Crecelius v. Commissioner of Social Security

Filing 21

ORDER adopting 18 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Rick Crecelius. Plaintiff's Objections to the United States Magistrate Judge's Report and Recommendation (Doc. 19 ) are OVERRULED. United States Magistrate J udge Carol Mirando's Report and Recommendation (Doc. 18 ) is ADOPTED and ACCEPTED and the findings incorporated herein. The Commissioner of Social Security's decision is AFFIRMED. The Clerk of Court is DIRECTED to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner of Social Security, and to close the file. Signed by Judge Sheri Polster Chappell on 8/24/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICK CRECELIUS,
Plaintiff,
v.

Case No: 2:17-cv-320-FtM-99CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER1
Before the Court is United States Magistrate Judge Carol Mirando’s Report and
Recommendation (“R&R”), recommending that the Commissioner of Social Security’s
decision to deny Plaintiff Rick Crecelius disability and disability insurance benefits (“DIB”)
be affirmed.

(Doc. 18).

Crecelius objects to the R&R (Doc. 19), to which the

Commissioner has responded (Doc. 20). For the reasons set forth below, the Court
accepts and adopts the Report and Recommendation and overrules Plaintiff’s objections.
BACKGROUND
The Court adopts the factual background detailed in the R&R. (Doc. 18, pp. 2-4).
For brevity’s sake, the Court will briefly outline the procedural background. On July 25,
2013, Crecelius applied for a period of disability and DIB due to essential tremors, arthritis

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both legs, and high blood pressure. (Doc. 14-3, p. 90). He alleged a disability onset date
of January 1, 2013 (id. at 191), which was amended to April 24, 2014 (id. at 215).
His application was denied initially and upon reconsideration.

Thereafter,

Crecelius filed a written request for a hearing. After a hearing, Administrative Law Judge
(“ALJ”) William G. Reamon denied Crecelius’ application having found that he was not
disabled. (Doc. 14-2, pp. 17-26). The Appeals Council denied Crecelius’ request for
review, making the ALJ’s decision the Commissioner’s final decision. Thereafter, Plaintiff
filed the instant appeal.
LEGAL STANDARDS
A. Review of the Magistrate Judge’s Report and Recommendation
In reviewing a report and recommendation, the district court “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). When a party makes
specific objections to a magistrate judge’s report, the district court engages in a de novo
review of the issues raised. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
B. Review of the ALJ’s Decision
This Court’s review of the Commissioner’s decision is limited to evaluating whether
substantial evidence supports the decision and whether the ALJ applied the proper legal
standards. See Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
This review is de novo. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)
(citing

Chester

v.

Bowen,

792

F.2d

129,

131

(11th

Cir.

1986)).

“Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Crawford v.

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Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan,
125 F.3d 1436, 1439 (11th Cir. 1997)). “[The Court] may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005) (citing Phillips v. Barnhart, 357 F.3d 1232, n. 8 (11th
Cir. 2004)). The ALJ’s decision must be affirmed if it is supported by substantial evidence,
even if the Court finds that the evidence more likely supports a different conclusion. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990)).
DISCUSSION
After an independent review of the complete record, Joint Memorandum, and
applicable case law, the Court finds the R&R to be well reasoned, thorough, and legally
sound. The Court thus accepts it. Plaintiff raises three objections to the R&R (Doc. 19),
offering little more than a reiteration of the arguments made in the parties’ Joint
Memorandum (Doc. 17). The Court addresses the objections below.
A. Residual Functional Capacity (RFC) Assessment
Plaintiff argues that the ALJ did not adequately address Plaintiff’s right leg
impairment, obesity, and manipulative limitations in the RFC assessment. To determine
whether a claimant can perform his past relevant work, the Commissioner makes a finding
as to the claimant’s RFC. See 20 C.F.R. § 404.1520(e). An RFC is the most a claimant
can still do despite the physical and mental limitations resulting from his impairments. See
20 C.F.R. § 404.1545(a); Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004).
The ALJ found that Plaintiff had the following severe impairments: essential
tremors, status-post left lower extremity fractures/surgeries with residual arthrosis of the

