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Kidwell v. Commissioner of Social Security

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

February 2, 2018

KYLE TAYLOR KIDWELL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.

         Kyle 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.

         I. PROCEDURAL BACKGROUND

         On 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.

         On May 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.

         On June 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.

         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. 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 (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 physician's opinion).

         Absent 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 Cir. 1997)).

         IV. ANALYSIS

         A. Physicians' Opinions[2]

         1) Dr. Cabiac

         On 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.

         The ALJ 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.

         The ALJ 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. 61-64.[3]

         Second, 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”).

         Third, 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.

         2) Dr. Kidd

         On 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 ...


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