Hilderbrandt v. Commissioner of Social Security
Filing
22
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 2/21/2018. (CAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
AARON KENNETH HILDERBRANDT,
Plaintiff,
v.
Case No: 5:17-cv-35-Oc-DNF
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Aaron Kenneth Hilderbrandt, seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his claim for a period of
disability and Disability Insurance Benefits (“DIB”). 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 filed an application for a period of disability and DIB on September 11, 2015,
alleging a disability onset date of March 4, 2015. (Tr. 165-66). Plaintiff’s application was denied
initially on February 4, 2016, and upon reconsideration on April 26, 2016. (Tr. 99-101, 105-09).
Plaintiff requested a hearing and, on August 11, 2016, an administrative hearing was held before
Administrative Law Judge Eric S. Fulcher (“the ALJ”). (Tr. 39-63). On September 23, 2016, the
ALJ entered a decision finding that Plaintiff was not under a disability from March 4, 2015,
through the date of the decision. (Tr. 17-38). Plaintiff filed a request for review which the Appeals
Council denied on November 20, 2016. (Tr. 1-4). Plaintiff initiated this action by filing a
Complaint (Doc. 1) on January 27, 2017.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since March 4, 2015, the alleged onset date. (Tr. 19). At step two, the
ALJ found that Plaintiff had the following severe impairments: status post gunshot wound to the
right hip, degenerative disc disease of the cervical and lumbar spine, migraine headaches, obesity,
obstructive sleep apnea, posttraumatic stress disorder, anxiety disorder, major depression,
adjustment disorder, and status post traumatic brain injury/concussion with mild neurocognitive
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disorder. (Tr. 19). 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. 21).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) with certain
additional limitations. Specifically, the claimant can lift and/or carry and
push and/or pull 20 pounds occasionally and 10 pounds frequently. The
claimant can stand, walk, and sit up to six hours each in an eight-hour
workday. The claimant can frequently use foot controls on the right. The
claimant can frequently climb ramps and stairs. The claimant can never
climb ladders, rope, and scaffolds. The claimant can frequently balance,
stoop, kneel, crouch, and crawl. The claimant can be occasionally exposed
to dust, odors, fumes, pulmonary irritants and vibrations. The claimant
should avoid all exposure to hazards, such as unprotected heights and
moving machinery. The claimant is able to perform simple, routine,
repetitive tasks and make simple work related decisions.
(Tr. 24). The ALJ also found that Plaintiff can have no more than occasional interaction with
coworkers, supervisors, and the general public. (Tr. 24). At step four, the ALJ found that Plaintiff
is unable to perform his past relevant work as a welder fabricator, pipe fitter welder, bouncer, and
army cavalry staff. (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. 32-33). Specifically, the ALJ found
that Plaintiff can perform such occupations as merchandise marker, warehouse support worker,
and cleaner. (Tr. 33). The ALJ concluded that Plaintiff had not been under a disability from March
4, 2015, through the date of the decision, September 28, 2016. (Tr. 33).
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II.
Analysis
Plaintiff raises two issues on appeal: (1) whether the ALJ erred by failing to apply the
correct legal standards to the opinion of Plaintiff’s treating physician, Bhupinder S. Mangat, M.D.;
and (2) whether the ALJ erred by failing to apply the correct legal standards to the decision from
the Department of Veterans Affairs. (Doc. 17 p. 1).
a) Whether the ALJ erred by failing to apply the correct legal standards to the
opinion of Plaintiff’s treating physician, Bhupinder S. Mangat, M.D.
Plaintiff argues that substantial evidence does not support the ALJ’s decision to accord
“little weight” to the opinion of Dr. Mangat. (Doc. 17 p. 12-17). Defendant argues that the ALJ
properly articulated good cause for giving Dr. Mangat’s opinion “little weight” and that Plaintiff’s
argument amounts to an attempt to substitute his assessment of the evidence for that of the ALJ.
(Doc. 21 p. 6-12).
The record shows that Plaintiff was referred to Dr. Mangat, at Seminole Neurology
Associates, for a neurophysiological evaluation on April 21, 2015. (Tr. 337-338). Dr. Mangat
continued to see Plaintiff for follow-up appointments on June 18, 2015, July 10, 2015, and August
17, 2015. (Tr. 320-340). Examinations revealed muscle spasms (Tr. 322, 327, 332), decreased
sensation in the lower limb (Tr. 322, 327, 332, 337), and positive Phalen’s test. (Tr. 337). Nerve
conduction studies revealed abnormalities in the right tibial nerve. (Tr. 338).
Dr. Mangat
diagnosed anxiety (Tr. 320), depression (Tr. 320, 333), cervical radiculopathy of nerve roots in the
neck, and sacral radiculopathy at the base of the spine. (Tr. 323, 328, 333).
