HODGES v. GROCHOWSKI
Filing
22
MEMORANDUM OPINION AND ORDER - Accordingly, pursuant to 42 U.S.C § 405(g), the decision of the Commissioner to deny Plaintiff's applications for Social Security benefits is AFFIRMED. The Clerk is DIRECTED to enter judgment for the Defendant. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 12/9/2013. (dlt)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
TOMMY D. HODGES,
Plaintiff,
vs.
Case No. 4:12cv493-CAS
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
/
MEMORANDUM OPINION AND ORDER
This is a Social Security case referred to the undersigned upon consent of the
parties, doc. 10, and reference by Chief United States District Judge M. Casey Rodgers.
Doc. 11. The Court concludes that the decision of the Commissioner should be affirmed.
I. Procedural History
On June 21, 2007, Plaintiff, Tommy D. Hodges, applied for a period of disability
and Disability Insurance Benefits (DIB) pursuant to Title II Social Security Act (Act) and on
June 26, 2007, also applied for Supplemental Security Income (SSI) benefits pursuant to
under Title XVI of the Act for a period of disability with an alleged onset date of May 19,
2001. R. 11, 118-20. (Citations to the Record shall be by the symbol “R”. followed by a
page number that appears in the lower right corner.)
Plaintiff’s claims were denied initially on October 2, 2007, and upon
reconsideration on June 11, 2008. R. 11, 71-80. On June 19, 2008, Plaintiff requested
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a hearing. R. 11. On January 13, 2010, in Tallahassee, Florida, an evidentiary hearing
was conducted by Administrative Law Judge (ALJ) Brendan Flanagan. R. 11, 26-62.
Plaintiff was represented by James A. Kole, an attorney. R. 11, 88-91. Plaintiff
testified. R. 11, 33-58. Ron C. Mayne testified as an impartial vocational expert. R.
11, 58-61, 115-16 (Resume).
On January 22, 2010, the ALJ entered a decision concluding that Plaintiff is not
disabled. R. 21. On or about February 3, 2010, Plaintiff filed a request for review of the
ALJ’s decision that was denied on July 18, 2012. R. 1-7. Plaintiff provided the Appeals
Council with additional evidence from Plaintiff’s treating physician, Jeffrey Wasserman,
D.O. The information consisted of a Physical Capacity Evaluation Checklist form and a
Secondary Requirement Checklist form dated February 1, 2010. R. 471-76.1 The
ALJ’s decision stands as the final decision of the Commissioner.
On September 18, 2012, Plaintiff, appearing pro se, filed a Complaint in this Court
requesting judicial review of the Commissioner’s final decision. Doc. 1. On October 22,
2012, Plaintiff filed an Amended Complaint, doc. 5, followed by a Second Amended
Complaint on November 28, 2012. Doc. 7. On February 12, 2013, the Commissioner
filed an Answer. Doc. 12. On April 30, 2013, Plaintiff filed a memorandum, doc. 18,
followed by a second memorandum filed on May 29, 2013. Doc. 20. On June 13, 2013,
the Commissioner filed a memorandum. Doc. 21. The memoranda have been
considered.
1
The Appeals Council noted that Plaintiff was found to be under a disability
beginning January 23, 2010, one day after ALJ Flanagan’s decision in this case, based
on the application(s) filed on August 25, 2010. R. 2. The Appeals Council determined
that the additional evidence did not warrant a change in the ALJ’s decision. Id.
Case No. 4:12cv493-CAS
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II. Legal Standards Guiding Judicial Review
This Court must determine whether the Commissioner's decision is supported by
substantial evidence in the record and premised upon correct legal principles.
42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The Commissioner's factual
findings are conclusive if supported by substantial evidence.” Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002) (citations omitted).2
“In making an initial determination of disability, the examiner must consider four
factors: ‘(1) objective medical facts or clinical findings; (2) diagnosis of examining
physicians; (3) subjective evidence of pain and disability as testified to by the claimant
and corroborated by [other observers, including family members], and (4) the claimant’s
age, education, and work history.’” Bloodsworth, 703 F.2d at 1240 (citations omitted).
A disability is defined as a physical or mental impairment of such severity that the
2
“If the Commissioner's decision is supported by substantial evidence we must
affirm, even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240, n.8 (11th Cir. 2004) (citations omitted). “A ‘substantial evidence’ standard,
however, does not permit a court to uphold the Secretary's decision by referring only to
those parts of the record which support the ALJ. A reviewing court must view the entire
record and take account of evidence in the record which detracts from the evidence relied
on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). “Unless the
Secretary has analyzed all evidence and has sufficiently explained the weight he has
given to obviously probative exhibits, to say that his decision is supported by substantial
evidence approaches an abdication of the court's ‘duty to scrutinize the record as a whole
to determine whether the conclusions reached are rational.’” Cowart v. Schweiker, 662
F.2d 731, 735 (11th Cir. 1981) (citations omitted).
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claimant is not only unable to do past relevant work, “but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A disability is an
“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); see 20 C.F.R. § 416.909 (duration requirement).
Both the “impairment” and the “inability” must be expected to last not less than 12 months.
