Terrell v. Commissioner of Social Security
Filing
19
MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Monte C. Richardson on 11/1/2013. (MOH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RAYFORD EUGENE TERRELL,
Plaintiff,
vs.
Case No: 3:13-cv-74-J-MCR
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
MEMORANDUM OPINION AND ORDER 1
This cause is before the Court on Plaintiff’s appeal of an administrative decision
denying his application for Social Security benefits. The Court has reviewed the record,
the briefs, and the applicable law. For the reasons set forth herein, the Commissioner’s
decision is AFFIRMED.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed an application for a period of disability, Supplemental
Security Income (“SSI”), and Disability Insurance Benefits (“DIB”) on October 4, 2004,
with an alleged onset date of August 17, 2004. (Tr. 45, 357). The Social Security
Administration (“SSA”) denied Plaintiff’s claim initially on February 2, 2005 and upon
reconsideration August 8, 2005. (Tr. 45-51, 53-55). Thereafter, several hearings were
held before an Administrative Law Judge (the “ALJ”) on February 15, 2007, October 24,
2007, and March 6, 2008 in Jacksonville, Florida. (Tr. 346-50, 351-55, 356-406). At the
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The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. (Doc. 9).
March 6, 2008 administrative hearing, Plaintiff amended his alleged onset of disability
date to May 14, 2006. (Tr. 359). The ALJ issued a decision finding Plaintiff not
disabled on April 7, 2008. (Tr. 11-22). Plaintiff requested review by the Appeals
Council, which was denied on September 25, 2008. (Tr. 5-7).
In April 2008, while his request for review was pending before the Appeals
Council, Plaintiff filed a subsequent claim for SSI. (Tr. 471-74). This claim was also
denied initially on November 7, 2008 and upon reconsideration on July 30, 2009. (Tr.
446-456).
Plaintiff filed a Complaint with this Court appealing the ALJ’s April 7, 2008
decision, however, upon motion of the Commissioner, the case was remanded on
February 17, 2009. (Tr. 466-70). On May 5, 2009, the Appeals Council remanded the
case with orders for the ALJ to consider specific medical evidence, as well as to
associate Plaintiff’s April 2008 claim together with the previous claims. (Tr. 462-63).
Accordingly, another hearing was held before the ALJ on December 15, 2009.
(737-816). The ALJ issued an unfavorable decision on March 25, 2010. (Tr 416-34).
Plaintiff requested review (Tr. 413-14), however, the Appeals Council denied said
request on November 13, 2012. (Tr. 407-09). Plaintiff filed a Complaint with this Court
on January 17, 2013 seeking review of the ALJ’s final decision under 42 U.S.C.
§ 405(g). (Doc. 1).
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II.
NATURE OF DISABILITY CLAIM
A.
Basis of Claimed Disability
Plaintiff claims to have been disabled since May 14, 2006 due to sarcoidosis,
spurs of the left knee, broken leg, borderline diabetes, high blood pressure, soft tissue
tumors on bottom of left foot, and depression. (Tr. 490).
B.
Summary of Relevant Evidence Before the ALJ
Plaintiff was born May 14, 1956 and was 53 years of age when the ALJ issued
the March 25, 2010 unfavorable decision. (Tr. 431). Plaintiff attended school through
high school and had vocational training. (Tr. 375-76). Plaintiff had past relevant work
experience as a sheet metal worker. (Tr. 376, 431).
As this appeal deals exclusively with Plaintiff’s respiratory and sarcoidosis
impairments, the Court will limit its discussion to the evidence relating to those issues.
The following provides a brief summary of Plaintiff’s relevant medical history.
The record contains medical evidence from Dr. Charles D. Scarborough, M.D.,
Plaintiff’s treating physician, from July 2005 through December 2006. (Tr. 280-302).
During that time, Plaintiff did not complain of shortness of breath and Dr. Scarborough
noted Plaintiff’s lungs to be clear to auscultation. (Tr. 280-302).
On June 21, 2007, during an orthopedic examination by Dr. Raul B. Zelaya,
M.D., Plaintiff reported shortness of breath and chest congestion. (Tr. 310). However,
Plaintiff saw Dr. Scarborough on November 16, 2007, and again on January 23, 2008,
and he did not complain of shortness of breath. (Tr. 336-37). Dr. Scarborough also
observed Plaintiff’s lungs were clear to auscultation. (Tr. 336-37). On September 5,
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2008, Plaintiff was seen at Ed Fraser Memorial Hospital for an injury resulting from a fall
and was noted to have normal breathing and no respiratory distress. (Tr. 573-76).
