Ogorzelec v. Commissioner of Social Security

Filing 23

OPINION AND ORDER affirming the decision of the Commissioner. The Clerk is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 9/27/2017. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS OGORZELEC,
Plaintiff,
v.

Case No: 8:16-cv-1538-T-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Thomas Ogorzelec’s Complaint (Doc. 1) filed on June 13,
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 AFFIRMED 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 January 22, 2013, Plaintiff filed an application for disability insurance benefits
(“DIB”). (Tr. at 114, 129, 189-90). Plaintiff asserted an onset date of August 25, 2011 in his
Application. (Id. at 189). As to the onset date, the ALJ determined the following:
The undersigned notes that the claimant has a previous adjudication pertaining to
the claimant’s alleged onset date through June 24, 2009. Based on this previous
adjudication, the undersigned finds that the claimant’s application for a period of
disability and disability insurance benefits is barred under the doctrine of res
judicata through the date of that decision. The claimant has not presented any new
and material evidence to warrant a reopening of that determination, as explained
more fully below. Therefore, that prior determination dated June 24, 2009 is the
final decision of the Commissioner and remains in effect. Consequently, the
adjudication herein will continue as of June 25, 2009.
(Id. at 12). Thus, the ALJ amended the alleged onset date to be June 25, 2009. Plaintiff’s
applications were denied initially on May 17, 2013, and on reconsideration on June 24, 2013.
(Id. at 114, 129). A hearing was held before Administrative Law Judge (“ALJ”) Richard P.
Gartner on September 18, 2014. (Id. at 28-82). The ALJ issued an unfavorable decision on
February 2, 2015. (Id. at 12-21). The ALJ found Plaintiff not to be under a disability from June
25, 2009 through June 30, 2009. (Id. at 21).
On April 20, 2016, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-5).
Plaintiff filed a Complaint (Doc. 1) in the United States District Court on June 13, 2016. This
case is ripe for review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (See Doc. 14).

2

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
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 on June 30, 2009. (Tr.
at 14). At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity from June 25, 2009 through his date last insured of June 30, 2009.
(Id.). At step two, the ALJ found that through the date last insured, Plaintiff suffered from the
following severe impairments: lumbar degenerative disc disease; osteoarthritis of the patella;
and depressive reaction (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 met or medically
equaled 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 15).

1

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
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.

3

At step four, the ALJ found the following:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR § 404.1567(b) except requires an option to alternate
between sitting and standing at will after thirty minutes; limited to lifting and
carrying 10 pounds frequently and 20 pounds occasionally; occasional sitting,
standing and walking for six hours in an eight[-]hour work day; occasional climbing
ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; no
exposure to dangerous machinery or unprotected heights; requires brief access to a
restroom break every two to two[-]and[-]a[-]half hours; limited to occasional
pushing and pulling with the upper and lower bilateral extremities to include the
operation of hand levers and foot pedals; limited to simple, routine and repetitive
tasks not performed in a fast pace production environment involving only simple
work related decisions and in general only few workplace changes; and occasional
interaction with the general public.
(Id. at 16-17).
The ALJ determined that as of the date last insured, Plaintiff was unable to perform any
past relevant work. (Id. at 19). Through the date last insured, the ALJ considered Plaintiff’s age,
education, work experience, and residual functional capacity, and found that there were jobs that
existed in significant numbers in the national economy that plaintiff could have performed. (Id.
at 20). The ALJ noted that the vocational expert identified three jobs that Plaintiff was able to
perform, namely: (1) addresser, DOT # 209.587-010, sedentary, unskilled, SVP of two; (2)
inspector, DOT # 700.687-038, sedentary, unskilled, SVP of two; and (3) telephone solicitor,
DOT # 299.357-014, sedentary, unskilled, SVP two. (Id.). 2 The ALJ concluded that Plaintiff
was not under a disability at any time from June 25, 2009 through June 30, 2009, the date last
insured. (Id. at 21).

2

“DOT” refers to the Dictionary of Occupational Titles.

4

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
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’s decision was in error in failing to find Plaintiff had the severe
impairment of palindromic rheumatism prior to his date last insured; and

(2)

Because the ALJ failed to find that Plaintiff had the condition of
palindromic rheumatism prior to his date last insure, the Eleventh Circuit
Pain Standard was not correctly applied.

