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Patton v. Berryhill

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

August 15, 2017

KATHY D. PATTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          JAMES D. WHITTEMORE JUDGE

         BEFORE THE COURT is the Report and Recommendation of the Magistrate Judge recommending that the Commissioner's decision denying Plaintiffs claims for aperiod of disability, disability insurance benefits, and supplemental security income be affirmed. (Dkt. 23). Plaintiff filed objections, (Dkt. 24), to which the Commissioner responded, (Dkt. 25). A district court may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are accorded de novo review. Id.; Fed.R.Civ.P. 72(b)(3).

         After a de novo review of the findings to which objections are made, and a review of the findings to which objection is not made for plain error, I find that the Commissioner's decision must be reversed and the case remanded based on the Administrative Law Judge's ("ALJ") failure to clearly articulate the reasons for affording little weight to the opinion of Plaintiff s treating physician.

         I. PLAINTIFF'S OBJECTION

         Plaintiffs sole objection to the Report and Recommendation is that the ALJ rejected an opinion of Dr. Jay Azneer, Plaintiffs treating physician, without good cause. (Dkt. 24).

         II. STANDARD

         The ALJ's decision is reviewed to determine whether the correct legal standards were applied, Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (per curiam), and if the decision as a whole is supported by substantial evidence, Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Substantial evidence is "more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Winschel v. Commissioner of Soc. Sec, 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotation marks and citations omitted). The court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]." Id. (internal quotation marks and citations omitted). Legal conclusions of the ALJ, however, are reviewed de novo. Ingram v. Commissioner of Soc. Sec, 496 F.3d 1253, 1260 (11th Cir. 2007).

         III. DISCUSSION

         There is a five-step, sequential evaluation process to determine whether a claimant is disabled. Winschel, 631 F.3dat 1178 (citing Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11thCir. 2004)). The first three steps evaluate whether (1) the claimant is currently engaged in substantial gainful activity, (2) the claimant has a severe impairment or combination of impairments, and (3) the impairment meets or equals the severity of the specified impairments in the Listing of Impairments. Id. The fourth step asks whether, based on the claimant's residual functional capacity ("RFC") assessment, the claimant can perform any of her past relevant work despite the limitations caused by her impairments. Id. At the fourth step, the ALJ considers "all the relevant medical and other evidence" in the case record to determine the claimant's RFC. Phillips, 357 F.3d at 1238 (quoting 20 C.F.R. § 404.1520(e)). The final step evaluates whether there are significant numbers of jobs in the national economy the claimant can perform, given her RFC, age, education, and work experience. Winschel, 631 F.3d at 1178.

         The ALJ found, as to steps one and two, that Plaintiff had not been engaged in substantial gainful activity and she had severe impairments including "idiopathic polyneuropathy involving the right foot; left shoulder supraspinatus capsulitis with tendinopathy from an impingement; questionable chronic fatigue syndrome without specific tender points; chronic obstructive pulmonary disease (COPD); chronic pain syndrome; and depression, anxiety/posttraumatic stress disorder (PTSD), and panic disorder without agoraphobia." (Decision, Dkt 13-2 at pp. 22-23). Plaintiff has no objections relating to the findings and analysis at the first or second steps. (Objections, Dkt. 24). Rather, Plaintiff objects to the sections of the Magistrate Judge's report addressing the ALJ's determination, at steps three and four, that her impairments do not meet or medically equal the severity of listed impairments and that she had the RFC to perform light work with some specific restrictions. (Decision, Dkt. 13-2 at pp. 23-30; Objections, Dkt. 24). As noted, Plaintiff objects on the ground that the ALJ rejected without good cause Dr. Azneer's opinion regarding her physical and mental impairments. (Dkt. 24).

         A. Dr. Azneer 's History of Treatment of Plaintiff

         Jay Azneer, D.O., of M.D. D.O. Associates was Plaintiffs primary care physician from 2011 to 2014. (Treatment Records, Dkt. 13-9 at pp. 346-89); see also (October 23, 2014 Treatment Records of Pinellas Medical Associates, Dkt. 13-9 at p. 335) (identifying Dr. Azneer as Plaintiffs primary care physician).[1] His earliest medical records for Plaintiff indicate that her conditions included anxiety disorder, depressive disorder, chronic pain syndrome, osteoarthritis, myalgia, and myositis, among others. (Treatment Records, Dkt. 13-9 at p. 384). His muscoloskeletal examination indicated normal tone; normal motor strength; no contractures, malalignment, tenderness, or abnormalities of the bones, joints or muscles; normal movement of all extremities; back pain; arthralgias/joint pain; muscle aches; no swelling in the extremities; no muscle weakness; and no cyanosis, edema, varicosities, or palpable cord in the extremities. (Id. at pp. 385-86). His neurological examination indicated she had normal gait and station; grossly intact cranial nerves; numbness in her right leg; reflexes: DTRs 2 bilaterally throughout; and no tremors, weakness, numbness, seizures, dizziness, headaches, or loss of consciousness. (Id.). His psychiatric examination indicated good judgment; normal mood and affect; active; alert; orientation to time, place, and person; normal recent memory; normal remote memory; depression; no sleep disturbances; and no alcohol abuse. (Id.). His assessment / plan indicates he prescribed her medication for depressive disorder. (Id. at 386).

         Most of Dr. Azneer's findings and assessments for Plaintiff remained substantially the same throughout his treatment of her, with some exceptions. (Id. at pp. 346-83). The greatest changes occurred to her psychiatric diagnoses. (Id.). Treatment records for an appointment on December 27, 2012 indicate for the first time in the assessment / plan that Plaintiff had an anxiety disorder that would "remain managed" by diazepam that had already been prescribed to her for other reasons. (Id. at p. 374). Treatment records for a April 8, 2013 appointment indicate for the first time muscoloskeletal findings of malalignment, tenderness, and limited range of motion throughout her thorax. (Id. at p. 3 62). Treatment records for a June 10, 2013 appointment indicate for the first time that Plaintiff suffered from panic disorder without agoraphobia, she reported restless sleep, and Dr.

         Azneer prescribed her xanax to replace the diazepam. (Id. at pp. 358-59). Appointment records for August 12, 2014 indicate that her anxiety medication had been changed to xanax, that her panic disorder without agoraphobia diagnosis included her complaints of "difficulty leaving her house, " that her depressive disorder was being treated with sertaline, and that she was not to receive separate treatment for her agoraphobia. (Id. at pp. 355-56).

         The last records of Plaintiff s appointments with Dr. Azneer are for appointments on October 13, 2014 and November 7, 2014. (Id. at pp. 346-53). His discussion notes for both of these appointments indicate that "[Plaintiffs] ability to cope has decreased markedly-she is at the limit of her endurance just to be in the office with me." (Id. at pp. 349, 353). The October 13, 2014 records indicate for the first time that Plaintiffs panic disorder without agoraphobia was "severe" and that she was under the care of psychiatrist Dr. Aaron Brooks for her depressive disorder. (Id. at pp. 352-53). The November 7, 2014 records indicate ...


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