Kratz v. Commissioner of Social Security
Filing
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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 6/27/2017. (CAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JERRY KRATZ,
Plaintiff,
v.
Case No: 3:16-cv-331-J-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Jerry Kratz, seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“SSA”) denying his claim for a period of disability and
Disability Insurance Benefits (“DIB”). The Commissioner filed the Transcript of the proceedings
(hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed
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 his 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 he 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, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he 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 his 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 his 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 he meets this burden, he 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 his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his 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 his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he 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, he 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 1200,
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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. 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 he 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 an application for a period of disability and DIB on July 20, 2012, alleging a
disability onset date of March 14, 2011. (Tr. 190-91). Plaintiff’s application was denied initially
on August 29, 2012, and upon reconsideration on November 13, 2012. (Tr. 110-14, 117-21).
Plaintiff requested a hearing and, on April 16, 2014, an administrative hearing was held before
Administrative Law Judge M. Hart (“the ALJ”). (Tr. 31-83). On June 27, 2014, the ALJ entered
a decision finding that Plaintiff was not under a disability from March 14, 2011, through the date
of the decision. (Tr. 15-30). Plaintiff filed a request for review which the Appeals Council denied
on January 28, 2016. (Tr. 1-7). Plaintiff initiated this action by filing a Complaint (Doc. 1) on
March 21, 2016.
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 14, 2011, the alleged onset date. (Tr. 17). At step two,
the ALJ found that Plaintiff had the following severe impairments: status post left wrist open
reduction internal fixation repair and mild left carpal tunnel syndrome. (Tr. 17). At step three, the
ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or
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medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 18).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) except he is limited
to no climbing of ladders, ropes and scaffolds. He is limited to no more
than frequent climbing ramps and stairs and to no more than frequent
reaching, overhead reaching, handling objects (defined as gross
manipulation), and fingering (defined as fine manipulation) of the left
upper extremity. He is right hand dominant. The claimant must avoid
concentrated exposure to the use of moving machinery and to unprotected
heights.
(Tr. 18). At step four, the ALJ relied on the testimony of a vocational expert to find that Plaintiff
is capable of performing his past relevant work as a security officer as that occupation is actually
and generally performed. (Tr. 24). The ALJ found that this work does not require the performance
of work-related activities precluded by Plaintiff’s RFC. (Tr. 24).
Despite finding that Plaintiff was capable of performing his past relevant work, the ALJ
proceeded to step five and made the alternative finding that Plaintiff is capable of performing such
jobs as gate attendant, mail clerk, and parking lot cashier. (Tr. 25). The ALJ concluded that
Plaintiff had not been under a disability from March 14, 2011, through the date of the decision,
June 27, 2014. (Tr. 26).
II.
Analysis
Plaintiff argues that the ALJ erred by not assigning weight to the opinions of Ismail Salahi,
D.O., Plaintiff’s treating physician. (Doc. 14 p. 8). Plaintiff contends that while the ALJ did weigh
the assessment given by Dr. Salahi on April 3, 2014, the ALJ failed to state the weight given to
the opinions contained in his office notes. (Doc. 14 p. 8). In addition, Plaintiff argues that
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substantial evidence does not support the ALJ’s discounting of Dr. Salahi’s April 2014 opinion.
(Doc. 14 p. 10-11, 15).
In response, Defendant argues that the ALJ properly considered and weighed the opinion
evidence in determining Plaintiff’s RFC. (Doc. 18 p. 6). Defendant argues that the ALJ explicitly
considered Dr. Salahi’s treatment notes and physical capacities evaluation in his decision and
identified the weight he gave to Dr. Salahi’s opinions. (Doc. 18 p. 7).
“The Secretary must specify what weight is given to a treating physician’s opinion and any
reason for giving it no weight, and failure to do so is reversible error.” MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). The Eleventh Circuit has 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.
Winschel v. Comm’r of Social Security, 631 F3d 1176, 1178-79 (11th Cir. 2011). Without 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. (citing Cowart v.
Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinions of treating physicians are entitled to substantial or considerable weight unless
good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004).
The Eleventh Circuit has held that good 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.” Id.
