Ross v. Commissioner of Social Security
Filing
19
MEMORANDUM OF DECISION, the final decision of the Commissioner of REVERSED and REMANDED; The Clerk is directed to enter judgment for Claimant and close the case. Signed by Magistrate Judge Daniel C. Irick on 3/30/2017. (RN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PATRICIA A. ROSS,
Plaintiff,
v.
Case No: 6:15-cv-1764-Orl-DCI
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OF DECISION
Patricia A. Ross (the Claimant) appeals the Commissioner of Social Security’s (the
Commissioner) final decision denying her applications for disability benefits. Doc. 1. Claimant
argues that the Administrative Law Judge (the ALJ) erred by: 1) assigning little weight to Dr. Alyn
Benezette’s opinion; 2) assigning some weight to Dr. Monivirin Son’s opinions; 3) assigning little
weight to Dr. Anuranjan Bist’s opinion; 4) assigning great weight to the opinions of two nonexamining state agency physicians; and 5) finding her testimony concerning her pain and
limitations not credible. Doc. 16 at 22-35. Claimant argues that the matter should be reversed and
remanded for an award of benefits. Id. at 35. For the reasons set forth below, the Commissioner’s
final decision is REVERSED and REMANDED for further proceedings.
I.
PROCEDURAL HISTORY.
On September 18, 2009, Claimant filed an application for disability insurance benefits,
alleging a disability onset date of June 1, 2008. R. 141-42. On June 6, 2011, the ALJ entered a
decision finding that Claimant was not disabled. R. 33-48. This decision ultimately became the
Commissioner’s final decision. R. 1-3.
On November 13, 2012, Claimant appealed the Commissioner’s final decision to this
Court. Claimant argued that the ALJ erred by: 1) rejecting Drs. Benezette’s, Son’s and Bist’s
opinions; 2) failing to properly evaluate her credibility; and 3) relying exclusively on the MedicalVocational Guidelines (the Grids) at step five. R. 1246-47. On September 18, 2013, the Magistrate
Judge entered a report finding that the ALJ did not err in rejecting Dr. Son’s opinions or finding
Claimant’s testimony concerning her pain and limitations not credible. R. 1251-52, 1254-55. The
Magistrate Judge, however, found that the ALJ failed to articulate sufficient good cause to reject
Drs. Benezette’s and Bist’s opinions, and erred by exclusively relying on the Grids at step five. R.
1249-57. On October 3, 2013, the Court entered an order adopting the report, and reversing and
remanding the case for further proceedings. R. 1243.
Claimant filed applications for supplemental security income while the case was pending
before this Court, alleging the same disability onset date as before, June 1, 2008. R. 1346-72. On
December 9, 2013, the Appeals Council, in light of the Court’s order remanding the case, entered
an order vacating its final decision, consolidating Claimant’s applications for disability, and
remanded the case to the ALJ for further proceedings consistent with the Court’s order remanding
the case. R. 1261.
On December 17, 2014, the ALJ entered a decision again finding that Claimant was not
disabled. R. 1137-52. This decision ultimately became the Commissioner’s final decision. R.
1117-20. This appeal followed.
II.
THE ALJ’S DECISION.
The ALJ found that Claimant suffered from the following severe impairments: obesity;
coronary artery disease; lumbar degenerative disc disease; bipolar disorder; and posttraumatic
stress disorder. R. 1140. The ALJ also found that Claimant suffered from the following non-
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severe impairments: status post wrist surgery; tachycardia; and vertigo. Id. The ALJ found that
Claimant did not meet or equal any listed impairment. R. 1140-41. The ALJ found that Claimant
had the residual functional capacity (RFC) to perform light work as defined by 20 C.F.R. §§
404.1567(b) and 416.967(b),1 with the following specific limitations:
[T]he claimant requires the option to alternate between sitting and
standing every 30 minutes. She can never climb ladders, ropes, and
scaffolds. She can occasionally climb ramps and stairs, stoop, kneel,
crouch, and/or crawl. She can occasionally reach overhead and
frequently handle and finger. She must avoid concentrated exposure
to vibrations, moving mechanical parts, and unprotected heights.
