Michaud v. Commissioner of Social Security et al

Filing 21

MEMORANDUM OPINION AND ORDER reversing decision and remanding matter to the Commissioner under sentence four of 42 U.S.C. §405(g), with instructions to: (1) properly address the treatment records and the opinions of Plaintiff's provi ders and reassess Plaintiff's residual functional capacity, based on all of the evidence of record; then, if need be, (2) reassess Plaintiff's credibility and conduct such further proceedings as are necessary to issue a new decision based on substantial evidence and proper legal standards. The Clerk is directed to enter judgment for the Plaintiff accordingly, terminate all matters and close the file. Signed by Magistrate Judge David A. Baker on 6/3/2016. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LOUISE MICHAUD,
Plaintiff,
-vs-

Case No. 6:15-cv-310-Orl-DAB

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________________

MEMORANDUM OPINION AND ORDER
This cause came on for consideration without oral argument on review of the Commissioner’s
administrative decision to deny Plaintiff’s application for disability insurance benefits. For the
reasons set forth herein, the decision of the Commissioner is REVERSED and the matter is
REMANDED for additional proceedings.

Procedural History
Plaintiff applied for benefits, alleging that she became unable to work on September 13, 2011
(R. 159-63). The agency denied Plaintiff’s applications initially and upon reconsideration, and she
requested and received a hearing before an administrative law judge (“the ALJ”). On January 30,
2014, the ALJ issued an unfavorable decision, finding Plaintiff to be not disabled through that date
(R. 5-17). The Appeals Council declined to grant review (R. 1-4), making the ALJ’s decision the final
decision of the Commissioner. Plaintiff timely filed her Complaint (Doc. 1), and the matter is fully
briefed and ripe for review pursuant to 42 U.S.C. §405(g).

Nature of Claimed Disability
Plaintiff claims to be disabled due to fibromyalgia, chronic fatigue, osteoarthritis,
spondylolisthesis, chronic pain in the back, hips, head, neck, shoulder, arm, hand and finger,

depression, panic attacks, anxiety, “trouble concentrating, memory & learning,” difficulty sleeping,
and “trouble standing, walking, sitting, moving, using hands, lift” (R. 73, 179).
Summary of Evidence Before the ALJ
Plaintiff was sixty four years old on the date of the ALJ’s decision (R. 159), with a high school
and vocational education (R. 42, 180) and past relevant work as a medical code biller (R. 43-44).
In the interest of privacy and brevity, the medical evidence relating to the pertinent time period
will not be repeated here, except as necessary to address Plaintiff’s objections. In addition to the
medical records and opinions of her healthcare providers, the record includes the testimony of
Plaintiff and a Vocational Expert; written forms and reports completed by Plaintiff; and opinions from
non-examining state agency consultants.
By way of summary, the ALJ determined that the claimant has the following severe
impairments: disorders of the spine; degenerative disc disease, lumbar spine; lumbosacral
radiculopathy; osteoarthritis; and fibromyalgia (20 CFR 404.1520(c)) (R. 10), but did not have an
impairment or combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (R. 11-12). The ALJ next found that
Plaintiff had the residual functional capacity (“RFC”) to perform:
light work as defined in 20 CFR 404.1567(b) with limitations. The claimant is limited
to no more than occasional climbing of stairs, ropes, ladders or scaffolds; and she must
avoid moderate exposure to vibrations and work hazards such as dangerous machinery
and unprotected heights.
(R. 12).
Relying on the assistance of the Vocational Expert, the ALJ determined that Plaintiff could
perform her past relevant work, and was therefore not disabled (R. 16-17).

Standard of Review

-2-

The scope of this Court’s review is limited to determining whether the ALJ applied the correct
legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the findings
are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). 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).
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 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).

