Williams v. Commissioner of Social Security

Filing 18

ORDER affirming the Commissioner's decision and directing the clerk to enter judgment in favor of the Commissioner and close the file. Signed by Magistrate Judge Patricia D. Barksdale on 3/14/2016. (LPB)

United States District Court
Middle District of Florida
Jacksonville Division
HOWARD WILLIAMS,
Plaintiff,
v.

NO. 3:15-CV-78-J-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order Affirming Commissioner’s Decision
This is a case under 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a final decision
of the Commissioner of the Social Security Administration denying Howard
Williams’s claim for disability-insurance benefits and supplemental-security income.
He seeks reversal; the Commissioner, affirmance. The Court incorporates the record
summarized by the Administrative Law Judge (“ALJ”), Tr. 20–29, and the parties,
Doc. 16 at 1–6, 8; Doc. 17 at 2–12.
Issues
Williams presents two issues: (1) whether the ALJ properly weighed the
opinion of treating physician Stanley Kaplan, D.P.M., and determined his residual
functional capacity; and (2) whether the ALJ posed a complete hypothetical to the
vocational expert.

Background
Williams was 49 at the time of the ALJ’s decision. Tr. 29, 39. He last worked
in 2009. Tr. 40, 47–48. He completed at least the tenth grade (if not the eleventh, Tr.
60, or twelfth, Tr. 259), mechanic school, and barber school. Tr. 39. He has experience
laying tar, doing other construction work, installing tile and glass, and selling parts
for a car dealership. Tr. 42, 61, 259. He alleged he had become disabled in January
2009 from arthritis in his back and right hand and ankle and torn ligaments in his
left ankle. Tr. 79, 221, 228, 254, 258. His last-insured date for disability-insurance
benefits was September 30, 2009. Tr. 72, 75. He proceeded through the
administrative process, failing at each level. Tr. 1–3, 17–29, 79–86, 89–104, 119, 125–
26. This case followed. Doc. 1.
Agency Decisions
A single decision maker, 1 Luis Morales, made the initial disability-insurance
benefit determination, finding no medically determinable impairments, making no
residual-functional capacity assessment, and concluding Williams is not disabled. Tr.
89–93. Morales’s initial determination on supplemental-security income was similar
to his disability-insurance benefit determination except he found Williams had a
medically determinable, severe impairment (dysfunction—major joints) and made a
residual-functional-capacity assessment limiting Williams to lifting or carrying 50
pounds occasionally and 25 pounds frequently; climbing stairs or ramps frequently;

1A

single decision maker is not a medical professional, and his findings are
entitled to no weight as a medical opinion. Warren v. Astrue, 830 F. Supp. 2d 1369,
1372 (S.D. Fla. 2011).
2

climbing ladders, ropes, or scaffold occasionally; standing or walking for 6 hours in
an 8-hour workday; sitting for 6 hours in an 8-hour workday; and avoiding
concentrated exposure to extreme cold. Tr. 79–83. Morales found his ability to push
and pull (including the operation of hand or foot controls), balance, stoop, kneel,
crouch and crawl unlimited. Tr. 83. Morales opined he could perform past relevant
work. Tr. 85. On reconsideration, Edmund Molis, M.D., reviewed both disability
claims and found he did not have a medically determinable impairment. Tr. 94–98,
100–04. Dr. Molis therefore did not make a residual-functional-capacity assessment
and found he was not disabled. Tr. 98, 104.
Administrative Hearing
The ALJ conducted an evidentiary hearing at which Williams and a vocational
expert testified. Tr. 35–36. Williams testified as follows. He spends most of his days
either laying down or walking to alleviate pain but also does some housework
(laundry, some cooking, washing dishes, vacuuming, taking out the trash, and
occasional mopping), reads newspapers and magazines, watches television, listens to
the radio or music, uses his phone to go on Facebook and the internet and play games,
goes to the grocery store once a month, and visits friends and relatives roughly twice
a week. Tr. 42–45. He can dress and bathe himself. Tr. 46. When he has a lot of back
pain, he uses a cane. Tr. 46. Although his doctor did not prescribe it, she knew he was
using one and said it was a good idea to take the pressure off his leg and ankle. Tr.
46–47.

