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Armstrong v. Berryhill

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

February 2, 2018

KENNETH LEE ARMSTRONG, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION [1]

          JAMES R. KLINDT United States Magistrate Judge.

         I. Status

         Kenneth Lee Armstrong (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's (“SSA('s)”) final decision denying his claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff's alleged inability to work is a result of Parkinson's Disease. Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative transcript”), filed February 21, 2017, at 57-59, 66-67, 70-71, 206, (emphasis and capitalization omitted). On September 5, 2008, Plaintiff filed an application for DIB, and on August 25, 2008, an application for SSI, alleging an onset disability date of July 1, 1989. Tr. at 163 (DIB), 171 (SSI).[2] Plaintiff's applications were denied initially, see Tr. at 56, 60-61, 66 (DIB); Tr. at 57, 63-64, 67 (SSI), and were denied upon reconsideration, see Tr. at 58, 70, 72-73 (DIB); Tr. at 59, 71, 74-75 (SSI).

         On May 21, 2010, an Administrative Law Judge (“first ALJ”) held a hearing, during which he heard from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). See Tr. at 39-55. On January 28, 2011, the first ALJ held a supplemental hearing, during which he heard from another VE. Tr. at 25-38. The first ALJ issued a decision on February 4, 2011, finding Plaintiff not disabled through the date of the decision. Tr. at 13-20. On September 22, 2011, the Appeals Council denied Plaintiff's request for review, making the first ALJ's Decision the final decision of the Commissioner. Tr. at 1-3.

         On November 22, 2011, Plaintiff commenced an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) in the United States District Court for the Middle District of Florida, seeking judicial review of the Commissioner's decision. See Complaint at 1, Armstrong v. Astrue, 3:11-cv-1164-J-MCR, 2012 WL 6089640 (M.D. Fla. Dec. 12, 2012). On December 7, 2012, the Court entered an order reversing and remanding the Commissioner's final decision. See Armstrong, 2012 WL 6089640; Tr. at 460-71. Accordingly, the Appeals Council vacated the Commissioner's decision and remanded the case to a different ALJ for further proceedings. Tr. at 476.

         On August 15, 2014, a different ALJ (“ALJ”) held a hearing, during which she heard from Plaintiff, who was again represented by counsel, and a VE. See Tr. at 384-421. At the request of Plaintiff's counsel, the ALJ held a supplemental hearing on August 10, 2015, during which she heard additional testimony from Plaintiff. See Tr. at 422-34. On August 4, 2016, another supplemental hearing was held because according to the ALJ, Plaintiff's counsel requested one. See Tr. at 435-40. Plaintiff's counsel, however, represented at the hearing that she did not “believe [she] specifically requested a supplemental hearing.” Tr. at 437. Thus, no additional testimony was presented at that hearing. See Tr. at 436-39.

         The ALJ issued a Decision on August 26, 2016, finding Plaintiff not disabled through the date of the Decision. Tr. at 365-75. It appears the Appeals Council did not assume jurisdiction of the case, making the ALJ's Decision the final Decision of the Commissioner. See 20 C.F.R. §§ 404.984(a), 416.1484(a). On December 20, 2016, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         On appeal, Plaintiff makes the following argument: the “ALJ . . . committed reversible error by ignoring the diagnostic opinions of the medical expert in this matter and substituting her own . . . medical opinion for the opinions of [the] medical expert.” Plaintiff's Memorandum of Law in Opposition to the Commissioner's Decision Denying Plaintiff's Claim for a Period of Disability, Disability Insurance & Supplemental Security Income (Doc. No. 21; “Pl.'s Mem.”), filed July 24, 2017, at 25 (emphasis and some capitalization omitted). Although framed as one argument, it appears Plaintiff makes two arguments in his memorandum: 1) the ALJ erred in “ignoring the diagnostic opinions of the medical expert, ” Dr. John Sabow, Pl.'s Mem. at 25 (emphasis and capitalization omitted); and 2) the ALJ “violat[ed] her duty to fully and fairly develop the record” by “refus[ing] to call Dr. Sabow as a medical expert, or for that matter to call any medical expert, with regards to [P]laintiff's obscure disease, ” id. at 29.[3] On September 22, 2017, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 24; “Def.'s Mem.”) addressing Plaintiff's arguments. After a thorough review of the entire record and consideration of the parties' respective memoranda, the undersigned determines that the Commissioner's final decision is due to be affirmed.[4]

         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).