Barnhart v. Walton, 535 U.S. 212 (2002). In addition, an individual is entitled to DIB if he
is under a disability prior to the expiration of his insured status. See
42 U.S.C. § 423(a)(1)(A); Moore v. Barnhart, 405 F.3d at 1211; Torres v. Sec’y of Health
& Human Servs., 845 F.2d 1136, 1137-38 (1st Cir. 1988); Cruz Rivera v. Sec’y of Health
& Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).
The Commissioner analyzes a claim in five steps. 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v):
1. Is the individual currently engaged in substantial gainful activity?
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet or equal
those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P?
4. Does the individual have any impairments which prevent past relevant
work?
5. Do the individual’s impairments prevent other work?
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A positive finding at step one or a negative finding at step two results in disapproval of the
application for benefits. A positive finding at step three results in approval of the
application for benefits. At step four, the claimant bears the burden of establishing a
severe impairment that precludes the performance of past relevant work. Consideration
is given to the assessment of the claimant’s RFC and the claimant’s past relevant work.
If the claimant can still do past relevant work, there will be a finding that the claimant is not
disabled. If the claimant carries this burden, however, the burden shifts to the
Commissioner at step five to establish that despite the claimant’s impairments, the
claimant is able to perform other work in the national economy in light of the claimant’s
RFC, age, education, and work experience. Phillips, 357 F.3d at 1237; Jones v. Apfel,
190 F.3d 1224, 1229 (11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen,
786 F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
If the Commissioner carries this burden, the claimant must prove that he or she cannot
perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011
(11th Cir. 1987).
III. Legal Analysis
A. The ALJ’s decision and the record evidence
1.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since May 19, 2001, the alleged onset date. R. 13. The ALJ noted that Plaintiff
worked after the alleged disability date; however, this work was an unsuccessful work
attempt. The ALJ noted that Plaintiff earned $4,829 (in 2004). Id. He worked for
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Penny A. Anstey, Mobiltech Automotive Center. R. 126. The ALJ also noted that
Plaintiff testified that he was performing work as an auto-mechanic. R. 13.
2.
At step two, the ALJ found that Plaintiff has two severe impairments: degenerative
disc disease and angina, which caused more than a minimal limitation on Plaintiff’s ability
to perform basic work activity. R. 13. The ALJ considered Plaintiff’s stated difficulties
with his right arm, discussing patient records from Robert Thornberry, M.D., R. 346-80
(Exhibit 15F); a consultative examination report performed by Carla Holloman, D.O., R.
238-42 (Exhibit 4F); and a consultative examination report performed by Wayne
Sampson, M.D., R. 307-16 (Exhibit 10F).3 R. 14. (These consultative examinations
3
On May 21, 2001, Plaintiff sustained “a severe explosive-type injury to his [right]
forearm with the explosion of a tire he was changing.” R. 379. (In his memorandum,
Plaintiff claims that he injured his right arm in May 2001 when he “was thrown into a soda
machine.” Doc. 20 at 2; but see R. 52 (Plaintiff testified that a “[t]ire blew up with [him]”
requiring surgery of his right forearm.) After physical therapy and by June 26, 2001, Dr.
Thornberry noted that Plaintiff’s “hand function is getting much much better. He’s
working on his own. . . .He’s got an elbow that’s got full ROM. He’s got almost full
pronation and supination, which is very very good. His skin grafts have healed up very
well and overall considering the severity of his accident, he’s making dramatic progress.”
R. 371. Dr. Thornberry felt he needed to “make sure to caution him, in his use at work
and see him back in six weeks and see if this hasn’t united by that point in time.” Id. By
July 10, 2001, Dr. Thornberry noted the need to remove the ulnar and radial plates and
“put in substantial bone grafts and place new plates.” R. 369. Dr. Thornberry also
noted that Plaintiff “was strongly encouraged to cease cigarette smoking, to cease
drinking alcoholic beverages of any kind, to eat well and to not use this arm for changing
tires.” Id. On July 18, 2001, the hardware was surgically removed and other
procedures performed. R. 366. Dr. Thornberry noted that Plaintiff had ignored all
advice not to use this arm except for range of motion in order to improve his function.
Plaintiff “used the arm extensively until the plates were loosened and became painful and
surgery became necessary. Id.; see R. 17, 372
(Dr. Thornberry noting that Plaintiff had hurt his back while mowing the yard and normal
x-rays. He indicated that it was “basically a lumbosacral strain.”) By August 21, 2001,
Plaintiff was no longer prescribed narcotics for pain and was to take Ibuprofen, Tylenol or
Case No. 4:12cv493-CAS
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were not favorable to Plaintiff. Id.) The ALJ found that Plaintiff’s “right arm injury does
not cause more than a minimal limitation on [Plaintiff’s] ability to perform basic work
activity, and therefore is nonsevere.” Id.
The ALJ considered Plaintiff’s complaint of chronic obstructive pulmonary disease
(COPD) in light of Plaintiff’s testimony; Plaintiff’s reports to Dr. Wasserman of shortness
of breath; and the reports of Drs. Holloman and Sampson. R. 14-15.
The ALJ noted that Plaintiff testified that he was
unable to work because he experiences shortness of breath with any exertion.
The claimant testified that currently he takes Advair and Spiriva for his breathing
problems. He explained that these help his breathing problems “somewhat.”
