Felty v. Commissioner of Social Security
Filing
25
OPINION AND ORDER reversing and remanding this matter with instructions. Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James R. Klindt on 3/30/2018. (BHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
VALARIE MARIE FELTY,
Plaintiff,
vs.
Case No. 3:16-cv-1446-J-JRK
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
_____________________________________/
OPINION AND ORDER1
I. Status
Valarie Marie Felty (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s (“SSA(’s)”) final decision denying her claims for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”). Plaintiff’s alleged inability to work is a
result of neck, back, and ankle injuries; depression; anxiety; and “[s]tress disorders.”
Transcript of Administrative Proceedings (Doc. No. 12; “Tr.” or “administrative transcript”),
filed January 30, 2017, at 59, 68, 79, 93, 212 (emphasis omitted). On February 6, 2013,
Plaintiff filed applications for DIB and SSI, alleging an onset disability date of February 5,
2012. Tr. at 189 (DIB); Tr. at 191 (SSI).2 Plaintiff’s applications were denied initially, see Tr.
1
The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 13), filed
January 30, 2017; Reference Order (Doc. No. 14), entered January 31, 2017.
2
Although actually completed on February 6, 2013, see Tr. at 189 (DIB); Tr. at 191 (SSI),
the protective filing date of the applications is listed elsewhere in the administrative transcript as February
4, 2013, see Tr. at 59 (DIB); Tr. at 68 (SSI).
at 59-67, 77 (DIB); Tr. at 68-76, 78 (SSI), and were denied upon reconsideration, see Tr. at
93-106, 107 (DIB); Tr. at 79-92, 108 (SSI).
On January 20, 2015, an Administrative Law Judge (“ALJ”) held a hearing, during
which he heard from Plaintiff, who was represented by counsel, and a vocational expert
(“VE”). Tr. at 37-58. At the time of the hearing, Plaintiff was twenty-eight years old. See Tr.
at 41. The ALJ issued a Decision on February 5, 2015, finding Plaintiff not disabled through
the date of the Decision. Tr. at 21-32.
On September 21, 2016, the Appeals Council denied Plaintiff’s request for review, Tr.
at 1-3, thereby making the ALJ’s Decision the final decision of the Commissioner. On
November 21, 2016, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the
Commissioner’s final decision.
On appeal, Plaintiff raises the following issue: “Whether . . . the ALJ’s review properly
applied the governing regulations and whether . . . significant inaccuracies and omissions
exist in the Commissioner’s final Decision.” Memorandum in Support of Plaintiff’s Position
(Doc. No. 21; “Pl.’s Mem.” or “Plaintiff’s memorandum”), filed May 23, 2017, at 1 (some
capitalization omitted).3 Specifically, in raising this issue, Plaintiff argues that the ALJ erred
in his assessment of the opinions of a number of Plaintiff’s health providers, made some
inaccurate statements, and omitted certain information. Pl.’s Mem. at 15-24.4 On August 23,
3
Plaintiff’s memorandum contains unnumbered pages. Citations to it follow the pagination
assigned by the Court’s electronic filing system (CM/ECF).
4
To the extent Plaintiff attempts to raise other issues in the “Conclusion” section of her
memorandum—such as whether the ALJ erred in his credibility determination or failed to incorporate
(continued...)
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2017, Defendant filed a Memorandum in Support of the Commissioner’s Decision (Doc. No.
24; “Def.’s Mem.”) addressing Plaintiff’s arguments. After a thorough review of the entire
record and consideration of the parties’ respective memoranda, the undersigned determines
that the Commissioner’s final decision is due to be reversed and remanded for further
administrative proceedings.
II. The ALJ’s Decision
When determining whether an individual is disabled,5 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
past relevant work; and (5) retains the ability to perform any work in the national economy.