The claimant is limited to performing simple tasks with little
variation, which take a short period of time to learn (up to and
including 30 days). She can relate adequately to supervisors, but is
limited to occasional contact with co-workers and no contact with
the general public. She is able [to] deal with changes in a routine
work setting and must avoid production–paced work.
R. 1141-42. The ALJ found that Claimant was not capable of performing her past relevant work.
R. 1150. The ALJ, however, found that Claimant was capable of performing other work in the
national economy, such as route clerk, blade balancer and paper pattern folder. R. 1150-51. The
ALJ, consequently, found that Claimant was not disabled from her alleged onset date, June 1,
2008, through the date of his decision, December 17, 2014. R. 1151-52.
III.
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
1
Light work is defined as “lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
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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
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)).
IV.
ANALYSIS.
This appeal primarily centers on the ALJ’s consideration of Drs. Benezette’s, Son’s and
Bist’s opinions. Doc. 16 at 22-31. Claimant argues that the ALJ erred by assigning some weight
to Dr. Son’s opinion, and assigning little weight to Drs. Benezette’s and Bist’s opinions. Id.2 The
2
The Court notes that Claimant appears to challenge the ALJ’s consideration of Dr. James Shea’s
opinion. See Doc. 16 at 23, 27. Dr. Shea is a one-time examining physician, who completed a
Disability Impairment Questionnaire on August 1, 2014. R. 1799-803. The ALJ assigned Dr.
Shea’s opinion little weight because it was inconsistent with Claimant’s examination, inconsistent
with other medical evidence, and appeared to rely heavily on Claimant’s subjective complaints.
R. 1148. Claimant, at one point, claims that the “ALJ mischaracterized Dr. Shea’s report to the
extent he found it based entirely on [her] subjective statements.” Doc. 16 at 27. Claimant, though,
does not subsequently argue how this alleged mischaracterization undermines the ALJ’s decision
to assign Dr. Shea’s opinion little weight. See Doc. 16 at 22-31. Further, Claimant does not
challenge the other reasons supporting the ALJ’s determination to assign Dr. Shea’s opinion little
weight. See id. Thus, given the perfunctory nature of Claimant’s argument concerning the ALJ’s
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Commissioner argues that the ALJ articulated good cause, supported by substantial evidence, for
the weight assigned to each of the challenged opinions. Doc. 17 at 4-23.
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), 416.946(c). In doing so, the ALJ must consider all
relevant evidence, including, but not limited to, the medical opinions of treating, examining and
non-examining medical sources. See 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also Rosario
v. Comm’r of Soc. Sec., 490 F. App’x 192, 194 (11th Cir. 2012).3
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), 416.927(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), 416.927(c)(2) (giving
controlling weight to the treating physician’s opinion unless it is inconsistent with other substantial
decision to assign Dr. Shea’s opinion little weight, the Court finds Claimant has waived any
argument challenging the weight assigned to Dr. Shea’s opinion. See N.L.R.B. v. McClain of Ga.,
Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a perfunctory manner, without
supporting arguments and citation to authorities, are generally deemed to be waived.”).
3
In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See
11th Cir. R. 36-2.
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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 ALJ must state the weight assigned to each medical opinion, and articulate the reasons
supporting the weight assigned to each opinion. Winschel, 631 F.3d at 1179. The failure to state
the weight with particularity or articulate the reasons in support of the weight prohibits the Court
from determining whether the ultimate decision is rational and supported by substantial evidence.
Id.
A. Dr. Bist.
Claimant argues that the ALJ failed to articulate good cause, supported by substantial
evidence, to assign Dr. Bist’s opinion little weight. Doc. 16 at 27-31. The Commissioner argues
that the ALJ articulated sufficient reason(s), supported by substantial evidence, for assigning Dr.
Bist’s opinion little weight. Doc. 17 at 17-22.