5

(Doc. 21 at 5, 7). The Court addresses each issue in turn.
A.

Whether the ALJ Erred at Step Two

Plaintiff argues that the ALJ erred in failing to find that Plaintiff had the severe
impairment of palindromic rheumatism at step two of the sequential evaluation. (Doc. 21 at 5).
The Commission argues in response that ALJ properly determined Plaintiff’s severe impairments
at step two. (Doc. 22 at 4).
At step two of the sequential evaluation, the severity of a claimants impairments is
analyzed. At this step, “[a]n impairment is not severe only if the abnormality is so slight and its
effect so minimal that it would clearly not be expected to interfere with the individual’s ability
to work, irrespective of age, education or work experience.” McDaniel v. Bowen, 800 F.2d
1026, 1031 (11th Cir. 1986). A severe impairment must bring about at least more than a
minimal reduction in a claimant’s ability to work and must last continuously for at least twelve
months. See 20 C.F.R. §§ 404.1505(a). This inquiry “acts as a filter” so that insubstantial
impairments will not be given much weight. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.
1987). While the standard for severity is low, the severity of an impairment “must be measured
in terms of its effect upon ability to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir. 1986).
In the Eleventh Circuit, “[n]othing requires that the ALJ must identify, at step two, all
of the impairments that should be considered severe.” Heatly v. Comm’r of Soc. Sec., 382 F.
App’x 823, 825 (11th Cir. 2010). Rather, the ALJ is required to consider a claimant’s
impairments in combination, whether severe or not. Id.
A severe impairment is an impairment or combination thereof that significantly
limits the claimant’s physical or mental ability to do basic work activities. . . . The

6

determination of whether the claimant suffers from a severe impairment acts as a
filter. . . . Thus, while a claim is denied if the claimant does not suffer from a
severe impairment, the finding of any severe impairment, regardless of whether it
qualifies as a disability or results from a single impairment or combination thereof,
is sufficient to satisfy the second step of the SSA’s sequential analysis. . . .
Nonetheless, beyond the second step, the ALJ must consider the entirety of the
claimant’s limitations, regardless of whether they are individually disabling.
Griffin v. Comm’r of Soc. Sec., 560 F. App’x 837, 841-42 (11th Cir. 2014) (internal citations
omitted). If any impairment or combination of impairments qualifies as “severe,” step two is
satisfied and the claim advances to step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850,
852 (11th Cir. 2013) (citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)).
In this case, the ALJ found that at step two, the Plaintiff had the following severe
impairments: lumbar degenerative disc disease, osteoarthritis of the patella; and depressive
reaction. (Tr. at 14). Thus, the step two analysis is satisfied and any error in failing to identify
palindromic rheumatism was harmless as long as the ALJ considered all of Plaintiff’s
impairments at the later steps in the decision.
Normally, the Court would then determine whether the ALJ had considered Plaintiff’s
palindromic rheumatism in combination with Plaintiff’s other impairments in determining
Plaintiff’s RFC. In this case, however, as a threshold matter, the Court must consider whether
objective medical evidence supports Plaintiff’s diagnosis of palindromic rheumatism during the
relevant time period from Plaintiff’s onset date of June 25, 2009 through Plaintiff’s date last
insured of June 30, 2009 – a six (6) day period. For disability insurance claims, a claimant must
demonstrate a disability on or before the date last insured. See Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005).
Plaintiff asserts that in a letter dated September 22, 2014, A. Katherine Frailing, D.O.,
Plaintiff’s primary care physician since November 2000, explained that Plaintiff was finally