20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
4
(...continued)
certain limitations in the hypothetical to VE—these issues are deemed to be waived for lack of
development. See, e.g., N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (stating
that “[i]ssues raised in a perfunctory manner, without supporting arguments and citation to authorities,
are generally deemed to be waived”); see also T.R.C. ex rel. Boyd v. Comm’r, 553 F. App’x. 914, 919
(11th Cir. 2014) (citing McClain in a Social Security appeal and noting that the appellant “fail[ed] to
develop any arguments demonstrating that the ALJ erred in his conclusions . . .”); see also Scheduling
Order (Doc. No. 15), entered February 1, 2017, at 1 (directing parties to “identify with particularity the
grounds upon which the administrative decision is being challenged,” advising them that “[a]ny such
challenges must be supported by citation to the record of the pertinent facts and by citations of the
governing legal standards,” and that “[a]ny contention for which these requirements are not met is subject
to being disregarded for insufficient development”).
5
“Disability” is defined in the Social Security Act as the “inability to engage in 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 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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Cir. 2004). The claimant bears the burden of persuasion through step four and, at step five,
the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 23-31. At step one,
the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since
February 5, 2012, the alleged onset date.” Tr. at 23 (emphasis and citation omitted). At step
two, the ALJ found that Plaintiff “has the following severe impairments: disorders of the spine
and ankle, anxiety disorder and affective disorder.” Tr. at 23 (emphasis and citation omitted).
At step three, the ALJ ascertained that Plaintiff “does not have an 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. at 23-24 (emphasis and citation omitted).
The ALJ determined that Plaintiff has the following residual functional capacity
(“RFC”):
[Plaintiff can] perform light work as defined in 20 [C.F.R. §§] 404.1567(b) and
416.967(b) except that [Plaintiff] can occasionally crawl, crouch, stoop, squat
and bend. [Plaintiff] must avoid ladders, unprotected heights and the operation
of moving machinery. [Plaintiff] is limited to performing simple, repetitive tasks
in a low stress, non-production pace environment. [Plaintiff] is limited to lifting
ten pounds. [Plaintiff] must avoid the push/pull of arm controls and the
operation of foot controls.
Tr. at 25 (emphasis omitted).
At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work.”
Tr. at 30 (emphasis and citation omitted). At step five, after considering Plaintiff’s age
(“[twenty-six] years old . . . on the alleged disability onset date”), education (“at least a high
school education”), work experience, and RFC, the ALJ relied on the testimony of the VE and
found that “there are jobs that exist in significant numbers in the national economy that
[Plaintiff] can perform,” including “[a]ssembler, small parts”; “[a]ddresser”; and “[t]able worker.”
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Tr. at 30-31. The ALJ concluded that Plaintiff “has not been under a disability . . . from
February 5, 2012, through the date of th[e Decision].” Tr. at 31 (emphasis and citation
omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions of
law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .” Doughty
v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322
(11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but less than
a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard is met
when there is “‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire record is
reviewed to determine whether “the decision reached is reasonable and supported by
substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (internal
quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th
Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision reached by the
Commissioner must be affirmed if it is supported by substantial evidence–even if the evidence
preponderates against the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
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IV. Discussion
The undersigned addresses Plaintiff’s specific arguments in turn.
A. ALJ’s Assessment of Opinions
1. Parties’ Arguments
Plaintiff challenges the ALJ’s assessment of the opinions of Dr. Edgardo Galante, Dr.
Umesh Mhatre, Ms. Hydee Vanterpool, Ms. Karen Klein, and Dr. David Yudell. See Pl.’s Mem.
at 17, 20-24.6 Plaintiff contends the ALJ erred in failing to assign weight to Dr. Galante’s
opinion, id. at 21, and in failing to “appreciate the fact that Dr. Galante was a board[-]certified
anesthesiologist and pain medicine specialist who operated a pain management office . . . ,”
id. at 17. According to Plaintiff, the “ALJ’s failure to indicate the weight accorded to Dr.
Galante’s notes is significant because [he] recommended the same conservative
measures . . . that had been provided by Dr. Joseph Shaughnessy[7] . . . along with the same
diagnostic facet blocks and trigger point injections that would be administered (later) in Dr.
