Lara v. Commissioner of Social Security

Filing 16

OPINION AND ORDER reversing the Commissioner's decision and remanding for further proceedings consistent with this Order. Signed by Magistrate Judge Monte C. Richardson on 9/19/2017. (MEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TAMMY LARA,
Plaintiff,
v.

CASE NO. 3:16-cv-922-J-MCR

ACTING 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 (“DIB”). Plaintiff claims that she became disabled on December 22,
2008. (Tr. 4.) The first administrative law judge held a hearing on September 27,
2012 (Tr. 10-34), and subsequently issued a decision on October 26, 2012,
finding Plaintiff not disabled. (Tr. 50-57.) On November 25, 2012, Plaintiff
requested that the Appeals Council review her decision. (Tr. 181-85.) The
Appeals Council rendered an unfavorable decision on April 4, 2014. (Tr. 1-7.)
Having exhausted her administrative remedies, Plaintiff then filed a civil
action in the United States District Court for the Middle District of Florida, arguing
that the ALJ failed to articulate good cause, supported by substantial evidence, to

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The parties have consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 8, 10.)

discount the medical opinions offered by Russell Sachs, M.D., Plaintiff’s treating
pain management physician. On January 27, 2015, Judge Toomey entered an
order reversing the decision of the ALJ and remanding Plaintiff’s claim for further
proceedings. (Tr. 735-39.) Judge Toomey agreed with Plaintiff that the ALJ’s
reasons for discrediting Dr. Sachs’s opinions – that the opinions were
“retrospective” and not supported by the treatment notes, which showed
essentially conservative treatment – were not supported by substantial evidence.
(Id.) Specifically, Judge Toomey noted that Dr. Sachs treated Plaintiff extensively
during the relevant period and the fact that Dr. Sachs rendered his opinions after
such period did not support affording “little weight” to the opinions. (Tr. 737.)
Judge Toomey also stated that the ALJ’s second reason for discounting the
opinions was vague and that the record supported more than “conservative
treatment.” (Tr. 738.) On remand, the ALJ was instructed to re-evaluate Dr.
Sachs’s opinions and, if discrediting such opinions, to articulate good cause
supported by substantial evidence for doing so. (Id.)
Plaintiff was provided a new hearing in front of a second administrative law
judge (“ALJ”) and the hearing was held on July 28, 2015. (Tr. 675-709.) The ALJ
rendered a decision on August 21, 2015, finding Plaintiff not disabled from
December 22, 2008, the alleged onset date, through March 31, 2009, the date
last insured.2

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Plaintiff had to establish disability on or before March 31, 2009, her date last
insured, in order to be entitled to a period of disability and DIB.

Plaintiff is appealing the Commissioner’s decision that she was not
disabled from December 22, 2008 through March 31, 2009. Plaintiff has
exhausted her available administrative remedies and the case is properly before
the Court. The Court 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

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
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

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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 argues two general points on appeal. First, Plaintiff argues that the
second ALJ also improperly rejected the opinions of her treating physician, Dr.
Sachs. Plaintiff contends that the ALJ failed to articulate good cause for
discounting his opinions. Second, Plaintiff argues that the ALJ erred by affording
significant weight to the non-examining physician, Shakra Junejo, M.D. The
Commissioner argues that 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
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).

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“‘[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, No. 8:06-cv-1863T-27TGW, 2008 WL 649244, at *3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ
may reject any medical opinion if the evidence supports a contrary finding.”
Wainwright v. Comm’r of Soc. Sec. Admin., No. 06-15638, 2007 WL 708971, at
*2 (11th Cir. Mar. 9, 2007) (per curiam); see also Sryock v. Heckler, 764 F.2d

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834, 835 (11th Cir. 1985) (per curiam) (same).
Evidence from other sources, e.g., not acceptable medical sources such as
nurse-practitioners, may be used to show the severity of a claimant’s impairments
and how it affects the claimant’s ability to work. 20 C.F.R. § 404.1513(d); SSR
06-03p. “Since there is a requirement to consider all relevant evidence in an
individual’s case record, the case record should reflect the consideration of
opinions from medical sources who are not ‘acceptable medical sources’ and
from ‘non-medical sources’ who have seen the claimant in their professional
capacity.” SSR 06-03p.
The weight to which such evidence may be entitled will vary
according to the particular facts of the case, the source of the
opinion, including that source’s qualifications, the issue(s) that the
opinion is about, and many other factors . . . . However, depending
on the particular facts in a case, and after applying the factors for
weighing opinion evidence, an opinion from a medical source who is
not an “acceptable medical source” may outweigh the opinion of an
“acceptable medical source,” including the medical opinion of a
treating source.
Id.; see also Duncan v. Astrue, No. 3:07-cv-751-J-HTS, 2008 WL 1925091, at *2
(M.D. Fla. Apr. 29, 2008) (citing SSR 06-03p); Sloan v. Astrue, 499 F.3d 883,
888-89 (8th Cir. 2007) (same).
B.

