Lance v. Commissioner of Social Security

Filing 21

OPINION AND ORDER. The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 2/21/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BRYAN K. LANCE,
Plaintiff,
v.

Case No: 6:15-cv-1411-Orl-DNF

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Bryan K. Lance, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying his claim for a period of disability and
Disability Insurance Benefits (“DIB”). The Commissioner filed the Transcript of the proceedings
(hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed a
joint legal memorandum setting forth their respective positions. For the reasons set out herein, the
decision of the Commissioner is REVERSED AND REMANDED pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The

impairment must be severe, making the claimant unable to do his previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. 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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that he is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit his physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that his impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, he will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,

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1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the
Commissioner meets this burden does the burden shift back to the claimant to show that he is not
capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245
F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for a period of disability and DIB on January 7, 2013. (Tr.
163-64). The claim was denied initially on May 3, 2013, and upon reconsideration on July 29,
2013. (Tr. 101-06, 107-13). Plaintiff requested a hearing and on November 14, 2014, a hearing
was held before Administrative Law Judge Michael Calabro (the “ALJ”). (Tr. 43-76).

On

February 25, 2015, the ALJ entered a decision finding that Plaintiff was not under a disability from
November 11, 2011, through the date of the decision. (Tr. 20-42). Plaintiff filed a request for
review on April 24, 2015, and the Appeals Council denied Plaintiff’s request on May 15, 2015.
(Tr. 1-4, 12-16). Plaintiff initiated this action by filing a Complaint (Doc. 1) on August 26, 2015.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since November 11, 2011, the alleged onset date. (Tr. 22). At step
two, the ALJ found that Plaintiff had the following severe impairments: partial right arm paralysis,
major depressive disorder and general anxiety disorder. (Tr. 23). At step three, the ALJ found
that Plaintiff did not have an impairment or combination of impairments that meets or medically
equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. 25).

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Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) from May 12, 2011, through August 28, 2012, to
perform less than the full range of light exertional work as defined in 20
CFR 404.1567(b). The claimant can frequently reach with the right
dominant arm. The claimant can occasionally handle or finger with the
right dominant hand. The claimant’s work is limited to simple and
repetitive one to two-step tasks. He can only occasionally tolerate changes
in the work task or work setting. The claimant cannot work around any
hazards such as unprotected heights or dangerous moving machinery.
(Tr. 28). At step four, the ALJ found that Plaintiff is unable to perform his past relevant work as
a maintenance worker. (Tr. 36).
At step five, the ALJ relied on the testimony of a vocational expert to find that considering
Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that he can perform. (Tr. 37). Specifically, the ALJ found that
Plaintiff can perform the jobs “merchant patroller” and “gate guard.” (Tr. 38). The ALJ concluded
that Plaintiff had not been under a disability from November 11, 2011, through the date of the
decision, February 25, 2015. (Tr. 38).
II.

Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ appropriately weighed the

medical opinions offered by a state agency physician and an examining psychologist; (2) whether
the ALJ posed a proper hypothetical question to the vocational expert; (3) whether the ALJ
appropriately relied on the vocational expert’s testimony; and (4) whether the ALJ adequately
weighed the claimant’s credibility. The Court will address each issue in turn.
a) Whether the ALJ appropriately weighed the medical opinions offered by a state
agency physician and an examining psychologist.
Plaintiff argues that the ALJ erred in his consideration of the opinion of reviewing state
agency physician Lionel Henry, M.D., by failing to provide adequate reasons for accepting
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portions of the opinion but rejecting others. (Doc. 19 p. 9-11). Specifically, Plaintiff contends
that the ALJ failed to provide adequate reasons for rejecting Dr. Henry’s opinion as it relates to
Plaintiff’s right arm and hand. (Doc. 19 p. 12-13). Plaintiff also contends that the ALJ erred in
his treatment of the opinions of examining psychologist Dano A. Leli, Ph.D. (Doc. 19 p. 13-14).
Plaintiff argues that the ALJ erred by failing to address all the limitations opined by Dr. Leli and
failing to provide adequate reasons for not assigning more weight to the opinions. (Doc. 19 p. 14).
In response, Defendant argues that the ALJ appropriately declined to accept the entirety of
the medical opinions from Dr. Henry and Dr. Leli. (Doc. 19 p. 14-15). Defendant contends that
Plaintiff fails to explain how Dr. Henry’s opinion regarding his right arm impermissibly conflicts
with the ALJ’s decision. (Doc. 19 p. 15). Further, Defendant argues that even if Dr. Henry’s
opinion conflicted with the ALJ’s RFC finding, substantial evidence would support the ALJ’s
determination that Plaintiff could perform the work described in the RFC. (Doc. 19 p. 16). In
addition, Defendant argues that substantial weight supports the ALJ’s decision to give some weight
to the medical opinions of Dr. Leli. (Doc. 19 p. 18).
The Court will address Plaintiff’s arguments as they pertain to Dr. Henry and Dr. Leli
separately.
1) The opinion of Dr. Henry
The record shows that Dr. Henry reviewed the available medical evidence in July 2013.
(Tr. 98). Dr. Henry opined that Plaintiff could perform the lifting, carrying, sitting, and standing
requirements of light work. (Tr. 96). Dr. Henry also opined that Plaintiff had manipulative
limitations, stating that Plaintiff was “limited” in reaching, handling, and fingering with his right
arm and hand. (Tr. 97).
In his decision, the ALJ addressed Dr. Henry’s opinion as follows:

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The undersigned also gives substantial weight to State agency consultant
Lionel Henry, M.D., who opined the claimant would be able to perform at
the light exertional level (Exhibit 3A). Dr. Henry cited Dr. LanzaFuentes’ examination that demonstrated a normal gait and that the
claimant was able to walk on heels and toes (See Exhibit 2F). Dr. Henry
further noted that there was reduced muscle strength in the right hand and
paralysis in the right upper extremity.
However, the undersigned does not concur with Dr. Henry’s conclusion
that the claimant has limited fingering and handling in the right hand and
accords this specific opinion little weight. The evidence demonstrates that
an occasional basis is most appropriate. Dr. Lanzas-Fuentes noted that
although the right hand was very weak, the claimant was able to make a
fist and grip strength was thirteen pounds per square inch. Dr. Leli
observed the claimant demonstrated only mild to moderate hemiparesis in
his affected hand (Exhibit 8F). Furthermore, Dr. Shekhadia observed right
sided weakness on finger to nose coordination but dysmetria was not noted
and a mild right sided hemiperetic gait was noted (Exhibit 9F).
(Tr. 34).
Weighing the opinions and findings of treating, examining, and non-examining physicians
is an integral part of the ALJ’s RFC determination at step four. See Rosario v. Comm’r of Soc.
Sec., 877 F.Supp.2d 1254, 1265 (M.D. Fla. 2012). 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. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011). Without 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.” Id. (citing Cowart v.
Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
In this case, the Court finds that the ALJ committed no error in his treatment of Dr. Henry’s
opinion. As a non-examining physician, Dr. Henry’s opinions was not entitled to any deference.
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See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987). Nevertheless, the ALJ considered the
opinion, stated the weight he accorded it, and explained his reasoning for giving parts of it greater
weight than others.

In this way, the ALJ fulfilled Winschel’s requirements to state with

particularity the weight given to an opinion and the reasons therefor.
The Court rejects Plaintiff’s argument that the ALJ failed to adequately explain his
reasoning for according little weight to Dr. Henry’s opinion concerning Plaintiff’s right arm and
hand. First, as Defendant notes, Dr. Henry’s opinion that Plaintiff was “limited” in reaching,
handling, and fingering with his right arm and hand is not contradicted by the ALJ’s RFC finding
that Plaintiff is limited to “frequent” reaching with his right arm and “occasional” handling and
fingering with his right hand. (Doc. 19 p. 15-16). Thus, while the ALJ accorded little weight to
Dr. Henry’s opinion concerning Plaintiff’s right arm and hand limitations, these limitations are
still accounted for in the RFC finding.
Second, Plaintiff has failed to show that the ALJ’s reasons for according little weight to
Dr. Henry’s opinion concerning Plaintiff’s right hand and arm was not supported by substantial
evidence. While the Court agrees with Plaintiff contention that having a hemiparetic gait has
nothing to do with Plaintiff’s ability to use his right arm and hand, the ALJ did not rely on this fact
alone. The ALJ also noted that Dr. Lanzas-Fuentes noted that Plaintiff’s right hand grip strength
was thirteen pounds per square inch and that Dr. Leli noted that Plaintiff demonstrated only mild
to moderate hemiparesis in his right hand. (Tr. 34). This evidence constitutes substantial evidence
supporting the ALJ’s decision.
2) The opinion of Dr. Leli
The record shows that Plaintiff underwent a neuropsychological assessment performed by
Dr. Dano Leli, with testing by Dr. Leli’s trainees (Tr. 371), on July 31, 2013; August 8, 2013;

