Skordas v. Commissioner of Social Security

Filing 18

OPINION AND ORDER. The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 2/21/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JOHN THOMAS SKORDAS,
Plaintiff,
v.

Case No: 5:16-cv-117-Oc-DNF

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, John Thomas Skordas, seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his claim for a period of
disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”). The
Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by
the appropriate page number), and the parties filed legal memoranda setting forth their respective
positions. For the reasons set out herein, the decision of the Commissioner is REVERSED AND
REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The

impairment must be severe, making the claimant unable to do his previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405 (g). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that he is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit his physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that his impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, he will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,

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1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the
Commissioner meets this burden does the burden shift back to the claimant to show that he is not
capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245
F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff protectively filed applications for a period of disability, DIB, and SSI on October
25, 2010, alleging an onset date of June 22, 2006. (Tr. 256-68, 312). Plaintiff subsequently
amended his alleged onset date to March 1, 2012. (Tr. 21, 45). Plaintiff’s claims were denied
initially and upon reconsideration. (Tr. 149-54, 158-61). Plaintiff requested a hearing and on May
1, 2012, a hearing was held before Administrative Law Judge Philemina M. Jones (the “ALJ”).
(Tr. 82-120, 162). On August 6, 2012, the ALJ entered a decision finding that Plaintiff was not
under a disability. (Tr. 125-44). Plaintiff filed a request for review and, on November 29, 2013,
the Appeals Council granted Plaintiff’s request and remanded the case back to the ALJ for further
administrative proceedings. (Tr. 145-48, 208-10).
On June 12, 2014, a second administrative hearing was held before the ALJ. (Tr. 41-81).
On September 10, 2014, the ALJ entered a hearing decision finding that Plaintiff was not disabled.
(Tr. 18-40). Plaintiff filed a request for review and, on February 1, 2016, the Appeals Council
denied Plaintiff’s request. (Tr. 3-9). Plaintiff initiated this action by filing a Complaint (Doc. 1)
on March 4, 2016.
D. Summary of the ALJ’s Decision

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At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since June 22, 2006, the originally alleged onset date. (Tr. 24). At step
two, the ALJ found that Plaintiff had the following severe impairments: depression, panic disorder,
post-traumatic stress disorder, and back and neck pain. (Tr. 24). In addition, the ALJ found that
as of April 2013, Plaintiff had the severe impairment of daytime sleepiness. (Tr. 24). At step
three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that
meets or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 24).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except he can lift 10 pounds occasionally and less than 10 pounds
frequently. He can stand and walk for 2 hours in 8 and sit 6 in 8, can
occasionally climb, balance, stoop, kneel, crouch and crawl. The claimant
can occasionally work with public and co-workers and requires alternating
between sitting and standing every 15 to 20 minutes and would have to
stretch 3-5 minutes, staying at workstation, and should perform no
overhead reaching. The claimant can adjust to the work setting, but cannot
work at production rate pace or a job with strict production quotas, or in a
fast paced work environment, he should work in a structured setting where
he is given job duties and does not have to set them himself, can perform
jobs that can be learned in 30 days or less and should perform the same
type of work duties over and over during the day, and can follow work
like procedures and instructions.
(Tr. 25-26). At step four, the ALJ found that Plaintiff is unable to perform his past relevant work
as a light truck driver, mechanic, and lubrication servicer. (Tr. 32).
At step five, the ALJ relied on the testimony of a vocational expert to find that considering
Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that he can perform. (Tr. 33). Specifically, the ALJ found that
Plaintiff can perform the jobs “addresser” and “document preparer.” (Tr. 33). The ALJ concluded
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that Plaintiff had not been under a disability from March 1, 2012, through the date of the decision,
September 10, 2014. (Tr. 34).
II.

Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ failed to apply the correct legal

