Watkins v. Commissioner of Social Security

Filing 20

OPINION AND ORDER reversing and remanding the decision of the Commissioner. See Opinion and Order for details. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Mac R. McCoy on 9/27/2017. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID B. WATKINS,
Plaintiff,
v.

Case No: 8:16-cv-1461-T-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER

Before the Court is Plaintiff David B. Watkins’ Complaint (Doc. 1) filed on June 7, 2016.
Plaintiff seeks judicial review of the final decision of the Commissioner of the Social Security
Administration (“SSA”) denying his claim for a period of disability and disability insurance
benefits. 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, the ALJ Decision, and Standard of Review
A.

Eligibility

The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that 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), 1382c(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 that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.

Procedural History

On October 19, 2012, Plaintiff filed an application for disability and disability insurance
benefits (“DIB”). (Tr. at 304, 317, 362-63). Plaintiff asserted an onset date of March 24, 2012.
(Id. at 362). Plaintiff’s application was denied initially on January 11, 2013, and on
reconsideration on February 19, 2013. (Id. at 304, 317). A hearing was held before
Administrative Law Judge (“ALJ”) R. Dirk Selland on June 25, 2014. (Id. at 249-77). The ALJ
issued an unfavorable decision on August 28, 2014. (Id. at 230-44). The ALJ found Plaintiff not
to be under a disability from March 24, 2012 through the date of the decision. (Id. at 244).
On April 6, 2016, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-7).
Plaintiff filed a Complaint (Doc. 1) in the United States District Court on June 7, 2016. This
case is ripe for review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 14).
C.

Summary of the ALJ’s Decision

An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must determine

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Unpublished opinions may be cited as persuasive on a particular point. The Court does not
rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January

2

whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (11th Cir. 2004). The claimant has the burden of proof through step four and then the burden
shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913,
915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2017. (Tr. at 232). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since March 24, 2012, the alleged onset date. (Id.). At
step two, the ALJ found that Plaintiff suffered from the following severe impairments: anxiety,
depression and ETOH dependence (20 C.F.R. § 404.1520(c)). (Id.). At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P,
app. 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). (Id. at 233). At step four, the ALJ
determined that Plaintiff has the residual functional capacity (“RFC”) to perform work at all
exertional levels with the following additional limitations:
[Plaintiff is] limited to work that is simple as defined in the Dictionary of
Occupational Titles (DOT) as specific vocational preparation (SVP) levels 1 and 2,
routine and repetitive tasks in a work environment free of fast-paced production
requirements which is defined as constant activity with work tasks performed
sequentially in rapid succession; involving only simple work-related decisions;
with few, if any, workplace changes; and no more than occasional interaction with
the general public, co-workers and supervisors.

1, 2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.

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(Id. at 234). The ALJ determined that Plaintiff is not capable of performing his past
relevant work. (Id. at 242). At step five, the ALJ found that considering Plaintiff’s age,
education, work experience, and residual functional capacity, Plaintiff is capable of
performing the following jobs: (1) automobile detailer, DOT # 915.687-034, medium,
unskilled, SVP 2; (2) horticultural worker, DOT # 401.687-010, medium, unskilled, SVP
2; (3) warehouse worker, DOT # 922.687-058, medium, unskilled, SVP 2. (Id. at 24344). 2 The ALJ concluded that Plaintiff was not under a disability from March 24, 2012
through the date of the decision. (Id. at 244).
D.

Standard of Review

The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). 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) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
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. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
2

“DOT” refers to the Dictionary of Occupational Titles.

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F.2d 1356, 1358 (11th Cir. 1991). The district 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;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire
record to determine reasonableness of factual findings).
II.

Analysis
On appeal, Plaintiff raises two issues. As stated by Plaintiff, they are:
1) The ALJ failed to properly weigh the medical opinion evidence and failed to
properly determine Mr. Watkins’ RFC; and
2) The ALJ failed to properly determine and evaluate Mr. Watkins’ credibility.

(Doc. 16 at 14, 20).
A.

