Thompson v. Commissioner of Social Security

Filing 22

MEMORANDUM OF DECISION. The Commissioner's final decision is REVERSED and REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. section 405(g). Signed by Magistrate Judge Daniel C. Irick on 3/8/2019. (JET)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHRISTOPHER M. THOMPSON,
Plaintiff,
v.

Case No: 6:18-cv-249-Orl-DCI

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Christopher M. Thompson (Claimant) appeals to the District Court from a final decision
of the Commissioner of Social Security (the Commissioner) denying his applications for disability
insurance benefits (DIB) and supplemental security income (SSI). Doc. 1; R. 1-6, 185-96.
Claimant argued that the Administrative Law Judge (the ALJ) erred by: 1) failing to properly
weigh the medical opinion of Dr. Thu, and 2) failing to properly evaluate Claimant’s subjective
complaints. Doc. 21 at 11, 27. For the reasons set forth below, the Commissioner’s final decision
is REVERSED and REMANDED.
I.

THE ALJ’S DECISION

Claimant filed an application for DIB in 2014 and an application for SSI in 2015. R. 18596. Claimant alleged a disability onset date of March 27, 2013. R. 185, 189.
The ALJ issued his decision on May 3, 2017. R. 12-23. In the decision, the ALJ found that
Claimant had the following severe impairments: asthma, recurrent deep vein thrombosis,
hypertension, degenerative disc disease of the lumbar spine, hernia, pulmonary embolism, and
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obesity. R. 14. The ALJ found that Claimant’s impairments, or combination thereof, did not meet
or medically equal the severity of one of the listed impairments. R. 14-15. The ALJ found that
Claimant had a residual functional capacity (RFC) to perform sedentary work.1 R. 16. Specifically,
the ALJ found as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a range of sedentary work
as defined in 20 CFR 404.1567(a) and 416.967(a), or work requiring lifting and/or
carrying 20 pounds occasionally and 10 pounds frequently, standing and walking
in combination up to two hours a day, and sitting 6 hours in an 8-hour workday.
The claimant may shift position between sitting and standing as frequently as every
half hour without loss of productivity. The claimant may never climb ladders, ropes,
or scaffolds, and may occasionally climb ramps or stairs. The claimant may
occasionally balance, stoop, kneel, crouch, and crawl. The claimant may not be
exposed to hazards (e.g. dangerous machinery, unprotected heights). The claimant
should avoid concentrated exposure to pulmonary irritants (e.g. fumes, odors, dusts,
gases, poor ventilation), and to extreme cold weather or temperatures. The claimant
may perform work in environments with no more than moderate noise.
R. 16. 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. 22, 53-56. The ALJ thus found that Claimant was
capable of performing jobs that existed in significant numbers in the national economy. R. 22.
Therefore, the ALJ found that Claimant was “not disabled.” 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). The

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“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).
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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 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

Claimant argues that the ALJ erred by assigning little weight to the opinion of Nurse Lu
and by not considering the opinion of Dr. Thu. Doc. 21 at 14-18. Further, Claimant argues that the
ALJ erred in determining that Claimant’s own complaints were “not entirely consistent with the
medical evidence and other evidence in the record . . . .” Id. at 27. The Commissioner argues that
the ALJ did not err by assigning little weight to the opinion of Nurse Lu and that the omission of
Dr. Thu’s opinion was harmless. Id. at 21-27. The Commissioner also argues that Claimant’s
testimony is inconsistent with the evidence of record. Id. at 30-33.

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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. 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. Schweiker, 662 F.2d 731,
735 (11th Cir. 1981)).

