Martucci v. Commissioner of Social Security
Filing
28
OPINION AND ORDER. The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 2/22/2019. (CAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KIMBERLY J. MARTUCCI,
Plaintiff,
v.
Case No: 2:17-cv-626-FtM-DNF
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Kimberly J. Martucci, 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 (“DIB”), and Supplemental Security Income (“SSI”). 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 memorandum setting forth their
respective positions.
For the reasons set out herein, the decision of the Commissioner is
REVERSED AND REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. §
405(g).
I.
Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision
A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The
impairment must be severe, making the claimant unable to do her previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405 (g). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).
The Court reviews de novo the conclusions of law made by the
Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that she is not undertaking substantial gainful
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employment.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §
404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit her physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, she will be found not disabled. Id.
In
determining whether the Commissioner has met this burden, the ALJ must develop a full and fair
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record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d
1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination.
The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the
use of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Only after the Commissioner meets this burden does the burden shift back to the claimant to show
that she is not capable of performing the “other work” as set forth by the Commissioner. Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed applications for a period of disability and disability insurance benefits as well
as Supplemental Security Income on April 16, 2014, alleging August 31, 2012, as disability onset
date. (Tr. 134-35, 248, 250). Plaintiff’s claims were denied initially on August 14, 2014, and upon
reconsideration on November 18, 2014. (Tr. 167, 170, 175, 180). On August 4, 2016,
administrative law judge (“ALJ”) Michael Carr held an administrative hearing. (Tr. 42). On
November 2, 2016, the ALJ issued a decision, finding that the Plaintiff was not disabled within
the meaning of Social Security Act. (Tr. 20, 34). Plaintiff requested review of the decision and on
September 18, 2017, the Appeals Council denied the Plaintiff’s timely request for review. (Tr. 1).
Plaintiff initiated the instant action by Complaint (Doc. 1) on November 15, 2017.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since August 31, 2012, the alleged onset date. (Tr. 25). At step two,
the ALJ found that Plaintiff had a single severe impairment: fibromyalgia. (Tr. 25). At step three,
the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets
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or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 28).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to “perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
she could only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders,
ropes, and scaffolds.” (Tr. 28). At step four, the ALJ found that Plaintiff is capable of performing
past relevant as a deli cutter/slicer and as a waitress, as that job is generally performed, as such
jobs do not require the performance of work-related activities precluded by Plaintiff’s RFC. (Tr.
32). The ALJ concluded that Plaintiff had not been under a disability since August 31, 2012,
through the date of the decision, November 2, 2016. (Tr. 34).
II.
Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ erred by finding that Plaintiff
was capable of performing past relevant work as a deli cutter/slicer and waitress; (2) whether the
ALJ erred by failing to properly evaluate Plaintiff’s fibromyalgia; and (3) whether the ALJ erred
by failing to perform a proper psychiatric review technique analysis. The Court will address each
issue in turn.
a) Whether the ALJ erred by finding that Plaintiff was capable of performing past
relevant work as a deli cutter/slicer and waitress.
Plaintiff argues that the ALJ erred by finding that Plaintiff had past relevant work as a deli
cutter/slicer as the record contains no evidence that Plaintiff performed this job at substantial
gainful activity (“SGA”) level or long enough to learn to do it. (Doc. 26 p. 9). Further, Plaintiff
argues that the ALJ erred by finding that Plaintiff can perform the job of waitress as it is generally
performed because her work as a waitress, as she actually performed it, was a composite job
requiring substantial duties of more than one occupation and its physical requirements exceeded
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the limitations in Plaintiff’s RFC assessment. (Doc. 26 p. 10). In response, Defendant argues that
Plaintiff’s work as a waitress was not composite, but that she merely had some additional duties
and demands not generally performed by other employers of waitresses. (Doc. 26 p. 16-17).
Defendant does not challenge Plaintiff’s arguments concerning the ALJ’s finding that deli
cutter/slicer is past relevant work, instead arguing that any error is harmless given that there is
substantial evidence to support the ALJ’s finding that Plaintiff can perform her past relevant work
as a waitress. (Doc. 26 p. 17).
Plaintiff bears the burden of proving that she cannot perform her past relevant work either
as she performed the work or as it is performed generally in the national economy. See Barnes v.
