Keaton v. Commissioner of Social Security
Filing
22
OPINION AND ORDER reversing Commissioner's final decision and remanding this matter for further consideration; Clerk to enter judgment accordingly and close file. Signed by Magistrate Judge James R. Klindt on 3/9/2014. (KAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LINDA KEATON,
Plaintiff,
vs.
Case No. 3:12-cv-1367-J-JRK
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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OPINION AND ORDER1
I. Status
Linda Keaton (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying her claim for disability insurance benefits (“DIB”). Her
alleged inability to work is based upon “Polycythemia vera– blood disorder[.]” Transcript of
Administrative Proceedings (Doc. No. 14; “Tr.”), filed April 15, 2013, at 212. On January 29,
2009, Plaintiff filed an application for DIB, alleging an unknown onset disability date. Tr. at
206-07.2 Plaintiff later amended her alleged onset disability date to April 7, 2008. Tr. at 206.
Plaintiff’s claim was denied initially, Tr. at 88, 90-92, and was denied upon reconsideration,
Tr. at 89, 96-98.
1
The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 7), filed
January 9, 2013; Reference Order (Doc. No. 8), signed January 9, 2013 and entered January 10, 2013.
2
Plaintiff’s application does not appear to be included in the administrative transcript. This
citation is to an amendment to Plaintiff’s application.
On October 27, 2010 and May 2, 2011, hearings were held before an Administrative
Law Judge (“ALJ”), during which Plaintiff and a medical expert (“ME”) testified. Tr. at 37-63
(May 2, 2011 hearing), 64-87 (October 27, 2010 hearing).3 Plaintiff was represented by an
attorney at her hearings. Tr. at 37, 64. At the time of the first hearing, Plaintiff was sixty (60)
years old, Tr. at 68, and at the time of the second hearing, Plaintiff was sixty one (61) years
old, Tr. at 62. During the second hearing, the ALJ noted that the issue presented by
Plaintiff’s case was “fairly complex” and requested that Plaintiff’s counsel file a post-hearing
brief, Tr. at 61, which counsel did, Tr. at 280-81.
The ALJ issued an unfavorable Decision on August 2, 2011, finding Plaintiff not
disabled through the date of the Decision. Tr. at 19-31. On October 26, 2012, the Appeals
Council denied Plaintiff’s request for review, Tr. at 1-4, thereby making the ALJ’s Decision
the final decision of the Commissioner. Plaintiff then commenced this action on December
20, 2012 under 42 U.S.C. § 405(g) by filing a Complaint (Doc. No. 2), seeking judicial review
of the Commissioner’s final decision.
Plaintiff raises two issues on appeal: whether the ALJ erred at step two of the
sequential evaluation process by failing to find Plaintiff’s “pain disorder” to be a severe
impairment; and whether the ALJ erred in discounting the opinion of Plaintiff’s treating
physician, Charles J. Franson, D.O., regarding the effects of Plaintiff’s impairments on her
ability to work. Plaintiff’s Memorandum of Law in Opposition to the Commissioner’s Decision
Denying Plaintiff Disability Insurance Benefits (Doc. No. 20; “Pl.’s Mem.”), filed July 1, 2013,
3
The face page of the transcript of the May 2, 2011 hearing states that the ME is a
“Vocational Expert,” Tr. at 37, but the body of the transcript makes clear that the individual is actually an
ME, Tr. at 39-62.
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at 1,10-14.4 On August 28, 2013, Defendant filed a memorandum addressing the issues
raised by Plaintiff. See Memorandum in Support of the Commissioner’s Decision (Doc. No.
21; “Def.’s Mem.”). After a thorough review of the entire record and consideration of the
parties’ respective memoranda, the Commissioner’s final decision is due to be reversed and
remanded for the reasons explained herein.5
II. The ALJ’s Decision
When determining whether an individual is disabled,6 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
past relevant work; and (5) retains the ability to perform any work in the national economy.
20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004). The claimant bears the burden of persuasion through step four and, at step five,
the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
4
Plaintiff actually titles the first issue “whether [the] ALJ . . . committed error at step 2 of
the sequential evaluation by not finding Plaintiff[’s] . . . erythrocytosis and chronic obstructive pulmonary
disease to be severe impairments[.]” Pl.’s Mem. at 1 (capitalization and emphasis omitted). As
explained below, however, the ALJ in fact found these impairments to be severe, Tr. at 21, and Plaintiff
in the body of her memorandum actually contests the failure to find her “pain disorder” to be severe, Pl.’s
Mem. at 11.