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tibiotalar joint and suprapatellar joint region with bone infarction in the proximal tibial
metaphyseal region; fracture of the right femoral shaft with intramedullary nailing; and
obesity. (Doc. 14-2, p. 19). The ALJ then found that Plaintiff has the residual functional
capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except occasionally
climb ramps and stairs; never climb ladders, ropes and scaffolds; occasionally kneel,
crouch and crawl; frequent handling and fingering; the need to avoid concentrated
exposure to extreme cold and humidity; and the need to avoid concentrated exposure to
hazards (e.g., dangerous moving machinery, unprotected heights, etc.). (Id. at 22).
Plaintiff argues the ALJ erred in according “great weight” to the opinion of state
agency consultant Debra Troiano, M.D. who opined on January 1, 2014 that Plaintiff could
lift 20 pounds occasionally and 10 pounds frequently and stand/walk six hours and sit six
hours in an eight-hour workday. (Doc. 14-2, pp. 105-06). Dr. Troiano also opined Plaintiff
could climb ramps/stairs occasionally; never climb ladders, ropes or scaffolds; and stoop,
kneel and crouch occasionally.2 (Id.) Plaintiff argues that because Dr. Troinao offered
her opinion before Plaintiff fractured his right femoral shaft and underwent intramedullary
nailing surgery with Dr. Patrick Leach in May 2014, the ALJ improperly relied on opinion
evidence that did not contemplate the additional limitations imposed by Plaintiff’s right leg
fracture and nailing surgery.

Plaintiff also alleges that he became obese after Dr.

Troiano’s review, which she did not take into account. In support, Plaintiff cites FlentroyTennant v. Astrue, No. 3:07-cv-101-J-TEM, 2008 WL 876961 at *8 (M.D. Fla. Mar. 27,
2008), which states that the “ALJ is required to build an accurate and logical bridge from
the evidence to his or her conclusion” and the ALJ analysis must be sufficiently articulated

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These are the limitations adopted by the ALJ in the RFC.

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for the Court to determine if the requisite accurate and logical bridge from the evidence
to the conclusion exists.
Contrary to Plaintiff’s argument the RFC does account for Plaintiff’s leg
impairments following his right leg fracture and nailing surgery, as well as his obesity.
The ALJ explicitly recognized Plaintiff was obese and explained that he “considered the
effects of [Plaintiff’s] overall body habitus in establishing the residual factional capacity.”
(Doc. 14-2, p. 22). The ALJ also discussed Plaintiff’s obesity and the evidence pertaining
to Plaintiff’s leg impairments, including his May 2014 surgery in his RFC analysis. (Id. at
23-24). The ALJ noted that in June 2014, Dr. Leach indicated Plaintiff could progress to
weight bearing as tolerated and at an August 2014 follow up, Dr. Leach “encouraged him
to continue to advance his activities as he can tolerate.” (Id. at 24, 346-47). Although Dr.
Troiano’s opinion predated Plaintiff’s May 2014 surgery, her opinion was supported by
Dr. Leach’s treatment records (which the ALJ noted) and Plaintiff’s testimony that Dr.
Leach only limited him to lifting over 20 pounds and then released him back to work at
Home Depot in September or October 2014. (Id. at 25, 74, 69-80).
After an independent review, the Court finds that substantial evidence supports the
ALJ’s findings regarding Plaintiff’s RFC.

The ALJ properly considered the relevant

medical and other evidence in determining Plaintiff’s RFC and included limitations that
accounted for Plaintiff’s leg and obesity problems. See 20 C.F.R. 404.1545(a)(3). The
objections are overruled.
B. Plaintiff’s Credibility
Plaintiff next argues that the ALJ’s assessment of Plaintiff’s credibility is not
supported by substantial evidence as required by 20 C.F.R. § 404.1529. Plaintiff states

