Mead v. Commissioner of Social Security

Filing 18

ORDER reversing and remanding case for further consideration to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g). Signed by Magistrate Judge Thomas B. Smith on 12/11/2015. (JDE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WESLEY JAMES MEAD,
Plaintiff,
v.

Case No: 6:14-cv-874-Orl-TBS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER 1
Plaintiff Wesley James Mead appeals to this Court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying his application for disability
insurance benefits. He contends that the administrative law judge (“ALJ”) erred in: (1)
failing to consider his use of a cane and need for a sit/stand option when formulating
Plaintiff’s residual functional capacity assessment, and (2) failing to properly assess
Plaintiff’s credibility. After due consideration, the Commissioner’s final decision is
reversed.
I. Background
Plaintiff filed his application for disability insurance benefits on November 28,
2012, alleging that he has been disabled since June 1, 2012, due to sleep apnea,
posttraumatic stress disorder, degenerative disc in back, shoulder pain rotator cuff, and
knee pain (Tr. 140,157,161). His claim was denied initially and on reconsideration, and
he requested a de novo hearing before an ALJ (Tr. 30, 90, 97, 100).
On December 18, 2014, both parties consented to the exercise of jurisdiction by a magistrate
judge and the case was referred to me by Order of Reference the next day (Docs. 13, 15).
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The administrative hearing was held on November 7, 2013, at which time Plaintiff,
represented by counsel, appeared and testified, as did a vocational expert (Tr. 30-57).
In a decision dated February 11, 2014, the ALJ concluded that Plaintiff was not disabled
from his alleged onset of disability date through the date of the decision (Tr. 12-26). That
decision became the final decision of the Commissioner when the Appeals Council
declined review on April 4, 2014 (Tr. 1-5).
Plaintiff was 52 years old on the date of the administrative hearing (Tr. 39). He
has at least a high school (12th grade) education and a 22-year military career followed
by work as a furniture sales representative, furniture mover/driver, forklift operator, and
maintenance mechanic (Doc. 17 at 18; Tr. 24, 39, 40, 50, 162). Plaintiff’s last date
insured for disability insurance purposes was December 31, 2016 (Tr. 157).
II. The ALJ’s Decision
In determining whether an individual is disabled, the ALJ must follow the
Commissioner’s five-step sequential evaluation process which appears in 20 C.F.R. §§
404.1520(a)(4) and 416.920(a)(4). The evaluation process requires the ALJ to
determine whether the claimant: (1) is currently employed; (2) has a severe impairment;
(3) has an impairment or combination of impairments that meets or medically equals an
impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past
relevant work; and (5) retains the ability to perform work in the national economy. See
Phillips v. Barnhart, 357 F.3d 1232, 1237-1240 (11th Cir. 2004). The claimant 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); Phillips, 357 F.3d at
1241 n.10.

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The ALJ determined at step one that Plaintiff had not engaged in substantial
gainful activity since his alleged onset date (Tr. 14). At step two, the ALJ found Plaintiff
had the following severe impairments: degenerative joint disease of the left shoulder,
degenerative disc disease of the lumbar spine, sleep apnea, posttraumatic stress
disorder, and anxiety disorder (Tr. 14). At step three, the ALJ concluded that Plaintiff did
not have an impairment or combination of impairments that met or medically equaled one
of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR §
404.1520(d), 404.1525, 404.1526) (Tr.14-15). Before proceeding to step four, the ALJ
also determined Plaintiff’s residual functional capacity:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) except the claimant can lift and/or carry 20
pounds occasionally and 10 pounds frequently; can stand
and/or walk for 6 hours in an 8-hour workday; can sit for 6
hours in an 8-hour workday; can occasionally climb, balance,
stoop, kneel, crouch, and crawl; can occasionally reach
overhead with left upper extremity; can maintain concentration
for 2 hours at a time during an 8-hour workday; can
occasionally interact with co-workers and supervisors; can
have no interaction with the general public; and can adapt to
infrequent change in the workplace.
(Tr. 16).
Light work is defined as “lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Jobs in this category require a
good deal of walking or standing, or if they involve sitting most of the time, some pushing
and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b). “To be considered capable
of performing a full or wide range of light work, [a claimant] must have the ability to do
substantially all of these activities.” Id. If a claimant can do light work, the
Commissioner will also find that the claimant can do sedentary work “unless there are