The medical record reveals that Claimant has suffered from several mental impairments.
Claimant began treating with Dr. Bist, a psychiatrist, in January 2011. R. 1078-81. A mental
status examination during that initial exam revealed that the Claimant had anxious and depressed
mood, and impaired attention/concentration.
R. 1080.
The examination was otherwise
unremarkable. Id. Dr. Bist assigned Claimant a Global Assessment Functioning (GAF) score of
60,4 and diagnosed her with major depression, recurrent. R. 1081. Claimant treated with Dr. Bist
4
GAF scores are used to report an individual’s overall level of functioning. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text Revision, 2000). A GAF
score of 51-60 reflects: “Moderate symptoms (e.g., flat affect and circumstantial speech,
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on eight more occasions between January and August 2011.
Claimant’s mental status
examination’s remained largely unchanged, with relatively consistent observations of anxious and
depressed mood, an observation of impaired attention/concentration, and one completely
unremarkable examination. R. 1070, 1072, 1074, 1076, 1676, 1680-82. Dr. Bist routinely noted
that Claimant was achieving minimal to moderate progress. Id.
Dr. Bist completed a Psychiatric/Psychological Impairment Questionnaire on April 19,
2011. R. 1062-69. Dr. Bist noted that he diagnosed Claimant with major depression, recurrent,
with her primary symptoms consisting of depression, anxiety, panic attacks and attempted suicide.
R. 1062, 1064. Dr. Bist noted that the following clinical findings support his diagnosis: poor
memory; appetite disturbance with weight change; sleep disturbance; mood disturbance; emotional
lability; recurrent panic attacks; anhedonia; psychomotor agitation; feeling so worthlessness;
difficulty thinking or concentrating; suicidal ideation or attempts; decreased energy; persistent
irrational fears; and generalized persistent anxiety. R. 1063. Dr. Bist opined that Claimant’s
current GAF score was 65.5 R. 1062. Dr. Bist opined that Claimant is “mildly limited”6 in her
ability to: understand, remember and carry out one or two step instructions; sustain ordinary
routine without supervision; make simple work related decisions; ask simple questions or request
occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers).” Am. Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed. Text Revision, 2000) (emphasis in original).
5
A GAF score of 61-70 indicates: “Some mild symptoms (e.g., depressed mood and mild
insomnia) OR some difficulty in social, occupational, or school functioning . . ., but generally
functioning pretty well, has some meaningful interpersonal relationships.” Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. Text Revision, 2000)
(emphasis in original).
6
The form Dr. Bist completed defined “mildly limited” as “not significantly affect[ing] the
individual’s ability to perform the activity.” R. 1064.
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assistance; accept instructions and respond appropriately to criticism; be aware of normal hazards
and take appropriate precautions; travel to unfamiliar places or use public transportation; and set
realistic goals or make plans independently. R. 1065-67. Dr. Bist also opined that Claimant is
“moderately limited”7 in her ability to: remember locations and work-like procedures; understand
and remember detailed instructions; work in coordination with or proximity to others without being
distracted by them; complete normal workweek without interruptions from psychologically based
symptoms; interact appropriately with the public; and get along with co-workers or peers without
distracting them. R. 1065-66. Dr. Bist also opined that Claimant is “markedly limited”8 in her
ability to: carry out detailed instructions; maintain attention and concentration for extended
periods; perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerance. R. 1065. Dr. Bist opined that Claimant is capable of performing low stress
jobs, and would likely miss more than three days of work per month. R. 1068-69.
The ALJ considered Dr. Bist’s treatment records and opinion, R. 1142-43, 1149, and stated
the following with respect to Dr. Bist’s opinion:
I gave this assessment little weight as it is inconsistent with his
treatment notes and the other evidence of record. Consistent with
his assessment, when Dr. Bist examined the claimant in July 2011,
he indicated that she had a GAF score of 60. According to the
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition (DSM-IV), a GAF score of 60 indicates moderate symptoms
(e.g., flat affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school functioning
(e.g. few friends, conflicts with peers or co-workers). In the
assessment questionnaire, he indicated a GAF score of 65, which
7
The form Dr. Bist completed defined “moderately limited” as “significantly affect[ing] . . . the
individual’s ability to perform the activity.” R. 1064.
