Jones v. Commissioner of Social Security

Filing 19

MEMORANDUM OF DECISION: The Commissioner's final decision is reversed and remanded pursuant to sentence four of 42 U.S.C. Section 405(g). The Clerk is directed to enter judgment in favor of the Claimant and to close the case. Signed by Magistrate Judge Gregory J. Kelly on 2/5/2013. (PAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JENNIFER BETH JONES,
Plaintiff,
-vs-

Case No. 6:12-cv-57-Orl-GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
______________________________________

MEMORANDUM OF DECISION
Jennifer Beth Jones (the “Claimant”), appeals to the District Court from a final decision
of the Commissioner of Social Security (the “Commissioner”) denying her application for
benefits. Doc. No. 1. Claimant argues that the final decision of the Commissioner should be
reversed and remanded because the Administrative Law Judge (the “ALJ”) erred by: 1) stating
that the record does not contain any opinions offering limitations greater than those adopted by
ALJ’s residual functional capacity assessment (“RFC”), but giving “appropriate weight” to the
opinion of Dr. Barber, which provided for limitations greater than the ALJ’s RFC; 2) failing to
account for Claimant’s moderate limitations in concentration, persistence or pace in the RFC and
hypothetical question to the VE; and 3) failing to demonstrate that the ALJ considered the
opinions of the non-examining physicians. Doc. No. 17 at 11-20. For the reasons set forth
below, the final decision of the Commissioner is REVERSED and REMANDED for further
proceedings because the ALJ failed to state with particularity the weight given, and the
reasons therefor, to Dr. Barber’s opinion.

I.

BACKGROUND.
Claimant was born on June 10, 1972; she has a general education diploma, and past-

relevant work experience as a shipyard laborer and shipping/receiving clerk. R. 120-25, 135-52,
164, 174. On August 5, 2009, Claimant filed an application for benefits, alleging an onset date
of disability as of November 21, 2005. R. 120-25. Claimant alleges disability due to a broken
back, pain, scoliosis, bipolar disorder, and hepatitis C. R. 40, 165.
On April 28, 2010, Dr. Alvan Barber, M.D., conducted a consultative physical
examination of Claimant. R. 369-76.

Physical examination revealed the following: Claimant

walks with a cane; Claimant was able to get on and off the examination table; no clubbing or
edema in the upper or lower extremities; 5/5 muscle strength bilaterally in upper and lower
extremities; 5/5 grip strength bilaterally; no deep tendon reflexes; range of motion with left
shoulder and left lower extremity pain; positive straight leg raises bilaterally, seated and supine
with pain; paravertebral muscle spasms; positive point tenderness in the right and left sacroiliac
joint; pain with light touch; and intact fine and gross motor skills. R. 372-73. Claimant walked
with a right limp and required the use of a cane; she was unable to walk on toes or heels; and
Claimant was unable to squat. R. 373. Dr. Barber’s impressions were: degenerative cervical
spine disorder with pain; bipolar disorder, on medication; hepatitis C, partially treated; and
history of vaginal cancer. R. 374.
With respect to Claimant’s functional ability, Dr. Barber opined that:
Claimant cannot walk and stand for long periods of time. Claimant
can sit for reasonable periods of time. Claimant cannot kneel,
crawl or squat. Claimant can push and pull with upper extremities.
Claimant can use upper body movements and coordinated
activities with hands. Claimant cannot walk long distances without
assistive device.
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R. 374. Thus, among other limitations, Dr. Barber opined that Claimant cannot kneel, crawl or
squat. R. 374.
On August 23, 2011, after conducting a hearing, the ALJ issued a decision finding
Claimant not disabled. R. 10-23. The ALJ determined that Claimant retains the RFC to
“perform sedentary work . . . except with no more than occasion[al] climbing, balancing,
stooping, kneeling, crouching, and crawling; and only concentrated exposure to vibrations and
hazards such as machinery and heights.

