Coad v. Commissioner of Social Security

Filing 17

MEMORANDUM OF DECISION, It is ORDERED that the Final decision of the Commissioner is AFFIRMED. The Clerk is directed to enter judgment in favor of the Commissioner and close the case. Signed by Magistrate Judge Daniel C. Irick on 6/8/2017. (RN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MARIAN COAD,
Plaintiff,
v.

Case No: 6:16-cv-1371-Orl-DCI

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Marian Coad (Claimant) appeals to the District Court from a final decision of the
Commissioner of Social Security denying her application for disability insurance benefits. Doc.
1; R. 1-4, 162-65. Claimant argued that the Administrative Law Judge (the ALJ) erred by: 1)
failing to apply the correct legal standards to the opinion of Bryan H. Heath, M.D.; and 2) failing
to apply the correct legal standards to the opinion of Michael D. Kohen, M.D. Doc. 16 at 16-19,
22-25. For the reasons set forth below, the Commissioner’s final decision is AFFIRMED.
I.

THE ALJ’S DECISION

In October 2012, Claimant filed an application for disability insurance benefits. R. 16265. Claimant alleged a disability onset date of March 25, 2008. R. 13, 162. Claimant’s date last
insured was December 31, 2013. R. 15.
The ALJ issued her decision on February 27, 2015. R. 13-22. In her decision, the ALJ
found that Claimant had the following severe impairments: disorders of the spine, hypertension,
diabetes

mellitus,

obesity,

history

of

fibromyalgia,

HLA-B27,

and

right

ankle

tendinosis/tenosynovitis. R. 15. The ALJ also found that Claimant had the following non-severe

impairments: irritable bowel syndrome, history of left ankle surgery, affective disorder, and
anxiety related disorders. Id.
The ALJ found that Claimant had a residual functional capacity (RFC) to perform less than
a full range of light work as defined by 20 C.F.R. § 404.1567(b).1 R. 17. Specifically, the ALJ
found as follows:
[T]hrough the date last insured, the claimant had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except with no more than
frequent climbing of ramps and stairs, stooping, kneeling, crouching, and crawling;
no more than occasional climbing of ladders, ropes and scaffolds; and no
concentrated exposure to vibration or hazards (machinery, heights, etc.).
R. 17. The ALJ posed a hypothetical question to the vocational expert (VE) that was consistent
with the foregoing RFC determination, and the VE testified that Claimant was capable of
performing jobs in the national economy. R. 45-46. The ALJ thus found that Claimant was
capable of performing jobs that existed in significant numbers in the national economy. R. 21-22.
Therefore, the ALJ found that Claimant was not disabled between the alleged onset date and the
date last insured. R. 22.
II.

STANDARD OF REVIEW

“In Social Security appeals, [the 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) (citations omitted).

1

The

“Light work involves 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. If someone can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for
long periods of time.” 20 C.F.R. § 404.1567(b).

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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
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

At step four of the sequential evaluation process, the ALJ assesses the claimant’s residual
functional capacity (RFC) and ability to perform past relevant work. Phillips, 357 F.3d at 1238.
“The residual functional capacity 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-examining medical sources. 20

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C.F.R. § 404.1545(a)(1), (3); Rosario v. Comm’r of Soc. Sec., 877 F. Supp. 2d 1254, 1265 (M.D.
Fla. 2012).
The weighing of treating, examining, and non-examining physicians’ opinions is an
integral part of steps four and five of the sequential evaluation process. In Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176 (11th Cir. 2011), the Eleventh Circuit stated that “‘Medical opinions are
statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s] impairment(s), including [the
claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental restrictions.’” Id. at 1178-79 (quoting 20
C.F.R. § 404.1527(a)(2)) (alterations in original). “[T]he ALJ must state with particularity the
weight given to different medical opinions and the reasons therefor.” Id at 1179 (citing Sharfarz
v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). “In the absence of 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. (quoting Cowart v. Schwieker, 662 F.2d 731,
735 (11th Cir. 1981)).
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. Winschel, 631 F.3d at 1179; see also 20 C.F.R. § 404.1527(c)(2) (giving
controlling weight to the treating physician’s opinion unless it is inconsistent with other substantial