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additional limiting factors such as loss of fine dexterity or inability to sit for long periods of
time.” Id. At step four, the ALJ found that Plaintiff was not capable of performing his
past relevant work (Tr. 24). But, the ALJ concluded at step five that there are other jobs
in the national economy that Plaintiff could perform and therefore, he was not disabled
(Tr. 25).
III. Medical Evidence 2
Plaintiff has a protracted history of lower back and bilateral knee pain (Tr. 1288).
During a July 18, 2012 compensation and pension examination, he was found to have
diminished bilateral knee flexion, more severe on the left, as well as bilateral joint line
tenderness to palpation, excess fatigability, and pain on movement (Tr. 301-302; 305).
Lumbar spine x-rays revealed degenerative disc disease at L3-4 and L4-5, with only
mildly narrowed disc spaces, a minor abnormality (Tr. 205, 623). X-rays of his left
shoulder and knees showed normal findings (Tr. 205-06, 325). Straight leg testing
showed negative results and Plaintiff maintained normal strength throughout (Tr. 292-94).
On July 30, 2012 he presented to a post-deployment transition appointment with
complaints of chronic back and bilateral knee pain (Tr. 559). Examination revealed
positive bilateral straight leg raise tests at 45 degrees (Tr. 561).
At a physical therapy consultation on October 3, 2012, Plaintiff exhibited a normal
gait (Tr. 222). Following the therapy session he reported some improvement, noting less
shoulder pain and less stiffness in his back (Tr. 374). His physical therapist advised him
to continue therapy once per week for four weeks (Tr. 375).

The information in this section comes from the joint memorandum filed by the parties on May 1,
2015. See (Doc. 17 at 4-9).
2

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On November 1, 2012, Plaintiff complained of left shoulder pain and requested an
orthopedic consultation (Tr. 210). The Veterans Administration denied his request
because he had showed progress with physical therapy (Tr. 210). Plaintiff did receive a
Thermoskin shoulder support (Tr. 211). Treatment notes show that he reported total
relief of left shoulder pain when using the shoulder support (Tr. 362, 518, 812, 1147).
On November 7, 2012, Plaintiff reported doing hard yard work while wearing his
shoulder support (Tr. 361). He also reported increased shoulder pain (Tr. 361).
On November 19, 2012, Plaintiff’s physical therapist noted improvement of his
shoulder (Tr. 507). Plaintiff was observed walking slowly during mental health sessions
in August and October 2012, and March 2013 (Tr. 367, 392, 1131). An MRI of his
cervical spine taken in March 2013 showed minimal disc bulging at C4-5 and C5-6 and no
significant abnormality (Tr. 662).
In April 2013, Plaintiff was found to retain normal flexion and abduction (Tr.968).
He did not exhibit signs of painful motion (Tr. 969). Plaintiff performed repetitive use
testing with three repetitions (Tr. 969-70). He exhibited muscle strength of 5/5 in both
shoulders (Tr. 971-72). Both the empty can test and Hawkins impingement test, which
check for rotator cuff tendinopathy or tear, showed negative results on the left (Tr. 972).
Based upon the examination, Dr. Cameron Atkinson opined that Plaintiff would
experience difficulty performing any job that required overhead activity (Tr. 976).
In March 2013, Plaintiff stated during a mental status examination that he liked
scuba diving, had scuba equipment, and loved to walk on the beach (Tr. 794, 1130).
In April 2013, Plaintiff reported that he tolerated going to a hockey game, but could
not tolerate the crowd at a pop concert he went to with his daughter (Tr. 1553). Also in
April 2013, Dr. Nathaniel Robinson, a State agency medical consultant, reviewed the