         Here, the ALJ followed the five-step sequential inquiry. See Tr. at 367-75. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since July 1, 1989, the alleged onset date.” Tr. at 367 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: hypertension and history of hand tremor.” Tr. at 367 (emphasis and citation omitted). At step three, the ALJ ascertained 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 [C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 368 (emphasis and citation omitted).

         The ALJ determined that Plaintiff has the following residual functional capacity (“RFC”):

[Plaintiff can] perform light work as defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b) except with no more than two hours of standing/walking. [Plaintiff] can use his right upper extremity for no more than occasional fingering and no more than frequent handling and feeling. He can occasionally climb ramps and stairs. [Plaintiff] can frequently balance and stoop. [Plaintiff] can never climb ladders, ropes and scaffolds. He must avoid concentrated exposure to hazards (machinery, heights, etc.).

Tr. at 368-69 (emphasis omitted). At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work.” Tr. at 374 (emphasis and citation omitted). At step five, after considering Plaintiff's age (“22 years old . . . on the alleged disability onset date”), education (“at least a high school education”), work experience, and RFC, the ALJ relied on the testimony of the VE and found “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform, ” such as “gate guard” and “ticket taker.” Tr. at 374 (emphasis and citation omitted), 375. The ALJ concluded that Plaintiff “has not been under a disability . . . from July 1, 1989, through the date of th[e D]ecision.” Tr. at 375 (emphasis and citation 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. Discussion

         As noted above, Plaintiff appears to make the following two arguments: 1) the ALJ erred in “ignoring the diagnostic opinions” of Dr. Sabow, Pl.'s Mem. at 25 (emphasis and capitalization omitted); and 2) the ALJ failed to fully and fairly develop the record because she failed to subpoena Dr. Sabow, or any other medical expert, to testify, id. at 29. As to the first argument, Plaintiff asserts that the ALJ should have given more weight to Dr. Sabow's opinion because “the opinions of a (treating physician) and specialist in the area [are] generally entitled to more weight than that of a non-treating doctor and non-specialist.” Id. at 26.[6] According to Plaintiff, he “should have been found disabled based on . . . [Dr.] Sabow's opinion that the signs and symptoms of [Plaintiff's] . . . neurological disorder were the equivalent of the signs and symptoms required . . . for presumptive disability pursuant to [L]isting 12.02.” Id. at 25. As to the second argument, Plaintiff states that he “requested that [the] ALJ . . . call[ ] Dr. Sabow, as a medical expert to appear telephonically at [Plaintiff's] . . . hearing” and that “[w]ithout explanation[, the] ALJ . . . denied that request and subsequently denied the requests that any medical expert appear.” Id. at 29.

         Responding to Plaintiff's first argument, Defendant contends that “the ALJ did not ignore Dr. Sabow's opinion, but thoroughly reviewed his opinion in determining whether Plaintiff was disabled.” Def.'s Mem. at 8 (citation omitted). As to Plaintiff's second argument, Defendant asserts that “the ALJ was not required to recontact Dr. Sabow, as recontacting of a medical source is necessary only when the evidence received from the medical source is inadequate to determine whether the claimant is disabled or not disabled.” Id. at 13. According to Defendant, “the record provided sufficient evidence for the ALJ to decide Plaintiff's case.” Id.

         The applicable law is set out below, followed by a discussion of the relevant medical evidence. Next, the undersigned addresses Plaintiff's argument regarding the ALJ's alleged failure to consider Dr. Sabow's opinion (Plaintiff's first argument) and then discusses whether the ALJ failed to develop a full and fair record (Plaintiff's second argument).

         A. Applicable Law[7]

         The Regulations establish a “hierarchy” among medical opinions[8] that provides a framework for determining the weight afforded 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 a treating physician, [9] the Regulations instruct ALJs how to properly weigh such a medical opinion. See 20 C.F.R. § 404.1527(c). Because treating physicians “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 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 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, ...


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