Borrero v. Commissioner of Social Security

Filing 21

MEMORANDUM OF DECISION, Ordered that the final decision of the Commissioner is Reversed and Remanded. The Clerk is directed to enter judgment for Claimant and close the case. Signed by Magistrate Judge Daniel C. Irick on 2/28/2017. (RN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NICHOLAS LINO BORRERO,
Plaintiff,
v.

Case No: 6:15-cv-1558-Orl-DCI

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Nicholas Lino Borrero (the Claimant) appeals from a final decision of the Commissioner
of Social Security (the Commissioner) denying his application for a period of disability, and
disability insurance benefits. Doc. 1; R 142-43. Claimant argues that the Administrative Law
Judge (the ALJ) erred by: 1) failing to properly weigh Dr. Maria Garcia’s opinion; 2) finding his
testimony concerning his pain and limitations not credible; 3) failing to account for all his
limitations in his hypothetical to the Vocational Expert (the VE); and 4) failing to ask the VE
whether his testimony was consistent with Dictionary of Occupational Titles. Doc. 17 at 12-19.
Claimant argues that the matter should be reversed and remanded for further proceedings. Id. at
19-20. For the reasons set forth below, the Commissioner’s final decision is REVERSED and
REMANDED for further proceedings.
I.

THE ALJ’S DECISION.
On August 9, 2012, Claimant filed an application for a period of disability and disability

insurance benefits (DIB). R. 142-43. Claimant alleged a disability onset date of February 4, 2011.
R. 142. The ALJ issued her decision on March 17, 2014. R. 16-26. The ALJ found that Claimant

suffered from the following severe impairments: anxiety with panic attacks, and hypertension. R.
18. The ALJ found that Claimant had a RFC to perform less than a full range of medium work1
as defined by 20 C.F.R. § 404. 1567(c), with following additional limitations:
[T]asks are reduced to simple 1-5 steps that can be performed
independently after 30 days training. The claimant should generally
work independently at his own workstation or work area, with no
more than occasional interaction with coworkers or supervisors and
nothing with the general public beyond superficial. He should avoid
work at heights, work with dangerous moving machinery, and work
with dangerous tools. He should avoid concentrated exposure to
temperature extremes.
R. 21. In light of this RFC, the ALJ found Claimant was not capable of performing his past relevant
work. R. 24-25. The ALJ, however, found that Claimant is capable of performing various jobs in
the national economy, including mail clerk, surveillance system monitor, and nut and bolt
assembler. R. 25-26. In light of the foregoing, the ALJ found that Claimant has not been disabled
from his alleged onset date, February 4, 2011, through the date of her decision, March 17, 2014.
R. 26.
II.

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

1

Medium work is defined as “lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that
he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c).

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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].’” 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)).
III.

ANALYSIS.
Claimant maintains that the ALJ failed to properly weigh Dr. Garcia’s opinion, primarily

because the ALJ erroneously stated that the record contained no treatment notes from Dr. Garcia.
Doc. 17 at 12-13. Therefore, Claimant argues that the ALJ’s decision is not supported by
substantial evidence. Id. at 13. The Commissioner concedes that the ALJ erroneously stated that
the record contained no treatment records from Dr. Garcia, but nevertheless maintains that
substantial evidence, including Dr. Garcia’s treatment notes, support the ALJ’s decision to assign
Dr. Garcia’s opinion some weight. Doc. 19 at 6-10.
At step four, the ALJ assesses the claimant’s RFC and ability to perform past relevant
work. Phillips, 357 F.3d at 1238. The RFC “is an assessment, based upon all of the relevant
evidence, of a claimant’s remaining ability to do work despite his impairments.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The ALJ is responsible for determining the
claimant’s RFC. 20 C.F.R. § 404.1546(c). In doing so, the ALJ must consider all relevant
evidence, including, but not limited to, the medical opinions of treating, examining and non-