5
Plaintiff requests oral argument. Pl.’s Mem. at 1. The undersigned finds that oral
argument is not necessary to decide the issues raised by Plaintiff.
6
“Disability” is defined in the Social Security Act as the “inability to engage in 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 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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Here, the ALJ followed the five-step sequential inquiry. See Tr. at 21-31. At step one,
the ALJ observed that Plaintiff “has not engaged in substantial gainful activity since April 7,
2008, the alleged onset date.” Tr. at 21 (emphasis and citation omitted). At step two, the
ALJ found that Plaintiff suffers from “the following severe impairments: erythrocytosis and
chronic obstructive pulmonary disease (COPD).” Tr. at 21 (emphasis and citation omitted).7
At step three, the ALJ ascertained that Plaintiff “does not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. at 22 (emphasis and citation omitted).
The ALJ determined that Plaintiff has the residual functional capacity (“RFC”) “to
perform the full range of medium work as defined in 20 CFR [§] 404.1567(c).” Tr. at 22
(emphasis omitted). At step four, the ALJ found Plaintiff “is capable of performing past
relevant work as a clerk for the electric company.” Tr. at 30 (emphasis omitted). At step five,
after considering Plaintiff’s age (60 at first hearing, 61 by the date of the Decision), education
(“at least a high school education”), work experience, and RFC, the ALJ determined
alternatively that “there are jobs that exist in significant numbers in the national economy that
[Plaintiff] also can perform[.]” Tr. at 30 (citation omitted). The ALJ concluded that Plaintiff
“has not been under a disability . . . from April 7, 2008, through the date of th[e D]ecision.”
Tr. at 31 (emphasis and citation omitted).
7
The ALJ found that Plaintiff’s “impairments of hypertension, hyperlipidemia and
depression” are all non-severe because they “do not cause more than minimal functional limitations[.]”
Tr. at 21.
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III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .”
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320,
1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but
less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting
Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard
is met when there is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire
record is reviewed to determine whether “the decision reached is reasonable and supported
by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)
(internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077,
1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision
reached by the Commissioner must be affirmed if it is supported by substantial
evidence–even if the evidence preponderates against the Commissioner’s findings.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
IV. Discussion
The undersigned first addresses Plaintiff’s argument regarding her treating
physician’s opinion being improperly discounted, followed by Plaintiff’s argument regarding
the ALJ’s alleged step two error.
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A. Discounting of Treating Physician Dr. Franson’s Opinion
Dr. Franson, one of Plaintiff’s treating physicians, completed a Residual Functional
Capacity Questionnaire on October 21, 2010. Tr. at 620-22.8 Dr. Franson opined as
follows. Plaintiff can stand or walk one hour per day; she can sit one hour per day; she
cannot lift even ten pounds and can only lift occasionally; she cannot perform simple
grasping, pushing, or pulling; she can use her feet for operating foot controls; she cannot
bend, squat, crawl, or climb; and she can reach above shoulder level. Tr. at 620-21.
Plaintiff cannot “sustain activity at a pace and with the attention to task as would be required
in the competitive work place[.]” Tr. at 621. Plaintiff also cannot “be expected to attend any
employment on an eight (8) hour /5 days a week basis[.]” Tr. at 621. Plaintiff also has
unspecified non-exertional limitations. Tr. at 621.
Dr. Franson also completed interrogatories on November 22, 2010 mainly regarding
Plaintiff’s smoking.
Tr. at 633-36. According to Dr. Franson’s responses to the
interrogatories, he has treated Plaintiff for eight years for “HTN,[9] Hyperlipidemia, [and]
Tob[acco] Abuse[.]” Tr. at 633. Since as early as 2004, Dr. Franson has both urged Plaintiff
to stop smoking and prescribed cession of smoking. Tr. at 633. Plaintiff’s smoking has
exacerbated her conditions. Tr. at 634. Plaintiff has been prescribed and has used different
methods in an attempt to stop smoking. Tr. at 634. Plaintiff “states she has stopped”
smoking. Tr. at 634. If Plaintiff actually stopped smoking, she could expect moderate
improvement of her medical conditions, but she would still experience difficulty walking. Tr.
8
A duplicate of the questionnaire is found in the administrative transcript at pages 658-60.
9
The undersigned surmises that HTN stands for hypertension, or high blood pressure.
