Morrison v. Commissioner of Social Security
Filing
22
OPINION AND ORDER reversing the Commissioner's final decision and remanding the matter for further consideration; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James R. Klindt on 8/27/2014. (KAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID LEE MORRISON,
Plaintiff,
vs.
Case No. 8:13-cv-1480-T-JRK
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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OPINION AND ORDER1
I. Status
David Lee Morrison (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying his claim for supplemental security income (“SSI”).
Plaintiff’s alleged inability to work is a result of “[b]ack problems,” “[d]egenerative disc
disea[s]e,” “[a]cid [r]eflux,” “[h]igh blood pressure,” and “[r]heumatoid arthritis[.]” Transcript
of Administrative Proceedings (Doc. No. 12; “Tr.” or “administrative transcript”), filed
September 5, 2013, at 199. On May 12, 2011, Plaintiff filed an application for SSI, alleging
a disability onset date of May 6, 2011. Tr. at 156-62. Plaintiff’s application was denied
initially, see Tr. at 69, 93-94, 102, and was denied upon reconsideration, see Tr. at 90, 103,
104-05.
1
The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 13), filed
September 5, 2013; Reference Order (Doc. No. 14), entered September 6, 2013.
An Administrative Law Judge (“ALJ”) held a hearing on November 15, 2012, during
which Plaintiff, who was represented by a non-attorney representative, and a vocational
expert (“VE”) testified. Tr. at 25-68.2 At the time of the hearing, Plaintiff was fifty-two (52)
years old. Tr. at 39. On December 19, 2012, the ALJ issued a written Decision finding
Plaintiff not disabled through the date of the Decision.
Tr. at 12-19.
Plaintiff then
submitted additional evidence to the Appeals Council in the form of a letter by his
representative. Tr. at 4-5, 278-79. On April 26, 2013, the Appeals Council denied
Plaintiff’s request for review, Tr. at 1-3, thereby making the ALJ’s Decision the final
decision of the Commissioner. Plaintiff commenced this action on June 6, 2013 under 42
U.S.C. § 1383(c)(3), by timely filing a Complaint (Doc. No. 1) seeking judicial review of the
Commissioner’s final decision.
Plaintiff challenges the ALJ’s Decision in four (4) ways. See Plaintiff’s Brief–Social
Security (Doc. No. 18; “Pl.’s Br.”), filed November 7, 2013, at 2. Plaintiff contends first that
the ALJ erred in evaluating the medical opinions of record; second, that the ALJ erred by
“fail[ing] to include all the physical limitations proven by the record, and fail[ing] to explain
why he did not include them”; third, that the ALJ erred in evaluating Plaintiff’s mental
limitations; and fourth, that the ALJ erred by failing to resolve a discrepancy between the
testimony of the VE and the Dictionary of Occupational Titles (“DOT”). Pl.’s Br. at 2
(emphasis omitted). Defendant on February 5, 2014 filed a Memorandum in Support of the
Commissioner’s Decision (Doc. No. 21; “Def.’s Mem.”) responding to Plaintiff’s arguments.
2
The transcript of the hearing before the ALJ indicates Plaintiff was represented by an
attorney, Tr. at 25, but the appointment of representative form indicates that Plaintiff’s representative was
“a non-attorney,” Tr. at 92.
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After a thorough review of the entire record and consideration of the parties’ respective
memoranda, the undersigned finds that the Commissioner’s final decision is due to be
reversed and remanded for the reasons explained herein.
II. The ALJ’s Decision
When determining whether an individual is disabled,3 an ALJ must follow the fivestep sequential inquiry set forth in the Code of Federal Regulations (“Regulations”),
determining as appropriate whether the claimant (1) is currently employed or engaging in
substantial gainful activity; (2) has a severe impairment; (3) has an impairment or
combination of impairments that meets or medically equals one listed in the Regulations;
(4) can perform past relevant work; and (5) retains the ability to perform any work in the
national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004). The claimant bears the burden of persuasion through step
four and, at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 14-19. At step
one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since
May 11, 2011, the application date.” Tr. at 14 (emphasis and citation omitted). At step two,
the ALJ found Plaintiff suffers from “the following severe impairments: remote history of
lumbar and cervical discectomies, with residual arthritis; history of attention hyperactivity
3
“Disability” is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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disorder; rule out learning disorder and personality disorder; history of left shoulder and
knee disorders.” Tr. at 14 (emphasis and citation omitted). At step three, the ALJ
ascertained Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.” Tr. at 14 (emphasis and citation omitted).
