Guzzo v. Commissioner of Social Security

Filing 21

OPINION AND ORDER. The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 9/16/2016. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSEPH GUZZO,
Plaintiff,
v.

Case No: 8:15-cv-539-T-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Joseph Guzzo, seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“SSA”) denying his claim for Disability Insurance Benefits
(“DIB”). The Commissioner filed the Transcript of the proceedings (hereinafter referred to as
“Tr.” followed by the appropriate page number), and the parties filed legal memoranda in support
of their positions. For the reasons set out herein, the decision of the Commissioner is REVERSED
AND REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act Eligibility
The law defines disability as the inability to do 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 twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The
impairment must be severe, making the claimant unable to do his previous work, or any other

substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that he is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

-2-

404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit his physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that his impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, he will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,

-3-

1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the
Commissioner meets this burden does the burden shift back to the claimant to show that he is not
capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245
F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for DIB on January 24, 2012, alleging disability beginning
December 31, 2011, due to lower back pain, stenosis, sleep apnea, arthritis, asthma, depression,
and obesity. (Tr. 61, 163, 169, 204). Plaintiff’s application was denied initially on August 24,
2012. (Tr. 91-102). Plaintiff requested a hearing and an administrative hearing was held before
Administrative Law Judge Janet Mahon (the “ALJ”) on March 20, 2013. (Tr. 37-60, 103-04). On
August 1, 2013, the ALJ entered an unfavorable decision finding that Plaintiff was not disabled.
(Tr. 21-36). Plaintiff appealed the ALJ’s decision and, on January 5, 2015, the Appeals Council
denied Plaintiff’s request for review. (Tr. 1-4). Plaintiff initiated this action by filing a Complaint
(Doc. 1) on March 10, 2015.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since December 31, 2011, through his date last insured of December
31, 2012. (Tr. 26). At step two, the ALJ found that Plaintiff had the following severe impairments
through the date last insured: spinal or cervical stenosis, obesity, and carpal tunnel. (Tr. 26). At
step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments

-4-

that meets or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 27).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) through the date last insured to:
perform light work as defined in 20 CFR 404.1567(b) except that the
claimant could stand/walk up to 2 hours in an eight hour workday and
could sit up to 6 hours in an eight hour workday. In addition, the claimant
needed to avoid concentrated exposure to extreme cold, heat, wetness,
humidity, and fumes/odors/gases/poor ventilation. He could perform
frequent handling/fingering bilaterally.
(Tr. 27). At step four, the ALJ found that Plaintiff was unable to perform his past relevant work
as a bus driver, taxi driver, and van driver. (Tr. 30). At step five, the ALJ relied upon the testimony
of a vocational expert to find that considering Plaintiff’s age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can
perform, specifically occupations of document preparer, order clerk, and final assembler. (Tr. 31).
The ALJ concluded that Plaintiff had not been under a disability at any time from December 31,
2011, the alleged onset date, through December 31, 2012, the date last insured. (Tr. 32).
II.

Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ erred by according little weight

to the opinions of Plaintiff’s treating and examining physicians and by relying on her own lay
opinion; (2) whether the credibility determination is supported by substantial evidence; and (3)
whether the ALJ erred by relying on the testimony of the vocational expert elicited in response to
an incomplete hypothetical question. (Doc. 17 p. 1). The Court begins with the first issue.
In formulating Plaintiff’s RFC, the ALJ accorded little weight to the opinions of treating
physician Laila Farhat, M.D., and examining neurologist Dimitriy Grinshpun, M.D., and no weight

