Wiley 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 4/24/2018. (DWG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MARY E. WILEY,
Plaintiff,
v.

Case No: 6:17-cv-97-Orl-GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Mary Wiley (the “Claimant”) appeals to the District Court a final decision of the
Commissioner of Social Security (the “Commissioner”) denying her applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Doc. No. 1. Claimant
argues that the Administrative Law Judge (the “ALJ”) committed reversible error by: 1) failing to
state the weight given to a medical opinion from treating psychiatrist Dr. Subramaniyam
Vasudevan; 2) failing to state the weight given to a pre-onset date medical opinion from consulting
physician Dr. Krishna Vara; and 3) providing inadequate reasons for giving little weight to a
Seizures Medical Source Statement from treating physician Dr. Abe Hardoon. Doc. No. 19 at 2430. Claimant requests that the Court reverse the Commissioner’s final decision and remand the
case for further proceedings. Id. at 40. For the reasons set forth below, the Commissioner’s final
decision is REVERSED and REMANDED for further proceedings.
I.

PROCEDURAL BACKGROUND
On January 11, 2013, Claimant filed her DIB and SSI applications alleging an onset date

of January 7, 2012. R. 82. On April 3, 2013, Claimant’s applications were denied initially. R. 224,

229. On July 19, 2013, Claimant’s applications were denied upon reconsideration. R. 239, 244.
On August 9, 2013, Claimant requested a hearing before an ALJ. R. 249. On April 2, 2015,
Claimant attended a hearing before the ALJ. R. 102-148. On May 26, 2015, the ALJ issued an
unfavorable opinion finding Claimant not disabled. R. 82-94. On June 30, 2015, Claimant
requested review of the ALJ’s decision. R. 76. On September 28, 2016, the Appeals Council denied
Claimant’s request. R. 4. Claimant later filed a request for an extension of time to file an appeal to
this Court, which the Commissioner granted.1 R. 1-2. On January 20, 2017, Claimant filed this
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. See 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) (citations omitted). 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. Barnes v. Sullivan, 932 F.2d
1356, 1358 (11th Cir. 1991). 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).

1

Claimant also requested that the Appeals Council reopen the case, but it denied Claimant’s request. R. 1-3.

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III.

WEIGHING MEDICAL OPINIONS
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 F. App’x. 929, 931 (11th Cir. 2013).2 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 non-examining physician's opinion).
Absent good cause, the opinion of a treating physician must be given substantial or
considerable weight. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). However, good cause
exists to give a treating physician’s opinion less than substantial weight when the opinion is not

2

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

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bolstered by the evidence, evidence supports a contrary finding, or the opinion is conclusory or
inconsistent with the physician’s medical records. Phillips v. Barnhart, 357 F.3d 1232, 1240-41
(11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
IV.

ANALYSIS
A. Dr. Vasudevan
On May 12, 2014, Dr. Vasudevan completed a Medical Opinion Re: Ability to do Work-

Related Activities (Mental) Form. R. 742-743. Dr. Vasudevan found that Claimant is seriously
limited as to a number of mental abilities including: understanding, remembering, and carrying out
very short and simple instructions; maintaining attention for two-hour segments; working in
coordination with or proximity to others without being unduly distracted; making simple workrelated decisions; accepting instructions and responding appropriately to criticism from
supervisors; getting along with co-workers or peers without unduly distracting them or exhibiting
behavioral extremes; responding appropriately to changes in a routine work setting; and interacting
appropriately with the general public. Id. According to the form, “seriously limited” means that
the claimant has noticeable difficulty in performing a particular task from eleven to twenty percent
of the workday or workweek. R. 742.
The ALJ found that Claimant had the residual functional capacity (“RFC”) to perform less
than a full range of light work with the following mental limitations: Claimant requires simple
routine work tasks; Claimant can maintain attention and concentration for two-hour segments
during an eight-hour workday; Claimant is able to adapt to gradual changes in a routine work
environment; and Claimant can interact frequently with supervisors and co-workers, with
occasional interaction with the general public. R. 86. The ALJ mentions Dr. Vasudevan’s opinion