The claimant further testified that he smokes a pack and one half of cigarettes
each day. The claimant stated that he has not used marijuana in over fifteen
years. [R. 38-39, 50. 52-53]. However, on August 28, 2007[,] the claimant
admitted to the use of marijuana to Dr. Holloman. (Exhibit 4-F) [R. 238].
The claimant did not begin consistently reporting shortness of breath to his primary
care physician Jeffrey Wasserman, D.O., until November of 2008. (Exhibit 17-F)
[R. 427-28]. Prior to that time, the claimant frequently reported no dyspnea and
no decrease in breath sounds were heard. (Exhibit 9-F).
Dr. Wasserman treated the claimant for diffuse obstructive chronic bronchitis.
The claimant was consistently advised to stop smoking. (Exhibits 9-F, 17-F).
R. 14-15.
both together. R. 362. On November 26, 2001, Dr. Thornberry performed another
surgical procedure to remove hardware (plate), bone graft, nonunion, and re-internal
fixation of the radius. R. 357. Plaintiff had an office visit on December 6, 2001, and
prescribed a 10-day supply of Vicodin with no refills. R. 356. By December 18, 2001,
Plaintiff’s ulna was completely healed and the radius was the only hold-up. R. 355. An
April 4, 2002, CT of Plaintiff’s right wrist was performed and the impression was healed
distal radial and ulnar fracture without no complications such as avascular necrosis
identified. R. 349. On April 18, 2002, Dr. Thornberry reviewed the CT and x-rays and
noted: “He can go out and use his arm in any way he sees fit and earn any type of living
that he desires. We are going to release him today to return to see us on an as needed
basis.” R. 348. The ALJ captured the essence of these patient notes in his decision.
R. 14.
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As noted by the ALJ, Plaintiff began treating with Dr. Wasserman on January 17,
2008. R. 17, 297-300. At that time, Plaintiff complained, in part, of shortness of breath.
R. 297. Pulmonary symptoms were dyspnea during exertion. R. 298. Examination of
his lungs revealed a decrease in breath sound was heard; no wheezing was heard; no
rhonchi were heard; and no rales/crackles were heard. R. 299. On January 24, 2008,
none of these symptoms were heard, although dyspnea during exertion is noted under
pulmonary symptoms. R. 296; see R. 289, 291, 294-95, 444-45.
Treatment records indicate that Plaintiff frequently had lumbosacral pain elicited
by motion. R. 289-99. As noted by the ALJ, a MRI of Plaintiff’s lumbar spine was
performed on March 12, 2008, which showed mild dextroscoliosis, mild spondylosis, and
circumferential disc bulging at L3-4 and L4-5. Normal alignment and normal lordosis
were maintained; no fracture, compression, deformity, or narrow replacing lesion found;
and the conus terminated normally at L1 and the nerve roots were distributed normally in
the sac. R. 17, 301. Dr. Wasserman referred Plaintiff for a consultation with a pain
specialist. R. 17, 290.
On April 30, 2008, Plaintiff reported no chest pain or discomfort and no dyspnea.4
4
Th ALJ noted that on April 15, 2008, Plaintiff reported to consultative examiner,
Dr. Sampson, “that he was having dyspnea which was progressive for the past year.
Spirometric pulmonary function tests were performed and the claimant’s results
pre-bronchodilation were normal (FVC/FEV1; 4.23/3.28, 4.37/3.46, and 4.22/3.27.)
Post-bronchodilation tests were not administered. (Exhibit 10-F). Lower extremity
physiologic studies were performed and all results were within the normal range.
(Exhibit 11-F).” R. 15, 308-16, 317-21. During his RFC assessment, the ALJ again
referred to Dr. Sampson’s examination. R. 17. Plaintiff’s tandem walk was poor and he
had a stooped posture; his gait was broad-based and unstable and use of a cane was
necessary. Plaintiff’s back was non-tender with no spasms; his straight-leg raises were
negative supine and siting and his ROM in his lumbar spine was within normal limits. His
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R. 440-41. On June 16, 2008, Plaintiff reported sudden onset of chest pain with
shortness of breath, but no lung adverse symptoms, such as decrease in breath sounds
was heard. Examination of Plaintiff’s cardiovascular system was normal. R. 437-38;
see R. 434-36. On September 19, 2008, Dr. Wasserman assessed Plaintiff’s complaints
of, in part, cardiac and respiratory status. R. 431. A decrease in breath sounds was
heard; no wheezing was heard; no rhonchi were heard; and no rales/crackles were heard.
Examination of Plaintiff’s cardiovascular system was normal. Id. Dr. Wasserman’s
assessment included diffuse obstructive chronic bronchitis, obesity, compression
arthralgia of the shoulder region, lumbago, and bulging lumbar disc.5 R. 432. On
November 20, 2008, Plaintiff received a pulmonary evaluation. R. 427-28. No lungs
symptoms were heard. Plaintiff had pain in his left shoulder on motion and lumbosacral
spine pain elicited on motion. Plaintiff was counselled on proper diet. Plaintiff was
continued on several medications, including Lortab, Diovan, Zanaflex, K-Dur. R. 428.
Plaintiff continued be treated by Dr. Wasserman in 2009, with examination of his
lungs generally revealing similar findings, such as no decrease in breath sounds was
heard; no wheezing was heard; no rhonchi were heard; and no rales/crackles were heard
and no dyspnea. See, e.g., R. 396-400, 404, 406-07, 409, 411-15, 417, 421, 423; but
see R. 402, 418-19.
