CHAPMAN v. BERRYHILL
Filing
25
MEMORANDUM OPINION AND ORDER - Pursuant to 42 U.S.C § 405(g), the decision of the Commissioner to deny Plaintiff's application for Supplemental Security Income benefits is AFFIRMED. The Clerk shall enter judgment for Defendant. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 1/4/2018. (tdl)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
KEICA NELL CHAPMAN,
Plaintiff,
vs.
Case No. 4:17cv154-CAS
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.
/
MEMORANDUM OPINION AND ORDER
This Social Security case was referred to the undersigned upon
consent of the parties by United States District Judge Mark E. Walker.
ECF No. 8, 9. It is now before the Court pursuant to 42 U.S.C. § 405(g) for
review of the final determination of the Acting Commissioner
(Commissioner) of the Social Security Administration denying Plaintiff’s
application for Supplemental Security Income (SSI) pursuant to Title XVI of
the Social Security Act. See ECF No. 1. After careful consideration of the
record, the decision of the Commissioner is affirmed.
Page 2 of 32
I. Procedural History and Facts
Plaintiff Keica Nell Chapman filed an application for Supplemental
Security Income (SSI) on June 11, 2013, alleging disability caused by
breast disease, depression, anxiety, birth defect in left hip, and constant
pain. Tr. 169.1 The onset date was alleged to be June 15, 1999. Tr. 145.
The application was initially denied on September 30, 2013, and upon
reconsideration on November 15, 2013. Tr. 97, 103. Plaintiff requested a
hearing, which was held in Tallahassee, Florida, before Administrative Law
Judge (ALJ) Andrew Dixon, III, on September 11, 2015, at which Plaintiff
appeared with her attorney, Alan Andrews. Plaintiff, through her attorney,
amended the alleged onset date to June 11, 2013.2 Tr. 32. Plaintiff and
impartial vocational expert John Black, Ed.D., testified. Tr. 28-60.
At the hearing, Plaintiff testified that she had not worked full time for
the past fifteen years. Tr. 34. She left school in eighth grade and did not
obtain a GED because, she said, she could not concentrate. Tr. 36. She
testified she has burning in her hips and tingling down to her toes due to
back pain. Id. It is worse in her left leg, and is a sharp, stabbing pain like
1
Citations to the second substituted transcript/administrative record (ECF Nos.
20, 20-1 through 20-8) shall be by the symbol “Tr.” followed by a page number that
appears in the lower right corner of each page. See motion and order at ECF No. 19
and ECF No. 21.
2
An earlier proceeding was dismissed by order issued August 12, 2011, upon
request of the Plaintiff and her lawyer. Tr. 64, 33.
Case No. 4:17cv154-CAS
Page 3 of 32
“little needles are being poked in [her] toes.” Tr. 38-39. She said she
cannot sleep well at night, and tosses and turns and her hip pops. Tr. 36.
She takes pain mediation daily but it wears off and “gets to where it just
doesn’t help.” Tr. 37. She said she has back pain all of the time and her
back and her hips can “lock up” due to pain when she is sitting or standing.
Id. She testified she has “been known to have to be put in a wheelchair for
two months.” Tr. 38. She said she can stand for about 15 or 20 minutes
and then must start moving and then sit down. Id. When sitting for less
than 30 minutes, she said, she must change position. Tr. 40. When she
shops, she generally uses a motorized cart. Id. Injections for pain have
provided only short-term relief. Tr. 41. She testified that she has had two
back surgeries—one in 1999 and one in 2001—and the doctors are
considering another surgery. Tr. 48. She has not had any recent physical
or occupational therapy. Tr. 49.
Plaintiff testified she has urinary problems which, she believes, are
associated with her back pain. Sometimes she cannot urinate at all and
must catheterize herself, up to twice a week. Tr. 42. No treatment is
planned for that condition because the doctor’s bills were too high. Tr. 4950. She said she is still having problems with breast pain and discharge,
which affects her ability to reach. Tr. 42-43.
Case No. 4:17cv154-CAS
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She testified that most recently she has been taking Prozac and
Risperdal for her depression and mental issues. Tr. 43-44. Prior to that
she took Paxil and Zoloft but could not tolerate the side effects. Tr. 48.
Plaintiff said her memory and focus are impaired and sometimes she goes
blank and does not remember what she is doing. Tr. 45. She said her
husband sometimes has to remind her to eat. Tr. 46. She has become
short-tempered and frustrated, and does not want to be around people,
although she does not want to be alone at home and will call her husband
to come home. Tr. 45-46. She no longer feels comfortable driving to the
store and managing her bank account. Plaintiff testified that she has had
no treatment for any psychological or mental issues because she had no
insurance or money to do so. Tr. 47.
II. The Decision
On December 16, 2015, the ALJ issued a decision finding Plaintiff is
not disabled and is not entitled to SSI. Tr. 12-22. The Appeals Council
denied review on February 2, 2017. Tr. 1-3. Thus, the decision of the ALJ
became the final decision of the Commissioner and is ripe for review.
Accordingly, Plaintiff, appearing pro se, filed a Complaint for judicial review
pursuant to 42 U.S.C. §§ 1381, et seq., and 42 U.S.C. § 405(g). See ECF
No. 1.