Weight of the Medical Opinions

Plaintiff argues that the ALJ erred in failing to explain why he rejected the medical
opinions of two doctors. (Doc. 16 at 15). Specifically, Plaintiff claims that the ALJ should have
given great weight to the opinions of psychiatrist Kathleen M. Carroll, M.D. and psychologist
Benjamin N. Cohen, Ph.D. (Id.). The Commissioner argues that the ALJ considered both Dr.
Carroll’s and Dr. Cohen’s opinions and provided good reasons to reject these opinions. (Doc. 19
at 4-9). First, the Court will focus on Dr. Carroll’s opinion.
1.

Legal Standard

“The Secretary must specify what weight is given to a treating physician’s opinion and
any reason for giving it no weight, and failure to do so is reversible error.” MacGregor v.
Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). 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,

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the statement is an opinion requiring the ALJ to state with particularity the weight given to it
and the reasons therefor. Winschel v. Comm’r of Soc. Sec., 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 opinions of treating physicians are entitled to substantial or considerable weight
unless good cause is shown to the contrary. Phillips, 357 F.3d at 1240. The Eleventh Circuit
concluded that good cause exists when: (1) the treating physician’s opinion was not bolstered
by the evidence; (2) the evidence supported a contrary finding; or (3) the treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records. Id. Even
though examining doctors’ opinions are not entitled to deference, an ALJ is nonetheless
required to consider every medical opinion. Bennett v. Astrue, No. 308-CV-646-J-JRK, 2009
WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing McSwain v. Bowen, 814 F.2d 617, 619
(11th Cir. 1987); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
2.

Dr. Carroll

Plaintiff argues that the ALJ rejected treating psychiatrist Dr. Carroll’s opinion in a “terse
one sentence rejection[].” (Doc. 16 at 14). Plaintiff claims that the ALJ failed to explain what
medical findings conflicted with the opinion of Dr. Carroll. (Id.). Plaintiff further claims that
Dr. Carroll’s findings were consistent with the mental status examinations in the treatment
records. (Id. at 16). The Commissioner contends that the ALJ considered Dr. Carroll’s opinion
and explained that Dr. Carroll’s finding of the severity of Plaintiff’s limitations was not
supported or consistent with Dr. Carroll’s treatment notes. (Doc. 19 at 5). The Commissioner

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asserts that Dr. Carroll’s treatment records support the ALJ’s limitations in Plaintiff’s RFC and
do not substantiate the restrictive limitations found in Dr. Carroll’s assessment. (Id. at 6).
The ALJ addressed Dr. Carroll’s opinion in four (4) separate instances in the decision.
(Tr. at 237, 238, 239, 241). First, he summarized Dr. Carroll’s September 6, 2012 Narrative
Report. Second, he summarized Dr. Carroll’s November 8, 2012 Psychiatric/Psychological
Impairment Questionnaire. (Id. at 238). Third, he summarized the diagnoses contained in Dr.
Carroll’s progress notes during the period from August 2013 through June 2014. Fourth, he
determined the weight to be afforded Dr. Carroll’s opinion. (Id. at 241). The Court addresses
each of these instances in turn.
The ALJ summarized Dr. Carroll’s September 6, 2012 Narrative Report as follows (Id. at
237, 535). Dr. Carroll reported she saw Plaintiff on two (2) occasions beginning on August 14,
2012. (Id. at 237). Dr. Carroll noted that the majority of Plaintiff’s care for the past two (2)
years was through residual treatment and outpatient treatment programs for alcohol dependence.
(Id.). Plaintiff’s primary care physician placed Plaintiff on short-term disability due to the
severity of his symptoms. (Id.). Dr. Carroll noted that Plaintiff tried a long list of psychiatric
medications that were unsuccessful and, instead, often times self-medicated his depression and
anxiety with alcohol. (Id.). “Dr. Carroll noted the claimant reportedly experienced severe
depressive episodes, agitation, extreme isolation, suicidal thoughts[,] and paralyzing anxiety
attacks at varying intervals throughout the past two years and correlating the most severe mood
symptoms and anxiety symptoms with times when he has been trying to maintain employment or
has been under an inordinate amount of stress.” (Id.). Dr. Carroll noted that Plaintiff sees his
employment as a “large source of stress.” (Id.). Plaintiff reported to Dr. Carroll that at times he
cannot get out of bed, bathe, perform activities of daily living, function outside of the home, and