3

The ALJ asked the vocational expert to consider a person who: has a tenthgrade education, can perform only light work; needs a sit/stand option (meaning he
needs to be able to either sit or stand to perform the task at hand at his option); must
avoid ladders, unprotected heights, and the operation of heavy moving machinery;
can only occasionally bend, crouch, kneel, or stoop; must avoid squatting or crawling;
must avoid operating foot controls; and must avoid the push/pull of arm controls. Tr.
50–51. The vocational expert opined the person could not perform Williams’s past
work. Tr. 51. The ALJ then asked the vocational expert to assume the person has no
skills or some skills with the same age, work experience, education, and limitations,
and the vocational expert opined he could perform jobs of ticket taker, ticket seller,
surveillance-system monitor, and table worker. Tr. 51–52. The vocational expert
explained the jobs permit two 15-minute breaks and one 30-minute lunch break. Tr.
53. He also opined Williams could be absent once a month and maintain competitive
employment. Tr. 53. Williams’s attorney asked if adding as a restriction the use of a
mono-cane for ambulation would affect any of the jobs he could do, and the vocational
expert opined it would have no impact on a table-worker job and little or less on the
others. Tr. 54.
ALJ’s Decision
At step two, 2 the ALJ found Williams has severe impairments of disorders of
the spine and arthritis of the hand and ankle. Tr. 22. At step three, he found

2The

Social Security Administration (SSA) uses a five-step sequential process
to decide if a person is disabled, asking: (1) if he is engaged in substantial gainful
activity; (2) if he has a severe impairment or combination of impairments; (3) if the
4

Williams’s impairments, whether individually or in combination, did not meet or
medically equal the severity of any impairment in the Listing of Impairments, 20
C.F.R. Part 404, Subpart P, App’x 1. Tr. 22–23. After stating he had considered the
entire record, the ALJ found Williams has the residual functional capacity to perform
light work as defined under 20 C.F.R. §§ 404.1567(b) and 416.967(b) 3 except he: (1)
can occasionally bend, crouch, kneel, and stoop; (2) must avoid squatting, crawling,
ladders, unprotected heights, and the operation of heavy, moving machinery; (3) must
use a mono-cane to walk and be able to sit or stand at will; and (4) must avoid the
operation of foot controls and the push/pull of hand controls. Tr. 23.
The ALJ summarized Williams’s medical records, including two emergencyroom visits, x-ray results, a consultative examination with Bhupendra Gupta, M.D.,
a podiatry examination, and the treatment records of his primary care physician,
Benedict Maniscalco, M.D. Tr. 24–26. From the podiatry records, the ALJ observed
Williams had an antalgic gait (the stance phase of gait shortened on the affected side

impairment meets or equals the severity of anything in the Listing of Impairments,
20 C.F.R. Part 404, Subpart P, App’x 1; (4) given his residual functional capacity, if
he can perform any of his past relevant work; and (5) given his residual functional
capacity, age, education, and work experience, if there are a significant number of
jobs in the national economy he can perform. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4).
3“Light

work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b),
416.967(b). “Even though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls.” Id. To be considered
capable of performing a full or wide range of light work, you must have the ability to
do substantially all of these activities.” Id.
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resulting from pain on weight bearing)4 and reduced range of motion but normal xrays and was diagnosed with tenosynovitis (inflammation of a tendon and its
enveloping sheath), mild plantar fasciitis (inflammation of the fibrous tissue beneath
the sole of the foot), and neuroma (abnormal growth of nerve cells) pain. Tr. 24. He
observed Williams was treated with strapping, a controlled-ankle-movement (CAM)
boot, and injections and was prescribed an ankle brace. Tr. 24. He observed Williams
reported some improvement with treatment. 5 Tr. 24.
The ALJ found the severity of Williams’s alleged symptoms and the effect on
function somewhat inconsistent with the “medical and nonmedical evidence,
including statements by the claimant and others, observations regarding activities of
daily living, and alternations of usual behavior or habits.” Tr. 25. He found Williams’s
activities “suggest a level of concentration inconsistent with a disabling level of pain.”
Tr. 25. He observed several treatment notes reflected Williams “was feeling fine,
which contrasts with the current claim of ongoing, disabling symptoms since the
alleged onset date.” Tr. 25–26. He observed Williams’s treatment was routine and

