Sellars v. Acting Commissioner of Social Security
Filing
16
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court AFFIRM the decision of the Commissioner re 1 Complaint filed by Randall T. Sellars. It is further RECOMMENDED that the Court DIRECT the Clerk to enter the appropriate judgment of di smissal and to CLOSE this case. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 8/29/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/15/2018. (ca) Modified on 8/15/2018 (ca).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
RANDALL T. SELLARS,
Plaintiff,
CIVIL ACTION NO.: 2:17-cv-31
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff contests the decision of Administrative Law Judge Richard Furcolo (“the ALJ”
or “ALJ Furcolo”) denying his claim for a period of disability and disability insurance benefits.
(Doc. 1.) Plaintiff urges the Court to reverse the ALJ’s decision and award him benefits, or in
the alternative, for other relief as may be deemed appropriate.
Commissioner’s decision should be affirmed.
(Doc. 9.)
Defendant asserts the
For the reasons which follow, I
RECOMMEND the Court AFFIRM the decision of the Commissioner. I also RECOMMEND
that the Court DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and to
CLOSE this case.
BACKGROUND
On January 15, 2013, Plaintiff protectively filed Title II applications for a period of
disability and disability insurance benefits, alleging disability beginning on June 24, 2011.
(Doc. 10-2, p. 16.) After her claim was denied initially and upon reconsideration, Plaintiff filed
a timely request for a hearing. On January 21, 2015, a video hearing was held by ALJ William
Davenport. On November 3, 2015, ALJ Furcolo held a supplemental video hearing at which
Plaintiff, represented by counsel, appeared and testified in Brunswick, Georgia, while the ALJ
presided over the hearing in Savannah, Georgia. Kenneth L. Bennett, a vocational expert, also
appeared at the hearing. (Id.) ALJ Furcolo found that Plaintiff was not disabled within the
meaning of the Social Security Act, 42 U.S.C. §§ 301 et seq. (the “Act”). (Id. at p. 25.) The
Appeals Council denied Plaintiff’s request for review of the ALJ’s decision, and the decision of
the ALJ became the final decision of the Commissioner for judicial review. (Id. at pp. 2–3.)
Plaintiff, born on July 21, 1961, was fifty-four (54) years old when ALJ Furcolo issued
his final decision. (Id. at p. 24.) Plaintiff has a high school education and has obtained a college
degree. (Id. at pp. 24, 78.) Further, he has relevant past work experience as a retail store
manager and insulation supervisor. (Id. at p. 23.)
DISCUSSION
I.
The ALJ’s Findings
Title II of the Act defines “disability” as the “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). The Act qualifies the definition
of disability as follows:
An individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous 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). Pursuant to the Act, the Commissioner has established a five-step
process to determine whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987).
2
The first step determines if the claimant is engaged in “substantial gainful activity.”
Yuckert, 482 U.S. at 140. If the claimant is engaged in substantial gainful activity, then benefits
are immediately denied. Id. If the claimant is not engaged in such activity, then the second
inquiry is whether the claimant has a medically severe impairment or combination of
impairments as defined by the “severity regulation.” 20 C.F.R. §§ 404.1520(c), 416.920(c);
Yuckert, 482 U.S. at 140–41. If the claimant’s impairment or combination of impairments is
considered severe, then the evaluation proceeds to Step Three.
The third step requires a
determination of whether the claimant’s impairment meets or equals one of the impairments
listed in the Code of Federal Regulations (“the Regulations”) and acknowledged by the
Commissioner as sufficiently severe to preclude substantial gainful activity.
20 C.F.R. §§
404.1520(d), 416.920(d); 20 C.F.R. Pt. 404, Subpt. P. App. 1; Phillips v. Barnhart, 357 F.3d
1232, 1238 (11th Cir. 2004). If the impairment meets or equals one of the listed impairments,
the plaintiff is presumed disabled. Yuckert, 482 U.S. at 141.