standards to the medical opinions of record; (2) whether the ALJ failed to apply the correct legal
standards to Plaintiff’s severe daytime sleepiness impairment; and (3) whether the ALJ failed to
fully and fairly develop the record with regards to Dr. Hamlin’s opinion.
a) Whether the ALJ failed to apply the correct legal standards to the medical
opinions of record.
Plaintiff argues that the ALJ erred by failing to properly weigh the medical evidence of
record, specifically, the evidence from examining physicians Paul S. Suich, Ph.D., and Ivan J.
Wortman, M.D., as well as the medical evidence from Park Place Behavorial Health. (Doc. 16 p.
11-17). In response, Defendant argues that the ALJ expressly discussed the findings of Drs. Suich
and Wortman, and the ALJ’s decision reflects that she considered their evaluations in determining
Plaintiff’s RFC. (Doc. 17 p. 9).
Weighing the opinions and findings of treating, examining, and non-examining physicians
is an integral part of the ALJ’s RFC determination at step four. See Rosario v. Comm’r of Soc.
Sec., 877 F.Supp.2d 1254, 1265 (M.D. Fla. 2012). The Eleventh Circuit has held that whenever a
physician offers a statement reflecting judgments about the nature and severity of a claimant’s
impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite
his or her impairments, and the claimant’s physical and mental restrictions, the statement is an
opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011). Without such a
statement, “it is impossible for a reviewing court to determine whether the ultimate decision on
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the merits of the claim is rational and supported by substantial evidence.” Id. (citing Cowart v.
Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The Court begins with the ALJ’s treatment of Dr. Suich’s opinion. The record shows that
on December 17, 2010, Dr. Suich performed a psychological evaluation of Plaintiff at the request
of the Division of Disability Determinations. (Tr. 557-59). Dr. Suich found that Plaintiff had
limited processing speed, mildly impaired auditory and language abilities, inability to complete all
verbal commands without errors, mildly impaired recent memory, mildly impaired written
computation, moderately impaired judgment with self-care and social problem-solving, and
limited understanding of personal safety, solution focused ideas, and social interactions. (Tr. 558).
Dr. Suich diagnosed recurrent and moderate major depressive disorder; panic disorder with
agoraphobia; problems with relationships, finances, and work; and a GAF score of 50. (Tr. 559).
He recommended seeing a mental health professional, seeing a psychiatrist, medication
management, and personality testing. Dr. Suich opined that “the symptoms based on client reports
and clinical observations appear to be moderately/severely impacting activities of daily living,
vocational performance, and interpersonal interactions.” (Tr. 559).
In her decision, the ALJ noted Dr. Suich’s opinion and summarized his findings. (Tr. 2728). The ALJ, however, failed to state the weight she accorded the opinion and the reasons
therefor. The ALJ’s failure to do so constitutes a violation of Winschel’s directive to articulate the
weight accorded to the opinion. Defendant’s contention that Dr. Suich was only an examining
physician whose opinion was not entitled to any deference does not alter the fact that the ALJ was
required to weigh Dr. Suich’s opinion.
In a similar way, the ALJ erred in her treatment of Dr. Wortman’s opinion. The records
shows that Dr. Wortman performed a physical evaluation of Plaintiff on March 30, 2011. (Tr.

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601-04).

Dr. Wortman noted depression for thirteen years, two suicide attempts, not wanting to

