Hourihan v. Commissioner of Social Security

Filing 22

ORDER adopting 19 Report and Recommendations. The decision of the Commissioner is AFFIRMED. Signed by Judge Roy B. Dalton, Jr. on 3/13/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KEVIN HOURIHAN,
Plaintiff,
v.

Case No. 6:15-cv-1417-Orl37GJK

COMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________________
ORDER
In this social security appeal, U.S. Magistrate Judge Gregory J. Kelly recommends
that the Court affirm the Commissioner’s decision to deny Plaintiff disability benefits.
(Doc. 19.) Plaintiff filed objections to the Report and Recommendation (Doc. 20), and
Defendant responded (Doc. 21). For the reasons set forth below, the decision of the
Commissioner is due to be affirmed and the Report and Recommendation is due to be
adopted.
I.

PROCEDURAL HISTORY

The instant action implicates an eleven-year procedural history. (See Doc. 18,
pp. 1–2.) To be sure, Plaintiff first filed his application for social security disability
benefits on March 15, 2006. (Id. at 1.) Since that time, Plaintiff has appealed the
Commissioner’s denial of benefits three times. (Id. at 1–2.)

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The Commissioner initially denied Plaintiff’s first claim on August 23, 2006, and
then upon reconsideration. (Id. at 1.) After Plaintiff requested and received a hearing, an
administrative law judge (“ALJ”) found him not disabled and issued an unfavorable
decision on his claim. (Id.) On appeal, the Appeals Council of the Social Security
Administration (“Appeals Council”) assumed jurisdiction and remanded the case back
to the ALJ for further proceedings. (Id.)
The same ALJ conducted a second administrative hearing on February 15, 2011,
and again found that Plaintiff was not disabled (“Second Decision”). (Id.) After the
Appeals Council denied Plaintiff’s request for review, Plaintiff appealed the Second
Decision to the U.S. District Court for the Middle District of Florida. (Id. at 2.) On appeal,
U.S. District Judge Charlene E. Honeywell reversed the Commissioner’s decision and
remanded the case for a third administrative hearing. Hourihan v. Comm’r of Soc. Sec.,
No. 6:11-cv-1899-Orl-36GJK (“Hourihan I”), Doc. 25 (“Remand Order”). In doing so,
Judge Honeywell directed the ALJ to pose a hypothetical question to the vocational
expert (“VE”) on remand that specifically accounted for Plaintiff’s moderate limitations
in concentration, persistence, or pace (“Directive”). (Id. at 10.)
Pursuant to the Remand Order, a new administrative hearing was held on April 1,
2015—this time before a different ALJ. (Doc. 18, p. 2.) On June 26, 2015, the ALJ issued an
unfavorable decision on Plaintiff’s claim for disability benefits (“Third Decision”). (Id.)
Plaintiff appealed the decision to this Court and, on November 30, 2016, U.S. Magistrate
Judge Gregory J. Kelly issued a Report recommending that the Court affirm the decision
of the Commissioner. (Doc. 19 (“Instant R&R”).) Plaintiff objected (Doc. 20
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(“Objection”), and Defendant responded (Doc. 21 (“Response”)). The matter is now ripe
for the Court’s consideration.
II.
A.

STANDARD OF REVIEW

Report and Recommendations

When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
independent of the magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 513 (11th Cir. 1990).
B.

Social Security Appeals

In social security appeals, a reviewing court “must determine whether the
Commissioner’s decision is supported by substantial evidence and based on proper legal
standards.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
“Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. In conducting
such review, a court may not decide the facts anew, reweigh the evidence, or substitute
its judgment for that of the Commissioner. Id. “Even if the evidence preponderates
against the Commissioner’s findings, [the reviewing court] must affirm if the decision is
supported by substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159
(11th Cir. 2004) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
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III.

DISCUSSION

In this appeal, Plaintiff alleges that the Commissioner failed to comply with the
Remand Order in arriving at the Third Decision. (See Doc. 18, pp. 11–17, 21–27.)
Specifically, Plaintiff contends that the Commissioner: (1) failed to apply the correct legal
standards to the medical opinions of Plaintiff’s treating and non-treating physicians; and
(2) improperly discredited the VE’s testimony that two or more moderate limitations
would preclude Plaintiff from gainful employment. (Id.) Magistrate Judge Kelly disagrees
with each of these purported errors and recommends that the Court affirm the
Commissioner’s decision. (Doc. 19.) Because Plaintiff’s Objection is premised on the ALJ’s
alleged failure to comply with the Directive in the Remand Order (Doc. 20), the Court
must review the relevant legal standards in tandem with the findings and conclusions
reached in Hourihan I.
A.

