Mainini v. Astrue
Filing
21
ORDER AND OPINION GRANTING Plaintiff's second motion for reconsideration. [Doc. 20 ]. Accordingly, the Clerk is DIRECTED to RENEW Plaintiff's first motion for reconsideration. [Doc. 17 ]. The renewed motion for reconsideration is also G RANTED. The Commissioner's final decision denying benefits to Plaintiff is hereby REMANDED to the Commissioner for further consideration of Plaintiff's claims consistent with this Order. The Clerk is DIRECTED to enter judgment in Plaintiff's favor. Signed by Magistrate Judge Alan J. Baverman on 2/27/2013. (tcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
NEWNAN DIVISION
CAROL D. MAININI,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
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CIVIL ACTION FILE NO.
3:10-CV-00046-AJB
ORDER AND OPINION1
This matter is before the Court on Plaintiff’s Second Motion for Reconsideration,
filed under the Court’s leave on September 25, 2012. [Doc. 20]. For the reasons
below, the motion is GRANTED.
I.
Procedural History
Plaintiff filed an application for federal disability insurance benefits (“DIB”) on
October 24, 2005, alleging disability commencing on June 11, 2005.2 [Record
1
The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. [See Dkt. Entries
dated May 17, 2010]. Therefore, this Order constitutes a final Order of the Court.
2
Title II of the Social Security Act provides for DIB. 42 U.S.C. § 401
et seq. Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq., provides for
supplemental security income benefits for the disabled (hereinafter “SSI”). Title XVI
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(hereinafter “R”) 53]. She claimed that back problems, Morton’s neuroma,3 and
anxiety limit her ability to work. [R64]. Plaintiff’s application was denied initially and
on reconsideration.
[R20-21].
Plaintiff then requested a hearing before an
Administrative Law Judge (“ALJ”). [R34]. An evidentiary hearing was held before
an ALJ on July 2, 2008. [R263-82]. On September 2, 2008, the ALJ issued a decision
in which he found that Plaintiff had acquired sufficient quarters of coverage to remain
insured through December 2009 but also found that she had not been disabled through
the date of his decision. [R12-19]. Plaintiff sought review of the ALJ’s decision, and
the Appeals Council denied Plaintiff’s request for review on February 18, 2010,
rendering the ALJ’s decision the final decision of the Commissioner. [R5-8].
claims are not tied to the attainment of a particular period of insurance disability.
Baxter v. Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982). The relevant law and
regulations governing the determination of disability under a claim for DIB are
identical to those governing the determination under a claim for SSI. Davis v. Heckler,
759 F. 2d 432, 435 n.1 (5th Cir. 1985). Under 42 U.S.C. § 1383(c)(3), the judicial
provisions of 42 U.S.C. § 405(g) are fully applicable to claims for SSI. In general, the
legal standards to be applied are the same regardless of whether a claimant seeks DIB,
to establish a “period of disability,” or to recover SSI. Different statutes and
regulations, however, apply to each type of claim. Plaintiff has only applied for DIB.
Therefore, to the extent that the Court cites to SSI cases, statutes, or regulations, they
are equally applicable to Plaintiff’s DIB claim.
3
Morton’s neuroma is an injury to the nerve between the toes that causes
thickening and pain.
P u b M e d H e a l t h , M o r t o n ’ s n e u r o ma ,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0004542 (last visited 09/13/12).
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Plaintiff then filed a civil action in this Court on April 16, 2010, seeking review
of the Commissioner’s final decision.
[Doc. 3].
The answer was filed on
August 19, 2010, and the transcript was filed on August 20, 2010. [Docs. 5-6].
Plaintiff filed her brief on October 22, 2010, [Doc. 10], and Defendant filed a response
on November 10, 2010, [Doc. 11]. Plaintiff also filed a reply brief. [Doc. 13]. The
undersigned held a hearing on December 7, 2010. [See Doc. 14]. On August 12, 2011,
the Court issued an Order affirming the final decision of the Commissioner, and the
Clerk entered judgment the same day. [Docs. 15-16].
On September 12, 2011, Plaintiff filed a Motion to Alter or Amend Judgment.
[Doc. 17]. She filed the motion pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure and requested that the Court reconsider its conclusions regarding two out of
the three issues Plaintiff raised in her initial brief. [Id. at 1]. On September 15, 2011,
the Commissioner filed what was essentially a single-page response stating only that
the Commissioner opposed Plaintiff’s motion and relied on his previously filed
response brief and the Court’s decision. [Doc. 18].