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evidence). “Good 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.” Winschel, 631 F.3d at 1179
(quotation marks omitted).
A. Opinion of Bryan H. Heath, M.D.
Claimant argued that the ALJ failed to weigh Dr. Heath’s purported opinion that
Claimant’s “condition is most consistent with a diagnosis of Irritable Bowel Syndrome for which
she is on medical therapy.” Doc. 16 at 16-19; R. 775. But this is not an opinion that the ALJ must
weigh because it is not a statement reflecting Dr. Heath’s judgment about the nature and severity
of Claimant’s impairment. See 20 C.F.R. § 404.1527(a)(2); Tavarez v. Comm’r of Soc. Sec., 638
Fed. Appx. 814, 846 (11th Cir. 2016) (“Medical opinions are statements from physicians . . . that
reflect judgments about the nature and severity of the claimant’s impairment.”); Winschel, 631
F.3d at 1178-79. Rather, this statement simply diagnoses Claimant with Irritable Bowel Syndrome
(IBS). In this statement, Dr. Heath does not offer any opinions regarding what Claimant can still
do despite her IBS, and does not identify any specific physical or mental restrictions caused by her
IBS.
Even assuming that Dr. Heath’s statement was an opinion that needed to be explicitly
weighed, Claimant’s argument is without merit. The ALJ specifically found that Claimant suffered
from IBS.2 R. 15. This finding was consistent with Dr. Heath’s purported opinion.3 Id. Further,

2

The ALJ also noted that Claimant testified to experiencing diarrhea, and that Dr. Heath stated
that Claimant’s condition was most consistent with IBS. R. 17, 20.

3

Claimant appears to have argued that the ALJ implicitly rejected Dr. Heath’s statement by finding
that Claimant’s IBS was not a severe impairment. Doc. 16 at 17-18. But Dr. Heath did not
comment on the severity of Claimant’s IBS. R. 775. Dr. Heath only commented on the fact that
Claimant’s condition was most consistent with a diagnosis of IBS. Id.

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Claimant offered no argument to suggest that Dr. Heath’s so-called opinion directly contradicted
the ALJ’s RFC determination, and the Court does not find that it did so. Accordingly, the ALJ’s
failure to explicitly weigh Dr. Heath’s statement was harmless error. See, e.g., 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); Caldwell
v. Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008) (per curiam) (similar).
Claimant also argued that the ALJ erred by failing “to provide any reasons as to why she
found [Claimant’s] testimony regarding her incontinence and diarrhea not credible,” and erred by
“failing to account for [Claimant’s] need to have ready access to a bathroom and take unscheduled
breaks in the residual functional capacity assessment and hypothetical questions to the vocations
expert.” However, Claimant raised these issues in a perfunctory manner, and failed to offer any
arguments in support of her position.4 Accordingly, the Court finds that Claimant waived these
issues. See, e.g., Jacobus v. Comm’r of Soc. Sec., No. 15-14609, 2016 WL 6080607, at *3 n.2
(11th Cir. Oct. 18, 2016) (stating that claimant’s perfunctory argument was arguably abandoned);
Gombash v. Comm’r of Soc. Sec., 566 Fed. App’x. 857, 858 n.1 (11th Cir. 2014) (stating that the
issue was not properly presented on appeal where claimant provided no supporting argument);
NLRB 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.”); Gaskey v. Colvin, No. 4:12-CV-3833-AKK, 2014 WL 4809410, at *7
(N.D. Ala. Sept. 26, 2014) (refusing to consider claimant’s argument when claimant failed to
explain how the evidence undermined the ALJ’s decision) (citing Singh v. U.S. Atty. Gen, 561 F.3d

4

Claimant argued, without support, that diarrhea and incontinence was “obviously” more than a
minimal limitation and would require ready access to a bathroom and unscheduled breaks. Doc.
16 at 19.