The ALJ determined that Plaintiff has the following residual functional capacity
(“RFC”):
[Plaintiff can] perform a reduced range of light work such that he can never
climb ladders, ropes, or scaffolds, kneel or crawl. He can occasionally climb
ramps and stairs, occasionally balance without a cane, frequently balance with
one, and occasionally crouch and stoop. He can frequently reach, but only
occasionally overhead reach; and should avoid concentrated exposures to cold,
heat, wetness, humidity and excessive vibration. [H]e must avoid all use of
moving or hazardous machinery, and unprotected heights. He can understand,
remember and carry out simple and routine tasks, with no more than occasional
interaction with the general public and co-workers.
Tr. at 15. At step four, the ALJ found Plaintiff “has no past relevant work.” Tr. at 18
(emphasis and citation omitted). At step five, the ALJ considered Plaintiff’s age (fifty (50)
years old when the application was filed), education (“limited (8th grade)”), lack of work
experience, and RFC, and then relied on the testimony of the VE to determine that Plaintiff
“is capable of making a successful adjustment to other work that exists in significant
numbers in the national economy.” Tr. at 18-19. The ALJ identified as representative jobs
“a production line inspector,” a “merchandise marker,” and a “laundry sorter[.]” Tr. at 18.
The ALJ concluded that Plaintiff “has not been under a disability . . . since May 11, 2011,
the date the application was filed.” Tr. at 19 (emphasis and citation omitted).
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III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .”
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d
1320, 1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere
scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial
evidence standard is met when there is “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Falge, 150 F.3d at 1322 (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the
evidence; rather, the entire record is reviewed to determine whether “the decision reached
is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d
1143, 1145 (11th Cir. 1991) (internal quotation and citations omitted); see also McRoberts
v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987). The decision reached by the Commissioner must be affirmed if it is
supported by substantial evidence–even if the evidence preponderates against the
Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th
Cir. 2004) (per curiam).
IV. Discussion
As noted above, Plaintiff challenges the ALJ’s Decision in four (4) ways. The
undersigned addresses Plaintiff’s arguments relating to the medical opinions and
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concludes the matter is due to be reversed and remanded for further consideration of them.
Given this conclusion, and given that reconsideration of the medical opinions is likely to
impact the findings at which Plaintiff’s remaining arguments on appeal are aimed, it is
unnecessary to substantively address Plaintiff’s remaining arguments. See Jackson v.
Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam) (declining to address certain
issues because they were likely to be reconsidered on remand); Demenech v. Sec’y of the
Dep’t of Health & Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam)
(concluding that certain arguments need not be addressed when the case would be
remanded on other issues). A discussion follows.
The Regulations establish a “hierarchy” among medical opinions4 that provides a
framework for determining the weight afforded each medical opinion: “[g]enerally, the
opinions of examining physicians are given more weight than those of non-examining
physicians[;] treating physicians[’ opinions5] are given more weight than [non-treating
physicians;] and the opinions of specialists are given more weight on issues within the area
of expertise than those of non-specialists.” McNamee v. Soc. Sec. Admin., 164 F. App’x
919, 923 (11th Cir. 2006) (citing 20 C.F.R. § 404.1527(d)(1), (2), (5)). The following factors
are relevant in determining the weight to be given to a physician’s opinion: (1) the “[l]ength
4
“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [a 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.” 20 C.F.R. § 404.1527(a)(2); see also
20 C.F.R. § 404.1513(a) (defining “[a]cceptable medical sources”).
5
A treating physician is a physician who provides medical treatment or evaluation to the
claimant and who has, or has had, an ongoing treatment relationship with the claimant, as established
by medical evidence showing that the claimant sees or has seen the physician with a frequency
consistent with accepted medical practice for the type of treatment and/or evaluation required for the
medical condition. See 20 C.F.R. § 404.1502.
