Flanagan v. Commissioner of Social Security

Filing 22

OPINION AND ORDER affirming the Commissioner's final decision; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James R. Klindt on 9/15/2016. (KAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PATRICK FLANAGAN,
Plaintiff,
Case No. 8:15-cv-1542-T-JRK
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
_____________________________________/
OPINION AND ORDER1
I. Status
Patrick Flanagan (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying his claim for disability insurance benefits (“DIB”).
Plaintiff’s alleged inability to work is a result of “[c]hronic lower back problems, depression,
anxiety, [and problems related to his] sciatica[.]” Transcript of Administrative Proceedings
(Doc. No. 10; “Tr.” or “administrative transcript”), filed September 11, 2015, at 44, 55, 208.
On July 20, 2011, Plaintiff filed an application for DIB, alleging an onset disability date of
September 1, 2010. Tr. at 170-71. Plaintiff’s application was denied initially, see Tr. at 4453, 54, 91-96, and upon reconsideration, see Tr. at 55-66, 67-68, 98-103.
On May 3, 2013, an Administrative Law Judge (“ALJ”) held a hearing during which the
ALJ heard testimony from Plaintiff, who was represented by counsel, and a vocational expert
(“VE”). Tr. at 8-43. On September 25, 2013, the ALJ issued a Decision finding Plaintiff not
disabled and denying Plaintiff’s claim. Tr. at 72-84. Plaintiff then requested review by the

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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. 9), filed
September 11, 2015; Reference Order (Doc. No. 11), entered September 14, 2015.

Appeals Council. Tr. at 6. On April 23, 2015, 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.

On June 29, 2015, Plaintiff commenced this action under 42 U.S.C.

§ 405(g), by timely filing a Complaint (Doc. No. 1), seeking judicial review of the
Commissioner’s final decision.
Plaintiff raises two issues on appeal. The first issue has two parts: (1) whether the
ALJ erred in “mischaracterizing” an opinion provided by examining physician Bhupendra
Kumar Gupta, M.D. regarding the amount of sitting, standing, and walking Plaintiff can do,
and (2) whether that alleged mischaracterization resulted in a flawed residual functional
capacity (“RFC”). Memorandum in Opposition to the Commissioner’s Decision (Doc. No. 20;
“Pl.’s Mem.”), filed February 12, 2016, at 2 (summary of issues), 5-7 (argument regarding
issue one). The second issue, which is essentially contingent on the Court finding error with
respect to first issue, is whether the ALJ erred in presenting a hypothetical to the VE that
allegedly included the flawed RFC. Id. at 2 (summary of issues), 7-8 (argument regarding
issue two). On April 12, 2016, Defendant responded by filing a Memorandum in Support of
the Commissioner’s Decision (Doc. No. 21; “Def.’s Mem.”). After a thorough review of the
entire record and consideration of the parties’ respective filings, the undersigned finds that
the Commissioner’s final decision is due to be affirmed for the following reasons.
II. The ALJ’s Decision
When determining whether an individual is disabled,2 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining

2

“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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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 74-84. At step one,
the ALJ observed that Plaintiff “has not engaged in substantial gainful activity since
September 1, 2010, the alleged onset date.” Tr. at 74 (emphasis and citations omitted). At
step two, the ALJ found Plaintiff “has the following severe impairments: status post Aspen
stabilization procedure[3] at L5-S1; anxiety; and depression.” Tr. at 74 (emphasis and
citations 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 75 (emphasis and citations
omitted).
The ALJ determined Plaintiff has the following RFC:
[Plaintiff can] perform light work as defined in 20 CFR [§] 404.1567(b) except
he can stand and walk [a] total of four hours and sit four hours in an eight hour
workday. [Plaintiff] requires the ability to alternate position from sitting to
standing a at [sic] 45 minute intervals. [Plaintiff] can never perform foot control
operations. [Plaintiff] can never climb ladders, ropes, or scaffolds, never crawl,
but occasionally climb ramps and stairs, and occasionally balance, stoop, kneel,
and crouch. [Plaintiff] must avoid all exposure to extreme cold, extreme heat,
wetness, humidity, and excessive vibration. [Plaintiff] must avoid work hazards