Frank Collier’s[8] office.” Id. at 21-22. With regard to the ALJ’s assessment of Dr. Mhatre’s
opinion, Plaintiff asserts that the reason offered by the ALJ for assigning more weight to Dr.
Mhatre’s treatment notes than to the Medical Statement completed by Dr. Mhatre is not
supported by substantial evidence. Id. at 22. As to the opinions of Ms. Vanterpool and Ms.
Klein, Plaintiff argues that the ALJ erred in “summarily reject[ing]” them. Id. at 23. Plaintiff
6
To the extent Plaintiff passingly challenges the ALJ’s assessment of other physicians’
opinions, see Pl.’s Mem. at 21, this challenge is not developed and is thus deemed to be waived for lack
of development, see, e.g., N.L.R.B., 138 F.3d at 1422; see also T.R.C. ex rel. Boyd, 553 F. App’x. at 919;
see also Scheduling Order at 1.
7
Dr. Shaughnessy treated Plaintiff in February 2012 for back and neck pain following a
motor vehicle accident. See Tr. at 286-87, 294-418.
8
Dr. Collier treated Plaintiff upon referral from Dr. Shaughnessy for back pain, arm pain,
and neck pain and spasms. See Tr. at 442-44, 505-10, 513-14, 517-18, 526-27, 530-31, 536-39, 542-48.
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contends the ALJ erred in giving significant weight to Dr. Yudell’s opinion because the ALJ
was “simply wrong” when he stated that Dr. Yudell based his opinion on a “thorough review
of [Plaintiff’s] records.” Id. at 20; see Tr. at 29.
Responding, Defendant asserts that any error in failing to assign weight to Dr.
Galante’s treatment notes is harmless because “Dr. Galante recommended conservative
treatment measures, including therapies and blocks/injections, as did Dr. Shaughnessy and
Dr. Collier.” Def.’s Mem. at 9. According to Defendant, “the ALJ in fact relied on Plaintiff’s
conservative treatment and its effectiveness i[n] determining Plaintiff’s RFC.” Id. With regard
to Dr. Mhatre’s treatment notes, Defendant argues that the ALJ gave more weight to the
physician’s treatment notes than to the Medical Statement because the treatment notes
“show[ ] a good response to conservative treatment.” Id. at 15. With regard to the opinions of
Ms. Vanterpool and Ms. Klein, Defendant contends that “neither provider was an acceptable
medical source, and therefore their opinions were not ‘medical opinions’ within the meaning
of the [R]egulations; and were not entitled to any weight.” Id. at 15-16 (citation omitted).
Defendant asserts that while Plaintiff “had sporadic mental health treatment after [Dr. Yudell’s
examination], which of course, Dr. Yudell would not have considered, the ALJ did review this
treatment history, and properly determined that Dr. Yudell’s opinion was consistent with the
evidence and entitled to significant weight.” Id. at 14.
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2. Applicable Law9
The Regulations establish a “hierarchy” among medical opinions10 that provides a
framework for determining the weight afforded each medical opinion: “[g]enerally, the opinions
of examining physicians are given more weight than those of non-examining physicians[;]
treating physicians[’ opinions] are given more weight than [non-treating physicians;] and the
opinions of specialists are given more weight on issues within the area of expertise than those
of non-specialists.” McNamee v. Soc. Sec. Admin., 164 F. App’x 919, 923 (11th Cir. 2006)
(citing 20 C.F.R. § 404.1527(d)(1), (2), (5)). The following factors are relevant in determining
the weight to be given to a physician’s opinion: (1) the “[l]ength of the treatment relationship
and the frequency of examination”; (2) the “[n]ature and extent of [any] treatment relationship”;
(3) “[s]upportability”; (4) “[c]onsistency” with other medical evidence in the record; and (5)
“[s]pecialization.” 20 C.F.R. §§ 404.1527(d)(2)-(5), 416.927(d)(2)-(5); see also 20 C.F.R. §§
404.1527(e), 416.927(f).
