Nichols v. Commissioner of Social Security

Filing 28

MEMORANDUM OF DECISION: The final decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is directed to enter judgment for Claimant and against the Commissioner, and close the case. Claimant's request for attorney fees and costs is DENIED without prejudice as premature. Signed by Magistrate Judge Daniel C. Irick on 2/7/2018. (RN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERICA JOAN NICHOLS,
Plaintiff,
v.

Case No: 6:16-cv-1819-Orl-DCI

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Erica Joan Nichols (Claimant) appeals to the District Court from a final decision of the
Commissioner of Social Security (the Commissioner) denying her applications for disability
insurance benefits and supplemental security income. Doc. 1; R. 1-6, 14, 161-64. Claimant
argued, in part, that the Administrative Law Judge (the ALJ) erred by failing to weigh the opinion
of John Papa, M.D., one of Claimant’s treating physicians. Doc. 27 at 28-31. For the reasons set
forth below, the Commissioner’s final decision is REVERSED and REMANDED.
I.

THE ALJ’S DECISION

In 2013, Claimant filed applications for disability insurance benefits and supplemental
security income. R. 14, 161-64. Claimant alleged a disability onset date of September 12, 2011.
R. 14, 161.
The ALJ issued his decision on June 12, 2015. R. 14-25. In the decision, the ALJ found
that Claimant had the following severe impairments: reflex sympathetic dystrophy, degenerative
disc disease, fibromyalgia, obesity, sleep apnea, adjustment disorder, and pain disorder. R. 16.
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) and 416.967(b).1 R. 19. Specifically,
the ALJ found as follows:
[C]laimant has the residual functional capacity to perform less than the full range
of light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant can
lift and/or carry 20 pounds occasionally and 10 pounds frequently; can stand and/or
walk for 4 hours in an 8-hour workday; can sit for 6 hours in an 8-hour workday;
can occasionally climb stairs and ramps; can never climb ladders, ropes, or
scaffolds; can frequently balance; can occasionally stoop, kneel, crouch, and crawl;
can have occasional exposure to temperature extremes; can understand and
remember simple and detailed 1, 2, and 3-step instructions and tasks; can maintain
attention, concentration, persistence, and pace for 2-hour segments of time with
customary breaks between such segments; can tolerate occasional interaction with
the public; and can tolerate occasional changes in job duties.
Id. 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. 53-54. The ALJ thus found that Claimant was capable of
performing jobs that existed in significant numbers in the national economy. R. 23-24. Therefore,
the ALJ found that Claimant was not disabled. R. 24.
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).

The

Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. §

1

“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); 416.967(b).

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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 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); 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.

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20 C.F.R. §§

404.1545(a)(1), (3); 416.945(a)(1), (3); see also 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); 416.927(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);
416.927(c)(2) (giving controlling weight to the treating physician’s opinion unless it is inconsistent

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with other substantial 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).
Claimant argued, in part, that the ALJ erred by failing to weigh, or even discuss, Dr. Papa’s
opinion that Claimant could not stand or walk for more than twenty minutes per hour. Doc. 27 at
28-31. Claimant argued that the ALJ offered no explanation for why the RFC exceeded the
limitation opined to by Dr. Papa.2 Id.
In response, the Commissioner did not argue that the ALJ weighed Dr. Papa’s opinion.
Doc. 27 at 38-46. Nor did the Commissioner argue that Dr. Papa was not a treating physician. Id.
Instead, the Commissioner appears to have argued that the ALJ was not required to weigh Dr.
Papa’s opinion because Dr. Papa’s opinion predated the alleged onset date. Id. at 39, 42-43. The
Commissioner further argued that any alleged failure to weigh Dr. Papa’s opinion was harmless
error. Id. at 42-44. The Commissioner’s arguments are without merit.
“Courts within the Eleventh Circuit have found pre-onset date evidence to be significant
so long as such evidence is: 1) within close proximity to the onset date; and 2) relevant to a
claimant’s impairments.” Garrett v. Comm’r of Soc. Sec., 6:16-cv-1516-Orl-41GJK, 2017 WL
1460733, at *3 (M.D. Fla. Mar. 15, 2017), report and recommendation adopted, 2017 WL 1438321
(Apr. 24, 2017) (citations omitted). Moreover, even when an opinion significantly predates a
claimant’s alleged onset date such that the opinion is of limited relevance, courts in this Circuit

2

The ALJ found that Claimant could “stand and/or walk for 4 hours in an 8-hour workday.” R.
19. But if Claimant were to be limited to standing or walking for no more than twenty minutes
per hour, then Claimant, at most, could stand or walk for 2.67 hours in an 8-hour workday.