Case No. 4:17cv154-CAS
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In the decision issued on December 16, 2015, the ALJ made the
following pertinent findings:
1. The claimant has not engaged in substantial gainful activity since
June 11, 2013, the application date. Tr. 14.
2. The claimant has the following severe impairments: degenerative
disc disease, osteoarthritis of the left hip, status post Paget’s disease,
anxiety disorder, and anti-social personality disorder. Tr. 14.
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
Tr. 14.
The ALJ explained that the impairments do not meet the
requirements of listing 1.02 or 1.04 because the record does not
show any gross anatomical deformity and chronic joint pain and
stiffness with signs of limitation of motion or other abnormal motion of
the affected joints, and findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or ankyloses of
the affected joint with an inability to ambulate or perform fine and
gross movements effectively. Id.
The ALJ also found that the severity of the impairments, singly and in
combination, do not meet or medically equal the criteria of listing
12.04, 12.06, and 12.08 in that the mental impairments did not result
in at least two of the following: marked restriction of activities of daily
living; marked difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or pace; or
repeated episodes of decompensation. Id. The ALJ found that the
criteria of Paragraph C were also not met. Tr. 16. At the hearing,
counsel for Plaintiff agreed that none of the alleged severe
impairments meet the listing requirements pursuant to step three of
the sequential evaluation. Tr. 34.
4. After careful consideration of the entire record, the claimant has
the residual functional capacity to perform light work, except she
claimant cannot climb ladders, ropes, and scaffolds, but she can
frequently climb stairs and ramps. She is limited to frequent
balancing, kneeling, crouching, and crawling, and occasional
stooping. The claimant retains the ability to reach and to handle and
Case No. 4:17cv154-CAS
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finger objects. She can tolerate up to occasional exposure to
hazards such as heavy machinery and unprotected heights. The
claimant can sit for 30 to 45 consecutive minutes before standing to
relieve any discomfort. The claimant can stand for 20 consecutive
minutes before having to sit and rest, and walk no more than 10
consecutive minutes before having to stop. Mentally, the claimant
can understand, remember, and carry out simple instructions as well
as perform simple repetitive tasks due to concentration deficits. She
can have occasional conversations and interpersonal interactions
with coworkers. Lastly, the claimant can interact with the public but
should not engage in any extensive transactions or negotiations. Tr.
16.
As to back pain, the ALJ explained that radiological testing in August
2013 showed mild disc space narrowing at L4-L5 with moderate disc
space narrowing at L5-S1 and vacuum disc phenomena. Tr. 17. A
consultative examination in August 2013 by Dr. Victoria Te showed
Plaintiff had a normal gait, normal muscle strength, normal fine and
gross dexterity, and negative straight leg raising. Range of motion
was normal and full. Id. (citing Tr. 308-12). The ALJ noted that in
September 2014, radiological testing showed disc desiccation and
disc space height loss and the L4-L5 disc levels with mild endplate
degenerative changes, and a small disc bulge at L4-L5 with a small
overlying central disc protrusion causing central stenosis with minimal
bilateral foraminal narrowing and a minimal posterior disc bulge at L5S1. Id. (citing Tr. 356). However, examination revealed normal gait,
no evidence of motor or sensory deficits, and equal bilateral reflexes.
Tr. 17. The ALJ noted that Plaintiff reported in October 2014 that her
pain was improving and that treatment recommendations were
inconsistent with a disabling degree of back pain. Tr. 18.
As to hip pain, the ALJ noted that Plaintiff had a history of hip pain
and that a physical examination revealed lumbar paraspinal gluteal
tenderness and increased pain with extension past neutral, and an
audible “pop” that seemed to originate in the hip; however, straight
leg raise was negative and strength was normal; and treatment for
hip pain was sporadic with no treatment after March 2015. Tr. 18.3
In discussing Plaintiff’s hip pain, the ALJ incorrectly cited a radiological report
belonging to another claimant that was erroneously included in Plaintiff’s medical
record. The incorrect record indicated mild to moderate osteoarthritis and a deformity of
3
Case No. 4:17cv154-CAS
Page 7 of 32
As to Plaintiff’s breast condition, the ALJ explained that she has had
fibrocystic disease with a mammogram negative for cancer; and
records showed symptoms were mild, with no indication of
aggressive treatment measures related to the breast symptoms.
Tr. 18.
As to Plaintiff’s mental condition, the ALJ explained that the records
do not show any formal treatment for mental health symptoms by a
mental health care professional; and noting that consultative
examinations diagnosed Plaintiff with adjustment disorder with sad
mood and anxiety, generalized anxiety disorder, and antisocial
personality disorder. Id. (citing Tr. 323, 435). The ALJ found that the
opinion of Dr. Nina Barnes, Ph.D., that Plaintiff had no limitations on
her ability to understand, remember, carry out instructions, and
interact with others is highly inconsistent with allegations of disabling
mental pathology. Tr. 19 (citing Tr. 435).
In support of the determination of the RFC, the ALJ cited and gave
great weight to the agency consultative opinion of Edmund Molis,
M.D., that Plaintiff can lift and carry 20 pounds occasionally and 10
pounds frequently; can sit, stand, or walk about 6 hours in an 8-hour
workday; occasionally climb ladders, ropes, and scaffolds, and stoop;
frequently climb ramps and stairs, balance, kneel, crouch, and crawl.