On September 24, 2012, the Court entered an Order in which it found that
Plaintiff’s motion for reconsideration was meritorious but that the Court lacked
jurisdiction to grant the motion because it had been untimely filed. [Doc. 19]. Because
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neither party had briefed the timeliness motion, the Court granted Plaintiff fourteen
days’ leave to file a motion for reconsideration regarding the timeliness issue only and
allowed the Commissioner fourteen days to file a response brief. [Id. at 17]. The Court
further stated that if it should determine upon such motion that it may properly consider
the out-of-time motion for reconsideration, it would direct the Clerk to renew the
motion. [Id. at 7].
II.
Second Motion for Reconsideration
Plaintiff timely filed a motion for reconsideration on the timeliness issue.
[Doc. 20]. She argues that because the August 12, 2011, Clerk’s Judgment affirming
the decision of the Commissioner was not entered onto the docket until
August 15, 2011, the start of the time period within which she could file a Rule 59(e)
motion started on August 15 rather than August 12, and her motion for reconsideration
was therefore timely. [Doc. 20-1 at 1-3 (citing Fed. R. Civ. P. 58(c)(2))]. She argues
that in the alternative, the Court may consider her motion as a timely Rule 60 motion.
[Doc. 20-1 at 3-4 (citing Rice v. Ford Motor Co., 88 F.3d 914, 918 (11th Cir. 1996))].
The Commissioner did not respond to Plaintiff’s second motion for reconsideration.
[See Dkt.].
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For good cause shown and because the motion is unopposed, the Court
GRANTS the second motion for reconsideration, [Doc. 20]. See LR 7.1(B), NDGa
(“Failure to file a response shall indicated that there is no opposition to the motion”).
The Court therefore DIRECTS the Clerk to RENEW Plaintiff’s first motion for
reconsideration. [Doc. 17].
III.
Renewed Motion for Reconsideration
A.
Legal Standard
“The only grounds for granting a Rule 59 motion are newly-discovered evidence
or manifest errors of law or fact. . . . A Rule 59(e) motion cannot be used to relitigate
old matters, raise argument or present evidence that could have been raised prior to the
entry of judgment.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per curiam)
(brackets, quotations, and citations omitted); accord Lockard v. Equifax, Inc.,
163 F.3d 1259, 1267 (11th Cir. 1998) (providing that a Rule 59 motion for
reconsideration “should not be used to raise legal arguments which could and should
have been made before the judgment was issued”).
This Court’s Local Rules further provide that “[m]otions for reconsideration shall
not be filed as a matter of routine practice”; instead, such motions shall only be filed
when “absolutely necessary.” N.D. Ga. R. 7.2E. “Such absolute necessity arises where
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there is ‘(1) newly discovered evidence; (2) an intervening development or change in
controlling law; or (3) a need to correct a clear error of law or fact.’ ” United States,
ex rel. Powell v. Am. InterContinental Univ., 756 F. Supp. 2d 1374, 1377
(N.D. Ga. 2010) (Story, J.) (quoting Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59
(N.D. Ga. 2003) (Martin, J.)). “An error is not ‘clear and obvious’ if the legal issues
are ‘at least arguable.’ ” Reid v. BMW of N. Am., 464 F. Supp. 2d 1267, 1270 (N.D. Ga.
2006) (Shoob, J.) (quoting United States v. Battle, 272 F. Supp. 2d 1354, 1358
(N.D. Ga. 2003) (Evans, J.)). “[A] motion for reconsideration is not an opportunity for
the moving party . . . to instruct the court on how the court ‘could have done it better’
the first time.” Powell, 756 F. Supp. 2d at 1377 (quoting Pres. Endangered Areas of
Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916 F. Supp. 1557, 1560 (N.D. Ga.
1995) (O’Kelley, J.)). Moreover, “a motion for reconsideration may not be used ‘to
present the court with arguments already heard and dismissed or to repackage familiar
arguments to test whether the court will change its mind.’ ” Powell, id. (quoting Bryan,
246 F. Supp. 2d at 1259). Denial of a Rule 59 motion for reconsideration is reviewed
for abuse of discretion. Arthur, 500 F.3d at 1343.
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B.
