Skiles v. Commissioner of Social Security
Filing
25
OPINION AND ORDER affirming the Commissioner's decision. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 12/8/2017. (ADM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TIFFANY SKILES,
Plaintiff,
v.
CASE NO. 3:16-cv-1165-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”), alleging disability beginning July 11, 2011. (Tr. 132.) A hearing
was held before the assigned Administrative Law Judge (“ALJ”) on January 7,
2015, at which Plaintiff was represented by counsel. (Tr. 32-57.) The ALJ found
Plaintiff not disabled from July 11, 2011 through March 6, 2015, the date of the
decision.2 (Tr. 18-26.)
In reaching the decision, the ALJ found that Plaintiff had “the following
severe impairments: lumbar degenerative disk disease with history of back
surgery and bipolar II disorder.” (Tr. 20.) The ALJ also found that Plaintiff had
1
The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 10, 12.)
2
Plaintiff had to establish disability on or before December 31, 2016, her date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 18.)
the residual functional capacity (“RFC”) to perform a reduced range of light work.
(Tr. 21.) After finding that Plaintiff was unable to perform any past relevant work,
the ALJ found that there were jobs existing in significant numbers in the national
economy that Plaintiff could perform. (Tr. 25.)
Plaintiff is appealing the Commissioner’s decision that she was not
disabled from July 11, 2011 through March 6, 2015. 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 AFFIRMED.
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
2
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 argues that the ALJ did not provide good cause for rejecting the
opinions of her treating physician, John Carey, M.D., because the reasons he
offered were either legally insufficient and/or factually inaccurate. Plaintiff
contends that in formulating the RFC, the ALJ’s discussion of the record was
“limited and highly selective.” Plaintiff adds that in discrediting Dr. Carey’s
opinions, the ALJ misrepresented her daily activities. Plaintiff asserts that by
failing to adopt Dr. Carey’s assessed limitations, the ALJ formulated an RFC
assessment and hypothetical questions to the Vocational Expert (“VE”), which
failed to accurately describe all of Plaintiff’s limitations, and as such, the ALJ
improperly relied on the VE’s testimony. Plaintiff also argues that the ALJ
erroneously relied on Dr. Charles E. Moore’s non-examining opinions, which were
rendered 19 months before the hearing without consideration of Dr. Carey’s
subsequent opinions.
Defendant responds that the ALJ provided good reasons, supported by
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substantial evidence, for giving Dr. Carey’s opinions little weight. The Court
agrees with Defendant and, therefore, affirms the Commissioner’s decision.
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).
“‘[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). “However, the
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ALJ is not required to explicitly address each of those factors. Rather, the ALJ
must provide ‘good cause’ for rejecting a treating physician’s medical opinions.”
Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir. June 22, 2011)
(per curiam).
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,
*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., 2007 WL 708971, *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
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given to them in his decision. SSR 96-6p.
B.
The ALJ’s Decision
The ALJ found that Plaintiff had the RFC to perform light exertional work as
follows:
[The claimant] must have a 30-minute sit/stand option. The claimant
can occasionally climb ramps and stairs but never can climb ladders,
ropes, or scaffolds. She cannot balance but can occasionally stoop,
kneel, crouch, and crawl. The claimant cannot reach overhead or
tolerate concentrated exposure to extreme cold or vibrations.
Additionally, the claimant is limited to simple tasks with little variation
that take a short period of time to learn, up to and including 30 days.
She could tolerate changes in a routine work setting and tolerate
occasional contact with coworkers and the general public. The
claimant could relate adequately to supervisors.
(Tr. 21.) In making this finding, the ALJ considered Plaintiff’s testimony, the
Function Report completed on January 3, 2013, Plaintiff’s treatment records,
including the opinions of Dr. Carey, Plaintiff’s pain management specialist at
Jacksonville Spine Center, the results of diagnostic studies, and the opinions of
the State agency non-examining consultant, Dr. Moore. (Tr. 22-23.)
The ALJ addressed Plaintiff’s testimony as follows:
At the hearing, the claimant testified that she cannot work because of
constant low back pain that shoots down the back of her left leg and
causes numbness on the top of her left foot. The claimant testified
that she can stand for 30 minutes at a time, walk for 15 to 20 minutes
at a time, sit for 45 minutes at a time, and lift and carry less than 5
pounds. She stated that she must lie down for four or five hours
during the day and that pain medication and ice packs are somewhat
helpful though the pain medication causes drowsiness. . . . The
claimant is married and has two children, ages 11 and 4. She stated
she can drive but chooses not to. The claimant helps with some of
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the household chores and stated that her parents and babysitters are
helpful. . . . She underwent spinal surgery years ago and no
additional surgery is planned.