3

Evidently, Aspen is the name of a device used during certain fusion and stabilization

procedures.
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such as moving machinery (including forklifts), and unprotected heights.
[Plaintiff] cannot drive in the work setting. [Plaintiff] is limited to simple, unskilled
work.
Tr. at 77 (emphasis omitted). At step four, the ALJ found Plaintiff “is unable to perform any
past relevant work” as “an insurance representative,” a “server,” and a “bus boy[.]” Tr. at 82
(some emphasis and citation omitted). At step five, the ALJ considered Plaintiff’s age (“42
years old . . . on the alleged disability onset date”), education (“at least a high school
education”), work experience, and RFC, and relied on the testimony of the VE to find Plaintiff
is capable of performing work that exists in significant numbers in the national economy. Tr.
at 82-83 (some emphasis omitted).

Namely, the ALJ found Plaintiff can perform

representative jobs such as “bench worker,” “assembler,” and “inserter stuffer[.]” Tr. at 83.
The ALJ concluded that Plaintiff “has not been under a disability . . . from September 1, 2010
through the date of th[e D]ecision.” Tr. at 83 (emphasis and citation omitted).
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

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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
The undersigned addresses the issues together. In doing so, the undersigned first
discusses the applicable law regarding an ALJ weighing medical opinions, assessing an
RFC, and posing a hypothetical to a VE at step five. Second, the undersigned summarizes
Plaintiff’s arguments and the findings of the ALJ in the instant case. Third, the undersigned
analyzes the issues.
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[’ opinions] 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

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”).
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are relevant in determining the weight to be given to a physician’s opinion: (1) the “[l]ength
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(c)(2)-(5),

416.927(c)(2)-(5); see also 20 C.F.R. §§ 404.1527(e), 416.927(e).
An ALJ is required to consider every medical opinion. See 20 C.F.R. §§ 404.1527(c),
416.927(c) (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 v. Barnhart, 405
F.3d 1208, 1212 (11th Cir. 2005); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
The RFC assessment “is the most [a claimant] can still do despite [his or her]
limitations.” 20 C.F.R. § 404.1545(a)(1). It is used at step four to determine whether a
claimant can return to his or her past relevant work, and if necessary, it is also used at step
five to determine whether the claimant can perform any other work that exists in significant
numbers in the national economy. 20 C.F.R. § 404.1545(a)(5). In assessing a claimant’s
RFC, the ALJ “must consider limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe.’” SSR 96-8P, 1996 WL 374184 at *5; see also
Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating that “the ALJ must consider

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a claimant’s impairments in combination”) (citing 20 C.F.R. § 404.1545; Reeves v. Heckler,
734 F.2d 519, 525 (11th Cir. 1984)).
An ALJ poses a hypothetical question to a VE as part of his step-five determination
of whether the claimant can obtain work in the national economy. See Wilson v. Barnhart,
284 F.3d 1219, 1227 (11th Cir. 2002) (citation omitted). When the ALJ relies on the
testimony of a VE, “the key inquiry shifts” from the RFC assessment in the ALJ’s written
decision to the adequacy of the RFC description contained in the hypothetical posed to the
VE. Corbitt v. Astrue, No. 3:07-cv-518-J-HTS, 2008 WL 1776574, at *3 (M.D. Fla. Apr. 17,
2008) (unpublished) (citation omitted). “[F]or a [VE]’s testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which comprises all of the claimant’s
impairments.” Wilson, 284 F.3d at 1227 (citation omitted).
Here, Plaintiff argues the ALJ erred in assigning “some weight” to Dr. Gupta’s opinion
and then incorporating a portion of the opinion in the RFC because the ALJ mischaracterized
the doctor’s opinion regarding the amount of walking/sitting/standing Plaintiff can do in a
workday. Pl.’s Mem. at 6. Specifically, Plaintiff focuses on the following language in the
Decision:
[Dr. Gupta] was of the opinion that [Plaintiff] would be able to . . . stand and
walk 4 hours and sit 4 hours in an eight hour workday. . . .
...
I give some weight to the opinion of Dr. Gupta, that [Plaintiff] is capable of
limited light work, with the ability to stand and walk 4 hours and sit 4 hours in
an eight hour workday.
Tr. at 79, 81 (citation omitted). As Plaintiff points out, see Pl.’s Mem. at 6, Dr. Gupta’s
specific opinion was as follows. Plaintiff can sit three hours at a time without interruption;
Plaintiff can stand one hour at a time without interruption; and Plaintiff can walk one hour at
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a time without interruption. Tr. at 595. As far as total hours in an eight-hour workday,
Plaintiff can sit four hours; Plaintiff can stand two hours; and Plaintiff can walk two hours.
Tr. at 595. According to Plaintiff, Dr. Gupta’s opinion was more restrictive than the ALJ
characterized it to be, and by mischaracterizing the opinion, the ALJ arrived at a flawed RFC
determination.