be around people, medication makes him violent, anxiety, panicking, five years of PTSD,
nightmares, and inability to sleep. (Tr. 601). The examination revealed a chest scar, a surgery scar
on the left knee, tenderness in the neck, flat affect, and crying when discussing the PTSD. (Tr.
602-603). Dr. Wortman diagnosed anxiety and depression by history, PTSD by history needing a
psychiatric evaluation, neck pain, sleep apnea by history, and hypertension by history. (Tr. 604).
Dr. Wortman opined that Plaintiff’s “subjective complaints are consistent with the objective
medical findings.” (Tr. 604).
In her decision, the ALJ acknowledged and summarized Dr. Wortman’s evaluation. (Tr.
28). Again, however, the ALJ did not state the weight she accorded the opinion. The ALJ’s failure
to do so violated Winschel’s directive and requires remand.
The Court reaches the same result in respect to the evidence from Park Place Behavior
Health Care. The ALJ acknowledged and briefly summarized the medical evidence from Park
Place Behavior Health Care, but failed to weigh this evidence in explaining her RFC finding. Upon
remand, the Court will require the ALJ to state the weight accorded to the opinions of Dr. Suich,
Dr. Wortman, and the evidence from Park Place Behavior Health Care.
b) Whether the ALJ failed to apply the correct legal standards to Plaintiff’s severe
daytime sleepiness impairment.
Plaintiff argues that the ALJ erred by failing to account for Plaintiff’s severe impairment
of “daytime sleepiness” in the RFC finding. (Doc. 16 p. 17-18). Plaintiff argues that the ALJ’s
finding that Plaintiff was capable of performing the same type of work duties “over and over” was
inconsistent with Plaintiff’s daytime sleepiness. (Doc. 16 p. 18). Defendant contends that the ALJ
properly considered Plaintiff’s testimony regarding his inability to sleep at night and substantial
evidence supports the ALJ’s assessment of Plaintiff’s RFC. (Doc. 17 p. 12).
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“An impairment may meet this minimal definition of severity without materially affecting
the claimant’s RFC.” Davis v. Comm’r of Soc. Sec., 2013 WL 6182235, at *6 (M.D. Fla. Nov. 25,
2013). Thus, the fact that the ALJ found that Plaintiff had the severe impairment of daytime
sleepiness does not mean that the ALJ was required to include a limitation corresponding to this
severe impairment in the RFC.
In her decision, the ALJ specifically considered Plaintiff’s testimony regarding his inability
to sleep at night and found the medical evidence of record demonstrated Plaintiff’s repeated reports
of sleeping eight hours per night from June 2011 through December 2012. (Tr. 29, 656, 658, 660,
662, 664, 668, 670, 700, 702, 704, 706, 708, 710). The ALJ noted that Plaintiff testified in July
2014 that he averaged six hours of sleep per night and that he was getting used to his CPAP
machine. (Tr. 30, 68). Despite this analysis of Plaintiff’s nighttime sleeping habits, the ALJ never
addressed Plaintiff’s complaints of daytime sleepiness directly. On review, it seems the ALJ’s
treatment of Plaintiff’s night time sleep schedule shows that his complaints of daytime sleepiness
are not entirely credible. This finding, however, is never directly stated. As this case is already
being remanded, the Court will require the ALJ to directly address Plaintiff’s complaints of
daytime sleepiness in formulating the RFC.
c) Whether the ALJ failed to fully and fairly develop the record with regards to Dr.
Hamlin’s opinion.
The record shows that on January 3, 2011, Rebecca J. Keillor, the disability examiner
assigned to Plaintiff’s case, completed a Report of Contact form that stated the following:
MDE contacted PPCS today for clarification concerning the PRTF and
MRFC. Discussion with Dr. Hamlin was notable for confirming that he
does beleive [sic] this clmt is an allowance based on his “marked”
impairment in social functioning. Dr. Hamlin noted in conversation that
clmt’s 3rd Pty contact --sister-- appeared extremely credible and that the
clmt would not be able to function in a job situation due to his high
dependence upon her and the mother for even simple tasks. [Medical
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evidence of record] was also consistent with this information. MDE
thanked him for the clarifications and the call was concluded.
(Tr. 382). According to Plaintiff, this report of contact confirms that Arthur Hamlin, Psy.D., a
PRFT and MRFC before January 3, 2011, and was of the opinion that Plaintiff was markedly
limited in his ability to maintain social functioning and would not be able to function in a job
situation. (Doc. 16 p. 10). Plaintiff notes that the pre-January 3, 2011, PRTF and MRFC
referenced by Ms. Keillor are not contained in the record and suggests that they were either
destroyed or removed from the file. (Doc. 16 p. 10). The record does contain a PRTF and MRFC
completed by Dr. Hamlin on January 13, 2011, but these opinions do not contain the limitation
findings that Ms. Keillor attributed to Dr. Hamlin on January 3, 2011. (Tr. 561-77). Notably,
contrary to Ms. Keillor’s note, Dr. Hamlin’s MRFC reflects that he found Plaintiff to be only
“moderately” limited in one category of social interaction and that Plaintiff retained “the capability
of adjusting to a work environment” and had that Plaintiff had “the capacity to follow work-like
procedures and instructions.” (Tr. 562-63).
Plaintiff argues that Ms. Keillor’s statement casts doubt on the reliability of the forms
completed on January 13, 2011, and calls into question whether or not these forms were
fraudulently filled out and signed with Dr. Hamlin’s name. (Doc. 16 p. 11). Plaintiff suggests that
the pre-January 3, 2011 PRTF and MRFC referred to by Ms. Keillor were purposefully destroyed
or removed from the file. (Doc. 16 p. 10). Plaintiff argues that there is no indication in the ALJ’s
decision that the ALJ reviewed Ms. Keillor’s statement or that the ALJ attempted to resolve the
inconsistencies regarding Dr. Hamlin’s opinion. (Doc. 16 p. 11). Plaintiff contends that the ALJ
erred by failing develop the record as to this inconsistency. (Doc. 16 p. 11).
In response, Defendant argues that Plaintiff had the burden of proving that he was disabled
and the ALJ was not obligated to act as his counsel, especially given that Plaintiff has been
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represented by counsel for years. (Doc. 17 p. 12). Defendant argues that before a case can be
remanded to the Commissioner for further development of the record, a claimant must show
prejudice. (Doc. 17 p. 13). Defendant argues that Plaintiff can only speculate that additional
evidence from Dr. Hamlin might help his claimant. (Doc. 17 p. 13).
Because a hearing before an ALJ is not an adversary proceeding, an ALJ has a duty to fully
and fairly develop the record. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981).
Although the ALJ has a duty to develop the record, “there must be a showing of prejudice before
it is found that the claimant’s right to due process has been violated to such a degree that the case
must be remanded to the [Commissioner] for further development of the record.” Graham v. Apfel,
129 F.3d 1420, 1423 (11th Cir. 1997).
Here, the Court is not persuaded that the ALJ abdicated her duty to fully and fairly develop
the record by failing to resolve the apparent contradiction between Ms. Keillor’s references to
opinions of Dr. Hamlin completed before January 3, 2011, and the forms contained in the record
dated January 13, 2011. However, as this Court is already remanding the case for the reasons
explained above, the Court finds it appropriate for the ALJ to resolve this inconsistency in the
record upon remand.
III.

Conclusion

The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the
Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on February 21, 2017.

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Copies furnished to:
Counsel of Record
Unrepresented Parties

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