Ferguson v. Commissioner of Social Security

Filing 22

ORDER re 1 Complaint filed by Carlene Ferguson. Signed by Magistrate Judge Philip R. Lammens on 3/16/2016. (CAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CARLENE FERGUSON,
Plaintiff,
v.

Case No: 5:14-cv-503-Oc-PRL

COMMISSIONER OF SOCIAL
SECURITY
Defendant.

ORDER
Plaintiff appeals the administrative decision denying her husband’s applications for
Disability Insurance Benefits (“DIB”).1 Upon a review of the record (Doc. 13), the memoranda
(Doc. 20, 21), and the applicable law, the Commissioner’s decision is due to be AFFIRMED
under sentence four of 42 U.S.C. § 405(g).
I.

BACKGROUND

On June 12, 2010, Plaintiff’s husband, Ronnie Dale Ferguson (“Mr. Ferguson”), filed an
application for DIB, alleging a disability onset date of March 1, 2007. (Tr. 250). The Social
Security Administration (“SSA”) denied his application initially and upon reconsideration. (Tr.
250). Mr. Ferguson requested a hearing before an Administrative Law Judge and on March 13,
2012, Administrative Law Judge Mary C. Montanus (the “ALJ”) held a hearing. (Tr. 269–311).
Two months later, the ALJ issued an unfavorable decision. (Tr. 247–60).

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husband.

Carlene Ferguson, the Plaintiff in this case, brings this cause of action on behalf of her deceased

At step one, the ALJ found that Mr. Ferguson had not engaged in substantial gainful
activity since March 1, 2007, which is the alleged onset date. (Tr. 252). At step two, the ALJ
determined that Mr. Ferguson had the following severe impairments: history of degenerative disc
disease of the lumbar spine with chronic pain, obesity, hypertension, bradycardia controlled with
pace maker insertion, depression, and as of May 1, 2011, venous insufficiency. (Tr. 252).
At step three, the ALJ found that Mr. Ferguson did not have an impairment or a
combination of impairments that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 252–53). Next, the ALJ found that Mr. Ferguson
retained the residual functional capacity (“RFC”), from March 1, 2007 to May 1, 2011 to perform
a limited to range of light work as follows: the claimant could sit, stand, and walk
up to 6 hours in an 8 hour day; and could lift carry up to 20 pounds occasionally,
10 pounds frequently. The claimant would not be able to climb ladders, ropes, or
scaffolds, nor work around heights or dangerous moving machinery. The claimant
could occasionally stoop, crouch, climb stairs, and balance. In addition, the
claimant would be limited to simple, repetitive, and routine, tasks and could handle
only occasional changes in a work setting.
(Tr. 254). However, beginning on May 2, 2011, his RFC was further limited to
sedentary work, as follows: the claimant could lift and carry up to 10 pounds
occasionally, and lesser weights frequently; stand and walk for 2 hours in an 8-hour
day, could sit 6 hours in an 8 hour day, but would need to have the opportunity to
alternate from sitting to standing or walking every 1/2 hour for 5 minutes while on
task. The claimant could stand and walk 15 minutes at time, and would need to use
a cane for ambulation. The claimant would not be able to climb ladders, ropes, or
scaffolds, nor work around heights or dangerous moving machinery. The claimant
could occasionally stoop, crouch, climb stairs, and balance. The claimant would
need to elevate his legs 15 minutes per hour on a low footstool, and would have 12 absences per month. He would continue to be limited to simple, repetitive, routine
tasks and could handle only occasional changes in a work setting.
(Tr. 254). At step four, the ALJ determined that Mr. Ferguson was unable to perform any past
relevant work. (Tr. 258).

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At step five, however, the ALJ found that considering Mr. Ferguson’s age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national economy that
the claimant could perform. (Tr. 258–60). Namely, prior to May 1, 2011, Mr. Ferguson could
perform the light-work occupations of housekeeper, deli cutter, and outside deliverer. (Tr. 259).
And beginning May 2, 2011, Mr. Ferguson could perform the occupations of cutter and
paster/press clippings, catch up screener/printed circuit board assembly, and film touch up
inspector. (Tr. 259). Thus the ALJ found that Mr. Ferguson was not disabled from March 1,
2007, through the date of the decision. (Tr. 260).
On November 19, 2013, Mr. Ferguson died and his wife, the Plaintiff, was substituted as a
party for his Title II claim. (Tr. 15–16). On August 1, 2014, the Appeals Council denied
Plaintiff’s Request for Review, making the hearing decision the final decision of the
Commissioner. (Tr. 1–7). With her administrative remedies exhausted, Plaintiff timely filed the
instant appeal on behalf of Mr. Ferguson, her deceased husband. (Doc. 1)
II.