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of the treatment relationship and the frequency of examination”; (2) the “[n]ature and extent
of [any] treatment relationship”; (3) “[s]upportability”; (4) “[c]onsistency” with other medical
evidence in the record; and (5) “[s]pecialization.”
20 C.F.R. §§ 404.1527(d)(2)-(5),
416.927(d)(2)-(5); see also 20 C.F.R. §§ 404.1527(e), 416.927(f).
An ALJ is required to consider every medical opinion.
See 20 C.F.R. §§
404.1527(d), 416.927(d) (stating that “[r]egardless of its source, we will evaluate every
medical opinion we receive”). While “the ALJ is free to reject the opinion of any physician
when the evidence supports a contrary conclusion,” Oldham v. Schweiker, 660 F.2d 1078,
1084 (5th Cir. Unit B 1981) (citation omitted); see also 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2), “the ALJ must state with particularity the weight given to different medical
opinions and the reasons therefor,” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179
(11th Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.1987)); see also
Moore, 405 F.3d at 1212; Lewis, 125 F.3d at 1440. “‘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 (quoting Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). “[W]hen the
ALJ fails to ‘state with at least some measure of clarity the grounds for his decision,’” the
decision will not be affirmed “‘simply because some rationale might have supported the
ALJ’s conclusion.’” Id. (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)
(per curiam)).
Plaintiff challenges the ALJ’s assignment of “some weight” to essentially every
medical opinion that the ALJ acknowledged. Pl.’s Br. at 5-12. Plaintiff also points out that
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the ALJ completely ignored the opinion of Henry Tenenbaum, Ph.D., a mental consultative
examiner. Id. at 10-11.
Regarding all of the opinion evidence, the ALJ stated as follows:
As for the opinion evidence, the state agency medical consultants
opined on July 6, 2011 that [Plaintiff] retained the [RFC] to perform light work.
In regards to mental impairments, the state agency evaluated [Plaintiff’s]
mental impairments under Listing 12.04 (affective disorders) and opined that
[Plaintiff] had mild restrictions in activities of daily living; no limitations in social
functioning; mild restrictions in concentration, persistence, and pace; and no
episodes of decompensation, each of extended duration (Exhibits 2A[6] and
4A[7]). I have considered these opinions and ha[ve] found them reasonable
based on the evidence available in the record at that time, and accordingly
give[] them some weight. The opinions of the consultative examiners and
contained in Exhibits 10F[8] and 11F[9] were also considered and given some
weight as they are supported by the bulk of the medical evidence of record
and it is assumed they are accurate with [Plaintiff’s] history. The opinion
contained in Exhibit 15F[10] was also considered and given only some weight,
as it is somewhat more restricted than the objective medical evidence shows.
In sum, the [assigned RFC] assessment is supported by the state
agencies opinion and [sic] contained in Exhibit 2A and 4A; however, I have
6
Exhibit 2A contains the July 6, 2011 opinion of Sharon Ames-Dennard, Ph.D., a nonexamining psychologist, and the July 6, 2011 opinion of David Guttman, M.D., a non-examining
physician. Tr. at 74-77.
7
Exhibit 4A is a one-page “Disability Determination and Transmittal” form, Tr. at 90 (some
capitalization and emphasis omitted), which the undersigned surmises was mistakenly cited by the ALJ.
It appears that Exhibit 3A is the exhibit the ALJ intended to cite. It contains the July 25, 2011 opinion of
Richard K. Lyon, Ph.D., a non-examining psychologist, and the July 28, 2011 opinion of Cristina
Rodriguez, M.D., a non-examining physician. Tr. at 84-87.
8
Exhibit 10F contains a June 11, 2011 medical report authored by Sebastian Tas, D.O.,
a consultative examiner, as well as a range of motion report form that was filled out by Dr. Tas. Tr. at
388-95.