8
The form Dr. Bist completed defined “markedly limited” as “effectively precludes the individual
from performing the activity in a meaningful manner.” R. 1065.
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indicates she is even less limited. According [to] the DSM-IV, she
would have only mild symptoms.
Thus, I do not fully accept Dr. Bist’s opinion. He did not perform
any psychological testing and his opinion appears to be based
primarily upon claimant’s subjective complaints. He did not
observe any type of panic attack. Further, I find that Dr. Bist’s
opinion does not take into account the claimant’s situational
stressors and his opinion is not consistent with the other evidence
contained in the medical record and the claimant’s activities of daily
living, including her significant work activity. The claimant noted
that she had situational stressors such as caring for her mother with
dementia and taking care of her children. One son had bipolar
disorder and the other, Asperger’s syndrome. The claimant’s
hospitalization in April 2012 occurred after a family dispute. Her
symptoms were easily managed with treatment. By the time of her
discharge, her GAF score was 60. I accept that the evidence shows
some moderate limitations regarding social interactions and in
concentrating and attending to work tasks, but these are not
disabling. The evidence clearly indicates that the claimant
experiences no more than moderate limitation when she is compliant
with her anti-depressant and other medications. There is no
indication of panic attacks or crying spells or the frequency or
severity that would preclude the claimant from performing gainful
work activity. This conclusion that the claimant has no more than
moderate mental limitations is supported by the evidence of record.
Notably, when the claimant was seen for a follow-up appointment
a[t] Steward Marchman Act in January 2014, she indicated that she
was on the best combination of medication that she had ever been
on.
R. 1149. Thus, the ALJ assigned Dr. Bist’s opinion little weight because: it is inconsistent with
Claimant’s GAF scores of 60 and 65; he did not perform any psychological testing, nor did he
observe Claimant having a panic attack; Dr. Bist’s opinions appeared to be based on Claimant’s
subjective complaints; Dr. Bist did not take Claimant’s situational stressors (i.e., taking care of her
mother with dementia and son with Asperger’s syndrome) into account in rendering his opinion;
Claimant’s daily activities and work history were inconsistent with his opinions; and Claimant’s
symptoms have been easily managed with treatment. Id. Claimant argues that her GAF scores,
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daily activities, and Dr. Bist’s reliance on her subjective reports do not constitute good cause to
assign Dr. Bist’s opinion little weight. Doc. 16 at 27-30.
The Court finds that the ALJ articulated sufficient good cause to assign Dr. Bist’s opinion
little weight. The ALJ found that Dr. Bist’s opinion was inconsistent with his treatment notes,
including Claimant’s GAF scores and Dr. Bist’s apparent reliance on Claimant’s subjective
complaints. R. 1149. The ALJ may consider GAF scores in weighing opinions, see Marshall v.
Comm’r, Soc. Sec. Admin., 660 F. App’x 874, 876 n.3 (11th Cir. 2016), and, in this case, the ALJ
properly noted that Claimant’s GAF scores, which denote mild to moderate symptoms, are not
entirely consistent with Dr. Bist’s opinion. R. 1149. Further, it does appear that Dr. Bist’s opinion
stems, in part, from Claimant’s subjective complaints, because many of the clinical findings that
Dr. Bist identifies in his opinion were reported to Dr. Bist, but were not observed during his mental
status examinations, nor discussed as being credible in his treatment notes. Compare R. 1063 with
R. 1070, 1072, 1074, 1076, 1080, 1676, 1680-82. The ALJ also found that Dr. Bist’s opinion was
inconsistent with the evidence of record, including her daily activities, such as caring for her
children, and the management of her symptoms with medication. R. 1149; see, e.g., R. 68, 174,
1408, 1668, 1676. These reasons tend to support the ALJ’s determination to assign Dr. Bist’s
opinion little weight. Therefore, the Court finds that the ALJ articulated sufficient good cause,
which is supported by substantial evidence, to assign Dr. Bist’s opinion little weight.9
9
The Court notes that despite the ALJ’s decision to assign little weight to Dr. Bist’s opinion, the
ALJ’s RFC determination is largely consistent with Dr. Bist’s opinion. Dr. Bist, for example,
opined that Claimant is mildly limited in her ability to understand, remember and carry out one or
two step instructions, and markedly limited in her ability to carry out detailed instructions. R.
