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Glowacki v. Commissioner of Social Security

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

August 23, 2017

CARL GLOWACKI, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          CAROL MIRANDO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Carl Glowacki seeks judicial review of the denial of his claim for disability and disability insurance benefits (“DIB”) by the Commissioner of the Social Security Administration (“Commissioner”). The Court has reviewed the record, the briefs, and the applicable law. For the reasons set forth herein, the decision of the Commissioner is AFFIRMED.

         I.Issues on Appeal[1]

         Plaintiff raises three issues on appeal: (a) whether the Appeals Council (“AC”) properly considered new medical evidence; (b) whether the Administrative Law Judge (“ALJ”) properly weighed the opinion of Gary Moskovitz, M.D.; and (c) whether the ALJ properly considered Plaintiff's obesity.

         II. Procedural History and Summary of the ALJ Decision

         On December 6, 2012, Plaintiff filed an application for a period of disability and DIB alleging that he became disabled and unable to work on March 3, 2010. Tr. 79, 169-71. Plaintiff alleged disability due to back pain, right and left shoulder pain, depression and anxiety. Tr. 79. Plaintiff's applications were denied initially and upon reconsideration. Tr. 104-08, 111-15. Plaintiff requested and received a hearing before ALJ Lisa B. Martin on March 20, 2014, during which the ALJ appeared via video teleconference.[2] Tr. 42, 135-39. Plaintiff, who was represented by counsel during the hearing, appeared and testified in person at the hearing. Tr. 42. A vocational expert (“VE”) appeared and testified in person at the hearing. Id.

         On July 25, 2014, the ALJ issued a decision finding Plaintiff not disabled from March 3, 2010, through to the date of the decision. Tr. 35. At step one, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2015, and had not engaged in substantial gainful activity since March 3, 2010. Tr. 27. At step two, the ALJ determined that Plaintiff has the following severe impairments: lumbar spine disorder status-post discectomy surgery, right shoulder disorder status-post surgery, a history of left shoulder disorder, sleep apnea, obesity, anxiety and depression. Id. At step three, the ALJ concluded 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. 28.

         The ALJ then determined that Plaintiff has the residual functional capacity (“RFC”) to perform a full range of light work except:

[Plaintiff] must avoid climbing ladders, ropes, and scaffolding as well as crawling tasks and no more than occasional climbing of ramps and stairs, balancing, stooping, kneeling, and crouching. [Plaintiff] needs a sit-stand option with a change of position opportunity as often as hourly for up to one to two minutes. [Plaintiff] is further limited to only occasional overhead reaching tasks with the upper extremities. [Plaintiff] must avoid dangerous work hazards (including unprotected heights and exposed machinery) and extreme heat and humidity conditions. Because of pain and mental health symptoms preventing detailed decision making, [Plaintiff] is limited to routine, uninvolved tasks not requiring a fast assembly quota pace.

         Tr. 29. Next, the ALJ found that Plaintiff is unable to perform any past relevant work. Tr. 33. Considering Plaintiff's age, education, work experience and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff can perform and therefore concluded he was not disabled from March 3, 2010, through the date of the decision. Tr. 34-35.

         Following the ALJ's decision, Plaintiff filed a request for review by the AC, which was denied on February 26, 2016. Tr. 1. Accordingly, the July 25, 2014 decision is the final decision of the Commissioner. Plaintiff filed an appeal in this Court on April 29, 2016. Doc. 1. Both parties have consented to the jurisdiction of the United States Magistrate Judge, and this matter is now ripe for review. Docs. 13, 14.

         III. Social Security Act Eligibility and Standard of Review

         A claimant is entitled to disability benefits when he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step sequential analysis for evaluating a claim of disability. See 20 C.F.R. §416.920. The Eleventh Circuit has summarized the five steps as follows:

(1) whether the claimant is engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether these impairments meet or equal an impairment listed in the Listing of Impairments; (4) if not, whether the claimant has the residual functional capacity (“RFC”) to perform his past relevant work; and (5) if not, whether, in light of his age, education, and work experience, the claimant can perform other work that exists in “significant numbers in the national economy.”

Atha v. Comm'r Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion through step four; and, at step five, the burden shifts to the Commissioner. Id. at 933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). 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., evidence that must do more than create a suspicion of the existence of the fact to be established, and 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) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a mere scintilla, but less than a preponderance”) (internal citation omitted).