-5-

to the opinion of pain management physician Elizabeth Chandler, M.D. (Tr. 28-30). The ALJ did
not rely on any other opinion evidence as there was no other opinion in the record.
Plaintiff argues that the ALJ erred by failing to accord the opinions of Dr. Farhat and Dr.
Grinshpun greater weight and by improperly relying on her own lay opinion over those of medical
sources. (Doc. 17 p. 8-9). Plaintiff argues that contrary to the ALJ’s finding, Dr. Farhat’s opinion
is supported by significant objective findings. (Doc. 17 p. 10-11). Plaintiff contends that the
ALJ’s reasons for rejecting Dr. Grinshpun’s opinion do not hold up to scrutiny given the
consistency between Dr. Grinshpun’s examination findings and other treatment evidence and Dr.
Grinshpun’s opinion. (Doc. 17 p. 11-12). In response, Defendant argues that the ALJ provided
good reasons, supported by substantial evidence, for giving little weight to the respective opinions
of Dr. Farhat and Dr. Grinshpun. (Doc. 19 p. 10, 13).
The Eleventh Circuit has 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. Winschel v. Commissioner of
Social Security, 631 F.3d 1176, 1178-79 (11th Cir. 2011). Without 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. (citing Cowart v. Shweiker, 662 F.2d
731, 735 (11th Cir. 1981)).
The Court begins with the ALJ’s treatment of Dr. Farhat’s opinion. The record indicates
that Plaintiff presented to Dr. Farhat on September 10, 2011. (Tr. 236-37). Dr. Farhat noted that
Plaintiff reported needing to use the bathroom “a lot” and that he was experiencing back pain that

-6-

radiated down his legs with leg swelling. (Tr. 236). Dr. Farhat noted that Plaintiff had a hard time
walking, could not sit down because he had a difficult time getting up from chairs, had shortness
of breath with movement, and that Plaintiff’s legs were “huge” with swelling in both feet. (Tr.
236).
On September 24, 2011, Plaintiff visited Dr. Farhat. Plaintiff reported swelling and
heaviness in his legs with a lack of energy and an inability to walk. (Tr. 235). Dr. Farhat observed
“huge” legs with edema. (Tr. 235). Dr. Farhat assessed edema in both legs, sleep apnea, obesity,
no appetite, and disc herniation at L5-S1 level with disc herniation and radiating pain. (Tr. 235).
Plaintiff returned to Dr. Farhat on January 12, 2012. Plaintiff reported a burning sensation
on his lower left side, numbness in both hands, and tiredness even with use of his CPAP machine.
(Tr. 233). Plaintiff indicated he was working six hours per day. (Tr. 233). Dr. Farhat observed
Plaintiff had difficulty getting up from a seated position, recommended he stop work and not drive,
and prescribed Celebrex, Prozac, and a power scooter. (Tr. 233).
On June 14, 2012, Guzzo reported his sleep apnea was better with his CPAP machine but
he still experienced pain in his back and legs as well as heaviness in his legs. (Tr. 232). Dr. Farhat
referred him to pain management, but indicated he was unable to take strong pain medications
because he drove during the day. (Tr. 232).
On June 14, 2012, Dr. Farhat completed an RFC Questionnaire form on behalf of Plaintiff.
(Tr. 250-51). Dr. Farhat opined that Plaintiff was able to sit for 15 minutes at one time and for
two hours total, stand or walk for five minutes at one time and for no hours total, would need to
recline or lie down during the workday in excess of normal breaks, and would need an unscheduled
half-hour break every four hours. (Tr. 250). Dr. Farhat also opined that Plaintiff could lift and
carry ten pounds occasionally and less than ten pounds frequently, would likely be absent from