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when determining Claimant’s RFC, but she did not state with particularity the weight given to the
opinion and the reasons therefor. R. 90, 92.
Claimant argues that the ALJ committed reversible error by failing to state with
particularity the weight given to Dr. Vasudevan’s opinion and the reasons therefor. Doc. No. 19 at
24-25. The Commissioner does not contest that Dr. Vasudevan’s opinion is a medical opinion or
that the ALJ failed to state with particularity the weight given to that opinion. Id. at 33-35. Instead,
the Commissioner argues that the ALJ “implicitly rejected” Dr. Vasudevan’s opinion by noting a
number of normal findings regarding Claimant’s mental abilities.3 Id.
Dr. Vasudevan’s opinion is a medical opinion because it reflects his judgments regarding
what Claimant can and cannot do despite her mental impairments. Winschel, 631 F.3d at 1178-79.
Thus, the ALJ is required to state with particularity the weight given that opinion and the reasons
therefor. Id. Contrary to the Commissioner’s argument, the ALJ cannot implicitly reject or
discount a medical opinion. See McClurkin, 625 F. App’x at 962-63 (rejecting the argument that
“although the ALJ did not explicitly state his reasons for rejecting [a physician’s] report, his
decision shows that he implicitly rejected the report in favor of more credible evidence.”). While
the ALJ noted Dr. Vasudevan’s opinion when determining Claimant’s RFC, she erred by failing
to state with particularity the weight given to that opinion.4
In Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983), the Eleventh Circuit held that an
ALJ’s error is harmless if it does not affect the ALJ's conclusion. Here, the ALJ’s error is not
harmless because Dr. Vasudevan’s opinion contains mental limitations that are more restrictive

3

In support of her argument, the Commissioner cites treatment notes from Dr. Vasudevan containing normal mental
findings. See Doc. No. 19 at 33.
4

Because Dr. Vasudevan is a treating physician, the ALJ must not only state with particularity the weight given to
his opinion and the reasons therefor, but also state good cause reasons should she reject his opinion. See Phillips, 357
F.3d at 1240-41.

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than Claimant’s RFC. R. 86, 742-43. Dr. Vasudevan found that Claimant is seriously limited in:
understanding, remembering, and carrying out very short and simple instructions; maintaining
attention for two-hour segments; working in coordination with or proximity to others without being
unduly distracted; accepting instructions and responding appropriately to criticism from
supervisors; getting along with co-workers or peers without unduly distracting them or exhibiting
behavioral extremes; and responding appropriately to changes in a routine work setting. R. 74243. Claimant’s RFC, however, states that she: requires simple routine work tasks; can maintain
attention and concentration for two-hour segments; can interact frequently with co-workers and
supervisors; and is able to adapt to gradual changes in a routine work environment. R. 86. Because
Dr. Vasudevan’s opinion contains mental limitations that are more restrictive than Claimant’s
RFC, the ALJ’s error is not harmless, and thus, the case must be remanded for further proceedings.
B. Drs. Vara and Hardoon
Claimant also argues that the ALJ committed reversible error by: 1) failing to state the
weight given to a pre-onset date medical opinion from Dr. Vara; and 2) providing inadequate
reasons for giving little weight to a Seizures Medical Source Statement from Dr. Hardoon. Doc.
No. 19 at 26-30; R. 473, 986-89. The ALJ’s error with regard to Dr. Vasudevan’s opinion is
dispositive, and thus, there is no need to fully examine the medical opinions of Drs. Vara and
Hardoon. See Diorio, 721 F.2d at 729 (on remand the ALJ must reassess the entire record);
McClurkin, 625 F. App’x at 963 n. 3 (no need to analyze other issues when case must be reversed
due to other dispositive errors). The Court will only briefly address these two medical opinions.
Though his medical opinion was issued approximately a year and six months before
Claimant’s onset date, Dr. Vara opined that Claimant cannot engage in prolonged standing or
walking for more than two to three hours in an eight-hour workday. R. 473. That finding is more

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restrictive than Claimant’s RFC, which states that she can stand and walk for six hours in an eighthour workday. R. 86.
With regard to Dr. Hardoon’s Seizures Medical Source Statement, the ALJ gave little
weight to it because: 1) it was rendered during Claimant’s recovery from recent injuries; and 2)
she found that Claimant was not compliant with medical treatment. R. 92. Claimant, however, is
correct that Dr. Hardoon’s opinion was applied retroactively from July 11, 2011, approximately
four years prior to the date the opinion was issued. R. 989. That important aspect of Dr. Hardoon’s
Seizures Medical Source Statement was not addressed by the ALJ. R. 92. Plaintiff also argues that
the ALJ’s reasons for giving little weight to Dr. Hardoon’s opinion were not supported by
substantial evidence because it was never established that Claimant’s seizures were the result of
her noncompliance with treatment and because the record shows Plaintiff having difficulty
affording medications. Doc. No. 19 at 26. Because the entire record is to be reassessed on remand,
the ALJ is directed to reweigh Dr. Vara and Dr. Hardoon’s opinions.
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 April 24, 2018.

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The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
Bradley K. Boyd
Suite D
1310 W Eau Gallie Blvd
Melbourne, FL 32935
John F. Rudy, III
Suite 3200
400 N Tampa St
Tampa, FL 33602-4798
Mary Ann Sloan, Regional Chief Counsel
Dennis R. Williams, Deputy Regional Chief Counsel
Susan Kelm Story, Branch Chief
Christopher G. Harris, Assistant Regional Counsel
Office of the General Counsel, Region IV
Social Security Administration
61 Forsyth Street, S.W., Suite 20T45
Atlanta, Georgia 30303-8920
The Honorable Karen R. Jackson
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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