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examining medical sources. See 20 C.F.R. § 404.1545(a)(3); see also Rosario v. Comm’r of Soc.
Sec., 490 F. App’x 192, 194 (11th Cir. 2012).2
The ALJ must consider a number of factors in determining how much weight to give each
medical opinion, including: 1) whether the physician has examined the claimant; 2) the length,
nature, and extent of the physician’s relationship with the claimant; 3) the medical evidence and
explanation supporting the physician’s opinion; 4) how consistent the physician’s opinion is with
the record as a whole; and 5) the physician’s specialization. 20 C.F.R. § 404.1527(c).
A treating physician’s opinion must be given substantial or considerable weight, unless
good cause is shown to the contrary. See 20 C.F.R. § 404.1527(c)(2) (giving controlling weight
to the treating physician’s opinion unless it is inconsistent with other substantial evidence); see
also Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). There is good cause
to assign a treating physician’s opinion less than substantial or considerable weight, where: 1) the
treating physician’s opinion is not bolstered by the evidence; 2) the evidence supports a contrary
finding; or 3) the treating physician’s opinion is conclusory or inconsistent with the physician’s
own medical records. Winschel, 631 F.3d at 1179.
The record reveals that Claimant treated with Dr. Garcia, his primary care physician, as
early as January 2013, and continued to treat with her through at least October 2013. R. 308-14,
340-41, 347-48.
On March 28, 2013, Dr. Garcia completed a Residual Functional Capacity Form (the
Opinion).

R. 308-13.

Dr. Garcia diagnosed Claimant with chest pain, lower leg pain,

hypertension, palpitations, hyperthyroidism, leukocytosis, visual discomfort, major depression,

2

In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See
11th Cir. R. 36-2.

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anxiety, and insomnia. R. 308. Dr. Garcia opined that Claimant can walk 20 feet at a time before
needing to rest. R. 310. Dr. Garcia opined that Claimant can only stand for 15-30 minutes due to
his medication side effects. R. 309. Dr. Garcia opined that Claimant cannot sit for more than six
hours in an eight-hour workday due to his medication side effects. R. 310. Dr. Garcia opined that
Claimant must lie down during the day due to his anxiety and medication side effects. Id. Dr.
Garcia opined that Claimant can lift/carry 21-50 pounds. Id. Dr. Garcia opined that Claimant can
frequently reach in all directions and handle objects. Id. Dr. Garcia opined that Claimant could
not perform his prior work due to his unpredictable panic attacks, depression, and general mental
state. R. 312. Dr. Garcia opined that Claimant’s impairments and functional capacity is unlikely
to change over time. Id.
The ALJ considered Dr. Garcia’s Opinion, R. 24, stating the following:
On March 28, 2013, Maria T. Garcia M.D., family practitioner, completed a
Physical Residual Functional Capacity Assessment. (There are no notes from this
doctor and the evidence in the record does not support her restrictions). Dr. Garcia
opines that the claimant can lift and carry from 21 to 50 pounds with occasional
manipulative restrictions and extreme postural restrictions; side effects from
medications; depression and anxiety (Exhibit 6F) . . . The [ALJ] grants only some
weight to this medical opinion as it is inconsistent with the objective medical
evidence, treatment history and the claimant’s activity level.
R. 24. Thus, the ALJ assigned Dr. Garcia’s Opinion “some weight” because it was inconsistent
with the medical evidence, Claimant’s treatment history, and Claimant’s activity level. Id.
Claimant essentially argues that the ALJ’s reasons for assigning Dr. Garcia’s Opinion
“some weight” are not supported by substantial evidence because they are conclusory and fail to
account for Dr. Garcia’s treatment notes. Doc. 17 at 12-13. The Court agrees. The Commissioner
attempts to provide the explanation lacking from the ALJ’s decision by highlighting specific
evidence that she (not the ALJ) maintains is inconsistent with Dr. Garcia’s Opinion. Doc. 19 at 710. The Court, however, will not affirm the Commissioner’s decision based on such post hoc