-7-

work more than four times per month due to his impairments, and was limited to using his hands
and fingers 60 percent of the workday and his arms 30 percent of the workday. (Tr. 251).
In her decision, the ALJ explained her decision for according little weight to Dr. Farhat’s
opinion as follows:
Dr. Laila Farhat felt that the claimant should be off work as he was
dangerous to himself and others. In a June 2012 residual functional
capacity questionnaire, Dr. Farhat opined that the claimant was essentially
limited to less than sedentary work in that he could not stand or walk at all
during an 8-hour work day and could sit for only 2 hours in an 8 hour
workday. She further stated that the claimant could not work a full time
job and would miss more than 4 days of work a month. The undersigned
gives little weight to this opinion as Dr. Farhat apparently relied quite
heavily on the subjective report of symptoms and limitations provided by
the claimant. The doctor’s own reports fail to reveal the type of significant
clinical and laboratory abnormalities one would expect if the claimant
were in fact disabled, and the doctor did not specifically address this
weakness. Physical examination records are extremely sparse and
infrequent, only indicating that the claimant was obese and had a hard time
getting up from sitting positions (Exhibit 2F and 3F)
(Tr. 29).
If an ALJ concludes that a treating physician’s medical opinion should be accorded less
than substantial or considerable weight, “good cause” must be shown for discounting it. Lewis v.
Callahan, 125 F. 3d at 1440. “The Eleventh Circuit has concluded that “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.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004
Failure to clearly articulate the reasons for giving less or no weight to a treating physician’s
medical opinion is reversible error. Lewis v. Callahan, 125 F. 3d 1436, 1440 (11th Cir. 1997).
In this case, the Court finds that the ALJ erred in her consideration of Dr. Farhat’s opinion
as the ALJ failed to provide good cause for according only little weight to the opinion. While the

-8-

ALJ stated her reasons for according only little weight, she failed to sufficiently articulate her
rationale for doing so, providing only conclusory reasons such as that Dr. Farhat “apparently relied
quite heavily on the subjective report of symptoms” and because “[t]he doctor’s own report fail to
reveal the type of significant clinical and laboratory abnormalities one would expect if the claimant
were in fact disabled and the doctor did not specifically address this weakness.” (Tr. 29). Such
conclusory statements, however, are insufficient to show an ALJ’s decision is supported by
substantial evidence unless the ALJ articulates factual support for such a conclusion. Reed v.
Comm’r of Soc. Sec., 2015 WL 7688471, at *3 (M.D. Fla. Nov. 27, 2015).
Contrary to the ALJ’s statement that Dr. Farhat’s report failed to reveal “significant clinical
and laboratory abnormalities” the record shows that the CT scan ordered by Dr. Farhat on
September 19, 2011, showed, along with other findings, a broad-based disc bulge with a left
paracentral disc protrusion, mild left lateral recess stenosis with encroachment on the descending
left S1 nerve root, and facet arthrosis with mild bilateral neural foramina stenosis at L5-S1. (Tr.
230-31). Further, Dr. Farhat’s examination notes indicated that she observed Plaintiff to have
significant leg edema, difficulty standing up, and further show that Dr. Farhat recommended that
Plaintiff stop working. (Tr. 233, 235).
Given the ALJ’s conclusory reasons for according little weigh to Dr. Farhat’s opinion and
record evidence that undermines the ALJ’s reasoning, the Court finds the Court finds that the
ALJ’s decision to accord little weight to Dr. Farhat’s opinion is not supported by substantial
evidence.
Turning now to the ALJ’s treatment Dr. Grinshpun’s opinion, the record reflects that
Plaintiff was examined a single time by Dr. Grinshpun on December 15, 2012. In his Neurological
Report, Dr. Grinshpun noted neurological signs including absent deep tendon reflexes except for

