Eubanks v. Commissioner of Social Security
Filing
23
OPINION AND ORDER reversing and remanding 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 further details. Signed by Magistrate Judge Mac R. McCoy on 5/23/2018. (JTM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DEWEY L. EUBANKS,
Plaintiff,
v.
Case No: 2:17-cv-182-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause comes before the Court on Plaintiff Dewey Eubanks’ Complaint (Doc. 1) filed
on March 31, 2017. Plaintiff seeks judicial review of the final decision of the Commissioner of
the Social Security Administration denying his claims for a period of disability and disability
insurance benefits. 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 REVERSED AND REMANDED pursuant to § 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
I.
Social Security Act Eligibility, Procedural History, 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); 20 C.F.R. § 404.1505. 1 The impairment must be
severe, making the claimant unable to do his previous work, or any other substantial gainful
activity that exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505 404.1511. 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
On January 23, 2014, Plaintiff filed an application for period of disability and disability
insurance benefits with an alleged onset date of January 7, 2012. (See Tr. at 71, 225). The
application was denied initially on April 16, 2014 and upon reconsideration on August 1, 2014.
(Tr. at 135, 150). A video hearing was held before Administrative Law Judge (“ALJ”) Rosanne
M. Dummer on December 23, 2015. (Tr. at 91-125). The ALJ issued an unfavorable decision
on February 18, 2016. (Tr. at 68-90). The ALJ found that Plaintiff had not been under a
disability from January 7, 2012 through the date of the decision. (Tr. at 84).
On February 22, 2017, the Appeals Council denied Plaintiff’s request for review. (Tr. at
1-7). Plaintiff filed a Complaint (Doc. 1) in this Court on March 31, 2017. Defendant filed an
Answer (Doc. 11) on July 17, 2017. The parties filed a Joint Memorandum, setting forth their
positions and arguments on the issues. (Doc. 22). The parties consented to proceed before a
United States Magistrate Judge for all proceedings. (See Doc. 16). This case is ripe for review.
1
The Court notes that the Social Security regulations were recently revised. See Revisions to
Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan. 18, 2017).
Unless otherwise specified, the Court refers to the regulations in effect at the time of the
Administrative Law Judge’s decision.
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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).
As an initial matter, the ALJ found that Plaintiff met the insured status requirements of
the Social Security Act though December 31, 2018. (Tr. at 73). At step one of the sequential
evaluation, the ALJ found that Plaintiff had engaged in substantial gainful activity during the
following period, August 2012 through August 2013. (Id.). The ALJ found, however, that there
was “a continuous 12-month period(s) during which the claimant did not engage in substantial
gainful activity.” (Tr. at 74). Thus, the ALJ’s “remaining findings address the period(s) the
claimant did not engage in substantial gainful activity.” (Id.).
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
“left shoulder tendinopathy and cervical and lumbar degenerative disc disease with low back
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.
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strain.” (Id.). 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
and 404.1526)). (Tr. at 75).
Based on the evidence, the ALJ determined that Plaintiff had the RFC to perform “light
work” except:
[Plaintiff] is able to lift/carry twenty pounds occasionally and ten pounds
frequently; sit about six of eight hours; and stand/walk about six of eight hours. He
could occasionally climb, balance, stoop, kneel, crouch, and crawl. He should
avoid ladders, ropes, and scaffolds and should not work around unprotected heights.
[Plaintiff] could reach overhead on an occasional basis.
(Id.).
At step four, the ALJ determined that Plaintiff could perform his past relevant work as a
front desk clerk. (Tr. at 82). The ALJ found that this work does not require the performance of
work-related activities precluded by Plaintiff’s RFC. (Id.). In comparing Plaintiff’s RFC with
the physical and mental demands of this work, the ALJ found that Plaintiff is able to perform the
job of front desk clerk as it is actually and generally performed. (Id.). Of note, however, the
ALJ made no finding that Plaintiff could return to his past relevant work as a firefighter or
warehouse worker. (See id.).