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record and opined that Plaintiff could lift and/or carry 20 pounds occasionally and 10
pounds frequently; stand and/or walk 6 hours in an 8-hour day; sit 6 hours in an 8-hour
workday; occasionally reach overhead with his left arm; and occasionally climb, balance,
stoop, kneel crouch and crawl (Tr. 82-84). Another state agency medical consultant, Dr.
Carolyn Parrish, reviewed these findings in May 2013 and concurred with Dr. Robinson’s
assessment (Tr. 68-70).
On June 14, 2013, Plaintiff presented for a physical therapy evaluation, ambulating
without an assistive device (Tr. 1539). He reported bilateral knee pain worse on the left
that was aggravated by prolonged walking (Tr. 1540). At that time Plaintiff was observed
walking with a mildly antalgic gait, using a single point cane and single forearm crutch
(Id.). Dr. David M. McCoy opined that Plaintiff would benefit from a forearm crutch to aid
mobility and unload his left lower extremity (Id.). Plaintiff’s range of motion appeared to
fall within functional limits (Id.). He reported using a cane occasionally during a June 29,
2013 compensation and pension examination (Tr. 1511).
Plaintiff appeared for a July 11, 2013, consultative examination performed by Dr.
William Roy Stauffer (Tr. 1288). He complained of back pain with occasional radiation to
his left leg contributing to difficulty standing more than 10 minutes, bending, and lifting, as
well as bilateral knee pain causing difficulty walking, kneeling, crouching, and driving (Id.).
Plaintiff denied any treatment for his back pain, except for visits to a private chiropractor
that helped some of his symptoms (Id.). At the time, Plaintiff was using a crutch but
could walk without it (Id.). Dr. Stauffer noted that Plaintiff used a cane/crutch, but not
with minimal ambulation (Tr. 1290). Upon examination, the doctor detected tenderness
over the lumbar spine and left shoulder, bilateral knee joint crepitus and tenderness, and
restricted lumbar flexion and left should abduction, forward elevation, and internal rotation

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(Id.). Plaintiff showed a normal range of motion throughout, except for lumbar spine
flexion to 70 degrees and left shoulder adduction to 100 degrees, left shoulder forward
elevation to 90 degrees, and internal rotation to 80 degrees (Tr. 1290). His cranial
nerves remained intact and he exhibited motor strength of 5/5 in his arms and legs as
well as 5/5 grip strength bilaterally (Id.). Plaintiff could squat and walk on his heels and
toes (Id.). Dr. Stauffer described Plaintiff’s deep tendon reflexes as 2+ and symmetrical
(Id.). At the conclusion of the examination Dr. Stauffer diagnosed chronic back pain with
a history of degenerative disc disease, bilateral knee pain secondary to osteoarthritis, and
left rotator cuff tear (Id.).
Dr. Stauffer opined that Plaintiff could occasionally lift 20 pounds and frequently lift
10 pounds; sit two hours at a time, stand 20 minutes at a time, and walk 20 minutes at a
time for a total of 6 hours each; and occasionally balance, stoop, kneel, crouch, crawl,
and reach with his left upper extremity (Tr. 1291, 1296).
In July 2013, Plaintiff reported walking five miles per day, but said he experienced
shortness of breath when climbing hills (Tr. 1428). On July 22, 2013, he reported zero
pain (Tr. 1386). In August 2013, Plaintiff denied pain (Tr. 1327). An examination of his
spine showed no pain with palpation (Id.). His range of motion was intact and he
exhibited equal strength bilaterally (Id.).
On July 15, 2013, Dr. S. Kathryn Steel conducted a consultative psychological
evaluation (Tr. 1282-87). Plaintiff displayed a normal gait, posture, and motor status (Tr.
1283). He reported going for a walk, watching television, and walking to his parents’
house to visit on his good days (Tr. 1282). Plaintiff said he attended to household
cleaning tasks such as bimonthly vacuuming (Id.).

