Olson v. Commissioner of Social Security
Filing
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OPINION AND ORDER reversing and remanding the decision of the Commissioner. See Opinion and Order for details. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Mac R. McCoy on 10/30/2018. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
HOLLY VIRGINIA OLSON,
Plaintiff,
v.
Case No: 2:17-cv-521-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Holly Virginia Olson’s Complaint, filed on September 21,
2017. (Doc. 1). 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 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 a
joint legal memorandum detailing 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, the ALJ 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), 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. 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 July 10, 2013, Plaintiff filed an application for disability insurance benefits. (Tr. at
148, 248-51). Plaintiff asserted an onset date of March 27, 2013. (Id. at 248). Plaintiff’s
application was denied initially on May 1, 2014 and on reconsideration on August 20, 2014. (Id.
at 148, 166). Administrative Law Judge Yvette N. Diamond (the “ALJ”) held a hearing on April
26, 2016. (Id. at 88-134). The ALJ issued an unfavorable decision on June 2, 2016. (Id. at 3042). The ALJ found Plaintiff not to be under a disability from March 27, 2013, the alleged onset
date, through March 31, 2014, the date last insured. (Id. at 42).
On July 30, 2017, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-6).
Plaintiff filed a Complaint (Doc. 1) in the United States District Court on September 21, 2017.
This case is ripe for review. The parties consented to proceed before a United States Magistrate
Judge for all proceedings. (See Doc. 14).
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)). 1 An ALJ must determine
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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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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) can 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, 123740 (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 March 31,
2014. (Tr. at 32). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from her alleged onset date of March 27, 2013 through her
date last insured of March 31, 2014. (Id.). At step two, the ALJ determined that through the date
last insured, Plaintiff suffered from the following severe impairments: “degenerative disc
disease, neuropathy, spinal stenosis, right shoulder impairment, and arthritis (20 [C.F.R. §]
404.1520(c)).” Id. At step three, the ALJ determined that through the date last insured, Plaintiff
did not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (20 C.F.R. §§
404.1520(d), 404.1525, and 404.1526). (Id. at 33).
At step four – through the date last insured – the ALJ determined:
After careful consideration of the entire record, I find that, through the date last
insured, the claimant had the residual functional capacity to perform light work as
defined in 20 [C.F.R. §] 404.1567(b), except the claimant could lift and carry
twenty pounds occasionally and ten pounds frequently; stand or walk for six out of
eight hours; and sit for six out of eight hours. The claimant could occasionally
climb stairs, balance, stoop, kneel, and crouch, but could not climb ladders or crawl.
The claimant could occasionally reach overhead with the right upper extremity.
She required the option to change positions between sitting and standing every
thirty minutes, and could not have concentrated exposure to vibration and hazards.
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(Tr. at 34).
The ALJ determined that Plaintiff was able to perform her past relevant work as a real
estate agent. (Id. at 39). Alternatively, at step five, the ALJ determined that considering
Plaintiff’s age, education, work experience, and residual functional capacity, there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform. (Id. at 40). The
ALJ noted that the vocational expert identified the following representative occupations that
Plaintiff was able to perform through the date last insured: (1) office helper, DOT # 239.567010, light exertional level, SVP2, unskilled; (2) storage facility clerk, DOT # 295.367-026, light
exertional level, SVP 2, unskilled; and (3) label coder, DOT # 920.587-014, light exertional
level, SVP 2, unskilled. (Id. at 41). 2 The ALJ concluded that Plaintiff was not under a disability
from March 27, 2013, the alleged onset date, through March 31, 2014, the date last insured.. (Id.
at 42).
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).
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“DOT” refers to the Dictionary of Occupational Titles.
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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) (court must scrutinize the entire
record to determine reasonableness of factual findings).
II.
Analysis
On appeal, Plaintiff raises three issues. As stated by the parties, they are:
(1)
Whether the ALJ properly considered the opinion of State agency
physician, Dr. Henry, concerning Plaintiff’s limitations on reaching with
her right arm when the ALJ omitted Dr. Henry’s limitation related to
reaching in front and laterally with her right arm despite the ALJ giving Dr.