4All

parenthetical definitions of medical terms are from STEDMAN’S MEDICAL
DICTIONARY (William R. Hensyl et al. eds., 25th ed. 1990).
5The

record includes four separate treatment notes from Williams’s podiatrist,
Dr. Kaplan, but the only discernable date is January 30, 2012, which appears to be
the earliest record. Tr. 372. The ALJ refers to a March 2012 exam and a July 2012
visit. Tr. 24. Williams contends he saw Dr. Kaplan from January to May 2012. Doc.
16 at 3. The Commissioner observes he saw Dr. Kaplan from January to July 2012.
Doc. 17 at 9. The Court need not resolve the discrepancy because the exact treatment
dates are immaterial. It is enough to say that Dr. Kaplan treated Williams for foot
pain over the course of several months.
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conservative, with no history of surgery or restrictions, he could ambulate without an
assistive device, and he failed to follow up with his treatment recommendations like
physical therapy and smoking cessation. Tr. 26.
The ALJ gave significant weight to the opinions of Dr. Maniscalco, Dr. Gupta,
and the state-agency evaluators. Tr. 26. Dr. Maniscalco reported Williams had a good
to moderate response to treatment when compliant. 6 Tr. 26. Dr. Gupta opined
Williams could walk without an assistive device, get on and off the examination table,
and dress and undress himself despite his antalgic gait. Tr. 26. The ALJ observed Dr.
Gupta based his opinions on a comprehensive examination of Williams and review of
the records. Tr. 26. The ALJ observed these opinions, along with those of the stateagency evaluators, were consistent with the record. Tr. 26. He found Williams may
have discomfort but failed to show he suffers from the type of pain that would
preclude him from working with the accommodations the ALJ outlined. Tr. 26. At
step four, based on the residual-functional-capacity assessment, he determined
Williams could perform no past relevant work. Tr. 27. At step five, he found Williams
could perform the jobs the vocational expert identified and therefore was not disabled.
Tr. 27–28.

6Dr.

Maniscalco treated Williams primarily for chest pain but made other
observations and treatment recommendations. Williams does not allege a disability
based on any heart condition; therefore, the Court does not address his treatment
records as they relate to his heart.
7

Standard of Review
A court’s review of an ALJ’s decision is limited to determining whether the ALJ
applied the correct legal standards and whether substantial evidence supports his
findings. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial
evidence is “less than a preponderance”; it is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Id. The court may not
decide facts anew, reweigh evidence, make credibility determinations, or substitute
its judgment for the Commissioner’s judgment. Id.
Analysis
I.

The ALJ did not err in weighing Dr. Kaplan’s opinions and
determining Williams’s residual functioning capacity.
A social-security claimant must prove that he is disabled. 20 C.F.R. §§

404.1512, 416.912; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). “Disability”
is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which … 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). The claimant has the burden of persuasion through step four of the
five-step process. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At step four, an ALJ
must evaluate the claimant’s ability to perform his past relevant work in light of his
residual functional capacity. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir.
2004). The residual functional capacity is an assessment based on all relevant
evidence of a claimant’s remaining ability to work despite her impairments. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
8