On August 28, 2008, Plaintiff met with consultative examiner, Dr. Lily S. Rocha,
M.D. (Tr. 728-29). Dr. Rocha noted Plaintiff reported “persistent SOB” and that he had
been prescribed inhalers and a nebulizer. (Tr. 728). Dr. Rocha found Plaintiff suffered
from sarcoidosis with flare ups of shortness of breath if Plaintiff failed to medicate. (Tr.
729). In October 2008, Plaintiff had a pulmonary function test performed at St.
Vincent’s hospital which revealed a normal spirometry and a “mild decrease in the
DLCO.” (Tr. 579). Plaintiff saw Dr. Scarborough on April 7, 2009 and May 5, 2009. (Tr.
607). Dr. Scarborough noted Plaintiff’s lungs were clear to auscultation. (Tr. 607).
Plaintiff did not complain of respiratory problems on either visit. (Tr. 607).
On June 30, 2009, Plaintiff was seen again by Dr. Rocha for another consultative
examination. (Tr. 681-82). Dr. Rocha noted Plaintiff experienced shortness of breath
during conversational speech and that evaluation of the lungs revealed some use of
accessory respiratory muscles. (Tr. 682). Dr. Rocha opined Plaintiff suffered from
sarcoidosis with flares ups of shortness of breath regardless of medication and that this
“markedly diminished” Plaintiff’s stamina. (Tr. 682).
Plaintiff was seen again by Dr. Scarborough on July 30, 2009 and failed to report
any shortness of breath. (Tr. 733). Dr. Scarborough noted Plaintiff’s lungs were clear
to auscultation. (Tr. 733). Lastly, Plaintiff was seen by the Baker County Health
Department on September 8, 2009 and did not report any shortness of breath. (Tr.
696).
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C.
Summary of the ALJ’s Decision
A plaintiff is entitled to disability benefits when he is unable to engage in
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to either result in death or last for a continuous
period of not less than 12 months. 42 U.S.C. §§ 416(i), 423(d)(1)(A); 20 C.F.R.
§ 404.1505. The ALJ must follow five steps in evaluating a claim of disability. See 20
C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful
activity, he is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(a)(4)(i). Second, if a
claimant does not have any impairment or combination of impairments which
significantly limit his physical or mental ability to do basic work activities, then he does
not have a severe impairment and is not disabled. 20 C.F.R. §§ 404.1520(c),
416.920(a)(4)(ii). Third, if a claimant’s impairments meet or equal an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R.
§§ 404.1520(d), 416.920(a)(4)(iii). Fourth, if a claimant’s impairments do not prevent
him from doing past relevant work, he is not disabled. 20 C.F.R. §§ 404.1520(e),
416.920(a)(4)(iv). Fifth, if a claimant’s impairments (considering his residual functional
capacity, age, education, and past work) prevent him from doing other work that exists
in the national economy, then he is disabled. 20 C.F.R. §§ 404.1520(f),
416.920(a)(4)(v). Plaintiff bears the burden of persuasion through step four, while at
step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146,
107 S.Ct. 2287 n.5 (1987).
In the present case, the ALJ found Plaintiff had not engaged in substantial gainful
activity since May 14, 2006, the alleged onset date. (Tr. 422). At the second step, the
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ALJ found Plaintiff suffered from the following severe impairments: status-post lumbar
laminectomy at L5-S1, status-post left tibular fracture, and sarcoidosis. (Tr. 422). At
the third step, the ALJ determined Plaintiff did not have an impairment or combination of
impairments that met or equaled any listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. (Tr. 423). Consequently the ALJ determined Plaintiff’s residual functional capacity
(“RFC”) as follows:
[T]o perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except, in an 8 hour work day, the claimant
can lift 20 pounds occasionally and 10 pounds or less more
frequently, sit for up to 6 hours, stand/walk for up to 6 hours
and frequently use his extremities to operate foot, pedal and
hand controls within the stated limits. The claimant can
occasionally to frequently climb ramps and stairs but is
restricted from climbing ropes, ladders or scaffolds. The
claimant is further limited to occasional bending, stooping,
kneeling, crouching and crawling. The claimant has no
impediments with respect to his ability to reach in all
directions, handle, hold, turn, grasp and manipulate objects
either from a fine or gross dexterity standpoint within the
above-stated weight limits. The claimant is not limited with
respect to his ability to see, speak or hear and has no mental
impairments which would otherwise reduce his occupational
base. With respect to environmental limitations, the claimant
should avoid work at unprotected heights and work involving
proximity to concentrated exposure to atmospheric pollutants
such as dust, smoke, fumes, chemicals and the like. In
addition, the claimant should work in a temperature
controlled work setting.