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he feels incapable of returning to the workplace. (Id.). Dr. Carroll found Plaintiff’s prognoses
for recovery was poor to guarded. (Id.).
The ALJ then summarized Dr. Carroll’s November 8, 2012 Psychiatric/Psychological
Impairment Questionnaire as follows. (Id. at 238, 701-708). The ALJ found that this source
statement was based on Dr. Carroll’s diagnoses that included alcohol dependency, major
depression and generalized anxiety disorder with a current Global Assessment of Functioning
(“GAF”) of 50. (Id. at 238). Dr. Carroll reported clinical findings to include “poor memory,
appetite and mood disturbance, substance dependence, and social withdrawal or isolation,
anhedonia, feelings of guilt/worthlessness[,] and generalized persistent anxiety.” (Id.). Dr.
Carroll reported no emergency room or hospital treatment due to these symptoms. (Id.). The
ALJ summarized Dr. Carroll’s remaining assessment as follows:
In understanding and memory, [Dr. Carroll] opined the claimant was moderately
limited in the ability to remember locations and work-like procedures and ability to
understand and remember one or two-step instructions but marked limitations to
understand and remember detailed instructions. As to sustained concentration and
persistence, Dr. Carroll opined the claimant had marked limitations in carrying out
detailed instructions; maintaining attention and concentration for extended periods;
performing activities within a schedule; maintaining regular attendance; being
punctual within customary tolerance; making simple work-related decisions; and
completing a normal workweek without interruptions from psychologically-based
symptoms at a consistent pace without an unreasonable number and length of rest
periods. However, she also opined he had only moderate limitations in carrying
out simple one or two-step instructions, sustain an ordinary routine without
supervision, and work in coordination with or proximity to others without being
distracted by them. With regard to social interactions, the claimant had marked
limitations in the ability to accept instructions and respond appropriate to criticism
from supervisors, but only moderate limitations in his ability to interact
appropriately with the general public, ask simple questions or request assistance,
get along with co-workers or peers without distracting them or exhibiting
behavioral extremes, and maintain socially appropriate behavior and adhere to
basic standards of neatness and cleanliness. With regard to adaptation, Dr. Carroll
opined that the claimant had moderate ability to respond appropriate to changes in
the work setting, but otherwise mild limitations. Dr. Carroll admitted she had only
seen the claimant twice since August 2012 and he had not worked or been in a
work-like setting since being under her care and did not comment on the claimant’s

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ability to tolerate work stress. Dr. Carroll opined the claimant would likely be
absent from work as a result of the impairments or treatment more than three times
a month, but he could manage his benefits in his own best interest (Exhibit 9F).
(Id. (emphasis in original)).
The ALJ next considered the diagnoses found in Dr. Carroll’s progress notes covering the
period of August 2013 through June 2014. (Id. at 239). The ALJ found that in the August 2013
through May 2014 records, Dr. Carroll diagnosed Plaintiff with alcohol dependence, major
depressive disorder, recurrent, severe and generalized anxiety disorder with GAF scores ranging
from a low 48 to a high of 59. (Id.). The ALJ found that during this period Plaintiff was treated
with Xanax. (Id.). The ALJ noted that in a June 9, 2014 progress note, Dr. Carroll reported
Plaintiff’s diagnoses to be major depressive disorder, recurrent, moderate generalized anxiety
disorder, and alcohol dependence with a GAF score of 50. (Id.). The ALJ also noted that Dr.
Carroll reiterated the same limitations that she found previously. (Id.).
In his final reference to Dr. Carroll’s opinion, the ALJ decided to “reject the opinion of
treating psychiatrist Dr. Carroll (Exhibits 9F and 18F). I agree with the diagnosis, but not with
the severity of the limitations as they are not supported or consistent with her own treatment
notes.” (Id. at 241).
Unless good cause is shown to the contrary, the opinions of treating physicians are
entitled to substantial or considerable weight. Phillips, 357 F.3d at 1240. Good cause may be
established if a treating physician’s opinion is not supported or is inconsistent with a doctor’s
own treatment records. Id. Thus, the language the ALJ used here – that the severity of the
limitations found by Dr. Carroll are not supported or consistent with her own treatment notes –
may constitute good cause to reject Dr. Carroll’s opinion if the ALJ supported his decision with
substantial evidence. The ALJ did not. The ALJ failed to refer to any specific treatment or