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August 9, 2013; and August 27, 2013. (Tr. 371). Dr. Leli observed Plaintiff had only “mild to
moderate” hemiparesis in his right hand (Tr. 378). Dr. Leli noted that Plaintiff underwent a closed
head injury at the age of 19 during a car accident requiring a burr hole to be drilled in the right
frontal part of his skull. (Tr. 372). Plaintiff indicated that he had difficulty maintaining attention
and concentration; was easily distracted; has difficulties following instructions and directions; has
difficulty learning new information; difficulties remembering with short-term functioning; and
difficulties with fine motor skills involving his right hand. (Tr. 373-374). He further indicated that
he was experiencing difficulties with depression and anxiety. (Tr. 374-375). During the mental
status examination, Dr. Leli indicated that Plaintiff’s “cognitive and emotional insights were
judged to be poor.” (Tr. 378). It was also noted that his “interpersonal reasoning, judgment, and
planning were judged to be marginal to adequate.” (Tr. 378).
After the objective testing was administered and reviewed, Dr. Leli indicated that
Plaintiff’s cognitive and visual-motor difficulties were likely the result of neuropathological brain
changes resulting from his closed head injury; Plaintiff was experiencing chronic generalized
anxiety disorder associated with a chronic checking compulsion; Plaintiff was experiencing
moderate recurrent major depressive disorder with fleeting thought of suicide without plans or
intent; Plaintiff has a tendency to unconsciously channel emotional conflicts, issues, problems, and
concerns into the form of somatic symptoms, and/or inter the exacerbation of existing organic
based pathology; and Plaintiff has longstanding difficulties with dependent, passive-aggressive,
passive-avoidant and avoidant traits. (Tr. 383-384). Dr. Lance diagnosed Plaintiff with Dementia
due to a severe complicated traumatic concussive closed head injury; Generalized Anxiety
Disorder; Major Depressive Disorder; Specific Phobia Situational Types (interviews and driving

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to unfamiliar places), Somatization coping and anxiety resulting in episodic vomiting; and
Dependent, passive-aggressive, passive-avoidant, and avoidant traits. (Tr. 383-384).
Dr. Leli opined that Plaintiff could adequately perform his personal and instrumental
activities of daily living; he needs directions and supervision to perform tasks; he has the capability
of performing tasks he has learned; he has difficulties with generalizing what he learns in one
situation to another situation; he is likely to have difficulties in any type of job that requires
independent thought and decision-making; he is likely to be able to function on a job that has tasks
that have to be repeated on a consistent basis without deviation; he has the ability to drive in
familiar settings; and he does not have the capability to independently manage financial matters.
(Tr. 385-386). Dr. Leli then indicated that Plaintiff should undergo cognitive retraining,
psychopharmacological intervention, and opined that “it is not likely he can be successfully
gainfully employed in either private or public sectors for the minimum of the next 18 to 24 months
due to his neuropsychological and psychological difficulties.” (Tr. 386). Dr. Leli apparently did
not see Plaintiff after providing feedback from the examination. (Tr. 387, 393).
In his decision, the ALJ addressed Dr. Leli’s opinions as follows:
As for Dr. Leli’s opinions, the undersigned accords only some weight
(Exhibit 8F). The opinions are mostly consistent with the examinations
administered, such as he is likely to be able to function on a job that has
tasks that have to be repeated on a consistent basis. However, these
opinions are the result of very limited encounters for examination
purposes only. Additionally, it is not clear where the opinion that the
claimant has acute anxiety when driving in unfamiliar situations that could
interfere with adequate functioning, is derived from. Dr. Leli’s opinion
that the claimant is unable to independently manage his financial matters
conflicts with consultative examiner Dr. Ramirez who noted the claimant
answered all change-making problems correctly (See Exhibit 3F). For
these inconsistencies and the limited contact, the undersigned can only
give some weight.
(Tr. 35).

