Trice v. Commissioner of Social Security
Filing
21
MEMORANDUM OF DECISION: The Commissioner's final decision is reversed and remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is directed to enter judgment in favor of Claimant and close the case. Signed by Magistrate Judge Gregory J. Kelly on 2/18/2014. (MDH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SILAS LEE TRICE,
Plaintiff,
v.
Case No: 6:12-cv-1495-Orl-GJK
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OF DECISION
Silas Lee Trice (the “Claimant”), appeals from a final decision of the Commissioner of
Social Security (the “Commissioner”) denying his application for benefits.
Doc. No. 1.
Claimant argues that the Administrative Law Judge (the “ALJ”) erred by: 1) failing to state with
particularity the weight assigned to various medical opinions; 2) failing to consider all of his severe
impairments when determining his residual functional capacity (“RFC”); 3) failing to properly
evaluate his allegations of pain and limitations; and 4) according less weight to Dr. James K. Shea’s
medical opinions. Doc. No. 17 at 8-20. For the reasons set forth below, the Commissioner’s
final decision is REVERSED and REMANDED for further proceedings.
I.
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 — 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 v. Perales, 402 U.S. 389, 401 (1971)); 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). The
District Court must view the evidence as a whole, taking into account evidence favorable as well
as unfavorable to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan, 979 F.2d 835,
837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual
findings); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also must consider
evidence detracting from evidence on which Commissioner relied). The District Court “‘may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner].’” See Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
II.
ANALYSIS.
A. Dr. Mignogna.
Claimant argues that the ALJ failed to state with particularity the weight he assigned to Dr.
Joseph J. Mignogna’s opinions concerning his functional limitations.
Doc. No. 17 at 9.
Specifically, Claimant argues that the RFC, as determined by the ALJ, does not account for Dr.
Mignogna’s opinions concerning Claimant’s ability to squat, grip and squeeze with his right hand,
and work alone. Doc. No. 17 at 9-10. Although the Commissioner acknowledges that the ALJ
did not expressly assign weight to Dr. Mignogna’s opinions, the Commissioner argues that the
ALJ did, albeit indirectly, assign weight to Dr. Mignogna’s opinions by stating that he has “given
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considerable weight, except where otherwise noted, to the opinions of the treating/examining
physicians as they are substantiated by the objective medical evidence of record.” Doc. No. 20 at
9 (citing R. 26). Further, the Commissioner argues that the ALJ committed no reversible error
with respect to Dr. Mignogna’s opinions concerning Claimant’s ability to squat, grip and squeeze
with his right hand, and work alone. See Doc. No. 20 at 9-10.
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 has clarified the standard the Commissioner is required to utilize
when considering medical opinion evidence. In Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176
(11th Cir. 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. at 1178-79 (citing 20 C.F.R.
§§ 404.1527(a)(2), 416.927(a) (2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.1987)). “‘In
the absence of 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.’”
Winschel, 631 F.3d at 1179 (quoting Cowart v. Schwieker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinion of an examining physician is generally entitled to more weight than the
opinion of a non-examining physician. Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985).
While “‘the opinion of an examining physician is generally entitled to more weight than the
opinion of a non-examining physician, the ALJ is free to reject the opinion of any physician when
the evidence supports a contrary conclusion’” and the ALJ articulates his or her reasoning for
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rejecting the opinion(s). Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (quoting Oldham
v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. Unit B 1981)). 1
On April 8, 2009, Dr. Mignogna performed a consultative examination of Claimant. R.
478. Dr. Mignogna also reviewed several of Claimant’s treatment records. R. 478. On April
14, 2009, Dr. Mignogna issued a comprehensive report detailing his findings and impressions
concerning Claimant’s functional capacity. R. 478-83. Dr. Mignogna opined that Claimant can
sit, stand, and walk without any restrictions, and that Claimant can lift and carry “[m]edium
frequent activity.” R. 482. Dr. Mignogna further opined that Claimant cannot balance, can
occasionally squat, cannot engage in “repetitive or strenuous gripping or squeezing with right
hand[,]” and cannot work “in solitary or in safety sensitive activities.” R. 482.