Hourihan I

On Plaintiff’s first appeal to this district court, Magistrate Judge Kelly and District
Judge Honeywell each concluded that the hypothetical question posed to the VE during
the second administrative hearing did not sufficiently account for Plaintiff’s limitations
in concentration, persistence, or pace. (Hourihan I, Docs. 21, 22.) Initially, in a Report and
Recommendation issued December 13, 2012, Magistrate Judge Kelly found two
cumulative errors in the Commissioner’s Second Decision—(1) first, that the ALJ erred
by relying on the opinions of non-treating physician Olin Hamrick, Psy.D
(“Dr. Hamrick”) to attribute less weight to the conflicting opinions of treating physician
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Stephen Oh, M.D. (“Dr. Oh”) (“Medical Opinion Error”); and (2) second, that the ALJ’s
improper reliance on Dr. Hamrick’s opinion fatally pervaded the hypothetical question
posed to the VE (“Insufficient Hypothetical”). (Id., Doc. 21 (“Initial R&R”).)
1.

Medical Opinion Error

“It is well established that the testimony of a treating physician must be given
substantial or considerable weight unless good cause is shown to the contrary.” Crawford,
363 F.3d at 1159. “[G]ood cause exists when the: (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Philips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2014). But “[t]he good cause
required before the treating physicians’ opinions may be accorded little weight is not
provided by the report of a [non-treating] physician where it contradicts the report of the
treating physician.” Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). Indeed, “[t]he
opinions of [non-treating], reviewing physicians, when contrary to those of examining
physicians[,] are entitled to little weight in a disability case, and standing alone do not
constitute substantial evidence.” Id. (quoting Sharfarz v. Bowen, 825 F.3d 278, 280
(11th Cir. 1987)). Rather, “[w]hen electing to disregard the opinion of a treating physician,
the ALJ must clearly articulate its reasons,” which must be founded on good cause.
Philips, 357 F.3d at 1241.
Based on the foregoing principles, Magistrate Judge Kelly concluded that the ALJ
failed to articulate good cause for discounting Dr. Oh’s opinions. (Hourihan I, Docs. 21,
pp. 20–21.)
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2.

Insufficient Hypothetical
i.

Relevant Legal Standards

At the administrative level, an ALJ applies a five-step, sequential evaluation
process to determine whether a claimant is disabled. Winschel, 631 F.3d at 1178.
Specifically, the ALJ must evaluate:
(1) whether the claimant is currently engaged in substantial
gainful activity; (2) whether the claimant has a severe
impairment or combination of impairments; (3) whether the
impairment meets or equals the severity of the specified
impairments in the Listing of Impairments; (4) based on a
residual functional capacity (“RFC”) assessment, whether the
claimant can perform any of his or her past relevant work
despite the impairment; and (5) whether there are significant
numbers of jobs in the national economy that the claimant can
perform given the claimant’s RFC, age, education, and work
experience.
Id. At step five, if the ALJ finds that “the claimant can make the adjustment to other work,
the ALJ will determine that the claimant is not disabled. If the claimant cannot make the
adjustment to other work, the ALJ will determine that the claimant is disabled.” Phillips,
357 F.3d at 1239.
“An ALJ may make this determination either by applying the Medical Vocational
Guidelines or by obtaining the testimony of a [VE].” Winschel, 631 F.3d at 1180. “A [VE]
is an expert on the kinds of jobs an individual can perform based on his or her capacity
and impairments.” Phillips, 357 F.3d at 1240. “When the ALJ uses a [VE], the ALJ will pose
hypothetical question(s) to the [VE] to establish whether someone with the [claimant’s
limitations] will be able to secure employment in the national economy.” Id. A VE’s
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testimony constitutes substantial evidence only if the ALJ poses a hypothetical question
which comprises all of the claimant’s impairments. Winschel, 631 F.3d at 1180.
Generally, when an ALJ restricts the hypothetical question to simple, routine tasks
or unskilled work, he does not account for a claimant’s limitations in concentration,
persistence, and pace. Id. “But when medical evidence demonstrates that a claimant can
engage in simple, routine tasks or unskilled work despite limitations in concentration,
persistence, and pace, courts have concluded that limiting the hypothetical to include
only unskilled work sufficiently accounts for such limitations.” Id.
ii.