Tr. 19 (citing records at Tr. 88-90). Partial weight was given to the
opinion of John Thibodeau, Ph.D., an agency consultant who opined
that Plaintiff could remember and follow simple and short workplace
instructions, work with others, and maintain attendance and schedule.
Tr. 20 (citing Tr. 74-76).
5. The claimant has no past relevant work. Tr. 20.
6. The claimant was 40 years old, which is defined a younger
individual age 18-49, on the date the application was filed. Tr. 20.
7. The claimant has a limited education and is able to communicate
in English. Tr. 20.
the left femoral head and a shallow acetabulum that was suspected to be residua of a
congenital hip dislocation. Tr. 18 (citing Ex. B7F at 6). That incorrect report has been
redacted from the current medical record and, pursuant to order of this Court, a
corrected record was filed. ECF Nos. 19, 20, 21. Plaintiff’s actual radiological tests of
her hip showed mild osteoarthritis of the left hip and mild to moderate osteoarthritis of
the left sacroiliac joint. Tr. 314.
Case No. 4:17cv154-CAS
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8. Transferability of job skills is not an issue because claimant does
not have any past relevant work. Tr. 20.
9. Considering claimant’s age, education, work experience, and
residual functional capacity (RFC), there are jobs that exist in
significant numbers in the national economy that the claimant can
perform. Tr. 20. Based on the testimony of the vocational expert, the
ALJ concluded that Plaintiff could perform the representative jobs of
remnant sorter, DOT #789.687-146, light, SVP 2, of which there are
30,000 jobs nationally and 1,400 in Florida4; routing clerk, DOT
#222.687-022, light, SVP 2, of which there are 43,000 jobs nationally
and 2,400 in Florida; and parking lot cashier, DOT #211.462-101,
light, SVP 2, of which there are 46,000 jobs nationally and 1,400 in
Florida.5 Tr. 21.
10. The claimant has not been under a disability, as defined in the
Social Security Act, since June 11, 2013, the date the application was
filed. Tr. 21.
The ALJ made a scrivener’s error in incorrectly citing DOT #689.687-146 as the
number for the job of remnant sorter. Tr. 21. The correct number is DOT #789.687146.
4
5
DOT refers to the Dictionary of Occupational Titles (4th Ed., Rev. 1991), which
is one of the examples of sources that the ALJ may rely on for job information. See
SSR 00-4p; 20 C.F.R. § 404.966(d) and 416.966(d). The ALJ may also rely on a
vocational expert or other specialist. See § 404.966(e). An SVP (Specific Vocational
Preparation) of 1 means “short demonstration only.” Dictionary of Occupational Titles
(DOT) (4th ed., rev. 1991), Appendix C: Components of the Definition Trailer, § II, SVP.
An SVP of 2 means “[a]nything beyond short demonstration up to and including 1
month.” Id. “[SVP] is defined as the amount of lapsed time required by a typical worker
to learn the techniques, acquire the information, and develop the facility needed for
average performance in a specific job-worker situation.” Id. Unskilled work
corresponds to an SVP of 1 and 2. SSR 00-4p, 2000 SSR LEXIS 8, at *8 (Dec. 4,
2000). “Unskilled work is work which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time.” 20 C.F.R. § 416.968(a). Further,
unskilled work is work involving understanding, remembering, and carrying out simple
instructions; making simple work-related decision; dealing with changes in a routine
work setting; and responding appropriately to supervision, co-workers, and usual work
situations. SSR 85-15, 1985 SSR LEXIS 20, at *10-11 (1985).
Case No. 4:17cv154-CAS
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Based on these findings, and the reasons set forth in the decision, the ALJ
found Plaintiff is not disabled under section 1614(a)(3)(A)6 of the Social
Security Act. Tr. 21.
III. 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).7 The Court may not decide the facts anew, reweigh the
6
Section 1614(a)(3)(A) of the Social Security Act is codified at 42 U.S.C. § 1382.
See Higginbotham v. Barnhart, 163 F. App’x 279, 280 n.1 (5th Cir. 2006) (unpublished).
“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
7
Case No. 4:17cv154-CAS
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evidence, or substitute its judgment for that of the Commissioner,
Bloodsworth, 703 F.2d at 1239, although the Court must scrutinize the
entire record, consider evidence detracting from the evidence on which the
Commissioner relied, and determine the reasonableness of the factual
findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Parker v.
Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986). Review is deferential, but
the reviewing court conducts what has been referred to as “an independent
review of the record.” Flynn v. Heckler, 768 F.2d 1273, 1273 (11th Cir.
1985).
A disability is defined as a physical or mental impairment of such
severity that the 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
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).
Case No. 4:17cv154-CAS
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(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).