(Tr. 424). In reaching this determination, the ALJ found Plaintiff’s statements regarding
the intensity, persistence, and limiting effects of his alleged symptoms were not credible
to the extent they were inconsistent with the ALJ’s RFC assessment. (Tr. 425).
At the fourth step, the ALJ determined Plaintiff could not perform his past
relevant work as a sheet metal worker. (Tr. 431). Accordingly, the ALJ proceeded to
the fifth step where, relying on the Medical-Vocational Guidelines (the “Grids”), 20
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C.F.R. Part 404, Subpt. P, App. 2, and the testimony of a Vocational Expert (“VE”), he
determined Plaintiff could perform other jobs existing in significant numbers in the
national economy and therefore, was not disabled. (Tr. 431-34).
III.
ANALYSIS
A.
The Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standards, 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, 91 S.Ct. 1420 (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) and 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
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(11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of
factual findings).
B.
Issue on Appeal
Plaintiff raises one issue in this appeal: that the ALJ failed to state with
particularity the weight assigned to medical evidence. (Doc. 17). Specifically Plaintiff
asserts the ALJ erred “when he failed to indicate with the proper specificity and
articulation[,] the weight” he afforded to the opinions of Dr. Rocha. 2 (Doc. 17 at 6). The
Commissioner responds, arguing the ALJ properly considered the report of Dr. Roca
and the ALJ’s decision is supported by substantial evidence. (Doc. 18 at 7).
The ALJ is required to consider all of the evidence, including medical opinions, 3
in the claimant’s record when making a disability determination. See 20 C.F.R.
§§ 416.920(a) & (b). In addition, the ALJ must state the weight afforded to the evidence
considered. Ryan v. Heckler, 762 F.2d 939, 941-42 (11th Cir. 1985). Specifically, the
judge “should state the weight he accords to each item of impairment evidence and the
reasons for his decision to accept or reject that evidence.” Lucas v. Sullivan, 918 F.2d
1567, 1574 (11th Cir. 1990). Indeed, “[u]nless the [ALJ] has analyzed all evidence and
has sufficiently explained the weight he has given to obviously probative exhibits, to say
that his decision is supported by substantial evidence approaches an abdication of the
court’s ‘duty to scrutinize the record as a whole to determine whether the conclusions
reached are rational.’” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (quoting
Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979)). Although the ALJ is required to
2
Although the ALJ refers to Dr. Choisser, the record indicates that Dr. Rocha examined
Plaintiff and dictated the notes. (Tr. 681 - 82, 728 - 29).
3
See 20 C.F.R. § 416.927(a)(2).
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consider all of the evidence, he is not required to discuss all of the evidence presented,
but rather must explain why “significant probative evidence has been rejected.” Vincent
v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984).
Plaintiff asserts that Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176 (11th Cir.
2011), is controlling and requires reversal of the Commissioner’s decision because the
ALJ failed to indicate a specific level of weight given to the reports of Dr. Rocha. (Doc
17, pp.5-7). In Winschel, the Eleventh Circuit 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.” Roberts v. Comm'r of Soc. Sec., 6:10-cv-930-ORL-DAB,
2012 WL 85172, *4 (M.D. Fla. Jan. 11, 2012) (citing to Winschel, 631 F.3d at 1178-79,
20 CRF §§ 404.1527(a)(2), 416.927(a)(2), and Sharfarz v. Bowen, 825 F.2d 278, 27980 (11th Cir. 1987)). Accordingly, the court held: “when the ALJ fails to ‘state with at
least some measure of clarity the grounds for his decision,’ we will decline to affirm
‘simply because some rationale might have supported the ALJ's conclusion.’” Winschel,
631 F.3d at 1179 (citing Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)).
Despite Plaintiff’s contentions to the contrary, a review of the ALJ’s decision in the
instant case reveals that the ALJ did provide sufficient clarity regarding the grounds for
his decision.