The ALJ’s Decision

The ALJ found that Plaintiff had severe impairments, including disorders of
the spine and hips. (Tr. 660.) The ALJ then found that Plaintiff did not have any

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impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 661.) At step four3, the ALJ found, in relevant part, that Plaintiff
had the RFC to:
perform light work as defined in 20 CFR 404.1567(b) except she
can frequently climb ramps and stairs, balance, stoop, kneel,
crouch and crawl. [Plaintiff] cannot climb ladders, ropes and
scaffolds. She is limited to simple, routine and repetitive tasks.
(Id.) The ALJ then determined that while Plaintiff was unable to perform her past
relevant work, there were jobs that existed in significant numbers in the national
economy that Plaintiff could perform. (Tr. 666-67.) As such, the ALJ found that
Plaintiff was not disabled during the relevant period. (Tr. 668.)
C.

Analysis

Plaintiff initially argues that the ALJ erred by improperly discounting the
opinions of Dr. Sachs, Plaintiff’s treating pain management doctor. Specifically,
Plaintiff contends that the ALJ failed to articulate good cause for discounting the
treating opinions.
On December 22, 2008, the alleged onset date, Plaintiff underwent an MRI
of both hips. (Tr. 330-31.) The MRI revealed “[s]ignificant stage 3 or above

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A five-step sequential evaluation process has been established by the Social
Security Administration in the Social Security Act, which is used to determine whether
an individual is disabled or not (20 C.F.R. § 404.1520(a)).

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avascular necrosis of the bilateral hips with collapse more evident on the left
femoral head.” (Tr. 331.) On December 29, 2008, treating physician Carlos
Esquivia-Munoz, M.D., reported that Plaintiff had constant pain in both hips and
had difficulty ambulating. (Tr. 427.) He opined that her prognosis was fair, her
activity was limited and her disability was “partial, permanent.” (Id.)
On January 12, 2009, Dr. Sachs evaluated Plaintiff for complaints of back
and leg pain. (Tr. 424.) Dr. Sachs treated Plaintiff extensively throughout her
alleged disability period and continuously thereafter for pain management. (Tr.
217-429, 465-68, 482-637, 737, 1105-70, 1175-77, 1191-1259.)
On January 8, 2012, Dr. Sachs prepared written correspondence on behalf
of Plaintiff regarding her disability. (Tr. 465.) Dr. Sachs stated that he had been
treating Plaintiff “for several years” for “chronic pain.” (Id.) Dr. Sachs opined that
she has been unable to perform work in any meaningful capacity since 2008 as
she required frequent breaks from activity, and that she could not perform any
lifting or carrying, or prolonged walking and standing due to incapacitating pain.
(Id.)
On July 1, 2012, Dr. Sachs completed a Physical Residual Functional
Capacity Questionnaire (the “RFCQ”), diagnosing Plaintiff with chronic pain,
cervical disc disease, lumbar disc disease, avascular necrosis in hips, and major
depression. (Tr. 635.) Dr. Sachs’s prognosis for Plaintiff was “poor.” (Id.) The

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positive clinical findings which supported his diagnosis included antalgic gait,
grimacing and positioning, and guarding due to pain. (Id.) Dr. Sachs opined that
Plaintiff’s pain or other symptoms would frequently interfere with her attention and
concentration. (Id.) He further opined that Plaintiff could walk one to two city
blocks without rest or severe pain, that Plaintiff could sit for thirty minutes at one
time, could stand for twenty minutes at one time, could stand/walk for less than
two hours in an eight-hour work day, and sit for two hours in an eight-hour work
day. (Tr. 636.) Additionally, Dr. Sachs opined that Plaintiff would need rest every
hour for fifteen minutes, that she could rarely lift ten pounds and never lift more
weight, that she would have “good days and bad days,” which would make her
absent from work more than four times per month, and that she would be
required to lie down two to three hours in an eight-hour work day. (Tr. 636-37.)
Dr. Sachs stated that the symptoms and limitations applied as of January 1,
2009. (Tr. 637.)
The ALJ afforded “no significant weight” to the opinions of Dr. Sachs after
remand and provided a host of reasons for discounting his opinions, apparently in
the hopes of amassing the requisite “substantial evidence” to support the
decision. (Tr. 665-66.) The problem is, however, that the reasons listed by the

