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Simon v. Berryhill

United States District Court, M.D. Florida, Jacksonville Division

March 31, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER [2]

          JAMES R. KLINDT United States Magistrate Judge

         I. Status

         Temika Rhnee Deshawn Simon (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's final decision denying her claim for disability insurance benefits (“DIB”). Plaintiff's alleged inability to work is a result of “[post ]t[raumatic] s[tress ]d[isorder]” (“PTSD”), “depression, ” “arthritis, ” “asthma, ” “hip pain, ” and “anxiety.” Transcript of Administrative Proceedings (Doc. Nos. 11, 17; collectively, “Tr.” or “administrative transcript”), filed February 11, 2016 and March 17, 2016, [3] at 86-87, 100, 363; see also Tr. at 449, 459. On June 20, 2013, Plaintiff filed an application for DIB, alleging an onset disability date of January 1, 2009. Tr. at 329-31. Plaintiff's application was denied initially, see Tr. at 86-98, 99, 116-20, and was denied upon reconsideration, see Tr. at 100-12, 113, 121-24.

         On August 14, 2014, an Administrative Law Judge (“ALJ”) held a first hearing, during which the ALJ heard testimony from Plaintiff, who was represented by counsel; and Nina Tocci, Ph.D., M.S., a medical expert (“First ME” or “Dr. Tocci”). Tr. at 806-54; see Tr. at 193-98 (Dr. Tocci's curriculum vitae (“C.V.”)). Then, on November 18, 2014, the ALJ held a second hearing, during which the ALJ heard testimony from Plaintiff (who remained represented by counsel) and Glenn A. E. Griffin, Ph.D., a medical expert (“Second ME” or “Dr. Griffin”). Tr. at 855-910; see Tr. at 244-51 (Dr. Griffin's C.V.). On March 11, 2015, the ALJ held a third hearing, during which the ALJ heard testimony from Plaintiff (who remained represented by counsel); Charles Kimball Heartsill, a vocational expert (“VE”); and Rick Adams, Ph.D., a medical expert (“Third ME” or “Dr. Adams”). Tr. at 37-85; see Tr. at 272-76 (Mr. Heartsill's C.V.), 304-07 (Dr. Adams's C.V.).

         The ALJ issued a Decision on May 12, 2015, finding Plaintiff not disabled through the date of the Decision. Tr. at 19-30. After the ALJ's Decision was issued, the Appeals Council received from Plaintiff, and incorporated into the administrative transcript, some additional evidence in the form of a brief (with attached exhibits) authored by Plaintiff's counsel. Tr. at 4-5; see Tr. at 464-87 (brief and attached exhibits). On October 6, 2015, the Appeals Council denied Plaintiff's request for review, Tr. at 1-3, thereby making the ALJ's Decision the final decision of the Commissioner. On November 30, 2015, Plaintiff commenced this action under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         Plaintiff makes one primary argument on appeal: that “[t]he ALJ's discussion of the medical evidence is confusing and contradictory, and goal-directed toward denying benefits.” Plaintiff's Memorandum-Social Security (Doc. No. 19; “Pl.'s Mem.”), filed April 18, 2016, at 14 (emphasis omitted). In support of this argument, Plaintiff focuses on the evidence related to Plaintiff's mental disorders, and she contends the ALJ erred with respect to his evaluation of such evidence. See id. at 14-25. Specifically, Plaintiff addresses the opinions of all three ME's who testified at the hearings, the opinions of two consultative examiners (those of Bradford I. Brunson, Ph.D., ADMPP and Peter Knox, M.Ed., Psy.D., respectively), and a seventy (70) percent disability rating assigned by the Department of Veteran's Affairs (“VA”). Id. On June 17, 2016, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 20; “Def.'s Mem.”) addressing the argument raised by Plaintiff. Then, with leave of Court (Doc. No. 22), Plaintiff on July 19, 2016 filed Plaintiff's Reply Brief-Social Security (Doc. No. 25).