Where an ALJ articulates specific reasons for failing to accord the opinion of a treating or
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examining physician controlling weight and those reasons are supported by substantial evidence,
there is no reversible error. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
In this case, the Court finds no error in the ALJ’s treatment of the notes and opinion from
Dr. Salahi. In her decision, the ALJ thoroughly summarized Dr. Salahi’s treatment notes. (Tr. 2022). After doing so, the ALJ specifically weighed Dr. Salahi’s April 2014 opinion as follows:
In a physical capacities evaluation dated April 2014, Dr. Salahi opines to
the following claimant abilities: occasionally and frequently lift and carry
10 pounds with the left extremity only; sit a total of 6 hours in an 8-hour
workday; unlimited push/pull, other than as shown for lift and/or carry;
frequently climbing, balancing, stooping, kneeling and crawling;
unlimited reaching all directions; limited handling, fingering, and feeling;
and no environmental limitations (Exhibit 9F0. Dr. Salahi opined that the
claimant does not need to lie down at unpredictable intervals during a
work shift. He opines that the claimant is able to perform sedentary work
on a regular and continuing basis and that the claimant will be totally
unable to perform even sedentary work zero to 1 day per month. The
undersigned gives little weight to the portion of the opinion limiting the
claimant to lifting and carrying of no more than 10 pounds with the left
upper extremity, as it is not consistent with his monthly treatment notes,
which document good control of pain, except in February 2014,
approximately 2 months prior to his opinion and the claimant’s disability
hearing. Additionally, the claimant is right hand dominant and has no
significant functional limitation in the right upper extremity. The
undersigned gives some weight to the portion of the opinion that limits the
claimant to no more than frequent postural motions, as this is generally
consistent with the overall medical record discussed above, although the
undersigned has included limitations for no more than occasional kneeling
and crawling, as well as environmental restrictions.
(Tr. 23). The ALJ’s reasoning is supported by substantial evidence. The ALJ considered that Dr.
Salahi’s lifting/carrying limitation was not consistent with his treatment notes consistently noting
Plaintiff had good control of pain except in February 2014, approximately two months before
claimant’s disability hearing (Tr. 23, 291-92, 294, 296, 298, 300, 302, 304, 306, 308, 313, 317,
346, 348, 381, 384, 387, 389, 392, 394, 396, 398, 400, 402, 405, 410, 412, 418-19). Plaintiff
contends that his pain was not controlled and was between 5-8 on a pain scale fairly consistently.
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(Doc. 14 p. 10). In her decision, however, the ALJ addressed Plaintiff’s moderately high pain
scores and noted that they often coincided with Plaintiff reporting that he had been out of
medication. (Tr. 21, 296, 302, 304, 384, 389). Further, the ALJ noted that despite Plaintiff’s
periodic reports of pain increase, Plaintiff continued to report good relief or pain control with his
medication and refused changes to his medication regimen. (Tr. 21-22, 288, 294, 298, 300, 315,
352, 381, 389-90, 396, 400, 405, 410).
Substantial evidence supports the ALJ’s determination that that Dr. Salahi’s limitation to
carrying/lifting no more than 10 pounds was not consistent with the fact that Plaintiff had no
significant limitation in his dominant right hand. (Tr. 23). As Defendant notes, Plaintiff’s reported
pain and sensitivity and the positive examination findings in Dr. Salahi’s notes such as allodynia,
hyperalgesia, decreased grip strength, and mottling of the skin, which the ALJ considered and
noted in his decision, related specifically to Plaintiff’s left hand and wrist. (Tr. 20-22, 288-89, 29192, 296, 298, 300, 308-09, 311-13, 315, 317, 342, 344, 346, 348, 350, 381, 385, 387, 390, 394,
398, 400, 402, 405-08, 412, 416, 418). Plaintiff testified he was right hand dominant (Tr. 46), and
the ALJ considered Dr. Salahi’s notes which showed Plaintiff had full strength (5/5) bilaterally
throughout (Tr. 22, 288, 291-92, 296, 298, 300, 302,306, 308, 311, 313, 315-18, 346, 348, 351-52,
381, 384-85, 387, 389-90, 394, 398, 400, 402, 405, 407-08, 412, 414-15, 431).
Plaintiff fails to identify any evidence in the record that conflicts with the ALJ’s
determination that Plaintiff could perform a range of light work with postural, manipulative, and
environmental limitations. It was Plaintiff’s burden to demonstrate that he was disabled. He has
failed to meet this burden and the Court will not reweigh the evidence on appeal.
To the extent that Plaintiff argues that the ALJ erred by failing to explain the weight he
accorded to each treatment note from Dr. Salahi, the Court rejects this argument. The Court does
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not read Winschel to stand for the proposition that the ALJ must weigh every statement contained
in a physician’s treatment notes. Here, the ALJ fairly addressed and summarized Plaintiff’s
treatment notes from Dr. Salahi and expressly weighed Dr. Salahi’s April 2014 opinion.
By finding that substantial evidence supported the ALJ’s RFC determination the Court
does not mean that there is no evidence that runs contrary to the ALJ’s conclusions. As noted
above, however, substantial evidence “is such relevant evidence as a reasonable person would
accept as adequate support to a conclusion” and “[e]ven if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by substantial
evidence.” Crawford, 363 F.3d at 1158. Here, the ALJ’s decision is supported by such evidence
that a reasonable person would accept as adequate. Plaintiff has failed to carry his burden on
demonstrating disability. Accordingly, the Court will not disturb the ALJ’s findings.
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 June 27, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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