If the impairment does not meet or equal one of the listed impairments, the sequential
evaluation proceeds to the fourth step. At Step Four, a determination is made as to whether the
impairment precludes the claimant from performing past relevant work, i.e., whether the
claimant has the residual functional capacity (“RFC”) to perform past relevant work. Id.; Stone
v. Comm’r of Soc. Sec., 503 F. App’x 692, 693 (11th Cir. 2013) (per curiam). A claimant’s RFC
“is an assessment . . . of the claimant’s remaining ability to do work despite his impairments.”
Stone, 503 F. App’x at 693–94 (ellipsis in original) (quoting Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997)). If the claimant is unable to perform her past relevant work, the final step
of the evaluation process determines whether she is able adjust to other work in the national
economy, considering her age, education, and work experience. Phillips, 357 F.3d at 1239.
3
Disability benefits will be awarded only if the claimant is unable to perform other work.
Yuckert, 482 U.S. at 142.
In the instant case, ALJ Furcolo followed this sequential process to determine that
Plaintiff has not engaged in substantial gainful activity since June 24, 2011, the alleged onset
date. (Doc. 10-2, p. 18.) At Step Two, the ALJ determined that Plaintiff’s idiopathic pulmonary
arterial hypertension, primary pulmonary hypertension, and systemic hypertension were
considered “severe” under the “severity regulation.”
§ 404.1520(c)).)
(Id. at pp. 18–19 (citing 20 C.F.R.
At the next step, the ALJ determined that none of Plaintiff’s medically
determinable impairments or combination of impairments met or medically equaled a listed
impairment under the Regulations. (Id. at p. 19 (citing 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526).)
In determining Plaintiff’s RFC, ALJ Furcolo found that he could perform the full range
of sedentary work as defined in 20 C.F.R. § 404.1567(a).
(Id. at pp. 19–23.)
Physical
examinations of Plaintiff were “unremarkable” and Plaintiff’s symptoms are “well-controlled,”
but given Plaintiff’s pulmonary arterial hypertension, as substantiated by the evidence of record,
the ALJ concluded that Plaintiff’s medical condition “ultimately limits [him] to sedentary
exertion.” (Id. at p. 21.) A sedentary work profile limits Plaintiff to “lifting no more than 10
pounds at a time and occasionally lifting or carrying” things like files and small tools; this work
profile involves sitting but also occasional walking and standing. 20 C.F.R. § 404.1567(a).
Based on the evidence submitted, ALJ Furcolo found Plaintiff fully capable of sedentary work
and declined to add further limitations. (Doc. 10-2, pp. 19–23.)
At Step Four, the ALJ found Plaintiff unable to perform his past relevant work as a retail
store manager or insulation supervisor because both jobs exceeded the sedentary exertional level.
4
(Id. at pp. 23–24.) However, considering Plaintiff’s age, education, work experience, and RFC,
ALJ Furcolo concluded at the fifth and final step that Plaintiff could perform the occupation of
telephone solicitor, a job compatible with sedentary exertion that exists in significant numbers in
the national economy. (Id. at pp. 24–25.)
II.
Issues Presented
Plaintiff contends the ALJ failed at Step Three to apply the correct Social Security
standards and regulations, specifically as to his finding that Plaintiff’s condition did not meet or
equal a listed condition under the Regulations. (Doc. 12, p. 2; Doc. 13, p. 1.) Plaintiff also
contends that the ALJ’s decision was contrary to the substantial evidence, specifically as to the
weight ALJ Furcolo afforded the opinions of the examining medical consultant, treating
physician, and nurse practitioner. (Id.)
III.
Standard of Review
It is well-established that judicial review of social security cases is limited to questions of
whether the Commissioner’s factual findings are supported by “substantial evidence,” and
whether the Commissioner has applied appropriate legal standards. Cornelius v. Sullivan, 936
F.2d 1143, 1145 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A
reviewing court does not “decide facts anew, reweigh the evidence or substitute” its judgment for
that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Even if the
evidence preponderates against the Commissioner’s factual findings, the court must affirm a
decision supported by substantial evidence. Id.