The ALJ also considered Plaintiff’s application for a disabled parking permit dated
motor strength was 5/5 throughout, including hand grip. He was able to stand and walk
on his heels and toes. Dr. Sampson diagnosed Plaintiff with morbid obesity and
dyspnea with exertion--history of asthma, COPD. R. 17, 308-12.
5
Although it is not a listed impairment, the ALJ also considered Plaintiff’s obesity.
R. 16.
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March 23, 2009, in which Dr. Wasserman checked a box which stated that Plaintiff “has a
restriction by lung disease and has severe limitations in his ability to walk due to an
arthritic, neurological, or orthopedic condition. (Exhibit 3-F).” R. 15. The ALJ gave
“little weight to this opinion as it is based upon the claimant’s subjective complaints and is
not supported by the clinical findings and objective testing, including Dr. Wasserman’s
own treatment notes which often state that the claimant has no dyspnea. (Exhibit 9-F,
17-F).” R. 15. The ALJ concluded this specific subject with the following findings:
Despite the claimant’s testimony that he cannot work because he experiences
shortness of breath upon exertion, most recently on October 29, 2009 [,] the
claimant reported no dyspnea to his primary care physician. In addition, no
decrease in breath sounds was herd, no wheezing was heard, no rhonchi were
heard, and no rales/crackles were heard. (Exhibit 17-F).
The undersigned finds that based on the objective medical evidence including
diagnostic testing [COPD] does not impose more than a minimal limitation on the
claimant’s ability to perform basic work activity and is therefore nonsevere.
R. 15.
On December 9, 2009, Plaintiff received treatment for severe back pain at Capital
Regional Medical Center Emergency Department. R. 17, 450-67. X-rays of Plaintiff’s
lumbar spine showed multilevel mild to moderate spondylosis of the lower lumbar spine
from L3/L4 through L5/S1. R. 17, 466. Plaintiff was prescribed Toradol and Flexeril and
was discharged. R. 17, 457.
Plaintiff continued to receive treatment for his back pain in the form of pain
medication adjustments from Dr. Wasserman. R. 17, 396-445. Physical examination
showed that Plaintiff has lumbosacral pain with motion. Id.
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The ALJ considered Dr. Wasserman’s diagnosis of diabetes mellitus, but noted
that “treatment notes from his primary care physician, Dr. Wasserman, state it is
uncomplicated and uncontrolled. (Exhibit 17-F). In addition, the claimant has not
alleged any limitations as a result of diabetes mellitus” and, accordingly, the ALJ found
“that diabetes mellitus imposes no more than a minimal limitation on the claimant’s ability
to perform basic work activity and is therefore nonsevere.” R. 15.6 (On or about May
2009, Dr. Wasserman added an assessment of Type II diabetes mellitus-uncomplicated,
uncontrolled. R. 413-14.)
3.
At step three, the ALJ determined that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 15. (During the hearing Plaintiff’s
counsel stated that no allegation was raised regarding whether an impairment met a
listing. R. 32.) Nevertheless, the ALJ considered whether Plaintiff’s obesity affected
Plaintiff’s overall ability to perform work related functions. R. 16.
4.
After step three, the ALJ considered Plaintiff’s residual functional capacity (RFC).
R. 16-19. The ALJ’s consideration of the evidence at step two and for his RFC
determination overlaps.
6
The ALJ is not required to identify all of the impairments that should be
considered severe. See Heatly v. Comm’r of Soc. Sec., 382 F. App'x 823, 825 (11th Cir.
2010) (unpublished); see also Mariarz v. Sec’y of Health & Human Servs., 837 F.2d 240,
244 (6th Cir. 1987).
Case No. 4:12cv493-CAS
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Plaintiff’s allegations include the inability to work due to a right arm injury, and lung
and back problems. R. 16. Plaintiff testified he has had problems with his back since
2001 or 2002 and it prevents him from walking and bending. He also testified he has
problems reaching overhead. At the hearing, Plaintiff used a single cane pole that was
prescribed by Dr. Wasserman in March of 2009. He explained he uses the cane every
day. He also takes Lortab four times day and he prescribed Flexeril to be taken four time
a day. He does not have any side effects from his medications and he experiences
some relief from the pain. He testified that his blood pressure and diabetes seem “to be
working fine” with his medications. R. 16-17, 39-40, 50-54, 56-58.
The ALJ summarized Plaintiff’s daily activities:
With the regard to his activities of daily living, the claimant testified that he watches
television most of the day and plays with his dog. He occasionally washes the
dishes. The claimant testified that he can lift a gallon of milk with his left hand.
The claimant reported to Dr. Price that he cleans the house, does some yard work,
cooks, and washes dishes. (Exhibit 6-F). The claimant testified he is able to
simple meals such as frying a hamburger or boiling macaroni.
At the hearing, the claimant testified that is not able to stand for a shower, but must
take a bath instead. The claimant testified that he has difficulty with his shoes and
wears Velcro shoes. On his function report in August of 2007, the claimant did not
have problems bathing but did have problems with his shoes. (Exhibit 3-E). The
claimant goes to visit his family on weekends. They live within 50 miles.
Claimant occasionally takes car trips to and from Atlanta and North Carolina. The
claimant does not drive on these trips. The claimant occasionally plays card
games such a [sic] solitaire on the computer.
