Robbins v. Commissioner of Social Security
Filing
25
OPINION AND ORDER reversing the administrative decision and remanding for additional proceedings. The Clerk is directed to enter final judgment. Signed by Magistrate Judge Thomas B. Smith on 12/12/2016. (EC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JACOB ROBBINS,
Plaintiff,
v.
Case No: 6:15-cv-1783-Orl-TBS
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER 1
Plaintiff brings this action pursuant to the Social Security Act (“Act”), as amended,
42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his claims for disability
insurance and supplemental security income benefits under the Act. Upon review of the
record and after due consideration, the Commissioner’s final decision is REVERSED and
the case is REMANDED.
Background 2
Plaintiff was 35 years old on the date of the adverse administrative decision (R. 20,
205), with a GED education and work experience as an electrician and an electrician’s
helper (R. 240). He alleged an inability to work due to (1) back pain; (2) knee pain; (3)
depression; (4) anxiety; (5) MRSA infection; (6) neck pain; (7) left upper extremity pain
and numbness; and (8) seizure disorder (R. 56-69, 239). He was insured for the purpose
of SSDI through March 31, 2014 (R. 226).
1 Both parties have consented to the exercise of jurisdiction by a magistrate judge and the matter
has been referred in accordance with 28 U.S.C. §636(c) and FED .R. CIV. P. 73 (Doc. 14).
2 This information is taken from the parties’ Joint Memorandum (Doc. 23).
Plaintiff’s applications were denied initially and on reconsideration, and he
requested and received an administrative hearing before an Administrative Law Judge
(“ALJ”), who issued an unfavorable decision on March 24, 2014 (R. 20-45). Plaintiff timely
filed a Request for Review of Hearing Decision with the Appeals Council, however, the
Appeals Council denied further review on September 8, 2015 (R. 1). Accordingly, the
ALJ’s March 2014 decision finding Plaintiff not disabled is the final decision of the
Commissioner. Having exhausted all available administrative remedies, Plaintiff timely
filed this action for judicial review (Doc. 1).
The ALJ’s Decision
When determining whether an individual is disabled, the ALJ must follow the fivestep sequential evaluation process established by the Social Security Administration and
set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). The ALJ must determine
whether the plaintiff (1) is currently employed; (2) has a severe impairment; (3) has an
impairment or combination of impairments that meets or medically equals an impairment
listed at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past relevant work;
and (5) retains the ability to perform any work in the national economy. See Phillips v.
Barnhart, 357 F.3d 1232, 1237-1240 (11th Cir. 2004). The plaintiff bears the burden of
persuasion through step four and, at step five, the burden shifts to the Commissioner.
Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Phillips, 357 F.3d at 1241 n.10.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity
since his December 1, 2008 alleged onset date (R. 25). At step two, the ALJ determined
that Plaintiff had the following severe impairments: (1) degenerative disc disease,
thoracic and lumbar spine with compression deformities in thoracic spine; (2) peripheral
neuropathy; (3) seizure disorder; (4) right upper extremity pain; (5) obesity; (6)
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generalized anxiety disorder/ panic disorder; and (7) major depressive disorder (20 CFR
404.1520(c) and 416.920(c)). (R. 25). At step three, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that medically met or equaled the
severity of any of the impairments listed in 20 CFR Part 404, Subpat1 P, Appendix 1. (R.
26). Before proceeding to step four, the ALJ decided that Plaintiff had the residual
functional capacity (“RFC”) to perform:
medium work as defined in 20 CFR 404.1567(c) and
416.967(c) except the claimant can lift 50 pounds occasionally
and 25 pounds frequently; can stand and walk for six hours in
an eight hour workday; can sit for six hours in an eight hour
workday; should never climb ladders, ropes, or scaffolds; can
frequently perform overhead reaching with light upper
extremity; frequently balancing, stooping, kneeling, crouching,
or crawling; should avoid hazards such as unprotected heights
or dangerous machinery and full body vibration; the claimant
requires an object focused work environment in which contact
with co-workers and supervisors is casual and occasional in a
non-public work setting; can perform simple routine tasks; can
maintain attention and concentration for two hour segments
during an eight hour workday; and the claimant is able to
adapt to gradual changes in a routine work environment.
(R. 30).
At step four, the ALJ found that Plaintiff was not able to perform any of his past
work, but the ALJ found at step five, based on vocational expert testimony, that there was
other work in the national economy Plaintiff could perform (R.36-37). Thus, the ALJ
concluded Plaintiff was not disabled from December 1, 2008, through the date of the
ALJ’s decision (R. 38).
Standard of Review
The scope of the Court's review is limited to determining whether the ALJ applied
the correct legal standards and whether the Commissioner’s findings are supported by
substantial evidence. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
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2004). 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 but less than
a preponderance. It is such relevant evidence that a reasonable person would accept as
adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (citation omitted).
When 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 preponderance of the evidence is against
the Commissioner's decision. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The
district court “may not decide facts anew, reweigh the evidence, or substitute our
judgment for that of the [Commissioner.]” Id. "The district court must view the record as a
whole, taking into account evidence favorable as well as unfavorable to the decision."
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (per curiam); accord Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (the court must scrutinize the entire record to
determine the reasonableness of the factual findings).
Discussion
Plaintiff complains that the ALJ failed to give proper weight to the opinions of his
treating physicians in determining Plaintiff’s RFC. 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 , 631 F.3d at 1178–79 (citing 20
CRF §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.