However, substantial evidence must do more than create a suspicion of the existence of
the fact to be proved. The evidence relied upon must be relevant evidence which a reasonable
mind would find adequate to support a conclusion. Ingram v. Comm’r of Soc. Sec. Admin., 496
5
F.3d 1253, 1260 (11th Cir. 2007). The substantial evidence standard requires more than a
scintilla but less than a preponderance of evidence. Dyer, 395 F.3d at 1210. In its review, the
court must also determine whether the ALJ or Commissioner applied appropriate legal standards.
Failure to delineate and apply the appropriate standards mandates that the findings be vacated
and remanded for clarification. Cornelius, 936 F.2d at 1146.
IV.
Whether Substantial Evidence Supports the ALJ’s Finding that Plaintiff Did Not
Meet a Listed Impairment
Plaintiff argues ALJ Furcolo wrongfully concluded that his pulmonary hypertension
condition was not a listed severe impairment at Step Three. (Doc. 12, pp. 2–3.) Plaintiff implies
the ALJ only considered Listing 4.00 Cardiovascular Disorders and no other possible Listings.
(Id.) Plaintiff contends that his heart condition meets Listing 3.09 for cor pulmonale 1 because
his hypertension has a “mean pulmonary artery pressure greater than 40 mm Hg,” as required by
that Listing. (Id. at p. 3; see also Doc. 14.) Plaintiff includes several citations to the medical
record that ostensibly show his artery pressure has been greater than 40 mm Hg at all relevant
times. (Doc. 12, pp. 3, 6.) Thus, Plaintiff argues that the ALJ abused his discretion in finding
Plaintiff’s condition did not meet a listed impairment.
Defendant argues substantial evidence supports the ALJ’s finding that Plaintiff’s
pulmonary hypertension did not meet Listing 3.09. Defendant also argues that Plaintiff has
failed to show his condition meets all of the necessary criteria to qualify under Listing 3.09.
(Doc. 13, pp. 4–7.) Specifically, Defendant contends that Plaintiff lacks clinical evidence of a
mean pulmonary artery pressure greater than 40 mm Hg and that evidence from Plaintiff’s
treating physician indicate he does not have cor pulmonale. (Id. at p. 5.) Thus, Defendant
1
A cor pulmonale is a “right ventricular enlargement secondary to a lung disorder that causes pulmonary
artery hypertension” followed by right ventricular failure. Sanjiv J. Shah, MD, Cor Pulmonale, The
Merck Manual, http://www.merckmanuals.com/professional/cardiovascular-disorders/heart-failure/corpulmonale (last revised March 2017).
6
contends Plaintiff does not have relevant and conclusive evidence of cor pulmonale, despite his
pulmonary arterial hypertension diagnosis. (Doc. 15.)
A claimant must provide specific evidence—such as medical signs, symptoms, or
laboratory-test results—showing that his impairment meets or medically equals a listed
impairment to be presumed disabled at Step Three. Sullivan, 493 U.S. at 530; see Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (claimant bears the burden to establish the
existence of his impairment). “For a claimant to show that his impairment matches a listing, it
must meet all of the specified medical criteria. An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.” Arrington v. Soc. Sec. Admin., 358 F. App’x
89, 93 (11th Cir. 2009) (per curiam) (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). Thus,
to meet a listing, “a claimant must have a diagnosis included in the Listings and must provide
medical reports documenting that the conditions meet the specific criteria of the Listings and the
duration requirement.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (citations
omitted).
The ALJ’s finding as to whether a claimant does or does not meet a listed impairment
need not be explicit and may be implied from the record. Hutchison v. Bowen, 787 F.2d 1461,
1463 (11th Cir. 1986) (holding the ALJ implicitly found the claimant did not meet a listing
because it was clear from the record that the ALJ had considered the relevant law and evidence).
Furthermore, although the ALJ must consider the Listings in making his disability determination,
he is not required to recite mechanically the evidence leading to his ultimate determination.
Bellew v. Acting Comm’r of Soc. Sec., 605 F. App’x 917, 920 (11th Cir. 2015) (per curiam)
(citation omitted).