The Commissioner analyzes a claim in five steps, pursuant to 20
C.F.R. § 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 the residual functional capacity
(RFC) to perform work despite limitations and are there any
impairments which prevent past relevant work?8
5. Do the individual’s impairments prevent other work?
8
Residual functional capacity is the most a claimant can still do despite
limitations. 20 C.F.R. § 416.945(a)(1). It is an assessment based upon all the relevant
evidence including the claimant’s description of his or her limitations, observations by
treating and examining physicians or other persons, and medical records. Id. The
responsibility for determining claimant’s RFC lies with the ALJ. 20 C.F.R. § 416.946(c);
see Social Security Ruling (SSR) 96-5p, 1996 SSR LEXIS 2, at *12 (July 2, 1996)
(rescinded eff. Mar. 27, 2017) (“The term ‘residual functional capacity assessment’
describes an adjudicator’s finding about the ability of an individual to perform workrelated activities. The assessment is based upon consideration of all relevant evidence
in the case record, including medical evidence and relevant nonmedical evidence, such
as observations of lay witnesses of an individual’s apparent symptomatology, an
individual’s own statement of what he or she is able or unable to do, and many other
factors that could help the adjudicator determine the most reasonable findings in light of
all the evidence.”).
Case No. 4:17cv154-CAS
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At step one, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. If so, she is not disabled and the application for
benefits will be disapproved. At step two, the ALJ must determine if the
claimant has a medically determinable impairment that is severe or a
combination of impairments that is “severe.” If the claimant has a severe
impairment or combination of impairments that is severe, the analysis
proceeds to step three. At step three, if the ALJ determines that claimant’s
impairments meet or medically equal the criteria of an impairment listed in
Appendix 1, and if the duration requirement is met, the claimant is disabled
and the application for benefits will be approved. If not, the analysis
proceeds to step four. At step four, 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. The claimant bears the burden of establishing a
severe impairment that precludes the performance of past relevant work. If
the claimant carries this burden, 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 available in significant numbers in the national
economy in light of the claimant’s RFC, age, education, and work
experience. See Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004);
Case No. 4:17cv154-CAS
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Jones v. Apfel, 190 F.3d 1224, 1228-29 (11th Cir. 1999); Chester, 792 F.2d
at 131; MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986); 20
C.F.R. § 416.920(a)(4)(v), (e) & (g). 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).
Plaintiff bears the burden of proving that she is disabled and,
consequently, is responsible for producing evidence in support of her claim.
See 20 C.F.R. § 416.912(a); Moore, 405 F.3d at 1211. The responsibility
of weighing the medical evidence and resolving any conflicts in the record
rests with the ALJ. See Battle v. Astrue, 243 F. App’x 514, 523 (11th Cir.
2007) (unpublished).
The opinion of the claimant’s treating physician must be accorded
considerable weight by the Commissioner unless good cause is shown to
the contrary. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
This is so because treating physicians “are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as
Case No. 4:17cv154-CAS
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consultative examinations or brief hospitalizations.” 20 C.F.R.
§ 416.927(c)(2).9 “This requires a relationship of both duration and
frequency.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). The
reasons for giving little weight to the opinion of the treating physician must
be supported by substantial evidence, Marbury v. Sullivan, 957 F.2d 837,
841 (11th Cir. 1992), and must be clearly articulated. Phillips, 357 F.3d at
1241. “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, 786 F.2d at 1053.
The ALJ may discount the treating physician’s opinion if good cause
exists to do so. Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986).
Good cause may be found when the opinion is “not bolstered by the
evidence,” the evidence “supported a contrary finding,” the opinion is
“conclusory or inconsistent with [the treating physician’s] own medical
records,” the statement “contains no [supporting] clinical data or
information,” the opinion “is unsubstantiated by any clinical or laboratory
findings,” or the opinion “is not accompanied by objective medical evidence
or is wholly conclusory.” Lewis, 125 F.3d at 1440; Edwards v. Sullivan, 937
9
This provision applies to claims filed before March 27, 2017. For claims filed
after that date, the applicable provision is section 416.920c, titled “How we consider and
articulate medical opinions and prior administrative medical findings for claims filed on
or after March 27, 2017.”
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F.2d 580, 583-84 (11th Cir. 1991) (citing Schnorr v. Bowen, 816 F.2d 578,
582 (11th Cir. 1987)). Where a treating physician has merely made
conclusory statements, the ALJ may afford them such weight to the extent
they are supported by clinical or laboratory findings and are consistent with
other evidence as to a claimant’s impairments. Wheeler v. Heckler, 784
F.2d 1073, 1075 (11th Cir. 1986).
Some opinions on issues such as whether the claimant is unable to
work, the claimant’s RFC, and the application of vocational factors, “are not
medical opinions, . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive
of the case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. § 416.927(d); see Bell v. Bowen, 796 F.2d 1350,
1353-54 (11th Cir. 1986). “[T]reating source opinions on issues reserved to
the Commissioner are never entitled to controlling weight or special
significance.” SSR 96-5p, 1996 SSR LEXIS 2, at *6 (1996) (rescinded eff.
Mar. 27, 2017). Although physicians’ opinions about what a claimant can
still do or the claimant’s restrictions are relevant evidence, such opinions
are not determinative because the ALJ has responsibility of assessing the
claimant’s RFC.
Case No. 4:17cv154-CAS
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A treating physician’s opinion that a claimant is unable to work and is
necessarily disabled would not be entitled to any special weight or
deference. The regulations expressly exclude such a disability opinion
from the definition of a medical opinion because it is an issue reserved to
the Commissioner and a medical source is not given “any special
significance” with respect to issues reserved to the Commissioner, such as
disability. 20 C.F.R. § 416.927(d)(1), (3); SSR 96-5p, 1996 SSR LEXIS 2,
at *6 (rescinded eff. Mar. 27, 2017). In Lewis, the court noted that “we are
concerned here with the doctors’ evaluations of [the claimant’s] condition
and the medical consequences thereof, not their opinions of the legal
consequences of his condition. Our focus is on the objective medical
findings made by each doctor and their analysis based on those medical
findings.” 125 F.3d at 1440.
