United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
Kidwell (the “Claimant”) appeals to the District
Court a final decision of the Commissioner of Social Security
(the “Commissioner”) denying his application for
Supplemental Security Income (“SSI”). Doc. No. 1.
Claimant argues that Administrative Law Judge Robert D.
Marcinkowski (the “ALJ”) committed reversible
error because he: 1) applied improper legal standards to nine
separate medical opinions; 2) made a determination on
Claimant's credibility that was not supported by
substantial evidence; and 3) gave an incomplete hypothetical
to the vocational expert (“VE”). Doc. No. 16 at
21-32, 37-40, 42-43. Claimant requests that the
Commissioner's final decision be reversed for an award of
benefits or, in the alternative, be reversed and remanded for
further proceedings. Id. at 45. For the reasons set
forth below, it is RECOMMENDED that the
Commissioner's final decision be
REVERSED and the case be
REMANDED for further proceedings.
August 12, 2010, Claimant filed his SSI application. R. 43.
On January 4, 2011, Claimant's SSI application was denied
initially. R. 267-69. On April 18, 2011, Claimant's SSI
application was denied upon reconsideration. R. 275. On July
11, 2011, Claimant filed a request for hearing. R. 276. On
September 28, 2012, Claimant attended a hearing before
Administrative Law Judge Albert D. Tutera (“ALJ
Tutera”). R. 164-183. On January 11, 2013, ALJ Tutera
issued an unfavorable decision finding Claimant not disabled.
R. 203-217. On March 9, 2013, Claimant filed a request for
review of ALJ Tutera's decision. R. 324-25.
30, 2014, the Appeals Council remanded ALJ Tutera's
decision to: 1) consider the environmental restrictions found
in Claimant's residual functional capacity
(“RFC”); 2) consult a VE regarding Claimant's
non-exertional limitations; and 3) evaluate certain
third-party functional reports. R. 225-29. On October 2,
2014, Claimant attended a hearing before the ALJ. R. 125-163.
On the same day, Claimant filed a notice amending his alleged
onset date to October 16, 2009. R. 44, 495. On December 30,
2014, the ALJ issued an unfavorable decision finding Claimant
not disabled. R. 230-247. On February 3, 2015, Claimant filed
a request for review of the ALJ's decision. R. 403.
4, 2015, the Appeals Council remanded the ALJ's decision
for further proceedings to further consider: 1) a medical
opinion from Dr. Steven Feiner; 2) the nature of
Claimant's colitis, seizures/syncope episodes, and
headaches; and 3) a June 12, 2014 third-party report from
Claimant's dentist. R. 259-265. On September 29, 2015,
Claimant attended another hearing before the ALJ. R. 88-124.
On November 9, 2015, the ALJ issued another unfavorable
decision finding Claimant not disabled. R. 43-73. On December
2, 2015, Claimant filed a request for review of the ALJ's
second decision. R. 38. On September 21, 2016, the Appeals
Council denied Claimant's request. R. 1-7. On November
22, 2016, Claimant filed this appeal. Doc. No. 1.
STANDARD OF REVIEW
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
WEIGHING MEDICAL OPINIONS
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. 2013). 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
(citations omitted). “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) (finding that a failure
to state with particularity the weight given to medical
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 Fed.Appx. 960, 962-63 (11th
Cir. 2015) (finding that it is reversible error for the ALJ
to fail to state weight given to a non-examining
good cause, the opinion of a treating physician must be given
substantial or considerable weight. Lamb v. Bowen,
847 F.2d 698, 703 (11th Cir. 1988). However, good cause
exists to give a treating physician's opinion less than
substantial weight when the opinion is not bolstered by the
evidence, the evidence supports a contrary finding, or the
opinion is conclusory or inconsistent with the
physician's medical records. Phillips v.
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
August 18, 2014, Dr. Annette Cabiac, a treating physician,
completed a Disability Impairment Questionnaire. R.
1543-1547. Dr. Cabiac stated that Claimant can sit for less
than one hour in an eight-hour workday and can stand and/or
walk for a total of less than one hour in an eight-hour
workday. R. 1545. Dr. Cabiac found that Claimant is
likely to be absent from work more than three times per
month. R. 1547. Dr. Cabiac made her opinion retroactive to
December 1, 2005. Id.
gave little weight to Dr. Cabiac's opinion, noting that
the opinion's “sitting, standing, and walking
restrictions are not supported by the record as explained
thoroughly in this decision.” R. 61. When making his
finding, the ALJ did not cite to any specific evidence.
Id. The ALJ also gave little weight to Dr.
Cabiac's opinion because her statement “regarding
[Claimant being] absent from work more than three times a
month is speculative and conclusory.” Id. The
ALJ also noted that Dr. Cabiac made her opinion retroactive
to December 1, 2005, yet Dr. Cabiac only started treating
Claimant on December 13, 2013. Id. Claimant argues
that the ALJ improperly gave little weight to Dr.
Cabiac's opinion. Doc. No. 16 at 24.
erred in his treatment of Dr. Cabiac's opinion for three
reasons. First, the ALJ failed to specifically identify any
evidence contradicting Dr. Cabiac's findings. R. 61. In
Poplardo v. Astrue, No. 3:06-cv-1101-J-MCR, 2008 WL
68593, at * 11 (M.D. Fla. Jan. 4, 2008), the Court found
reversible error because the ALJ failed to identify support
for giving a treating physician's opinion less than
substantial weight. Id. Here, the ALJ, in conclusory
fashion, stated that the opinion's “sitting,
standing, and walking restrictions are not supported by the
record …” R. 61. Despite the suggestion
that the facts supporting this finding are thoroughly set
forth elsewhere in his opinion, the ALJ fails to identify
sufficient evidence in support and instead provides a summary
of medical evidence rarely touching upon Claimant's
sitting, standing, and walking limitations. R.
the ALJ's finding as to the portion of Dr. Cabiac's
opinion regarding Claimant's absences from work is not
supported by substantial evidence. Although the ALJ labels
that portion of Dr. Cabiac's opinion as both speculative
and conclusory, the ALJ fails to identify any basis for doing
so. See Evans v. Astrue, No. 2:08cv237-WC, 2009 WL
1537851, at * 3-4 (M.D. Ala. Jun. 2, 2009) (“Where the
ALJ discounts a treating physician's opinion as being
conclusory, the Court would expect the ALJ to articulate why
that opinion is conclusory”).
as a basis for giving Dr. Cabiac's opinion little weight,
the ALJ noted that Dr. Cabiac made her opinion retroactive to
December 1, 2005, yet Dr. Cabiac only started treating
Claimant on December 13, 2013. R. 61. Such a reason is
unavailing because “the opinion of a treating physician
may not be rejected solely by virtue of being retrospective
in nature; the opinion must be ‘considered' just
like any other doctor's opinion.” Rosenburg v.
Comm'r of Soc. Sec., No. 6:07-cv-1510-Orl-19DAB,
2008 WL 4186988, at * 5 (M.D. Fla. Sept. 8, 2008) (citations
omitted). Because the ALJ's stated reasons for giving
little weight to Dr. Cabiac's opinion are not supported
by substantial evidence, it is recommended that the Court
find reversible error in the ALJ's treatment of the same.
October 26, 2011, Dr. Joan Kidd, a treating physician and
general practitioner, opined that Claimant's seizures are
debilitating and “impact his abilities to drive and
perform some of the other activities of daily living and
impact his ability to work.” R. 867. Dr. Kidd also