Henry’s opinion great weight.
(2)
Whether the ALJ properly concluded that Plaintiff could perform her past
relevant work as actually and generally performed because the physical
requirements of the job as actually performed conflicted with Plaintiff’s
RFC limitations and because the vocational expert incorrectly classified
Plaintiff’s past relevant work as real estate agent rather than real estate sales
agent.
(3)
Whether the ALJ properly considered and weighed Plaintiff’s therapy
records that indicated significant physical restrictions.
(Doc. 21 at 11-12, 21, 30). The Court addresses each issue in turn.
A.
Whether the ALJ Properly Considered Dr. Henry’s Opinion
Plaintiff states that the ALJ gave great weight to the opinion of State agency medical
consultant, Lionel Henry, M.D. (Doc. 21 at 13). Plaintiff asserts that in the decision, the ALJ’s
only disagreement with Dr. Henry’s opinion was that Plaintiff was actually more limited in
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performing postural maneuvers than found by Dr. Henry found. (Id.). Thus, the ALJ added a
limitation in Plaintiff’s RFC that allows for a change in position between sitting and standing.
(Id.). Plaintiff argues, however, that the ALJ erred in failing to include in the RFC Dr. Henry’s
limitations on Plaintiff’s ability to reach in all directions occasionally with the right arm. (Id.).
Plaintiff contends that this error resulted in a further error when the ALJ did not include this
additional limitation in the hypothetical posed to the vocational expert. (Id. at 14). Thus,
Plaintiff asserts that the ALJ’s decision that Plaintiff is capable of performing the work listed in
the decision is not supported by substantial evidence. (Id. at 15).
The Commissioner argues that Plaintiff is not as limited as Plaintiff alleged and the
objective medical evidence supports the ALJ’s assessment of Plaintiff’s RFC during the relevant
period. (Id. at 18-19). Further, the Commissioner argues that the ALJ is not required “to adopt
Dr. Henry’s opinion verbatim merely because she gave great weight to Dr. Henry’s opinion.” (Id.
at 20). The Commissioner contends that the responsibility for assessing a claimant’s RFC rests
with the ALJ, not any doctor and, in this case, the ALJ considered all of the relevant evidence
when assessing Plaintiff’s RFC. (Id.).
Weighing the opinions and findings of treating, examining, and non-examining
physicians is an integral part of the ALJ’s RFC determination at step four. See Rosario v.
Comm’r of Soc. Sec., 877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012). 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 statement is an opinion requiring the ALJ to state with particularity the weight
given to it and the reasons therefor. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79
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(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. Schweiker, 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: (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. In the instant case, however, Dr. Henry is not treating physician, but
instead one-time non-examining consultant. Thus, Dr. Henry’s opinion is not entitled to the
same deference as treating physicians’ opinions.
Even though examining doctors’ opinions are not entitled to deference, an ALJ is
nonetheless required to consider every medical opinion. Bennett v. Astrue, No. 308-CV-646-JJRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing McSwain v. Bowen, 814 F.2d
617, 619 (11th Cir. 1987); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir.
2004)). “The ALJ is to consider a number of factors in determining how much weight to give to
each medical opinion: (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.” Forsyth v. Comm’r of Soc. Sec., 503 F.
App’x 892, 893 (11th Cir. 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(c)).
In this case, the ALJ “gave great weight to the opinion provided by Lionel Henry, M.D.,
the State Agency medical consultant at the reconsideration level (Exhibit 4A).” (Tr. at 37). The
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ALJ noted that Dr. Henry opined that Plaintiff could lift and carry twenty pounds occasionally
and ten pounds frequently, stand and/or walk six hours in an eight-hour day, sit for six hours in
an eight-hour day, “can occasionally lift with her right shoulder,” and must avoid concentrated
exposure to hazards. (Id. at 34, 37). The ALJ noted that although Dr. Henry is a “non-treating,
non-examining medical source, his opinion is based upon a thorough review of the available
medical record and a comprehensive understanding of agency rules and regulations.” (Id. at 37).