1065. The ALJ’s RFC determination seemingly accounts for these opinions by limiting Claimant
to performing simple tasks with little variation. R. 1142. Dr. Bist, as another example, opined
that Claimant is moderately limited in her ability to interact appropriately with the public, and get
along with co-workers or peers without distracting them. R. 1066. The ALJ’s RFC determination
seemingly accounts for these opinions by limiting Claimant to occasional contact with co-workers,
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B. Dr. Son.
Claimant argues that the ALJ committed two errors with respect to Dr. Son’s opinions.
First, Claimant argues that the ALJ’s failed to account for all of the limitations in Dr. Son’s
opinions that he did not reject. Doc. 16 at 23-24. Second, Claimant argues that the ALJ provided
conclusory reasons to assign Dr. Son’s opinions only some weight.
Id. at 24-27.
The
Commissioner argues that Claimant is barred from challenging the ALJ’s consideration of Dr.
Son’s opinions under the law-of-the-case doctrine. Doc. 17 at 10. The Commissioner alternatively
argues that the ALJ articulated sufficient reason(s), supported by substantial evidence, for
assigning Dr. Son’s opinions some weight. Id. at 10-13.
The record reveals that Claimant treated with Dr. Son, a family physician, on multiple
occasions between November 2007 and April 2011. R. 400-01, 441-43, 446-47, 457-59, 463-65,
468-69, 655-57, 1002-03, 1041-43, 1048-51, 1087-91. Dr. Son completed a Multiple Impairment
Questionnaire on October 20, 2009. R. 792-99. Dr. Son diagnosed Claimant with lumbago,
headaches, and bipolar disorder. R. 792. Dr. Son opined that Claimant can sit for less than one
hour in an eight-hour workday, and stand/walk for less than one hour in an eight-hour workday.
R. 794. Dr. Son opined that Claimant can only sit for 30 minutes before needing to stand and
move around. Id. Dr. Son opined that Claimant can frequently lift and carry less than five pounds,
and occasionally lift and carry less than 20 pounds. R. 795. Dr. Son opined that Claimant has
minimal limitations in reaching, grasping and fingering. R. 795-96. Dr. Son opined that Claimant
and no contact with the general public. R. 1142. Therefore, to the extent the ALJ erred in assigning
little weight to Dr. Bist’s opinion, it appears any error is harmless given the consistency between
Dr. Bist’s opinion and the ALJ’s RFC determination. See Wright v. Barnhart, 153 F. App’x 678,
684 (11th Cir. 2005) (per curiam) (failure to weigh a medical opinion is harmless error if the
opinion does not directly contradict the ALJ’s RFC determination).
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cannot push, pull, kneel, bend or stoop. R. 798. Dr. Son opined that Claimant is capable of low
stress work, and would likely be absent from work for more than three days a month. R. 797-98.10
The ALJ considered Dr. Son’s treatment records and opinions, R. 1142-43, 1147, and
stated the following with respect to Dr. Son’s opinions:
I gave Dr. Son’s assessments of the claimant some weight as they
are generally supported by a review of the medical evidence.
However, the postural limitations he notes and the absences are not
supported by his treatment notes and the other medical evidence of
record. Dr. Son’s treatment notes do not indicate that the claimant
had disabling impairments as she received routine conservative
treatment. I also note that the course of treatment pursued by Dr.