On October 22, 2015, Dr. Mangat opined that Plaintiff suffered from chronic posttraumatic
headaches, migraines, worse headache pain with physical activity, nausea, vomiting, sensitivity to
light and sound, changes in vision, and sensory changes. (Tr. 456-457). He noted that Plaintiff’s
chronic head pain typically lasted more than two days. (Tr. 457). Dr. Mangat further noted that
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Plaintiff suffered from very frequent prostrating and prolonged attacks of migraine headache pain.
(Tr. 457). An April 2009 MRI of Plaintiff’s brain revealed abnormalities. (Tr. 458). Dr. Mangat
opined that Plaintiff’s headache condition caused him to be unable to function in work settings.
(Tr. 458).
On the same day, Dr. Mangat further opined that Plaintiff suffered from a contusion,
cervical spondylosis stenosis, radiculopathy, and spinal canal stenosis. (Tr. 459). He noted that
Plaintiff had painful range of motion in his neck and he was unable to perform repetitive testing
due to increased pain, numbness, an electric sensation down his arms, and fatigue. (Tr. 461). Dr.
Mangat noted that Plaintiff experienced guarding or muscle spasm of his cervical spine and this
cause an abnormal gait. (Tr. 462). He opined that Plaintiff had “a significant and profound function
loss due to pain during flare-ups and when joint is used repeatedly. Functional loss may be
estimated as 80-100 during painful flare-ups.” (Tr. 463). Dr. Mangat opined that Plaintiff suffered
from intervertebral disc syndrome and experienced at least eight weeks of incapacitating episodes
over the prior twelve months. (Tr. 467). He cited to Plaintiff’s cervical MRI as objective evidence
that supported his findings. Id. Dr. Mangat further opined that Plaintiff’s neck condition:
impact[ed Plaintiff’s] ability to work in any capacity and is unemployable
[due to] disability. The condition causes profound functional loss with less
movement than is normal, decreased ROM, fatigue, pain on movement.
[I]nterferes with standing and sitting. [P]ainful numbness in bilateral
upper extremities with tingling electric sensation down arms through
fingers. The above conditions are related to history of multiple IED blasts
and history of head/neck injury during IED blast in 2006 while deployed
in Iraq.
(Tr. 469).
In his decision, the ALJ addressed Dr. Mangat’s opinion, in conjunction with another
opinion, as follows:
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Bhupinder Mangat, M.D. and J Bear, M.D., completed questionnaires
regarding the claimant’s headaches, and cervical spine, neck, and back
impairments for the Department of Veteran Affairs. Dr. Bear noted that
due to depression and PTSD, the claimant has occupational and social
impairment with deficiencies in most areas such as work, school, family
relations, judgment, thinking or mood (Ex. 6F/3 & 7F/4). Dr. Mangat
noted that the claimant lumbar impairments affect his ability to perform at
any occupational level (Ex. 7F/21, 32). I give little weight to these
opinions. In spite of their status as the claimant’s treating physicians, I
cannot assign controlling weight to their opinions because the opinion
expressed is quite conclusory, providing very little explanation of the
evidence relied on in forming that opinion and does not provide a functionby-function assessment of the claimant’s limitations. Moreover, the
treating relationship did not last long enough for Dr. Bear or Dr. Mangat
to have obtained a longitudinal picture of the claimant’s medical
condition. Accordingly, their opinion does not merit the same weight that
would be given to a treating physician with a treating relationship of a
longer duration. Further, although these physicians performed range of
testing their functional limitations lacks the specificity that would
otherwise make it more persuasive. Moreover, the physical and mental
examinations in the record were repeatedly normal. As a result, their
opinion is inconsistent with the evidence of the claimant’s activities,
including attending full time college classes.
In addition, Dr. Mangat opined that the claimant is unable to function in a
work setting because headaches are disabling (Ex. 7F/10). Although an
opinion of this nature may provide evidence of the severity of the
claimant’s impairments, the ultimate determination of disability is an issue
reserved for the Commissioner of Social Security (20 CFR 404.1527(e)
and 416.927(e); SSR 96-5p).
(Tr. 30-31).
“The Secretary must specify what weight is given to a treating physician’s opinion and any
reason for giving it no weight, and failure to do so is reversible error.” MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). 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.
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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
the merits of the claim is rational and supported by substantial evidence.” Id. (citing Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinions of treating physicians are entitled to substantial or considerable weight unless
good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004).
The Eleventh Circuit has concluded that good cause exists when the: “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. Id.
In this case, the Court finds that the ALJ did not err by according little weight to Dr.
Mangat’s opinion. The ALJ correctly found that although Dr. Mangat cited some details and
findings, Dr. Mangat did not provide a function by function assessment of Plaintiff’s abilities,
instead generally stating that Plaintiff’s impairments prevent him from working. Dr. Mangat’s
opinion that Plaintiff was “unemployable” is an opinion on the ultimate issue of disability that is
reserved for the Commissioner. 20 C.F.R. § 404.1527(d)(1). The ALJ’s observation that Plaintiff’s
treatment relationship had not lasted long enough for Dr. Mangat to provide a longitudinal
assessment was not erroneous given that Plaintiff had seen Dr. Mangat only four times before Dr.
