Gowen v. Colvin

Filing 19

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court AFFIRM the Commissioner's decision re: 1 Complaint filed by George Mark Gowen. Any party seeking to object to this Report and Recommendation is ordered to file specific writte n objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 9/14/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/31/2016. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

GEORGE MARK GOWEN,
Plaintiff,

CIVIL ACTION NO.: 5:15-cv-41

v.
CAROLYN W. COLVIN, 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”) partially denying his claim for a period of disability and disability insurance
benefits. Plaintiff urges the Court to reverse the ALJ’s decision, in part, and award him benefits
for the dates on which he alleges his disability began or, in the alternative, to remand this case
for a proper determination of the evidence. Defendant asserts the Commissioner’s decision
should be affirmed. For the reasons which follow, I RECOMMEND the Court AFFIRM the
Commissioner’s decision.
BACKGROUND
Plaintiff protectively filed an application for a period of disability and disability insurance
benefits on August 21, 2012, alleging that he became disabled on November 30, 2009, due to
gout, cervical myelopathy, severe neck-related arthritis, chronic pain, and severe damage to his
shoulder, bilateral wrist, and hand, caused by gout. (Doc. 15, p. 2.) After his claim was denied
initially and upon reconsideration, Plaintiff filed a timely request for a hearing. On June 10,

2014, ALJ Furcolo conducted a video hearing at which Plaintiff, who was represented by
counsel, appeared and testified in Waycross, Georgia, while the ALJ presided in Savannah,
Georgia. James Waddington, a vocational expert, also appeared at the hearing. ALJ Furcolo
found that Plaintiff was disabled within the meaning of the Act as of September 26, 2011, but
that Plaintiff was not disabled as of November 30, 2009, the alleged date of onset. (Id. at p. 3.)
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.)
Plaintiff, born on June 19, 1955, was fifty-nine (59) years old when ALJ Furcolo issued
his final decision. (Id. at p. 13.) He has a bachelor’s degree in civil engineering. (Id.)
Plaintiff’s past relevant work experience includes employment as the vice president of a familyowned oil company. (Id.)
DISCUSSION
I.

The ALJ’s Findings
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). 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. Yuckert, 482 U.S. at 140–41. If the claimant’s impairment or combination of
impairments is 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 and acknowledged by the Commissioner as sufficiently

2

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 to determine if the impairment
precludes the claimant from performing past relevant work, i.e., whether the claimant has the
residual functional capacity to perform his past relevant work. Id.; Stone v. Comm’r of Soc.
Sec., 503 F. App’x 692, 693 (11th Cir. 2013). A claimant’s residual functional capacity “is an
assessment . . . of the claimant’s remaining ability to do work despite his impairments.” Id. 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 his past relevant work, the final step of the evaluation
process determines whether he is able to make adjustments to other work in the national
economy, considering his age, education, and work experience. Phillips, 357 F.3d at 1239.
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, the ALJ followed this sequential process to determine that Plaintiff
did not engage in substantial gainful activity during the period from his alleged onset date of
November 30, 2009, through the date of ALJ Furcolo’s decision on July 25, 2014. (Doc. 9-2,
p. 18.) At Step Two, the ALJ determined that, as of the alleged onset date of November 30,
2009, Plaintiff had gout, arthritis, and obesity, conditions considered “severe” under the
Regulations. (Id.) As of the established onset date of September 26, 2011, the ALJ determined
that Plaintiff suffered additionally from degenerative disc and joint disease of the cervical spine
with radiculopathy and myelopathy.

(Id.)