Sullivan, 932 F.2d 1356, 1359 (11th Cir. 1991); Jackson v. Bowen, 801 F.2d 1291, 1293-94 (11th
Cir. 1986). An ALJ may rely on a VE’s testimony to determine the demands of a claimant’s former
work and to determine whether the claimant can perform her past relevant work. See 20 C.F.R. §§
404.1560(b)(2), 416.960(b)(2); SSR 82-61, 1982 WL 31387; Simpson v. Comm’r of Soc. Sec., 423
F. App’x 882, 884-85 (11th Cir. 2011).
Here, the Court begins by noting that Plaintiff is correct that the record contains no
evidence that Plaintiff performed this job at SGA level. Thus, the ALJ failed to provide substantial
evidence for the finding that Plaintiff has past relevant work as a deli cutter/slicer. The ALJ’s
error would be harmless, however, if substantial evidence supports the ALJ’s determination that
Plaintiff can return to past relevant work as a waitress. The Court turns to that consideration now.
At the administrative hearing, Plaintiff described that her job as waitress required her to
come in 30-60 minutes before the shift in order to move chairs and tables to prepare for parties.
(Tr. 78-79). Plaintiff further testified that she also had to help cooks to get ready for the day. (Tr.
79). Consistent with this testimony, Plaintiff described similar daily responsibilities in the Work
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History Report. (Tr. 292). Plaintiff indicated that she frequently had to lift 25 pounds and lifted as
much as 50 pounds, which involved moving five-gallon or bigger containers with food. (Tr. 7980). Later in the hearing, Plaintiff’s representative questioned the vocational expert concerning
the jobs duties Plaintiff was expected to perform as a waitress:
[Representative:] Ms. Roche, does the DOT description for the job
of waitress incorporate duties such as stocking and cleaning?
[VE:] No, I don’t see it.
[Representative:] So, if the claimant as she described the job was
responsible for performing stocking and cleaning would there not
be additional DOT titles necessary to describe the work as she
actually performed it?
[VE:] No, I don’t know of one. I do not know of one. Again with
this employer—
[Representative:] You don’t know of any jobs that involve
stocking?
[VE:] –that was specific to her job as a waitress. She has indicated
that she performed it at the medium level. She might go to the next
restaurant and there would be no stocking, there would be no
cleaning of a restroom. There would be cleaning maybe, if maybe
of tables but there are bus boys for that and bus boys to do the
heavy lifting, etcetera, a dining room attendant, per se.
[Representative:] I’m not talking about other jobs that she perform
[sic]. I’m talking about the job that she did perform. Does a DOT
description for waitress accurately incorporate that description that
she has given which included stocking and cleaning and you have
said that it does not—
[VE:] It does not.
[Representative:] So [INAUDIBLE] get a DOT code—
[VE:] It does not.
[Representative:] You said that stocking and cleaning is not part of
the waitress description in the DOT.
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[VE:] Correct.
[Representative:] So if she performed it then how can that job, how
can that DOT description accurately reflect what she performed if
part of the job duties she described are not in that DOT
description? That’s what I don’t understand.
[VE:] I’ve been over this. I guess, you’ve asked and I’ve
responded. I don’t know what to say, sir.
[ALJ:] And I’m going to jump in, Ms. Roche, the way that I heard
you respond is that these were, you said, performed informally.
These are things that there are other employees to do that this was
a matter of getting ready for the day. I heard you made a reference
to formal versus informal. Is that relevant in terms of how you
looked at this?
[VE:] Yes, there are different, different employers will have the
waitress do different things. Every single waitress does not do the
exact same thing that the one at the next employer and then there
is also the type of setting. Is it a country club? Is it a bar? Is it a
casual dining? Is it a banquet so there are so many variabilities,
and you know, if you wrote all of those on a waitress we’d have a
whole book of them probably but the DOT does not describe what
she says that she did as performed. I agree with that.
[Representative:] Which is my point.
[ALJ:] And, Ms. Roche, is your testimony consistent, additional
testimony consistent with the DOT?
[VE:] Yes.
(Tr. 83). The VE also stated that “[s]he might go to the next restaurant and there would be
no stocking, there would be no cleaning of a restroom.” (Tr. 84).
In his decision, the ALJ addressed the issue of whether Plaintiff’s work as a waitress was
composite work as follows:
At the hearing, the representative questioned the vocational expert
extensively regarding the claimant's past work as a waitress. The
representative suggested that because the claimant performed some duties
that are not included in the Dictionary of Occupational Titles (DOT)
definition of the waitress position, the job was therefore composite and
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required another position to fully describe her past work. The undersigned
allowed the representative to follow his line of questioning for over twelve
minutes nearly a fifth of the entire hearing. The representative also had the
opportunity to further question the claimant about her past work and
clarify her job responsibilities. In response to the representative's
questioning, the vocational expert repeatedly stated that the duties the
claimant performed beyond those included in the DOT definition of the
waitress position are informal but regular expectations of the job that do
not typically require greater than light exertion. The vocational expert
testified that the additional duties do not constitute a composite job. The
undersigned found the vocational expert's testimony persuasive, as the
claimant's additional duties did not appear to be major tasks associated
with her regular job requirements. Rather, they were ancillary duties that
a waitress could reasonably be expected to perform, as the vocational
expert indicated. As such, the undersigned finds that the claimant's duties
as a waitress do not support the finding that she performed a composite
job.