She is limited to jobs involving simple, routine,

repetitive tasks involving up to 3-step commands; and only occasional contact with the general
public and co-workers.” R. 13-14. Thus, among other limitations, the ALJ’s RFC limited the
Claimant to only occasional keeling and crawling. R. 13.
With respect to Dr. Barber’s examination, the ALJ states the following:
In April of 2010, the [C]laimant underwent a consultative
examination by Alvan Barber, M.D., at the request of the Social
Security Administration. She reported fracturing her back in 2006
and last seeing a doctor in 2007. She was taking pain medications,
which she received from her OB/GYN a month [prior] because she
had a baby. She stated that she was diagnosed with bipolar
disorder in 2007 and received treatment/medication through ACT.
She stated that she was diagnosed with hepatitis C in 2002 and
received Interferon/Ribavirin in 2003, but had not received any
treatment since that time. Examination revealed straight leg
raising was 70 degrees bilaterally with reported back pain. There
was paravertebral muscle spasms as well as point tenderness in
bilateral sacroiliac joint in all directions. She walked with a right
limp with a cane. She was unable to walk on toes and heels or
squat. Dr. Barber’s diagnosis was cervical degenerative spine
disease with pain, bipolar disorder, hepatitis C, [and] history of
vaginal cancer. . . .
R. 17. With respect to Dr. Barber’s opinions, the ALJ states:
Dr. Barber opined that, based on physical examination, the
[C]laimant could not walk and stand for long periods of time;
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could sit for reasonable periods of time; could not kneel, crawl, or
squat; could push/pull with upper extremities; could use upper
body movements and coordinated activities with hands; and could
not walk long distances without assistive device. The [ALJ] has
considered the opinion of Dr. Barber and gives it appropriate
weight. The undersigned notes that Dr. Barber had the opportunity
to examine the [C]laimant and his opinion is supported by
objective medical findings.
R. 17.

Thus, the ALJ thoroughly reviewed Dr. Barber’s findings and ultimate opinions,

including that Claimant cannot kneel, crawl, or squat. R. 17. The ALJ gave Dr. Barber’s
opinion “appropriate weight,” because Dr. Barber had the opportunity to examine the Claimant
and his opinion is based on objective medical findings. R. 17. Later in the same section of the
decision, the ALJ states that “the record does not contain any opinions from treating or
examining physicians indicated that the [C]laimant . . . has limitations greater than those
determined in this decision.” R. 20.
At step-four, based upon the ALJ’s RFC, the ALJ determined that Claimant cannot
perform her past-relevant work. R. 21. At step-five, based upon the RFC and the testimony of a
vocational expert, the ALJ determined that Claimant can perform other work as a surveillance
systems monitor, addresser, and ink printer. R. 21-22. Thus, the ALJ determined that Claimant
is not disabled. R. 22. On January 17, 2012, after the Appeals Council denied Claimant’s
request for review, the Claimant appealed the final decision of the Commissioner to the District
Court. Doc. No. 1.
II.

ANALYSIS.
As set forth above, Claimant raises numerous issues on appeal. See Doc. No. 17 at 9-20.

However, the Court finds that the first issue raised by Claimant is dispositive. Claimant
maintains that, after accurately discussing Dr. Barber’s opinion, the ALJ erred by giving the
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opinion “appropriate weight,” and then adopting an RFC which conflicts with Dr. Barber’s
opinion. Doc. No. 17 at 9-10. Claimant notes that Dr. Barber opined that Claimant cannot kneel,
crawl, or squat, but the ALJ’s RFC provides that the Claimant can occasionally kneel and crawl,
and does not address squatting. Doc. No. 17 at 9-10. Claimant also points out that although Dr.
Barber’s opinion imposes limitations greater than those adopted by the ALJ in the RFC; the ALJ
incorrectly stated that the record does not contain any opinion that has limitations greater than
those adopted by the ALJ. Doc. No. 17 at 9-10.
The Commissioner characterizes the Claimant’s argument to be that the ALJ erred by not
including an inability to stoop in the RFC. Doc. No. 18 at 14. The Commissioner states that
kneeling and stooping are not the same thing and that Dr. Barber’s opinion was not entitled to
deference because Dr. Barber was only a one-time examining physician. Doc. No. 18 at 14-15.
Weighing the opinions and findings of treating, examining, and non-examining
physicians is an integral part of steps four and five of the ALJ’s sequential evaluation process for
determining disability. The Eleventh Circuit recently clarified the standard the Commissioner is
required to utilize when considering medical opinion evidence. In Winschel v. Commissioner of
Social Security, 631 F.3d 1176, 1178-79 (11th Cir. Jan. 24, 2011), the Eleventh Circuit 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. Id. (citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825
F.2d 278, 279 (11th Cir. 1987)). The Eleventh Circuit stated that “‘[i]n the absence of such a

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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.’” Winschel, 631 F.3d at
1178-79 (quoting Cowart v. Schwieker, 662 F.2d 731, 735 (11th Cir. 1981)).

