Dicks v. Commissioner of Social Security

Filing 16

OPINION AND ORDER reversing the Commissioner's decision and remanding with instructions. Signed by Magistrate Judge Monte C. Richardson on 9/16/2016. (MEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CATHERINE M. DICKS,
Plaintiff,
v.

Case No. 3:15-cv-934-J-MCR

CAROLYN W. COLVIN, Commissioner of
the Social Security Administration,
Defendant.
_________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for a period of disability and Disability Insurance
Benefits. Plaintiff alleges she became disabled on November 11, 2009. (Tr.
297.) Plaintiff’s claim was denied initially and on reconsideration. (Tr. 115-17,
119-20.) After a hearing (Tr. 40-65), the assigned Administrative Law Judge
(“ALJ”) found that Plaintiff was not disabled. (Tr. 94-103.) Plaintiff requested
review of the ALJ’s decision. (Tr. 177-78.) The Appeals Council remanded the
case to the ALJ for further proceedings. (Tr. 109-10.) The ALJ held another
hearing on September 4, 2013, at which Plaintiff was represented by an attorney.
(Tr. 66-88.) The ALJ found Plaintiff not disabled from November 11, 2009, the
alleged onset date, through December 31, 2010, the date last insured. (Tr.

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The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 12.)

21-34.)
In reaching the decision, the ALJ found that Plaintiff had severe
impairments, including disorders of the spine, Budd-Chiari syndrome, and history
of Meniere’s disease. (Tr. 23.) The ALJ also found that Plaintiff had the residual
functional capacity (“RFC”) to perform light work with limitations. (Tr. 25.)
Plaintiff is appealing the Commissioner’s decision that she was not
disabled from November 11, 2009 through December 31, 2013. Plaintiff has
exhausted her available administrative remedies and the case is properly before
the Court. The undersigned has reviewed the record, the briefs, and the
applicable law. For the reasons stated herein, the Commissioner’s decision is
REVERSED and REMANDED.
I.

Standard of Review
The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
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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 v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
II.

Discussion
Plaintiff raises three general issues on appeal. Plaintiff argues that the ALJ

failed to articulate good cause for discounting the opinions of Plaintiff’s treating
physician, Robert Valentine, Jr., M.D. Plaintiff also argues that the ALJ erred in
failing to properly consider the opinions of examining physician, Lily Rocha, M.D.
Finally, Plaintiff contends that the ALJ failed to articulate good cause for
discounting the opinions of Plaintiff’s treating physician, Michele St. Martin, M.D.
Defendant responds the ALJ’s evaluation of the medical opinions of record is
clearly articulated and supported by substantial evidence.
A.

Standard for Evaluating Opinion Evidence

The ALJ is required to consider all the evidence in the record when making
a disability determination. See 20 C.F.R. § 404.1520(a)(3). With regard to
medical opinion evidence, “the ALJ must state with particularity the weight given
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to different medical opinions and the reasons therefor.” Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Substantial weight must be
given to a treating physician’s opinion unless there is good cause to do otherwise.
See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
“‘[G]ood cause’ exists when the: (1) 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.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless weigh the medical opinion based on: (1) the length of the
treatment relationship and the frequency of examination, (2) the nature and
extent of the treatment relationship, (3) the medical evidence supporting the
opinion, (4) consistency of the medical opinion with the record as a whole, (5)
specialization in the medical issues at issue, and (6) any other factors that tend to
support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6).
Although a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d 513, 518
(11th Cir. 1984) (per curiam); 20 C.F.R. § 404.1527(c)(2), “[t]he opinions of state
agency physicians” can outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted.” Cooper v. Astrue, 2008 WL 649244
at *3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ may reject any medical opinion
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if the evidence supports a contrary finding.” Wainwright v. Comm’r of Soc. Sec.
Admin., Case No.: 06-15638, 2007 WL 708971 at *2 (11th Cir. Mar. 9, 2007) (per
curiam); see also Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per
curiam) (same).
“The ALJ is required to consider the opinions of non-examining state
agency medical and psychological consultants because they ‘are highly qualified
physicians and psychologists, who are also experts in Social Security disability
evaluation.’” Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. May 2, 2008)
(per curiam); see also SSR 96-6p (stating that the ALJ must treat the findings of
State agency medical consultants as expert opinion evidence of non-examining
sources). While the ALJ is not bound by the findings of non-examining
physicians, the ALJ may not ignore these opinions and must explain the weight
given to them in his decision. SSR 96-6p.
B.

