Czupta v. Commissioner of Social Security

Filing 20

MEMORANDUM OF DECISION: The Commissioner's final decision is REVERSED and REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is directed to enter judgment in favor of the Claimant and to close the case. Signed by Magistrate Judge Gregory J. Kelly on 11/29/2017. (DWG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JEFFREY ERNEST CZUPTA,
Plaintiff,
v.

Case No: 6:16-cv-1579-Orl-GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Jeffrey Czupta (the “Claimant”) appeals to the District Court a final decision of the
Commissioner of Social Security (the “Commissioner”) denying his application for Disability
Insurance Benefits (“DIB”). Doc. No. 1. Claimant argues that the Administrative Law Judge (the
“ALJ”) committed reversible error by: 1) failing to weigh a treatment note from Dr. Glenn I.
Kolluri; and 2) applying improper legal standards when determining Claimant’s credibility. Doc.
No. 19 at 9-10, 14-17. Claimant requests that the Commissioner’s decision be reversed and
remanded for further proceedings. Id. at 20. For the reasons set forth below, the Commissioner’s
final decision is REVERSED and REMANDED for further proceedings.
I.

PROCEDURAL BACKGROUND
On June 25, 2012, Claimant filed his DIB application alleging an onset date of August 15,

2011. R. 175. On October 15, 2012, Claimant’s application was denied initially. R. 84. On May
17, 2013, Claimant’s application was denied upon reconsideration. R. 91. On July 1, 2013,
Claimant filed a request for hearing. R. 97. On February 17, 2015, Claimant attended a hearing
before the ALJ. R. 30-56. On April 24, 2015, the ALJ issued an unfavorable decision. R. 11-23.

On May 12, 2015, Claimant requested review of the ALJ’s decision. R. 5-7. On August 1, 2016,
the Appeals Council denied Claimant’s request. R. 1-4. On September 9, 2016, Claimant filed his
appeal. Doc. No. 1.
II.

STANDARD OF REVIEW
The Social Security regulations delineate a five-step sequential evaluation process for

determining whether a claimant is disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)
(citing 20 C.F.R. § 404.1520). 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 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) (citations and quotations omitted).
III.

THE ALJ’S DECISION
At step two, the ALJ found that Claimant had severe impairments of benign brain tumors

and migraine headaches. R. 13. Central to this case is the origin of Claimant’s headaches. As noted

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by the ALJ, the record contains a number of medical opinions as to whether Claimant’s headaches
are caused by his brain tumor. A September 14, 2011 treatment note from Dr. Rohit Khanna states
that Claimant’s MRI revealed “a mass in the right ambient and quadrigeminal cistern with some
mild mass effect in the brain stem.” R. 288. Dr. Khanna, however, was “not convinced that
[Claimant’s] headaches are related to this tumor although some of the symptoms could be from
this mild mass effect that he has.” R. 290. A September 29, 2011 treatment note from Dr. William
Friedman states that Claimant’s brain tumor “could very well be causing his severe headaches.”
R. 283. A May 16, 2012 treatment note from Dr. Kolluri states that Claimant’s “headaches are
intractable, chronic, and not responding to any of the usual medications …” R. 299. Dr. Kolluri
stated: “I think [Claimant] needs to see a headache specialist at Shands Hospital in Gainesville for
evaluation …” Id. Dr. Kolluri referred Claimant to a neurologist in Gainesville, Florida, Dr.
Guangbin Xia, who in a February 22, 2013 treatment note stated that it is likely “[Claimant’s]
tumor is contributing to the headache.” R. 378. Finally, in a January 23, 2015 headaches medical
source statement, Dr. Dina Doolin, D.O. and Beth Patel, ARNP found that Claimant had severe
headaches which are caused by an epidermoid tumor. R. 489.
At step four, the ALJ found that Claimant had the residual functional capacity (“RFC”) to
perform light work with certain exertional and nonexertional limitations. R. 15. The ALJ did not
state the weight given to Dr. Kolluri’s treatment note and the reasons therefor. R. 18. Instead, the
ALJ found that the treatment note noted “normal neurological findings and indicate[d] only
subjective complaints of ongoing headaches.” Id. The ALJ also gave significant weight to the
opinions of state agency non-examining reviewing physicians. R. 21.
The ALJ also made a determination on Claimant’s credibility, finding that Claimant’s
“medically determinable impairments could reasonably be expected to cause the alleged

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symptoms; however, [Claimant’s] statements concerning the intensity, persistence, and limiting
effects of these symptoms are not entirely credible …” R. 16. The ALJ gave the following reasons
for her finding. First, other than symptom management, no further treatment had been
recommended. R. 21. Second, Claimant’s conditions appear to be satisfactorily managed with pain
medications. Id. Third, the objective medical evidence does not suggest that Claimant is disabled
and cannot work. Id. When making her third finding, the ALJ stated that “no specialist has
confirmed that his tumor is causing [Claimant’s] headaches.” Id. Fourth, Claimant’s activities of
daily living are inconsistent with the severity of his alleged headaches. Id. Finally, “[d]espite being
told that opiate medications could be the source of his issues by [Dr. Kolluri], [Claimant] did return
to taking these type[s] of medications when offered by [Dr. Lee].” Id.
IV.