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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).
“The opinion of a treating physician . . . ‘must be given substantial or considerable weight
unless ‘good cause’ is shown to the contrary.’” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th
Cir. 2004) (quoting Lewis, 125 F.3d at 1440). “‘[G]ood 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.” Id. at 1241 (citing Lewis, 125 F.3d at 1440). “When electing to disregard the opinion of
a treating physician, the ALJ must clearly articulate its reasons.” Id.
In February 2017, Nurse Lu and Dr. Thu each signed a Physical Restrictions Evaluation
with respect to Claimant. R. 801-04. The ALJ considered the evaluation as follows:
In addition, the undersigned has considered the Medical Source Statement
completed on February 9, 2017 by Estrellita Lu, ARNP2 in accordance with Social
Security Ruling 06-03p (Exhibit B21F). Ms. Lu indicated that the claimant could
not work 8 hours per day on a sustained basis, even when sitting only 90 minutes a
day and standing and/or walking 30 minutes a day. Ms. Lu also opined that the
claimant would need to lie down every one or two hours during the day; could never
crouch, kneel or crawl; and could lift only 19 pounds. In addition, Ms. Lu opined
that the claimant was limited to low stress work and was likely to miss work twice
monthly.
While the undersigned finds Ms. Lu to be a health care provider who is not an
acceptable medical source, the undersigned also finds his assessments of the
claimant to be inconsistent with reports that depict activities that showed greater
capacity than expressed in her opinion.
The “Medical Source Statement” is a Physical Restrictions Evaluation that was signed by Nurse
Lu on February 9, 2017 and by Dr. Thu on February 10, 2017. R. 801-04. However, the ALJ did
not acknowledge Dr. Thu in his decision.
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This opinion is without support from the other evidence of record, which renders it
less persuasive. Ms. Lu indicated that the claimant was limited to no more than low
stress work. However, Ms. Lu performed no objective testing or offered a
correlating diagnosis to support this limitation. Further, there is no indication in the
claimant’s treatment records that the claimant reported medication side-effects that
may have resulted in this noted limitation. In fact, office notes from Ms. Lu dated
July 5, 2016 indicated that the claimant reported no generalized pain, that he was
not feeling tired or poorly and that he did not tire easily (Exhibit B19F/2).
Further, treatment records from Ms. Lu do not describe functional limitations that
would support his recommended restrictions. While Dr. Ali3 opined that the
claimant could stand/walk 30 minutes in an 8-hour workday, such limitation is
inconsistent with treatment records consistently documenting that the claimant’s
gait and stance were normal, and his physical examinations generally showed no
more than trace edema in the right leg only (Exhibit 19F). For these reasons, the
undersigned finds the opinion of Dr. Ali due to receive little weight.
R. 20.
Although Dr. Thu, Claimant’s physician, signed the Physical Restrictions Evaluation, the
ALJ attributed the medical opinion solely to Nurse Lu. R. 20, 804. The ALJ then discredited Nurse
Lu’s opinion because she was “not an acceptable medical source” and because her opinion was
“without support from the other evidence of record.” R.20. The ALJ did not address Dr. Thu’s
opinion. Claimant argues, in part, that the ALJ erred because he “never acknowledged Dr. Thu’s
opinion” and, thus, failed to correctly weigh the evidence. Doc. 21 at 12-13. The Commissioner
argues that, even if the ALJ erred by not considering Dr. Thu’s opinion, the error was harmless
because good cause existed that was sufficient to discount the opinion. Doc. 21 at 22. As stated in
the following paragraphs, the undersigned agrees that the ALJ erred by not correctly weighing the
opinion of Dr. Thu and clearly articulating his reasons for giving it less than controlling weight.

While giving his reasons for discounting the opinion of Nurse Lu, the ALJ refers to Dr. Ali and
his opinion. However, the ALJ does not cite any evidence showing an opinion from Dr. Ali.
Further, the undersigned is unable to locate any evidence of treatment or opinion of Dr. Ali.
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An ALJ’s failure to mention a claimant’s treating physician and the weight given to the
treating physician’s opinion constitutes grounds for reversal. Wiggins v. Schweiker, 679 F.2d 1387,
1390 (11th Cir. 1982). The ALJ “must clearly articulate the reasons for giving less weight to the
opinion of a treating physician, and the failure to do so is reversible error.” Lewis, 125 F.3d at
1440; see also Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 834 (11th Cir. 2011) (“Without
an explanation of the weight accorded by the ALJ, 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.”) (citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)); McCloud
v. Barnhart, 166 F. App’x 410, 418-19 (11th Cir. 2006) (stating that although the ALJ “may reject
the opinion of any physician when the evidence supports a contrary conclusion,” the ALJ is
“required, however, to state with particularity the weight he gives to different medical opinions
and the reasons why”) (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983));
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
The record demonstrates that Dr. Thu had an ongoing treatment relationship with Claimant.
From July 20, 2016 through February 6, 2017, Dr. Thu approved Claimant’s treatment records
from numerous separate visits. R. 763, 768, 770, 777, 788, 794, 800. Further, each set of treatment
records, which are signed by Nurse Lu and Dr. Thu, state that “Dr. Thu is actively involved in the
care of this patient and has reviewed the Plan of Care.” R. 762, 768, 770, 776, 782, 787, 793, 799.
Thus, the undersigned considers Dr. Thu to be Claimant’s own physician who provided him with
medical treatment and evaluation during that period. See Nyberg v. Comm’r of Soc. Sec., 179 F.
App’x 589, 591 n.3 (11th Cir. 2014) (“A ‘treating source’ . . . is a claimant’s ‘own physician,
psychologist, or other acceptable medical source who provides you, or has provided you, with
medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with