With regard to a treating physician or psychiatrist,11 the Regulations instruct ALJs how
to properly weigh such a medical opinion. See 20 C.F.R. § 404.1527(c). Because treating
9
On January 18, 2017, the SSA revised the rules regarding the evaluation of medical
evidence for claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation
of Medical Evidence, 82 Fed. Reg. 5844-01, 5844 (January 18, 2017). Because Plaintiff filed her claims
before that date, the undersigned cites the rules and Regulations that were in effect on the date of the
ALJ’s Decision, unless otherwise noted.
10
“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [a claimant’s] impairment(s),
including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2); see also
20 C.F.R. § 404.1513(a) (defining “[a]cceptable medical sources”).
11
A treating physician or psychiatrist is a physician or psychiatrist who provides medical
treatment or evaluation to the claimant and who has, or has had, an ongoing treatment relationship with
the claimant, as established by medical evidence showing that the claimant sees or has seen the
physician with a frequency consistent with accepted medical practice for the type of treatment and/or
evaluation required for the medical condition. See 20 C.F.R. § 404.1502.
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physicians “are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s),” a treating physician’s or
psychiatrist’s medical opinion is to be afforded controlling weight if it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence” in the record. Id. When a treating physician’s or psychiatrist’s
medical opinion is not due controlling weight, the ALJ must determine the appropriate weight
it should be given by considering the factors identified above (the length of treatment, the
frequency of examination, the nature and extent of the treatment relationship, as well as the
supportability of the opinion, its consistency with the other evidence, and the specialization
of the physician). Id.
If an ALJ concludes the medical opinion of a treating physician or psychiatrist should
be given less than substantial or considerable weight, he or she must clearly articulate
reasons showing “good cause” for discounting it. Hargress v. Soc. Sec. Admin., Comm’r, 883
F.3d 1302, 1305 (11th Cir. 2018) (citation omitted); Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997). Good cause exists when (1) the opinion is not bolstered by the evidence; (2)
the evidence supports a contrary finding; or (3) the opinion is conclusory or inconsistent with
the treating physician’s or psychiatrist’s own medical records. Hargress, 883 F.3d at 1305
(citation omitted); Phillips, 357 F.3d at 1240-41; see also Edwards v. Sullivan, 937 F.2d 580,
583-84 (11th Cir. 1991); Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987) (stating that
a treating physician’s medical opinion may be discounted when it is not accompanied by
objective medical evidence).
An examining physician’s opinion, on the other hand, is not entitled to deference. See
McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per curiam) (citing Gibson v. Heckler,
779 F.2d 619, 623 (11th Cir. 1986)); see also Crawford, 363 F.3d at 1160 (citation omitted).
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Moreover, the opinions of non-examining physicians, taken alone, do not constitute
substantial evidence. Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985) (citing
Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985)). However, an ALJ may rely on a
non-examining physician’s opinion that is consistent with the evidence, while at the same time
rejecting the opinion of “any physician” whose opinion is inconsistent with the evidence.
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. Unit B. 1981) (citation omitted).
An ALJ is required to consider every medical opinion. See 20 C.F.R. §§ 404.1527(d),
416.927(d) (stating that “[r]egardless of its source, we will evaluate every medical opinion we
receive”). While “the ALJ is free to reject the opinion of any physician when the evidence
supports a contrary conclusion,” Oldham, 660 F.2d at 1084 (citation omitted); see also 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2), “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) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th
Cir.1987)); see also Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005); Lewis, 125 F.3d
at 1440.
3. Opinions at Issue/Analysis of ALJ’s Decision
Dr. Galante initially saw Plaintiff on February 18, 2013 for neck pain. Tr. at 427.12 As
part of Plaintiff’s care plan, Dr. Galante recommended “[s]trengthening exercises,” “[e]lectrical
[s]timulation to reduce spasm and enhanc[e] muscle re-education,” “[h]ot packs to increase
circulation and muscle relaxation,” “cold [p]acks to help decrease pain and inflammation,” an
“[u]ltrasound to help promote tissue mobility and decrease scar tissue formation,” and
“[m]anual [t]herapy and [n]euromuscular re-education to improve balance, posture,
12
Defendant asserts that the “treatment history of only one examination[ ] and two
treatments within the space of a month, does not make Dr. Galante a treating physician or entitle his
opinions to any weight.” Def.’s Mem. at 9. This contention need not be addressed given that the
undersigned finds below that Dr. Galante’s notes are consistent with the ALJ’s analysis and RFC finding.