(Tr. 32-33).
The Court finds no error in the ALJ’s determination that Plaintiff’s work as a waitress was
not composite work. A composite job is “one that has significant elements of two or more
occupations and, as such, has no counterpart in the DOT.” Paxton v. Colvin, 2013 WL 1909609,
*4 (M.D. Fla. May 8, 2013). However, the fact that a job requires more duties than set out in the
DOT does not render it composite. SSR 82-61 explains that “It is understood that some individual
jobs may require somewhat more or less exertion than the DOT description. A former job
performed by the claimant may have involved functional demands and job duties significantly in
excess of those generally required for the job by other employers throughout the national
economy.” SSR 82-61, 1982 WL 31387. The “regulations require that the claimant not be able to
perform his past kind of work, not that he merely be unable to perform a specific job he held in
the past.” Jackson, 801 F.2d at 1293; see also Klawinski v. Comm’r of Soc. Sec., 391 F. App’x
772, 775 (11th Cir. 2010) (finding claimant did not have composite job even though she performed
additional duties not listed in DOT description of secretary job).
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While Plaintiff contends she performed the job of a waitress as a composite job, in fact her
description of the job and the explanation provided by the VE at the hearing show that Plaintiff
merely had some additional duties and demands not generally required by other employers of
waitresses. Thus, although Plaintiff could not perform her past relevant work as a waitress as she
actually performed it because she performed some additional, informal duties that are outside of
the limitations included in the RFC, Plaintiff could perform the job of a waitress as it is generally
performed in the national economy and therefore the ALJ properly found she could do her past
work and was not disabled. See 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2).
b) Whether the ALJ erred by failing to properly evaluate Plaintiff’s fibromyalgia.
Plaintiff argues that the ALJ erred by overemphasizing the lack of objective evidence in
evaluating Plaintiff’s fibromyalgia. (Doc. 26 p. 21). Plaintiff contends that because her disability
is based on fibromyalgia, there would not be any evidence to support the disability. (Doc. 26 p.
21). Further, Plaintiff argues that the ALJ erred by improperly rejecting the opinion of Dr. Shuster
on the grounds that it lacked objective evidence. (Doc. 26 p. 22). In response, Defendant argues
that the ALJ properly evaluated Plaintiff’s severe impairment of fibromyalgia in assessing the RFC
and provided good cause for rejecting the opinion of Dr. Shuster. (Doc. 26 p. 23).
The Eleventh Circuit has recognized that fibromyalgia “often lacks medical or laboratory
signs, and is generally diagnosed mostly on an individual's described symptoms,” and that the
“hallmark” of fibromyalgia is therefore “a lack of objective evidence.” Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir.2005) (per curiam). The lack of objective clinical findings is, at least in
the case of fibromyalgia, therefore insufficient alone to support an ALJ's rejection of a treating
physician's opinion as to the claimant's functional limitations. See Green–Younger v. Barnhart,
335 F.3d 99, 105–08 (holding that because fibromyalgia is “a disease that eludes [objective]
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measurement,” ALJ improperly discredited treating physician's disability determination based
upon lack of objective evidence). Somogy v. Comm'r of Soc. Sec., 366 F. App'x 56, 63–64 (11th
Cir. 2010).