STANDARD OF REVIEW

A claimant is entitled to disability benefits when he is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment, which
can be expected to either result in death or last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a).
The Commissioner has established a five-step sequential analysis for evaluating a claim of
disability, which is by now well-known and otherwise set forth in the ALJ’s decision. See 20
CFR §§ 404.1520(a), 416.920(a); see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
The claimant, of course, 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).

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The scope of this Court’s review is limited to a determination of whether the ALJ applied
the correct legal standards and whether the findings are supported by substantial evidence.
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402
U.S. 389, 390 (1971)). Indeed, 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—i.e.,
the evidence must do more than merely create a suspicion of the existence of a fact, and must
include such relevant evidence as a reasonable person would accept as adequate to support the
conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982) and Richardson, 402 U.S. at 401); accord Edwards v. Sullivan,
937 F.2d 580, 584 n.3 (11th Cir. 1991). 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, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d
1356, 1358 (11th Cir. 1991). This is clearly a deferential standard.
III.

DISCUSSION

Plaintiff raises two arguments on appeal: (1) whether the ALJ improperly evaluated the
medical evidence by failing to explain the weight assigned to the opinion of the examining state
agency physician Samer Choksi, M.D., and (2) whether the ALJ improperly evaluated the medical
evidence by failing to articulate good cause for not crediting the opinion of the treating physician
Nagender A. Reddy, M.D.
The ALJ must state with particularity the weight given to different medical opinions,
including non-examining state agency physicians, and the reasons therefor. Winschel v Comm’r
of Social Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). The opinions of treating physicians are

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entitled to substantial or considerable weight unless “good cause” is shown to the contrary.
Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1159 (11th Cir. 2004). 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.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). With
good cause, an ALJ may disregard a treating physician’s opinion, but he “must clearly articulate
[the] reasons” for doing so. Id. at 1240–41.
A treating physician’s opinion on the nature and severity of a plaintiff’s impairments is
given 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. 20
C.F.R. § 404.1527(d)(2). The ALJ, however, may discount a treating physician’s opinion or
report regarding an inability to work if “it is not accompanied by objective medical evidence or is
wholly conclusory.” Edwards, 937 F.2d at 584. “The weight afforded a physician’s conclusory
statements depends upon the extent to which they are supported by clinical or laboratory findings
and are consistent with other evidence as to claimant’s impairments.” Wheeler v. Heckler, 784
F.2d 1073, 1075 (11th Cir. 1986) (per curiam); see also Schnorr v. Bowen, 816 F.2d 578, 582 (11th
Cir. 1987).
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 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 with the record as a whole; (5) specialization in
the medical issues at issue; and (6) other factors which tend to support or contradict the opinion.
20 C.F.R. § 404.1527(c). Moreover, a treating physician’s opinion is generally entitled to more

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weight than a consulting physician’s opinion. Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.
1984); see also 20 C.F.R. § 404.1527(d)(2).
Further, the opinion of a non-treating physician is not entitled to controlling weight, but
instead “depends, among other things, on the extent to which it is supported by clinical findings
and is consistent with other evidence.” Jarrett v. Comm’r of Soc. Sec., 422 F. App’x 869, 873
(11th Cir. 2011). Indeed, “the more consistent a physician’s opinion is with the record as a whole,
the more weight an ALJ should place on that opinion.” Id.
At issue here are the examination notes of state-agency physician Samer Choksi (Tr. 828–
32) and a Heart Physical Capacity Evaluation form (Tr. 1023, 1048) completed by treating
physician Nagender A. Reddy.
A. Dr. Choksi—State Agency Physician
Plaintiff argues that the ALJ committed reversible error by failing to explicitly state what
weight she accorded to Dr. Choksi’s opinion. On September 23, 2010, Dr. Choksi examined Mr.
Ferguson, at the request of the Office of Disability Determinations, and made several findings
related to Mr. Ferguson’s spine. (Tr. 828–32). Dr. Choksi found that Mr. Ferguson had a limited
lumbar range of motion, positive seated and supine straight leg tests, and his gait was antalgic and
rigid. However, the doctor also found that his cervical range of motion was normal, he could
squat to sixty degrees, he walked heel-to-toe without assistance or an assistive device, had normal
grip strength, had normal fine manipulation, lacked any muscle spasms, had no motor deficits in
his upper or lower extremities, and his motor, sensory, and reflex findings were all normal. The
ALJ stated that Dr. Choksi’s findings “indicated [a] decreased range of motion, positive straight
leg raise, but normal neurological examination; including normal grip strength.” (Tr. 256).