Generally, more weight is given to the opinion of a specialist “about
medical issues related to his or her area of specialty than to the opinion of
a source who is not a specialist.” 20 C.F.R. § 416.927(c)(2), (5)10; see also
Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004) (noting that
opinions of specialists may be particularly important, and entitled to greater
weight than those of other physicians, with respect to certain diseases that
10
See note 9, supra.
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are “poorly understood within much of the medical community”); Somogy v.
Comm’r of Soc. Sec., 366 F. App’x 56, 65 n.13 (11th Cir. 2010)
(unpublished) (same). Although a claimant may provide a statement
containing a treating physician’s opinion of her remaining capabilities, the
ALJ must evaluate such a statement in light of the other evidence
presented and the ALJ must make the ultimate determination of disability.
20 C.F.R. §§ 416.912, 416.913, 416.927, 416.945.
IV. Analysis
Plaintiff alleges in her Complaint that additional record support shows
she has a birth defect in her hip and suffers from manic paranoid
schizophrenia with manic bipolar condition that causes her to be disabled
and that denial of disability benefits deprives her of her constitutional rights.
ECF No. 1 at 5. She alleges in her memoranda filed in support of her
Complaint that the inclusion of a one-page radiological report of another
person in Exhibit B7F of this record constituted reversible error; failure to
allow her temporary Medicaid to obtain further documentation was
reversible error; disability should have been found based on Exhibit B2A;
the Commissioner omitted a critical page of medical documentation from
Dr. Robert Burns that shows she cannot return to the workforce and that
she is on pain medication that impairs her ability to work; the Commissioner
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failed to provide a critical medical record of Dr. Robert Burns; the additional
record of Dr. Burns would have made a difference in the case and warrants
remand; Plaintiff was deprived of her constitutional rights to life, liberty, and
due process; and Plaintiff was deprived of her constitutional rights and is
also entitled to a remedy under 8 U.S.C. 1324c(a)(3)(5). See ECF Nos. 1,
13, 17, 22.
Inclusion of Erroneous Medical Report
Plaintiff fails to explain how the inclusion of a one-page radiological
report pertaining to another claimant in the record of this case requires
remand. The erroneous page was cited by the ALJ only as evidence that
Plaintiff has a basis to complain of hip pain. See Tr. 18. The ALJ stated:
With respect to the claimant’s alleged hip pain, treatment
records document complaints of hip pain. Radiological testing
of her left hip performed August 2013 showed a mild to
moderate osteoarthritis. Additional view showed a deformity of
the left femoral head and a shallow acetabulum which was
suspected to be residua[] from a congenital hip dislocation
(Exhibit B7F).
Tr. 18. Thus, the ALJ did not rely on the erroneous record to conclude
Plaintiff had no basis for hip pain. Moreover, the correct hip X-ray report of
August 27, 2013, by the same provider indicated that Plaintiff had mild
osteoarthritis of the left hip and mild to moderate osteoarthritis of the left
sacroiliac joint. Tr. 314. The correct report shows similar hip osteoarthritis,
Case No. 4:17cv154-CAS
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albeit a somewhat less severe form of it than the report cited by the ALJ.
Plaintiff cannot show prejudice from this erroneous inclusion of the
unrelated but similar record, nor can she show that had the error not
occurred, the ultimate finding of the ALJ would have been different. See
Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (concluding that the
ALJ erred in a statement of fact, but the error was harmless where no
prejudice was shown and the error was irrelevant to the denial of
application for disability benefits); Muhammad ex rel. T.I.M, v. Comm’r of
Soc. Sec., 395 F. App’x 593, 601 (11th Cir. 2010) (unpublished) (same).
Denial of Temporary Medicaid
Plaintiff alleges that the Commissioner failed to allow her to receive
temporary Medicaid to obtain further medical documentation and to seek
additional medical treatment. ECF No. 13 at 1. Plaintiff has not provided a
record reference to show that the Commissioner denied a claim for
temporary Medicaid. To the contrary, the Commissioner informed Plaintiff
on November 15, 2013, in the notice of ineligibility for SSI that “you may be
eligible for medical assistance (Medicaid). If you have any questions about
your eligibility for Medicaid or you need medical assistance you should get
in touch with the Department of Children and Families.” Tr. 103. Further,
whether Plaintiff was improperly denied Medicaid is not an issue to be
Case No. 4:17cv154-CAS
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considered in this SSI proceeding. As the Defendant correctly notes, the
State of Florida administers the Medicaid program in this state through the
Agency for Health Care Administration. See Garrido v. Dudek, 731 F.3d
1152, 1154-54 (11th Cir. 2013). The Court in Garrido explained:
Medicaid is a cooperatively funded federal-state program
designed to help states provide medical treatment to their
needy citizens. States devise and fund their own medical
assistance programs, subject to the requirements of the federal
Medicaid Act, and the federal government provides partial
reimbursement. See 42 U.S.C. §§ 1396b(a), 1396d(b). A
state’s participation in the Medicaid program is voluntary, but
once a state chooses to participate it must comply with federal
statutory and regulatory requirements. See Alexander v.
