United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
Blakely (the “Claimant”), appeals from a final
decision of the Commissioner of Social Security (the
“Commissioner”), denying her application for
Social Security disability insurance benefits and
Supplemental Security Income payments. Doc. No. 1; R. 1-6.
Claimant alleges an onset date of disability of May 31, 2012.
R. 197. Claimant argues that the Administrative Law Judge
(the “ALJ”) erred by: (1) applying an incorrect
legal standard to the opinion of the consultative examining
psychologist; (2) formulating a residual functional capacity
that conflicts with the opinion of the physical consultative
examining medical doctor and not addressing that conflict;
and (3) failing to explain a possible conflict between the
vocational expert's testimony and the Dictionary of
Occupational Titles. Doc. No. 14 at 11-13, 17-19, 21-23. For
the reasons set forth below, it is recommended that the
Commissioner's final decision be REVERSED and these
STANDARD OF REVIEW.
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g)
(2010). Substantial evidence is more than a scintilla - i.e.,
the evidence must do more than merely create a suspicion of
the existence of a fact and must include such relevant
evidence as a reasonable person would accept as adequate to
support the conclusion. Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995) (citing Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Where the Commissioner's decision is supported by
substantial evidence, the District Court will affirm, even if
the reviewer would have reached a contrary result as finder
of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner's decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th
Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358
(11th Cir. 1991). The Court must view the evidence as a
whole, considering evidence that is favorable as well as
unfavorable to the decision. Foote, 67 F.3d at 1560.
The District Court “‘may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for
that of the [Commissioner].'” Phillips v.
Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)).
Weight Given Consultative Examining Psychologist's
argues that the ALJ erred by giving insufficient reasons for
according little weight to the opinion of the consultative
examining psychologist, Dr. Baptiste-Boles. Doc. No. 14 at
13. The ALJ stated the following regarding Dr.
Baptiste-Boles's opinion that Claimant's symptoms
moderately to severely impact her activities of daily living,
vocational performance, and interpersonal interactions:
“This opinion deserves limited weight as the claimant
had not been entirely truthful regarding the loss of her job
and the record on the whole does not support the limitations
offered by Dr. Baptiste-Boles.” R. 18. The ALJ did not
explain how the record on the whole does not support Dr.
Baptiste-Boles's opinion regarding Claimant's
limitations. R. 18.
the opinions and findings of treating, examining, and
non-examining physicians is an integral part of steps four
and five of the ALJ's sequential evaluation process for
determining disability. The Eleventh Circuit clarified the
standard the Commissioner is required to use when considering
medical opinion evidence. In Winschel v. Commissioner of
Social Security, the Eleventh Circuit held that whenever
a doctor offers a statement reflecting judgments about the
nature and severity of a claimant's impairments,
including symptoms, diagnosis, and prognosis, what the
claimant can still do despite the impairments, and the
claimant's physical and mental restrictions, the
statement is an opinion requiring the ALJ to state with
particularity the weight given to it and the reasons
therefor. 631 F.3d 1176, 1178-79 (11th Cir. 2011) (citing 20
C.F.R. §§ 404.1527(a)(2), 416.927(a)(2);
Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.
1987)). “‘In the absence of such a statement, it
is impossible for a reviewing court to determine whether the
ultimate decision on the merits of the claim is rational and
supported by substantial evidence.'”
Winschel, 631 F.3d at 1179 (quoting Cowart v.
Schwieker, 662 F.2d 731, 735 (11th Cir. 1981). See
also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986) (failure to state with particularity the weight given
to opinions and the reasons therefor constitutes reversible
error); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997) (failure to clearly articulate reasons for giving
less weight to the treating physician's opinion
constitutes reversible error).
the ALJ assigned Dr. Baptiste-Boles's opinion little
weight for two reasons: first, because “the claimant
had not been entirely truthful regarding the loss of her
job[, ]” and second, because “the record on the
whole does not support the limitations offered by Dr.
Baptiste-Boles.” R. 18.
Baptiste-Boles's report stated that Claimant said that
her Burger King job ended due to her physical limitations, R.
379, which is contrary to Claimant's testimony in the
hearing that she lost her job because she stole twenty
dollars, R. 41. Dr. Baptiste-Boles states in her opinion that
Claimant was the sole informant, and she described the
information that Claimant gave her as “appear[ing]
reliable and accurate.” R. 377. Claimant's
testimony at the hearing, however, demonstrates that at least
part of the information she gave to Dr. Baptiste-Boles was
not reliable and accurate. Thus, the ALJ's reason for
assigning Dr. Baptiste-Boles's opinion little weight
because Claimant appears to have lied to the doctor about why
she no longer works at Burger King is supported by competent
second reason the ALJ gave for discounting Dr.
Baptiste-Boles's opinion is that “the record on the
whole does not support the limitations offered by Dr.
Baptiste-Boles.” R. 18. Dr. Baptiste-Boles's
opinion discussed mental limitations, R. 380, and the ALJ did
not identify conflicting evidence regarding mental
limitations. R. 18. Instead, the ALJ then proceeded to
discuss Dr. Barber's physical consultative examination.
R. 19. The ALJ failed to explain how the record on the whole
does not support Dr. Baptiste-Boles's opinion, and this
conclusory statement is not sufficient to support giving Dr.
Baptiste-Boles's opinion little weight. Poplardo v.
Astrue, No. 3:06-cv-1101-J-MCR, 2008 WL 68593 at *11
(M.D. Fla. Jan. 4, 2008) (failure to specifically articulate
evidence contrary to treating doctor's opinion requires
remand); Paltan v. Comm'r of Soc. Sec., No.
6:07-cv-932-Orl-19DAB, 2008 WL 1848342 at *5 (M.D. Fla. Apr.
22, 2008) (“The ALJ's failure to explain how [the
treating doctor's] opinion was ‘inconsistent with
the medical evidence' renders review impossible and
remand is required.”). The Eleventh Circuit has stated
that an ALJ's failure to “provide the reviewing
court with sufficient reasoning for determining that the
proper legal analysis has been conducted mandates
reversal.” Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
Commissioner argues that the ALJ need not give good reasons
for the weight he assigns examining, but not treating,
doctors' opinions. Doc. No. 14 at 14. The Commissioner
relies on Denomme v. Commissioner, Social Security
Administration, 518 F.App'x 875, 878 (11th Cir.
2013), Doc. No. 14 at 14, but in that case, the ALJ did not
discredit nor explicitly indicate the weight that he afforded
the examining doctors' reports. Here, the ALJ
specifically assigned Dr. Baptiste-Boles's opinion little
weight. R. 18.
the ALJ's second reason for according Dr.
Baptiste-Boles's opinion little weight was not adequately
articulated to support that determination, that error is
harmless because, as discussed above, the ALJ's first
reason is adequately supported by the record. There is
substantial evidence supporting the ALJ's decision to
give Dr. Baptiste-Boles's opinion little weight due to
the doctor's reliance on information that Claimant
provided, and therefore it is recommended that the Court
reject Claimant's argument that the ALJ gave insufficient
reasons for assigning Dr. Baptiste-Boles's opinion little
weight. D'Andrea v. Comm'r of Soc. Sec.
Admin., 389 F. App'x 944, 948 (11th Cir. 2010)
(rejecting the claimant's argument “that the ALJ
erred in failing to accord appropriate weight to the opinion
of her treating physician . . . because the ALJ articulated
at least one specific reason for disregarding the opinion and
the record supports it.”).