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you.’”) (quoting 20 C.F.R. § 404.1502). As a result, the undersigned considers the signed Physical
Restrictions Evaluation to be the medical opinion of Claimant’s treating physician.
The Court finds that the ALJ, in rendering his decision, failed to mention and properly
weigh Dr. Thu’s opinion. Indeed, the Commissioner concedes that “the ALJ did . . . mistakenly
identif[y] the opinion as being that of only Nurse Lu,” but argues that the ALJ must have
considered Dr. Thu’s opinion because it was the same as Nurse Lu’s. Doc. 21 at 22. The Court
agrees that the ALJ was mistaken but disagrees with the Commissioner’s argument. If the ALJ had
correctly identified the Physical Restrictions Evaluation as the opinion of Dr. Thu, that opinion
would have been accorded controlling weight, absent good cause supported by substantial
evidence. But because the ALJ did not attribute the opinion to Dr. Thu, and because a different
standard applies to the opinion of a treating physician, the Court cannot say that the ALJ considered
Dr. Thu’s opinion. It is unclear what impact this treating physician opinion would have had on the
ALJ’s analysis and the undersigned is unable to determine whether the ALJ applied the proper
legal standard. See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546 (6th Cir. 2004) (“A court
cannot excuse the denial of a mandatory procedural protection simply because, as the
Commissioner urges, there is sufficient evidence in the record for the ALJ to discount the treating
source’s opinion and, thus, a different outcome on remand is unlikely.”).
The Commissioner also argues that “the ALJ’s oversight in not noting that the opinion was
signed by both Nurse Lu and Dr. Thu is harmless . . . .” Doc. 21 at 22. The undersigned disagrees.
First, the Physical Restrictions Evaluation signed by Nurse Lu and Dr. Thu contradicts the
limitations identified by the ALJ. With respect to Claimant, the limitations identified by the
evaluation included: sitting for only 15-30 minutes without interruption; standing or walking for
20-30 minutes without interruption; sitting for no more than 90 minutes in an 8-hour day; standing

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and walking for no more than 30 minutes in an 8-hour day; and lying down and reclining for 6
hours in an 8-hour day. R. 801. The undersigned finds these limitations to be much more restrictive
than the limitations identified by the ALJ in his decision. Thus, had the ALJ properly weighed Dr.
Thu’s opinion, he may have found Claimant to have a more restrictive RFC than was set forth in
the ALJ’s decision.
Second, to the extent the Commissioner argues that the error was harmless because good
cause, supported by substantial evidence, existed, the undersigned disagrees. See Nyberg v.
Comm’r of Soc. Sec., 179 F. App’x 589, 592 (11th Cir. 2006) (“[W]e cannot say that the failure to
address [the treating physician’s] opinion was harmless without re-weighing the evidence and
engaging in conjecture that invades the province of the ALJ.”). The ALJ failed to consider the
critical factor that the Physical Restrictions Evaluation represented the opinion of a treating
physician. And to the extent that the Commissioner argues that the Court should accept the reasons
the ALJ provided for discounting Nurse Lu’s opinion, the Court notes that it does not know how
the ALJ would have weighed the evidence with regard to a treating physician. The Court will not
re-weigh the evidence and substitute its judgment for that of the ALJ in determining whether the
evidence cited by the ALJ in discounting the opinion of Nurse Lu provides good cause to discount
the opinion of treating physician Thu. Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004); Nyberg v. Comm’r of Soc. Sec., 179 F. App’x 589, 592 (11th Cir. 2006) (“[W]e cannot say
that the failure to address [the treating physician’s] opinion was harmless without re-weighing the
evidence and engaging in conjecture that invades the province of the ALJ.”); see also FlentroyTennant v. Astrue, 2008 WL 876961, *8 (M.D. Fla. Mar. 27, 2008) (“An ALJ is required to build
an accurate and logical bridge from the evidence to his or her conclusion.”); Krueger v. Astrue,
2008 WL 596780, *10 (M.D. Fla. Feb. 29, 2008); Garvey v. Astrue, 2007 WL 4403525, *7 (N.D.

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Fla. 2007) (“In this circuit, especially, the ALJ must point to substantial evidence in the record to
discount the opinion of a treating physician, whether retrospective, contemporary, or
prospective.”).
Even if the undersigned did not consider Dr. Thu a treating physician, the undersigned
must find that the ALJ erred by not considering his opinion as one from an acceptable medical
source. Because Dr. Thu is a licensed physician, he is an acceptable medical source. 20 C.F.R. §
404.1502(a)(1) (“Acceptable medical source means a medical source who is a Licensed physician
(medical or osteopathic) . . . .”). “Making a distinction between ‘acceptable medical sources’ and
medical sources who are not ‘acceptable medical sources’ facilitates the application of our rules
on establishing the existence of an impairment, evaluating medical opinions, and who can be
considered a treating source.” SSR 06-03p. The ALJ incorrectly considered Dr. Thu’s opinion as
one that is not from an acceptable medical source. Again, it is unclear to the undersigned whether
the correct application of the rules to the opinion from an acceptable medical source would have
affected the ALJ’s final determination without re-weighing the evidence and substituting the
Court’s judgment for that of the ALJ. See McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 962
(11th Cir. 2015) (“It is clear from our decision in Winschel that the explanation requirement applies
equally to the opinions of treating physicians and non-treating physicians.”) (citing Winschel v.
Comm’r of Soc. Sec., F.3d 1176 (11th Cir. 2011)). Thus, the decision of the ALJ must be reversed
because it is not based on proper legal standards.
Accordingly, because the Court cannot find that the ALJ properly weighed the opinion of
Dr. Thu, Claimant’s argument is well-taken. 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.,

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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, upon due consideration, it is ORDERED that:
1.

The final decision of the Commissioner is REVERSED and REMANDED for
further proceedings pursuant to sentence four of 42 U.S.C. § 405(g); and

2.

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

DONE and ORDERED in Orlando, Florida on March 8, 2019.

Copies furnished to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Edward E. Evans
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc
3207 N Cypress St
Wichita, KS 67226-4005

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