Choate, 469 U.S. 287, 289 n.1 (1985). All states, including
Florida, participate in the Medicaid program. Florida
administers its Medicaid program through the Agency for Health
Care Administration (“AHCA”). See Fla. Stat. §§ 409.901(2),
409.902.
Id. A claim for denial of Medicaid benefits brought under 42 U.S.C.
§ 405(g) does not raise a federal issue and is properly dismissed. See
Vinson v. La. Sec’y of Health & Hosp., No. 2:09-cv-661, 2009 WL 1406296,
at *1-2 (W.D. La. May 19, 2009). This claim has no merit.
RFC Assessment by a Single Decisionmaker (SDM)
Plaintiff alleges the Commissioner failed to follow the opinion
evidence of the SDM, concerning Plaintiff’s RFP, located at Exhibit B2A,
pages 8-9. ECF No. 13 at 1. Plaintiff alleges that the opinion of Jasmine
Plummer, SDM, on September 27, 2013, was that Plaintiff has limitations
Case No. 4:17cv154-CAS
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that would hinder her work efforts. ECF No. 13 at 1. However, the
Commissioner was not required to rely on the SDM. The Eleventh Circuit
has explained:
In Florida, a single decision maker (“SDM”) is assigned to make
the initial disability determination after “appropriate consultation
with a medical or psychological consultant.” See 20 C.F.R.
§ 404.906(b)(2). But the “SDM” designation connotes no
medical credentials. See id. § 404.906(a), (b)(2). Indeed, the
SSA’s Program Operations Manual System (“POMS”) explicitly
distinguishes RFC assessments produced by an SDM from
those produced by a medical consultant, and states that “SDMcompleted forms are not opinion evidence at the appeals level.”
. . . . As an SDM with no apparent medical credential, [the
SDM] was not an acceptable medical source.
Siverio v. Comm’r of Soc. Sec., 461 F. App’x 869, 871 (11th Cir. 2012)
(unpublished).
Furthermore, the RFC determined by SDM Plummer recognized
fewer limitations affecting Plaintiff’s RFC than those found by the ALJ in
this case. The ALJ found Plaintiff could “frequently” climb stairs and ramps,
kneel, crouch and crawl. Tr. 16. The SDM concluded that Plaintiff’s ability
to climb ramps and stairs, kneel, crouch, and crawl was “unlimited.” Tr. 73.
The SDM concluded Plaintiff could frequently lift 25 pounds and
occasionally lift 50 pounds, consistent with the definition of medium work.
See § 416.967(c); Tr. 72. The ALJ found, however, that Plaintiff was
limited to light work, which anticipates lifting only 20 pounds at a time with
Case No. 4:17cv154-CAS
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frequent lifting of up to 10 pounds. See § 416.967(b); Tr. 16. The ALJ and
the Commissioner were not required to rely solely on the opinion of SDM
Plummer in determining if Plaintiff is disabled.
Even assuming the ALJ should have discussed the SDM opinion and
should have given it some weight, it would not have changed the decision
in any manner that would have benefitted Plaintiff. The ALJ’s RFC
determination reflected more limitations than those opined by SDM
Plummer. Thus, any error was harmless. See, e.g., Baez v. Comm’r of
Soc. Sec., 657 F. App’x 864, 869 (11th Cir. 2016) (unpublished) (citing
Diorio, 721 F. 2d at 728). This issue has no merit and does not require
remand.
Records Submitted to Appeals Council
Plaintiff contends that records of Robert Burns, M.D., would prove
that she cannot return to work. ECF No. 13 at 1-2. She contends that one
page of the record was “left out” but she does not indicate what the record
would have shown. The record in this case contains Exhibit B16F, pages
446 and 447, which appears to have been submitted to the Appeals
Council. See Tr. 5 (listing exhibits B15F and B16F to Notice of Appeals
Council Action); Tr. 1-4. Exhibit B16F is a record from Meridian Clinic that
contains notes of a January 14, 2016, follow-up visit to Dr. Burns to
Case No. 4:17cv154-CAS
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evaluate Plaintiff’s treatment for opioid dependence and addiction. Tr. 44647. The notes indicate that Plaintiff was being successfully treated with
suboxone, which she was to continue at the same dose. Tr. 447. The
information contained in this record does not indicate that Plaintiff cannot
return to work.
Plaintiff bore the burden of producing evidence she deemed
necessary to support her claim. Ellison v. Barnhart, 355 F.3d 1272, 1276
(11th Cir. 2003) (citing 20 C.F.R. § 416.912(a) (requiring claimant to furnish
medical and other evidence of claimed impairments); see also Mosely v.
Acting Comm’r of Soc. Sec. Admin., 633 F. App’x 739, 741 (11th Cir. 2015)
(unpublished) (same). Moreover, Plaintiff was represented prior to and at
the hearing; thus, the ALJ had no heightened duty to develop the record
with documents that Plaintiff alleges were “left out.” See Ellison, 455 F.3d
at 1276-77. See also Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.
1981).