Issues and Analysis
Plaintiff asserts that the ALJ failed to apply the correct standards to the opinions of Plaintiff’s
treating physicians and the state agency consultants and failed to properly evaluate her allegations of
pain and limitations. The Court examines these issues in the context of the sequential assessment used
by the ALJ.
The five step assessment
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§ 404.1520,
416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 29 C.F.R.
-3-

§ 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments
which significantly limit his physical or mental ability to do basic work activities, then he does not
have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant’s
impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is
disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s impairments do not prevent him from
doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s
impairments (considering residual functional capacity, age, education, and past work) prevent him
from doing other work that exists in the national economy, then he is disabled. 20 C.F.R.
§ 404.1520(f). The plaintiff bears the burden of persuasion through step four, while at step five the
burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Here, the ALJ
made his decision at the fourth step and, therefore, the burden was Plaintiff’s, at all relevant times.
Plaintiff contends that the ALJ failed to adequately evaluate the opinions of her treating
physicians, Dr. Buchoff and Dr. Thebaud, and erred in giving great weight to the opinions of two nonexamining state agency consultants. Plaintiff asserts that this error also infected the ALJ’s analysis
of Plaintiff’s credibility. While the Court does not agree with all of the contentions made by Plaintiff,
upon review, error is plain, and the administrative decision must be reversed.
Evaluating Medical Opinions
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. Winschel v. Commissioner of Social
Security, 631 F.3d 1176, 1178–79 (11th Cir. 2011) (citing 20 CRF §§ 404.1527(a)(2), 416.927(a)(2);
Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).) When evaluating a physician's opinion, an
-4-

ALJ considers numerous factors, including whether the physician examined the claimant, whether the
physician treated the claimant, the evidence the physician presents to support his or her opinion,
whether the physician's opinion is consistent with the record as a whole, and the physician's specialty.
See 20 C.F.R. §§ 404.1527(c), 416.927(c). Substantial weight must be given to the opinion, diagnosis
and medical evidence of a treating physician unless there is good cause to do otherwise. See Lewis
v. Callahan, 125 F.3d 1436 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991);
20 C.F.R. § 404.1527(d). Good cause for disregarding an opinion can exist when: (1) the opinion is
not bolstered by the evidence; (2) the evidence supports a contrary finding; or (3) the opinion is
conclusory or is inconsistent with the source’s own treatment notes. Lewis, 125 F.3d at 1440.
By contrast, a consultative examiner’s opinion is not entitled to the deference normally given
a treating source. See 20 C.F.R. § 404.1527(c)(2); Crawford v. Commissioner of Social Security, 363
F.3d 1155, 1161 (11th Cir. 2004) (noting a one-time examiner’s opinion is not entitled to great
weight). Nonetheless, all opinions, even those of non-treating state agency or other program
examiners or consultants, are to be considered and evaluated by the ALJ. See 20 C.F.R. §§ 404.1527,
416.927, and Winschel.
Dr. Howard Buchoff was Plaintiff’s treating rheumatologist. On April 18, 2012, Dr. Buchoff
completed a residual functional capacity statement on which he indicated Plaintiff could not perform
even sedentary level work (R. 634-636). Dr. Thebaud was her psychiatrist. In March 2012, Family
Psychiatry Services completed a medical questionnaire which noted that: the claimant has depression,
with no evidence of delusions, suicidal/homicidal thoughts/ideations, or hallucinations; she has
difficulty concentrating; she has difficulties with short term memory; she has "mild cognitive
impairment;" she is able to take care of basic needs; and she is "not able to work, currently
incapacitated." (R. 15). In his decision, the ALJ discounted both opinions, noting:

-5-

In the instant case, the undersigned finds both doctors' medical source statements
unsupported by the objective medical evidence as a whole, including their own
(above-summarized) treatment records which note the claimant having no more than
"mild" limitations in mental health functioning; and the claimant demonstrating
moderately positive response to prescribed treatment/medications (Exhibits 8F, 16F
and ll F). Therefore, the undersigned accords little weight to both doctors' medical
opinions accordingly.
(R. 16).
Plaintiff contends that this rationale is insufficient and is not supported by substantial evidence. The
Court agrees, with respect to Dr. Buchoff.
As stated by the ALJ, the opinion of Dr. Buchoff was accorded little weight because it was
“unsupported by the objective medical evidence as a whole” including “above-summarized” treatment
records in which Plaintiff demonstrated “moderately positive response to prescribed
treatment/medications.” The ALJ summarized the treatment notes of Dr. Buchoff as follows:
[T]he claimant's treating pain management physicians, Howard Buchoff, M.D.,
(2011-2012) and Teddrick Dunson, M.D., (2011-2013) from Tampa Pain Relief
Center, have similarly reported only mild to moderate symptoms in their respective
treatment notes (Exhibits 8F, l 7F, 27F and 34F). Specifically, according to a progress
note dated March 2013, Dr. Dunson reported the claimant's chief complaints of low
back pain and radiating leg pain; and that while on medication, the claimant reported
pain levels of only '4' where on a pain rating scale of 1-l0, '10' means unbearable pain
requiring emergent medical attention, and 'l' meaning only mild and tolerable
symptoms of pain (Exhibit 34F).
Also during this March 2013 follow-up, Dr. Dunson reported the following relevant
findings during the course of medical examination: tenderness to palpation in
lumbar/cervical spine; positive spasms; positive lumbar/cervical paraspinal muscles;
gait within normal limits; normal gait without assistance; limited range of motion
(ROM) in lumbar/cervical region; 5/5 in upper extremity grip and strength, bilateral;
and no noted adverse side effects from prescribed medications. Overall, Dr. Dunson
concluded lumbar/cervical radiculitis, spondylosis, fibromyalgia, and chronic pain
syndrome in his medical assessment; he prescribed appropriate pain medication; and
he recommended follow-up in one month (Exhibit 34F). Similar to above, this March
2013 progress remains largely consistent with other pain management progress
received from both Drs. Buchoff and Dunson. This includes only mild-moderate pain
levels reported while on medication; consistent diagnoses, medical assessments and
physical exam results; and no substantial changes in the claimant's prescribed
treatment/medication regimen (Exhibits 8F, l 7F, 27F and 34F).

-6-

(R. 13-14 emphasis added).
As pointed out by Plaintiff, the conclusion that Plaintiff reported “only” mild to moderate pain
levels, and experienced a “moderately positive” response to (and no substantial changes in) her
treatment and medication is simply not supported by the treatment records. Treatment notes dated
August 8, 2011, just prior to the alleged onset, show complaints of moderately severe pain and Dr.
Buchoff prescribed injections, increased her gabapentin and discontinued tramadol (R. 488). The
gabapentin was increased again on October visit, but in November, was discontinued as “ineffective.”
(R. 487). Meanwhile, Dr. Dunson, a pain management specialist, initially prescribed a Butrans patch
(R. 583). Plaintiff reported moderate pain on return visit in October, and the number of patches was
increased (R. 584-586). By November visit, Plaintiff reported the patches were not working well and
reported her pain as 6 with medications, and moderate to severe (R. 587). She was using a TENS unit.
By December, severe pain was reported (R. 590) and Dr. Dunson prescribed Opana 10 mg
three to four times per day and methadone 5 mg three times per day (R. 593). Her pain with
medications was a 6 in January 2012 (R. 595). By February, her pain was a 5 on medications, and
Dr. Dunston changed her prescription to Opana ER (extended release) 20 mg two times per day (R.
598-601). Pain was at level 5 again in March (R. 604) and the dosage was increased to 30 mg (R.
604), and later to 40 mg (R. 605). By November 2012, her pain was a 5 and physical therapy was
added (R. 753-755). Dr. Dunson supplemented her regimen with oxymorphone 10 mg three to four
times per day (R. 753). In December 2012, Plaintiff reported that the medication helped (R. 751).
In January 2013, Plaintiff’s pain was back up to a 5, with medication (R. 748-750). By
February visit, Plaintiff was complaining of increased pain and weakness in the legs (R. 746-47) and
by March, Dr. Dunson added Percocet to her medication regimen (R. 742). Plaintiff underwent a
series of epidural steroid injections (R. 739, 735, 730) without much success. She was then evaluated
by an orthopedic surgeon who summarized her treatment as follows:
-7-