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Dr. Choksi also noted that Mr. Ferguson’s “subjective complaints are consistent with the
objective medical findings.” (Tr. 832). During the examination, Mr. Ferguson complained that
he was unable to work due to radicular symptoms in his bilateral lower extremities, the inability
to bend or lift, dizziness, lightheadedness, near-syncope, drug addiction, depression, and chest
pain. (Tr. 828–29).
Plaintiff’s argument focuses on the ALJ’s failure to discuss Dr. Choksi’s vague notation
the Mr. Ferguson’s subjective complaints were consistent with the doctor’s findings, thus implying
that the doctor found that his medical findings supported Mr. Ferguson’s alleged inability to work.
As a threshold matter, to the extent that Dr. Choksi’s notation is a finding that Mr. Ferguson was
unable to work, that finding is not due any deference as the ability to work is a matter reserved for
the ALJ. Tillman v. Comm’r, Soc. Sec. Admin., 559 F. App’x 975, 976 (11th Cir. 2014).
Likewise, to the extent that this notation constitutes a credibility finding, that finding is not due
any deference as “[c]redibility determinations about subjective testimony are generally reserved
to the ALJ.” Lanier v. Comm’r of Soc. Sec., 252 F. App’x 311, 314 (11th Cir. 2007).
Moreover, as shown below, Dr. Choksi’s findings belie Mr. Ferguson’s subjective
complaints. For example, in contrast to Mr. Ferguson’s purported inability to lift or bend, Dr.
Choksi found that his motor, strength, and sensory findings where normal and that he had no upper
or lower motor deficits, along with normal grip strength and the ability to squat to sixty degrees.
Notably, although Dr. Choksi made numerous findings related to Mr. Ferguson’s spine, Plaintiff
does not point to any of those findings to show that Mr. Ferguson had disabling or additional
limitations not accounted for in the RFCs. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003) (“[T]he claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.”).

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Further, while the ALJ did not explicitly state the weight she accorded to Dr. Choksi’s
opinion, the ALJ clearly relied on Dr. Choksi’s findings in the RFC assessments. First, the ALJ
cited to and summarized the doctor’s examination findings, which according to the ALJ indicated
a positive straight leg test and a decreased range of motion, but also a normal neurological
examination and normal grip strength. After discussing the medical evidence, including Dr.
Choksi’s examination findings, the ALJ concluded that the medical evidence showed no evidence
of a neurological deficit. (Tr. 255–56). Additionally, Dr. Choksi’s findings do not support
exertional limitations greater than those imposed by the RFCs, which include lifting only up to
twenty pounds occasionally and ten pounds frequently from March 1, 2007, and beginning on May
2, 2011, lifting only ten pounds occasionally and lesser weights frequently. In summary, the ALJ
clearly relied on Dr. Choksi’s findings, which are consistent with the RFC findings.
Where, as here, the ALJ clearly relies on a medical opinion that is consistent with the RFC
findings, the failure to explicitly state the weight accorded does not constitute reversible error.
Shaw v. Astrue, 392 F. App’x 684, 687 (11th Cir. 2010) (finding no reversible error where the ALJ
did not address some of an examining physician’s findings, where those findings were not
inconsistent with the RFC findings and the ALJ relied on the physician’s opinion); Scott v. Astrue,
No. 5:10-CV-111-FTM, 2011 WL 1058960, at *7 (M.D. Fla. Mar. 21, 2011) (“[A]ny argument
concerning the ALJ’s success or failure to specifically assign any weight to [the doctor’s] opinion
is not well taken because [the doctor] is a[n] one-time examiner and a non-treating physician and
his opinion is consistent with the ALJ’s decision.”). Thus, the ALJ properly considered Dr.
Choksi’s opinion.