7
To meet Listing 3.09 for “[c]or pulmonale secondary to chronic pulmonary vascular
hypertension,” a claimant must provide (1) clinical evidence of cor pulmonale with (2) either a
mean pulmonary artery pressure greater than 40 mm Hg or arterial hypoxemia. 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 3.09. The clinical evidence requirement mandates evidence of right
ventricular overload or failure, which can be documented by signs and laboratory findings of an
early diastolic right sided gallop on auscultation, neck vein distension, and cardiac
catheterization, among other methods. Id. §§ 3.09, 3.00G. A claimant must also show clinical
evidence of the required mean artery pressure greater than 40 mm Hg or clinical evidence of
deficient oxygenation in the arteries as measured by the levels or carbon dioxide and oxygen
pressure in the blood. Id. §§ 3.09B, 3.09C, 3.02C2; see also id. § 4.02 (providing the applicable
chronic heart failure criteria by which to further evaluate cor pulmonale).
Substantial evidence supports the ALJ’s determination that Plaintiff’s heart condition did
not meet or equal a listed impairment and that Plaintiff failed to carry his burden in establishing
the existence of a listed impairment under the Regulations. In attempting to carry his burden,
Plaintiff points to thirteen instances in the record to argue he had a mean pulmonary artery
pressure greater than 40 mm Hg during the relevant period, (doc. 12, pp. 3, 6), but the Court’s
review of these records belie Plaintiff’s assertion. As noted by Defendant, six of Plaintiff’s
records rely on diagnostics from before Plaintiff’s alleged onset date, all of which reference
April 2010 catheterization results. 2 (See Doc. 10-7, pp. 7, 10, 13, 31, 71, 81.) Moreover,
Plaintiff incorrectly points to April 16, 2010 catheterization results that show a mean pulmonary
2
In addition to being prior to Plaintiff’s alleged onset date of June 24, 2011, the April 18, 2010 results
seem to contradict Plaintiff’s assertion that they show he has the requisite threshold mean pulmonary
artery pressure of greater than 40 mm Hg. (See Doc. 10-7, p. 31 (documenting a systolic pulmonary
artery pressure of 87 mm Hg but a pulmonary capillary wedge pressure mean of 6 mm Hg and a right
atrial pressure mean of 0 mm Hg)). Nothing in this record indicates any mean pressure above the
threshold amount.
8
artery pressure of 40 mm Hg, 3 (doc. 10-7, pp. 7, 10, 13, 71, 81), when Listing 3.09 requires a
mean pressure “greater than 40 mm Hg,” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 3.09.
The seven other medical records Plaintiff points to in support of his Listing 3.09 claim
are similarly misplaced. Two of the records do not provide any information regarding Plaintiff’s
mean pulmonary artery pressure. (Doc. 10-7, pp. 49–50, 68.) The remaining five records that
Plaintiff advances in support of his mean pulmonary artery pressure assertion do not suggest a
mean pressure greater than the threshold requirement of 40 mm Hg. The December 11, 2013
record documents only a pulmonary artery pressure (“PAP”) of 50 mm Hg with no indication as
to whether the pressure indicated was a mean figure. (Id. at p. 82.) To be sure, the other records
cited to by Plaintiff do indeed document a systolic artery pressure of greater than 40 mm Hg, (id.
at pp. 16, 18, 74, 79), but they fail to establish the requisite mean pulmonary artery pressure of
greater than 40 mm Hg. Systolic artery pressure is not the same as mean artery pressure:
[Mean pulmonary artery pressure] reflects the steady component of flow and the
functional status of the distal (resistive) pulmonary veasculature, while [systolic
pulmonary artery pressure] is expected to encompass the pulsatile component of
arterial load, which includes the characteristics of right ventricular ejection and
the characteristics of the proximal (elastic) pulmonary arteries and wave
reflections.
Chemla et al., New Formula for Predicting Mean Pulmonary Artery Pressure Using Systolic
Pulmonary Artery Pressure, 126 Chest Journal 1313, 1314 (2004) (footnotes omitted).