Discussion
The Court would be hard-pressed to find that Plaintiff adhered to the legal
standard applicable to motions for reconsideration in that she did not pinpoint specific
clear error but instead challenges the Court’s determinations on five grounds—which
essentially amounts to a broad request to relitigate two-thirds of the case.4
Nevertheless, in its review of Plaintiff’s many allegations of error, the Court has
determined that a May 2008 medical record of the treatment Plaintiff received from
Dr. Nick Gabbay, [R197], undermines the ALJ’s finding that the disabling sitting,
standing, and walking limitations set out by Dr. Michael Fortson, one of Plaintiff’s
4
Plaintiff first argues that the record evidence does not contradict the
disabling sitting, standing, and walking limitations set out by Dr. Michael Forston, one
of Plaintiff’s treating physicians, and therefore the ALJ should not have discounted
Dr. Fortson’s opinion. [Doc. 17 at 2]. Second, Plaintiff argues that the Court erred in
relying on Winschel v. Commissioner of Social Security, 631 F.3d 1176 (11th Cir. 2011)
in determining that an ALJ may reject a treating doctor’s opinion when that opinion is
not supported by the evidence, even when the evidence does not include another
doctor’s opinion. [Doc. 17 at 3]. Third, Plaintiff contends that both the ALJ and the
Court improperly disregarded evidence of Plaintiff’s annular tears. [Id. at 3-6]. Fourth,
Plaintiff argues that the ALJ’s opinion was internally inconsistent, in that he found that
her medically determinable impairments could reasonably be expected to produce her
symptoms but then found that she was not disabled. [Id. at 6]. Fifth, Plaintiff contends
that the Court was incorrect in determining that the conservative treatment she received
was a reason to reject Dr. Fortson’s opinion. [Id. at 6-8].
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treating physicians, was not supported by other record evidence and therefore was
entitled to little weight.
After Plaintiff’s initial hearing, the ALJ issued an opinion in which he found that
Plaintiff’s foot and hip problems were severe impairments. [R14]. He determined,
however, that she had the residual functional capacity (“RFC”) to perform light work
“in regards to which she could lift/carry 20 pounds occasionally, 10 pounds frequently;
stand/walk 2 hours; and sit 6 hours in an 8-hour workday.” [R14]. He therefore
concluded that Plaintiff could perform jobs that existed in significant numbers in the
national economy. [R18].
In the initial brief Plaintiff filed in support of her Social Security appeal, Plaintiff
pointed out that in a Functional Capacity Evaluation dated June 23, 2008, Dr. Fortson
set out disabling functional limitations: (1) in an eight-hour workday, Plaintiff could
sit for less than two hours, stand for less than two hours, and walk for less than two
hours, [R212]; (2) Plaintiff could not get through an eight-hour work day (with normal
breaks) on a sustained basis without lying down, [R212]; and (3) Plaintiff’s condition
would cause her to miss work three or more times per month, [R214].5 [Doc. 10 at 185
As Plaintiff points out, functional limitations are disabling when they
preclude work on a “ ‘regular and continuing basis,’ mean[ing] 8 hours a day, for
5 days a week, or an equivalent work schedule.” [Doc. 10 at 18 (quoting Social
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19]. Plaintiff argued in her opening brief that the ALJ erred by rejecting Dr. Fortson’s
opinion without articulating good cause for doing so. [Id. at 18]. Among the many
reasons Plaintiff contended that the ALJ erred, she argued that the limitations
Dr. Fortson set out were supported by Dr. Gabbay’s May 2008 findings of multiple
severe abnormalities in Plaintiff’s feet, [R197].6 [Doc. 10 at 19].
After reviewing the ALJ’s opinion, the parties’ briefs, and the record in this case,
and after hearing oral argument, the undersigned found that the ALJ had properly
Security Ruling (“SSR”) 96-8p)].
6
Plaintiff also contended that the ALJ erred in failing to give Dr. Fortson’s
opinion controlling weight without expressly applying a six-factor analysis to decide
what non-controlling weight to give it, and she also contended that the ALJ
impermissibly rejected Dr. Fortson’s opinion based on the ALJ’s own medical
opinion. [Id. at 18-21]. She also argued that the limitations Dr. Fortson set out were
supported by a September 2005 lumbar spine MRI showing a disc bulge abutting the
nerve root, [R148], and a June 19, 2008, lumbar spine MRI showing non-compressive
bulges with annular tears, [R208]. [Doc. 10 at 19]. Plaintiff further contended that the
ALJ’s reasons for giving Dr. Fortson’s opinion little weight were inadequate to
contradict Dr. Fortson’s medical opinion because (1) after successful physical therapy
in 2005, later notes indicate that Plaintiff still had stiffness and pain that were waking
her up, [R133, 135, 126]; (2) the lack of a recommendation to have surgery does not,
as a matter of law, correlate to lack of a severe physical impairment; (3) despite the
ALJ’s assertion that no one except Dr. Fortson imposed limitations on Plaintiff, the
record shows that in November 2005, a nurse practitioner found significant restriction
in Plaintiff’s range of motion and found that her back and neck limitations interfered
with her activities of daily living, [R201-03]; and (4) “it appears the neurosurgeon, two
orthopedists, and two pain specialists who treated [Plaintiff] simply were not asked
about her functional limitations.” [Doc. 17 at 19-20].