The claimant testified that his back pain prevents him from walking and bending.
On his activities of daily living form, the claimant indicated that he can lift and carry
10-20 pounds. He also estimated that he can walk 20-25 feet before experiencing
shortness of breath or pain. (Exhibit 8-E).
R. 18.
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On June 20, 2001, Plaintiff began complaining of severe lower back pain after
mowing the lawn. Dr. Thornberry ordered radiographs, AP and lateral of the lumbar
spine, “which are entirely normal.” Dr. Thornberry indicated that it was a lumbosacral
strain. R. 17, 372. On August 28, 2007, Dr. Holloman noted that Plaintiff’s spine and
extremities were in good alignment and there were no paravertebral tautness or
tenderness and Plaintiff’s ROM in his spine was normal. R. 17, 239-42. As noted
above, Plaintiff began treating with Dr. Wasserman in January of 2008. R. 17.
Dr. Wasserman’s treatment notes indicate that Plaintiff had lumbosacral pain elicited by
motion. See supra at 8.
With regard to his chest pain, Plaintiff testified that he did not have a heart attack
but rather had muscle spasms of the heart. Plaintiff explained that a catheterization was
performed and with his heart medication he has not had any more problems.
R. 17. (The ALJ further discussed Plaintiff’s admission to Tallahassee Regional Medical
Center in July of 2007 with chest pains. Tests results were normal. R. 17-18.)
The ALJ considered several consultant assessments and other evidence when
completing his RFC assessment. R. 18-19.
A residual functional capacity assessment performed by Ronald Kline, M.D., on
September 13, 2007[,] found that the claimant is capable of: occasionally lifting fifty
pounds; frequently lifting twenty-five pounds; standing or walking six hours of an
eight hour workday; and sitting six hours of an eight hour workday. (Exhibit 5-F).
The undersigned gives little weight to Dr. Kline’s opinion as it is inconsistent with
the greater weight of the evidence which supports the conclusion that the claimant
has additional limitations which limit him to light exertion work.
On June 11, 2008, a residual functional capacity performed by David Guttman,
M.D., found that the claimant is capable of: occasionally lifting/carrying twenty
pounds; frequently lifting/carrying 10 pounds; standing or walking six hours of an
eight hour workday; and sitting six hours of an eight hour workday. Dr. Guttman
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further found that the claimant is limited to occasional climbing ramps/stairs,
stooping, kneeling, couching, and crawling. The claimant cannot climb
ladders/ropes/scaffolds or balance. In addition, he should avoid concentrated
exposure to extreme heat. Dr. Guttman finally opined that the claimant should
avoid even moderate exposure to hazards such as machinery, heights, etc.
(Exhibit 12-F). The undersigned does not give weight to Dr. Guttman's opinion
regarding postural and environmental limitations. However, great weight is given
to Dr. Guttman's opinion that the claimant is capable of performing light exertion
work as it is consistent with the overall evidence of record, including the claimant's
statements that he was able to lift 10-20 pounds.
Rodrigo A. Agbunag, Jr., M.D., evaluated the claimant on July 29, 2008 [,] for a
permanent impairment rating following a motor vehicle accident which occurred on
November 19, 2004. The claimant reported that he had relief with his as needed
basis pain medications. Dr. Agbunag opined that the claimant had reached
maximum medical improvement and had a total impairment rating of 10 percent.
(Exhibit 14-F). The undersigned has given some weight to
Dr. Agunag’s, however, determinations of disability under the Social Security Act
are ultimately reserved to the Commissioner.
On an application for a disabled person parking permit dated March 23, 2009,
Dr. Wasserman checked the boxes which stated that the claimant has a restriction
by lung disease and has severe limitations in his ability to walk due to an arthritic,
neurological, or orthopedic condition. (Exhibit 3-F). The undersigned has
considered Dr. Wasserman’s opinion, but gives it little weight because it is not
bolstered by the overall medical evidence of record including his own treatment
records.
The undersigned gives great weight to Dr. Guttman’s opinion that the claimant is
capable of performing light exertion work, and accordingly adopts a residual
functional capacity for light exertion work. In reaching this conclusion, the
undersigned finds the claimant credible to the extent that he would experience
some back pain. The residual functional capacity was reduced to accommodate
these limitations, including the requirements that the claimant cannot climb
ladders/ropes/scaffolds and should avoid hazards such as exposure to electrical
shock, working in high exposed places, enclosure to radiant energy, working with
explosives, and exposure to toxic or caustic chemicals. The objective evidence
fails to document the presence of any impairment or combination of impairments
that could reasonably be expected to result in pain or other symptoms of such a
severity or frequency as to preclude the range of work described above.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
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intensity, persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above residual functional capacity
assessment. Based on the overall medical evidence of record, the undersigned
cannot find that the claimant’s allegation that he is incapable of all work activity is
fully credible.
R. 18-19.
5.
At step four, the ALJ determined that Plaintiff “is unable to perform any past
relevant work as a construction worker, mechanic, frame carpenter, and tire changer.
These jobs were performed at the medium to heavy exertion levels. Accordingly, the
claimant is unable to perform past relevant work.” R. 19.
6.