Patient is a 64 year-old female with a history of back pain, but this has gotten worse
over the last year. Bilateral leg sciatica with numbness and tingling was noted 1 year
ago. This was soon followed by numbness in the left leg. The patient has had back
pain for many years now but over the last 1-1/2 years the symptoms have gotten
worse. She has complained of more severe claudication. Her pain is aggravated by
walking and partially relieved by rest. She has tried pain medication but this only
relieves it partially. Neither has physical therapy helped, it actually made the pain
worse. She has had several series of epidural injections and nerve blocks, also this has
not worked. Having tried and failed conservative treatment surgery was eventually
advised.
(R. 828). Plaintiff eventually underwent a L5-S1 laminectomy and fusion on October 8, 2013 (R.
844-846).
A conclusion that Plaintiff’s pain was mild to moderate and her treatment stable and without
significant change is inaccurate. As the ALJ acknowledged (R. 12-13), Plaintiff was taking at least
nine prescribed medications (including several narcotics) in varying dosages and also underwent
physical therapy, injection therapy, and a lumber fusion and decompression procedure. The course
of her treatment and nature of the various modalities used is not consistent with a finding of a
“moderately positive” response, by any fair measure.1 Because the rationale to discount the opinion
of one of Plaintiff’s treating providers is based, in part, on a conclusion that is not supported by
substantial evidence, the decision must be reversed.2
The Court finds no error with respect to the weight given the opinion of Plaintiff’s psychiatrist.
Nonetheless, as remand is required for reconsideration of the opinion of Dr. Buchoff, the ALJ should
revisit all of his conclusions regarding the opinion evidence, including the weight given to the
opinions of state agency consultants, in light of his updated finding.

1

The Commissioner does not address this issue in her brief, but presents only a bare bones summary of the ALJ
opinion and the applicable regulations. As the Court’s task on review is to determine whether the ALJ properly applied the
law and made conclusions which are supported by substantial evidence, a brief which contains no meaningful analysis of the
issues raised by Plaintiff is of limited use to the Court.
2
To be clear, the Court is not finding that the opinions of Drs. Dunson and Buchoff are entitled to great or, indeed,
any weight. It is for the ALJ to make that finding in the first instance. The Court holds only that this finding is not supportable
under the appropriate legal standard.

-8-

Credibility
Plaintiff also contends that the ALJ erred in evaluating her credibility. A claimant may seek
to establish that he has a disability through his own testimony regarding pain or other subjective
symptoms. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). “In such a case, the claimant
must show: (1) evidence of an underlying medical condition and either (2) objective medical evidence
that confirms the severity of the alleged pain arising from that condition or (3) that the objectively
determined medical condition is of such a severity that it can be reasonably expected to give rise to
the alleged pain.” Id. Where an ALJ decides not to credit a claimant’s testimony about pain or
limitations, the ALJ must articulate specific and adequate reasons for doing so, or the record must be
obvious as to the credibility finding. Jones v. Department of Health and Human Services, 941 F.2d
1529, 1532 (11th Cir. 1991) (articulated reasons must be based on substantial evidence). A reviewing
court will not disturb a clearly articulated credibility finding with substantial supporting evidence in
the record. Foote, 67 F.3d at 1562.
Here, the ALJ found that Plaintiff’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons
explained herein” (R. 15). As the credibility finding made by the ALJ is dependent, in part, on the
unsupported characterization of the medical evidence, it must also be revisited, on remand.

Conclusion
For the foregoing reasons, the Court finds that the decision of the Commissioner is not
supported by substantial evidence and was not made in accordance with proper legal standards. As
such, the decision is REVERSED and the matter REMANDED to the Commissioner, under sentence
four of 42 U.S.C. §405(g), with instructions to: (1) properly address the treatment records and the
opinions of Plaintiff’s providers and reassess Plaintiff’s residual functional capacity, based on all of
-9-

the evidence of record; then, if need be, (2) reassess Plaintiff’s credibility and conduct such further
proceedings as are necessary to issue a new decision based on substantial evidence and proper legal
standards. The Clerk is directed to enter judgment for the Plaintiff accordingly, terminate all matters
and close the file.
DONE and ORDERED in Orlando, Florida on June 3, 2016.

David A. Baker
DAVID A. BAKER
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record

-10-