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coordination, proprioception, and kinesthetic sense.” Tr. at 428. On February 28, 2013, Dr.
Galante administered a cervical spine medial branch block, and on March 13, 2013, he
performed a cervical spine facet denervation. Tr. at 440-41. The administrative transcript does
not contain any further treatment notes from Dr. Galante.
Although the ALJ did not recognize that Dr. Galante is a physician, see Tr. at 27, and
did not assign a weight to his treatment notes, these errors are harmless. Upon reviewing Dr.
Galante’s treatment notes, it is clear they are consistent with the ALJ’s analysis and RFC
finding. See Tr. at 427 (Dr. Galante’s progress note indicating that Plaintiff’s gait is normal,
her strength is “5/5 in upper and lower extremities bilaterally,” and her “[r]ange of [m]otion is
full in all extremities”); Tr. at 428 (Dr. Galante’s plan of care consisting of conservative
treatment measures). But see Tr. at 427 (Dr. Galante’s progress note indicating Plaintiff’s
head is tender to palpation in some areas, her neck is tender, and cervical extension and
flexion elicited complaints of pain).13 Accordingly, any error in the ALJ’s failure to recognize
that Dr. Galante is a physician and to specifically assign weight to the opinions expressed in
Dr. Galante’s progress notes is harmless. See, e.g., Wright v. Barnhart, 153 F. App’x. 678,
684 (11th Cir. 2005) (unpublished) (finding that “[a]lthough the ALJ did not explicitly state
what weight he afforded the opinions of [four physicians], none of their opinions directly
contradicted the ALJ’s findings, and, therefore, any error regarding their opinions is
harmless”).
Dr. Mhatre is a psychiatrist who treated Plaintiff. The administrative record contains
two treatment notes from Dr. Mhatre: one from October 22, 2013 and one from December 17,
2013. Tr. at 559, 557. Dr. Mhatre completed a Medical Statement on September 10, 2014,
13
The undersigned notes the ALJ found that Plaintiff’s “statements regarding the intensity,
persistence and limiting effects of [the alleged] symptoms are not entirely credible . . . .” Tr. at 28. Plaintiff
does not challenge the ALJ’s credibility determination.
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in which he indicated that Plaintiff has mostly moderate to severe limitations caused by her
mental health condition. See Tr. at 466-70.
Ms. Klein and Ms. Vanterpool are two licensed mental health counselors who treated
Plaintiff. The administrative transcript contains treatment notes from Ms. Klein spanning April
24, 2013 to January 5, 2015. See Tr. at 457-59, 558, 551-56.14 Ms. Vanterpool evaluated
Plaintiff on March 29, 2013, Tr. at 454-56, and treated her on April 3, 2013, Tr. at 460.
It appears Ms. Vanterpool and Ms. Klein worked with Dr. Mhatre in the same practice,
based on the letterhead on their treatments notes and the multiple references to Dr. Mhatre
in Ms. Klein’s notes. See Tr. at 454-60, 551-60. Further, in the Medical Statement, Dr. Mhatre
stated that Plaintiff’s first consultation with him was on March 29, 2013. Tr. at 466. Although
the administrative transcript does not contain a treatment note from March 29, 2013 signed
by Dr. Mhatre, it does contain an evaluation note signed by Ms. Vanterpool with that date.
See Tr. at 454-56. Apparently, Dr. Mhatre based the opinions in the Medical Statement on
his own progress notes as well as those of Ms. Vanterpool and Ms. Klein.
The ALJ gave only “[p]artial weight” to the opined limitations in the Medical Statement
because the ALJ found “that [Plaintiff] has fewer limitations than determined by [Dr. Mhatre].”