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1275, 1278 (11th Cir. 2009) (“[A]n appellant’s simply stating that an issue exists, without further
argument or discussion, constitutes abandonment of that issue and precludes our considering the
issue on appeal.”)).
Regardless, upon review of the record, the Court finds that the ALJ clearly articulated her
credibility finding, and that her credibility finding was supported by substantial evidence. See
Foote, 67 F.3d at 1562 (“A clearly articulated credibility finding with substantial supporting
evidence in the record will not be disturbed by a reviewing court.”). Further, substantial evidence
supported the ALJ’s decision not to include in the RFC determination Claimant’s purported need
to have ready access to a bathroom and take unscheduled breaks.
For the foregoing reasons, the Court rejects Claimant’s first assignment of error.
B. Opinion of Michael D. Kohen, M.D.
On January 8, 2013, Dr. Kohen opined that Claimant suffered from significant physical
limitations. R. 433-35. These physical limitations, if accepted as true, would have contradicted
the ALJ’s RFC determination. R. 17, 433-35. But the ALJ did not accept these physical limitations
as true:
No significant weight is given to this opinion as it is not supported by Dr. Kohen’s
treatment records reflecting essentially normal findings, other than subjective
complaints of pain and tenderness, and is far in excess of the objective medical
findings. The claimant essentially had the same symptoms of tenderness back in
1981, but was able to work at SGA levels and care for a 14-month old child.
R. 19.
Claimant addressed the two sentences compromising the above-quoted language from the
ALJ as two, separate reasons for rejecting Dr. Kohen’s opinions, and argued that the first reason
given by the ALJ for rejecting Dr. Kohen’s opinion was conclusory because the ALJ purportedly
failed to cite to any evidence when rejecting Dr. Kohen’s opinion. Doc. 16 at 24-25. Claimant

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further argued that Dr. Kohen conducted physical examinations that revealed findings that
supported his opinion, and that the ALJ’s first reason for rejecting Dr. Kohen’s opinion was not
supported by substantial evidence. Id. Claimant then argued that the ALJ’s “second” reason for
rejecting the Dr. Kohen’s opinion – the statement contained within the second sentence of the
quoted language – was not supported by substantial evidence. Doc. 16 at 25. Claimant further
argued that the ALJ improperly relied on medical records from 1981 to reject Dr. Kohen’s opinion.
Id. Claimant did not cite to any law or provide any argument in support of her position that the
ALJ improperly relied on medical records from 1981. Id.
Upon review, the Court finds that substantial evidence supported the ALJ’s reasons for
rejecting Dr. Kohen’s opinion. As an initial matter, the undersigned interprets the quoted language
(R. 19, and supra), comprised of two sentences, as one cohesive statement concerning the ALJ’s
reasons for rejecting Dr. Kohen’s opinion; not, as Claimant asserts, as two, separate bases for
rejection that can be attacked independently on review. To the contrary, a plain reading of the
ALJ’s statement, in context, leads to the natural conclusion that the first sentence is an overarching
statement of rejection and the reasons therefor, and the second sentence is simply a specific
example of what is set forth in the first sentence.
Regardless, the ALJ provided specific reasons for why she found that Dr. Kohen’s opinion
was inconsistent with his treatment records – that Dr. Kohen’s treatment records reflected
essentially normal findings other than subjective complaints of pain and tenderness, and that Dr.
Kohen’s opinion was far in excess of the objective medical findings. R. 19. Contrary to Claimant’s
argument that the ALJ failed to cite to any evidence in support, the ALJ noted in her decision that
treatment notes from Dr. Kohen revealed “full 5/5 muscle strength throughout,” and that Claimant

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exhibited normal gait, station, and muscle tone.5 R. 18. The ALJ also noted that an October 11,
2013 office note from Dr. Kohen revealed that taking Enbrel had improved Claimant’s condition
until Claimant “trimmed her outdoor bushes with a clipper then carried a heavy beach bag onto an
airplane and hit her elbow while traveling.” R. 20, 660. In addition, the ALJ noted a large amount
of objective medical evidence supporting her position that Dr. Kohen’s opinion was far in excess
of the objective medical findings.6 R. 18-20. And upon independent review of the record, the
Court finds substantial evidence supporting the ALJ’s first reason for rejecting Dr. Kohen’s
opinion.7 R. 273, 275, 278, 381-86, 401-07, 415-26, 438-48, 454-56, 461-65, 473, 495, 498, 50206, 519-21, 537-44, 595-96, 633.
Further, as to the second sentence in the ALJ’s statement rejecting Dr. Kohen’s opinions,
Claimant’s medical records from 1981 indicated that she was suffering from some similar medical