         As summarized above, the ALJ in this matter held three hearings and engaged one consultative examiner and three ME's (one ME for each hearing) in an attempt to determine the severity of Plaintiff's mental disorders and their effect on her ability to perform work. In addition, prior to the first hearing, Plaintiff was examined by a different consultative examiner than the ALJ eventually engaged. The first consultative examiner, Dr. Brunson, did not opine regarding any work-related functions. Tr. at 511-17.[4] During the first hearing, the First ME was unable to testify regarding the effect of the mental disorders on Plaintiff's ability to perform work because the VA records in the file at the time of the first hearing were confusing and incomplete; however, the First ME did opine about Plaintiff's diagnoses and some of her symptoms. Tr. at 820-21, 846-47. After the first hearing, Plaintiff was sent to Dr. Knox, the second consultative examiner, who rendered an opinion that included work-related functions. Tr. at 612-30.[5]

         During the second hearing, the Second ME testified, based on the evidence available at that time (which still did not include up-to-date VA medical records and did not include the First ME's testimony), that Plaintiff medically equals Listing 12.06 of the listings set forth in 20 CFR Part 404, Subpart P, Appendix 1.[6] Tr. at 863. The ALJ disagreed based on the limited evidence of treatment for mental disorders in the file, and he elected to continue the hearing one more time to have the updated VA medical records submitted and evidently to obtain the services of a Third ME. Tr. at 863-67, 898-908.

         The Third ME testified during the third hearing. Tr. at 40-51. Although the updated VA medical records had been submitted just prior to the hearing, they were not available for the Third ME's review. Tr. at 44-46. Nor does it appear that the Third ME was provided with the testimony of the First ME and the Second ME. See Tr. at 40 (exhibits received); see Tr. at 40-51 (Third ME's testimony). The Third ME nevertheless testified that Plaintiff does not meet or medically equal any listing, and he further testified regarding work-related functions. Tr. at 47-50. The ALJ accepted the Third ME's opinion and testimony, finding (as discussed in more detail below) that Plaintiff is capable of performing light work with additional restrictions. Tr. at 22-24.

         After a thorough review of the entire record and consideration of the parties' respective memoranda, the undersigned determines that the ALJ erred in evaluating the opinion evidence (with the exception of Dr. Brunson's opinion) and VA disability rating, so the Commissioner's final decision is due to be reversed and remanded for further proceedings.

         II. The ALJ's Decision

         When determining whether an individual is disabled, [7] an ALJ must follow the five-step sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining as appropriate whether the claimant (1) is currently employed or engaging in substantial gainful activity; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals one listed in the Regulations; (4) can perform past relevant work; and (5) retains the ability to perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of persuasion through step four and, at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

         Here, the ALJ followed the five-step sequential inquiry. See Tr. at 21-30. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since August 1, 2012, the alleged onset date.” Tr. at 21 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: a history of PTSD; history of dysthymia vs. a depressive disorder NOS vs. a major depressive disorder; history of substance abuse (marijuana)[;] and a history of lumbar spine degenerative disc disease (mild to moderate).” Tr. at 21 (emphasis and citation omitted). At step three, the ALJ ascertained that “[Plaintiff] 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. at 22 (emphasis and citation omitted).

         The ALJ determined that Plaintiff has the following residual functional capacity (“RFC”):

[Plaintiff can] perform a reduced range of light work as defined in 20 CFR [§] 404.1567(b). [Plaintiff] can sit, stand and walk for at least six hours each in an eight hour workday, lift/carry 20 pounds occasionally (up to 1/3 of the workday) and lift/carry 10 pounds or less on a more frequent basis (up to 2/3 of the workday). Within the established weight limitations, [Plaintiff] can push, pull and operate hand, arm and foot/pedal controls occasionally. She can occasionally climb ramps and stairs but never climb ropes, ladders or scaffolding. [Plaintiff] can balance, stoop, kneel, crouch, and crawl all on an occasional basis. In regard to her ability to use her upper extremities within the established weight limits, [Plaintiff] can reach in all directions, handle, finger and feel without limitation. [Plaintiff] has no limitation in regards to her abilities to see, speak or hear. [Plaintiff] cannot tolerate exposure to unprotected heights or dangerous moving machinery. She requires a temperate controlled work environment without exposure to concentrated amounts of atmospheric pollutants or exposure to concentrated industrial vibration. Mentally, [Plaintiff] can perform simple, rote and repetitive tasks in a work environment that does not change from one day to the next. Interaction with others, including members of the general public, co-workers and supervisors, can be no more than occasional. [Plaintiff] cannot perform production/assembly line or pay by the piece type of work which would require her to meet any strict production goals or quotas.