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at 635, 636. Additionally, if Plaintiff had stopped when first told to do so (2004), she would
have had moderate improvement, but she still would have difficulty walking. Tr. at 635.
The Regulations instruct ALJs how to properly weigh the medical opinions10 of
treating physicians.11 See 20 C.F.R. § 404.1527(c). Because treating physicians “are likely
to be the medical professionals most able to provide a detailed, longitudinal picture of [a
claimant’s] medical impairment(s),” a treating physician’s medical opinion is to be afforded
controlling weight if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence” in the
record. Id. When a treating physician’s medical opinion is not due controlling weight, the
ALJ must determine the appropriate weight it should be given by considering factors such
as the length of treatment, the frequency of examination, the nature and extent of the
treatment relationship, as well as the supportability of the opinion, its consistency with the
other evidence, and the specialization of the physician. Id.
If an ALJ concludes the medical opinion of a treating physician should be given less
than substantial or considerable weight, he or she must clearly articulate reasons showing
“good cause” for discounting it. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
Good cause exists when (1) the opinion is not bolstered by the evidence; (2) the evidence
10
“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [a 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); see also
20 C.F.R. § 404.1513(a) (defining “[a]cceptable medical sources”).
11
A treating physician is a physician who provides treatment or evaluation to the claimant
and who has, or has had, an ongoing treatment relationship with the claimant, as established by
evidence showing that the claimant sees or has seen the physician with a frequency consistent with
accepted practice for the type of treatment and/or evaluation required for the condition. See 20 C.F.R.
§ 404.1502.
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supports a contrary finding; or (3) the opinion is conclusory or inconsistent with the treating
physician’s own medical records. Phillips, 357 F.3d at 1240-41; see also Edwards v.
Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991); Schnorr v. Bowen, 816 F.2d 578, 582 (11th
Cir. 1987) (stating that a treating physician’s medical opinion may be discounted when it is
not accompanied by objective medical evidence).
“[T]he 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) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)(per curiam)). “‘In the
absence of 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. (quoting Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). “[W]hen
the ALJ fails to ‘state with at least some measure of clarity the grounds for his decision,’”
the decision will not be affirmed “‘simply because some rationale might have supported the
ALJ’s conclusion.’” Id. (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)
(per curiam)).
Here, the ALJ “rejected” Dr. Franson’s opinion in its entirety, electing instead to rely
on the opinion of Dr. Karsh, the ME who testified at the hearing. Tr. at 29. The sole
explanation provided by the ALJ for rejecting Dr. Franson’s opinion is as follows:
The medical opinion of the treating physician (Dr. Franson) is rejected here and
given no probative weight because the opinion is not supported by the treating
notes or by the objective medical evidence in the file and the opinion is contrary
to another expert medical opinion (Dr. Karsh) that [is] more persuasive. See:
SSR 96-2p.
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Tr. at 29. Plaintiff contends this discounting was improper, Pl.’s Mem. at 12-14; Defendant
responds that the ALJ appropriately relied on the opinion of ME Dr. Karsh over that of Dr.
Franson, Def.’s Mem. at 9-11.
The undersigned finds that the ALJ did not state with the requisite specificity his
reasons for discounting the opinion of Dr. Franson. To the extent that the ALJ merely
recited recognized “good cause” reasons for discounting Dr. Franson’s opinion -- i.e., the
opinion is not supported by the objective medical evidence or the doctor’s treatment notes -without more, this recitation is insufficient. The ALJ did not explain his reasoning with any
specificity. Cf. Gayler v. Astrue, No. 5:07-cv-121-Oc-GRJ, 2008 WL 4327050, at *6 (M.D.
Fla. Sept. 18, 2008) (unpublished) (reversing and remanding ALJ’s decision to discount a
treating physician’s opinion when “the ALJ failed to explain or even provide a clue as to how
[the treating physician’s] opinion was inconsistent with other record medical evidence”);
Russ v. Astrue, No. 3:07-cv-1213-J-MCR, 2009 WL 764516, at *10 (M.D. Fla. Mar. 20,
2009) (unpublished) (finding an ALJ’s “dismissal” of a treating physician’s opinion was
“deficient” when the ALJ noted the opinion “was ‘not supported by objective findings,’” but
did not provide any explanation for the reason) (quoting ALJ’s Decision). Without the ALJ
clearly articulating an explanation for rejecting Dr. Franson’s opinion, judicial review is
frustrated because the Court cannot determine whether the ALJ’s conclusions were rational
and supported by substantial evidence.