Pl.’s Mem. at 6-7.

Then, says Plaintiff, the flawed RFC caused the

hypothetical to the VE to be flawed. Id. at 7-8.
The ALJ did not err in assigning some weight to Dr. Gupta’s opinion and then
assessing an RFC that, among other things, limited Plaintiff to “stand[ing] and walk[ing a]
total of four hours and sit[ting] four hours in an eight hour workday,” and “the ability to
alternate position from sitting and standing a at [sic] 45 minute intervals.” Tr. at 77. To the
extent Plaintiff argues the opinion was mischaracterized by the ALJ, the undersigned
disagrees. The ALJ simply combined the portions of the opinion stating that Plaintiff can
stand two hours and walk two hours, to determine that Plaintiff can “stand and walk [a] total
of four hours[.]” Tr. at 77. And, the ALJ sufficiently accounted for Dr. Gupta’s opinion that
Plaintiff can sit three hours at a time, stand one hour at a time, and walk one hour at a time
without interruption, Tr. at 595, by allowing Plaintiff “the ability to alternate position from
sitting to standing a at [sic] 45 minute intervals,” Tr. at 77.
Even if the ALJ did err by assigning a flawed RFC in the written Decision, the error
would be harmless. During the hearing, when posing the hypothetical to the VE, the ALJ
actually posed a more restrictive hypothetical that limited Plaintiff to sedentary work with
additional restrictions, Tr. at 40, rather than light work with additional restrictions as the ALJ
found in the written Decision, Tr. at 77. With sedentary work, an individual is mainly
expected to sit throughout the day, even though “walking and standing are required
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occasionally[.]” 20 C.F.R. § 404.1567(a). Light work, which is less restrictive, requires “a
good deal of walking or standing[.]” 20 C.F.R. § 404.1567(b). In response to the hypothetical
limiting Plaintiff to sedentary work with additional restrictions, the VE testified that Plaintiff
can perform a number of representative jobs that exist in significant numbers in the national
economy, Tr. at 41, which testimony the ALJ adopted as the step five finding, Tr. at 83.
The ALJ recognized the discrepancy in the written Decision, stating that “the
hypothetical [RFC] posed to the [VE] during the hearing was somewhat more restrictive
tha[n] the [RFC] assessed in [the Decision.] The jobs identified by the [VE] could also be
performed by an individual with the less restrictive [RFC] assessed in th[e D]ecision.” Tr. at
83 n.1. In other words, although the ALJ ultimately decided that Plaintiff can do more than
he asked the VE about, the VE’s testimony provides substantial evidence to support the
ALJ’s ultimate step five finding. So, even if the ALJ should have assessed an RFC in the
written Decision that is more restrictive, as Plaintiff contends, the more restrictive
hypothetical posed during the hearing cured any error in the RFC in the written Decision.
V. Conclusion
After a thorough review of the entire record, the undersigned finds that the
Commissioner’s final decision is supported by substantial evidence. Accordingly, it is
ORDERED:
1.

The Clerk of Court is directed to enter judgment pursuant to sentence four of

42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.

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2.

The Clerk is further directed to close the file.

DONE AND ORDERED at Jacksonville, Florida on September 15, 2016.

kaw
copies:
counsel of record

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