Tr. at 29. The ALJ gave “[g]reater weight” to “Dr. Mhatre’s treatment records, which show a
good response to conservative treatment.” Tr. at 29. The ALJ gave “[l]ittle weight” to the
opinions of Ms. Klein and Ms. Vanterpool, “who each assigned [Plaintiff Global Assessment
Functioning (‘GAF’)] scores of 49, indicating serious symptoms and limitations on functioning.”
Tr. at 30. According to the ALJ, “[t]hese providers are licensed mental health counselors, and
are not acceptable treating sources as defined in [Social Security Ruling (‘SSR’)] 06-03p.” Tr.
at 30.
14
There are two additional notes from Ms. Klein dated May 8, 2013 and October 22, 2013
that indicate Plaintiff missed her appointment on those dates. Tr. at 457, 560.
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The undersigned finds that the weight given to Dr. Mhatre’s opinions is not supported
by substantial evidence. Dr. Mhatre’s treatment notes do not show that Plaintiff’s mental
health impairments were responding well to treatment. The treatment notes indicate that
Plaintiff’s depression is “fairly control[led] but anxiety persists,” Tr. at 559, and Plaintiff “shows
significant anxiety with blackout spells . . . ,” Tr. at 557. The ALJ apparently relied on the way
Plaintiff’s depression responded to treatment, but he failed to acknowledge the severity of
Plaintiff’s anxiety. See Tr. at 29. This is particularly troublesome because the ALJ found that
“anxiety disorder,” and not depression, is one of Plaintiff’s severe impairments. Tr. at 23.
Moreover, the ALJ failed to acknowledge that Ms. Vanterpool and Ms. Klein worked with Dr.
Mhatre. As noted above, Dr. Mhatre apparently considered their progress notes in completing
the Medical Statement. These notes do not show a “good response to conservative
treatment.” Tr. at 29; see Tr. at 458, 459 (treatment notes from Ms. Klein, dated April 24,
2013 and April 30, 2013, indicating Plaintiff’s “depression and anxiety are unchanged”); Tr.
at 554 (December 31, 2013 treatment note from Ms. Klein indicating Plaintiff’s “anxiety and
depression symptoms continue at moderate to severe levels”).
The undersigned is unable to determine whether substantial evidence supports the
ALJ’s rejection of Ms. Vanterpool’s and Ms. Klein’s opinions. Although these mental health
counselors are not acceptable medical sources and thus not entitled to deference, the ALJ
nonetheless erred in failing to evaluate their progress notes and explain why he rejected their
opinions, especially given that they work with Dr. Mhatre, who apparently considered their
notes when completing the Medical Statement. See SSR 06-03p (providing that “[o]pinions
from . . . sources[ ] who are not technically deemed ‘acceptable medical sources’ under [the
SSA’s] rules[ ] are important and should be evaluated on key issues such as impairment
severity and functional effects, along with the other relevant evidence in the file”). The ALJ’s
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rejection of the opinions of Ms. Vanterpool and Ms. Klein on the singular basis that they are
not “acceptable treating sources,” Tr. at 30, without any substantive evaluation, frustrates
judicial review.
Dr. Yudell is a licensed psychologist, who evaluated Plaintiff on February 25, 2013.
See Tr. at 431-37. As part of the evaluation, Dr. Yudell considered Plaintiff’s reports that she
was experiencing “sleep disturbances, which include trouble staying asleep and fitful sleep;
weight fluctuation; depressed mood; and feelings [of] helplessness.” Tr. at 435. Dr. Yudell
also noted that Plaintiff “experiences excessive worry and concern about a variety of issues
and a history of panic attacks, at which time [Plaintiff] reported experiencing difficulty
breathing, increased heart rate, and crying spells.” Tr. at 435. Dr. Yudell assigned Plaintiff a
GAF score of 65. Tr. at 437. The ALJ gave “[s]ignificant weight . . . to the opinion of Dr.