(Tr. 22.)
Then, the ALJ turned to the Function Report completed by Brian Skiles,
Plaintiff’s husband, on Plaintiff’s behalf on January 3, 2013:
[I]t was reported that the claimant has no problem taking care of her
personal needs. She spends her day doing light housework and
preparing simple meals. She provides care to her young child
including bathing him and supervising his activities. The claimant
watches television and plays with her children. She goes out with
her husband and goes on Facebook. She frequents restaurants and
movie theaters. The claimant drives and can pay bills, count
change, handle a savings account, and use a checkbook/money
orders. She can follow written and spoken instructions. The
claimant can lift 10 pounds and walk for 30 minutes at a time. The
claimant did not return to work after her husband graduated from
(pharmacy) school (Exhibit 6E).
(Id.)
The ALJ also addressed the pertinent medical records as follows:
The record notes that the claimant underwent L5-S1 laminectomy in
June of 2008 (Exhibit 5F). An MRI of the lumbar spine performed on
July 18, 2011 showed just minimal degenerative disk disease and
desiccation of L5-S1. . . .
The claimant received care for her back at Jacksonville Spine
Center. At an office visit on December 19, 2012, the claimant stated
she received relief from medication and experienced no medication
side effects. She also reported that she was trying to get pregnant.
Examination notes reveal full 5/5 strength and a normal gait (Exhibit
5F/3). The claimant continued to report no medication side effects at
several subsequent visits (Exhibit 7F; 8F; 12F).
An MRI of the claimant’s lumbar spine performed on December 28,
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2012 showed disk desiccation and postoperative changes at L5-S1
and minimal recurrent/residual central disk herniation (protrusion) but
no nerve root impingement or displacement. This is noted as
improved compared to the preoperative study (Exhibit 6F/2).
On January 17, 2013, the claimant underwent a transforaminal
steroid injection to help control the pain (Exhibit 8F/4).
...
X-rays of the claimant’s spine taken on February 17, 2014 showed
no acute fracture or subluxation, satisfactory lumbar fusion of L5-S1,
and satisfactory alignment. Additional films showed no evidence of
abnormal subluxation with flexion or extension maneuvers (Exhibit
12F/17-18).
Notes from a follow up visit to Jacksonville Spine Center on
November 10, 2014 reveal that the claimant is doing well on her
current medication regime and that her pain level as [sic] just a 2 out
of 10. It is again noted that she experiences no medication side
effects (Exhibit 13F/5).
(Tr. 23-24.)
With respect to Dr. Carey’s opinions in the Functional Capacity Evaluation
(“FCE”) and the Physical RFC Questionnaire, the ALJ determined that these
opinions deserve little weight because they are not supported by the treatment
notes or the record as a whole and were inconsistent with Plaintiff’s reported daily
activities. (Tr. 23.) Further, the ALJ gave limited weight to Dr. Moore’s opinions
after determining that Plaintiff had “even greater restrictions than those issued by
the State agency physician.”3 (Id.)
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Dr. Carey’s opinions in the FCE and the Physical RFC Questionnaire, as well
as Dr. Moore’s opinions in the Physical RFC Assessment are discussed infra.
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The ALJ found, for the reasons explained in his decision, that although
Plaintiff’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms, Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of these symptoms were not entirely credible.
(Tr. 24.) The ALJ explained:
In assessing the claimant’s credibility, she reported (Exhibits 6E; 9F)
a wide array of daily activities that can be physically and mentally
demanding and are not the type expected from a totally disabled
individual. The record notes (Exhibit 2F) [sic] the claimant reported
feeling overwhelmed caring for two children though at around that
time the claimant reported (Exhibit 5F) trying to get pregnant and
have another child. Additionally, it was noted that the claimant
stopped working once her husband graduated (Exhibit 6E) further
indicating that there may be reasons other than her condition for her
continued unemployment.
The claimant testified that no further surgery has been
recommended for her back. . . .
In sum, the above [RFC] assessment is supported by the frequency
and level of care the claimant has received in response to her
reported complaints. Although the claimant has limitations, they
would not prevent her from performing work activity at the level noted
in the [RFC] above.
(Id.)
C.
Relevant Opinion Evidence
1.