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1987).) When evaluating a physician's opinion, an ALJ considers numerous factors,
including whether the physician examined the claimant, whether the physician treated the
claimant, the evidence the physician presents to support his or her opinion, whether the
physician's opinion is consistent with the record as a whole, and the physician's specialty.
See 20 C.F.R. §§ 404.1527(c), 416.927(c).
Substantial weight must be given to the opinion, diagnosis and medical evidence
of a treating physician unless there is good cause to do otherwise. See Lewis v. Callahan,
125 F.3d 1436 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991);
20 C.F.R. § 404.1527(d). Good cause for disregarding an opinion can exist when: (1) the
opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or
(3) the opinion is conclusory or is inconsistent with the source’s own treatment notes.
Lewis, 125 F.3d at 1440. By contrast, a consultative examiner’s opinion is not entitled to
the deference normally given a treating source. See 20 C.F.R. § 404.1527(c)(2);
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (noting a onetime examiner’s opinion is not entitled to great weight). Nonetheless, all opinions,
including those of non-treating state agency or other program examiners or consultants,
are to be considered and evaluated by the ALJ. See 20 C.F.R. §§ 404.1527, 416.927,
and Winschel.
Plaintiff contends that the ALJ did not adequately evaluate the opinions of two of
his treating physicians: Dr. Sabapathy and Dr. Borges. Internist Mudanai Sbapathy, M.D.,
treated Plaintiff’s neck and back pain over the course of several years (R. 406). He
eventually referred Plaintiff to an orthopedist and to pain management. On December 9,
2011, Plaintiff began treatment with Ibem Borges, M.D. at his pain clinic, and continued to
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treat there until September 2013. Both physicians issued opinions and imposed medical
restrictions relating to Plaintiff’s functionality. 3
The ALJ’s decision discusses the treatment notes and opinions of Dr. Sabapathy
(e.g. R. 35), but makes no mention of Dr. Borges or his opinions, other than a cursory
reference to “regular pain management services with prescription of narcotic pain
medications” (R. 32). The failure of the ALJ to specify what weight is given to Dr. Borges’
opinion or the reasons for giving it no weight is reversible error.
The Commissioner acknowledges that the ALJ “did not specifically state that [s]he
was accepting or rejecting” opinion evidence from Dr. Borges, but contends that the ALJ
“considered this opinion evidence because [s]he cited Exhibit 6F, the exhibit containing
Dr. Borges opinion” (Doc. 23 at 31, citing R. 32, 434). The failure to discuss the opinion is
not fatal, according to the Commissioner, because Dr. Borges’ opinion “was somewhat
similar to the opinion evidence from Dr. Sabapathy, and thus, the same reasoning the
ALJ had for the weight he applied to Dr. Sabapathy, namely that it was an overestimation
of Plaintiff’s limitations and inconsistent with the evidence of record, applied to Dr. Borges
as well” (Id., citing R. 32, 35, 434; emphasis added). The Court is not persuaded.
Citing to an exhibit is not the equivalent of “stating with particularity the weight
given to different medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179.
In the absence of such a statement, “it is impossible for a reviewing court to determine
Dr. Borges opined that Plaintiff had the following limitations: For his cervical spine, Plaintiff
needed to avoid strenuous activities. (R. 434). He should not lift greater than 20 pounds and no repetitive
movements of the upper extremities. Dr. Borges also opined Plaintiff should not work overhead. In regards
to thoraco-lumbar spine, Dr. Borges opined Plaintiff was restricted from bending, squatting, twisting,
jumping, and jogging. Dr. Borges opined Plaintiff should not sit or stand for extended periods. Dr. Borges
opined claimant should not lift greater than 40 pounds floor to waist and no repetitive movements of the
lower extremities (R. 434).
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whether the ultimate decision on the merits of the claim is rational and supported by
substantial evidence.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981).
It is not the task of the Court to evaluate whether the opinions of different treating
doctors are “somewhat similar,” or to weigh the effect of any discrepancy. This fact finding
is the province of the ALJ. McDaniel v. Bowen, 800 F.2d 1026, 1032 (11th Cir. 1986). The
Commissioner’s assumption that the ALJ would have rejected or discounted Dr. Borges’
opinion is a post hoc justification that cannot be considered for the first time, on review.
See Owens. Heckler, 748 F. 2d 1511, 1516 (11th Cir. 1984).
As the record reflects opinions of a treating source that were not adequately
considered, remand is required. On remand, the ALJ must explicitly consider and explain
the weight accorded to the medical opinion evidence. Winschel, 631 F.3d at 1179.
Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1) The Commissioner's decision is REVERSED and this case is REMANDED for
further administrative proceedings consistent with the foregoing; and
(2) The Clerk of Court is directed to enter final judgment pursuant to 42 U.S.C. §
405(g) and thereafter to close the file.
(3) The deadline to file a motion for attorney’s fees pursuant to 42 U.S.C. § 406(b)
shall be thirty (30) days after Plaintiff receives notice from the Social Security
Administration of the amount of past due benefits awarded.
(4) Upon receipt of such notice, Plaintiff shall promptly email Mr. Rudy and the
OGC attorney who prepared the Commissioner’s brief to advise that the notice has been
received.
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DONE and ORDERED in Orlando, Florida on December 12, 2016.
Copies furnished to Counsel of Record
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