Mangat rendered his opinion. As Defendant notes, the ALJ has the discretion to weigh the length
of treatment relationship in determining the weight to assign opinion evidence. See 20 C.F.R. §§
404.1520b(b) and 404.1527(c)(2). Finally, the Court rejects Plaintiff’s argument that the ALJ
erred by failing to identify the evidence that contradicted Dr. Mangat’s opinion. The ALJ
thoroughly reviewed and summarized the voluminous medical record in this case in the pages
preceding his discussion of the weight assigned to Dr. Mangat’s opinion. Thus, while the ALJ did
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not cite to specific instances in the record where Dr. Mangat’s opinion was contradicted, the
medical evidence discussed in the decision provides substantial evidence for the ALJ’s
determination.
Plaintiff has failed to demonstrate that the ALJ committed reversible error in his treatment
of Dr. Mangat’s opinion. Accordingly, the Court will not disturb the ALJ’s findings pertaining to
Dr. Mangat on appeal.
b) Whether the ALJ erred by failing to apply the correct legal standards to the
decision from the Department of Veterans Affairs.
The record indicates that the Department of Veterans Affairs assigned Plaintiff a 90%
disability rating due to PTSD, migraine headaches, gunshot wound through the hip, cervical strain,
and lumbar strain. (Tr. 176-77, 2106-2108). In his decision, the ALJ addressed Plaintiff’s VA
rating as follows:
I have taken note that the Department of Veterans Affairs has purportedly
assigned the claimant a service-connected disability rating of 90% (Ex.
6D/1 & 20F/1-3). Although a determination that the claimant is only 90%
disabled is not inconsistent with a finding that the claimant is not
completely disabled, I have given little weight to the Department of
Veterans Affairs determination. The disability determination process
utilized by the Department of Veterans Affairs does not make a functionby-function assessment of an individual’s capabilities (i.e., determine the
claimant’s residual functional capacity) or determine whether the claimant
is able to perform either his past relevant work or other work that exists in
significant numbers in the national economy as is required by the
Regulations. Thus, a disability rating by the Department of Veterans
Affairs is of little probative value in these proceedings. Therefore, I have
given that rating little weight.
(Tr. 31).
The Social Security Regulations plainly state that a claimant may bring evidence of an
impairment to the Commissioner’s attention including “[d]ecisions by any governmental or
nongovernmental agency about whether [an individual is] disabled . . . .” 20 C.F.R. § 1512(b)(5).
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In the Eleventh Circuit, “[t]he findings of another agency on disability, while not binding on the
Commissioner, are entitled to great weight.” Falcon v. Heckler, 732 F.2d 827, 831 (11th Cir. 1984)
(citing Bloodsworth v. Heckler, 703 F.2d 1233, 1241 (11th Cir. 1983)). A VA rating of disability,
while not binding, is evidence that should be given great weight. Olson v. Schweiker, 663 F.2d
593, 597 n.4 (5th Cir. 1981); Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. Unit A 1981).
In Brown-Gaudet-Evans v. Commissioner of Social Security, the Eleventh Circuit held that
“[i]t is not disputed that the VA’s ‘disability’ determination relies on different criteria than the
SSA’s determination. But that does not mean that the ALJ can summarily ignore the VA’s
determination nor give it ‘little weight.’” Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 F.
App’x. 902, 904 (11th Cir. 2016). The Court remanded the case for further proceedings and held
that “the ALJ must seriously consider and closely scrutinize the VA’s disability determination and
must give specific reasons if the ALJ discounts that determination.” Id.
Plaintiff argues that the ALJ failed to apply the correct legal standard to the VA rating.
The Court agrees. In this case, the ALJ accorded “little weight” to the VA rating on the basis that
the VA disability determination process is different than the process used by the SSA and,
therefore, “is of little probative value in these proceedings.” (Tr. 31). The fact that the two agencies
utilize different determination processes does not constitute good cause for rejecting evidence that
is entitled to great weight.
Defendant argues that Brown is distinguishable from this case because in Brown the ALJ
appears to have summarily ignored the VA’s determination. (Doc. 21 p. 15). The Court rejects
this argument. In Brown, the Eleventh Circuit specifically acknowledged that the ALJ addressed
the VA rating and gave it little weight because the VA rating used a different criteria for deciding
if an individual is disabled. Brown-Gaudet-Evans, 673 F.App’x at 904. In this case, the ALJ did
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the same thing, rejecting the VA rating on the basis that the VA utilizes a different disability
evaluation process.
On remand, the Court will require the ALJ to consider and closely scrutinize the VA’s
disability determination, provide specific reasons for the weight he accords VA’s disability
determination, and conduct further proceedings as necessary.
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, 2018.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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