’s observation that Plaintiff’s thought process was mostly linear.
(Tr. at 16 (citing Tr. at 449)). Similarly, while Dr. Crowell’s records showed some memory
problems, the ALJ noted Dr. Crowell’s determination that Plaintiff’s thought process and content
were appropriate and that there was no indication of a thought disorder. (Tr. at 16 (citing Tr. at
472)). Further, while records from Lee Mental Health Center show that Plaintiff was admitted
9
into a crisis unit, the ALJ nonetheless noted that Plaintiff’s attention and concentration were
good and that Plaintiff did not have any suicidal tendencies. (Tr. at 16-17 (citing Tr. at 798821)). Moreover, at discharge, Plaintiff was noted to be calm and relaxed. (Tr. at 820).
Likewise, while records from Dr. Kasprzak showed that Plaintiff had thought content with
poverty, the ALJ noted that Plaintiff’s thought process was within normal limits. (Tr. at 17
(citing Tr. at 698)). In addition, the ALJ noted Plaintiff’s diagnostic testing, which suggested
Plaintiff was exaggerating symptoms and limitations related to her alleged mental impairments.
(Tr. at 17 (citing Tr. at 699-700)). In sum, the ALJ’s finding that Plaintiff can perform “basic
mental work activities” is supported by substantial evidence of record. (See Tr. at 16).
Further, the Court notes that the ALJ evaluated Plaintiff’s mental limitations using the
four functional areas of “paragraph B” criteria from 20 C.F.R., Part 404, Subpart P, Appendix 1.
(Tr. at 17). First, the ALJ evaluated activities of daily living. The ALJ determined that Plaintiff
only had mild impairments in this area because she can do such activities as care for her children,
prepare simple meals, perform household chores, and drive. (Tr. at 17-18). Second, the ALJ
evaluated Plaintiff’s social functioning, finding that Plaintiff only has mild limitations because
she can get along with authority figures and had not been fired or laid off due to getting along
with other people. (Tr. at 18). Third, the ALJ found that Plaintiff only had mild limitations with
the area of concentration, persistence, and pace. (Tr. at 18). Specifically, while acknowledging
that Plaintiff has some memory problems, the ALJ nevertheless cited Plaintiff’s testimony as
showing that she is a good historian. (Tr. at 18). Finally, the ALJ noted that Plaintiff had no
episodes of decompensation, the final area of review. (Tr. at 18). Based on only having mild
limitations in the first three areas and no episodes of decompensation in the fourth area, the ALJ
determined that Plaintiff’s mental impairments were non-severe. (Tr. at 18). Upon an
10
independent review of the record, including Plaintiff’s testimony, the Court cannot conclude that
the ALJ erred in making this determination.
Furthermore, while Plaintiff argues the ALJ erred by not including any limitations related
to her mental impairments in the RFC, the record shows that the ALJ considered Plaintiff’s
mental impairments, including the record evidence cited above, in determining Plaintiff’s RFC.
(See Tr. at 19-25). After his review, the ALJ declined to add any additional limitations in the
RFC determination related to Plaintiff’s alleged mental impairments. Upon an independent
review of the record including the evidence cited by the ALJ above, the Court finds that the
ALJ’s decision not to include additional impairments in the RFC analysis is supported by
substantial evidence. Thus, because substantial evidence supports the ALJ’s decision, the Court
affirms on this issue.
B.
The ALJ’s Review of the Medical Opinions
Plaintiff’s next argument is that the ALJ erred in his consideration of the medical
opinions of three physicians, Michele Candelore, Jonathan S. Daitch, and Michael Rosenberg.
(Doc. 23 at 17). Plaintiff argues that all three doctors “opined that the symptoms resulting from
[Plaintiff’s] impairments resulted in limitations equivalent to a less than sedentary level of
exertion.” (Id. (citations to the record omitted)). Plaintiff argues that, contrary to the ALJ’s
finding, these doctors’ “findings were not inconsistent with the record and are supported by
diagnostic testing.” (Id.). Thus, Plaintiff argues that the ALJ erred by assigning these opinions
little weight. (Id.).
Defendant disagrees, arguing that substantial evidence supports the ALJ’s decision.
(Doc. 25 at 20-23). Defendant argues that the ALJ fully considered the opinion evidence and
11
properly gave these opinions little weight because the opinions were not well supported or
consistent with the record evidence as a whole. (Id.).