-9-

a +1 reflex in the biceps, positive bilaterial Tinel and Phalen signs, and diminished sensation to
pinprick, temperature, and vibration over the distal lower extremities. (Tr. 332). Dr. Grinshpun
noted that Plaintiff’s muscle power was full in all muscle groups. (Tr. 332). Dr. Grinshpun noted
Plaintiff had a broad-based and cautious gait, poorly performed toe walking, heel walking, and
tandem walking, a positive bilateral straight leg raise, localized hip tenderness, and multiple trigger
points in the bilateral cervical paraspinals, trapezius, supraspinatous, and lumbosacral region. (Tr.
332). Dr. Grinshpun ordered an EMG of the upper and lower extremities, instructed Plaintiff to
increase the dose of Celebrex and continue with gabapentin and Lyrica, and recommended
physical therapy and a lumbar epidural injection. (Tr. 332). The EMG revealed moderate bilateral
median nerve neuropathy at the wrist consistent with both CTS and moderate bilateral chronic
multilevel lumbar radiculopathy (right worse than left) and superimposed severe diffuse axonal
sensorimotor polyneuropathy. (Tr. 337).
On January 23, 2013, Dr. Grinshpun provided a physical functional assessment of Plaintiff.
(Tr. 351-52). Dr. Grinshpun opined that Plaintiff was able to sit for 15 minutes at one time and
for two hours total, stand or walk for ten minutes at one time and for two hours total, would need
to recline or lie down during the workday in excess of normal breaks, would need the abiity to
shift positions between sitting, standing, and walking at will, and would need unscheduled breaks
every 15 to 30 minutes for 15 to 20 minutes each. (Tr. 351). Dr. Grinshpun opined Plaintiff could
lift and carry ten pounds occasionally and less than ten pounds frequently, would likely be abset
from work three or four times per month due to his impairments, and was limited to using his right
upper extremity 15 percent of the workday and his left upper extremity 20 percent of the workday
for reaching, handling, and fingering. (Tr. 352).

- 10 -

In her decision, after summarizing the record pertaining to Dr. Grinshpun, the ALJ
explained that she accorded little weight to Dr. Grinshpun’s opinion for two reasons. First, because
Dr. Grinshpun’s “opinion was based on a one-time evaluation of the claimant” and, second,
because the opinion was “inconsistent with evidence of the claimant’s full muscle power.” (Tr.
30).
While Dr. Grinshpun was a one-time examining physician whose opinion was not entitled
to any particular deference, See Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985), the ALJ
was still required to state the weight given to that opinion and the reasoning behind that decision.
Winschel, 631 F.3d at 1178-79. Here, the Court finds that the ALJ’s reasoning to accord Dr.
Grinshpun’s opinion only little weight is not supported by substantial evidence. The fact that Dr.
Grinshpun only examined Plaintiff once is a factor appropriate to be considered in determining the
weight given his opinion, but it is not an independent basis to discount the opinion. This is
especially the case where, as here, the one-time examiner’s opinion as to Plaintiff’s limitations is
largely consistent with the limitations opined by Plaintiff’s treating physician.
In addition, the Court is unpersuaded that Dr. Grinshpun’s finding that Plaintiff had “full
muscle power” is inconsistent with his limitation findings. Even if Plaintiff retained good muscle
strength on examination, this does not diminish the fact that Dr. Grinshpun observed absent deep
tendon reflexes everywhere but the biceps, diminished sensation in extremities, a positive bilateral
straight left raise, muscle trigger points throughout the neck, shoulders, and back, and hip
tenderness. (Tr. 332). Dr. Grinshpun’s findings were objective substantiated by the EMG which
revealed moderate bilateral median nerve neuropathy at the wrist consistent with both CTS and
moderate bilateral chronic multilevel lumbar radiculopathy (right worse than left) and
superimposed severe diffuse axonal sensorimotor polyneuropathy. (Tr. 337). For this reason, the

- 11 -

Court finds the ALJ’s decision to accord little weigh to Dr. Grinshpun’s opinion is not supported
by substantial evidence.
As Defendant notes in his brief, the ALJ did not rely on a single opinion supporting his
RFC finding, but discounted each physician’s opinion in the record, all of which supported greater
limitations than found by the ALJ. While there is no requirement that an ALJ’s RFC finding must
be directly supported by a physician’s opinion, where the ALJ has discounted the opinions of every
treating and examining physician who offered an opinion, the Court determines that a fuller
explanation of the ALJ’s reasoning is in order in this case. Upon remand, the ALJ is directed to
reevaluate the opinion evidence in the record, specifically state the weight accorded to each
opinion, and articulate her reasoning with specific, factual support.
As the ALJ’s treatment of the opinion evidence on remand may alter her findings at the
later steps of the sequential evaluation process, the Court defers from addressing the other issues
raised by Plaintiff.
III.

Conclusion

The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the
Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on September 16, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

- 12 -