Findings and Conclusions in Initial R&R

With this framework in mind, the Hourihan I court was tasked with determining
whether the hypothetical question posed to the VE during the second administrative
hearing properly accounted for Plaintiff’s moderate limitations in concentration,
persistence, and pace. (See Hourihan I, Doc. 18, pp. 11–13.) In the Initial R&R, Magistrate
Judge Kelly found that the ALJ gave great weight to Dr. Hamrick’s opinion that Plaintiff
was “not significantly limited in the ability to understand, remember or carry out very
short and simple instructions and [could] perform simple, one or two-step, routine,
repetitive kinds of tasks that [could] be done without a lot of close supervision”
(“Limitation Opinion”). (Id., Doc. 21, p. 22.) Based on this opinion, the ALJ asked the
VE—in relevant part—whether there were significant jobs in the national economy for
someone limited to simple tasks (“Original Hypothetical”). (Id., Doc. 13-2, pp. 76–77.)
While the Initial R&R noted that the Original Hypothetical would have been sufficient
had the medical evidence demonstrated that Plaintiff could engage in simple, routine
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tasks or unskilled work despite limitations in concentration, persistence, and pace,
Magistrate Judge Kelly found that the Original Hypothetical was not supported by
substantial evidence in light of the Medical Opinion Error. (Id., Doc. 21, pp. 21–22.) Hence
Magistrate Judge Kelly recommended that the ALJ be required to pose a hypothetical
question to the VE on remand that specifically accounted for these limitations. (Id.
at 21, 24.)
3.
On

March

Remand Order
20,

2013,

Judge

Honeywell

issued

the

Remand

Order,

which: (1) adopted the Initial R&R in all respects; and (2) reversed and remanded the
Commissioner’s Second Decision. Id., Doc. 25. The Remand Order also included
following Directive:
While the Eleventh Circuit does not require the hypothetical
to the VE to explicitly state the Plaintiff’s limitations in
concentration, persistence[,] or pace when these limitations
are implicitly accounted for in the medical record, here the
ALJ did not articulate good cause for giving Dr. Oh’s opinion
little weight and thus the hypothetical was insufficient. On
remand, the ALJ is required to pose a hypothetical question
to the VE that specifically accounts for Plaintiff’s moderate
limitations in concentration, persistence[,] or pace (“Required
Hypothetical”).
(Id. at 9–10.)
B.

Instant Appeal

As aforementioned, Plaintiff appealed the Third Decision on the ground that the
ALJ had failed to comply with the Remand Order. (Doc. 18, pp. 11–17, 21–27.) With
respect to Plaintiff’s argument that the ALJ erred in her assignment of weight to the
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various medical opinions, Magistrate Judge Kelly found that there was substantial
evidence to support the ALJ’s purported reason for assigning no weight to Dr. Oh’s
opinion that Plaintiff had “moderate limitations in understanding, remembering, and
carrying out very short and simple instructions,” because Dr. Oh’s treatment records
contradicted this opinion. (Doc. 19, p. 16.) Additionally, based on his findings that the
ALJ articulated good cause to discount Dr. Oh’s opinion and the non-treating doctors’
opinions were supported by the evidence, Magistrate Judge Kelly found that the ALJ did
not err in affording significant weight to the non-treating physicians’ opinions. (Id. at 17–
18.) Such opinions included Dr. Hamrick’s testimony that Plaintiff’s ability to carry out
short and simple tasks was not significantly limited (“Simple Task Testimony”), despite
his testimony that Plaintiff possessed moderate limitations in the area of sustained
concentration and persistence—inclusive of pace. (See id. at 18; see also Doc. 14-12, pp. 32–
34, 36.)
With respect to the Directive in the Remand Order, however, a second wrinkle
emerged. Indeed, on remand, while the ALJ posed the Required Hypothetical to the VE,
she also posed one similar to the Original Hypothetical, which she relied on in rendering
the Third Decision and concluding that Plaintiff was not disabled. (See Doc. 14-11, pp. 63–
64, 72–73, 23–24.)
1.

First Hypothetical on Remand

Plaintiff’s main assignment of error is related to the first question posed to the VE
on remand, in which the ALJ asked her to identify jobs that could be performed in the
national economy by an individual with Plaintiff’s characteristics, “restricted to light
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work,” and possessing “a non-exertional limitation of moderate limitations in
concentration, persistence, and pace” (“First Remand Hypothetical”). (Doc. 14-11,
pp. 63–64.) From there, the conversation between the ALJ and VE devolved into a
protracted discussion about the number of limitations at issue and the definition of the
term “moderate.” (Id. at 64–68, 71–72.) In the end, the VE testified that: (1) a moderate
limitation is one that significantly impacts functional capacity, but does not necessarily
preclude employment; and (2) an individual can perform a job only if they have one or
less moderate limitations, as two or more moderate limitations would erode the
occupational base and preclude competitive employment. 1 (Id. at 66, 64.)
Plaintiff contends that the ALJ should have found Plaintiff disabled based on this
exchange. (Doc. 18, p. 16–18.) In particular, Plaintiff argues that the ALJ’s Third Decision
was not supported by substantial evidence because the ALJ failed to explain why she did
not credit the VE’s testimony that two or more moderate limitations would preclude
employment. (Id. at 18.) Plaintiff’s contention, therefore, appears to be that, because he
has more than one limitation in concentration, persistence, or pace, he cannot work
(“Multiple Limitations Argument”).
2.