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progress notes of Dr. Carroll that are inconsistent with or that do not support Dr. Carroll’s
assessments.
The ALJ summarized both of Dr. Carroll’s opinion statements dated September 6, 2012
and November 8, 2012, but these statements and the summary by the ALJ do not include any
specific reference to Dr. Carroll’s treatment or progress that are inconsistent with or that do not
support Dr. Carroll’s opinion. (Tr. at 237, 238). The ALJ did refer to Dr. Carroll’s progress
notes from August 2013 through June 2014, but cited them only for Dr. Carroll’s diagnoses in
these progress notes. (Id. at 239). Again, the ALJ failed to specifically identify any of Dr.
Carroll’s treatment or progress notes that are inconsistent with or that do not support her opinion.
The Commissioner cites to some of Dr. Carroll’s progress notes in the Memorandum in
Support of the Commissioner’s Decision to support the ALJ’s decision to reject Dr. Carroll’s
opinion. (Doc. 19 at 6-7). These progress notes were not specifically mentioned by the ALJ in
his decision. The Court cannot accept counsel’s post hoc rationalization for an agency’s action.
Baker v. Comm’r of Soc. Sec., 384 F. App’x 893, 896 (11th Cir. 2010). Here, the ALJ’s actual
decision did not contain the bases articulated by the Commissioner in the Memorandum. The
Court finds that the ALJ did not demonstrate that Dr. Carroll’s treatment or progress notes were
inconsistent or that they did not support Dr. Carroll’s opinion. The ALJ failed, therefore, to
establish good cause to reject Dr. Carroll’s opinion and the ALJ’s decision is not supported by
substantial evidence.
III.

Plaintiff’s Remaining Arguments
Plaintiff’s remaining issues focus on the weight the ALJ afforded Dr. Cohen’s opinion

and Plaintiff’s credibility. Because the Court finds that on remand, the Commissioner must

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evaluate the medical evidence of Dr. Carroll in light of all of the evidence of record, the
disposition of these remaining issues would, at this time, be premature.
Plaintiff requests that this matter be reversed and remanded “simply for an awarding of
benefits.” (Doc. 16 at 22). “This Court may reverse the decision of the Commissioner and order
an award of disability benefits where the Commissioner has already considered the essential
evidence and it is clear that the cumulative effect of the evidence establishes disability without
any doubt.” Kahle v. Comm’r of Soc. Sec., 845 F. Supp. 2d 1262, 1270 (M.D. Fla. 2012) (citing
Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993)). If the Court cannot discern the basis for
the Commissioner’s decision, then a sentence four remand may be appropriate to allow the
Commissioner to explain the basis for the decision. Id. In this case, the Court cannot discern the
basis for the Commissioner’s decision and, thus, a sentence four remand to the Commissioner is
appropriate. Accordingly, the Court will reverse and remand the decision to the Commissioner
for further consideration.
IV.

Conclusion
Upon consideration of the submission of the parties and the administrative record, the

Court finds that the decision of the Commissioner is not supported by substantial evidence.
IT IS HEREBY ORDERED:
(1)

The decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g) for the Commissioner to reconsider the
medical records and opinions of Dr. Carroll and Dr. Cohen in conjunction with all
of the other medical evidence of record and to reconsider Plaintiff’s credibility in
light of the medical evidence of record.

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(2)

If Plaintiff prevails in this case on remand, Plaintiff must comply with the Order
(Doc. 1) entered on November 14, 2012, in Misc. Case No. 6:12-mc-124-Orl-22.

(3)

The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the file.

DONE AND ORDERED in Fort Myers, Florida on September 27, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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