At step five, the ALJ determined that considering Plaintiff’s age (44 as of January
22, 2010, the date of the ALJ’s decision; 41 as of March 31, 2007, the last date insured for
DIB; 35 as of May 19, 2001, the alleged onset date); education (8th grade and limited);
work experience; and RFC; that “there are jobs in that exist in significant numbers in the
national economy that the claimant can perform,” such as parking booth attendant.7 R.
20. First, the ALJ determined that under the Medical-Vocational Rules (the Grids) and
specifically Rules 202.11 and 202.18 a finding of not disabled is directed based on
7
Younger individuals are between the ages of 18 and 49. See 20 C.F.R.
§ 404.1563(c). A person closely approaching advanced age is between 50 and 54.
20 C.F.R. § 404.1563(d). After finding that Plaintiff was 35 years old on the alleged
disability date, he then stated that Plaintiff “subsequently changed age category to closely
approaching advanced age.” R. 20. It appears the ALJ is mistaken. As noted herein,
Plaintiff was 44 years old as of the date of the ALJ’s decision. See 20 C.F.R. §
404.1563(b) (“We will use each of the age categories that applies to you during the period
for which we must determine if you are disabled.”). Here, for SSI, that end date is the
ALJ’s decision, and for DIB, the end date is March 31, 2007, the date last insured. R. 21.
Case No. 4:12cv493-CAS
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Plaintiff’s RFC for the full range of light work, considering Plaintiff’s age, education, and
work experience. R. 20.
Notwithstanding, the ALJ inquired of Mr. Mayne, the vocational expert, at hearing.
R. 58-61. Mr. Mayne testified that Plaintiff could not perform his past relevant work. R.
59-60. The ALJ then asked Mr. Mayne to
assume that a hypothetical individual with the same past relevant work
experience as you’ve described and the same age and education of the claimant
which are a younger individual and limited education; and assume further that said
hypothetical individual is only capable of working with the functional limitations I
just described [RFC to perform the full range of light work except never climb
ladders, ropes, or scaffolds and avoid hazards including exposure to electrical
shock, working at heights, exposed places and radiant energy, working with
explosives , and exposure to toxic and caustic chemicals]--the light exertion level
with the other limitations, are there other jobs that the hypothetical individual could
perform in the regional economy?
R. 60. Mr. Mayne responded: “[p]ossibly parking booth attendant.” Id.
Mr. Mayne referred to Dictionary of Occupational Titles (DOT) number 915.473-010 and
further stated that there are 135,000 nationally and 11,800 in Florida. R. 60-61. The job
is described as light and semi-skilled. R. 61. Mr. Mayne testified that his testimony was
consistent with the DOT. Id.; see R. 20-21.
B. Substantial evidence supports the ALJ’s decision to deny Social
Security benefits under DIB and SSI.
1.
Plaintiff argues that the ALJ did not adequately develop the record. Doc. 20 at
2-4. Closely allied with this argument is Plaintiff’s argument that his attorney did not call
appropriate witnesses and provide relevant evidence that would have supported his
various claims of disability. Plaintiff is most dissatisfied with his attorney’s performance
Case No. 4:12cv493-CAS
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such that he feels he left the hearing “as if [he] had no hearing and that [his] Attorney
actually worked for the Social Security Administration instead of [him].”8 Doc. 20 at 4.
Plaintiff argues that the ALJ should have included medical records from a local
hospital pertaining to his injury sustained on May 19, 2001, and the police report and
pictures from the accident. Doc. 20 at 2. Plaintiff claims his “witness could have and
will if given the chance testify that the metal on the inside of [the soda machine] had dents
in it from the impact of [his] body of which can be seen in the pictures taken by the
Sheriff’s Office.” Id. He claims that his left arm was injured when he was “thrown into a
soda machine.” Id. The evidence of record indicates that Plaintiff injured his right
forearm after an explosion of a tire he was changing. R. 14. The ALJ acknowledged
Plaintiff’s May 2001 arm injury and summarized the treatment records for that period. R.
14. Plaintiff has not shown how the police report or emergency room records from the
day of the injury would add anything material to this record, especially in light of Dr.
Thornberry’s detailed patient notes from the date of the injury and thereafter during the
healing process.
Plaintiff argues that his fiancé should have been able to testify. Doc. 20 at 3; see
R. 34, 38. Plaintiff claims his attorney told him “that she could not come into the Hearing
8
“The Supreme Court has never recognized a constitutional right to counsel in
Social Security proceedings." Cornett v. Astrue, 261 F. App’x 644, 651 (5th Cir.2008)
(unpublished) (rejecting ineffective assistance of counsel claim where plaintiff was denied
SSI and citing Brandyburg v. Sullivan, 959 F.2d 555, 562 (5th Cir.1992)). At least one
court specifically has held that a Social Security claimant who is represented by counsel
of the claimant’s own choosing may not later claim that counsel was ineffective. See
Hettinger v. Richardson, 365 F.Supp. 1245, 1246 (E.D. Pa.1973); see also Cole v.
Comm’r of Soc. Sec., Civil Action No. 2:09CV225-SAA, 2010 U.S. Dist. LEXIS 98453, at
*15 (N.D. Miss. Sept. 20, 2010). Although of little comfort for Plaintiff, at the end of the
hearing, the ALJ told Plaintiff’s attorney: “I think you did a nice job.” R. 61.