The page of Dr. Burn’s records which discussed Plaintiff’s treatment
for opioid addiction was submitted to the Appeals Council and considered
but was found not to provide a basis to require a remand. Tr. 1-4. The
Appeals Council must consider new, material, and chronologically relevant
evidence and must review the case if the ALJ’s action, findings, or
Case No. 4:17cv154-CAS
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conclusions are contrary to the weight of the evidence currently in the
record. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th
Cir. 2007). The issue in a disability case is whether the Plaintiff is entitled
to benefits during a specific period of time, which is prior to the date of the
ALJ’s decision. Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999). The
record submitted to the Appeals Council was dated January 14, 2016, and
does not indicate that it relates to Plaintiff’s medical condition during a
period of time prior to the date of ALJ’s decision on December 16, 2015.
Tr. 447.
The Appeals Council denied review in this case, stating that it
considered the additional evidence and found that it does not provide a
basis for changing the ALJ’s decision. Tr. 1-4. When a claimant presents
new evidence to the Appeals Council and review is denied, the Court will
consider the claimant’s evidence anew to determine whether the new
evidence renders the denial of benefits erroneous. Ingram, 496 F.3d at
1262. “Section 405(g) permits a district court to remand an application for
benefits to the Commissioner . . . by two methods, which are commonly
denominated “sentence four remands” and “sentence six remands,” each of
which remedies a separate problem.” Id. at 1261. “The fourth sentence of
section 405(g) provides the federal court ‘power to enter, upon the
Case No. 4:17cv154-CAS
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pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.’ ”11 Id. To obtain a
“sentence four” remand, the claimant must show that, in light of the new
evidence submitted to the Appeals Council, the ALJ’s decision to deny
benefits is not supported by substantial evidence in the record as a whole.
Id. at 1266-67. This showing has not been made.
Plaintiff also cites Exhibit B11F at page 20 for her allegation that
Dr. Burns has her on “the highest level of narcotic for pain witch (sic)
impairs my ability to work.” ECF No. 13 at 2 (citing exhibit at Tr. 382). That
cited record, however, is not from Dr. Burns and does not indicate a
narcotic level or that such would impair Plaintiff’s ability to work. See Tr.
379-83.
The ALJ did not fail to develop the record in the absence of evidence
not submitted by Plaintiff or her representative. Moreover, because the
evidence cited by Plaintiff is not chronologically relevant to the date of the
ALJ’s decision and does not demonstrate that the ALJ’s decision is not
“The sixth sentence of section 405(g) provides a federal court the power to
remand the application for benefits to the Commissioner for the taking of additional
evidence 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.’ ” Ingram, 496 F.3d at 1261.
11
Case No. 4:17cv154-CAS
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based on substantial evidence, the Appeals Council did not err in denying
review. For these reasons, this claim lacks merit.
Records Submitted to This Court
Plaintiff submitted to this Court a new medical record of her visit to
Dr. Burns at the Meridian Clinic on February 8, 2016. ECF No. 17-1. The
sixth sentence of 42 U.S.C. § 405(g) permits a district court, on review, to
remand an application for benefits to the Commissioner for consideration of
new evidence that previously was unavailable. 42 U.S.C. § 405(g). “[A]
sentence six remand is available when evidence not presented to the
Commissioner at any stage of the administrative process requires further
review.” Ingram, 496 F.3d at 1267. “To show that a sentence six remand
is needed, ‘the claimant must establish that: (1) there is new,
noncumulative evidence; (2) the evidence is ‘material,’ that is, relevant and
probative so that there is a reasonable possibility that it would change the
administrative result and (3) there is good cause for the failure to submit
the evidence at the administrative level.’ ” Enix v. Comm’r of Soc. Sec.,
461 F. App’x 861, 863 (11th Cir. 2012) (unpublished) (citing Caulder v.
Bowen, 791 F.2d 872, 877 (11th Cir. 1986)).
Plaintiff does not explain why this document was not submitted at the
administrative level. The document is dated February 9, 2016, and the
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Appeals Council did not deny her request for review until February 2, 2017,
almost one year later. See Tr. 1. Further, the opinions expressed in the
record do not support a finding that Plaintiff is totally disabled. Dr. Burns
opines in the record that Plaintiff has “significant deficits in the functional,
musculoskeletal and neurological [e]xams that will have a life-long negative
impact on her overall level of functioning and health,” and which “make it
difficult for her to compete in the workforce and to hold a job once it is
obtained.” ECF No. 17-1 at 3.
Moreover, the results of the medical examination noted in the
document do not completely bear out Dr. Burns’ opinions. The notes
indicate that Plaintiff was alert and oriented X3 with appropriate mood and
affect, and that her recent and remote memory was intact. She had a
normal attention span and concentration. Id. at 2. The notes state that
cranial nerves are intact and coordination was normal. She tested 5 out of
5 in strength in upper and lower extremities, with “normal limited (sic) of
motion” in both shoulder joints on external rotation. Id. Her gait was
“slightly antalgic” with normal station and stability. Her straight leg raise
was negative from the sitting position. She did have limited range of
motion in her lumbar spine and needed to shift her weight frequently when
standing for longer than a few minutes. Id. The significance of Dr. Burns’
Case No. 4:17cv154-CAS
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opinion expressed in this record is further diminished by his caveat that
“[s]he may benefit from a formal vocational rehabilitation assessment
and/or functional capacity exam at a center with better quantitative
functional testing equipment and for a formal disability rating.” Id. at 3.