7

diagnosed recently with palindromic rheumatism that correlated to his symptoms of pain,
swelling, and weakness. (Id.). Plaintiff argues that, “[i]mplicit in this letter is an opinion that the
claimant had been complaining of symptoms, which could not be explained through objective
testing such as MRIs, x-rays[,] and labs, and that the symptoms have been present for many
years, and that the claimant probably had the condition of palindromic rheumatism all these
years, but simply was not diagnosed.” (Id. at 6). Plaintiff cites to medical records indicating that
Plaintiff complained of knee, back and foot pain since 2007. (Id.). In sum, Plaintiff argues that
under the totality of the circumstances, including (1) Plaintiff’s complaints and the lack of
objective evidence to explain Plaintiff’s pain symptoms, (2) a later diagnosis of palindromic
rheumatism, and (3) the statement from his doctor, “suggests that this condition was in existence
prior to the Plaintiff’s date last insured and prior to the prior decision.” (Id. at 6-7).
The Commissioner maintains that the ALJ correctly noted that Plaintiff was first
diagnosed with palindromic rheumatism on March 13, 2014, more than four (4) years after the
date last insured. (Doc. 22 at 4). The Commissioner also maintains that the ALJ correctly stated
that the record is void of objective medical evidence to establish this impairment during the
relevant period. (Id.). Further, the Commissioner contends that Dr. Frailing’s letter does not
provide any specific dates as to the onset of Plaintiff’s palindromic rheumatism. (Id. at 5-6).
Finally, the Commissioner argues that Plaintiff failed to meet his burden to demonstrate he was
disabled between June 25, 2009 and June 30, 2009.
The medical records of record relating to the first diagnosis of palindromic rheumatism
are as follows. On March 13, 2014, Plaintiff saw Steven Fink, D.O. (Tr. at 695-97). Plaintiff
complained that in the four (4) to five (5) months prior to his visit, he had developed episodic
swelling in his joints. (Id. at 695). Plaintiff described the problem as periodically having random

8

joints swell, causing pain, and then returning to normal after anywhere from one (1) to two (2)
days. (Id.). Dr. Fink prescribed medication for Plaintiff. (Id. at 697). On September 24, 2014,
Plaintiff returned to Dr. Fink for a follow up visit. (Id. at 748). Plaintiff reported to Dr. Fink that
for “the last several years” Plaintiff had pain and stiffness in his hands and found it difficult to
work due to the paresthesias, stiffness, pain, and swelling. (Id.). Dr. Fink stated, “[i]t is
plausible that the early hand symptomology that [Plaintiff] was experiencing may have been an
early inflammatory arthropathy.” (Id.)
On September 22, 2014, Dr. Frailing wrote the following letter:
Thomas Ogorzelec is a patient with the Bay Pines VA Healthcare System. I have
been his designated primary care provider since November 2000. Mr. Ogorzelec
has had multiple tests for pain and stiffness of his extremities including MRI’s, xrays and labs. He was finally diagnosed in the recent months with palindromic
rheumatism and is being managed by a rheumatologist. The symptoms he has been
having of pain, swelling, weakness correlate with his diagnosis.
(Id. at 747).
The ALJ specifically acknowledged Plaintiff’s contention that he suffered from
palindromic rheumatism. The ALJ determined:
The claimant and his representative have alleged that the claimant also had
palindromic rheumatism. However, the evidence of record indicates that this
condition was not diagnosed until about five years after the date last insured in
2014. While the claimant argues that he exhibited signs and symptoms of this
disorder in 2009, the record is simply void of objective medical laboratory or
clinical findings to establish the existence of such a medically determinable
impairment at times relevant to this decision.
(Id. at 15). The ALJ referenced Dr. Frailing’s letter noting that even though Dr. Frailing was
Plaintiff’s primary care physician since 2000, her letter did not indicate that Plaintiff’s
palindromic rheumatism existed prior to the date last insured. (Id.). Overall, the ALJ afforded
little weight to the argument that Plaintiff suffered from palindromic rheumatism during the
relevant time period. (Id. at 18).