In this case, Plaintiff has failed to present evidence of a mean pulmonary artery pressure
exceeding 40 mm Hg. Likewise, Plaintiff has failed to present evidence or argument showing he
suffers from arterial hypoxemia. Finally, Plaintiff fails to show the initially required clinical
evidence of cor pulmonale that must exist prior to consideration of mean pulmonary artery
3
In his Reply Brief, Plaintiff strives to show these records are timely to the alleged onset date, but each
record, while being within the alleged onset date, clearly states that the artery pressure documented
therein is from April 2010. (See Doc. 10-7, pp. 7, 10, 13, 71, 81.)
9
pressure or arterial hypoxemia. 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 3.09, 3.00G. Although
Plaintiff correctly states that under the Regulations “evidence of florid right heart failure need
not be present at the time of adjudication for a Listing (e.g., 3.09) to be satisfied, but the medical
evidence of record should establish that cor pulmonale is chronic and irreversible.” 4 (Doc. 14,
p. 2 (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1 3.00G.)). Plaintiff points to no medical
evidence of record that establishes he has chronic and irreversible cor pulmonale. In fact,
Plaintiff’s own treating physician, Dr. Michael Butler, indicated just the opposite when he
marked “N/A” to a February 11, 2013 respiratory questionnaire which asked for EKG tracings
and chest x-rays showing cor pulmonale and other signs of congestive heart failure. (Doc. 10-7,
p. 48.) Thus, Plaintiff failed to carry his burden to establish a condition under the Listings.
Furthermore, substantial evidence supports ALJ Furcolo’s determination that Plaintiff
does not have an impairment that meets or medically equals the severity of one of the listed
impairments. The ALJ considered Plaintiff’s severe pulmonary hypertension in light of the
entire record, including the opinions of the State agency medical consultants on this issue, and
reasonably concluded that Plaintiff did not have an impairment under the Listings. (Doc. 10-2,
p. 19.)
After two separate examinations, State medical consultants considered whether
Plaintiff’s medical condition met a listed impairment and determined he was not disabled. (Doc.
10-3, pp. 5, 9, 15, 19.) No acceptable medical source opined that Plaintiff meets or medically
equals a listing, (doc. 10-2, p. 19), and Plaintiff points to none is his Complaint or Briefs, (see
docs. 1, 12, 14). Moreover, ALJ Furcolo expressly considered several of Plaintiff’s medical
records, including one that Plaintiff supportively cites to in his Brief, (doc. 12, p. 6 (citing doc.
4
Following this statement, Plaintiff cites to a December 30, 2014 record, (doc. 10-7, p. 68), but this
opinion letter from Dr. Stephen A. Chitty does not mention cor pulmonale, much less show that Plaintiff
has chronic and irreversible cor pulmonale. While Dr. Chitty stated that Plaintiff “suffers from severe
idiopathic pulmonary arterial hypertension,” (id.), the ALJ found the same and considered that
impairment in making his determination under the Listings, (doc. 10-2, pp. 18–19).
10
10-7, p. 74)), and concluded that he did not meet Listing 4.02 for chronic heart failure or “any of
the listed impairments.” (Doc. 10-2, p. 19.) These records support the ALJ’s determination as to
Listing 4.02, because they show Plaintiff’s heart to be in a functioning capacity. 5 Thus, it is
clear ALJ Furcolo had substantial support in the evidence in determining that Plaintiff’s severe
impairments did not qualify under the Listings.
Accordingly, the ALJ’s determination that Plaintiff’s idiopathic pulmonary arterial
hypertension, primary pulmonary hypertension, systemic hypertension, and other impairments
did not meet or medically equal a listed impairment was proper, and Plaintiff’s enumeration of
error is without merit.
V.
Whether the ALJ Properly Considered and Weighed the Opinions of the Examining
Medical Consultant, Treating Physician, and Nurse Practitioner
Plaintiff argues that ALJ Furcolo abused his discretion in assigning little weight to the
opinions of three medical professionals: (1) the Social Security Administration’s Consultative
Examiner, Dr. Mukesh Agarwal; (2) Plaintiff’s long-term treating physician, Dr. Stephen A.