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In October 2013, Plaintiff said he planned to go to the Philippines for three months
to work on a house (Tr. 1314, 1655). He displayed a balanced gait at that time (Tr.
1657).
During a November 18, 2013, primary care appointment, Plaintiff described
chronic back, neck, bilateral shoulder, and bilateral knee pain that necessitated
hydrocodone twice daily (Tr. 1709). He continued to ambulate with a cane (Tr. 1711).
At the administrative hearing Plaintiff testified that he “always” uses his cane,
which enables him to walk more effectively (Tr. 35, 44). He attributed his cane use to
both knee and lower back pain (Tr. 45). Plaintiff explained that he had initially been
prescribed a crutch, but exchanged it for a cane when it became too “cumbersome” on his
forearm (Tr. 48).
IV. Standard of Review
The scope of the Court's review is limited to determining whether the
Commissioner applied the correct legal standards and whether the Commissioner’s
findings are supported by substantial evidence. Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1158 (11th Cir. 2004). 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 but less than a preponderance. It is such relevant evidence that a
reasonable person would accept as adequate to support a conclusion.” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation omitted).
When 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 preponderance of the evidence is against
the Commissioner's decision. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).

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The district court “may not decide facts anew, reweigh the evidence, or substitute our
judgment for that of the [Commissioner.]” Id. "The district court must view the record as
a whole, taking into account evidence favorable as well as unfavorable to the decision."
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (per curiam); accord Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (the court must scrutinize the entire record to
determine the reasonableness of the factual findings).
V. Discussion
Although Plaintiff raises multiple issues, only one requires discussion. The ALJ
gave great weight to that part of Dr. Stauffer’s opinion that Plaintiff could stand for 20
minutes at a time and sit for 20 minutes at a time (Tr. 1296). The Commissioner argues,
and the Court agrees, that the ALJ considered Dr. Stauffer’s opinion (Tr. 23). But, the
ALJ failed to include these limitations in Plaintiff’s ability to sit and stand in Plaintiff’s
residual functional capacity assessment. The ALJ also failed to explain why these
limitations were omitted.
Now the Commissioner argues that because Dr. Stauffer only examined Plaintiff
once, his opinion is not entitled to any special deference. See Denomme v. Comm’r
Soc. Sec. Admin., 518 Fed. App’x 875, 879 (11th Cir. 2013); McSwain v. Bowen, 814
F.2d 617, 619 (11th Cir. 1987). The Commissioner also argues that Plaintiff has failed to
point to any evidence in the record that a treating physician has identified the need for
Plaintiff to have a sit/stand option. Then the Commissioner frames the issue as follows:
“[t]he issue is whether the Court on this particular record can determine whether the ALJ’s
conclusions are rational and supported by substantial evidence, even though the ALJ did
not expressly articulate reasons for not adopting Dr. Stauffer’s opinion that Plaintiff
required a sit-stand option.” (Doc. 17 at 16) (emphasis in original). First, contrary to the

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Commissioner’s statement of the issue, it is clear from her decision that the ALJ did adopt
Dr. Stauffer’s opinion, which the ALJ gave “great weight.” (Tr. 24). After deciding that
the doctor’s opinion that Plaintiff requires a sit-stand option deserves great weight, the
ALJ should have included the option in Plaintiff’s residual functional capacity assessment
or, the ALJ should have explained why it did not belong in the residual functional capacity
assessment. Without this explanation, the Court cannot conclude that the ALJ’s residual
functional capacity assessment is supported by substantial evidence. Therefore,
reversal is required. Cf. Winschel v. Commissioner, 631 F.3d 1176, 1179 (11th Cir.
2001).
VI. Conclusion
The Commissioner’s final decision is REVERSED and REMANDED for further
proceedings consistent with the findings in this Order, pursuant to sentence four of 42
U.S.C. § 405(g). The Clerk is directed to enter judgment and CLOSE the file. The
deadline for Plaintiff to file a motion for attorney’s fees pursuant to 42 U.S.C. § 406(b) is
30 days after he receives notice from the Commissioner of the amount of past due
benefits awarded. Upon receipt of this notice, Plaintiff shall promptly email Mr. Rudy and
the OGC attorney who prepared the Commissioner’s brief to advise them that the notice
has been received.
DONE and ORDERED in Orlando, Florida on December 11, 2015.

Copies furnished to Counsel of Record

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