9

Upon consideration of these medical records and opinions as well as the other medical
records in evidence, the Court finds that Plaintiff has not demonstrated that he was diagnosed
with palindromic rheumatism or established the existence of such a medically determinable
impairment during the relevant time period of June 25, 2009 through June 30, 2009. Dr. Fink
first diagnosed Plaintiff with palindromic rheumatism on March 13, 2014, more than four (4)
years after the relevant time period. (See Tr. at 695-97). At that visit, Plaintiff reported that in
the prior four (4) to five (5) months, he had developed episodic joint swelling. (Id. at 695). This
time period does not fall within the relevant time period in this case. Later in September 2014,
Plaintiff reported to Dr. Fink that for the last several years, Plaintiff suffered from swelling,
stiffness, and pain in various joints. (Id. at 748). Even if “several years” could possibly be
construed to fall within the relevant time period, Plaintiff’s report is not substantiated by any
objective medical evidence during the relevant time period. Further, although Plaintiff relies on
Dr. Frailing’s letter, her letter only indicates that Plaintiff was “finally” diagnosed with
palindromic rheumatism, but does not indicate with any specificity when Plaintiff’s symptoms
began.
The Court finds that the ALJ’s determination that Plaintiff was not diagnosed with
palindromic rheumatism or established the existence of such a medically determinable
impairment during the relevant time period is supported by substantial evidence. The Court
further finds that the ALJ did not err in failing to find Plaintiff’s palindromic rheumatism severe
at step two of the sequential evaluation.
In one sentence and without citation to any legal authority, Plaintiff raises the issue that
Dr. Frailing’s letter suggests that Plaintiff suffered from palindromic rheumatism prior to June
30, 2009 and, at a minimum, the ALJ should have re-contacted Dr. Frailing for clarification of

10

her opinion. (Doc. 21 at 6). The Commissioner counters that Plaintiff failed to show any actual
ambiguity or conflict in the record to justify further development of the record. (Doc. 22 at 6).
In completing the five-step sequential process, the ALJ has a duty to develop a full and
fair record, whether the claimant is represented by counsel or not. Mosley v. Acting Comm’r of
Soc. Sec. Admin., 633 F. App’x 739, 741 (11th Cir. 2015) (citing Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir. 1981)). Nevertheless, the claimant bears the burden of proving that he is
disabled and, accordingly, is responsible for producing evidence to support his claim. Id.
Moreover, remand is required only when:
“the record reveals evidentiary gaps which result in unfairness or clear prejudice.”
Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 2015. In other words, “there must
be a showing of prejudice before we will find that the claimant’s right to due
process has been violated to such a degree that the case must be remanded to the
[ALJ] for further development of the record.” Id. Prejudice requires a showing
that “the ALJ did not have all of the relevant evidence before him in the record
(which would include relevant testimony from claimant), or that the ALJ did not
consider all of the evidence in the record in reaching his decision.” Kelley v.
Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)
Id. at 742.
Here, the record is clear and does not contain any evidentiary gaps. Plaintiff was
diagnosed with palindromic rheumatism in March 2014, over four years after the date last
insured. Based upon Plaintiff’s subjective reporting – at most – both Dr. Fink and Dr. Frailing
suggest that Plaintiff may have suffered from palindromic rheumatism for some period of time
prior to his official diagnosis date, but no records or opinions indicate that Plaintiff suffered from
palindromic rheumatism over four (4) years prior to his diagnosis. The administrative record
contains treatment records from the relevant time period and Plaintiff fails to demonstrate that
these records document any diagnosis of or that Plaintiff suffered from palindromic rheumatism
between June 25 and June 30, 2009. The Court finds that the ALJ did not err in failing to re-

11

contact Dr. Frailing for clarification of her opinion and the ALJ’s decision is supported by
substantial evidence as to this issue.
B.

Whether the ALJ Erred in Applying the Pain Standard

Plaintiff contends that, assuming Plaintiff had the undiagnosed condition of palindromic
rheumatism as of the date last insured, the ALJ erred in failing to evaluate Plaintiff’s pain
symptoms under the Eleventh Circuit’s pain standard. (Doc. 21 at 7). The Court determined
above that Plaintiff failed to establish that he suffered from palindromic rheumatism during the
relevant time period and, thus, the ALJ did not err in failing to consider this condition when
applying the Eleventh Circuit’s pain standard. Moreover, substantial evidence supports the
ALJ’s finding that even though Plaintiff’s medically determinable impairments could reasonably
be expected to cause some of the alleged symptoms, his statements concerning the intensity,
persistence, and limiting effects of these symptoms are not entirely credible for the reasons
explained in the decision. (Tr. at 17).
III.

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

Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. §405(g). The Clerk is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the case.

12

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

Copies furnished to:
Counsel of Record
Unrepresented Parties

13