9
Exhibit 11F contains a report authored by Scot D. Machlus, Ph.D., ADPP, following his
June 27, 2011 mental evaluation. Tr. at 397-400.
10
Exhibit 15F contains a November 8, 2012 report authored by R.W. Springstead, M.D.,
P.A., an examining physician, as well as a medical source statement of ability to do work-related activities
form that was filled out by Dr. Springstead on November 8, 2012. Tr. at 414-19.
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considered [Plaintiff’s] complaints of back pain [and] have incorporated more
restrictive postural limitations in[]to the [RFC].
...
Tr. at 17.
The ALJ’s handling of the various medical opinions is deficient. The undersigned
first addresses the opinions related to Plaintiff’s mental condition, followed by the opinions
related to Plaintiff’s physical condition.
To start, the ALJ completely ignored the opinion of consultative examiner Dr.
Tenenbaum, who performed an intellectual evaluation of Plaintiff and authored a detailed
report on August 27, 2008 containing his findings. See Tr. at 329-33. In sum, that testing
indicated Plaintiff “may have a mild learning disability.” Tr. at 333. Also, the ALJ did not
address a September 2, 2008 mental residual functional capacity assessment and
psychiatric review technique authored by Arthur Hamlin, Psy.D. See Tr. at 334-51. Dr.
Hamlin opined Plaintiff has moderate limitations in social functioning and mild limitations
in maintaining concentration, persistence, or pace, Tr. at 348, and assessed various workrelated limitations, Tr. at 334-35.
The ALJ did consider and assign “some weight” to the opinions of various nonexamining mental consultants, Tr. at 17, and to mental consultative examiner Dr. Machlus.
Tr. at 17 (citing Exhibit 11F). The ALJ’s stated reason for assigning “some weight” to the
non-examining opinions was that they are “reasonable based on the evidence available in
the record at the time.” Tr. at 17. Similarly, the ALJ’s reason for assigning “some weight”
to Dr. Machlus’s opinion was that the opinion is “supported by the bulk of the medical
evidence of record and it is assumed [it is] accurate with [Plaintiff’s] history.” Tr. at 17. The
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assignment of “some weight” with hardly any explanation frustrates judicial review. See
Winschel, 631 F.3d at 1179 (citations omitted) (explaining the requirement that ALJ’s state
with particularity the weight assigned to various medical opinions and the reasons).
The ALJ’s election to rely to some degree on Dr. Machlus’s opinion – to the
exclusion of some of the other opinions in the administrative transcript – is also undermined
by Dr. Machlus’s statement that “[p]sychological, achievement, and cognitive abilities
testing would need to be conducted in order to help determine if [Plaintiff] is experiencing
any major psychopathology or learning disabilities that would interfere with his occupational
functioning.” Tr. at 400. Dr. Machlus suggested that “[a] review of past Social Security
Disability psychological evaluations may also be helpful in this regard.” Tr. at 400. In other
words, Dr. Machlus seems to have recognized that he did not have all of the information
necessary to make an informed decision. Apparently unbeknownst to Dr. Machlus, the
cognitive abilities testing and at least some other mental evaluations were part of the
record at the time Dr. Machlus rendered his opinion.
See Tr. at 397 (stating “[n]o
background information was provided by the DDS”). As explained above, the testing and
some of the evaluations that were part of the record are not addressed by the ALJ in the
Decision. Instead, the ALJ relied to some unknown degree on Dr. Machlus even though
Dr. Machlus recognized that he did not have important information. The ALJ did this even
after it was brought to his attention by Plaintiff’s counsel during the hearing that Dr.
Machlus did not have pertinent information prior to rendering an opinion. Tr. at 33. In fact,
it appears the ALJ recognized as legitimate Plaintiff’s representative’s objection to
consideration of Dr. Machlus’s opinion:
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ALJ: . . . Well, okay, so you don’t want me to give - - I will not give controlling
weight to 11F [(Dr. Machlus’s opinion)], is that what you want?