Tr. at 24 (emphasis omitted). At step four, the ALJ found that Plaintiff “is unable to perform any of her past relevant work” as a “stock clerk, ” a “ticket agent, ” and an “order clerk.” Tr. at 28 (some emphasis and citation omitted). At step five, the ALJ considered Plaintiff's age (“30 years old . . . on the alleged disability onset date”), education (“a least a high school education and is able to communicate in English”), work experience, and RFC, and relied on the testimony of the VE to find Plaintiff is capable of performing work that exists in significant numbers in the national economy. Tr. at 29-30 (some emphasis omitted). Namely, the ALJ identified representative jobs as “Route Clerk, ” “Collator Operator, ” “Call Out Operator, ” “Loader Semiconductor Dies, ” “Table Worker, ” and “Blade Balancer.” Tr. at 29-30. The ALJ concluded that Plaintiff “has not been under a disability . . . from August 1, 2012, through the date of th[e D]ecision.” Tr. at 30 (emphasis and citation omitted).

         III. Standard of Review

         This Court reviews the Commissioner's final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ's conclusions of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence' . . . .” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but less than a preponderance.'” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard is met when there is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire record is reviewed to determine whether “the decision reached is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision reached by the Commissioner must be affirmed if it is supported by substantial evidence-even if the evidence preponderates against the Commissioner's findings. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).

         IV. Discussion

         The undersigned first discusses the general law with respect to opinion evidence and VA disability ratings. Then, the various opinions at issue are addressed in chronological order, followed by the VA's disability rating.

         A. General Law

         The Regulations establish a “hierarchy” among medical opinions[8] that provides a framework for determining the weight afforded each medical opinion: “[g]enerally, the opinions of examining physicians are given more weight than those of non-examining physicians[;] treating physicians[' opinions] are given more weight than [non-treating physicians;] and the opinions of specialists are given more weight on issues within the area of expertise than those of non-specialists.” McNamee v. Soc. Sec. Admin., 164 F.App'x 919, 923 (11th Cir. 2006) (citing 20 C.F.R. § 404.1527(d)(1), (2), (5)). The following factors are relevant in determining the weight to be given to a physician's opinion: (1) the “[l]ength of the treatment relationship and the frequency of examination”; (2) the “[n]ature and extent of [any] treatment relationship”; (3) “[s]upportability”; (4) “[c]onsistency” with other medical evidence in the record; and (5) “[s]pecialization.” 20 C.F.R. §§ 404.1527(c)(2)-(5), 416.927(c)(2)-(5); see also 20 C.F.R. §§ 404.1527(e), 416.927(e).

         With regard to a treating physician or psychiatrist, [9] the Regulations instruct ALJs how to properly weigh such a medical opinion. See 20 C.F.R. § 404.1527(c). Because treating physicians or psychiatrists “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s), ” a treating physician's or psychiatrist's medical opinion is to be afforded controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record. Id. When a treating physician's or psychiatrist's medical opinion is not due controlling weight, the ALJ must determine the appropriate weight it should be given by considering the factors identified above (the length of treatment, the frequency of examination, the nature and extent of the treatment relationship, as well as the supportability of the opinion, its consistency with the other evidence, and the specialization of the physician). Id.

         If an ALJ concludes the medical opinion of a treating physician or psychiatrist should be given less than substantial or considerable weight, he or she must clearly articulate reasons showing “good cause” for discounting it. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause exists when (1) the opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or (3) the opinion is conclusory or inconsistent with the treating physician's or psychiatrist's own medical records. Phillips, 357 F.3d at 1240-41; see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991); Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987) (stating that a treating physician's medical opinion may be discounted when it is not accompanied by objective medical evidence).

         An examining physician's opinion, on the other hand, is not entitled to deference. See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per curiam) (citing Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986)); see also Crawford, 363 F.3d at 1160 (citation omitted). Moreover, the opinions of non-examining physicians, taken alone, do not constitute substantial evidence. Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985) (citing Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985)). However, an ALJ may rely on a non-examining physician's opinion that is consistent with the evidence, while at the same time rejecting the ...

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