Dr. Carey
In an FCE completed on December 5, 2013, Dr. Carey opined that Plaintiff
was unable to perform even sedentary work. (Tr. 407-09.) He stated, in relevant
part:
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At [the] time of testing, [Plaintiff] was observed demonstrating
intermittent changes of position from sitting to standing throughout
[the] testing for reported disruption of pain symptoms. The lowest
level of pain experienced in [the] last 30 days is moderate pain rating
of 4, with use of medication, and minimizing or avoiding activities of
daily living that result in aggravation, or increase of pain symptoms.
She claims intense pain level of 8 as the highest level of pain
experienced in the last 30 days with attempts to increase functional
activities of daily living. . . . Maximal and 5-position isometric hand
grip testing indicated significant bilateral hand grip weakness . . . .
She would also be limited with ability to participate with [sic]
sustained or frequent basis, due to her poor tolerance to prolonged
periods of sitting, standing and walking, from her claims of requiring
intermittent supportive positional lying down or reclining, totaling 3-4
hrs., to assist with management of progressive elevation of pain
symptoms throughout the day. She would also be limited due to
reported 4 episodic pain flare-up [sic] a month resulting in 4 days of
incapacitating pain severity. The client also indicated minimizing or
avoiding driving due to pain and physical limitations.
(Tr. 407.)
In his Physical RFC Questionnaire completed on January 3, 2014, Dr.
Carey opined, inter alia, that Plaintiff could walk one or two city blocks without
rest or severe pain, sit for 45 minutes to an hour at one time, stand for 30 minutes
at one time, stand/walk for less than two hours in an eight-hour workday, and sit
for four hours in an eight-hour workday; she would need unscheduled breaks
lasting ten minutes; she could occasionally lift and carry less than ten pounds and
never over ten pounds; she should never reach above shoulder level; and she
would likely be absent from work two days per month as a result of her
impairments. (Tr. 404-06.) Under clinical findings and objective signs, he noted
limited range of motion, tenderness to palpation, and prior laminectomy. (Tr.
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404.) Dr. Carey also noted that Plaintiff’s low back pain and lower left extremity
pain ranged from a five to an eight on a scale of zero to ten, and worsened with
bending over and prolonged sitting or standing. (Id.) He opined that Plaintiff’s
pain was severe enough to occasionally interfere with attention and concentration
needed to perform even simple work tasks. (Id.)
2.
Dr. Moore
In a Physical RFC Assessment completed on May 2, 2013, Dr. Moore
opined that Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds
frequently; stand and/or walk for four hours, and sit for about six hours in an
eight-hour workday; frequently climb ramps/stairs, crouch, and crawl;
occasionally stoop and climb ladders, ropes, or scaffolds; and should avoid
concentrated exposure to hazards. (Tr. 75-78.)
D.
Analysis
The ALJ provided good reasons, supported by substantial evidence, for
according little weight to Dr. Carey’s opinions in the FCE and the Physical RFC
Questionnaire. The ALJ stated that Dr. Carey’s opinions were not supported by
the treatment notes or the record as a whole and were inconsistent with Plaintiff’s
reported daily activities. (Tr. 23.) The ALJ discussed some of the pertinent
medical records and Plaintiff’s reported activities in formulating his RFC.
For example, the ALJ noted the results of the lumbar MRI’s performed on
July 18, 2011 and December 28, 2012, as well as the lumbar X-rays taken on
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February 17, 2014. Plaintiff’s July 18, 2011 lumbar MRI was normal “except for
mild disk desiccation and degeneration of the L5-S1 disk.” (Tr. 262.) Plaintiff’s
December 28, 2012 MRI showed “[d]isc desiccation and postoperative change at
L5-S1,” “a minimal recurrent/residual central disc herniation (protrusion) at this
level[,] but no nerve root impingement or displacement.” (Tr. 340.) This was
deemed an improvement compared to the pre-operative study. (Id.) Plaintiff’s
February 17, 2014 five-view X-ray of the lumbar spine showed: “No acute fracture
or subluxation. Satisfactory lumbar fusion L5-S1 . . . . Satisfactory alignment.”
(Tr. 426.) Her flexion/extension lumbar X-ray from the same date showed: “No
evidence of abnormal subluxation with flexion or extension maneuvers.” (Tr.
427.)