The ALJ’s Decision

The ALJ found that Plaintiff had severe impairments, including disorders of
the spine, Budd-Chiari syndrome, and history of Meniere’s disease. However,
the ALJ found that “[t]hrough the date last insured (12/31/2010) the claimant did
not have any impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1536).” (Tr. 25.)
The ALJ then made the following RFC determination:
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[Plaintiff] had the [RFC] to perform light work as defined in 20
CFR 404.1567(b) except with no more than occasional
climbing of ramps and stairs, balancing, stooping, kneeling,
crouching, and crawling; no climbing of ladders, ropes, or
scaffolds; no concentrated exposure to hazards (machinery,
heights, etc.); avoid even moderate exposure to noise and
vibrations; no more than simple, routine, repetitive tasks due to
pain; and needs to change positions between sitting/standing
at will.
(Id.)
In making this finding, the ALJ gave “no significant weight” to Dr.
Valentine’s treating opinions regarding Plaintiff’s spine limitations. (Tr. 19.) The
ALJ stated:
I have considered the opinion of Dr. Valentine and give it no
significant weight. I note that Dr. Valentine has a treatment
history with the claimant; however, his opinion is not supported
by his own treatment records, which show pain resolved with
epidural steroid injections. Furthermore, in May of 2009, the
claimant did not consider herself disabled due to pain. I note
that post DLI treatment records document continued
complaints of pain; however, clinical findings were normal,
including normal strength and straight leg test. The mere
existence of some pain, even chronically, does not require a
finding that the claimant cannot work and the fact that working
may cause pain and discomfort does not mandate a finding of
disability. While the claimant’s complaints of pain have some
basis in objective findings, the evidence fails to establish that
the level of pain precludes all levels of functioning.
(Tr. 31) (internal citations omitted.) The ALJ also gave the opinions of Dr. Rocha
“some weight” and explained as follows:
I have considered the opinion of Dr. Rocha and give it some
weight. I note that Dr. Rocha’s opinion is fairly consistent with
the assessed/established RFC and is supported by mostly
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normal clinical findings; however, this examination was
performed and the opinion was given after the claimant’s date
last insured . . . Furthermore, I give no significant weight to the
examination or opinion performed in August of 2013, which is
2 years, 8 months after the claimant’s date last insured (DLI).
It is also emphasized that the claimant underwent the
examinations that formed the basis of the opinions in question
not in an attempt to seek treatment for symptoms, but rather,
through attorney referral and in connection with an effort to
generate evidence for the current appeal. Further, the doctor
was presumably paid for the report. Although such evidence
is certainly legitimate and deserves due consideration, the
context in which it was produced cannot be entirely ignored.
(Id) (internal citations omitted.) Finally, the ALJ gave the opinions of Dr. St.
Martin “no weight based on res judicata.” (Id.)
C.

Analysis

Plaintiff’s first argument is that the ALJ failed to articulate sufficient good
cause to discount the opinions of Dr. Valentine. The undersigned agrees.
Dr. Valentine completed a detailed, handwritten RFC Questionnaire on
August 12, 2011. (Tr. 581-85.) In the report, Dr. Valentine diagnosed Plaintiff
with low back pain, muscle spasms, Chiari malformation, disc displacement in her
lumbar spine, and lumbar radiculitis, causing low back pain radiating to Plaintiff’s
right leg, as well as neck and shoulder pain. (Tr. 581.) Dr. Valentine cited
objective findings for the diagnoses, including limited range of lumbar motion,
variable spasms, L3-4 annular fissure, and L5-S1 disc herniation. (Id.) Dr.
Valentine opined that the pain Plaintiff experiences would frequently be severe
enough to interfere with her attention and concentration needed to perform even
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simple tasks. (Tr. 582.) He further opined that Plaintiff could only sit for thirty
minutes before needing to stand up and could only stand for thirty minutes before
needing to sit down or walk around. (Id.) Dr. Valentine opined that Plaintiff could
only stand/walk for about two hours in an eight hour workday. (Tr. 583.)
Ultimately, Dr. Valentine assigned lifting and neck limitations, stated that
Plaintiff’s impairments would produce good and bad days, and opined that she
would likely be absent from work approximately four (4) days per month as a
result of her impairments. (Tr. 583-84.) Dr. Valentine stated that the limitations
applied as of November 2009. (Tr. 585.) On August 23, 2013, Dr. Valentine
prepared a follow-up report on Plaintiff’s limitations. He stated that the
“limitations are unchanged as of 4/9/2012,” and affirmed that the limitations
applied as of November 2009. (Tr. 603.)
The undersigned agrees with Plaintiff that the ALJ failed to sufficiently
articulate good cause for rejecting the opinions of Dr. Valentine. First, the ALJ
stated that Dr. Valentine’s opinions were inconsistent with his treating notes
because they show that “pain resolved with epidural steroid injections.” (Tr. 31.)
When viewed in context, however, the treatment notes do not show that
Plaintiff’s pain “resolved” with ESI. In fact, the most recent ESI, performed in
December 2010 via the caudal approach, apparently failed to resolve Plaintiff’s
pain. (Tr. 570.) Dr. Valentine also specifically noted that Plaintiff’s pain returned
after the transforaminal ESI conducted on May 14, 2009. (Tr. 574-75 (“[Plaintiff]
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reports several weeks of excellent relief from her previous L5 transforaminal
injection, but the pain ret’d.” (emphasis added).) Dr. Valentine reported Plaintiff’s
pre-injection pain at 5/10 and post-injection pain at 7/10 during a transforaminal
ESI conducted on January 21, 2010. (Tr. 573.) Notably, Dr. Valentine continued
to treat Plaintiff for continued pain through April 2012, reflecting multiple
ineffective treatment sources, and frequently adjusting medications. (See Tr.
562, 564, 567, 569, 570, 595, 597, 599, 601 (noting “Failed analgesics, antiinflammatory, physical therapy, exercise, 12/10 caudal ESI, salsalate,” and
change of various medications due to ineffectiveness).) It appears the ALJ found
an “inconsistency” between Dr. Valentine’s opinions and his treatment records by
“cherry-picking” an out of context statement that “pain resolved” from Dr.
Valentine’s progress notes. (See, e.g., Tr. 562.) However, it is clear than an
“ALJ is obligated to consider all relevant medical evidence and may not cherrypick facts to support a finding of non-disability while ignoring evidence that points
to a disability finding.”2 Goble v. Astrue, 385 F. App’x 588, 593 (7th Cir. 2010)
(citing Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009)).