Case No. 4:12cv493-CAS
Page 18 of 24
with [him].” It appears that this person filled out a Function Report on August 17, 2007,
and provided details regarding Plaintiff’s daily activities. R. 145-52 (Exhibit 3E). The
ALJ briefly referred to this exhibit. R. 18. Although Plaintiff is dissatisfied with his
attorney for not calling her to testify, Plaintiff does not state the nature of any material
testimony that she could have offered that would have been new and different from that
which is already in the record and considered by the ALJ.
Plaintiff also argues that if he had been allowed to call witnesses, he would have
called his mother who would have testified that he had breathing problems as a baby.
Doc. 20 at 4. Plaintiff’s breathing issues are addressed in the record as described herein
and addressed by the ALJ.
Plaintiff bears the burden of proving that he is disabled, and consequently, is
responsible for producing evidence in support of his claim. See 20 C.F.R. §§
404.1512(a); 416.912(a); Moore v. Barnhart, 405 F.3d at 1211. On the other hand, an
ALJ has a clear duty to fully and fairly develop the administrative record. Brown v.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995); 20 C.F.R. §§ 404.1512(d), 416.912(d).
The question here is whether there are “the kinds of gaps in the evidence necessary to
demonstrate prejudice” to Plaintiff. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.
1997). In this case, the ALJ considered the relevant and material evidence in the record.
Notwithstanding Plaintiff’s argument to the contrary, this record does not contain the kind
of gaps necessary to demonstrate prejudice to Plaintiff. Substantial evidence supports
the ALJ’s determination that Plaintiff is not disabled and no further development of the
record is required.
Case No. 4:12cv493-CAS
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2.
Plaintiff argues that the ALJ should have accorded more weight to the opinion of
his treating physician, Dr. Wasserman. Doc. 20 at 4. On March 23, 2009,
Dr. Wasserman completed a check-box application for a disabled parking permit on
behalf of Plaintiff. R. 469. Dr. Wasserman checked boxes indicating that Plaintiff was
unable to walk 200 feet due to a lung disease and severe limitation in his ability to walk
due to an arthritic, neurological condition. Id.
The ALJ summarized
Dr. Wasserman’s conclusions, but gave his opinion “little weight because it is not
bolstered by the overall medical evidence of record including his own treatment records.”
R. 19. For example, Dr. Wasserman generally noted that Plaintiff had no wheezing or
decrease in breath sounds after many physical examinations. See, e.g., R. 289, 291,
294-96. Also, Dr. Wasserman, although noting several diagnoses over time, did not
opine that Plaintiff’s impairments, including any orthopedic, arthritic, or neurological
condition, were of such magnitude that he would be unable to perform light work.
Without support from the medical records, such forms are generally not entitled to
significant weight. See Teague v. Astrue, 638 F.3d 611, 615 (8th Cir. 2011) (“Given that
the ‘check-off form’ did not cite any clinical test results or findings and Dr. Lowder’s
previous treatment notes did not report any significant limitations due to back pain, the
ALJ found that the MSS was entitled to ‘little evidentiary weight.’”); Dixon v. Astrue, No.
5:09-cv-320-RS-EMT, 2010 U.S. Dist. LEXIS 125831, 2010 WL 4942141, at *14-15 (N.D.
Fla. Oct. 26, 2010) (explaining that ALJ properly rejected opinions expressed by treating
Case No. 4:12cv493-CAS
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physician on “check-off” type forms where treating physician's own treatment notes did
not support opinions expressed on those forms).
Additionally, evidence from other physicians is inconsistent with
Dr. Wasserman’s opinion as stated on the check-off form. For example, the ALJ
considered the consultative examination reports from Dr. Holloman in August 2007 and
Dr. Sampson in April 2008. R. 14-15, 17. He also considered Dr. Guttman’s June
2008, physical RFC assessment, particularly his opinion that Plaintiff “is capable of
performing light exertion work.” R. 18-19. These consultative opinions are inconsistent
with Dr. Wasserman’s opinion and the ALJ stated specific reasons for discounting his
opinion even though he was a treating physician. See Moore v. Barnhart, 403 F.3d at
1212. Substantial evidence supports the ALJ’s consideration of Dr. Wasserman’s
opinions. R. 15, 17, 19.
3.
Plaintiff argues that the ALJ erred when he found that Plaintiff could perform other
work such as a parking booth attendant and, in part, takes issue with the ALJ relying on
the vocational expert’s opinion that Plaintiff could “possibly” perform this job. Doc. 20 at
2. The ALJ asked the vocational expert a hypothetical question based on Plaintiff’s [the
hypothetical person] age, education, work experience, and proven limitations. R. 59-61.
Substantial evidence supports the hypothetical question.
The vocational expert stated that such person, here Plaintiff, could possibly
perform the job as a parking booth attendant and that there were 135,000 jobs nationally
Case No. 4:12cv493-CAS
Page 21 of 24
and 11,800 jobs regionally, i.e., the state of Florida. R. 60-61. The fact that the
vocational expert added the word “possibly” does not necessarily eliminate or nullify his
testimony about the existence of jobs that exist with Plaintiff’s RFC. See generally
Eubanks-Glades v. Colvin, Case No. 13-60029-CIV-COHN/SELZER, 2013 U.S. Dist.