See also

MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (failure to state with particularity
the weight given to opinions and the reasons therefor constitutes reversible error); Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (failure to clearly articulate reasons for giving
less weight to the opinion of treating physician constitutes reversible error).
In this case, the ALJ accurately discussed Dr. Barber’s findings and opinions, including
Dr. Barber’s opinion that Claimant is not capable of kneeling, crawling, or squatting, and the
ALJ gave the opinions “appropriate weight.” R. 17. The ALJ’s RFC provides that Claimant is
capable of occasionally kneeling and crawling, and does address Claimant’s ability to squat. R.
13-14. Thus, Dr. Barber’s opinion clearly contains limitations greater than those ultimately
adopted by the ALJ. However, despite accurately discussing Dr. Barber’s opinion, the ALJ
incorrectly states that the “record does not contain any opinions from treating or examining
physicians indicating that the [C]laimant . . . has limitations greater than those determined in this
decision.” R. 20.
As set forth above, an ALJ is required to state with particularity the weight given to
opinions such as Dr. Barber’s, and the reasons therefor.

Winschel, 631 F.3d at 1178-79.

By

only stating that Dr. Barber’s opinions were given “appropriate weight,” the Court is unable to
determine whether the ALJ rejected Dr. Barber’s opinions with respect to Claimant’s inability to
kneel, crawl, and squat, or whether the ALJ’s limitation to occasional kneeling and crawling in
the RFC is a mistake. If the ALJ rejected Dr. Barber’s opinion that Claimant cannot kneel,

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crawl, or squat, as the Commissioner suggests, the decision does not articulate a basis for such a
rejection. Instead, the ALJ stated that Dr. Barber’s opinions were “supported by objective
medical findings.” R. 17. In sum, the ALJ’s handling of Dr. Barber’s opinions is an excellent
example of why without stating with particularity the weight given to medical opinions and the
reasons therefor, the Court is unable to determine whether the final decision is supported by
substantial evidence.

See MacGregor, 786 F.2d at 1053 (failure to state with particularity the

weight given to opinions and the reasons therefor constitutes reversible error); Lewis, 125 F.3d at
1440 (failure to clearly articulate reasons for giving less weight to the opinion of treating
physician constitutes reversible error). Accordingly, by failing to state with particularity the
weight given to Dr. Barber’s opinion and the reasons therefor, the final decision must be
reversed and remanded for further proceedings. See Winschel, 631 F.3d at 1178-79.1
III.

CONCLUSION.
For the reasons stated above, it is ORDERED that:
1.

The final decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of Section 405(g) for further proceedings;

2. The Clerk is directed to enter judgment in favor of Claimant and to close the case.
DONE and ORDERED in Orlando, Florida on February 5, 2013.

The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
1

Because the ALJ’s error requires remand, it is unnecessary to address the other issues raised by Claimant.

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Richard A. Culbertson, Esq.
3200 Corrine Drive
Orlando, FL 32803

John F. Rudy, III
U.S. Attorney’s Office
Suite 3200
400 N. Tampa St.
Tampa, Florida
33602

Mary Ann Sloan, Regional Chief Counsel
Dennis R. Williams, Deputy Regional Chief Counsel
Susan Kelm Story, Branch Chief
Christopher G. Harris, Assistant Regional Counsel
Office of the General Counsel, Region IV
Social Security Administration
61 Forsyth Street, S.W., Suite 20T45
Atlanta, Georgia
30303-8920
The Honorable Aaron M. Morgan
Administrative Law Judge
SSA ODAR Hearing Office
Desoto Bold, Suite 400
8880 Freedom Crossing Trail
Jacksonville, FL 32256-1224

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