Although not required to proceed to step five, the ALJ made alternative findings for step
five. (See id.). At step five, considering Plaintiff’s age, education, work experience, and RFC,
the ALJ found that there are other jobs that exist in significant numbers in the national economy
that Plaintiff can perform. (Id.). Specifically, the ALJ asked the vocational expert (“VE”)
whether jobs exist in the national economy for an individual with Plaintiff’s age, education, work
experience, and RFC. (Id.). The VE testified that someone with Plaintiff’s age, education, work
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experience, and RFC would be able to perform the requirements of representative occupations at
the light level such as “(1) price marker (DOT code: 209.587-034), 280,000; (2) routing clerk
(DOT code: 222.587-038), 54,000; and (3) small parts assembler (DOT code: 706.684-022),
67,000.” (Tr. at 83). Additionally, at the sedentary level, the VE testified that representative
occupations include “(1) document preparer (DOT code: 249.587-018), 46,000; (2) toy stuffer
(DOT code: 731.685-014), 50,000; (3) printed circuit board screener (DOT code: 726.684-110),
24,000; (4) administrative support worker (DOT code: 209.587-010), 7,500; and (5)
pharmaceutical processor (DOT code: 559.687-034), 9,000.” (Id.).
The ALJ noted the VE’s testimony “that if an individual needed to change positions at
the workstation, then the job of routing clerk would be precluded. The job of front desk clerk
would be reduced by 50% to 77,500. All other jobs would remain.” (Id.). The VE also
“explained that she has placed many people in that type of job and that half of the duties
performed at the light level would require an individual to be on his feet.” (Id.).
The ALJ further found that the evidence did not support a finding that Plaintiff would (1)
be off task for 25% of the workday, (2) need to take unscheduled breaks about two to three times
a day away from the workstation, in addition to regularly scheduled breaks, or (3) miss work
about three to four days a month. (Id.). The ALJ found that “[n]o evidence indicates that the
claimant would require more than the customary work breaks for the jobs above.” (Id.). The
ALJ also rejected Plaintiff’s counsel’s hypotheticals. (Tr. at 84).
The ALJ noted that the VE obtained job numbers using Job Browser Pro, a software
program based on Bureau of Labor statistics of the Department of Labor. (Tr. at 83). The ALJ
stated that the “job numbers were given based on the DOT codes specific to the jobs identified
and did not reflect an entire Standard Occupational Classification.” (Id.). The VE testified “that
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the numbers given were estimates and not exact numbers, as the numbers are released annually
based on estimates provided by employers.” (Tr. at 83-84). Additionally, the ALJ stated that
“the software program [the VE] used was updated as of April 2015 and was representative of
numbers from May 2014.” (Tr. at 84). The ALJ noted the VE’s belief that it was a reliable
program. (Id.). The ALJ also noted that the Social Security Administration has recognized Skill
TRAN, Job Browser Pro as an acceptable electronic version of the of the DOT when preparing
vocational determinations. (Id.).
Pursuant to Social Security Ruling (“SSR”) 00-4p, the ALJ determined that the VE’s
testimony is not inconsistent with the information contained in the Dictionary of Occupational
Titles. (Id.). The ALJ found that “[a]ny discrepancies the vocational expert explained were
based on her training, education, and experience in this specialized field.” (Id.). Based on the
VE’s testimony, the ALJ found that Plaintiff was capable of making a successful adjustment to
other work that exists in significant numbers in the national economy. (Id.). Thus, the ALJ
found that a finding of “not disabled” was appropriate. (Id.).
Accordingly, the ALJ concluded that Plaintiff was not under a disability from January 7,
2012, through the date of this decision. (Id.).
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
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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
Plaintiff raises four issues on appeal, which are summarized as follows:
1. The ALJ’s decision is unsupported by substantial evidence because she
relied upon the VE’s testimony regarding job numbers which came from an
unreliable source.
2. The ALJ incorrectly found that the Plaintiff could perform his past relevant
work as front desk clerk.
3. The ALJ improperly failed to include limitations due to the Plaintiff’s
migraine headaches.
4. The ALJ improperly rejected the functional capacity evaluation of James
Stoeberl.
(Doc. 22 at 11-35). The Court addresses these issues below, beginning with Mr. Stoeberl’s
evaluation.
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A.
The RFC Evaluation by James Stoeberl
Plaintiff argues that the ALJ improperly rejected the functional capacity evaluation of
James Stoeberl, a physical therapist. (Doc. 22 at 29). Plaintiff contends that the ALJ’s sole
ground for rejecting the opinion was that it “appear[ed] to be based on the claimant’s subjective
complaints.” (Id. (citing Tr. at 81)). Plaintiff argues, however, that Mr. Stoeberl’s report shows
that he performed reliability testing, which testing showed only minor inconsistencies with the
functional capacity evaluation. (Id. (citing Tr. at 714)). Plaintiff argues that “the ALJ otherwise
did not elaborate why she believed Mr. Stoeberl’s opinion and report were based on the
Plaintiff’s subjective complaints.” (Id.).