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. See 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2). When evaluating a medical opinion, the factors an ALJ must
consider include: (1) whether the doctor has examined the claimant; (2) the length, nature, and
extent of a treating doctor’s relationship with the claimant; (3) the medical evidence and
explanation supporting the doctor’s opinion; (4) how consistent the doctor’s opinion is with the
record as a whole; and (5) the doctor’s specialization. Denomme v. Comm’r, Soc. Sec. Admin.,
518 F. App’x 875, 877 (11th Cir. 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(c)).
An ALJ is required to consider every medical opinion. Bennett v. Astrue, No. 308-cv646-J-JRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing 20 C.F.R. §§ 404.1527(d),
416.927(d)). Additionally, the Eleventh Circuit has stated that an ALJ must state with
particularity the weight given to different medical opinions and the reasons therefor. Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Otherwise, the Court has no way to
determine whether substantial evidence supports the ALJ’s decision, and the Court will not
affirm simply because some rationale might have supported the ALJ’s conclusion. See id.
Nonetheless, an incorrect application of the regulations will result in harmless error if a correct
application of the regulations would not contradict the ALJ’s ultimate findings. Denomme, 518
F. App’x at 877-78 (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).
12
Further, 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) the
evidence supported a contrary finding; or (3) the treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records. 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)).
The Court evaluates the medical opinions at issue in turn below.
i.
Dr. Michele Candelore and Dr. Jonathan S. Daitch
Plaintiff first argues that the ALJ erred in his review of the opinions of Plaintiff’s treating
physicians, Dr. Candelore and Dr. Daitch. (Doc. 23 at 17-18). Plaintiff specifically argues that
Dr. Candelore’s and Dr. Daitch’s findings are not inconsistent with the record and that the ALJ
chose to ignore the doctor’s treatment relationship with Plaintiff. (Id.).
Upon review, however, the Court finds that Plaintiff has not explained how the ALJ erred
in finding that Dr. Candelore’s and Dr. Daitch’s records are inconsistent with the record or that
the ALJ ignored the doctor’s treatment relationship. In her briefing, Plaintiff only recounts the
types of conditions these doctors treated. (Id.). Because Plaintiff only states what types of
treatment these doctors performed instead of explaining how these doctors’ opinions are
consistent with other medical evidence of record, Plaintiff did not met her burden of showing
that the ALJ erred. The Court has no basis to conclude that the ALJ erred.
13
Notwithstanding this finding, the Court nevertheless finds that the ALJ had “good cause”
to discount Dr. Candelore’s and Dr. Daitch’s opinions, including their opinions that Plaintiff has
limitations equivalent to less than a sedentary level of exertion. (See Tr. at 924-25, 927-28). 4 As
stated above, good cause exists to discount the treating physician’s opinion when (1) a treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) a treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records. See Phillips, 357 F.3d at 1240-41. In this instance, the record evidence
supports the ALJ’s contrary conclusion that Plaintiff is capable of more than sedentary work—
i.e., light work. (See Tr. at 19).
For instance, the ALJ cited objective medical evidence – including diagnostic imaging
studies showing only minimal findings – in support of his RFC finding that Plaintiff can perform
light work. (See Tr. at 23). As noted by the ALJ, an X-ray of the hip from May 2008 showed no
arthritis and no dislocations or fractures. (See Tr. at 20 (citing Tr. at 612)). Similarly, an MRI
from July 2008 of the lumbar spine showed essentially normal findings and no evidence of nerve
root compression. (See Tr. at 20 (citing Tr. at 606-607)). Diagnostic records from February
2011 also showed only minor issues. (See Tr. at 21 (citing Tr. at 528)). In fact, the attending
physician at that time could not find any particular pathology from imaging that would cause
Plaintiff’s pain. (See Tr. at 21 (citing Tr. at 528)). Additional imaging from October and
November 2011 showed only mild issues. (See Tr. at 21 (citing Tr. 495-96, 499-501)).
4
“Sedentary work” is defined by the regulations as “lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. §§
404.1567, 416.967. Additionally, the regulations state “[a]lthough a sedentary job is defined as
one which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.” Id.
14
Likewise, imaging from October 2012 also show only mild findings. (See Tr. at 22 (citing Tr. at
901-902)). In sum, because the objective medical evidence, including diagnostic imaging
studies, appears to show only minimal findings, this provides substantial evidence in support of
the ALJ’s RFC finding that Plaintiff can perform light work. (See Tr. at 19).