Son has not been consistent with what one would expect if the
claimant were truly disabled, as the doctor has reported. He
apparently relied quite heavily on the subjective report of symptoms
and limitations provided by the claimant, and seemed to uncritically
accept as true most, if not all, of what she . . . reported. Yet, as
explained elsewhere in this decision, there exist good reasons for
questioning the reliability of her subjective complaints.
R. 1147. Therefore, the ALJ found that much of Dr. Son’s opinions were supported by the medical
evidence, with the exception of Dr. Son’s opinions concerning Claimant’s postural limitations11
and the number of absences from work per month. Id. Claimant essentially argues that the ALJ
should have either accounted for the limitations he found to be supported by the medical evidence
in his RFC determination, or provide a reasoned explanation why he chose not to account for those
10
Dr. Son authored a letter on March 14, 2011, in which he essentially opined that Claimant had
the same limitations as set forth in his October 20, 2009 opinion. R. 1052-53.
11
There are two (2) primary categories of limitations, exertional and nonexertional. 20 C.F.R. §§
404.1569a(a), 416.969a(a). An exertional limitation relates to a claimant’s ability to meet the
seven (7) strength demands of jobs: sitting; standing; walking; lifting; carrying; pushing; and
pulling. Id. at §§ 404.1569a(b), 416.969a(b). All other limitations are considered nonexertional,
and include postural and manipulative limitations. Id. at §§ 404.1569a(c), 416.969a(c). Postural
limitations include stooping, climbing, crawling, crouching, kneeling, and balancing. See id. at §§
404.1569a(c)(1)(vi), 416.969a(c)(1)(vi).
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limitations in his RFC determination. Doc. 16 at 23-24. The ALJ did neither in this case, and,
thus, Claimant argues that the ALJ erred. Id.
The Court, as an initial matter, is not persuaded that Claimant is barred from challenging
the ALJ’s consideration of Dr. Son’s opinions under the law-of-the-case doctrine. “The law of the
case doctrine is the rule under which the trial court and appellate courts are bound by any findings
of fact or conclusions of law made by the appellate courts in a prior appeal of the case at issue.”
Robinson v. Parrish, 720 F.2d 1548, 1550-51 (11th Cir. 1983) (per curiam) (internal quotations
omitted). The law of the case doctrine, however, “cannot apply when the issue in question was
outside the scope of the prior appeal.” Transamerica Leasing, Inc. v. Inst. of London Underwriters,
430 F.3d 1326, 1332 (11th Cir. 2005). The ALJ originally assigned little weight to Dr. Son’s
opinions. R. 45. Claimant challenged that finding in her first appeal, and the Court found that the
ALJ did not err in assigning Dr. Son’s opinions little weight, but found other errors that required
remand for further proceedings. R. 1249-58. The ALJ, subsequently, assigned Dr. Son’s opinions
some weight, expressly rejecting only portions of his opinions. R. 1147. Thus, a fundamental
change occurred with respect to the ALJ’s consideration of Dr. Son’s opinions, and thus the issues
raised by Claimant in this appeal are outside the scope of the prior appeal. Therefore, the Court
finds that the law-of-the-case doctrine does not bar Claimant from challenging the ALJ’s
consideration of Dr. Son’s opinions.
The Court finds that the ALJ erred because he neither accounted for Dr. Son’s opinion that
the ALJ did not expressly reject, nor provided a reasoned explanation why the ALJ chose not to
account for those limitations in his RFC determination. An ALJ is not required to include or
account for every limitation in a medical opinion into his or her RFC determination simply because
he or she assigned the opinion some or great weight. An ALJ, however, is required to provide a
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reasoned explanation as to why the ALJ chose not to include particular limitations in the RFC
determination. See Winschel, 631 F.3d at 1179 (“It is possible that the ALJ considered and rejected
these two medical opinions, but without clearly articulated grounds for such a rejection, we cannot
determine whether the ALJ’s conclusions were rational and supported by substantial evidence.”);
see also Monte v. Astrue, Case No. 5:08-cv-101-Oc-GRJ, 2009 WL 210720, at *6-7 (M.D. Fla.