LEXIS 165838, at *15 (S.D. Fla. Nov. 5, 2013); Seymour v. Colvin, Civil Action
2:12-cv-1005, 2013 U.S. Dist. LEXIS 128161, at *30-31 (S.D. Ohio Sept. 9, 2013). The
DOT describes the job of “parking-lot attendant” as light work which is consistent with the
ALJ’s RFC assessment.9
Plaintiff also argues that there are not a significant number of parking booth
attendant jobs within commuting distance. Doc. 20 at 3. The regulations state that
“work exists within the national economy when it exists in significant numbers whether in
the region where you live or in several other regions of the country.” 20 C.F.R. §§
404.1566(a)(1); 416.966(a)(1). “It does not matter whether-(1) Work exists in the
immediate area in which you live.” Id. The vocational expert testified there are 11,800
such jobs in the state of Florida. R. 60-61. Substantial evidence supports the ALJ’s
9
See U.S. Dep’t of Labor, Dictionary of Occupational Titles (4th ed. Rev. 1991) at
915.473-010 (“Parks automobiles for customers in parking lot or storage garage: Places
numbered tag on windshield of automobile to be parked and hands customer similar tag
to be used later in locating parked automobile. Records time and drives automobile to
parking space, or points out parking space for customer's use. Patrols area to prevent
thefts from parked automobiles. Collects parking fee from customer, based on charges
for time automobile is parked. Takes numbered tag from customer, locates automobile,
and surrenders it to customer, or directs customer to parked automobile. May service
automobiles with gasoline, oil, and water. When parking automobiles in storage garage,
may be designated Storage-Garage Attendant (automotive ser.). May direct customers
to parking spaces. GOE: 09.04.02 STRENGTH: L GED: R2 M1 L1 SVP: 2 DLU: 81.”)
Case No. 4:12cv493-CAS
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determination that there are a sufficient number of parking booth attendant jobs to satisfy
the Commissioner’s burden at step five.
Further, Plaintiff questions whether the parking booth attendant job required a high
school education. Doc. 20 at 3. The DOT does not define whether the job requires a
high school education, but does state that the job has a specific vocational preparation
(SVP) of 2, requiring one month or less of training and a low degree of general learning
ability. (A SVP of 2 means “[a]nything beyond short demonstration up to and including 1
month.” DOT, Appendix C: Components of the Definition Trailer,
§ II, SVP.) Substantial evidence supports the ALJ’s finding that Plaintiff can perform the
job as a parking booth attendant, notwithstanding his limited education (8th grade).
Plaintiff argues that he could not perform this job because of his breathing
problems. Doc. 20 at 3. The ALJ found that Plaintiff’s COPD did not impose more than
minimal limitations on his ability to perform basic work activities and was a nonsevere
impairment. R. 15. Plaintiff’s pulmonary tests were normal. R. 15, 313. Plaintiff
frequently reported no dyspnea. R. 15, 393, 398, 400, 404, 406, 409, 411, 413, 415,
417, 429, 431. Plaintiff’s treating physician generally noted no decrease in breath
sounds, no wheezing, no rhonchi, and no rales or crackles. R. 15, 289, 291, 295, 438,
442, 445. Substantial evidence supports the ALJ’s finding that Plaintiff’s breathing
problems caused no more than minimal limitations on his ability to perform basic work
activities, including work as a parking booth attendant.
Lastly, Plaintiff argues that his case should be remanded because he was later
found disabled one day after the date of the ALJ’s decision. Doc. 20 at 2. Decisions of
Case No. 4:12cv493-CAS
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the ALJ are reviewed to determine whether the claimant is entitled to benefits during a
specific period of time, which period is prior to the date of the ALJ’s decision, here
January 22, 2010, R. 21. See Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999) (per
curiam); Cassidy v. Comm’r of Soc. Sec., 383 F. App’x 840, 842 (11th Cir. 2010)
(unpublished); Anderson v. Astrue, No. 5:06cv192/SPM/EMT, 2007 WL 5002066, at *12
(N.D. Fla. Nov. 9, 2007). The relevant period for this Court’s consideration is the
time-period prior to the ALJ’s decision. Moreover, sentence six of 42 U.S.C. § 405(g)
provides that the district court may remand the case to the Commissioner for “additional
evidence to be taken before the Commissioner . . . but only upon a showing that there is
new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.” See Allen v. Comm'r of Soc. Sec.,
561 F.3d 646, 653 (6th Cir. 2009); see also Bradley v. Bowen, 809 F.2d 1054, 1057-58
(5th Cir. 1987). Plaintiff has not provided the required good cause. As a result, a
subsequent award is not relevant. Also, the Appeals Council considered this issue, but
“found that this information does not warrant a change in the [ALJ’s] decision.” R. 2.
Remand for re-consideration of the subsequent award of benefits is not required.
Case No. 4:12cv493-CAS
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IV. Conclusion
Considering the record as a whole, the findings of the ALJ are based upon
substantial evidence in the record and the ALJ correctly followed the law. Accordingly,
pursuant to 42 U.S.C § 405(g), the decision of the Commissioner to deny Plaintiff's
applications for Social Security benefits is AFFIRMED. The Clerk is DIRECTED to
enter judgment for the Defendant.
IN CHAMBERS at Tallahassee, Florida, on December 9, 2013.
s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
Case No. 4:12cv493-CAS
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