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Gross v. Berryhill

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

October 31, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          JOEL B. TOOMEY, United States Magistrate Judge

          THIS CAUSE is before the undersigned on Plaintiff's appeal of an administrative decision denying her applications for a Period of Disability, Disability Insurance Benefits, and Supplemental Security Income. In a decision dated December 1, 2015, the Administrative Law Judge (“ALJ”) found that Plaintiff had not been under a disability, as defined in the Social Security Act, from July 31, 2012, the alleged disability onset date, through the date of decision. (Tr. 23-36.) Having considered the parties' memoranda and being otherwise fully advised, the undersigned respectfully RECOMMENDS that the Commissioner's decision be AFFIRMED.

         I. Issues on Appeal

         Plaintiff makes the following arguments on appeal:

I. The Administrative Law Judge (“ALJ”) failed to apply the correct legal standards to the opinion of Dr. Tolia.
II. The ALJ failed to properly account for Ms. Gross' right hand limitations in the residual functional capacity assessment and hypothetical questions to the vocational expert.

(Doc. 14 at 2.)

         II. Standard of Review

         As the Eleventh Circuit has stated:

In Social Security appeals, we must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].

Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations and quotations omitted). “With respect to the Commissioner's legal conclusions, however, our review is de novo.Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).

         III. The ALJ's Decision

         In her decision, at step two of the sequential evaluation process, the ALJ found that Plaintiff had the severe impairments of “disorder of the spine, history of headaches, depression and adjustment disorder with a depressed mood, a history of central sensitivity syndrome, obesity[, ] history of rheumatoid arthritis and chronic fatigue syndrome.”[2] (Tr. 25.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listing. (Tr. 26-27.)

         Prior to step four, the ALJ found that Plaintiff had the physical residual functional capacity (“RFC”):[3]

[T]o lift and/or carry up to 20 pounds occasionally and 10 pounds frequently. She can stand and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday and sit (with normal breaks) for a total of about 6 hours in an 8-hour workday. She is limited to occasional pushing and/or pulling with the right upper extremity. She cannot climb ladders, ropes or scaffolds. She can occasionally climb ramps or stairs. She can occasionally balance, stoop, kneel, crouch or crawl. She can perform occasional overhead reaching with her right upper extremity. She can perform occasional hand shaking with the right upper extremity. She must avoid concentrated exposure to extreme cold, extreme heat, wetness or humidity and vibration. She must avoid even moderate use of moving machinery and exposure to unprotected heights. She is further limited to occupations with no more than a moderate noise intensity level as that term is defined by the Dictionary of Occupational Titles. She is limited to occupations requiring no more than occasional hand shaking with the right upper extremity . . . . She is a right hand dominant individual.

(Tr. 27-28.)

After reviewing the evidence, at step four the ALJ found that Plaintiff could not perform any of her past relevant work. (Tr. 34.) However, at step five, based on Plaintiff's age (33 on the alleged disability onset date), education, work experience, and RFC, and considering the testimony of the vocational expert (“VE”), the ALJ found that jobs existed in significant numbers in the national economy that Plaintiff could perform. (Tr. 35-36.) Therefore, Plaintiff was not disabled. (Tr. 36.)

         IV. Analysis

         A. Dr. Bharat Tolia

         To discount the opinions of a treating doctor, the ALJ is required to provide “good cause.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2014). Good cause to discount a treating doctor's opinion exists when “(1) [the] treating physician's opinion was not bolstered by the evidence; (2) [the] evidence supported a contrary finding; or (3) [the] treating physician's opinion was conclusory or inconsistent with the doctor's own medical records.” Id. at 1240-41. The Court “will not second guess the ALJ about the weight the treating physician's opinion deserves so long as he articulates a specific justification for it.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 823 (11th Cir. 2015).

         The ALJ recognized the opinions of Dr. Bharat Tolia, a treating neurologist, as follows:

A physical [RFC] assessment completed by Dr. Bharat Tolia on June 29, 2015 indicated the claimant was limited to lifting and/or carrying five pounds or less and could not sit longer than thirty minutes at one time. He opined that handling objects would be limited due to unintentional tremors in the right hand with lack of control due to pain and weakness. He opined that the claimant also had limitations for bending as increased pressure triggered migraines. He opined that she had difficulty focusing at times due to dizzy spells associated with migraine auras. He further opined that heat, fumes, bright light, smells and noise also triggered migraines (Exhibit 11F).

(Tr. 32.)

         The ALJ articulated the following reasons for giving the opinion of Dr. Tolia little weight:

The undersigned gives little weight to Dr. Tolia's opinion for several reasons. Dr. Lawler noted the presence of tremors when the clamant raised her right arm in June 2012. However, subsequent physical exam findings fail to document this was an ongoing finding. In September 2013, the claimant reported that her right arm seemed to be okay (Exhibit 16F/page 7). Additionally, Dr. Tolia's own physical exam findings in January, May and again in September 2015 fail to support the severity of his limitations. Progress notes at that time noted no evidence of headaches or tremors. Her gait was normal and motor functioning was also normal (Exhibits 14F/page 16 & 15F/pages 6-12). The undersigned restricted the claimant's overhead reaching and hand shaking with the right upper ...

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