[REPRESENTATIVE]: Yes, Sir.
ALJ: Okay. All right, anything else?
[REPRESENTATIVE]: Nothing further, your honor.
Tr. at 33. Yet, the ALJ inexplicably relied in part on Dr. Machlus’s opinion.
The ALJ’s handling of the various medical opinions related to Plaintiff’s physical
impairments is similarly deficient. Every opinion was assigned the generic label of “some
weight,” Tr. at 17, which falls short of the requirement that the ALJ state with particularity
the weight given and the reasons for the weight, see Winschel, 631 F.3d at 1179 (citations
omitted). The problem with assigning every opinion “some weight” is evident: even the
ALJ’s Decision shows that he had different views of the opinion evidence despite allegedly
assigning the same weight to all of it. At one point, the ALJ stated that “some weight” was
being given to various non-examining opinions because the opinions are “reasonable
based on the evidence available in the record at the time[.]” Tr. at 17. This tends to
suggest the ALJ viewed the opinions in a positive light and believed them to be consistent
with the evidence. At another point, however, the reason for assigning “only some weight”
to the opinion of examining physician Dr. Springstead is that it is supposedly “more
restrictive than the evidence shows,” Tr. at 17, suggesting that the ALJ was viewing this
opinion in a negative light because it is supposedly inconsistent with the evidence. Without
explanation, judicial review is frustrated.11
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Defendant contends the ALJ’s opinion is supported by substantial evidence, and
Defendant provides a number of reasons (that the ALJ failed to provide) why the administrative transcript
allegedly supports the ALJ’s overall Decision. Def.’s Mem. at 4-13. Defendant’s analysis cannot serve
as post hac justifications to save the ALJ’s otherwise infirm decision. See Owens, 748 F.2d at 1516.
It is not the duty of Defendant or the Court to supply reasons for the ALJ’s finding; rather, that duty rests
with the ALJ. See Austin v. Astrue, No. 5:07cv52/MCR/EMT, 2008 WL 2385520, at *8 n.7 (N.D. Fla.
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For these reasons, the matter must be remanded for the Administration to
reevaluate all medical opinions of record. In reevaluating, the Administration “must state
with particularity the weight given to different medical opinions and the reasons therefor,”
Winschel, 631 F.3d at 1179 (citations omitted). The Administration’s reconsideration of the
medical opinions on remand will likely impact the RFC and the hypothetical to the VE. The
rest of the arguments Plaintiff has advanced on appeal relate to these matters; it is
therefore unnecessary to address the remaining arguments.
V. Conclusion
After due consideration, it is
ORDERED:
1.
The Clerk of Court is directed to enter judgment pursuant to sentence four
of 42 U.S.C. § 405(g), as incorporated by § 1383(c)(3), REVERSING the Commissioner’s
final decision and REMANDING this matter with the following instructions:
(A)
Reevaluate the medical opinions of record and state with particularity
the weight assigned and the reasons therefor;
(B)
If appropriate, address the other issues raised by Plaintiff in this
appeal; and
(C)
Take such other action as may be necessary to resolve this claim
properly.
June 9, 2008) (unpublished) (recognizing the Commissioner’s arguments in support of the ALJ’s
discounting of a treating physician’s opinion, but stating that “[w]hile [the arguments] may be true, the ALJ
did not make these findings”); see also Green v. Shalala, 51 F.3d 96, 100-01 (7th Cir. 1995); Cline v.
Sullivan, 939 F.2d 560, 563-69 (8th Cir. 1991).
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2.
The Clerk is further directed to close the file.
3.
In the event benefits are awarded on remand, Plaintiff’s counsel shall ensure
that any § 406(b)/ § 1383(d)(2) fee application be filed within the parameters set forth by
the Order entered in Case No. 6:12-mc-124-Orl-22 (In Re: Procedures for Applying for
Attorney’s Fees Under 42 U.S.C. §§ 406(b) and 1383(d)(2)).
DONE AND ORDERED at Jacksonville, Florida, on August 27, 2014.
kaw
Copies to:
Counsel of Record
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