5

The Court notes that some of Dr. Kohen’s records during the relevant time period revealed that
Claimant had a limp; however, the majority of Dr. Kohen’s records revealed normal gait and
station. R. 416, 420, 421, 423, 455, 520, 539, 543, 588, 661.
6

The ALJ noted that various doctors’ medical records revealed normal gait and station without
assistive devices; adequate sensation, muscle strength, and tone; normal mood and affect; mild
degenerative changes in upper lumbar spine; mild scoliosis; mild bulging discs that were noted to
be common and non-severe; no clinical instability in the left ankle; no major pathology on MRI or
X-ray; full range of motion in the right ankle; normal x-ray of Claimant’s right ankle, that
Claimant’s biggest problem appeared to be deconditioning; and that physical therapy and
strengthening exercises helped Claimant’s back discomfort. R. 18-20.
7

The Court notes that it interprets the ALJ’s statement – that Dr. Kohen’s opinion was far in excess
of the objective medical evidence – to refer to all of the objective medical evidence, not just the
objective medical evidence contained within Dr. Kohen’s records. Regardless, even assuming that
the ALJ’s statement referred only to the objective medical evidence contained within Dr. Kohen’s
records, the Court finds that there is substantial evidence supporting the ALJ’s statement, as the
objective medical evidence contained within Dr. Kohen’s records generally revealed essentially
normal objective medical findings other than some apparently minor issues, such as decreased
inversion, eversion, and flexion in the left lower extremity. R. 415-26, 454-56, 519-21, 538-44.

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conditions prior to her alleged onset date, yet was able to work.8 R. 756-73. The Court finds that
the ALJ’s statement concerning the 1981 records is simply an example of a specific reason for
rejecting Dr. Kohen’s opinion, and does lend some support to the ALJ’s overarching statement.9
Regardless, the ALJ’s statement in the first sentence rejecting Dr. Kohen’s opinion was sufficient
good cause on its own, even if the Court were to find that the ALJ’s statement in the second
sentence was somehow insufficient or inappropriate as a basis to reject Dr. Kohen’s opinions.
For the foregoing reasons, the Court rejects Claimant’s second assignment of error.
IV.

CONCLUSION

For the reasons stated above, it is ORDERED that the Court:
1.

The final decision of the Commissioner is AFFIRMED.

2.

The Clerk is directed to enter judgment in favor of the Commissioner and close
the case.

8

Claimant’s medical records from 1981 indicated that she had constant low back and right hip
pain that was tender to the touch, and that there were days where she could not turn. R. 763. The
medical records from 1981 further indicated that Claimant was positive for HLA-B27, that she had
ankylosing spondylitis, and that Claimant may have had an underlying variant of rheumatoid type
arthritis. R. 763, 769.
9

As the Court previously noted, Claimant failed to offer any law or argument in support of her
position that it was improper for the ALJ to consider Claimant’s medical records from 1981, and
has thus waived this argument. See, e.g., Jacobus, 2016 WL 6080607, at *3 n.2 (stating that
claimant’s perfunctory argument was arguably abandoned); Gombash, 566 Fed. App’x. at 858 n.1
(stating that the issue was not properly presented on appeal where claimant provided no supporting
argument). Regardless, even assuming that Claimant had not waived this argument, the Court
does not find that it was improper for the ALJ to mention these records.

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DONE AND ORDERED in Orlando, Florida on June 8, 2017.

Copies furnished to:

Counsel of Record
Unrepresented Parties
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Kelley Fitzgerald
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Office
Desoto Bldg., Suite 400
8880 Freedom Crossing Trail
Jacksonville, Florida 32256-1224

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