ANALYSIS
A. Dr. Kolluri
On May 16, 2012, Dr. Kolluri completed a treatment note stating that Claimant’s headaches

are “intractable, chronic, and not responding to any of the usual medications.” R. 299. The
treatment note states that Dr. Kolluri has no further recommendations for Claimant’s headaches
other than having Claimant see a headache specialist. Id. At step four, the ALJ did not state the
weight given to Dr. Kolluri’s treatment note and the reasons therefor. R. 18. Instead, the ALJ found
that Dr. Kolluri’s treatment note noted “normal neurological findings” and indicated “only
subjective complaints of ongoing headaches …” Id. Claimant argues that the ALJ committed
reversible error by failing to weigh Dr. Kolluri’s treatment note. Doc. No. 19 at 9-10. In response,
the Commissioner questions whether Dr. Kolluri’s treatment note is a medical opinion. Id. at 12.
Furthermore, the Commissioner argues that the ALJ’s error is harmless because Plaintiff has not
identified any limitation that was not included in Claimant’s RFC. Id. at 11.

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Weighing the opinions and findings of treating, examining, and non-examining physicians
is an integral part in determining whether a claimant is disabled. In cases involving an ALJ’s
handling of medical opinions, “substantial-evidence review . . . involves some intricacy.” Gaskin
v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 931 (11th Cir. Aug. 14, 2013). 1 In Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011), the Eleventh Circuit 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.
Id. at 1178-79 (citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); 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.” Winschel, 631 F.3d at 1179 (citations omitted). See also MacGregor v.
Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (finding that a failure to state with particularity the
weight given to medical opinions and the reasons therefor constitutes reversible error). An ALJ
may not “implicitly discount” or ignore any medical opinion. Winschel, 631 F.3d at 1178-79;
MacGregor, 786 F.2d at 1053; McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 962-63 (11th
Cir. 2015) (finding that it is reversible error for the ALJ to fail to state weight given to a nonexamining physician’s opinion).
Contrary to the ALJ’s characterization, Dr. Kolluri’s treatment note contains diagnoses and
judgments about the nature and severity of Claimant’s headaches. R. 299. Thus, Dr. Kolluri’s
treatment note is a medical opinion, and the ALJ erred by not stating the weight given to it and the

1

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

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reasons therefor. Winschel, 631 F.3d at 1178-79. In Diorio v. Heckler, 721 F.2d 726, 728 (11th
Cir. 1983), the Eleventh Circuit held that an ALJ's misstatement of fact is harmless error if it does
not affect the ALJ's conclusion. See also Caldwell v. Barnhart, 261 Fed. Appx. 188, 190 (11th Cir.
2008) (“[W]hen an incorrect application of the regulations results in harmless error because the
correct application would not contradict the ALJ's ultimate findings, the ALJ's decision will
stand”). Dr. Kolluri’s treatment note states that Claimant’s headaches are “intractable, chronic, and
not responding to any of the usual medications.” R. 299. The treatment note also states that Dr.
Kolluri has no further recommendations for Claimant’s headaches other than having Claimant see
a headache specialist. Id. The ALJ’s error is not harmless because the Dr. Kolluri’s findings
directly contradict a portion of the ALJ’s credibility determination, namely her finding that
Claimant’s “conditions appear to be satisfactorily controlled by pain medications.” R. 21. Thus,
because the ALJ failed to state the weight given to Dr. Kolluri’s treatment note and the reasons
therefor, the Court finds that the case should be remanded for further proceedings.
B. Claimant’s Credibility
The ALJ found that Claimant’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, [Claimant’s] statements concerning the
intensity, persistence, and limiting effects of these symptoms are not entirely credible.” R. 16. The
ALJ found that: 1) other than symptom management, no further treatment had been recommended;
2) Claimant’s conditions appear to be satisfactorily managed with pain medications; 3) the
objective medical evidence does not suggest that Claimant is disabled and cannot work; 4)
Claimant’s activities of daily living are inconsistent with the severity of his alleged headaches; and
5) “[d]espite being told that opiate medications could be the source of his issues by [Dr. Kolluri],
[Claimant] did return to taking these type[s] of medications when offered by [Dr. Lee].” R. 21.