However, the ALJ determined that Plaintiff=s

3

medically determinable impairments did not meet or medically equal a listed impairment. (Id. at
p. 19.) The ALJ found that, prior to September 26, 2011, Plaintiff had the residual functional
capacity to perform light work, except with the following limitations: no more than frequently
operating hand controls, reaching overhead, and fingering bilaterally; no more than occasionally
climbing ladders, working at unprotected heights, working in extreme cold, and being exposed to
vibrations; and no more than frequently crawling.. (Id.) The ALJ further found that, beginning
on September 26, 2011, Plaintiff had the residual functional capacity to perform light work,
except with the following limitations: sitting less than six hours in an eight-hour work day;
standing and walking less than two hours in an eight-hour work day; no more than frequently
operating hand controls, reaching overhead, handling, and fingering bilaterally; no more than
occasionally climbing ladders, working at unprotected heights, and being exposed to vibrations;
and no more than frequently crawling. (Id. at p. 21.) At the next step, ALJ Furcolo noted, prior
to September 26, 2011, Plaintiff was capable of performing his past relevant work as a company
vice president. (Id. at p. 22.) However, the ALJ concluded that, as of September 26, 2011,
Plaintiff was unable to perform his past relevant work. (Id.) The ALJ then determined at the
final step that Plaintiff does not have work skills that are transferable to other occupations within
his residual functional capacity. The ALJ concluded that Plaintiff is unable to perform any jobs
existing in significant numbers in the national economy. (Id. at p. 23.) Ultimately, ALJ Furcolo
concluded that Plaintiff was entitled to disability benefits and that he became disabled on
September 26, 2011.
II.

Issues Presented
Both Plaintiff and the Commissioner agree that Plaintiff is presently disabled. Therefore,

the only issue before the Court is the date on which Plaintiff’s disability began. Plaintiff

4

contends he became disabled on November 30, 2009, whereas the ALJ concluded Plaintiff
became disabled on September 26, 2011. Plaintiff argues that the ALJ erred in reaching that
conclusion because he failed to properly credit two of Plaintiff’s treating physician’s opinions.
Specifically, Plaintiff argues that the ALJ failed to properly credit his treating physician’s
opinions that, as of November 30, 2009, Plaintiff was unable to work on a regular and sustained
basis, due to the combination of impairments of gout, cervical myelopathy, severe neck-related
arthritis, chronic pain, and severe damage to his shoulder, bilateral wrist, and hand caused by
gout and was, therefore, totally disabled. (Doc. 15, p. 2.)
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
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.

5

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.

Medical Opinions
Dr. Erick Bournigal, Plaintiff’s treating physician, offered three opinions pertaining to

Plaintiff’s condition in this case. Dr. Bournigal opined that 1) prior to September 26, 2011,
Plaintiff was totally disabled due to active arthritis; 2) Plaintiff is capable of performing less than
the full range of sedentary work and can walk no more than 200 feet without stopping to rest;
and 3) Plaintiff suffered those limitations in 2009. (Doc. 9-10, p. 151.) Plaintiff avers that the
ALJ erred by according no weight to Opinions 1 and 3, and that ALJ Furcolo’s conclusion that
Plaintiff was not disabled prior to September 26, 2011 is not supported by substantial evidence.
In support of his argument, Plaintiff contends the ALJ’s findings as to Dr. Bournigal’s
opinions are contradictory, because ALJ Furcolo accorded “great weight” to Dr. Bournigal’s
opinion that Plaintiff could perform less than the full range of sedentary work and could walk no
more than 200 feet without stopping for rest, whereas the ALJ accorded “no weight” to Dr.
Bournigal’s opinion that Plaintiff was totally disabled due to active arthritis prior to September
26, 2011 and that Plaintiff had suffered from that condition since 2009. (Doc. 14, p. 14.) In
addition, Plaintiff argues that the personal activities in which he engaged prior to September 26,
2011 did not constitute substantial evidence justifying the ALJ’s decision to accord Dr.
Bournigal’s opinion no weight. Finally, Plaintiff avers that the ALJ failed to rely on any medical
documents or evidence in reaching his conclusion that Plaintiff was not disabled prior to
September 26, 2011. Plaintiff maintains that ALJ Furcolo further erred by failing to contact Dr.
Bournigal personally to clarify his medical opinion and should have ordered that Plaintiff
undergo a consultative evaluation before according no weight to Dr. Bournigal’s opinion.

6

The Commissioner asserts substantial evidence supports the ALJ’s rejection of two of Dr.
Bournigal’s three opinions, and that the ALJ applied the proper legal standards in reaching his
decision. Specifically, the Commissioner asserts that 1) the ALJ properly considered Plaintiff’s
medical records prior to rejecting Dr. Bournigal’s opinion; 2) Dr. Bournigal’s treatment records
do not support his opinion that Plaintiff suffered disabling limitations prior to September 26,
2011; 3) Dr. Bournigal’s opinion that Plaintiff was disabled prior to September 26, 2011 is
inconsistent with the record as a whole; and 4) the ALJ’s decision to accord “great” weight to Dr.
Bournigal’s April 2013 opinion is consistent with his decision to accord “no weight” to Dr.
Bournigal’s June 2014 opinion. 1 (Id. at pp. 6–9.) Finally, the Commissioner argues that the ALJ
was not required to contact Dr. Bournigal to clarify his medical opinion because substantial
evidence on record supported ALJ Furcolo’s decision.
“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 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).

