Caballero v. Commissioner of Social Security

          MEMORANDUM OF DECISION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE

         Abigail Caballero (the “Claimant”), appeals to the District Court a final decision of the Commissioner of Social Security (the “Commissioner”) determining that Claimant was not disabled prior to November 20, 2015. Doc. No. 1. Claimant argues that the Administrative Law Judge (the “ALJ”) erred in: 1) not consulting a medical expert when determining Claimant's disability onset date; and 2) applying incorrect legal standards to the opinions of Dr. Frank J. Yanez. Doc. No. 21 at 14-17, 19-22. Claimant requests that the Commissioner's decision be reversed and remanded for further proceedings. Id. at 28. For the reasons set forth below, it is ORDERED that the Commissioner's final decision be AFFIRMED.

          I. PROCEDURAL BACKGROUND

          On June 1, 2011, Claimant filed an application (the “First Application”) for Disability Insurance Benefits (“DIB”). R. 168. In the First Application, Claimant alleges an onset date of January 31, 2011. Id. On June 21, 2011, the First Application was initially denied. R. 69. On October 3, 2011, the First Application was denied upon reconsideration. R. 79. On October 28, 2011, Claimant filed a request for hearing before the ALJ. R. 85. On November 28, 2012, Claimant attended a hearing before the ALJ. R. 27-44. On January 9, 2013, the ALJ issued an unfavorable decision. R. 10-21. On March 7, 2013, Claimant filed a request for review of the ALJ's decision. R. 7-9. On May 29, 2014, the Appeals Council denied Claimant's request for review. R. 1-6. On July 10, 2014, Claimant appealed the Commissioner's decision to this Court. See Caballero v. Comm'r of Soc. Sec, 6:14-cv-1110-DAB (Doc. No. 1). On July 30, 2015, U.S. Magistrate Judge David A. Baker ordered that the case be reversed and remanded for further proceedings. Id. (Doc. No. 19).

         On August 11, 2014, while Claimant's appeal was pending with Judge Baker, Claimant filed a separate application (the “Second Application”) for DIB and Supplemental Security Income (“SSI”). R. 681. In the Second Application, Claimant alleges an onset date of October 29, 2011. Id. On November 4, 2014, the Second Application was initially denied. R. 607, 613. On April 3, 2015, the Second Application was denied upon reconsideration. R. 617, 623. On September 1, 2015, the Appeals Council remanded the First Application to the ALJ for further proceedings, pursuant to Judge Baker's order. R. 598. The Appeals Council recognized the pendency of the Second Application, and ordered the ALJ to consolidate the First and Second Applications. R. 600.

         On March 10, 2016, Claimant attended a second hearing before the ALJ. R. 457-485. On April 12, 2016, the ALJ issued a partially favorable decision finding Claimant became disabled on November 20, 2015. R. 432-448. On June 17, 2016, Claimant filed this appeal. Doc. No. 1.

         II. STANDARD OF REVIEW

         The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). 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, taking into account evidence 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)).

         III. THE ALJ'S DECISION

         In a January 12, 2016 treatment note, Dr. Joseph Kavanagh found that Claimant was injured in a motor vehicle accident on November 20, 2015 (the “Accident Date”). R. 977. Dr. Kavanagh's finding is central to the ALJ's decision.

         The ALJ determined that January 31, 2011 was Claimant's alleged onset date.^[1] R. 432. At step one of the sequential evaluation process, the ALJ found that Claimant has not engaged in substantial gainful activity since her alleged onset date.^[2] R. 435. At step two, the ALJ made two findings. Id. First, the ALJ found that since Claimant's alleged onset date, she has had a single severe impairment, a back disorder. Id. Second, the ALJ found that since the Accident Date, Claimant has had the following severe impairments: a back disorder and a history of a motor vehicle accident. Id. At step three, the ALJ found that since Claimant's alleged onset date, she has not had an impairment (or combination thereof) that meets or medically equals the severity of one of the listed impairments. R. 437.

         At step four, the ALJ made two findings as to Claimant's residual functional capacity (“RFC”), one pre-Accident Date and one post-Accident Date. R. 437, 445. First, the ALJ found that before the Accident Date Claimant had the RFC to perform light work with certain exertional and nonexertional limitations. R. 437. In making such a finding, the ALJ made detailed findings regarding the medical evidence before the Accident Date. R. 438-445. For example, the ALJ recognized a May 9, 2011 treatment note from Dr. Marc Gerber finding that Claimant was able to sit, stand, and transfer without difficulty. R. 312, 440. The ALJ gave significant weight to a May 2011 medical source statement of Dr. Gerber, finding that Claimant reached maximum medical improvement and was capable of light duty work. R. 310, 440. The ALJ also gave significant weight to an October 2014 medical source statement from Dr. Carol Grant, noting Claimant's full range of motion in the shoulders and ambulation without an assistive device. R. 442, 873-874. The ALJ also considered evidence (and the conditions stated therein) given after the January 9, 2013 unfavorable decision on the First Application, finding that “the record does not support a finding that these conditions have presented the [Claimant] with even minimal limitations …” R. 440.

         In the second half of the ALJ's step four analysis, the ALJ found that post-Accident Date the Claimant had the RFC to perform light work with certain exertional and non-exertional limitations.^[3] In making this finding, the ALJ cited an opinion from Dr. Kavanagh, noting Claimant's loss of normal curvature of the cervical spine. R. 445, 977. The ALJ also noted Dr. Kavanagh's finding that Claimant had “disc bulging at [the] ¶ 3-4 and C4-5” areas of the spine. Id. The ALJ cited a December 2015 treatment note from the Infinite Health and Spine Center indicating that Claimant's prognosis was guarded and uncertain. R. 445, 985.

         At step four, the ALJ found that Claimant has been unable to perform any past relevant work since her alleged onset date. R. 446. At step five, the ALJ found that pre-Accident Date, there were a significant number of jobs in the national economy that Claimant could have performed. R. 447. The ALJ found that post-Accident Date, there are no jobs existing in significant numbers in the national economy that the Claimant can perform. R. 447-448. Accordingly, the ALJ found that Claimant was not disabled pre-Accident Date, but was disabled post-Accident Date. R. 448.

         IV. ANALYSIS

         A. Failure to ...