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that the ALJ did not provide any discussion as to why he did not accept the Plaintiff’s
testimony concerning his pain levels and tremors, his inability to perform prolonged
standing and walking for six hours or more on a regular basis, and his inability to complete
a full eight-hour work day.
The Eleventh Circuit has recognized that subjective testimony supported by
objective medical evidence of a condition that can reasonably be expected to produce the
symptoms of which the claimant complains is sufficient to sustain a finding of disability.
See Walker v. Bowen, 826 F.2d 996, 1003-04 (11th Cir. 1987). If the ALJ discredits such
testimony, “he must articulate explicit and adequate reasons.” Hale v. Bowen, 831 F.2d
1007, 1011 (11th Cir. 1987). Failure to articulate adequate reasons for discrediting
subjective testimony, mandates that the testimony, as a matter of law, be accepted as
true. See id. at 1012. When a claimant attempts to establish disability based on his
subjective complaints, he must provide evidence of an underlying medical condition and
either objective medical evidence confirming the severity of the alleged symptoms or that
the medical condition could be reasonably expected to give rise to the alleged symptoms.
See 20 C.F.R. § 404.1529; Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
Here, following a bullet-list summary of the functional limitations and symptoms
that Plaintiff testified to and that the ALJ considered (Doc. 14-2, pp. 22-23), the ALJ found
that Plaintiff’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms, but Plaintiff’s statements regarding the intensity,
persistence, and limiting effects of the symptoms were not entirely consistent with the
medical and other evidence in the record. (Doc. 14-2, p. 23). In support, the ALJ relied
on objective findings in the record, Plaintiff’s improvement with treatment, and Plaintiff’s

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return to part-time work four to five months after his surgery. (Id. at 24-25). Specifically,
the ALJ relied on an October 8, 2015 treatment note from the Family Health Centers of
SW Florida, stating that Plaintiff’s “symptoms controlled on current medication; tremor
and pain better while on Lyrica 50 mg; sedating improved and not a problem; taking
medication as prescribed.” (Id. at 24, citing Exhibit 8F, 3). The ALJ then noted “[t]his
would appear to run contrary to the claimant’s hearing testimony indicating a worsening
of his overall conditions.” (Id.) The ALJ went on to accord great weight to Dr. Leach’s
opinion offered in August 2014 that Plaintiff should not lift in excess of 20 pounds, which
the ALJ accounted for in the RFC’s limiting Plaintiff to light work with frequent manipulative
limitations. (Id.)
The ALJ also observed that Plaintiff did not follow up with Dr. Leach after August
2014. (Id. at 24); see 20 C.F.R. § 404.1529(c)(3)(v), (vi) (permitting consideration of
treatment received and measures claimant uses to relieve pain).

Although Plaintiff

testified this was due to his inability to afford medical insurance, Plaintiff earned an income
working 15 to 20 hours a week, lived rent free with his ex-wife, and was able to afford a
smoking habit. (Id. at 39-40, 71, 361, 368, 373). In any event, the ALJ considered other
factors in analyzing Plaintiff’s subjective complaints, including objective findings on
examination, the statements from Plaintiff’s medical providers indicating improvement,
and Plaintiff’s ability to return to work, four to five months after his surgery. (Id. at 24-25).
Dr. Espinoza noted in a September 2015 treatment note that Plaintiff reported “[f]eeling
fine.” (Id. at 24, 387). The ALJ further observed that Plaintiff’s most recent October 2015
treatment record stated, “Symptoms controlled on current medication tremor and pain
better while on [L]yrical 50 mg.” (Id. at 24, 382); see 20 C.F.R. § 404.1529(c)(3)(iv)

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(providing ALJ may consider effectiveness of medication when evaluating subjective
complaints). Also, the record reflects Dr. Espinoza continued to prescribe Lyrica. (Id. at
384). While Plaintiff testified that Lyrica caused stomachaches, this conflicts with his
statement to Dr. Espinoza specifically denying side effects from medication. (Id. at 382);
see 20 C.F.R. § 404.1529(c)(4) (consideration is given to any conflicts between the
claimant’s statements and the rest of the evidence).
After an independent review, the Court finds that substantial evidence supports the
ALJ’s findings regarding its credibility findings. The ALJ provided ample reasons for
reaching his conclusion that Plaintiff’s subjective complaints were not consistent with the
medical and other evidence in the record. The objections are overruled.
Accordingly, it is now
ORDERED:
(1)

Plaintiff’s Objections to the United States Magistrate Judge’s Report and

Recommendation (Doc. 19) are OVERRULED.
(2)

United

States

Magistrate

Judge

Carol

Mirando’s

Report

and

Recommendation (Doc. 18) is ADOPTED and ACCEPTED and the findings incorporated
herein.
(3)

The Commissioner of Social Security’s decision is AFFIRMED.

(4)

The Clerk of Court is DIRECTED to enter judgment pursuant to sentence

four of 42 U.S.C. § 405(g) in favor of the Commissioner of Social Security, and to close
the file.

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DONE and ORDERED in Fort Myers, Florida this 23rd day of August, 2018.

Copies: All Parties of Record

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