Chitty; (3) and nurse practitioner Vicky Alday, a witness at the hearing. (Doc. 12, p. 3.)
Plaintiff contends the ALJ should not have discounted Dr. Agarwal’s opinion because he was the
Commissioner’s expert, improperly considered Plaintiff’s testimony in discounting Dr. Chitty’s
opinion, and wrongly gave little weight to Ms. Alday’s opinion simply because she was not an
acceptable medical source. (Id. at pp. 4–5.)
Defendant argues that ALJ Furcolo properly considered and weighed the opinions of each
of these experts. (Doc. 13, pp. 8–10.) Further, Defendant contends the ALJ’s reasons for
5
To the extent Plaintiff contests the ALJ’s conclusion at Step Three because he did not specifically
discuss Listing 3.09, the Regulations do not require ALJs to discuss all potentially applicable listings.
See Tuberville v. Astrue, 316 F. App’x 891, 893 (11th Cir. 2009) (“though the ALJ did not explicitly
discuss why claimant did not actually meet the Listing] substantial record evidence supports [that
claimant did not meet the Listing]”); Hutchison, 787 F.2d at 1463 (conclusions regarding listed
impairments can be implied from the record).
11
discounting these experts were supported by substantial evidence and were appropriate in light of
applicable legal standards. (Id. at pp. 10–15.) In this case, the Court finds ALJ Furcolo properly
considered and weighed the opinions of each discounted expert Plaintiff challenges.
“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [the claimant’s]
impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the claimant’s] physical or mental restrictions.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178–79 (11th Cir. 2011) (alteration in
original) (quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)). The opinions of non-treating
doctors, such as a one-time examiner, or from non-acceptable medical sources, such as a
chiropractor, are not entitled to deference or special consideration. 6 See Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) (citations omitted). However, “the law of this
circuit is clear that the testimony of a treating physician must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997) (citations omitted).
“Good 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.’” Winschel, 631 F.3d at 1179
(quoting Phillips, 357 F.3d at 1241). “The ALJ has wide latitude to determine what weight to
assign to those opinions, so long as he operates within the regulatory and judicial frameworks.”
Zanders v. Colvin, No. CV412-182, 2013 WL 4077456, at *5 (S.D. Ga. Aug. 12, 2013). An ALJ
6
A doctor is not a treating doctor if the claimant’s relationship with the doctor arises from the claimant’s
need to obtain a report to support his claim for disability, rather than from the claimant’s need for medical
care. 20 C.F.R. § 404.1502 (2013). The Court cites to the 2013 version of this code section because
Plaintiff filed for benefits that year and this code section has recently undergone substantial revision with
respect to treating physicians. See 20 C.F.R. § 404.1502 (2018).
12
is not obligated to agree with a medical opinion if the evidence of record tends toward a contrary
conclusion. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (citations omitted). “For
instance, when discounting a medical opinion, he should consider several factors, including the
examining relationship, the treatment relationship, the doctor’s specialization, whether the
opinion is amply supported, and whether the opinion is consistent with the record.” Id. (citing 20
C.F.R. §§ 404.1527(c) & 416.927(c)). “[T]he ALJ must state with particularity the weight given
to different medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179 (citation
omitted). Failure to “clearly articulate the reasons for giving less weight to the opinion of a
treating physician” is “reversible error.” Lewis, 125 F.3d at 1440 (citation omitted).
A.
Consultative Examiner Dr. Mukesh Agarwal
ALJ Furcolo did not err in assigning little weight to Dr. Agarwal’s opinion that Plaintiff
has difficulty sustaining any exertion. (Doc. 10-2, p. 23 (citing Doc. 10-10, p. 42).) Although
Plaintiff argues the ALJ abused his discretion solely by affording little weight to the
Commissioner’s “independent” and “unbiased” consultative examiner, (doc. 12, p. 3–4), he
offers no support for this assertion of error. The opinions of a consultative examiner such as Dr.