At step four of the sequential evaluation process, the ALJ determined that Claimant has the
following RFC:
[L]ift 20 pounds occasionally and 10 pounds frequently, stand
and/or walk for 6 hours out of an 8 hour day and sit for 6 hours out
of an 8 hour day with occasionally reaching, waist to chest, with the
right dominant hand and occasional hearing but no balancing or
hazardous machinery[.]
R. 22-3. In reaching this RFC, the ALJ considered, among other things, Dr. Mignogna’s report.
R. 23-4. In doing so, the ALJ provided a detailed summary of Dr. Mignogna’s report, including
the following summary of Dr. Mignogna’s opinions concerning Claimant’s functional capacity:
In terms of functioning, the doctor noted that the claimant had no
restrictions in standing/walking and sitting. He was able to perform
frequent medium activity with occasional squatting but no balancing
and no repetitive or strenuous gripping/squeezing with the right
hand. The claimant should not work in solitary or in safety
sensitive activities.
1
In Stein v. Reynolds Sec., Inc., 667 F.2d 33 (11th Cir. 1982), the Eleventh Circuit adopted as binding precedent all
of the post-September 30, 1981, decisions of Unit B of the former Fifth Circuit. Id. at 34.
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R. 24. Although the ALJ did not expressly assign weight to Dr. Mignogna’s opinions, he did state
that he gave “considerable weight, except where otherwise noted, to the opinions of the
treating/examining physicians as they are substantiated by the objective medical evidence of
record.” R. 26.
Dr. Mignogna is an examining physician, who conducted an examination of Claimant,
resulting in a comprehensive report, which included, among other things, opinions concerning
Claimant’s functional capacity. See R. 478-83. 2 As such, the ALJ was required to assign weight
to Dr. Mignogna’s opinions and articulate the reasons supporting the weight assigned to Dr.
Mignogna’s opinions. Winschel, 631 F.3d at 1178-79. The Commissioner maintains that the
ALJ did assign weight to Dr. Mignogna’s opinions even though she acknowledges that the ALJ
did not do so “by name[.]” Doc. No. 20 at 9 (original emphasis). The Commissioner directs the
Court’s attention to the ALJ’s statement that he gave “considerable weight, except where otherwise
noted, to the opinions of the treating/examining physicians as they are substantiated by the
objective medical evidence of record.” Doc. No. 20 at 9 (citing R. 26). The Court finds that this
statement encompasses Dr. Mignogna’s opinions since he was an examining physician whose
opinions were not otherwise assigned less than considerable weight. See R. 20-28, 478-83.
Consequently, the Court finds that the ALJ assigned considerable weight to Dr. Mignogna’s
opinions.
While the ALJ assigned considerable weight to Dr. Mignogna’s opinions, the ALJ failed
to articulate why he did not include or otherwise adopt Dr. Mignogna’s opinion that Claimant
cannot engage in “repetitive or strenuous gripping or squeezing with right hand” or work “in
2
The record contains no RFC assessments from a treating physician that go into the detail contained in Dr.
Mignogna’s report, or the report of a second examining physician, Dr. James K. Shea. See R. 1-579.
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solitary.” See R. 20-28; Doc. No. 17 at 9-10. 3 The Commissioner argues that the “ALJ clearly
did not credit” Dr. Mignogna’s gripping and squeezing limitation because it was not supported by
his observations. Doc. No. 20 at 10 (citing R. 23, 481-82). Contrary to the Commissioner’s
argument, the ALJ never discredited Dr. Mignogna’s opinion that Claimant cannot engage in
repetitive or strenuous gripping or squeezing with his right hand. See R. 20-28. Therefore, the
Court finds the Commissioner’s first argument unavailing. Alternatively, the Commissioner
argues that the RFC accounts for the limitation by limiting Claimant to “occasionally reaching,
waist to chest, with the right dominant hand[.]” See Doc. No. 20 at 10 (citing R. 23, 482). 4 This
limitation, however, does not address Claimant’s ability, or lack thereof, to engage in repetitive
and strenuous gripping or squeezing with his right hand. Instead, the limitation contained in the
RFC only addresses Claimant’s ability to reach with his right hand. R. 23. Gripping and
squeezing with one’s hand is not analogous to reaching with one’s hand. Therefore, the Court
finds the Commissioner’s alternative argument unavailing. As for Dr. Mignogna’s opinion that
Claimant should not work alone, the Commissioner does not provide any explanation as to why
the ALJ did not address this limitation.5
3
The ALJ also failed to articulate why he did not include or otherwise adopt Dr. Mignogna’s opinion that Claimant
can occasionally squat. R. 20-28; Doc. No. 17 at 9. The Commissioner argues that this omission resulted in harmless
error. Doc. No. 20 at 9. At step five of the sequential evaluation process, the ALJ, relying on the testimony of a
vocational expert, found that Claimant could “perform the requirements of representative occupations such as system
surveillance monitor . . . and toll collector[.]” R. 28. Neither of these jobs require squatting or its equivalent. U.S.