In discounting Dr. Franson’s opinion, the ALJ also stated Dr. Franson’s opinion is
“contrary to” the “more persuasive” opinion of Dr. Karsh. Tr. at 29.
Without more
explanation, however, that statement does not aid the Court in determining whether the
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decision to discount Dr. Franson’s opinion in favor of Dr. Karsh’s opinion was rational and
supported by substantial evidence. Defendant contends that the ALJ specifically discussed
Dr. Franson’s opinion with the ME during the hearing, and “[t]he ME opined that no findings
supported the[] limitations” assigned by Dr. Franson. Def.’s Mem. at 9-10 (citing Tr. at 43).
The portion of the transcript to which Defendant cites for this contention, however, shows
the ALJ was discussing with the ME the opinion of consultative examiner Robert A.
Greenberg, M.D. See Tr. at 43. The ALJ did not inquire of Dr. Karsh how Dr. Franson’s
opinion is allegedly inconsistent with the objective medical evidence or Dr. Franson’s own
notes.12 In sum, the ME’s testimony sheds little, if any, light on how Dr. Franson’s opinion
was allegedly infirm in that it is supposedly inconsistent with objective medical evidence and
unsupported by his own notes.13
For all of the foregoing reasons, judicial review of the discounting of Dr. Franson’s
opinion is frustrated and remand is required for further consideration of it.
B. Step Two Error
Plaintiff contends the ALJ erred at step two of the sequential evaluation process by
failing to find Plaintiff’s “pain disorder” to be a severe impairment. Pl.’s Mem. at 11-12.
Defendant responds by asserting that substantial evidence supports the failure to find the
12
There are only two possible references in the hearing transcript to Dr. Franson’s opinion.
First, Plaintiff’s attorney asked Dr. Karsh about the reasonableness of “two doctors” concluding that
Plaintiff is unable to work for an eight hour day, which the ME responded was not reasonable. Tr. at 51.
Second, Plaintiff’s attorney asked Dr. Karsh about Plaintiff’s “doctor’s” apparent reliance on “chronic
fatigue” in rendering an opinion, which the ME responded was not appropriate given that the underlying
condition had allegedly been corrected. Tr. at 54-55.
13
Reading the whole transcript of the hearing during which the ME testified does not give
the Court very much confidence in the ME’s preparedness for the hearing. See Tr. at 39-63. This is
important given that the ALJ relied heavily on the ME in determining Plaintiff’s RFC, and the ALJ did not
explain with the requisite specificity why he discounted the contrary opinion of the treating physician.
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impairment to be severe, and any error at step two is harmless because it is clear that the
ALJ considered the disorder at later steps of the sequential evaluation process. Def.’s
Mem. at 6-7. Although the ALJ at step two did identify all alleged impairments by finding
some to be severe and others to be non-severe, the ALJ did not discuss at step two
Plaintiff’s alleged pain disorder. See Tr. at 21. Because this matter is due to be remanded
for further consideration of Dr. Franson’s opinion, the ALJ shall explicitly state at step two
of the sequential evaluation process whether Plaintiff’s alleged “pain disorder” is severe, and
if not, why not.
V. Conclusion
For the foregoing reasons, it is
ORDERED:
1.
The Clerk of Court is directed to enter judgment pursuant to sentence four of
42 U.S.C. § 405(g) REVERSING the Commissioner’s final decision and REMANDING this
matter with the following instructions:
(A)
Reevaluate the medical opinion of Dr. Franson and state with
particularity the weight afforded; if the opinion is discounted, adequate
reasons showing good cause for discounting it shall be provided and
shall be supported by substantial evidence;
(B)
State at step two whether Plaintiff’s “pain disorder” is a severe
impairment, and if not, why not; and
(C)
Take such other action as may be necessary to resolve this claim
properly.
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2.
The Clerk is further directed to close the file.
3.
In the event benefits are awarded on remand, Plaintiff’s counsel shall ensure
that any § 406(b) or § 1383(d)(2) fee application be filed within the parameters set forth by
the Order entered in Case No. 6:12-mc-124-Orl-22 (In Re: Procedures for Applying for
Attorney’s Fees Under 42 U.S.C. §§ 406(b) and 1383(d)(2)).
DONE AND ORDERED at Jacksonville, Florida on March 9, 2014.
kaw
Copies to:
Counsel of Record
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