1

Specifically, Dr. Bournigal opined in April 2013 that Plaintiff could perform less than the full range of
sedentary work and could walk no more than 200 feet without stopping to rest. In June 2014, Dr.
Bournigal opined that Plaintiff had been suffering from those limitations since 2009. The ALJ accorded
Dr. Bournigal’s first opinion great weight, but accorded the latter opinion no weight. (Doc. 9-2, p. 21.)

7

“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). “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).
As to Dr. Bournigal’s first opinion—that Plaintiff was totally disabled prior to
September 26, 2011 due to active arthritis—ALJ Furcolo stated with particularity that he
accorded “no weight” to Dr. Bournigal’s opinion. Furthermore, ALJ Furcolo clearly articulated
the reason he accorded that opinion no weight, stating that the opinion was a legal conclusion
reserved to the Commissioner. (Doc. 9-2, p. 21.) See Lewis, 125 F.3d at 1440 (“[W]e are
concerned here with the doctors’ evaluations of [Plaintiff’s] condition and the medical
consequences thereof, not their opinions of the legal consequences of his condition.”). ALJ
Furcolo further noted that Dr. Bournigal articulated no function-by-function limitations in
reaching that opinion which could be analyzed against the evidence to assess its probative value.
(Doc. 9-2, p. 21.)

8

Next, ALJ Furcolo stated with particularity that he accorded “no weight” to Dr.
Bournigal’s opinion that Plaintiff’s disabling limitations existed prior to September 26, 2011.
(Id. at p. 22.) The ALJ clearly articulated multiple reasons for his failure to accord this opinion
no weight, observing that Dr. Bournigal’s findings prior to September 2011 were minimal and
that the claimant had demonstrated only swollen wrists and a solitary swollen finger joint during
that period. 2 (Id.) In addition, ALJ Furcolo noted that, while Plaintiff alleged “significant upper
extremity dysfunction,” Plaintiff “told a physician that his arm tingling and pain had no effect on
his ability to perform household activities” on August 2, 2011. (Id. at p. 20.) The ALJ also
noted that, prior to September 26, 2011, Plaintiff 1) felt well enough to plan a fishing trip to
Alaska in June of 2010, 2) chose not to fill prescriptions for gout flare ups prior to 2011; and 3)
voluntarily chose to consume alcohol prior to September 26, 2011—an activity which
exacerbated his conditions.
In providing these reasons for his decision to accord no weight to the two opinions of Dr.
Bournigal discussed above, ALJ Furcolo provided specific examples demonstrating his
reasoning. Accordingly, ALJ Furcolo clearly articulated his conclusion that these opinions were
not bolstered by the evidence and that the evidence supported a finding contrary to Dr.
Bournigal’s opinions. Thus, the ALJ had “good cause” to give no weight to Dr. Bournigal’s
opinions regarding Plaintiff’s condition prior to September 26, 2011.

2

ALJ Furcolo similarly accorded no weight to the medical opinions of state agency medical experts, who
opined that Plaintiff could perform light work in 2012 and 2013, noting that, as of September 26, 2011,
Plaintiff “has documented radiculopathy and his physicians have recommended a four-level spinal fusion
because his back impairment is so severe. In addition to his back impairment, which alone justifies
limiting the [plaintiff] to sedentary, he has severe gout in all extremity joints . . . that is well documented
by objective findings.” (Doc. 9-2, p. 22.)

9

As ALJ Furcolo met the legal requirements for weighing the opinions of Plaintiff’s
medical sources, his determination to accord no weight to these opinions is supported by
substantial evidence. This enumeration of error is, therefore, without merit.
CONCLUSION
Based on the foregoing, it is my RECOMMENDATION that the Court AFFIRM the
decision of the Commissioner and 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. The

10

Clerk of Court is DIRECTED to serve a copy of this Report and Recommendation upon the
parties.
SO ORDERED and REPORTED and RECOMMENDED, this 31st day of August,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

11