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Claimant argues that the ALJ erred in making her credibility determination because: 1) record
evidence shows that Claimant’s headaches are not satisfactorily managed by pain medications; 2)
the ALJ improperly considered Claimant’s activities of daily living; and 3) the ALJ improperly
considered Claimant’s use of opiate medications. Doc. No. 19 at 15-17.
In the Eleventh Circuit, subjective complaints of pain are governed by a two-part “pain
standard” that applies when a claimant attempts to establish disability through subjective
symptoms. By this standard, there must be: 1) evidence of an underlying medical condition or
impairment; and 2) either objective medical evidence that confirms the severity of the alleged
symptoms arising from the condition or evidence that the objectively determined medical
condition is of such severity that it can be reasonably expected to give rise to the alleged pain. Holt
v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler, 782 F.2d 1551, 1553
(11th Cir. 1986)). “20 C.F.R. § 404.1529 provides that once such an impairment is established, all
evidence about the intensity, persistence, and functionally limiting effects of pain or other
symptoms must be considered in addition to the medical signs and laboratory findings in deciding
the issue of disability.” Foote, 67 F.3d at 1561; 20 C.F.R. § 404.1529. Thus, once the first part of
the pain standard is satisfied, the issue becomes one of credibility.
A claimant's subjective testimony supported by medical evidence that satisfies the standard
is itself sufficient to support a finding of disability. Id. “If the ALJ decides not to credit a claimant's
testimony as to her pain, [the ALJ] must articulate explicit and adequate reasons for doing so.” Id.
at 1561–62. A reviewing court will not disturb a clearly articulated credibility determination based
on substantial supporting evidence in the record. Id. at 1562. The lack of a sufficiently explicit
credibility determination may be grounds for remand if credibility is critical to the outcome of the
case. Id.

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1) Claimant’s Headaches
The ALJ found Claimant’s statements regarding his headaches not credible because his
“conditions appear to be satisfactorily managed with pain medications.” R. 21. Dr. Kolluri’s
treatment note, however, states that “headaches are intractable, chronic, and not responding to any
of the usual medications …” R. 299. As noted above, the ALJ failed to weigh Dr. Kolluri’s
treatment note, which is critical to the issue of whether Claimant’s headaches are satisfactorily
managed with pain medications. Id.; See also supra pp. 4-6. Thus, because the ALJ failed to weigh
a medical opinion that conflicts with the ALJ’s finding that Claimant’s “conditions appear to be
satisfactorily managed with pain medications,” the Court finds that this portion of the ALJ’s
credibility determination is not supported by substantial evidence.
The ALJ also found that “the objective evidence does not suggest [that Claimant] is
disabled and cannot work.” R. 21. When making this finding, the ALJ stated that “no specialist
has confirmed that [Claimant’s] tumor is causing his headaches.” Id. Dr. Kolluri, however, referred
Claimant to Dr. Xia, a neurologist who stated that it is likely “[Claimant’s] tumor is contributing
to the headache.” R. 378. The ALJ did not state the weight given to Dr. Xia’s treatment note and
the reasons therefor or provide any other explanation for making her statement despite Dr. Xia’s
finding. R. 21. Thus, the ALJ misstated the record when determining Claimant’s credibility
because Dr. Xia, a neurologist, found that Claimant’s tumor is likely the cause of his headaches.
R. 378. Furthermore, the ALJ’s misstatement is not harmless because the ALJ used the
misstatement to support her credibility finding that the objective medical evidence does not suggest
that Claimant is disabled and cannot work. R. 21. Thus, because the ALJ misstated the record when
supporting her credibility finding, the Court finds that this portion of the ALJ’s credibility
determination is not supported by substantial evidence.