Yudell” because Dr. Yudell “based his opinions upon his comprehensive examination of
[Plaintiff] and a thorough review of the records.” Tr. at 29. Moreover, the ALJ explained, “the
opinions of Dr. Yudell are consistent with the other substantive medical evidence of record.”
Tr. at 29.
A proper assessment of the opinions of Dr. Mhatre, Ms. Vanterpool, and Ms. Klein may
impact the weight assigned to Dr. Yudell’s opinion. For this reason, the issue of whether
substantial evidence supports the ALJ’s determination that Dr. Yudell’s opinion is entitled to
significant weight need not be addressed. See Jackson v. Bowen, 801 F.2d 1291, 1294 n.2
(11th Cir. 1986) (per curiam) (declining to address certain issues because they were likely to
be reconsidered on remand); Demenech v. Sec’y of the Dep’t of Health & Human Servs., 913
F.2d 882, 884 (11th Cir. 1990) (per curiam) (concluding that certain arguments need not be
addressed when the case would be remanded on other issues).
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B. Inaccurate Statements
Plaintiff contends the ALJ made multiple inaccurate statements in the Decision. Plaintiff
misrepresents some of the ALJ’s statements, and to the extent the other targeted statements
are inaccurate, most of these inaccuracies are harmless. Plaintiff asserts “the ALJ incorrectly
described [P]laintiff’s complaint of ‘constant and dull’ cervical pain as being accompanied with
‘occasional spasm,’ [but] Dr. Galante’s February 18, 2013 progress note simply does not use
the word ‘occasional’ to modify the word spasm . . . .” Pl.’s Mem. at 17 (emphasis omitted).
The undersigned agrees with Defendant that “[i]t is impossible to discern how the outcome
of the case could possibly have turned on such a minor discrepancy.” Def.’s Mem. at 8.
Plaintiff further contends that the ALJ “interpreted Dr. Shaughnessy’s notes as
suggesting ‘improvement’ with only ‘occasional back, neck and headache pain[,]’ [but] Dr.
Shaughnessy’s treating progress notes do not however suggest that [P]laintiff’s pain was
limited to only an ‘occasional’ basis.” Pl.’s Mem. at 16. The undersigned finds that the ALJ’s
description of Dr. Shaughnessy’s notes is accurate, as they indicate that most of Plaintiff’s
pain is “intermittent.” Tr. at 286. In any event, Plaintiff fails to explain how any inaccuracy in
this regard would affect the ALJ’s Decision.
Plaintiff also takes issue with the ALJ’s statement that Dr. Yudell reported only “some”
problems with Plaintiff’s ability to concentrate. Pl.’s Mem. at 17. Plaintiff’s assertion is
incorrect. Consistent with Dr. Yudell’s evaluation note, the ALJ recognized that Dr. Yudell
reported Plaintiff “demonstrated a depressed mood with problems in concentration.” Tr. at 27;
see Tr. at 433 (Dr. Yudell’s evaluation note indicating that Plaintiff “exhibited difficulty in
maintaining attention and concentration for an extended period of time”).
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Moreover, Plaintiff argues the ALJ was wrong in stating that Plaintiff’s “symptoms have
improved significantly.” Pl.’s Mem. at 19; see Tr. at 29. The undersigned finds that substantial
evidence supports the ALJ’s statement with respect to Plaintiff’s physical impairments. See
Tr. at 294, 298, 307, 442, 475, 479, 481, 482, 487, 489, 507, 511, 528 (treatment notes
showing Plaintiff’s improvement as to her physical impairments). With regard to Plaintiff’s
mental impairments, however, the ALJ’s statement is not supported by substantial evidence.