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Here, Plaintiff has failed to show that the ALJ committed reversible error in his treatment
of Dr. Leli’s opinions. The ALJ stated the weight he accorded Dr. Leli’s opinions and articulated
his reasons therefor. Despite Plaintiff’s argument that the ALJ ignored Dr. Leli’s limitation
findings in his analysis, the ALJ addressed Dr. Leli’s limitations at length earlier in his decision.
(Tr. 31-33). Thus, while the ALJ may not have discussed each of Dr. Leli’s limitation findings in
the paragraph in which he sets forth the weight he was according the opinions, it is clear that the
ALJ considered these limitations in weighing Dr. Leli’s opinions.
The Eleventh Circuit has directed that a reviewing court “may not decide facts anew,
reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005). The Court will not do so here and affirms the ALJ’s decision
to accord some weight to Dr. Leli’s opinions.
b) Whether the ALJ posed a proper hypothetical question to the vocational expert.
Plaintiff argues that the ALJ erred by failing to pose a hypothetical question that adequately
reflected Plaintiff’s limitations. (Doc. 19 p. 20). Plaintiff notes that while in the ALJ’s decision
the ALJ found that Plaintiff had the RFC to perform “less than the full range of light exertional
work as defined in 20 CFR 404.1567(b),” in the hypothetical question to the vocational expert, the
ALJ asked the vocational expert to assume an individual “working at the light exertional level.”
(Doc. 19 p. 20-21 citing Tr. 28, 71). Plaintiff contends that it is not clear what the ALJ means by
“less than the full range of light work” and remand is necessary because the hypothetical question
did not match the ALJ’s own RFC finding. (Doc. 19 p. 22).
Defendant contends that the ALJ’s inclusion of “less than” before “the full range” in the
ALJ’s RFC finding appears to be a typographical error. (Doc. 19 p. 22). Defendant argues that
the remainder of the ALJ’s decision and the ALJ’s discussion with the vocational expert shows

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that the ALJ actually limited Plaintiff to a full range of light work with additional, nonexertional
limitations. (Doc. 19 p. 22-23).
In order for the testimony of a vocational expert to “constitute substantial evidence, the
ALJ must pose a hypothetical question which comprises all of the claimant’s impairments.” Jones
v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). Here, there is no question that the ALJ’s RFC
finding contains greater limitations than those contained in the hypothetical question posed to
vocational expert. Thus, remand is appropriate because the vocational expert’s testimony does not
constitute substantial evidence.
The Court does not find, as Defendant sets forth, that the ALJ’s inclusion of “less than”
before “the full range of light work” was an obvious typographical error and, thus, remand is
inappropriate. Typographical errors, unless they substantially change the outcome of a decision,
are considered nothing more than a clerical error and will not warrant remand. Wright v. Barnhart,
153 F.App’x 678, 684 (11th Cir. 2005). The alleged error in this case would substantially change
the outcome of the case because it would undermine the ALJ’s reliance on the vocational expert’s
testimony at step five of the sequential evaluation.
Finally, to the extent that Plaintiff argues that the hypothetical question to the vocational
expert was insufficient because it did not include the limitation findings of Dr. Henry and Dr. Leli,
the Court rejects this argument. As explained above, substantial evidence supported the ALJ’s
treatment of these opinions and his decision not to adopt the full extent of their limitation opinions.
Because remand is necessary due to the ALJ’s RFC finding containing greater limitations
than contained in the hypothetical question posed to the vocational expert, the Court will refrain
from addressing the other issues raised by Plaintiff at this time.
III.

Conclusion

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The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the
Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on February 21, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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