A medical opinion is a statement reflecting judgment about the nature and
severity of an impairment and what a claimant can still do despite it. 20 C.F.R.
§§ 404.1527(a)(2), 416.927(a)(2). An ALJ must evaluate each medical opinion
regardless of its source, 20 C.F.R. §§ 404.1527(c), 416.927(c), and state with
particularity the weight he gives it and the reasons why, Winschel v. Comm’r of Soc.
Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). An ALJ must give considerable weight to
a treating physician’s opinion unless he shows good cause for not doing so. Phillips,
357 F.3d at 1240. Good cause exists if (1) the evidence did not bolster the opinion, (2)
the evidence supported a contrary finding, or (3) the opinion was conclusory or
inconsistent with his own medical records. Id. at 1240−41. If an ALJ disregards the
opinion, he must clearly articulate his reasons. Id. Substantial evidence must support
those reasons. Id.
An ALJ must consider all record evidence in making a disability
determination. 20 C.F.R. §§ 404.1520(a)(3), 416.920(a)(3). “[T]here is no rigid
requirement that the ALJ specifically refer to every piece of evidence in his decision,
so long as the ALJ’s decision … is not a broad rejection which is not enough to enable
[the Court] to conclude that [the ALJ] considered [the claimant’s] medical condition
as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (quotations
omitted). An ALJ’s determination may be implicit, but the “implication must be
obvious to the reviewing court.” Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir.
1983). An ALJ has a heightened duty to discuss medical opinions and may not

9

implicitly reject them where the reasons are not obvious. McClurkin v. Soc. Sec.
Admin., 625 F. App’x 960, 963 (11th Cir. 2015).
If an ALJ fails to state the weight given to medical opinions, the error is
harmless if the opinions do not contradict the ALJ’s findings. Wright v. Barnhart, 153
F. App’x 678, 684 (11th Cir. 2005). An error is harmless if it does not affect the
outcome or a party’s substantial rights. Perry v. Astrue, 280 F. App’x 887, 893 (11th
Cir. 2008). “[T]he burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409
(2009).
Williams argues the ALJ failed to state the weight he gave Dr. Kaplan’s
records. Doc. 16 at 7–8. He observes the ALJ referred to some but not all of his
treatment notes and argues that failure was error because they demonstrate his
inability to ambulate effectively and would have reduced his residual functional
capacity to sedentary work, eliminating two of the four jobs the vocational expert
identified. Doc. 16 at 8–9. He argues the ALJ placed significant weight on the opinions
of the state-agency “evaluators” without identifying them or meaningfully discussing
their findings. Doc. 16 at 9–10. He argues the ALJ found their opinions consistent
with the record as a whole but they conflict with each other as to whether he was
limited to medium work, has any other limitation, and can perform his past relevant
work. Doc. 16 at 10.
The Commissioner responds substantial evidence supports the ALJ’s residualfunctional-capacity finding based on Dr. Maniscalco’s opinions, Dr. Gupta’s opinions,

10

Williams’s medical records, and his activities of daily living. Doc. 17 at 6–12. She
argues Williams does not cite any opinion from Dr. Kaplan, instead citing his
subjective complaints, diagnoses, and treatment modalities, which are not entitled to
great weight. Doc. 17 at 12–13. She observes, although the ALJ did not mention Dr.
Kaplan’s name, he discussed the treatment records in his decision, and they support
the residual-functional-capacity finding because they reflect improvement and relief
with treatment. Doc. 17 at 12 n.2, 13 (citing Tr. 366–67. 369, 371). She argues Dr.
Kaplan provided no opinion about any work-related limitation or judgment about his
impairments. Doc. 17 at 13. She argues the ALJ accounted for his subjective
complaints of right ankle pain and antalgic gait by limiting Williams to light work
with a sit/stand option, requiring the use of a mono-cane, and precluding the
operation of foot controls. Doc. 17 at 13 (citing Tr. 23). She observes medical records
after Dr. Kaplan’s treatment do not mention ambulation difficulties and state
Williams has “[n]o physical disability.” Doc. 17 at 13 (citing Tr. 389). The
Commissioner argues, therefore, even if the Court considers Dr. Kaplan’s treatment
notes to be medical opinions, the ALJ accounted for them despite not formally stating
the weight he was giving them. Doc. 17 at 14.
On the state-agency evaluators, she argues the ALJ considered and gave
significant weight to Dr. Molis’s opinion after reviewing the file that Williams had no
severe impairments. Doc. 17 at 15. Although the ALJ found Williams was further
limited, she argues Dr. Molis’s opinion supports his finding Williams could perform
at least some light work. Doc. 17 at 15. She acknowledges the ALJ relied on a single