The ALJ also discussed the treatment records from Jacksonville Spine
Center, which showed full strength, normal gait, relief from medication, no
medication side effects, a pain level ranging from two to six on a scale of zero to
ten, and which indicated that Plaintiff was trying to get pregnant. The ALJ’s
recitation of the records is accurate, even though there is also evidence of
decreased range of motion, some tenderness or swelling at times, and an
antalgic gait. (See, e.g., Tr. 237, 318-19, 321, 324, 327, 330, 333, 354, 359-60,
367-68, 375, 379, 383, 387-88, 391, 412-13, 416, 419, 436, 439, 442.) Despite
some abnormal examination findings and Plaintiff’s reports of unresolved lower
back pain and leg pain since her back surgery, the ALJ properly observed that no
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further surgery was recommended or desired (Tr. 238 (“I have advised this
patient to continue pain management only.”)4, Tr. 326 (“[Patient] doesn’t want any
more surgery on L-spine.”)), and, in fact, Plaintiff was trying to get pregnant (Tr.
318, 323, 326, 329, 332, 337).
The ALJ also observed that Plaintiff’s reported daily activities were
inconsistent with Dr. Carey’s opinions. Dr. Carey opined that Plaintiff would be
unable to perform even sedentary work. (Tr. 407-09.) However, as noted by the
ALJ, Plaintiff reported that she has no problem taking care of her personal needs,
she spends her day doing light housework and preparing simple meals, she
provides care to her young child, including bathing him and supervising his
activities, she watches television and plays with her children, she goes out with
her husband, she uses Facebook, she can drive, but chooses not to, she can pay
bills, count change, handle a savings account, and use a checkbook/money
orders. (Tr. 22, 48, 185-92.) The Court does not see any error in the ALJ’s
recitation of Plaintiff’s daily activities, but even assuming there was an error in this
regard, the daily activities were only one factor in the ALJ’s RFC determination.
Based on the foregoing, the Court finds that the ALJ’s reasons for giving
little weight to Dr. Carey’s opinions are supported by substantial evidence. To the
extent Plaintiff invites the Court to re-weigh the evidence or substitute its decision
4
Plaintiff’s medication was changed and/or adjusted at times. (See, e.g., Tr.
385, 392.)
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for that of the ALJ, the Court cannot do so. As long as the ALJ’s findings are
based on correct legal standards and are supported by substantial evidence, the
Commissioner’s decision must be affirmed even if the reviewer would have
reached a different conclusion.
Plaintiff also argues that the ALJ erroneously relied on Dr. Moore’s nonexamining opinions, which were rendered well before the hearing and prior to Dr.
Carey’s more recent opinions. However, the ALJ gave Dr. Moore’s opinions only
limited weight and determined that Plaintiff had greater restrictions than assessed
by this doctor. Therefore, it does not appear that the ALJ relied on Dr. Moore’s
opinions. Importantly, in formulating the RFC and hypothetical questions, the ALJ
was not required to adopt the findings or opinions of any particular medical
source because the responsibility for assessing the RFC rests with the ALJ.
Kopke v. Astrue, 2012 WL 4903470, *5 (M.D. Fla. Sept. 26, 2012) (report and
recommendation adopted by 2012 WL 4867423 (M.D. Fla. Oct. 15, 2012)).
Finally, to the extent Plaintiff argues that the ALJ erred in assessing
Plaintiff’s credibility, the Court finds that the ALJ provided explicit and adequate
reasons for his credibility determination. These reasons included Plaintiff’s daily
activities, the frequency and level of care Plaintiff received in response to her
complaints, including the fact that no further surgery has been recommended for
her back, and the fact that Plaintiff stopped working once her husband graduated
from pharmacy school. (Tr. 24.) As these reasons are adequate and supported
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by substantial evidence, the Court finds no reason to disturb the ALJ’s credibility
analysis.
Because the ALJ’s credibility determination, RFC assessment, and
hypothetical questions are supported by substantial evidence, Plaintiff’s argument
that the ALJ improperly relied on the VE’s testimony is rejected. The ALJ was not
required to include in the hypothetical questions any limitations or opinions that
he properly rejected. See Crawford, 363 F.3d at 1161 (stating that the ALJ is not
required to include findings in the hypothetical question that the ALJ has properly
rejected as unsupported by the record). Thus, to the extent Plaintiff argues that
the hypothetical questions were inconsistent with Dr. Carey’s opinions and/or
Plaintiff’s subjective complaints, the ALJ was not required to include opinions or
statements that he had properly rejected.
Accordingly, it is ORDERED:
1.
The Commissioner’s decision is AFFIRMED.
2.
The Clerk of Court is directed to enter judgment consistent with this
Order and close the file.
DONE AND ORDERED at Jacksonville, Florida, on December 8, 2017.
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Copies to:
Counsel of Record
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