Knott v. Commissioner of Social Security

Filing 27

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. 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 2/22/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DEBORAH A. KNOTT,
Plaintiff,
v.

Case No: 3:15-cv-1231-J-DNF

CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Deborah A. Knott, 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 legal memoranda setting forth their respective
positions. For the reasons set out herein, the decision of the Commissioner is AFFIRMED
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
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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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
record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d

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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, DIB, and SSI on January 4, 2012. (Tr.
164-69). Plaintiff’s application for a period of disability and DIB specified an alleged onset date
of March 22, 2010, and her application for SSI specified an alleged onset date of March 22, 2011.
(Tr. 164, 166). Plaintiff’s applications were denied initially on March 28, 2012, and upon
reconsideration on June 8, 2012. (Tr. 86-90, 92-97, 98-102, 104-08). Plaintiff requested a hearing
and on October 15, 2013, a hearing was held before Administrative Law Judge Robert Droker
(“the ALJ”). (Tr. 29-49). On November 11, 2013, the ALJ entered an unfavorable decision finding
that Plaintiff was not disabled from March 22, 2011, through the date of the decision. (Tr. 14-28).
Plaintiff appealed the ALJ’s decision and, on August 17, 2015, the Appeals Council denied
Plaintiff’s request for review. (Tr. 1-7). Plaintiff initiated the instant suit by Complaint (Doc. 1)
filed on October 15, 2015.
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 March 22, 2011, the alleged onset date. (Tr. 16). At step two,
the ALJ found that Plaintiff had the following severe impairments: disorders of the spine,
neuropathy, shoulder disorder and fibromyalgia. (Tr. 16). At step three, the ALJ found that

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Plaintiff did not have an impairment or combination of impairments that meets or medically equals
the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr.
17).
Before proceeding to step four, the ALJ found that, through the date last insured, Plaintiff
had the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except that the claimant must be afforded the opportunity to alternate
between sitting and standing; she must avoid ladders, unprotected heights
and the operation of heavy moving machinery; she must only occasionally
bend, crouch, kneel or stoop; she must avoid squatting, crawling,
operating foot controls and the pushing or pulling of arm controls; and she
must be allowed to use a single-point cane for ambulation..
(Tr. 17). At step four, the ALJ found that Plaintiff was not capable of performing her past relevant
work as a delivery route truck driver, bus driver, van driver, or delivery driver, prescriptions. (Tr.
22). At step five, the ALJ relied on the testimony of a vocational expert to find that there are jobs
that exist in significant numbers that Plaintiff could perform. (Tr. 23). Specifically, the vocational
expert identified such jobs as ticket seller, cashier II, storage rental clerk, addresser, and
surveillance system monitor. (Tr. 23). The ALJ concluded that Plaintiff was not under a disability
from March 22, 2011, through the date of the decision, November 1, 2013. (Tr. 24).
II.

Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ erred by failing to accurately

and fairly assess the propriety of Plaintiff’s pursuit of treatment; (2) whether the ALJ erred by
mischaracterizing the evidence; and (3) whether the ALJ erred by failing to substantially evaluate
Plaintiff’s activities of daily living. The Court will address the first two issues together and the
rest in turn.

