Wilkerson v. Commissioner of Social Security

Filing 21

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 Claimant and against the Commissioner, and to close the case. Signed by Magistrate Judge Gregory J. Kelly on 2/10/2016. (MDH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DARRYL WAYNE WILKERSON,
Plaintiff,
v.

Case No: 6:14-cv-1805-Orl-GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Darryl Wayne Wilkerson (the “Claimant”), appeals to the District Court from a final
decision of the Commissioner of Social Security (the “Commissioner”) denying his application for
a period of disability and disability insurance benefits, in which he alleged a disability onset date
of August 13, 2010. Doc. No. 1; R. 275. Claimant argues the Administrative Law Judge (the
“ALJ”) erred by: 1) failing to weigh and/or articulate good cause for not “fully crediting” the
opinions of his treating physicians, Drs. Reginald Tall, Brian Barnard and Predeep Vangala; 2) not
properly analyzing his shoulder impairment; and 3) not properly analyzing his dysphagia and
emphysema. Doc. No. 19 at 17-24, 30-36, 42-44. Claimant argues the matter should be reversed
and remanded for further proceedings.

Id. at 48.

For the reasons set forth below, the

Commissioner’s final decision is REVERSED and REMANDED.
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)). 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 v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The 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. 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.
The record contains several opinions from Drs. Tall and Barnard concerning Claimant’s

functional limitations. The ALJ’s decision reveals he considered these opinions, but inexplicably
weighed only one opinion from those doctors, assigning each opinion great weight. R. 130-33.
Claimant argues the ALJ erred by not weighing all of Drs. Tall’s and Barnard’s opinions. Doc.
No. 19 at 32-34.
Weighing the opinions and findings of treating, examining, and non-examining physicians
is an integral part of steps four and five of the sequential evaluation process for determining
disability. 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

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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)).
In January of 2011, Dr. Tall, an orthopedic surgeon, began treating Claimant’s back
impairment. R. 573-74. On January 27, 2011, Dr. Tall opined Claimant should not perform
repetitive lifting greater than five (5) pounds, is capable of limited bending, stooping and overhead
reaching, and must have the ability to change position every hour. R. 574. On January 3, 2012,
Dr. Tall opined Claimant has reached maximum medical improvement with respect to his back
impairment. R. 736-37. In addition, Dr. Tall opined Claimant should not perform repetitive
lifting greater than ten (10) pounds, is capable of limited bending and stooping, and is not capable
of repetitive overhead reaching. R. 737. Dr. Tall continued to treat Claimant through January of
2013, but offered no new and/or additional opinions concerning Claimant’s functional limitations
after January 3, 2012. R. 742, 768-69, 833, 881.
In July of 2011, Dr. Barnard, an orthopedic surgeon, began treating Claimant’s left
shoulder impairment. R. 698-99. On July 11, 2011, Dr. Barnard opined Claimant is capable of
lifting no more than five (5) pounds below shoulder height, and is not capable of any “forceful”
pushing or pulling with the left arm. R. 699. On August 31, 2011, Dr. Barnard opined Claimant
in not capable of working. R. 653. On September 2, 2011, Claimant underwent surgery on his
left shoulder. R. 625-27. On September 12 and October 10, 2011, Dr. Barnard opined Claimant

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is not capable of working. R. 651-52. On November 7, 2011, Dr. Barnard opined Claimant is
able to lift a maximum of twenty (20) pounds. R. 648. On December 5, 2011, Dr. Barnard
opined Claimant is capable of lifting no more than two (2) pounds above shoulder height and eight
(8) pounds below shoulder height, and is not capable of “forceful” pushing and pulling. R. 646.
On January 9, 2012, Dr. Barnard opined Claimant is capable of lifting no more than eight (8)
pounds, but is not capable of repetitive overhead reaching and “forceful” pushing and pulling. R.
739. On February 13, 2012, Dr. Barnard opined Claimant’s limitations are unchanged from
January 9, 2012. R. 741. On March 26, 2012, Dr. Barnard opined Claimant has reached
maximum medical improvement with respect to his left shoulder impairment. R. 743-44. In
addition, Dr. Barnard opined Claimant is able to lift a maximum of twenty-five (25) pounds with
his left arm, but only a maximum of fifteen (15) pounds overhead. R. 743. Dr. Barnard also
opined Claimant should avoid “forceful” pushing and pulling. Id. On September 19, 2012, Dr.
Barnard opined Claimant “at this time” is not able “to use the left arm for any activities.” R. 835.
On January 16, 2013, Dr. Barnard opined that Claimant “refrain from any attempts at trying to
sublux his left shoulder.” R. 867. 1
At step two of the sequential evaluation process, the ALJ found Claimant suffers from the
following severe impairments: degenerative disc disease; hypertension; and rotator cuff tear. R.
128. At step four of the sequential evaluation process, the ALJ found Claimant has a RFC to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with the following limitations:
[Claimant] needs a cane for ambulation. The claimant can never
climb ladders, ropes or scaffolds. He can occasionally climb stairs,
balance, stoop, kneel and crouch. The claimant should avoid
concentrated exposure to fumes, odors, dusts, gases and hazards
such as machinery and heights.