11

decision maker’s findings but argues any reliance on his report is harmless because
he referenced the combined opinions of both Morales and Dr. Molis and gave much
greater consideration and discussion to the reports of Drs. Gupta and Maniscalco.
Doc. 17 at 15.
Williams does not cite a particular medical opinion in Dr. Kaplan’s treatment
notes the ALJ failed to address. He argues the ALJ mentions the notes of “the
podiatrist” without naming him or assigning his opinions any weight, Doc. 16 at 3,
but the ALJ mentioned Dr. Kaplan’s observations and considered them. Tr. 24.
Williams highlights Dr. Kaplan’s observation he had a severe antalgic gait and
argues “[a] fair reading of the findings in these notes would impact [his] ability to
walk and stand.” Doc. 16 at 3. He also observes Dr. Kaplan’s notes reflect pain upon
ambulation. Doc. 16 at 9. He asks the Court to either infer an opinion from Dr.
Kaplan’s notes, which he did not give, or reweigh the evidence, which it cannot do.
See Moore, 405 F.3d at 1211. Dr. Kaplan made no evaluation of his ability to walk
and stand despite his pain in the treatment notes, and the ALJ had no obligation to
give general observations that would not constitute medical opinions great weight.
Even if those observations were opinions, the ALJ accounted for Williams’s
difficulties walking and standing by limiting him to a sit/stand option and requiring
him to be able to use a mono-cane. Tr. 23. He considered Dr. Kaplan’s notes as part
of the medical record demonstrating conservative treatment, like using a boot and
giving injections, and observed Williams’s improvement under the supervision of
doctors including Dr. Kaplan. Tr. 24–26. The ALJ did not err in failing to provide

12

further discussion of Dr. Kaplan’s treatment notes or discuss the weight he was giving
the observations (not medical opinions regarding his ability to work despite his
limitations) in them.
Even if the ALJ failed to account for Dr. Kaplan’s observations, any error is
harmless. Williams argues his inability to ambulate effectively would limit him to
sedentary work. Doc. 16 at 9. But he acknowledges this change might not change the
outcome because it would only eliminate two of the four jobs the ALJ found he can
perform. Doc. 16 at 9. Because Williams could still perform at least two jobs
(surveillance-system monitor and table worker), he has not shown harmful error, see
Shinseki, 556 U.S. at 409.
On the opinions of the state agency evaluators, it is unclear exactly what
opinions the ALJ was giving significant weight to beyond their conclusions Williams
was not disabled. The ALJ should not have given any weight to an opinion of a singledecision maker, but Dr. Molis’s determination was consistent with the initial
disability-insurance benefits determination, rendering any reliance on the singledecision maker’s findings harmless. Any error is also harmless because the ALJ’s
discussion of their opinions was minimal and he found greater restrictions than either
state-agency evaluator; giving their opinions less or no weight would not change the
outcome of his decision. See Perry, 280 F. App’x at 893.
To the extent Williams challenges the ALJ’s residual-functional-capacity
assessment overall, substantial evidence supports his assessment. He argues the ALJ
observes he had not been to physical therapy as recommended in January 2013 but