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a) Whether the ALJ erred by failing to accurately and fairly assess the propriety of
Plaintiff’s pursuit of treatment.
Plaintiff argues that the ALJ’s decision was based on the mistaken assumption that Plaintiff
acted in an ill-behaved manner by pursuing prescribed medications over recommended medical
procedures. (Doc. 22 p. 14). First, Plaintiff argues that the ALJ inaccurately found that Plaintiff
had “declined” trigger point injections that were offered by Dr. Trivedi. (Doc. 22 p. 14). Second,
Plaintiff contends the ALJ mischaracterized the record by finding that Plaintiff declined the
recommended treatments of Dr. Trivedi until Dr. Jaleel filled in for him. (Doc. 22 p. 15). Finally,
Plaintiff argues that the ALJ criticized Plaintiff for asking to be discharged against medical advice
while at St. Vincent’s Medical Center. (Doc. 22 p. 15). Plaintiff notes that evidence submitted to
the Appeals Council provides relevant evidence as to Plaintiff’s decision to be discharged, namely
that an IV was accidentally pulled out of her arm causing her great distress prompting her to leave.
(Doc. 22 p. 16). Plaintiff notes that she subsequently called for rescue services to take her to
Baptist Medical Center. (Doc. 22 p. 16). Plaintiff contends that the ALJ did not build an accurate
or logical bridge between the evidence and his conclusion. (Doc. 22 p. 16). In response, Defendant
argues that the ALJ accurately discussed the relevant medical evidence in finding that Plaintiff
could perform a reduced range of light work. (Doc. 26 p. 5).
Here, the Court finds that Plaintiff has failed to show that the ALJ erred in his
characterization of the evidence. The ALJ noted in his decision that Dr. Trivedi advised Plaintiff
to undergo trigger point injections and joint and bursa injections, but Plaintiff declined. (Tr. 19).
Dr. Trivedi’s progress notes from May 22, 2012, June 13, 2012, and June 26, 2012, show that Dr.
Trivedi had recommended trigger point injections, but Plaintiff stated that she wanted to “think
and decide about it.” (Tr. 715, 719, 722). The record does not contain any evidence showing
Plaintiff obtained trigger point injections per Dr. Trivedi’s recommendation, and Plaintiff does not
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allege that she has. While Plaintiff did not outright “decline” trigger point injections, the ALJ’s
wording is not altogether inaccurate, given there is no evidence Plaintiff followed his treatment
recommendation. Accordingly, the Court finds no error in this statement by the ALJ.
Likewise, the Court does not find that remand is warranted for Dr. Trivedi’s observation
that Plaintiff declined recommended treatment and instead obtained additional medication. (Tr.
19). Dr. Trivedi’s notes show that in May 2012, Dr. Trivedi scheduled the EMG nerve conduction
studies, advised Plaintiff to get the MRIs done, and prescribed Tramadol. (Tr. 715). Dr. Trivedi
again advised Plaintiff to get the EMG nerve conduction studies and the MRIs done on June 13,
2012, and June 26, 2012. (Tr. 719, 722). The record, at the time the ALJ entered his decision, did
not contain any evidence showing Plaintiff underwent the EMG nerve conduction study or
obtained an MRI as Dr. Trivedi advised.
In support of her argument that the ALJ erred by failing to accurately and fairly assess the
propriety of Plaintiff’s pursuit of treatment, Plaintiff now points to evidence submitted to the
Appeals Council after the ALJ’s decision that Plaintiff obtained an MRI of the lower back on June
14, 2014, at Baptist Medical Center. (Tr. 6, 736, 791-92, 794-95, 797-99). This evidence, which
was not submitted until after the ALJ entered his decision, cannot show that the ALJ improperly
considered the evidence. In the same way, Plaintiff’s argument that the ALJ erred by failing to
realize Plaintiff left St. Vincent’s Medical Center due to an IV being accidentally pulled out of her
arm is not well founded. The evidence explaining why Plaintiff left St. Vincent’s Medical Center
was not before the ALJ at the time he entered his decision, but submitted to the Appeals Council
afterwards.