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It is also noteworthy that the ALJ did not discuss Dr. Scott’s treatment of Plaintiff
in conjunction with Dr. Valentine. Dr. Scott examined Plaintiff in August 2009 and, like
Dr. Valentine, noted that Plaintiff’s “first lumbar ESI did give her three weeks of relief,
however, the second injection did not give her any relief.” Dr. Scott then referred
Plaintiff to physical therapy and stated that “if [Plaintiff] does not improve she will return
to see [him] and discuss further surgical options.” (Tr. 456.) On October 19, 2009, Dr.
Scott examined Plaintiff and noted that she “finds the massage to be helpful but the
other modalities have not improved her symptoms.” (Tr. 455.)
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The ALJ also discredited Dr. Valentine’s opinions because “in May of 2009,
[Plaintiff] did not consider herself disabled due to pain.” (Tr. 31.) The ALJ
references the “History” section of a printed treatment note from May 14, 2009,
whereupon the word “No” is listed next to the question “Considers self disabled
by pain?” (Tr. 576.) The ALJ’s reasoning in this regard is insufficient.
First, it is unclear how Plaintiff’s own view of her disability status in May of
2009 is inconsistent with Dr. Valentine’s opinions that applied as of November of
2009. Similarly, Plaintiff’s statement regarding her disability status was made
prior to her alleged onset date of November 11, 2009. Second, without further
information, it is impossible to determine whether Plaintiff understood and utilized
the same definition of disability contemplated by Dr. Valentine and the Social
Security Administration. Accordingly, Plaintiff’s statement regarding her disability
status in May of 2009 does not constitute good cause for discounting Dr.
Valentine’s opinions.
In light of this conclusion and the possible change in the RFC assessment,
the Court also finds it unnecessary to address whether the ALJ erred in analyzing
the opinions of Drs. Rocha and St. Martin. See Jackson v. Bowen, 801 F.2d
1291, 1294 n.2 (11th Cir. 1986) (per curiam); Freese v. Astrue, 2008 WL
1777722, at *3 (M.D. Fla. Apr. 18, 2008); see also Demenech v. Sec’y of the
Dep’t of Health & Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam).
The ALJ will nevertheless be directed to re-consider the opinions of Drs. Rocha
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and St. Martin on remand.
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is REVERSED pursuant to sentence

four of 42 U.S.C. § 405(g) and REMANDED with instructions to the ALJ to: (a)
reconsider the opinions of Drs. Valentine, Rocha, and St. Martin, explain what
weight they are being accorded, and the reasons therefor; (b) reconsider the RFC
assessment, if necessary, and (c) conduct any further proceedings deemed
appropriate.
2.

The Clerk of Court is directed to enter judgment consistent with this

Order and close the file.
3.

Plaintiff’s counsel is advised that, in the event benefits are awarded

on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the
parameters set forth by the Order entered in Case No.: 6:12-124-Orl-22 (In re:
Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) &
1383(d)(2)). This Order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED at Jacksonville, Florida, on September 16, 2016.

Copies to:
Counsel of Record
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