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ALJ still do not constitute substantial evidence justifying the rejection of Dr.
Sachs’s medical opinions.
First, the ALJ here made the same errors as the prior ALJ as noted by
Judge Toomey in the prior remand order. For example, the ALJ here referenced
the 2012 date of the opinions and restrictions rendered by Dr. Sachs to reject the
credibility of such opinions. (Tr. 665 (“His opinions were provided more than
three years after the claimant’s date last insured.”), 666 (explaining in a full
paragraph how Dr. Sachs did not provide “contemporaneous restrictions that
would support his retrospective assessment”).) The undersigned agrees with
Judge Toomey in that the fact that Dr. Sachs rendered his opinions and
restrictions in 2012 is insufficient to reject Dr. Sachs’s opinions. (Tr. 737-38.) Dr.
Sachs extensively treated Plaintiff during the relevant period. Moreover, there is
still no indication that Dr. Sachs had any reason to render an opinion or give
Plaintiff restrictions prior to when he did.
The other reasons cited by the ALJ for discrediting the opinions of Dr.
Sachs are likewise insufficient due to the ALJ’s “cherry-picking” of evidence or the
substitution of lay opinions for that of medical expertise. The ALJ stated that Dr.
Sachs’s opinions “are not well-supported by clinical findings,” and “appear to be
based on the claimant’s subjective allegations” because: (1) his post-surgical
treatment notes fail to indicate “incapacitating pain;” (2) his treatment note of
January 2009 indicates that Plaintiff had an antalgic gait with pain behaviors such
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as grimacing and shifting positions, but within twelve months of the alleged
disability onset date the notes fail to indicate such descriptions of pain; (3) his
treatment notes fail to indicate testing of Plaintiff’s lifting, carrying, walking, or
standing abilities; (4) his patient questionnaire indicates that Plaintiff was “often”
able to lift a three-year old child and “could sometimes” walk one quarter of a
mile; and (5) his notes indicate that Plaintiff completed physical therapy in
September 2009. (Tr. 665.) However, while Dr. Sachs’s treatment notes do not
utilize the term “incapacitating pain,” they consistently reflect that Plaintiff suffers
with chronic intractable pain upon physical examination, which is not inconsistent
with Dr. Sachs’s opinions.4 (Tr. 217, 219, 223, 225, 228, 233, 239, 241, 244, 255,
258, 264, 267, 270, 274, 276, 278, 280, 283, 285, 287, 293, 295, 300, 302, 305,
318, 320, 326, 329, 333, 336, 413, 415, 421, 424.)
The ALJ also stated that Dr. Sachs’s treatment notes after January 2009 –
related to Plaintiff’s gait and pain associated therewith – are inconsistent with Dr.
Sachs’s opinions. The ALJ’s statement in this regard is not only vague and
conclusory, but also inaccurate. Dr. Sachs’s treating notes after Plaintiff’s alleged
onset date and during Plaintiff’s alleged disability period (December 22, 2008
through March 31, 2009), consistently reveal abnormal gait and pain behaviors.

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“Intractable pain” has been described as a severe, constant pain that is not
curable by any known means and is not relieved by ordinary medical, surgical, nursing
or pharmaceutical measures. https://en.wikipedia.org/wiki/Intractable_pain. The State
of Florida defines it as “pain for which, in the generally accepted course of medical
practice, the cause cannot be removed and otherwise treated.” F.S.A. § 458.326.
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(Tr. 320 (“The patient is ambulating today using a walker . . . The patient has
some difficulty transitioning from sitting to standing.”), 326 (“There is an antalgic
gait . . . Pain behaviors such as grimacing and shifting position.”), 329 (same),
333 (same), 336 (same).) Moreover, treatment notes exist after Plaintiff’s alleged
disability period and within twelve months of his alleged onset date that show
abnormal gait and pain behaviors. (Tr. 295 (“The patient has a slow and antalgic
gait and is using a straight cane for assistance . . . There is guarding of painful
areas.”), 300 (“The patient ambulates using a monopole cane. The gait is slow
and careful.”), 302 (“The patient is ambulating today using a walker. The patient
has some difficulty transitioning from sitting to standing.”), 305 (same), 318
(same).) The ALJ apparently focused on a set of treatment notes after Plaintiff’s
two hip replacement surgeries that did not report “antalgic gait and pain behaviors
such as grimacing and shifting position.” (Tr. 665.) However, while the notes
referenced by the ALJ do not use those precise terms, the ALJ failed to explain
how the notes, as drafted, are inconsistent with the opinions or restrictions
provided by Dr. Sachs.5 (See, e.g., Tr. 217, 219, 223, 225, 228, 233, 239, 241,
244, 255, 258, 264, 267, 270, 274, 276, 278, 280, 283, 285, 287, 293 (indicating
that Plaintiff’s gait “is slow and careful” and that Plaintiff’s “posture is abnormal.”).)
With respect to the ALJ’s statements that Dr. Sachs’s notes failed to