Jan. 28, 2009) (An “ALJ cannot reject portions of a medical opinion without providing an
explanation for such a decision.”) (citing Morrison v. Barnhart, 278 F. Supp. 2d 1331, 1337 (M.D.
Fla. 2003)). The ALJ, here, gave some weight to Dr. Son’s opinion, finding many of his opinions
were supported by the medical evidence, with the exception of Dr. Son’s opinions concerning
Claimant’s postural limitations and the number of days she would miss work per month. R. 1147.
Thus, it appears the ALJ found Dr. Son’s opinions concerning Claimant’s ability to sit, stand, and
walk in an eight-hour workday, as well as her ability to lift and carry were supported by the medical
evidence.
See id.
The ALJ, however, did not account for these limitations in his RFC
determination. Compare R. 794-95 with R. 1141-42. Therefore, the ALJ should have provided a
reasoned explanation as to why his RFC determination did not include or otherwise account for
Dr. Son’s opinions concerning Claimant’s ability to sit, stand, walk, lift and carry. See Winschel,
631 F.3d at 1179; Monte, 2009 WL 210720, at *6-7. The ALJ’s decision contains no such
explanation. See R. 1141-50. Without any explanation for this action, the Court is unable to
conduct a meaningful review of the ALJ’s decision to not include or otherwise account for Dr.
Son’s opinions that he did not reject.12
Therefore, the Court finds that the ALJ’s RFC
12
This error is not harmless, because Dr. Son’s opinions concerning Claimant’s ability to sit, stand,
walk, lift and carry would preclude light work. See 20 C.F.R. §§ 404.1567(b), 416.967(b).
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determination, and consequently his decision, is not supported by substantial evidence, and the
case must be reversed.13
C. Remedy.
Claimant requests that this case be remanded for an award of benefits. Doc. 16 at 35. The
Court may remand a social security disability case for an award of benefits where the
Commissioner has already considered the essential evidence and it establishes disability beyond a
doubt, Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993), or where the claimant has suffered an
injustice, see Walden, 672 F.2d at 840. Claimant argues that the Commissioner “should not be
given a third bite at the apple when all the credible medical evidence points in the direction of a
finding of disability.” Doc. 16 at 35. Thus, it appears Claimant argues that the essential evidence
establishes disability beyond a doubt. Id. The Court is not persuaded. First, the Court found that
the ALJ did not err in assigning Dr. Bist’s opinion little weight. Second, the Court is reversing
this case so the ALJ may further explain the weight assigned to Dr. Son’s opinion, and the reasons
in support of the weight assigned to Dr. Son’s opinion. Thus, in light of the evidence in the record,
the Court finds the essential evidence does not establish disability beyond a doubt. Therefore, this
case should be reversed and remanded for further proceedings so the ALJ may address the issues
discussed in this decision.
13
The Court finds that the foregoing issue is dispositive of this appeal, and, thus, there is no need
to address Claimant’s remaining assignments of error. 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). The Court, however, finds it necessary
to comment on the ALJ’s consideration of Dr. Benezette’s opinion. Claimant argues that the ALJ
erroneously provided conclusory reasons to assign Dr. Benezette’s opinion little weight. Doc. 16
at 24-27. The Court is not persuaded that the ALJ’s reasons for assigning Dr. Benezette’s opinion
are conclusory, but the ALJ’s reasoning could benefit from additional explanation. See R. 1147.
Therefore, on remand, the ALJ should provide additional explanation in support of the weight
assigned to Dr. Benezette’s opinion.
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V.
CONCLUSION.
For the reasons stated above, it is ORDERED that:
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 March 30, 2017.
Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Gregory J. Froehlich
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc.
Desoto Bldg., Suite 400
8880 Freedom Crossing Trail
Jacksonville, FL 32256-1224
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