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have required the ALJ to weigh the opinion. See Simpson v. Colvin, 2015 WL 139329, at *4 (N.D.
Ala. Jan. 12, 2015) (finding that the ALJ’s failure to weigh an opinion that predated the alleged
onset date by two-and-a-half years was not harmless because finding that the error was harmless
would have required the court to reweigh the evidence) (citations omitted); Hamlin v. Astrue, 3:07cv-507-J-TEM, 2008 WL 4371326, at *3-4 (M.D. Fla. Sept. 19, 2008) (finding that the ALJ erred
by failing to weigh Dr. Tan’s opinions, which predated the alleged onset date).
Here, less than two months before the alleged onset date, Dr. Papa opined that Claimant
was restricted to “[n]o standing or walking greater than 20 minutes per hour.” R. 388-94. Given
the proximity to the alleged onset date and the relevance to Claimant’s impairments, the Court
finds that Dr. Papa’s opinion was significant. As such, the Court finds that it was error for the ALJ
to fail to weigh Dr. Papa’s opinion.3
The Commissioner’s argument that the ALJ’s error was harmless is unavailing. It appears
that the Commissioner is arguing, in part, that the ALJ’s error is harmless due to the fact that Dr.
Papa’s opinion predated the alleged onset date. However, that fact, alone, is an insufficient basis
for the Court to find that the ALJ’s error was harmless. See Garrett, 2017 WL 1460733, at *3.
Further, the Commissioner’s argument that Dr. Papa’s opinion does not contradict the RFC is
without merit. If Claimant were to be limited to standing or walking for no more than twenty
minutes per hour, then Claimant would be capable of standing or walking for no more than 2.67
hours in an eight-hour workday. But the RFC provides that Claimant is capable of standing or
walking for four hours in an eight-hour workday. As such, Dr. Papa’s opinion directly contradicts

3

The Court further notes that there is nothing in the ALJ’s decision to indicate that the ALJ
considered any of Claimant’s medical records that predate the alleged onset date. R. 14-25. The
oldest medical record that the ALJ discussed was dated September 12, 2011, the same date as the
alleged onset date. R. 20.

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the RFC, and the ALJ’s failure to weigh Dr. Papa’s opinion renders it impossible for the
undersigned “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 (quoting Cowart v. Schwieker,
662 F.2d 731, 735 (11th Cir. 1981)).
Finally, to the extent that the Commissioner argued that the advice that Dr. Papa provided
contradicted Claimant’s allegations of disabling limitations, the Court notes that it cannot rely on
a post-hoc argument offered by the Commissioner on appeal. See Dempsey v. Comm’r of Soc.
Sec., 454 F. App’x 729, 733 (11th Cir. 2011) (A court will not affirm based on a post hoc rationale
that “might have supported the ALJ’s conclusion.”) (quoting Owens v. Heckler, 748 F.2d 1511,
1516 (11th Cir. 1984)). To do so would necessarily require the undersigned to reweigh the
evidence, which the undersigned declines to do. See Phillips, 357 F.3d at 1240 n.8 (11th Cir.
2004) (stating that the district court “‘may not decide the facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [Commissioner].’”) (quotation omitted).
For the foregoing reasons, the Court finds that the ALJ erred by failing to weigh Dr. Papa’s
opinion. This issue is dispositive, and, therefore, there is no need to address Claimant’s remaining
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).
IV.

CONCLUSION

Accordingly, 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);

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2.

The Clerk is directed to enter judgment for Claimant and against the
Commissioner, and close the case; and

3.

Claimant’s request for attorney fees and costs is DENIED without prejudice as
premature.

DONE and ORDERED in Orlando, Florida on February 7, 2018.

Copies furnished to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Kerry Morgan
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc.
Suite 350
6840 Carothers Parkway
Franklin, TN 37067-6538

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