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applied the law and that substantial evidence supported his conclusion that
Dr. Fortson’s opinion regarding Plaintiff’s limitations was entitled to little weight.
[Doc. 15 at 35-44]. The Court affirmed the ALJ’s decision and directed entry of final
judgment in the Commissioner’s favor. [Doc. 15 at 58]. Upon reconsideration, the
Court finds that it erred in doing so.
In reviewing an ALJ’s decision to discount the opinion of a treating physician,
the Court is to consider whether the decision is supported by substantial evidence.
Muhammad ex rel. T.I.M. v. Comm’r of Social Sec., 395 Fed. Appx. 593, 598
(11th Cir. Sept. 3, 2010) (citing Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004)). “[T]he opinion of a treating physician is entitled to substantial weight
unless good cause exists for not heeding the treating physician’s diagnosis.” Edwards
v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991); accord MacGregor v. Bowen,
786 F.2d 1050, 1053 (11th Cir. 1986); see also 20 C.F.R. § 404.1527(c)(2) (providing
that, generally, more weight is given to opinions from treating sources). The Eleventh
Circuit has found “good cause” to afford less weight to a treating physician’s opinion
where the opinion is conclusory or inconsistent with the physician’s own medical
records, the evidence supports a contrary finding, or the evidence supports a contrary
conclusion. Simone v. Comm’r of Soc. Sec. Admin., 465 Fed. Appx. 905, 909-10
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(11th Cir. Apr. 10, 2012) (citing Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997), and Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)); Phillips,
357 F.3d at 1240-41 (“ ‘[G]ood cause’ exists when the: (1) treating physician’s opinion
was not bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.”).
In his written decision, the ALJ had considered Dr. Fortson’s opinion but gave
it “little weight as it is not supported by the bulk of the record as a whole.” [R17].
Specifically, the ALJ pointed to evidence that (1) in 2005, Plaintiff met all of her goals
in physical therapy and was noted to do an excellent job, [R116-29]; (2) in an
examination dated November 28, 2005, Plaintiff demonstrated only mild pain around
the neck and shoulders, [R144-46]; (3) in 2006, injections alleviated hip and knee pain,
and neurological and musculoskeletal examinations were normal with no pain, full
range of motion, and 5/5 strength throughout, [R193-96]; (4) a June 2008 lumbar MRI
showed multiple-level degenerative disc disease with generally mild bulges, no definite
cord or nerve root compression, and only mild facet degenerative changes, [R208];
(5) Plaintiff had only been treated with medications and injections, and no surgery had
ever been recommended to her; and (6) no limitations were ever imposed on her aside
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from the functional capacity assessment Dr. Fortson completed. [R16-17]. The ALJ
also noted that state agency medical consultants had opined that Plaintiff retained the
RFC to perform medium work with no more than occasional climbing and stooping,
[R156-63, 185-92], which the ALJ found was reasonable based on the evidence in the
record at the time. [R17]. The ALJ therefore gave the state agency consultant opinions
“some weight.” [R17].
In its initial Order and Opinion, the Court determined that the ALJ did not err in
finding that Dr. Fortson’s limitations relating to sitting, standing, and walking were not
supported by the record and therefore were entitled to little weight. [Doc. 15 at 41].