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Throughout Dr. Sachs’s treatment of Plaintiff, he diagnosed her with chronic
intractable pain, prescribed various strong narcotic medications, and performed trigger
point injections.
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indicate certain testing of limitations, the ALJ again failed to explain how the
notes, as drafted, contradict Dr. Sachs’s opinions. As discussed above, there is
no indication that Dr. Sachs had any reason to render an opinion or give Plaintiff
restrictions prior to when he did. Further, Dr. Sachs explained the basis for his
opinions in the RFCQ. (Tr. 635.)
Similarly, the ALJ failed to explain how Plaintiff’s mark in a patient
questionnaire that she could lift an unknown three-year old child “often” and walk
one quarter of a mile “sometimes” contradicts Dr. Sachs’s opinions. Plaintiff also
marked in that same questionnaire that she can “never” mow the lawn and that
her pain “sometimes” keeps her from leaving the house (Tr. 346), and marked in
another questionnaire that pain prevents her from sleeping and that she can
“never” stand in line more than 20 minutes (Tr. 1214); yet, the ALJ omitted those
notations from the discussion. The ALJ then surmised that Plaintiff should not
have completed physical therapy in September 2009; however, without further
discussion, such surmising is insufficient to discount the opinions of Dr. Sachs.
The ALJ also found Dr. Sachs’s opinions to be “unaccompanied by any
rationale explaining the basis for the assessed limitations,” but Dr. Sachs
provided his rationale for the basis of the assessed limitations in the RFCQ. (Tr.
635.) The ALJ then substituted his lay opinion for that of a medical professional
and concluded that “the amount of pain medication that Dr. Sachs continued to
prescribe after the claimant’s hip surgeries appeared to be excessive in light of
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the absence of objective abnormalities after the surgery.”6 See Freeman v.
Schweiker, 681 F.2d 727, 731 (11th Cir. 1982) (holding that an ALJ may not
substitute his opinion for that of a doctor).
It is important to note that many of the reasons cited by the ALJ to discount
Dr. Sachs’s opinions would apply equally to Dr. Junejo, the state agency medical
consultant of whose opinions the ALJ afforded “significant weight.” (Tr. 664.) Dr.
Junejo, who did not examine Plaintiff, merely stated that he “reviewed evidence
and agree[d] with [the RFC assessment completed by the Single Decision Maker
who is not a doctor].” (Tr. 447.) Dr. Junejo provided no rationale explaining the
basis of his assessed limitations, gave no indication of testing Plaintiff’s
limitations, and provided no reference to records indicating a lack of pain.
Moreover, Dr. Sachs’s opinions appear to be consistent with other doctors
of record, but the ALJ refrained from discussing Dr. Sachs’s opinions in relation to
such doctors. For example, Dr. Esquivia-Munoz reported on December 29, 2008
that Plaintiff had constant pain in both hips and had difficulty ambulating. (Tr.
427.) He opined that her prognosis was fair, her activity was limited and her
disability was “partial, permanent.” (Id.) On January 19, 2009, Philip Hardy, M.D.
noted that Plaintiff’s gait was “[m]arkedly antalgic,” and that her neck and hip
examinations revealed discomfort and pain. (Tr. 308.) On February 5, 2009,

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The statement is also vague and conclusory, and does not cite to record
evidence.
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David Doward, M.D., noted that “[a]ctivity makes Plaintiff’s symptoms worse.
Rest improves her pain.” (Tr. 310.) On April 9, 2009, Dr. Hardy opined that
Plaintiff “remains on temporary total disability.” (Tr. 317.) In June and July 2010,
Dr. Doward noted that Plaintiff experienced “[p]ain with range of motion of the
cervical spine.” (Tr. 252, 1075.)
III.

Conclusion

For the forgoing reasons, the Court concludes that the ALJ improperly
evaluated the opinions of Dr. Sachs. Therefore, the Court finds that the ALJ’s
decision is not supported by substantial evidence. This issue is dispositive and,
therefore, it is unnecessary for the Court to address Plaintiff’s other argument.
See, e.g., Alexander v. Comm’r of Soc. Sec., No. 8:13-cv-1602-T-GJK, 2014 WL
4211311, at *3 n.3 (M.D. Fla. Aug. 26, 2014) (citing Diorio v. Heckler, 721 F.2d
726, 729 (11th Cir. 1983) (stating that on remand the ALJ must reassess the
entire record)).
Accordingly, it is hereby ORDERED:
1.

The decision of the Commissioner is REVERSED pursuant to

sentence four of 42 U.S.C. § 405(g) and REMANDED to the Commissioner, with
instructions for the ALJ to: (a) reevaluate the medical opinions of Dr. Sachs and
explain what weight is being accorded to those opinions, and the reasons
therefor; (b) reconsider the RFC assessment, if necessary, and (c) conduct any
further proceedings deemed appropriate.
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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 in Jacksonville, Florida, on September 19, 2017.

Copies to:
Counsel of Record

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