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b) Whether the ALJ erred by mischaracterizing the evidence.
Plaintiff argues that the ALJ mischaracterized the treatment records from Dr. Czerkawski
and the Baptist Medical Center by suggesting that they acted as pill pushers. (Doc. 22 p. 17).
Additionally, Plaintiff contends that the ALJ’s mention of “largely normal” objective testing at
the Baptist Medical Center is misleading as the ALJ failed to acknowledge the objective medical
evidence of record documenting Plaintiff’s impairments. (Doc. 22 p. 18). Plaintiff argues that
the ALJ”s portrayal of Plaintiff as steadfastly pursuing pain medications significantly contributed
to the ALJ’s determination that inaccurately discounted the severity of Plaintiff’s pain. (Doc. 22
p. 19). In response, Defendant argues that the ALJ properly considered the records from Dr.
Czerkawski and Baptist Medical Center and accurately described what was contained in the
medical records. (Doc. 26 p. 7).
Here, contrary to Plaintiff’s arguments, the ALJ did not misconstrue the record from Dr.
Czerkawski and Baptist Medical Center but simply described what was contained in the medical
records. The ALJ noted that in May 2012, Dr. Czerkawski prescribed a small dose of pain
medications due to a concern about controlled substance abuse. (Tr. 21, 449). The ALJ’s
statement is consistent with Dr. Czerkawski’s note, which states “we’ll give a small dose of
hydrocodone concerned about the controlled substance abuses above.” (Tr. 21, 449).
Further, the ALJ considered the July 2013 records from Baptist Medical Center. (Tr. 20,
570-2). The ALJ noted that Plaintiff presented to Baptist Medical Center in July 2013 after a
fall, but that objective testing was largely normal. (Tr. 20, 570-72). On examination, Plaintiff
had a non-tender back, with normal range of motion and normal alignment. (Tr. 572). Plaintiff
demonstrated a normal range of motion, normal strength, and intact cranial nerves II through XII,
as well as normal sensory and motor examinations. (Tr. 572). Additionally, the July 2013
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imaging scans of Plaintiff’s left shoulder, chest, and both hips were negative. (Tr. 20, 573-75).
Plaintiff asserts that MRIs provide greater information than x-rays and that the ALJ did not
consider Plaintiff’s April 2011 MRI, but the ALJ’s decision shows he considered the April 2011
MRI and specifically noted that it revealed disc protrusions at T6-7 and T7-8, with mild to
moderate indentation on the spinal cord at T6-7, and mild dural sac indention at T7-8. (Tr. 18).
The ALJ properly discussed the relevant medical evidence in determining Plaintiff’s
RFC. Accordingly, the Court finds no error in the ALJ’s treatment of the medical record from
Dr. Czerkawski and Baptist Medical Center.
c) Whether the ALJ erred by failing to substantially evaluate Plaintiff’s activities
of daily living.
Plaintiff argues that the ALJ erred by improperly characterizing Plaintiff’s activities of
daily living. (Doc. 22 p. 19). Plaintiff contends that the ALJ overlooked the totality of Plaintiff’s
testimony concerning her daily activities which provided clarification on how her activities were
limited. (Doc. 22 p. 19). Plaintiff notes that her testimony indicated that her life activities were
performed on a very limited basis. (Doc. 22 p. 20). In response, Defendant argues that the ALJ
properly considered Plaintiff’s daily activities in evaluating her subjective complaints. (Doc. 26
p. 15).
Here, the Court finds no error in the ALJ’s treatment of Plaintiff’s activities of daily
living. Although not dispositive, a claimant’s activities may show that the claimant’s symptoms
are not as limiting as alleged. See 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i). The ALJ
noted that Plaintiff was able to provide childcare for her 14-month-old grandchild while her
daughter was at work. (Tr. 20, 36). Plaintiff contends that the ALJ overlooked the fact that
Plaintiff’s mother also helps with childcare activities. While the ALJ did not state this fact in his
decision, his finding that Plaintiff provided childcare was not inaccurate. Further, the ALJ noted
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that Plaintiff reported that she performed housework, such as cooking, vacuuming, sweeping,
and taking out the trash, read books and news online, watched television, listened to the radio,
did word search puzzles, used the computer, used Facebook occasionally, crocheted, and went to
the grocery store twice a month. (Tr. 20, 36-38). Plaintiff also saw her friends and relatives once
a week, drove once a week, and dressed herself. (Tr. 20, 38-39).
The ALJ’s description of Plaintiff’s activities of daily living was not inaccurate or unfair.
Accordingly, the Court finds no basis for remand.
III.

Conclusion

The decision of the Commissioner is AFFIRMED. 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, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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