In examining the evidence upon Plaintiff’s motion for reconsideration, however, the
Court finds that Dr. Gabbay’s records directly contradict the ALJ’s findings that
Plaintiff received only conservative treatment, never received a recommendation to
have surgery, and never received functional limitations other than those imposed by
Dr. Fortson. [See R197, 204-07]. Dr. Gabbay’s records start in January 2004, when
Plaintiff visited with complaints of a painful ball of the left foot with pains shooting up
her leg. [R207]. Physical examination and x-rays revealed “severe lateral deviation of
the hallux with a dorsal medial eminence,” “pain on palpation over the third interspace
with pain on compression of the metatarsals,” a positive Mulder’s click, and a “large
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metatarsal angle deformity with the sesamoid interspace at 5.” [R207]. Dr. Gabbay
reported that he treated Plaintiff by injecting her neuroma with a sclerosing alcohol
combination.7 [R207]. He also told Plaintiff that “she might need 3-4 shots to
completely destroy the nerve” and recommended that she stay off the foot as much as
possible. [R207]. In the short term, the neuroma injection relieved ninety percent of
the pain, [R206], but in June 2004, Plaintiff came back with more pain, and Dr. Gabbay
found that she was symptomatic, [R205]. He gave her a cortisone shot. [R205]. In
March 2005, Plaintiff again visited with complaints of pain in the ball of her foot and
was treated with anti-inflammatories. [R204]. In May 2008, a few months before her
hearing before the ALJ, Plaintiff visited Dr. Gabbay with complaints of a “painful
bunion deformity, bilaterally, as well as painful tailor’s bunion” and a “painful
neuroma.” [R197]. A previous cortisone shot had temporarily “helped a little bit,” but
Plaintiff had a recurrence. [R197]. Dr. Gabbay observed that Plaintiff presented “with
severe lateral deviation of the hallux with a dorsal medial eminence,” “[s]evere flaring
of the fifth metatarsal head,” “[a]dductovarus deformity of the fifth digit,” “[e]rythema
7
This procedure is used to cause neurolysis in the nerve transmitting the
pain. See Gary Dockery, Is Injection Therapy the Best Solution for Foot Neuromas?
15:1 Podiatry Today (Jan. 2002), available at http://www.podiatrytoday.com/article/87.
“Neurolysis” refers to “[d]estruction of the nerve tissue” or “[f]reeing of a nerve from
inflammatory adhesions.” 1202 PDR Med. Dictionary (1st ed. 1995).
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overlying the medial eminence, . . . lateral eminence of the fifth metatarsal head,”
“[c]ontracture of the lesser digits,” “[r]etrograde buckling and anterior migration of the
fat pad,” “[p]ain at the third interspace,” “[p]ositive Mulder click,” and “[p]ain with
compression [and] with lateral squeeze.” [R197]. X-rays showed “increase in the
intermetatarsal angle [and] the hallux abductus angle” and “[s]evere increase in the
lateral deviation angle [and] the fifth metatarsal bowing.” [R197]. Dr. Gabbay started
sclerosing alcohol injections and discussed two possible surgeries with Plaintiff.
[R197]. Thus, the medical records from Plaintiff’s treatment with Dr. Gabbay show
that he provided at least moderately invasive treatment (sclerosing nerves),
[R197, 207]; imposed functional limitations (recommending that Plaintiff stay off her
feet as much as possible), [R207]; and recommended that Plaintiff consider surgery,
[R197].
As a consequence, the ALJ’s decision to accord little weight to Dr. Fortson’s
opinion rests only on evidence that (1) in 2005, Plaintiff has success with physical
therapy; (2) on November 28, 2005, Plaintiff demonstrated only mild pain around the
neck and shoulders; (3) in 2006, injections alleviated hip and knee pain, and
neurological and musculoskeletal examinations were normal with no pain, full range
of motion, and 5/5 strength throughout; and (4) a June 2008 lumbar MRI showed
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multiple-level degenerative disc disease with generally mild bulges, no definite cord
or nerve root compression, and only mild facet degenerative changes. [R16-17]. The
Court finds that this record evidence is not substantial support for discounting the
standing and walking limitations set out in Dr. Fortson’s June 2008 Functional Capacity
Evaluation, which Dr. Fortson issued shortly after Dr. Gabbay’s finding that Plaintiff
had severe foot deformities.8 The Court therefore GRANTS Plaintiff’s renewed motion
for reconsideration.
IV.
Conclusion
For the reasons above, Plaintiff’s second motion for reconsideration is
GRANTED. [Doc. 20]. Accordingly, the Clerk is DIRECTED to RENEW Plaintiff’s
first motion for reconsideration. [Doc. 17]. The renewed motion for reconsideration
is also GRANTED.
The Commissioner’s final decision denying benefits to Plaintiff is hereby
REMANDED to the Commissioner for further consideration of Plaintiff’s claims
8
The Court also notes that the non-examining doctors who indicated that
Plaintiff could stand and/or walk for 6 hours in an 8-hour day and therefore could
perform modified medium work rendered their opinions in December 2005 and
April 2006; thus, they could not have considered Plaintiff’s May 2008 condition.
[See R157, 186-87].
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consistent with this Order. The Clerk is DIRECTED to enter judgment in Plaintiff’s
favor.
IT IS SO ORDERED, this the 27th day of February, 2013.
ALAN J. BAVERMAN
UNITED STATES MAGISTRATE JUDGE
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