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B. Dr. Reddy—Treating Physician
On August 19, 2011, Mr. Ferguson’s treating cardiologist Dr. Reddy completed a Heart
Physical Capacity Evaluation form, in which he was asked to classify Plaintiff’s heart condition
under the American Heart Association classification system. 2 Dr. Reddy circled “Class III,”
which indicates:
Class III

Patients with cardiac disease resulting in marked limitation of
physical activity. They are comfortable at rest. Less than ordinary
activity causes fatigue, palpitation, dyspnea or anginal pain.

(Tr. 1023, 1048). However, Dr. Reddy did not provide any textual support for this classification
or otherwise explain what affect Mr. Ferguson’s heart condition would have on his ability to work.
Instead, the doctor stated that it was unknown whether the heart condition would affect Mr.
Ferguson’s ability to attend work. The ALJ found that, to the extent the classification conflicted
with the RFC findings, the classification was not due significant weight as it was inconsistent with
the objective medical evidence. (Tr. 257). Plaintiff argues that the ALJ failed to articulate good
cause for not crediting the classification.
As a threshold matter, it is unclear to what extent—if any—the classification is inconsistent
with the ALJ’s RFC findings. This classification was made in August of 2011, and the RFC
limited Mr. Ferguson to only sedentary work after May 2, 2011. Indeed, this RFC provided for
the many exertional limitations noted above—e.g., Mr. Ferguson could only stand and walk for
two hours, sit for only six hours; could only walk for fifteen minutes at a time and would need a
cane for ambulation; would need to elevate his legs fifteen minutes per hours and would be absent

2

Although the parties dispute whether Dr. Reddy signed the form at issue here, which was
clearly signed by his nurse practitioner ARNP Lisa M. Shuster, the Court assumes that the form does
constitute Dr. Reddy’s opinion.
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one or two days per month; and he could only lift ten pounds occasionally and lesser weights
frequently.
Even if the classification is inconsistent with the RFC findings, the ALJ articulated good
cause for not crediting it as it is inconsistent with the objective medical evidence. Lewis, 125 F.3d
at 1440 (noting that an ALJ has “good cause” to not credit a treating physician’s opinion “where
the doctor’s opinion was not bolstered by the evidence, or where the evidence supported a contrary
finding”).
As the ALJ explained, the objective medical evidence shows that Mr. Ferguson’s “cardiac
impairments were stable” after his pacemaker insertion in May of 2010. (Tr. 256). Four months
after the pacemaker insertion, treating physician Andre M. Brooks found that Mr. Ferguson had
no peripheral edema or chest congestion and she stated that Mr. Ferguson should continue on a
conservative cardiac therapy treatment plan.

(Tr. 834–35).

One year after the pacemaker

insertion, Dr. Brooks again found no peripheral edema or chest congestion and Mr. Ferguson was
“doing well from a clinical standpoint”—Dr. Brooks stated again that Mr. Ferguson “will continue
on conservative cardiac therapy.” (Tr. 962). In August of 2011, Dr. Reddy’s own testing showed
that Mr. Ferguson had “normal cardiovascular risk based on the overall risks and test results.”
(Tr. 1035–36). The following October, Dr. Mark Barnhust found that Mr. Ferguson’s pacemaker
was ok.

(Tr. 1050).

And, in January of 2012, Dr. Barnhust found that Mr. Ferguson’s

cardiovascular exam was normal. (Tr. 1095–96). Further, although the ALJ correctly found that
Mr. Ferguson did indeed have a severe impairment of bradycardia, Plaintiff does not cite to any
other medical evidence that the ALJ failed to consider or that supports disabling or additional
limitations not accounted for in the RFCs. Thus, the ALJ articulated good cause for not crediting
the Dr. Reddy’s opinion. Lewis, 125 F.3d at 1440.

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IV.

CONCLUSION

For the reasons stated above, it is ORDERED that the ALJ’s decision should be
AFFIRMED under sentence four of 42 U.S.C. § 405(g).
DONE and ORDERED in Ocala, Florida on March 16, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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