In this case, the Court finds no error in the ALJ’s analysis of Plaintiff’s fibromyalgia. The
ALJ considered Plaintiff’s fibromyalgia, determined that it was a severe impairment, and found
that it limited Plaintiff to light work with only occasional stooping, balancing, kneeling, crouching,
crawling, and climbing ramps, stairs, ladders, ropes and scaffolds. (Tr. 28). The ALJ explained
that Plaintiff’s complaints were inconsistent with the documentation of her condition in the
treatment notes. (Tr. 29-30). The ALJ explained that Plaintiff was diagnosed with fibromyalgia in
2010 and at exams in early 2012, Plaintiff demonstrated good overall strength and normal gait, but
was very tender to the touch over her whole body. (Tr. 630-31). In February 2012, Plaintiff had
generalized musculoskeletal pain, but was otherwise normal and later in 2012 she did not exhibit
tenderness on examination. (Tr. 445, 454, 459). As Defendant notes, even Plaintiff’s complaints
of generalized pain are not reflected in the medical records from early 2012 to mid-2013. (Tr. 515,
517, 520, 523, 526). In August and November 2013, Dr. Shuster observed tender points and diffuse
extremity pain and weakness, but a year later, despite continued complaints of pain, Plaintiff was
increasing her at-home exercises. (Tr. 558). From 2014 through 2016, Plaintiff demonstrated only
slightly reduced muscle tone in all extremities during range of motion, but her grip strength was
normal and she had full range of musculoskeletal motion. (Tr. 560, 584, 588, 591, 594, 600, 603,
605, 609). The ALJ found these treatment notes were inconsistent with Plaintiff’s complaints that
she could not lift even a gallon of milk. (Tr. 30). Plaintiff also reported at the hearing that she could
do some household chores, just slowly and she liked to take walks to the duck pond behind her
house. (Tr. 62-63). Thus, Plaintiff’s activities of daily living also contradicted her complaints that
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she could only sit in a chair all day long. See Harrison v. Comm’r of Soc. Sec., 569 F. App’x 874,
(11th Cir. 2014) (affirming ALJ’s finding of no disability despite diagnosis of fibromyalgia and
complaints of inability to do anything); Conner v. Astrue, 415 F. App’x 992, 994, 996 (11th Cir.
2011) (affirming ALJ’s finding of no disability based in part on claimant’s activities of daily living,
which included visiting friends, taking care of animals, and surfing the internet); Hennes v.
Comm’r of Soc. Sec., 130 F. App’x 343, 348-49 (11th Cir. 2005) (claimant’s testimony that she
could shop for groceries, cook meals, and do chores belied her allegations of disabling
fibromyalgia).
Further, the Court finds no error in the ALJ’s decision to accord little weight to Dr.
Shuster’s opinion. The opinions of treating physicians are entitled to substantial or considerable
weight unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th
Cir. 2004). The Eleventh Circuit has concluded that good cause exists when the: “treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary finding;
or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records. Id.
In his decision, the ALJ explained the weight he accorded Dr. Shuster’s opinion as follows:
In June 2012, Anna Shuster, D.O. stated that the claimant had been
disabled since March 2010 (Exhibit B15F/3). Dr. Shuster opined that the
claimant could occasionally lift and/or carry less than 10 pounds, stand
and/or walk for less than two hours in an eight-hour day, and sit for less
than 30 minutes in an eight-hour day (Exhibit B15F/4/9). She indicated
the claimant could never climb, balance, stoop, or crouch, and she could
only occasionally kneel or crawl (Exhibit B15F/4/9/10). Dr. Shuster stated
the claimant would need to take a five to ten-minute break for every 30
minutes of work, and that she would need to lie down for 15 to 20 minutes
every two to three hours (Exhibit B15F/4/5/9). The doctor also opined the
claimant would only occasionally be able to understand and carry out
simple instructions or use judgment because of pain, and that she would
have minor limitations in remembering simple instructions and dealing
with workplace changes (Exhibit B15F/5). Dr. Shuster opined the
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claimant had manipulative limitations and that she would be absent from
work more than four days per month (Exhibit B15F/8/10). Dr. Shuster's
opinion is outdated and inconsistent with her own treatment records with
regard to the claimant's physical condition leading up to and after the date
the claimant was last insured. In 2011, the claimant was physically normal
during a consultative examination, and Dr. Shuster herself stated the
claimant's fibromyalgia was under control with medications (Exhibits
B3F/3 and BSF/26/34). Physical examinations showed some generalized
tenderness in early 2012, but Dr. Shuster's examination records from
between mid-2012 and late 2013 did not demonstrate objective findings
that would support the opinion above (Exhibits BSF/9/18/23 and
BSF/19/21/24/27/30). Dr. Shuster's more recent medical records show that
the claimant has normal grip strength and full range of musculoskeletal
motion, which is inconsistent with the manipulative limitations she
suggested in her opinion (Exhibits B10F/10 and B12F/4/8/1
l/14/20/23/25/29). Furthermore, the claimant personally stated she could
sit for two hours at a time, which is inconsistent with Dr. Shuster' s
conclusion that she could sit for less than 30 minutes in an eight-hour day
(Exhibit B13E/2). Because of the several inconsistencies between Dr.
Shuster's opinion and her objective treatment records, the undersigned
gave her opinion little weight during the residual functional capacity
finding.
(Tr. 31-32).