Agarwal, who was not a treating doctor and only saw Plaintiff once, are not entitled to any level
of deference or special consideration, regardless of his role as the Commissioner’s unbiased
examiner. 20 C.F.R. § 404.1502 (2013); see Crawford, 363 F.3d at 1160. Furthermore, the ALJ
had substantial evidence, in the form of multiple inconsistencies, by which to discount Dr.
Agarwal’s conclusion that Plaintiff would be essentially incapable of sedentary work activity on
a sustained basis. (Doc. 10-2, pp. 42, 44.)
First, Dr. Agarwal’s opinion was inconsistent with his physical examination of Plaintiff,
which showed a normal gait, full range of motion, and full strength in all muscle groups. (Id. at
13
p. 23 (citing 10-10, p. 6 (also noting Plaintiff is able to “walk . . . without much difficulty,” and
able to “reach, push, pull, and grasp to carry out activities of daily living,” even though he gets
short of breath)).) Second, Dr. Agarwal’s opinion was inconsistent with Plaintiff’s reported
activities of doing daily chores, biking, walking one mile, and walking his dog. 7 (Id.) Third, Dr.
Agarwal’s opinion was internally inconsistent, as it limited Plaintiff to not lifting more than ten
pounds but permitted occasional lifting of twenty pounds. (Id. (citing 10-10, pp. 7–8).) Finally,
although Dr. Agarwal found Plaintiff able to lift between ten and twenty pounds, he
contradictorily concluded Plaintiff would have “difficulty sustaining any exertion.” (Id. quoting
10-10, p. 7).) Inconsistencies such as these provide substantial evidence for ALJ Furcolo to
discredit Dr. Agarwal’s opinion that Plaintiff would be unable to sustain any level of exertion,
notwithstanding Dr. Agarwal’s role as an independent consultative examiner appointed by the
Commissioner. See Winschel, 631 F.3d at 1179. Accordingly, Plaintiff’s enumeration of error
as to the level of weight the ALJ afforded to Dr. Agarwal’s opinion is without merit.
B.
Treating Physician Dr. Stephen A. Chitty
ALJ Furcolo did not err in assigning little weight to Dr. Chitty’s opinion that Plaintiff is
“completely disabled” and “unable to work in any capacity.” (Doc. 10-2, p. 23 (citing 10-8,
p. 5.)) As an initial matter, it should be noted that Dr. Chitty’s opinion on Plaintiff’s “disability”
status is an issue left for the Commissioner’s determination. 20 C.F.R. § 404.1527(d)(3); SSR
96-5p (2013). 8 Plaintiff contends the ALJ’s comparison of Plaintiff’s reported daily activities to
Dr. Chitty’s opinion was improper and was thus made in error, but Plaintiff cites no support for
this proposition. (Doc. 12, p. 4.) To the contrary, the regulations and case law allow an ALJ to
7
(See Doc. 10-2, pp. 86–88 (Plaintiff’s testimony about his daily activities); Doc. 10-7, p. 65 (same).)
8
SSR 96-5p was rescinded in January 2017 but was in effect for Plaintiff’s claim. See 82 Fed. Reg. 5844
(Jan. 18, 2017).
14
take daily activities into consideration when weighing an expert opinion. Phillips, 357 F.3d at
1241 (holding the ALJ properly discounted a treating physician’s opinions based in part on the
claimant’s reported activities); Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997) (holding
the ALJ properly determined ability to perform work based in part on the claimant’s activities);
see 20 C.F.R. § 404.1527(c)(4) (opinions must be weighed against the record as a whole).
Moreover, ALJ Furcolo provided further explanation in affording little weight to Dr.
Chitty’s opinion. He noted that Dr. Chitty’s conclusion was contrary to the examinations
provided by other doctors, “which were generally unremarkable with respect to the
cardiovascular and respiratory systems.” (Doc. 10-2, p. 23.) The ALJ also found that Dr.