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence because
she failed to include Mr. Stoeberl’s limitations in the hypothetical questions to the VE. (Id. at
30). For instance, Plaintiff states that Mr. Stoeberl found that Plaintiff could only perform
occasional fingering, yet the jobs listed by the VE require frequent fingering. (Id.).
Defendant disagrees with Plaintiff, arguing that the ALJ properly evaluated the medical
evidence of record and that substantial evidence supports the ALJ’s RFC finding. (Id. at 30-32).
Moreover, Defendant argues that the ALJ properly assigned little weight to Mr. Stoeberl’s
opinion because he was a physical therapist, who is not an “acceptable medical source.” (Id. at
32 (citing 20 C.F.R. § 404.1513(a)). Because Mr. Stoeberl is not an acceptable source,
Defendant argues that he could not render a “medical opinion.” (Id. (citing 20 C.F.R. §§
404.1513(a), 404.1527(a)(2))). As a result, Defendant argues that the evidence from Mr.
Stoeberl is not entitled to any deference. (Id.). Instead, Defendant contends that “Mr. Stoeberl is
simply considered an ‘other source,’ and the ALJ may consider the evidence from him.” (Id.
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(citing 20 C.F.R. § 404.1513(d)). Defendant maintains that “[t]his is precisely what the ALJ did
in this case.” (Id.).
In evaluating this issue, the Court notes that the Social Security regulations define
“medical opinions” as “statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [the claimant’s]
impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the claimant’s] physical or mental restrictions.”
20 C.F.R. § 404.1527(a)(2) (emphasis added). As noted above, “acceptable medical sources”
include professionals such as licensed physicians and licensed psychologists. Id. § 404.1513(a).
Physical therapists are not acceptable medical sources. See 20 C.F.R. § 404.1513(a). Instead,
they are considered an “other source.” See id. § 404.1513(d).
As an “other source,” opinions from physical therapists are not considered “medical
opinions” under the regulations. See SSR 06-03p, 2006 WL 2329939, at *2. Further, under the
regulations, only the opinions of acceptable medical sources may be given controlling weight.
See 20 C.F.R. § 404.1527; see also SSR 06-03p, 2006 WL 2329939, at *2. Moreover, “an ALJ
is not required to accept the opinion of an individual who is not listed as an acceptable source of
medical evidence.” Berry v. Astrue, No. 509-cv-328-OC-GRJ, 2010 WL 3701392, at *8 (M.D.
Fla. Sept. 15, 2010) (citing SSR 06-03p; Frantz v. Astrue, 509 F.3d 1299 (10th Cir. 2007); 20
C.F.R. §§ 404.1513(d), 416.913(d)).
Under Agency guidelines, however, while information from other sources “cannot
establish the existence of a medically determinable impairment,” the information from other
sources “may provide insight into the severity of the impairment(s) and how it affects the
individual’s ability to function.” SSR 06-03p, 2006 WL 2329939, at *2. Indeed, while physical
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therapist’s opinions are not entitled to any special consideration, this Court has stated that their
opinions are “important and should be evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in the file.” Berry, 2010 WL 3701392,
at *8 (citing SSR 06-03p; Frantz, 509 F.3d at 1299; 20 C.F.R. §§ 404.1513(d), 416.913(d)).
Against this backdrop, the Court finds that the ALJ failed to consider Mr. Stoeberl’s
opinion properly and erred in discounting it. As an initial matter, however, Defendant is correct
on a number of grounds. Indeed, as a physical therapist, Mr. Stoeberl is not an acceptable
source, meaning that he cannot render a “medical opinion.” See 20 C.F.R. §§ 404.1513(a);
404.1527(a)(2). Moreover, because Mr. Stoeberl is a physical therapist, the evidence from Mr.
Stoeberl is not entitled to any special deference. (Id.). Further, because Mr. Stoeberl is not an
acceptable source of medical evidence, the ALJ was not required to accept his opinion. See
Berry, 2010 WL 3701392, at *8 (citing SSR 06–03p; Frantz, 509 F.3d 1299 (10th Cir. 2007); 20
C.F.R. §§ 404.1513(d), 416.913(d)).