1

Subluxation is defined as “[a]n incomplete luxation or dislocation; though a relationship is altered, contact between
joint surfaces remains.” Stedman's Medical Dictionary 1693 (26th ed.1995).

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R. 128-29. 2 In reaching this RFC, the ALJ discussed the medical and opinion evidence of record,
including Drs. Tall’s and Barnard’s opinions. R. 130-33. However, the ALJ only weighed Dr.
Tall’s January 3, 2012 opinion and Dr. Barnard’s March 26, 2012 opinion. R. 133.
As previously mentioned, Claimant argues the ALJ erred by only weighing Dr. Tall’s
January 3, 2012 opinion and Dr. Barnard’s March 26, 2012 opinion. Doc. No. 19 at 32-34. Drs.
Tall and Barnard offered numerous opinions concerning Claimant’s functional limitations
throughout the relevant period. R. 573-74, 698-99, 647-48, 646, 736-42, 743-44, 835. The
limitations generally focus on how much Claimant could lift, and his ability to bend, stoop,
push/pull, and reach overhead, but also addressed the need to alternate positions. Id. The ALJ
considered each of these opinions, but inexplicably only weighed Dr. Tall’s January 3, 2012
opinion and Dr. Barnard’s March 26, 2012 opinion. R. 130-33. The ALJ was required to weigh
all of Drs. Tall’s and Barnard’s opinions, and erred by not doing so. Winschel, 631 F.3d at 1179.
The Court finds the foregoing error is not harmless. Failure to state the weight given to
opinion evidence from a medical source will, in very limited circumstances, result in harmless
error. See, e.g., Caldwell v. Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008) (“An ALJ’s failure
to state with particularity the weight given different medical opinions is reversible error. When,
however, an incorrect application of the regulations results in harmless error because the correct
application would not contradict the ALJ’s ultimate findings, the ALJ’s decision will stand.”)
(citation omitted); Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005) ( “Although the
ALJ did not explicitly state what weight he afforded the opinions of [several physicians], none of
their opinions directly contradicted the ALJ’s findings, and, therefore, any error regarding their

2

Sedentary work is defined as “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).

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opinions is harmless.”). In this case, Drs. Tall’s and Barnard’s opinions prior to their findings of
maximum medical improvement indicate that Claimant can lift no more than five (5) or eight (8)
pounds, and/or that he needs to change position every hour. R. 574, 646, 738-41. In addition,
after his finding of maximum medical improvement, Dr. Barnard opined Claimant is unable to use
his left arm for any activities. R. 835. The ALJ did not weigh these opinions, which are more
restrictive than his RFC determination. See R. 126-36. As such, the Court cannot conclude the
ALJ’s failure to weigh these opinions is harmless error. Accordingly, the Court finds the case
must be reversed and remanded for further proceedings. 3
III.

CONCLUSION.
For the reasons stated above, it is ORDERED that:
1. The final decision of the Commissioner is REVERSED and REMANDED for further
proceedings pursuant to sentence four of Section 405(g);
2. The Clerk is directed to enter judgment in favor of the Claimant and against the
Commissioner; and
3. The Clerk is directed to close the case.
DONE and ORDERED in Orlando, Florida on February 10, 2016.

3

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 Claimant’s remaining arguments in detail, the Court would find it beneficial if the ALJ would provide further
explanation in support of the weight he assigned to Dr. Vangala’s opinion.

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Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Aaron M. Morgan
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc.
Desoto Bldg. Suite 400
8880 Freedom Xing Trl.
Jacksonville, FL 32256-1224

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