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rationalization. See, e.g., Dempsey v. Comm’r of Soc. Sec., 454 F. App’x 729, 733 (11th Cir. 2011)
(A court will not affirm based on a post hoc rationale that “might have supported the ALJ’s
conclusion.”) (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)).
The ALJ’s reasons for assigning Dr. Garcia’s Opinion “some weight” are conclusory. The
ALJ generally states that the medical record, Claimant’s treatment history, and his activity level
are inconsistent with Dr. Garcia’s Opinion. R. 24. The ALJ, however, does not cite to or discuss
a single piece of evidence to support these otherwise conclusory reasons for partially rejecting Dr.
Garcia’s Opinion. See id. These conclusory reasons are insufficient to demonstrate that the ALJ’s
decision to assign Dr. Garcia’s Opinion is supported by substantial evidence. See Anderson v.
Astrue, Case No. 3:12-cv-308-J-JRK, 2013 WL 593754, at *5 (M.D. Fla. Feb. 15, 2013) (the ALJ
must do more than recite a good cause reason to reject treating physician opinion and must
articulate evidence supporting that reason); Paltan v. Comm’r of Soc. Sec., Case No. 6:07-cv-932Orl-19DAB, 2008 WL 1848342, at *5 (M.D. Fla. Apr. 22, 2008); (“The ALJ’s failure to explain
how [the treating physician’s] opinion was ‘inconsistent with the medical evidence’ renders review
impossible and remand is required.”); Poplardo v. Astrue, Case No. 3:06-cv-1101-J-MCR, 2008
WL 68593, at *11 (M.D. Fla. Jan. 4, 2008) (failure to specifically articulate evidence contrary to
treating doctor’s opinion requires remand). The Court will not attempt to determine what specific
evidence the ALJ relied on when she weighed Dr. Garcia’s Opinion, as such an exercise would
impermissibly require the Court to reweigh the evidence. See, e.g., Anderson, 2013 WL 593754,
at *5; Paltan, 2008 WL 1848342, at *5; Poplardo, 2008 WL 68593, at *11.
The ALJ also seemingly failed to consider Dr. Garcia’s treatment notes when weighing her
Opinion. The ALJ erroneously states that the record contains no treatment notes from Dr. Garcia.
R. 24. The record, however, contains several treatment notes from Dr. Garcia, post-dating her

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Opinion. R. 340-41, 347-48. Thus, the ALJ apparently did not consider Dr. Garcia’s treatment
notes when weighing her Opinion.3 This oversight is significant, because the failure to consider
such evidence certainly may undermine the ALJ’s finding that Claimant’s treatment history and
the medical evidence are inconsistent with Dr. Garcia’s Opinion. It is not clear whether the ALJ
would have reached the same result had she considered Dr. Garcia’s treatment notes, and the Court
will not speculate as to whether Dr. Garcia’s treatment notes would alter the ALJ’s decision.
In light of the foregoing, the Court finds the ALJ’s decision to assign “some weight” to Dr.
Garcia’s Opinion is not supported by substantial evidence, and, thus, finds the ALJ’s decision, as
a whole, is not supported by substantial evidence. Therefore, the undersigned finds this case must
be remanded to the Commissioner for further proceedings, so the ALJ may considered all of the
evidence of record, properly weigh Dr. Garcia’s Opinion, and clearly and fully articulate her
reasons in support of the weight assigned to Dr. Garcia’s Opinion. Further, if the ALJ assigns Dr.
Garcia’s Opinion some weight again, the ALJ should explain what opinions she accepts, what
opinions she rejects, and articulate the reasons in support of her findings.4
IV.

CONCLUSION.
For the reasons stated above, it is ORDERED that:

3

The ALJ’s apparent failure to consider Dr. Garcia’s treatment notes is further evidenced by her
failure to cite Exhibits 8F and 9F, which contain Dr. Garcia’s treatment notes, in her decision. See
Doc. 16-26.
4

This issue is dispositive and therefore there is no need to 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); McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 963 n.3 (11th Cir.
2015) (per curiam) (no need to analyze other issues when case must be reversed due to other
dispositive errors). While the Court will not address Claimant’s remaining arguments, the Court
notes that it would be prudent for the ALJ to clearly ask the VE whether his or her testimony is
consistent with the Dictionary of Occupational Titles. See SSR 00-4p, 2000 WL 1898704, at *4
(Dec. 4, 2000).

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1. The final decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g); and
2. The Clerk is directed to enter judgment for Claimant and close the case.
DONE and ORDERED in Orlando, Florida on February 28, 2017.

Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Pamela Houston
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc.
3505 Lake Lynda Drive
Suite 300
Orlando, Florida 32817-9801

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