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2) Opiate Medications
On September 21, 2011, Claimant presented to Dr. Kolluri with complaints of headaches.
R. 309. Dr. Kolluri found that Claimant’s chronic daily headaches are most likely due to his use
of ibuprofen and narcotics. R. 310. Dr. Kolluri recommended that Claimant stop taking ibuprofen
and narcotics “at this time.” Id. More than two years later, on September 27, 2013, Claimant
presented to Dr. Tse Lee with complaints of headaches. R. 419. Dr. Lee diagnosed Claimant with
a cervical sympathetic nerve injury and prescribed a fentanyl patch for treatment. R. 421. On
December 2, 2013, Claimant presented to Dr. Lee with continued complaints of headaches. R. 416.
Claimant stated that he stopped taking his fentanyl patch because it made him nauseous. Id. Dr.
Lee prescribed Percocet, an opiate medication, for Claimant’s treatment of his cervical
sympathetic nerve injury. R. 418.
The ALJ found Claimant’s statements regarding his headaches not credible because
“[d]espite being told that opiate medications could be a source of his issues by [Dr. Kolluri], he
did return to taking these type[s] of medications when offered by [Dr. Lee].” R. 21. Thus, the ALJ
found Claimant’s statements regarding his headaches not credible because he failed to comply
with Dr. Kolluri’s recommendation to discontinue narcotics. Id. It is well-established that “where
compliance with a prescribed course of treatment is at issue, the ALJ has a duty to fully investigate
possible reasons for the alleged noncompliance.” Dinkins v. Astrue, No. 3:11-cv-762-TEM, 2012
WL 1987307, at *6 (M.D. Ala. Jun 1, 2012) (citations omitted). Furthermore, “[i]n order to deny
benefits on the ground of failure to follow prescribed treatment, the ALJ must find that had the
claimant followed the prescribed treatment, the claimant’s ability to work would have been
restored.” Stewart v. Astrue, 551 F.Supp.2d 1308, 1322 (N.D. Fla. 2008) (citing Dawkins v. Bowen,
848 F. F.2d 1211, 1213 (11th Cir. 1988)). Here, Dr. Kolluri found that Claimant’s chronic daily

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headaches are most likely due to his use of ibuprofen and narcotics and recommended that he
discontinue his use of the same. R. 309. Claimant then presented to Dr. Lee with complaints of
headaches more than two years after Dr. Kolluri’s recommendation. 309-310, 416-418. Thus, it
appears that Claimant’s discontinued use of narcotics did not resolve Claimant’s headaches. The
ALJ, however, made no inquiry as to whether Claimant’s discontinuance of narcotics was effective
in treating Claimant’s headaches, and the ALJ made no finding that Claimant’s compliance with
Dr. Kolluri’s recommendation would restore Claimant’s ability to work. R. 11-23, 30-56. See also
Dinkins, 2012 WL 1987307 at *6; Stewart, 551 F.Supp.2d at 1322. Considering the foregoing, the
Court finds that the portion of the ALJ’s credibility determination regarding Claimant’s
noncompliance with Dr. Kolluri’s recommendation is not supported by substantial evidence.2
The Court notes that Claimant challenges only certain portions of the ALJ’s credibility
determination. Doc. No. 19 at 15-17. While some of the ALJ's reasons supporting her credibility
determination may be supported by substantial evidence, two critical portions are not, and thus
remand is warranted. Wolfe v. Comm'r of Soc. Sec., No. 6:11–cv–1316–ORL–DAB, 2012 WL
3264916, at *6 (M.D. Fla. Aug. 10, 2012); Himes v. Comm'r of Soc. Sec. 585 F. App'x 758, 767
(11th Cir. 2014) (finding reversible error based on an ALJ's partially erroneous credibility
rationale). Accordingly, the Court finds that the case should be remanded for further proceedings.

Because the aforementioned issues are dispositive, there is no need to address Claimant’s other 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). Nevertheless, the Court notes that when considering Claimant’s
activities of daily living, the ALJ considered activities of short duration, such as driving, performing basic housework,
shopping, cooking, watching television, and using a computer. R. 21. Courts have held that is improper for the ALJ
to consider basic activities of daily living that are of short duration. See Lewis v. Callahan, 125 F.3d 1436, 1441 (11th
Cir. 1997) (“[n]or do we believe that participation in everyday activities of short duration, such as housework ...
disqualifies a claimant for disability...”). See also Wolfe v. Comm’r of Soc. Sec., No. 6:11–cv–1316–ORL–DAB, 2012
WL 3264916, at *6 (M.D. Fla. Aug. 10, 2012) (“while an ALJ can consider reports of vigorous daily activities as
evidence that a claimant is capable of such activity, no vigorous activity is identified here”). Thus, on remand, the
ALJ should determine whether Claimant engages in any vigorous daily living activities that conflict with Claimant’s
alleged impairments.
2

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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 for
further proceedings pursuant to sentence four of Section 405(g); and
2. The Clerk is directed to award judgment in favor of Claimant and to close the case.
DONE and ORDERED in Orlando, Florida on November 29, 2017.

The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
Richard A. Culbertson
Suite E
3200 Corrine Drive
Orlando, FL 32803
John F. Rudy, III
Suite 3200
400 N Tampa St
Tampa, FL 33602-4798
Office of the General Counsel, Region IV
Social Security Administration
61 Forsyth Street, S.W., Suite 20T45
Atlanta, Georgia 30303-8920
The Honorable Teresa J. McGarry
Administrative Law Judge
c/o Office of Disability Adjudication and Review
Desoto Building #400
8880 Freedom Crossing
Jacksonville, FL 32256-1224

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