Additionally, in making his RFC finding, the ALJ also cited Plaintiff’s conservative
treatment history, the significant treatment gaps in Plaintiff’s medical history, and Plaintiff’s
daily activities in support of a finding that Plaintiff can perform a reduced range of light work.
(Tr. at 19-25). These reasons are not rebutted by Plaintiff. (See Doc. 23 at 17-19; Doc. 31 at 14). Thus, these reasons also provide substantial evidence in support of the ALJ’s RFC findings.
Furthermore, while Plaintiff argues that the ALJ ignored the doctors’ treating relationship
with Plaintiff, (Doc. 23 at 18), the Court notes that treatment relationship is only one factor an
ALJ weighs when considering the opinion evidence. See 20 C.F.R. §§ 404.1527(c), 416.927(c).
For instance, another important factor an ALJ considers is supportability. Id. Here, however, the
Court finds that the record evidence supports a contrary conclusion.
In sum, the Court finds that the record evidence supports a contrary finding and that the
opinions of Dr. Candelore and Dr. Daitch were not bolstered by the evidence. Thus, good cause
exists to discount Dr. Candelore’s and Dr. Daitch’s opinions. See Phillips, 357 F.3d at 1240-41.
Accordingly, the Court finds that substantial evidence supports the ALJ’s decision and that the
ALJ did not err on this ground.
ii.
Dr. Michael Rosenberg
Plaintiff next contends that the ALJ erred in finding that the opinion of Dr. Rosenberg, a
consultative examining physician, was only entitled to little weight. (Doc. 23 at 18-19). Plaintiff
argues that “the examination and findings from Dr. Rosenberg, who is a specialist in neurology,
15
should be given greater weight than the opinions of non-specialists.” (Id. at 19 (citing 20 C.F.R.
§§ 404.1527(d)(5), 416.927 (d)(5))). Plaintiff argues that the ALJ erred by “assigning only ‘little
weight’ to Dr. Rosenberg’s opinions and by giving ‘great weight’ to Glenn Bigsby, a nonexamining state agency examiner.” (Id.).
Upon review, however, the Court finds that the ALJ articulated sufficient reasons for
giving the opinion of Dr. Rosenberg little weight. See Winschel, 631 F.3d at 1179. For instance,
while Dr. Rosenberg opined that Plaintiff had significant limitations in lifting and carrying, (Tr.
at 689), the ALJ cited Plaintiff’s mild diagnostic findings, conservative treatment history, the
significant treatment gaps in Plaintiff’s medical history, and Plaintiff’s daily activities in support
of a finding that Plaintiff can, instead, perform a reduced range of light work. (See Tr. at 19-25).
These reasons – unrebutted by Plaintiff – provide substantial evidence in support the ALJ’s RFC
findings. Because substantial evidence supports a contrary conclusion to Dr. Rosenberg’s
opinion, the Court cannot find that the ALJ erred in the weight he assigned to the opinion.
Furthermore, while specialization is one factor an ALJ considers in assigning weight to
the medical evidence, it is not the only factor. See 20 C.F.R. §§ 404.1527(c), 416.927(c). Other
factors include supportability, length of the treatment relationship, and frequency of examination.
Id. As a result, specialization – standing alone – is insufficient to grant more weight to Dr.
Rosenberg’s opinion. See id. Moreover, as indicated above, the medical evidence of record
supports a contrary conclusion to Dr. Rosenberg’s findings that Plaintiff can only perform
sedentary work. (See Tr. at 689-94). Thus, although the state agency medical consultant, Glenn
Bigsby, may not have had the same level of specialization as Dr. Rosenberg, specialization is
insufficient to overcome the other evidence of record that supports Bigsby’s conclusions that
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Plaintiff can perform more than sedentary work. (See Tr. at 462-69). Accordingly, the Court
cannot conclude the ALJ erred on this ground.
C.
Plaintiff’s Need for a Handheld Assistive Device
Plaintiff’s final contention is that the ALJ’s RFC assessment is not supported by
substantial evidence because it does not account for limitations arising from Plaintiff’s need for a
hand-held assistive device in violation of 20 C.F.R. §§ 404.1545(b), 416.945(b).” (Doc. 23 at
19). Plaintiff argues that, while the ALJ evaluated Plaintiff’s need for a cane, the ALJ erred in
his conclusions on this issue. (Id. at 20).