Dep’t of Labor, Dictionary of Occupational Titles, 379.367-010 (rev. 4th ed.1991), 1991 WL 673244 (indicating that
crouching is not required for surveillance system monitor); Id., 211.462-038, 1991 WL 671847 (rev. 4th ed.1991)
(indicating that crouching in not required for toll collector). As such, omission of the squatting restriction from the
RFC was harmless. Timmons v. Comm’r of Soc. Sec., 522 F. App’x 897, 906 (11th Cir. 2013).
4
The Commissioner does not argue harmless error with respect to the ALJ’s failure to address Dr. Mignogna’s
opinions concerning Claimant’s ability to grip and squeeze, and work alone. See Doc. No. 20 at 10.
5
Instead of responding to Claimant’s argument concerning Dr. Mignogna’s opinion that he not work alone, the
Commissioner addresses Dr. Mignogna’s opinion that Claimant should not work “in safety sensitive activities.” See
Doc. No. 20 at 10. This opinion and the ALJ’s consideration thereof is not at issue in this case. See Doc. No. 17 at
9-10. Therefore, the Court will proceed as though the Commissioner has not responded to Claimant’s argument that
the RFC does not account for Dr. Mignogna’s opinion that he not work alone.
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Having given considerable weight to Dr. Mignogna’s opinions, the ALJ should have
provided a reasoned explanation as to why he did not include Dr. Mignogna’s gripping and
squeezing and solitary work limitations in the RFC. See Winschel, 631 F.3d at 1179; see also
Monte v. Astrue, Case No. 5:08-cv-101-Oc-GRJ, 2009 WL 210720, at *6-7 (M.D. Fla. Jan. 28,
2009) (An “ALJ cannot reject portions of a medical opinion without providing an explanation for
such a decision.”) (citing Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987)). The ALJ,
however, provided no such explanation, thus preventing meaningful review of the ALJ’s decision
to not include a limitation to which he otherwise gave considerable weight. See R. 20-28.
Accordingly, the ALJ’s decision is not supported by substantial evidence, and, as a result, the case
must be remanded for further proceedings. 6
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 42 U.S.C. § 405(g); and
2. The Clerk is directed to enter judgment for Claimant and close the case.
DONE and ORDERED in Orlando, Florida on February 18, 2014.
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
6
The Court finds this issue dispositive and does not address Claimant’s remaining arguments. See Diorio v. Heckler,
721 F.2d 726, 729 (11th Cir. 1983) (on remand the ALJ must reassess the entire record). While the Court will not
address the merits of Claimant’s remaining arguments, it notes that the ALJ did not address or weigh the opinions of
two non-examining consultative physicians, Dr. Clarence Louis (R. 484-91) and Dr. Loc Kim Le (R. 513-20). See
R. 20-28. Accordingly, upon remand the ALJ shall specifically address the foregoing opinions, as well as all other opinion
evidence relevant to determining Claimant’s RFC.
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Richard A. Culbertson
Suite E
3200 Corrine Dr
Orlando, FL 32803
John F. Rudy, III
Suite 3200
400 N Tampa St
Tampa, FL 33602
Mary Ann Sloan, Regional Chief Counsel
Dennis R. Williams, Deputy Regional Chief Counsel
Jerome M. Albanese, Branch Chief
Megan E. Gideon, Assistant Regional Counsel
Social Security Administration
Office of the General Counsel
Atlanta Federal Center
61 Forsyth Street, S.W., Suite 20T45
Atlanta, Georgia 30303-8920
The Honorable Scott A Tews
Administrative Law Judge
SSA ODAR Hearing Ofc
Ste 1550 New River Ctr
2 E Las Olas Blvd
Ft Lauderdale, FL 33301
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