Special v. Commissioner of Social Security
Filing
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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
JANET K. SPECIAL,
Plaintiff,
v.
Case No: 6:15-cv-1624-Orl-DNF
CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Janet K. Special, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying her claim for a period of disability,
Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”).
The
Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by
the appropriate page number), and the parties filed legal memoranda in support of their 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 her 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 she 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, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she 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 her 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 her 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 she meets this burden, she 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 her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her 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 her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she 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, she 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
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1200, 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 (“VE”). 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 she 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 a Title II application for DIB on August 28, 2012, and a Title XVI application
for SSI on July 13, 2012. (Tr. 232, 239). In both applications, Plaintiff alleged a disability onset
date of August 17, 2012. (Tr. 232, 239). Plaintiff’s claims were denied initially on October 19,
2012, and upon reconsideration on November 21, 2012. (Tr. 135-39, 141-46, 154-58, 160-64).
Plaintiff requested a hearing and on February 12, 2014, an administrative hearing was held before
Administrative Law Judge Don C. Paris (“the ALJ”). (Tr. 33-68). On March 21, 2014, the ALJ
entered an unfavorable decision finding that Plaintiff had not been under a disability from August
17, 2012, through the date the decision. (Tr. 20-31). On August 12, 2015, the Appeals Council
denied Plaintiff’s request for review. (Tr. 1). Plaintiff initiated the instant action by Complaint
(Doc. 1) on September 30, 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 August 17, 2012, the alleged onset date. (Tr. 22). At step two,
the ALJ found that Plaintiff has the following severe impairments: degenerative disc disease of the
servical, thoracic, and lumbar spine; and chronic hepatitis. (Tr. 22). At step three, the ALJ found
that Plaintiff did not have an impairment or combination of impairments that meets or medically
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equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. 23).
Before proceeding to step four, the ALJ found that, through the date last insured, Plaintiff
had the residual functional capacity (“RFC”) to
perform a range of light work as defined in 20 CFR 404.1567(b) and
416.967(b) as follows: lift and carry ten pounds frequently and 20 pounds
occasionally; stand and walk six hours of an eight hour day; sit six hours
of an eight hour day; occasionally climb ramps and stairs, ladders, ropes,
or scaffolds; and frequently stoop, kneel, crouch, and crawl.
(Tr. 24). At step four, the ALJ found that Plaintiff was capable of returning to her past relevant
work as a billing clerk or customer service representative because such work does not require the
performance of work-related activities precluded by Plaintiff’s RFC. (Tr. 25). The ALJ concluded
that Plaintiff had not been under a disability from August 17, 2012, through the date of the decision,
March 21, 2014.
II.
Analysis
Plaintiff raises a single issue on appeal: whether the ALJ’s decision to accord “limited
weight” to the opinion of Plaintiff’s treating physician, Brian Dowdell, M.D., is supported by
substantial evidence. (Doc. 17 p. 14-21). Plaintiff argues that the ALJ seemed to have ignored
Dr. Dowdell’s explanation that Plaintiff’s complaints of persistent and radiating pain in her neck
and low back along with right shoulder pain and headaches were consistent with his diagnosis of
cervicalgia, brachial neuritis/radiculitits, headache, and the late effects of a motor vehicle accident.
(Doc. 17 p. 14-15). In addition, Plaintiff argues that the ALJ failed to consider the positive findings
in the treatment notes from Dr. Dowdell’s office over the many years that Plaintiff sought
treatment. (Tr. 17 p. 15). Further, Plaintiff contends that the ALJ improperly discounted Dr.
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Dowdell’s opinion on the basis that Plaintiff’s level of activity was inconsistent with the degree of
disability alleged. (Doc. 17 p. 20).
In response, Defendant argues that the ALJ’s decision shows that the ALJ properly
considered Dr. Dowdell’s opinion and that he provided good cause for according the opinion
“limited weight.” (Doc. 18 p. 5-6). Further, Defendant argues that the evidence of record, as
discussed by the ALJ, further supported the ALJ’s finding that Dr. Dowdell’s opinion was entitled
to “limited weight.” (Doc. 18 p. 6-7).
The record shows that on June 30, 2013, Dr. Dowdell offered his opinion that Plaintiff had
a permanent aggravation of the neck and low back and that Plaintiff should not lift or carry more
than 15 pounds, not walk more than 1-3 hours, not stand more than 1-3 hours, and not sit more
than 1-3 hours. (Tr. 752).
In his decision, the ALJ explained his decision to give “limited weight” to this opinion as
follows:
In a form completed in June of 2013 in relation to a motor vehicle accident,
Brian Dowdell, M.D., stated that the claimant was permanently restricted
to lifting and carrying less than 15 pounds; walking one to three hours;
standing one to three hours; and sitting one to three hours (Exhibit 16F).
The undersigned gives limited weight to Dr. Dowdell’s opinion, as it, like
Dr. Cooper’s, lacks notes of observation or findings to support such
restrictions. (Exhibit 16F).
(Tr. 25).
“The Secretary must specify what weight is given to a treating physician’s opinion and any
reason for giving it no weight, and failure to do so is reversible error.” MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). 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
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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)).
The opinions of treating physicians are entitled to substantial or considerable weight unless
good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004).
The Eleventh Circuit has concluded that good cause exists when the: “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. Id.
In this case, the Court finds that the ALJ erred by failing to provide good cause for his
decision to discount the opinion of Dr. Dowdell. The only reason given by the ALJ for discounting
Dr. Dowdell’s opinion was that the opinion lacked “notes of observation or finding to support such
a restriction.” (Tr. 25). Dr. Dowdell, however, explained in his opinion that Plaintiff’s complaints
of persistent and radiating pain in her neck and low back along with right shoulder pain and
headaches were consistent with his diagnosis of cervicalgia, brachial neuritis radiculitis, headache,
and late effects of motor vehicle accident. (Tr. 750). Dr. Dowdell further provided that his
diagnosis of Plaintiff’s condition was based on positive test results or clinical findings, for example
that Plaintiff’s neck was stiff with limited active range of motion in flexion, extension, side
bending and rotation, and that her Spurlings test was positive on the right side, her Tinels was
negative, and that her Phalens test was positive on the right side. (Tr. 750).
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The ALJ’s single-sentence explanation for rejecting treating physician Dr. Dowdell’s
opinion, without further analysis, fails to constitute good cause. See Kahle v. Comm’r of Soc. Sec.,
845 F.Supp.2d 1262, 1272 (M.D. Fla. 2012) (“[C]onclusory statements by an ALJ to the effect
that an opinion is inconsistent with or not bolstered by the medical record are insufficient to show
an ALJ’s decision is supported by substantial evidence unless the ALJ articulates factual support
for such a conclusion.”). Despite Plaintiff’s lengthy treatment relationship with Dr. Dowdell, the
ALJ did not review or summarize this information in the decision, nor explain how Plaintiff’s
treating records do not support Dr. Dowdell’s opinion. Upon remand, the ALJ shall reevaluate Dr.
Dowdell’s opinion and, if he decides to discount it, explain his reasons for doing so with specific
citations to the record.
III.
Conclusion
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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