13

he went later in April 2013. Doc. 16 at 4. That he ultimately attended physical
therapy does not detract from the ALJ’s observation he failed to comply with the
recommendation to pursue physical therapy and a neurosurgery consultation for
months. Tr. 26, 383 (referral for both physical therapy and neurosurgery in July
2012), 395 (referral to neurologist for evaluation of abnormal spine MRI in May 2012),
444 (had not scheduled neurosurgery or physical therapy appointment in November
2012); 501 (still no physical therapy in January 2013). The ALJ’s interpretation of
the evidence—that Williams’s symptoms were not as disabling as he claimed them to
be in light of this failure—was reasonable. 7 Other evidence supporting his
assessment includes mostly normal x-rays of his spine, hands, and ankles, Tr. 348,
372, 413, 422–24, 509–11; his conservative treatment (advised to avoid heavy lifting
and follow up with primary-care physician, Tr. 330, given injections for foot pain, and
instructed to wear a CAM boot for pain and ankle brace for mild swelling, Tr. 369–
72); his reports of feeling fine or okay, and failure to report back or extremity pain on
examination, Tr. 337, 382, 519; his sporadic work history before the alleged onset
date, Tr. 251–52, 259; and his activities of daily living inconsistent with a disabling
level of pain, Tr. 42–46. Tr. 23–27. He has therefore failed to demonstrate the ALJ
erred in determining his residual functional capacity.

7The

subsequent physical therapy records were also not before the ALJ. Tr. 1,
5, 533–39. Although Williams submitted the records to the Appeals Council, he does
not raise any issue concerning its consideration of this evidence.
14

II.

The ALJ did not err in posing hypotheticals to the vocational expert
and relying on his testimony.
At step five, an ALJ must decide whether a significant number of one or more

jobs that the claimant can perform exist in the national economy. 20 C.F.R.
§§ 404.1566(b), 416.966(b). An ALJ may use a vocational expert’s testimony for that
determination. Winschel, 631 F.3d at 1180. For a vocational expert’s testimony to be
substantial evidence, the ALJ must pose a hypothetical question that includes all of
the claimant’s impairments. Id.
Williams argues the ALJ posed a hypothetical to the vocational expert
involving a person who could perform light work with a sit/stand option, could only
occasionally bend, crouch, kneel, or stoop, and needed to avoid the push/pull of arm
controls. Doc. 16 at 10 (citing Tr. 50–51). He argues this hypothetical is incomplete
because the ALJ found Williams also required a mono-cane for ambulation and must
avoid the operation of foot controls, preventing the ALJ from relying on the vocational
expert’s testimony to conclude he could perform entry-level jobs. Doc. 16 at 11. He
acknowledges this may not change the ultimate result but contends the error cannot
be corrected without asking the vocational expert the impact of these limitations. Doc.
16 at 11.
The Commissioner responds the ALJ posed additional limitations to the
vocational expert. Doc. 17 at 17. She observes Williams’s representative then asked
the vocational expert whether needing to use a cane and walk about at will would
eliminate the jobs identified and he responded the additional limitation would
“probably have little effect” on the ticket-seller and ticket-taker jobs, “would have
15

very little impact” on the surveillance-system monitor job, and “wouldn’t have any
impact” on the table-worker job. Doc. 17 at 17–18 (citing Tr. 54). She argues the
hypotheticals posed to the vocational expert and Williams’s residual functional
capacity are the same, Williams failed to prove he could not perform the jobs the
vocational expert and the ALJ identified, and the vocational expert’s testimony thus
provides substantial evidence to support the ALJ’s conclusion Williams could perform
other work and was not disabled. Doc. 17 at 18–19.
The Commissioner correctly represents the vocational expert’s testimony and
Williams does not. The ALJ asked him to assume Williams could not operate foot
controls and his representative asked him about the use of a mono-cane. Tr. 50–51,
54. Williams’s argument the hypothetical was incomplete is without merit.
Conclusion
For those reasons, the Court affirms the Commissioner’s decision denying
Williams’s claim for benefits and directs the clerk to enter judgment in favor of the
Commissioner and close the file.
Ordered in Jacksonville, Florida, on March 14, 2016.

c:

Counsel of Record

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