Among Dr. Henry’s finding, Dr. Henry determined that Plaintiff was limited in reaching
in any direction, including overhead. (Id. at 162). Dr. Henry also found that Plaintiff was
limited on the right side to reaching in front and/or laterally as well as overhead. (Id.).
Specifically, Dr. Henry limited Plaintiff’s lifting and reaching with the right arm/shoulder to
occasionally. (Id.).
In the decision, the ALJ summarized Dr. Henry’s opinion, but only included his finding
that Plaintiff can lift with her right shoulder occasionally. (Id. at 37). In RFC, the ALJ also only
limited Plaintiff to “occasionally reach[ing] overhead with the right upper extremity.” (Id. at
34). The ALJ does not mention Dr. Henry’s limitation as to reaching in front and laterally with
the right arm and shoulder. (Id. at 162). Further, the ALJ does not explain why when giving
“great weight” to Dr. Henry’s opinion, she does not include this limitation for occasional
reaching in front and laterally with the right arm and shoulder. Given this lack of explanation,
the Court is unable to conduct a meaningful judicial review of the ALJ’s opinion concerning why
these limitations were not a part of Plaintiff’s RFC. See Robinson v. Astrue, No. 8:08-CV-1824T-TGW, 2009 WL 2386058, at *4 (M.D. Fla. Aug. 3, 2009). Thus, the Court finds that the
ALJ’s decision is not supported by substantial evidence regarding Plaintiff’s limitations her RFC
as to her right arm and shoulder.
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In addition, the ALJ posed hypothetical questions to the vocational expert to determine
whether Plaintiff was able to perform her past relevant work or other jobs in the national
economy. (Tr. at 127-29). The ALJ asked the vocational expert to assume the individual was
limited, inter alia, to “occasional overhead reaching with the right upper extremity.” (Id. at 127).
If an administrative law judge decides to use a vocational expert, for the vocational
expert’s opinion to constitute substantial evidence, “the ALJ must pose a hypothetical question
which comprises all of the claimant’s impairments.” Winschel, 631 F.3d at 1180. However, an
ALJ is not required to include findings in the hypothetical that the ALJ found to be unsupported
by the record. Lee v. Comm’r of Soc. Sec., 448 F. App’x 952, 953 (11th Cir. 2011) (citing
Crawford, 363 F.3d at 1161).
In this case, the ALJ did not explain why she did not adopt Dr. Henry’s limitations
related to reaching laterally and in front with the right arm and shoulder in Plaintiff’s RFC and,
thus, did not include this limitation in the hypothetical to the vocational expert. Without any
explanation, the Court cannot determine if the ALJ did not find this limitation supported by
substantial evidence or simply failed to include it in the RFC and in the hypothetical to the
vocational expert. Accordingly, the Court is unable to determine if the hypothetical posed to the
vocational expert included all of the Plaintiff’s limitations and, without this determination, the
Court cannot determine if the vocational expert’s testimony constitutes substantial evidence.
Thus, the Court finds that the ALJ’s decision is not supported by substantial evidence.
B.
Plaintiff’s Remaining Arguments
Plaintiff’s remaining issues focus on whether Plaintiff can perform her past relevant work
and whether the ALJ properly weighed the therapy records. (Doc. 21 at 21, 30). Because the
Court finds that on remand, the Commissioner must reevaluate Plaintiff’s limitations and her
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residual functional capacity in light of all of the evidence of record, the disposition of these
remaining issues would, at this time, be premature.
III.
Conclusion
Upon consideration of the submission of the parties and the administrative record, the
Court finds that the decision of the Commissioner is not supported by substantial evidence.
IT IS HEREBY ORDERED:
(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 reconsider: (1)
Plaintiff’s limitations; (2) Plaintiff’s residual functional capacity; (3) Plaintiff’s
past relevant work; and (4) the therapy records.
(2)
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.
(3)
The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the file.
DONE AND ORDERED in Fort Myers, Florida on October 30, 2018.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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