First, this is not a situation where the ALJ simply ignored the evidence from Dr.
Rocha. Instead, the ALJ specifically discussed the two examinations as follows:
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The claimant presented to Dr. William Choisser 4 for a
consultative physical examination on August 28, 2008. . . .
the claimant’s lungs were found to be clear to auscultation
with no wheezing or rales noted. . . . The claimant returned
to Dr. Choisser for a second examination on June 30, 2009.
Dr. Choisser’s examination findings were essentially
unchanged except examination of the lungs revealed some
use of accessory respiratory muscles and shortness of
breath was observed with conversational speech.
(Tr. 427). Further, the ALJ went on to state:
The claimant’s lungs have routinely been found to be clear to
auscultation by Dr. Scarborough. The Claimant has been
prescribed inhalers and a nebulizer for shortness of breath
(see i.e. Ex. C-14F) and pulmonary function testing
performed in October 2008 showed a normal spirometry.
While examination of the lungs in June 2009 revealed some
use of accessory respiratory muscles and shortness of
breath was observed with conversational speech,
subsequent physical examinations of the lungs showed no
abnormalities (Ex. C-15F).
(Tr. 430). Accordingly, while Plaintiff is correct that the ALJ did not specifically state the
weight provided to Dr. Rocha’s opinion that Plaintiff’s SOB had worsened and that it
would markedly diminish Plaintiff’s stamina, it is clear he gave less weight to that
opinion as it was not consistent with the subsequent examination by Dr. Scarborough
on July 30, 2009, which revealed Plaintiff’s lungs were clear and no abnormalities were
observed.
Moreover, Plaintiff has not shown that Dr. Rocha’s opinions are in conflict with
the RFC established by the ALJ. Dr. Rocha did not translate her finding that Plaintiff’s
SOB would markedly diminish his stamina into any sort of limitation on Plaintiff’s ability
to stand, walk, or engage in any other work-related functions. Accordingly, there is no
4
While the ALJ reports that Plaintiff was examined by Dr. Choisser, it is clear these are the
reports by Dr. Rocha, who is a physician associated with the Choisser Medical Group. Plaintiff
does not argue the ALJ’s mistake is error and the undersigned does not find it to be.
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evidence indicating that Dr. Rocha’s finding regarding Plaintiff’s stamina is at odds with
the limitations imposed by the ALJ: that Plaintiff lift no more than 20 pounds
occasionally and 10 pounds or less more frequently; sit for up to 6 hours; stand/walk for
up to 6 hours; frequently use his extremities to operate foot pedal and hand controls;
occasionally to frequently climb ramps and stairs, but no climbing of ropes, ladders or
scaffolds; only occasionally bend, stoop, kneel, crouch and crawl; avoid work at
unprotected heights and work involving proximity to concentrated exposure to
atmospheric pollutants such as dust, smoke, fumes, chemicals and the like; and work in
a temperature controlled work setting. See Richardson v. Astrue, No. 1:09-cv-323,
2010 WL 3908546, *8 n.7 (M.D. Ala. Sept. 30, 2010) (finding no error in ALJ
disregarding physician’s note that plaintiff’s obesity would limit her stamina where doctor
“did not translate this vague observation into a specific durational limitation on standing,
walking, or sitting.”).
Like the situation in Roberts, a case cited by Plaintiff, the ALJ “set forth the
opinion” of Dr. Rocha, a consulting physician, “evaluated it in the context of the
complete record, and set forth findings” with respect to Plaintiff’s impairments “which are
fully supported by substantial evidence,” and therefore, “his conclusions will not be
disturbed.” Roberts, 2012 WL 85172, at *5; see also Clarence Bros. v. Astrue, No.
6:11-cv-830, 2012 WL 3243232, at *7 (M.D. Fla. Aug. 8, 2012) (finding no error where
ALJ failed to state weight assigned to doctor’s opinion where ALJ specifically discussed
the opinions and the opinions were not significant probative evidence).
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IV.
CONCLUSION
For the foregoing reasons, the undersigned finds the ALJ’s decision is supported
by substantial evidence. Accordingly, the Clerk of the Court is directed to enter
judgment AFFIRMING the Commissioner’s decision and, thereafter, to close the file.
DONE and ORDERED in Jacksonville, Florida this 1st day of November, 2013.
Copies furnished to:
Counsel of Record
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