The ALJ properly provided good reasons, supported by substantial evidence, for giving
little weight to Dr. Shuster’s 2012 opinion. (Tr. 31). The ALJ reasoned that Dr. Shuster’s opinion
was outdated and inconsistent with her own treatment notes and some of the opinions were
inconsistent with Plaintiff’s own reports of her abilities. (Tr. 31). See 20 C.F.R. §§ 404.1527,
416.927. The ALJ explained that in 2011, Dr. Shuster’s treatment notes show a normal physical
examination and a note by Dr. Shuster that Plaintiff’s fibromyalgia was under control. (Tr. 427,
522, 530). Physical examinations showed some generalized tenderness in early 2012, but Dr.
Shuster’s examination records from between mid-2012 to late 2013 did not demonstrate objective
findings that would support the extent of limitations in her June 2012 opinion. (Tr. 445, 454-59,
515, 517, 520,523, 526). Dr. Shuster’s more recent treatment notes generally show the same
findings and reports at each visit and do not demonstrate a worsening of her condition (Tr. 583- 13 -
609). The treatment notes show a normal grip strength and full range of musculoskeletal motion,
which is inconsistent with the manipulative limitations she included in her opinion (Tr. 515).
The ALJ did not reject Plaintiff’s diagnosis of fibromyalgia on the basis that there was a
lack of objective evidence, but found that Plaintiff’s fibromyalgia was not as limiting as alleged.
Plaintiff has failed to demonstrate that the ALJ improperly evaluated her severe impairment of
fibromyalgia. Accordingly, the Court will not disturb the ALJ’s analysis of fibromyalgia on
review.
c) Whether the ALJ erred by failing to perform a proper psychiatric review
technique analysis.
Plaintiff argues that the ALJ failed to conduct a proper psychiatric review technique
analysis because the ALJ relied on a consultation that pre-dates Plaintiff’s alleged disability date
to determine that Plaintiff had only mild limitations in the areas of concentration, persistence, and
pace. (Doc. 26 p. 27). Plaintiff argues that the ALJ failed to acknowledge that Plaintiff reported
that it takes her all day to finish what she has started, can only pay attention for 5 minutes, after
which her mind wanders, and she has to re-read written instructions. (Doc. 26 p. 27). Further,
Plaintiff argues that the ALJ failed to consult medical records dated after Plaintiff’s alleged onset
date that indicate difficulty concentrating and an inability to concentrate. (Doc. 26 p. 27 citing Tr.
587, 589, 590, 592, 593). In response, Defendant argues that the ALJ determined Plaintiff had
mild limitations in concentration, persistence and pace based on a totality of medical evidence and
not just based on one consultative examination. (Doc. 26 p. 28).
Under 20 C.F.R. § 416.920a, an ALJ is required to utilize the “special technique” dictated
by a psychiatric review technique form (“PTRF”) when evaluating mental impairments. Moore v.
Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005). The technique requires evaluation of four separate
function areas on a four-point scale as to how the impairment affects the claimant: “activities of
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daily living; social functioning; concentration, persistence or pace; and episodes of
decomposition.” Id. The ALJ then incorporates the results into his findings and conclusions. Id. at
1213-14.
In his decision, the ALJ explained his findings in the third functional area as follows:
The third functional area is concentration, persistence or pace. In this area,
the claimant has mild limitations. She alleged a very short attention span
of five minutes, but during a consultative examination, she demonstrated
normal attention, concentration, and memory (Exhibit B13E/5). She
follows instructions adequately and can handle changes in routine (Exhibit
B13E/5/6). The claimant indicated she could handle monetary accounts if
she kept a chart and kept things in order, and she testified she could handle
a checking account (Exhibit B13E/3). There is insufficient objective
evidence in the record to corroborate the claimant's alleged concentration
problems. Based on the overall record, the undersigned finds that the
claimant's mental impairments cause no more than mild limitations in
maintaining concentration, persistence, or pace.
(Tr. 27).
In this case, the Court finds that the ALJ’s finding in the third functional area is not
supported by substantial evidence.
The ALJ’s analysis makes clear that the ALJ heavily
considered the consultative examination in reaching his finding. As Plaintiff notes and Defendant
does not challenge, this consultative examination occurred in December 2010, before Plaintiff’s
allege onset date of August 2012. The ALJ does not address whether this examination applies to
the time period after Plaintiff’s alleged onset date. Contrary to the consultative examination,
Plaintiff’s medical records document difficulty concentrating and an inability to concentrate. (Tr.
587, 589, 590, 592, 593). The ALJ fails to address this evidence.
On remand, the ALJ shall re-evaluate Plaintiff’s functioning in the category concentration,
persistence or pace taking into consideration the medical record documenting Plaintiff’s
difficulties in concentration.
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III.
Conclusion
The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the
Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on February 22, 2019.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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