Where a medical source expresses uncertainty as to the medical findings,
the Commissioner has no obligation to defer to the opinion. Mason v.
Comm’r of Soc. Sec., 430 F. App’x 830, 832 (11th Cir. 2011) (unpublished)
(citing Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991) (same)).
This is especially true where the opinion conflicts with evidence of the
Plaintiff’s daily activities. See Mason, 430 F. App’x at 832.
There is no reasonable probability that this record would change the
administrative result. The concerns raised by Dr. Burns’ opinion were
addressed by the ALJ’s RFC determination and the stated limitations
placed on her work environment. Thus, this new evidence does not require
a remand under the sixth sentence of 42 U.S.C. § 405(g).
Plaintiff’s Remaining Claims
Plaintiff contends that she has been denied life and liberty under the
Fifth and Fourteenth Amendments to the United States Constitution. ECF
No. 17 at 1; ECF No. 22. She states:
Had commissioner of social security truthfully and legally went
through my transcripts as she has stated and is now allowed to
Case No. 4:17cv154-CAS
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submit another transcript depriving Keica Nell Chapman of my
life and my liberty of the Fifth Amendment and Fourteenth
Amendment of the U.S. Constitution [1]:617 whereas Due
Process is evident in my case. I Keica Nell Chapman also find
commissioner of Social Security for both transcripts under 8 US
code 1342c(a)(3)(5).12
ECF No. 17. Plaintiff appears to be contending that her constitutional rights
were violated by the Commissioner substituting a corrected transcript for
one in which a radiological report applicable to another person was
erroneously included. Plaintiff also appears be contending that she is
entitled to some relief pursuant to Title 8 U.S.C. § 1324c(a)(3), (5).
However, Plaintiff does not explain how the initial inclusion and subsequent
substitution of a corrected record containing the redaction of the
erroneously-included pages in her record has deprived her of a
constitutional right.13
As discussed above pertaining to the first part of Plaintiff’s claim, the
substituted transcript removed a radiological report relating to an individual
other than Plaintiff. Although the ALJ cited the incorrect document in the
decision, he did not rely on the erroneous record to conclude Plaintiff had
12
Misspellings have been corrected.
13
The fact that the ALJ cited to the incorrect document in the decision indicates
that the document was erroneously included in the packet of medical records initially
submitted by Radiology Associates for use as evidence in the case. There is no
indication that the Commissioner knowingly included the erroneous document in the
record.
Case No. 4:17cv154-CAS
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no basis for hip pain. Instead, the ALJ relied on it to support the finding
that “treatment records document complaints of hip pain.” Tr. 18.
Moreover, the correct hip X-ray report pertaining to Plaintiff dated August
27, 2013, indicated that she had mild osteoarthritis of the left hip and mild
to moderate osteoarthritis of the left sacroiliac joint. Tr. 314. Thus, the
correct report shows somewhat similar hip osteoarthritis as that cited by the
ALJ based on the incorrect report. Plaintiff has not shown how the
inclusion, and subsequent redaction, of one erroneous report in the record
deprived Plaintiff of life, liberty, or due process. Nor has she shown that
the inclusion and subsequent redaction of the erroneous record deprived
the ALJ’s decision of substantial evidence.
As to the second part of this contention, Plaintiff does not explain how
Title 8 U.S.C. §§ 1324c(a)(3), (5) relate to her case. Title 8 U.S.C.
§§ 1324c(a)(3), (5) are provisions within the Immigration and Naturalization
Act, not the Social Security Act, prohibiting a person from knowingly using
the documents of another person or using false documents to satisfy any
requirement under the Immigration and Naturalization Act or in making an
application for benefits under that act. The provisions are irrelevant to this
proceeding. Conduct of the hearing, review of the evidence, and judicial
review of the findings of fact or the decision of the Commissioner are to be
Case No. 4:17cv154-CAS
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conducted under the provisions of 42 U.S.C. § 405. The issues are
whether the ALJ had substantial evidence to support the findings and
conclusions in the decision and whether the ALJ followed the correct law.
Plaintiff’s final claims provide no basis on which to conclude the findings of
the ALJ lacked substantial evidence, that the ALJ failed to follow the law, or
that remand is required for any reason.14
V. Conclusion
Plaintiff does not contend that the ALJ’s decision is not supported by
substantial evidence. Her main contention is that medical records of
Dr. Burns should be considered and could make difference in the outcome.
Her other claims are collateral to the pertinent issues in the case and do
not bear on the issues of the applicable law or the substantial evidence to
support the decision.
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. Further, no error has been shown in the actions of the Appeals
Council in denying review. Accordingly, pursuant to 42 U.S.C § 405(g), the
decision of the Commissioner to deny Plaintiff's application for
14
Plaintiff also alleges that another person received her personal mail from this
Court, thus violating her rights. ECF No. 13. However, the incorrect mailing of an order
of the Court is irrelevant to whether the decision of the ALJ is based on substantial
evidence and comports with the law.
Case No. 4:17cv154-CAS
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Supplemental Security Income benefits is AFFIRMED. The Clerk shall
enter judgment for Defendant.
IN CHAMBERS at Tallahassee, Florida, on January 4, 2018.
s/ Charles A. Stampelos__________
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
Case No. 4:17cv154-CAS
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