Yet this Court has noted previously that opinions from physical therapists are “important
and should be evaluated on key issues such as impairment severity and functional effects, along
with the other relevant evidence in the file.” Id. In this instance, the ALJ did not evaluate Mr.
Stoeberl’s opinion on the key issues of impairment severity or functional effects. See id. In fact,
the ALJ’s only comment on Mr. Stoeberl’s opinion was that Plaintiff had a Functional Capacity
Evaluation on April 15, 2014, where Plaintiff was found to be limited to sedentary work. (Tr. at
81 (citing Tr. at 713-716)). The ALJ found that this opinion was entitled to little weight because
it appeared to be based on Plaintiff’s subjective complaints. (Id.).
As pointed out by Plaintiff, however, this statement appears to be factually inaccurate.
(See Doc. 22 at 29). Indeed, Mr. Stoeberl’s report reveals that he performed reliability testing,
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which testing showed only minor inconsistencies with Plaintiff’s subjective complaints. (See Tr.
at 714). The presence of reliability testing contradicts the ALJ’s conclusion that the report is
based primarily on Plaintiff’s subjective complaints. (See Tr. at 81). Instead, the report appears
to be based on both subjective and objective data. (See Tr. at 713-16).
Because the ALJ failed to analyze the key issues of impairment severity and functional
effects in addition to the apparently factually incorrect conclusion regarding Mr. Stoeberl’s
opinion, the Court does not know whether Plaintiff’s impairments were more severe or whether
Plaintiff has additional functional effects not included in the RFC. As noted by Plaintiff, for
example, Mr. Stoeberl opined that Plaintiff could only perform occasional fingering. (Tr. at
715). The RFC, however, did not include any limitations as to fingering. (Tr. at 75). Any
additional limitations would impact the ALJ’s analysis at step four and step five. As a result, the
Court cannot find that the ALJ’s error is harmless.
As a final matter, the Court notes that the ALJ was under no obligation to include
additional limitations unsupported by the record. Nonetheless, the Court cannot overlook what
occurred here given that the ALJ did not properly evaluate Mr. Stoeberl’s opinion. Indeed, the
Eleventh Circuit has held that “a court may not accept . . . counsel’s post hoc rationalizations for
agency actions.” Baker v. Commissioner of Soc. Sec., 384 F. App’x 893, 896 (11th Cir. 2010)
(citation omitted); see also Williams v. Comm’r of Soc. Sec., No. 6:13-CV-1667-ORL-GJK, 2015
WL 1003852, at *2 n.3 (M.D. Fla. Mar. 6, 2015). Instead, “[i]f an action is to be upheld, it must
be upheld on the same bases articulated in the agency’s order.” Id. As a result, the Court need
not accept the Commissioner’s post-hoc rationalization for the agency’s actions. See Baker, 384
F. App’x at 896. Furthermore, the Court will not affirm simply because some rationale might
have supported the ALJ’s conclusion. See Denomme v. Comm’r, Soc. Sec. Admin., 518 F. App’x
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875, 877 (11th Cir. 2013). Here, the Court declines to adopt the ALJ’s conclusions even though
some other rationale might have supported them. See id.
Based on the foregoing, the Court reverses and remands the decision of the
Commissioner. On remand, the ALJ should evaluate Mr. Stoeberl’s opinion with regard to
Plaintiff’s impairment severity and functional effects, along with the other relevant evidence of
record.
B.
Plaintiff’s Remaining Arguments
Plaintiff’s remaining arguments focus on a number of issues that cannot be resolved until
it is clear to the Court that the ALJ properly considered the entire medical evidence of record.
Indeed, because a re-evaluation of this evidence may impact the analysis of other elements of the
ALJ’s decision – including the RFC determination – the Court finds that any ruling on Plaintiff’s
remaining arguments is premature at this time. Upon remand, the ALJ must reevaluate the entire
medical evidence of record in evaluating Plaintiff’s case.
III.
Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is not supported by substantial evidence.
Accordingly, the Court hereby ORDERS that:
1) The decision of the Commissioner is REVERSED AND REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g) for the Commissioner to review the entire
medical evidence of record, including Mr. Stoeberl’s opinion.
2) The Clerk of Court is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the case.
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3) 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 May 23, 2018.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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