Chitty’s failure to provide a function-by-function assessment undermined the veracity of his
opinion. (Id.) And, as indicated above, ALJ Furcolo found Dr. Chitty’s opinion as to Plaintiff
being disabled contrary to Plaintiff’s reported daily activities—“driving, grocery shopping,
cycling, gardening, and walking his dog,” (id.)—which is a proper basis for affording less weight
to a treating physician’s opinion. Thus, the ALJ had “good cause” to discount Dr. Chitty’s
opinion as one of Plaintiff’s treating physicians. See Winschel, 631 F.3d at 1179 (“good cause”
exists when evidence is lacking, contradictory, or the opinion conclusory). As required by law,
the ALJ stated with particularity the weight given to Dr. Chitty and provided the reasons
therefor. Id. Accordingly, Plaintiff’s enumeration of error as to the level of weight ALJ Furcolo
afforded to Dr. Chitty’s opinion is without merit.
C.
Nurse Practitioner Ms. Vicky Alday
Like the other expert opinions, ALJ Furcolo did not err in assigning little weight to Ms.
Alday’s opinion that Plaintiff is “incapable of gainful employment.” (Doc. 10-2, p. 23.) Plaintiff
argues that the ALJ improperly discounted Ms. Alday’s opinion “simply based on the bare
15
recitation and conclusion that she was ‘not an acceptable medical source.’” (Doc. 12, p. 4–5.) A
review of ALJ Furcolo’s decision, however, reveals several reasons the ALJ had for discounting
Ms. Alday’s opinion.
First, the ALJ correctly found that Ms. Alday, as a nurse practitioner, was not an
acceptable medical source. (Doc. 10-2, p. 23 (citing 20 C.F.R. §§ 404.1513(a), 416.913(a); SSR
06-03p (2013) 9).); see Clerjeaux v. Colvin, No. 15-14137-CIV, 2016 WL 7470008, at *2 (S.D.
Fla. Aug. 8, 2016) (Nurse practitioners are not acceptable medical sources under the Regulations
and are categorized as “other sources” for the ALJ to consider). Second, the ALJ noted Ms.
Alday was not a treating provider. (Doc. 10-2, p. 23.) Lastly, the ALJ found Ms. Alday’s
opinion to be stale, as it was given at the initial hearing in January 2015 and did not take into
account additional medical evidence of record submitted for the second hearing in November
2015. (Id.) Moreover, Ms. Alday is a friend of Plaintiff’s and gave an opinion that speaks to an
issue reserved for the Commissioner, (id.), which is not entitled to any special significance. 20
C.F.R. § 404.1527(d)(3); SSR 96-5p (2013). Based on these reasons, the Court finds that
Plaintiff’s argument as to Ms. Alday misconstrues the record and that substantial evidence
supports ALJ Furcolo’s weighing of Ms. Alday’s opinion.
As shown above, the ALJ clearly stated his reasons for discounting the opinions of Drs.
Agarwal and Chitty as well as Nurse Practitioner Alday. ALJ Furcolo gave multiple compelling
reasons to discount each expert’s opinion. Accordingly, his determination to give less weight to
these opinions is supported by substantial evidence, and this enumeration of error is without
merit.
9
SSR 06-03p was rescinded in March 2017 but was in effect for Plaintiff’s claim. See 82 Fed. Reg.
15263 (Mar. 27, 2017); see also 82 Fed. Reg. 5844 (Jan. 18, 2017) (expanding “acceptable medical
sources” to include Licensed Advanced Practice Registered Nurses or other licensed advanced practice
nurses with another title).
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CONCLUSION
Based on the foregoing, I RECOMMEND that the Court AFFIRM the decision of the
Commissioner. I also RECOMMEND that the Court DIRECT the Clerk of Court to enter the
appropriate judgment of dismissal and to CLOSE this case.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action.
The filing of objections is not a proper vehicle through which to make new allegations or
present additional evidence. Upon receipt of objections meeting the specificity requirement set
out above, a United States District Judge will make a de novo determination of those portions of
the report, proposed findings, or recommendation to which objection is made and may accept,
reject, or modify in whole or in part, the findings or recommendations made by the Magistrate
Judge. Objections not meeting the specificity requirement set out above will not be considered
by a District Judge. A party may not appeal a Magistrate Judge’s report and recommendation
directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made
only from a final judgment entered by or at the direction of a District Judge.
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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 15th day of August,
2018.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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