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Smith v. Berryhill

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

August 22, 2017

ROBERT SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER [2]

          JAMES R. KLINDT UNITED STATES MAGISTRATE JUDGE.

I. Status

         Robert Smith (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's final decision denying his claim for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff's alleged inability to work is a result of severe depression, anxiety, bi-polar disorder, severe fatigue, HIV, “stress management, ” and high triglycerides. Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative transcript”), filed July 8, 2016, at 89-90, 100-01, 113, 126, 352. On November 9, 2011, Plaintiff filed an application for DIB and, on November 21, 2011, an application for SSI, alleging an onset disability date of March 25, 2008. Tr. at 89-99 (DIB), 100-10 (SSI). Plaintiff's applications were denied initially, see Tr. at 89-99, 111, 141-46 (DIB); 100-110, 112, 147-53 (SSI), and were denied upon reconsideration, see Tr. at 113-25, 139, 171-76 (DIB); 126-38, 140, 177-82 (SSI).

         On June 17, 2013, an Administrative Law Judge (“ALJ”) held a hearing, during which he heard testimony from Plaintiff, who was represented by counsel, a medical expert (Dr. Richard Johnson), and a vocational expert (“VE”) (Dr. Silvio Reyes).[3] Tr. at 42-64. At the time of the hearing, Plaintiff was fifty-one (51) years old. Tr. at 52. On April 9, 2014, the ALJ held a supplemental hearing, during which he heard testimony from Plaintiff, again represented by counsel, a VE (Ms. Alyssa Brooks), and a medical expert (Dr. Allan Goldstein). Tr. at 65-78. Following the hearings, the ALJ issued a Decision on May 30, 2014, finding Plaintiff not disabled through the date of the Decision. Tr. at 17-34.

         On February 17, 2016, 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 March 8, 2016, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)[4] by filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         Plaintiff raises three issues on appeal: (1) “[d]id the [ALJ] adequately evaluate the medical opinions offered by Dr. [Stephanie] Sims, [Plaintiff's] treating psychiatrist?”; (2) “[d]id the [ALJ] adequately evaluate the medical opinions offered by Dr. Mario Cometti, M.D., the Commissioner's expert examining physician?”; and (3) “[d]id the [ALJ] err when he determined that [Plaintiff], absent any consideration of his substance use disorder, did not have any limitations on his residual functional capacity [(“RFC”)] due to mental impairments?” See Memorandum in Support of Plaintiff's Appeal of the Commissioner's Decision (Doc. No. 16; “Pl.'s Mem.”), filed September 9, 2016, at 1, 5-16 (argument as to first issue), 16-22 (argument as to second issue), 22-25 (argument as to third issue). On November 4, 2016, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 17; “Def.'s Mem.”) addressing the issues raised by Plaintiff. After a thorough review of the entire record and consideration of the parties' respective filings, the undersigned finds the Commissioner's final decision is due to be reversed and remanded for further administrative proceedings.

         II. The ALJ's Decision

         When determining whether an individual is disabled, [5] 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).

         The Social Security Act “preclude[s] the award of benefits when alcoholism or drug addiction is determined to be a contributing factor material to the determination that a claimant is disabled.” Doughty v. Apfel, 245 F.3d 1274, 1275 (11th Cir. 2001); see 42 U.S.C. § 423(d)(2)(C). Accordingly, if an ALJ “determines a claimant to be disabled and finds medical evidence of drug addiction or alcoholism, the [ALJ] then ‘must determine whether . . . drug addiction or alcoholism is a contributing factor material to the determination of disability.'” Doughty, 245 F.3d at 1279 (quoting 20 C.F.R. § 404.1535). The “key factor” in this materiality determination “is whether the claimant would still be found disabled if he stopped using drugs or alcohol.” Id. (citing 20 C.F.R. § 404.1535(b)(1)). “[T]he claimant bears the burden of proving that the substance abuse is not a contributing factor material to the disability determination.” Id. at 1281.

         Here, the ALJ followed the five-step sequential inquiry. See Tr. at 20-34. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since March 25, 2008, the alleged onset date.” Tr. at 20 (emphasis and citation omitted). At step two, the ALJ found that “[Plaintiff] has the following severe combination of impairments: depression, anxiety, substance addiction disorder (alcohol and marijuana), HIV positive status, asthma, and COPD (Chronic Obstructive Pulmonary Disease), tobacco abuse, alcohol abuse and hepatitis B.” Tr. at 20 (emphasis and citations omitted). The ALJ further determined:

If [Plaintiff] stopped substance use, the remaining limitations would cause more than a minimal impact on [Plaintiff's] ability to perform basic work activities; therefore, [Plaintiff] would continue to have a severe impairment or combination of impairments.

Tr. at 24 (emphasis omitted). According to the ALJ, “Absent substance abuse, the following impairments would still be severe: HIV positive status, asthma, COPD and hepatitis B.” Tr. at 25. At step three, the ALJ ascertained that “[Plaintiff] does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. at 20 (emphasis and citations omitted); see Tr. at 26.

         The ALJ determined that Plaintiff has the following RFC: “[Plaintiff can] perform sedentary work as defined in 20 CFR [§§] 404.1567(a) and 416.967(a) except he would not be able to complete an eight hour workday, a 40 hour workweek or an equivalent schedule on a regular and consistent basis.” Tr. at 21 (emphasis omitted). But, the ALJ proceeded to find that “[i]f [Plaintiff] stopped the substance use (alcohol abuse) [Plaintiff] would have the RFC to perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b) except he may not be exposed to fumes or temperature extremes.” Tr. at 26.

         At step four, the ALJ found “[Plaintiff] is unable to perform [any] past relevant work.”[6]Tr. at 23 (emphasis and citations omitted). But, the ALJ also determined that “[i]f [Plaintiff] stopped the substance abuse, [Plaintiff] would be able to perform [the following] past relevant work[:] Sales Person, . . . Accounting Clerk, [and] . . . Traffic Clerk[.]” Tr. at 33.

         At step five, after considering Plaintiff's age (“46 years old . . . on the alleged disability onset date”), education (“at least a high school education”), work experience, and RFC, the ALJ found that, “based on all the impairments, including the substance use disorder, there are no jobs that exist in significant numbers in the national economy that [Plaintiff] can perform.” Tr. at 24 (emphasis and citations omitted). In regard to Plaintiff's remaining severe impairments absent substance abuse, the ALJ did not make an alternative finding regarding the fifth step. See Tr. at 33-34. The ALJ concluded:

The substance use disorder is a contributing factor material to the determination of disability because [Plaintiff] would not be disabled if he stopped the substance use. Because the substance use disorder is a contributing factor material to the determination of disability, [Plaintiff] has not been disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of th[e D]ecision.

Tr. at 33-34 (emphasis and citations 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. Applicable Law

         The Regulations establish a “hierarchy” among medical opinions that provides a framework for determining the weight afforded to 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(d)(2)-(5), 416.927(d)(2)-(5); see also 20 C.F.R. §§ 404.1527(e), 416.927(f). With regard to the opinion of a treating physician or psychiatrist, [7] the Regulations instruct ALJs how to properly weigh such an opinion.[8] 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 ALJ is required to consider every medical opinion. See 20 C.F.R. §§ 404.1527(d), 416.927(d) (stating that “[r]egardless of its source, we will evaluate every medical opinion we receive”). While “the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion, ” Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (citation omitted); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2), “the ALJ must state with particularity the weight given to different medical opinions and the reasons therefor, ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.1987)); see also Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005). “In the absence of such a statement, it is impossible for a reviewing ...


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