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Moore v. Commissioner of Social Security

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

November 7, 2017

MARGO ELIZABETH MOORE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE

         Margo Moore (the “Claimant”) appeals to the District Court a final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for Disability Insurance Benefits (“DIB”). Doc. No. 1. Claimant argues that the Administrative Law Judge (the “ALJ”) committed reversible error by: 1) failing to weigh the medical opinions contained in the treatment notes of Dr. Randy Schwartzberg and Dr. Michael Patterson; and 2) applying improper legal standards to the medical opinion of Dr. Efren Baltazar. Doc. No. 15 at 9-13, 16-18, 19-20. Claimant requests that the Commissioner's decision be reversed and remanded for further proceedings. Id. at 21. For the reasons set forth below, it is RECOMMENDED that the Commissioner's final decision be REVERSED and REMANDED for further proceedings.

         I. PROCEDURAL BACKGROUND

         On July 31, 2013, Claimant filed her DIB application. R. 145-46. Claimant alleges an onset date of July 12, 2013. R. 10. On September 24, 2013, Claimant's application was denied initially. R. 89. On November 27, 2013, Claimant's application was denied upon reconsideration. R. 98. On December 4, 2013, Claimant filed a request for hearing. R. 6. On June 9, 2015, Claimant attended a hearing before the ALJ. R. 25-56. On July 9, 2015, the ALJ issued an unfavorable decision. R. 10-19. On July 23, 2015, Claimant requested review of the ALJ's decision. R. 5. On September 30, 2016, the Appeals Council denied Claimant's request. R. 1-4. On December 1, 2016, Claimant filed her appeal. Doc. No. 1.

         II. STANDARD OF REVIEW

         The Social Security regulations delineate a five-step sequential evaluation process for determining whether a claimant is disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (citing 20 C.F.R. § 404.1520). 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) (citations and quotations omitted).

         III. WEIGHING MEDICAL OPINIONS

         Weighing the opinions and findings of treating, examining, and non-examining physicians is an integral part in determining whether a claimant is disabled. In cases involving an ALJ's handling of medical opinions, “substantial-evidence review . . . involves some intricacy.” Gaskin v. Comm'r of Soc. Sec., 533 Fed.Appx. 929, 931 (11th Cir. Aug. 14, 2013).[1] In Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011), the Eleventh Circuit held that whenever a physician offers a statement reflecting judgments about the nature and severity of a claimant's impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite his or her impairments, and the claimant's physical and mental restrictions, the statement is an opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor. Id. at 1178-79 (citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). “In the absence of such a statement, it is impossible for a reviewing court to determine whether the ultimate decision on the merits of the claim is rational and supported by substantial evidence.” Winschel, 631 F.3d at 1179 (citations omitted). See also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (failure to state with particularity the weight given to opinions and the reasons therefor constitutes reversible error). An ALJ may not “implicitly discount” or ignore any medical opinion. Winschel, 631 F.3d at 1178-79; MacGregor, 786 F.2d at 1053; McClurkin v. Soc. Sec. Admin., 625 F. App'x 960, 962-63 (11th Cir. 2015) (reversible error for ALJ to fail to state weight given to non-examining physician's opinion).

         IV. ANALYSIS

         A. Drs. Patterson and Schwartzberg

         On July 16, 2013, Dr. Patterson, a physician based in Alabama, performed an operation on Claimant's left shoulder. R. 485-87. On July 26, 2013, Claimant presented to Dr. Patterson for a post-operation visit. R. 483. Dr. Patterson recommended that Claimant return for another visit within two weeks, and that Claimant should not work for those two weeks. Id. Dr. Patterson also stated that he “will let [Claimant] go back to work at that time, no lifting, no carrying greater than [five] pounds, only use of arm by her side.” Id. In an August 9, 2013 treatment note, Dr. Patterson states that Claimant is struggling with her therapy, not progressing as expected, and does not feel ready to return to work. R. 484. Dr. Patterson recommended that Claimant “continue work with therapy and icing.”[2] Id. Dr. Patterson also states that he “will see [Claimant] back in a month and hopefully release her back to work.” Id. Claimant did not continue treatment with Dr. Patterson because she moved from Alabama to Florida in August 2013. Doc. No. 15 at 18.

         On October 1, 2013, Claimant presented to Dr. Schwartzberg with complaints of left shoulder pain. R. 510. After performing a physical examination on Claimant's left shoulder, Dr. Schwartzberg found that Claimant had good strength in her rotator cuff muscles, but has “pain with … abduction in the scapular plane and external rotation with the elbow at the side.” R. 511. Dr. Schwartzberg found that Claimant needed more rehabilitation, and was not sure why Claimant currently had more pain than she had before her left shoulder operation. R. 512. Dr. Schwartzberg found Claimant's work status to be “no lifting greater than [five] pounds with the left upper extremity.” Id. On November 14, 2013, Claimant attended a follow-up visit with Dr. Schwartzberg with complaints of soreness and lack of strength in the left shoulder. R. 519. After performing a physical examination, Dr. Schwartzberg found “excellent motion” in Claimant's shoulders, but she “does have a little weakness with … abduction in the scapular plane and external rotation with the elbow at the side.” Id. Dr. Schwartzberg also stated:

I am going to reevaluate [Claimant] in six weeks. I think at that point, if she is still not where she thinks she needs to be, a functional capacity evaluation may be the thing to do. Her current work status will be no lifting greater than [five] pounds with the left upper extremity.

R. 519 (emphasis in original). Thus, despite some improvement since Claimant's last visit, Dr. Schwartzberg maintained Claimant's work status of not lifting anything ...


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