First, Plaintiff specifically takes issue with the ALJ’s conclusion that “[m]ore than one
physician did not believe her cane was medically necessary.” (Id. (citing Tr. at 23)). Plaintiff
states that, while Dr. Candelore firmly asserted that Plaintiff required a hand-held assistive
device in order to ambulate independently, other physicians’ opinions of record – including those
of Dr. Eshan M. Kibria and Dr. Rosenberg – reflected uncertainty. (Id. (citing Tr. at 439, 443)).
Plaintiff contends that “Dr. Kibria merely stated that [Plaintiff’s] use of a cane did not ‘seem’
medically necessary.” (Id. (citing Tr. at 443)). Plaintiff further notes that another doctor – Dr.
Rosenberg – provided inconsistent findings regarding the need for a hand-held assistance device.
(Id. (citing Tr. at 685, 690)). For instance, Dr. Rosenberg opined that Plaintiff’s use of a cane
“did not appear to be medically necessary,” and he also checked a box “no” in response to a
question of whether a cane is medically necessary. (Id. 20-21 (citing Tr. at 685, 690)).
Nonetheless, Plaintiff notes that, in another section, Dr. Rosenberg stated that Plaintiff required
“the use of a cane to ambulate” and could only ambulate 10 minutes without a cane. (Id. (citing
Tr. at 685, 690)). Plaintiff argues that “Dr. Rosenberg’s contradictory findings and Dr. Kibria’s
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ambivalence cannot be logically equivalent to what the ALJ characterizes as ‘more than one
physician’ concluding that Ready’s cane is not medical necessary.” (Id. at 21 (citing Tr. at 23)).
Additionally, Plaintiff takes issue with the ALJ’s finding that “there are no objective
medical records to support [Plaintiff’s] use of the cane.” (Id.). Plaintiff argues that the medical
evidence of record establishes “regular treatment for hip, back and bilateral leg pain frequently
affecting her gait.” (Id. (citing Tr. at 421-437, 492-529, 544-98, 682-94, 707-97, 822-925, 92942)). Thus, Plaintiff argues the ALJ’s conclusion is inconsistent with the record. (Id.).
Defendant disagrees, arguing that substantial evidence supports the ALJ’s decision.
(Doc. 25 at 19). Furthermore, Defendant argues that, even if the ALJ erred in failing to include
an additional limitation for Plaintiff to use a cane, any error would be harmless. (Id. (citing Tr. at
139)). Specifically, Defendant argues that the VE identified jobs that Plaintiff could perform
even if additional limitations, including the use of a cane, were included in Plaintiff’s RFC. (See
id. (citing Tr. at 139)).
Upon review, the Court agrees with Defendant and finds that the ALJ did not err on this
issue. As an initial matter, the Court specifically disagrees with Plaintiff’s contention that the
record fails to show that more than one physician did not believe a cane was medically
necessary. First, the record shows that Dr. Kibria stated that Plaintiff’s “[c]ane does not seem
medically necessary.” (Tr. at 443). While there might be a hint of uncertainty in this statement,
Dr. Kibria’s statement certainly does not establish the converse—i.e., that a cane is medically
necessary. See id. Furthermore, while Dr. Rosenberg made seemingly contradictory findings
about Plaintiff’s need for a cane, (see Tr. at 685, 690), it cannot be disputed that Dr. Rosenberg
specifically checked a box indicating that the use of a cane is not medically necessary. (Tr. at
690). After the ALJ reviewed this evidence, he found that “[m]ore than one physician did not
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believe her cane was medically necessary.” (Tr. at 23). The Court cannot say that the ALJ erred
in making this determination.
Furthermore, even if the ALJ did err on this ground, any error would be harmless. As
noted above, an incorrect application of the regulations will result in harmless error if a correct
application of the regulations would not contradict the ALJ’s ultimate findings. Denomme, 518
F. App’x at 877-78. Here, Plaintiff failed to show how any potential error by the ALJ was
harmful because Plaintiff has not shown how any need for a cane would contradict the ALJ’s
ultimate finding that Plaintiff is not disabled. Specifically, a review of the transcript from the
hearing shows that the VE identified jobs that Plaintiff could perform even if additional
limitations, including the use of a cane, were included in Plaintiff’s RFC. (Tr. at 139). As a
result, even if the ALJ failed to include the additional limitation in Plaintiff’s RFC that a cane
would be required, this error was harmless because it would not change the ALJ ultimate finding
that Plaintiff is not disabled. See Denomme, 518 F. App’x at 877-78. Accordingly, the Court
affirms as to this issue.
III.
Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g). The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the case.
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DONE AND ORDERED in Fort Myers, Florida on September 27, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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