Second Hypothetical on Remand

In her second hypothetical to the VE, the ALJ asked whether an individual with
Plaintiff’s characteristics, “restricted to light work” and “no more than simple, routine,

Although the Instant R&R states that the VE eventually agreed that a moderate
limitation in concentration, persistence, and pace is one limitation (Doc. 19, pp. 9, 20), the
Undersigned did not come to the same conclusion on its own reading of the VE’s
testimony.
1

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repetitive tasks with no more than occasional interaction with supervisors, coworkers,
and the general public,” could perform any fulltime jobs in the national economy
(“Second Remand Hypothetical”). (Doc. 14-11, p. 73.) The VE answered the question
affirmatively, identifying three jobs, and the ALJ found that Plaintiff was not disabled.
(Id. at 73, 23.) Based on the principles set forth in Winschel, the Instant R&R concluded
that, having found good cause to disregard Dr. Oh’s opinion on remand, the ALJ properly
gave substantial weight to Dr. Hamrick’s opinion—including his Simple Task
Testimony—and, therefore, the Second Remand Hypothetical sufficiently accounted for
Plaintiff’s limitations. (Doc. 19, p. 21.) Notwithstanding Plaintiff’s Multiple Argument
Opinion—which he reasserted almost verbatim in his Objection (see Doc. 20)—the Court
agrees with the conclusions contained in the Instant R&R.
3.

Analysis

It is true that Dr. Hamrick testified that Plaintiff is moderately limited as to
multiple abilities in the area of sustained concentration and persistence. (Doc. 14-12,
pp. 33–34.) Such abilities include the: (1) the ability to carry out detailed instructions;
(2) the ability to maintain attention and concentration for extended periods; (3) the ability
to perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; (4) the ability to sustain an ordinary routine without special
supervision; (5) the ability to work in coordination with or proximity to others without
being distracted by them; and (6) the ability to complete a normal workday and
workweek without interruptions and psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest periods. (Id.)
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Though such testimony supports the argument that Plaintiff has more than one moderate
limitation in the area of concentration, persistence, and pace, Plaintiff fails to cite any
authority to support his argument that the number of such limitations is of any moment.
At this juncture, the Court’s only task is to “determine whether the
Commissioner’s decision is supported by substantial evidence and based on proper legal
standards.” Winschel, 631 F.3d at 1178. A VE’s testimony constitutes substantial evidence
if the ALJ poses a hypothetical question that comprises all of the claimant’s impairments.
Id. at 1180. Moreover, binding Eleventh Circuit case law provides that “when medical
evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled
work despite limitations in concentration, persistence, and pace,” “limiting the
hypothetical to include only unskilled work sufficiently accounts for such limitations.”
Id. at 1180.
Here, despite finding that Plaintiff is moderately limited with respect to several
abilities in the area of sustained concentration and persistence, Dr. Hamrick’s testified
that: (1) Plaintiff is not significantly limited in the ability to carry out very short and
simple instructions; (2) Plaintiff is not significantly limited in the ability to make simple
work-related decisions; and (3) Plaintiff can perform solitary work involving “simple one
and two step routine repetitive kinds of tasks that can be done without a lot of pre-close
oversight.” (Doc. 14-12, pp. 32–34, 36.) In light of this medical evidence, it was
appropriate for the ALJ to pose a hypothetical to the VE, which limited Plaintiff to simple,
routine, and repetitive tasks. Indeed, Winschel provides that such a hypothetical
“sufficiently accounts for limitations in concentration, persistence[,] and pace.” 631 F.3d
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at 1180 (emphasis added). 2 Thus, pursuant to Winschel, the Second Remand Hypothetical
complied with the Directive in the Remand Order, and the Third Decision was based on
proper legal standards and supported by substantial evidence. On these grounds, the
Court rejects Plaintiff’s Objection.
IV.

CONCLUSION

Having conducted an independent, de novo review of the portions of the record
to which Plaintiff objected, the Court agrees with the findings and conclusions set forth
in the Instant R&R.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Plaintiff’s Objection to Report and Recommendation dated November 30,
2016 (Doc. 20) is OVERRULED.

2.

U.S. Magistrate Judge Gregory J. Kelly’s Report and Recommendation
(Doc. 19) is ADOPTED, CONFIRMED, and made a part of this Order.

3.

The decision of the Commissioner is AFFIRMED.

4.

The Clerk is DIRECTED to—
a.

Enter judgment in favor of Defendant Commissioner of Social Security
and against Plaintiff Kevin Hourihan; and

b. Close the file.
DONE AND ORDERED in Chambers in Orlando, Florida, on March 13, 2017.

2

Notably, the Eleventh Circuit’s language references limitations in the plural.
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Copies to:
Counsel of Record

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