See Tr. at 458, 459, 556, 557 (treatment notes showing Plaintiff’s lack of improvement as to
her mental impairments). Thus, on remand, the ALJ shall reevaluate whether Plaintiff’s
symptoms with respect to her mental impairments have improved significantly.15
C. Omissions
Plaintiff argues the ALJ erred in failing to refer to certain evidence in the administrative
transcript. See Pl.’s Mem. at 16-19. Specifically, Plaintiff asserts the ALJ “ignored important
details” of Dr. Shaughnessy’s June 2012 treatment notes, including notations regarding
Plaintiff’s range of motion and back pain. Id. at 16. Plaintiff also contends the ALJ “failed to
acknowledge [P]laintiff’s complaints of pain to Dr. Galante as ranging from [three] of [ten] to
[nine] of [ten], nor did the ALJ substantially describe Dr. Galante’s recommendations which
included conservative measures . . . along with consideration of Trigger Point Injections
and/or a diagnostic cervical facet block.” Id. at 17 (emphasis and citation omitted); see Tr. at
427-28. Plaintiff further asserts the ALJ failed to note that “[P]laintiff could not recall ‘any’ of
three random objects after a five[-]minute delay.” Pl.’s Mem. at 17 (citation omitted); see Tr.
15
Plaintiff also asserts that Plaintiff’s date last insured is June 30, 2014 for DIB, and that
the ALJ inaccurately stated Plaintiff’s date last insured is December 31, 2013. Pl.’s Mem. at 15; see Tr.
at 21, 23. Defendant disputes this. See Def.’s Mem. at 3 n.2. On remand, the ALJ shall ensure he uses
the correct date last insured.
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at 433 (Dr. Yudell’s evaluation note indicating Plaintiff could not recall any of three random
objects after a five-minute delay).
As to the omissions regarding Plaintiff’s physical impairments, the undersigned finds
that the ALJ sufficiently considered and discussed the medical evidence with respect to
Plaintiff’s physical impairments, see Tr. at 26-28, and any failure to refer to the specific
evidence cited by Plaintiff does not render the ALJ’s Decision unsupported by substantial
evidence, see Dyer, 395 F.3d at 1211 (stating that “there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in his decision, so long as the ALJ’s decision . . .
is not a broad rejection which is not enough to enable [a reviewing court] to conclude that [the
ALJ] considered [the claimant’s] medical condition as a whole”) (citing Foote v. Chater, 67
F.3d 1553, 1561 (11th Cir. 1995)). The undersigned cannot find that the ALJ considered
Plaintiff’s mental health condition as a whole because, as noted above, the ALJ did not
properly evaluate the mental health records from Plaintiff’s treating providers. Nonetheless,
any failure to specifically mention Dr. Yudell’s notation that Plaintiff could not recall any of
three random objects after a five-minute delay does not appear to affect the ALJ’s Decision
nor does Plaintiff explain how the ALJ’s failure to mention this piece of evidence would impact
the ALJ’s Decision. Thus, the ALJ’s failure to refer to the specific evidence cited by Plaintiff
is harmless.
V. Conclusion
1.
The Clerk of Court is directed to enter judgment pursuant to sentence four of
42 U.S.C. § 405(g) and pursuant to § 1383(c)(3), REVERSING the Commissioner’s final
decision and REMANDING this matter with the following instructions:
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(A)
Reevaluate the progress notes of Ms. Hydee Vanterpool and Ms. Karen
Klein consistent with this opinion;
(B)
Reevaluate Dr. Umesh Mhatre’s opinions, including the opinions in the
Medical Statement, taking into account the progress notes of Ms.
Vanterpool and Ms. Klein;
(C)
Reevaluate whether Plaintiff’s symptoms with respect to her mental
impairments have improved significantly;
(D)
If necessary, reevaluate Dr. David Yudell’s opinion;
(E)
Ascertain Plaintiff’s correct date last insured; and
(F)
Take such other action as may be necessary to resolve this matter
properly.
2.
The Clerk is further directed to close the file.
3.
In the event benefits are awarded on remand, Plaintiff’s counsel shall ensure
that any § 406(b) fee application be filed within the parameters set forth by the Order entered
in Case No. 6:12-mc-124-Orl-22 (In Re: Procedures for Applying for Attorney’s Fees Under
42 U.S.C. §§ 406(b) and 1383(d)(2)).
DONE AND ORDERED at Jacksonville, Florida on March 30, 2018.
bhc
Copies to:
Counsel of record
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