         The Eleventh Circuit has restated that “[i]n determining whether substantial evidence supports a decision, we give great deference to the ALJ's fact findings.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). 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 preponderance of the evidence is against the Commissioner's decision. Edwards v. Su livan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Su livan, 932 F.2d 1356, 1358 (11th Cir. 1991). “The district court must view the record as a whole, taking into account evidence favorable as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings). It is the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses. Lacina v. Comm'r, Soc. Sec. Admin., 606 F. App'x 520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)). The Court reviews the Commissioner's conclusions of law under a de novo standard of review. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

         IV. Discussion

         a. Whether the AC properly considered new medical evidence.

         Constantine G. Bouchlas, M.D., treated Plaintiff for his back and left leg pain from April 30, 2013 to April 9, 2014. Tr. 362-78, 479-88, 491-96. Relevant here are Dr. Bouchlas' treatment notes from January 27, 2014 and April 9, 2014. Tr. 479-85. On January 27, 2014, Plaintiff saw Dr. Bouchlas to review his MRI and discuss his pain management. Tr. 483. Plaintiff reported that since his last visit, he changed his primary care physicians and began seeing a psychiatrist. Id. Dr. Bouchlas noted that the result of Plaintiff's last urine screen test was appropriate, and he used hydrocodone[3] for breakthrough pain. Id. Dr. Bouchlas also indicated that Plaintiff had left shoulder surgery in 2000 and 2006 and right shoulder surgery in 2010 and 2011. Id. At this time, Plaintiff had various medical problems, such as cervical myofascial[4] pain and osteoarthrosis[5] hip. Id. Plaintiff was taking Zanaflex[6] and Hydrocodone-Acetaminophen.[7] Tr. 484.

         Dr. Bouchlas diagnosed Plaintiff with cervical myofascial pain, bilateral shoulder repair/revisions, facet syndrome, osteoarthrosis hip, post-procedural arthrodesis[8] status, thoracic or lumbosacral neuritis or radiculitis, [9] and spinal stenosis of the lumbar region. Id. With regard to his cervical pain, Plaintiff stated to Dr. Bouchlas that the medications and treatment had improved the quality of his life and physical functioning. Id. Dr. Bouchlas noted that the current treatment regimen was necessary to decrease Plaintiff's pain symptoms and to improve the quality of Plaintiff's life, the ability to function and sleep and mood symptoms. Id. Nonetheless, the doctor indicated that Plaintiff had non-malignant pain syndrome not adequately controlled by or responded to other medications, therapy and interventions, which necessitated the use of opioid analgesics for over seventy-two (72) hours. Id. Dr. Bouchlas instructed Plaintiff that the use of narcotics could be addicting and sedating. Id. Dr. Bouchlas asked Plaintiff to follow up in three months or sooner if symptoms progressed. Id.

         With regard to Plaintiff's spinal stenosis of the lumbar region, Dr. Bouchlas included an overview of this disease as follows:

Facet joints tend to get larger as they degenerate. This process is the body's attempt to decrease the stress per unit area across a degenerated joint. Unfortunately, as the joint enlarges, it can place pressure on the nerves as they exit the spine. Standing upright further decreases the space available for the nerve roots, and can block the outflow of blood from around the nerve. Congested blood then irritates the nerve and the pain travels into the legs. Generally, patients with spinal stenosis are comfortable if they are sitting, but have more pain down their legs when they walk and the pain increases with more walking (“neurogenic claudication”). Walking while leaning over a supporting object (such as a walker or shopping cart) can help ease the pain, and sitting down will cause the pain to recede.

Id. After further noting treatment options for this disease, Dr. Bouchlas indicated, “By: Peter F. Ullrich, Jr., MD September 8, 1999 Updated February 28, 2001[;] Adapted from www.spine-health.com[.] The information is intended to inform and educate and is not a replacement for medical evaluation, advice, diagnosis or treatment by a healthcare professional.” Tr. 484-85. Dr. Bouchlas included the identical overview of lumbar spinal stenosis in his treatment notes from April 9, 2014. Tr. 481.

         In addition, Dr. Bouchlas reviewed Plaintiff's MRI and opined that although Plaintiff had a loss of lordosis[10] and mild osteophyte[11] complexes, there was no significant stenosis. Tr. 485. The doctor thought that Plaintiff's cervical symptoms were chronic spasm, and Plaintiff did not need to see a surgeon for his cervical spine. Id. Nonetheless, Plaintiff wanted to obtain an opinion regarding his lumbar spine and expressed his wish to see another ...


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