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King v. Berryhill

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

March 30, 2018

EVA L. KING, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER [1]

          JAMES R. KLINDT United States Magistrate Judge.

         I. Status

         Eva L. King (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's (“SSA('s)”) final decision denying her claims for supplemental security benefits (“SSI”). Plaintiff's alleged inability to work is a result of a “bulging disc in [her] back, ” rheumatoid arthritis, agoraphobia, anxiety, and depression. Transcript of Administrative Proceedings (Doc. No. 12; “Tr.” or “administrative transcript”), filed February 6, 2017, at 58, 76, 203 (emphasis omitted). On May 7, 2013, Plaintiff filed an application for SSI, alleging an onset disability date of June 1, 2007. Tr. at 160.[2] Plaintiff's application was denied initially, see Tr. at 58-73, 75, and was denied upon reconsideration, see Tr. at 76-91, 92.

         On May 14, 2015, an Administrative Law Judge (“ALJ”) held a hearing, during which he heard from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). Tr. at 38-57. At the time of the hearing, Plaintiff was forty-five years old. See Tr. at 42. The ALJ issued a Decision on May 27, 2015, finding Plaintiff not disabled since April 22, 2013, the date the SSI application was filed. Tr. at 19-32.

         The Appeals Council then received additional evidence in the form of a brief from Plaintiff's counsel. Tr. at 4, 5; see Tr. at 265-66 (brief). On September 26, 2016, the Appeals Council denied Plaintiff's request for review, Tr. at 1-4, thereby making the ALJ's Decision the final decision of the Commissioner. On November 23, 2016, Plaintiff commenced this action under 42 U.S.C. § 405(g), as incorporated by § 1383(c)(3), by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         On appeal, Plaintiff makes two arguments: 1) “the ALJ erred in finding that [Plaintiff's] mental impairments do not meet . . . Listing [12.05]”; and 2) “the ALJ erred in excluding limitations from [Plaintiff's residual functional capacity (‘RFC')].” Plaintiff's Memorandum of Law (Doc. No. 17; “Pl.'s Mem.”), filed April 10, 2017, at 11, 20 (emphasis and some capitalization omitted). On June 9, 2017, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 18; “Def.'s Mem.”) addressing Plaintiff's arguments. A f t e r a thorough review of the entire record and consideration of the parties' respective filings, the undersigned finds the Commissioner's final decision is due to be reversed and remanded for further administrative proceedings.

         II. The ALJ's Decision

         When determining whether an individual is disabled, [3] 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 21-31. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since April 22, 2013, the application date.” Tr. at 21 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: disorder of the spine; rheumatoid arthritis; anxiety-related disorder; affective mood disorder; borderline IQ; and a learning disorder.” Tr. at 21 (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 21 (emphasis and citation omitted).

         The ALJ determined that Plaintiff has the following RFC:

[Plaintiff can] perform sedentary or light work as defined in 20 [C.F.R. §§] 416.967(a) and (b) with additional restrictions. [Plaintiff] can occasionally bend, crouch, kneel and stoop, but cannot squat, crawl, or the operation of foot controls [sic]. [Plaintiff] is limited to work that allows her to alternate between periods of sitting and standing, at her option, to perform assigned tasks. [Plaintiff] must avoid ladders, unprotected heights, and the operation of heavy, moving machinery. [Plaintiff] is limited to simple tasks and needs a low-stress work environment, meaning no production line work. [Plaintiff] must avoid contact with the public and co-workers, and is limited to work that does not require the assistance of others or for her to assist others in performing their tasks.

Tr. at 24 (emphasis omitted).

         At step four, the ALJ relied on the testimony of the VE and found that Plaintiff “is unable to perform any past relevant work.” Tr. at 30 (emphasis and citation omitted). At step five, after considering Plaintiff's age (“[forty-three] years old . . . on the date the application was filed”), education (“at least a high school education”), work experience, and RFC, the ALJ again relied on the testimony of the VE and found that “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform, ” Tr. at 30 (emphasis and citation omitted), including “Hospital Products Assembler, ” “Mail Clerk, ” and “Lens Inserter, ” Tr. at 31. The ALJ concluded that Plaintiff “has not been under a disability . . . since April 22, 2013, the date the application was filed.” Tr. at 31 (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, Plaintiff takes issue with the ALJ's finding that Plaintiff does not meet Listing 12.05 and with the ALJ's RFC determination. See Pl.'s Mem. at 11-24. In raising these issues, Plaintiff challenges the ALJ's rejection of Dr. Sherry V. Risch's[4] opinion. See Pl.'s Mem. at 17, 18, 20, 21-22, 23-24. This challenge is more developed in some parts of the memorandum, see id. at 21-22, than in others, see id. at 17, 18, 20, 23-24. For ease of discussion, the undersigned first addresses the ALJ's rejection of Dr. Risch's opinions as to Plaintiff's inability to maintain persistence and pace and her inability to interact appropriately with supervisors, and then Plaintiff's two main arguments are addressed.

         A. Dr. Risch's Opinion

         Plaintiff asserts the ALJ erred in “preferring the opinion of [a] non-examining source over that of the examining source[, Dr. Risch].” Id. at 17; see also id. at 18, 20. Plaintiff specifically takes issue with the ALJ's rejection of Dr. Risch's opinions that Plaintiff is unable to maintain persistence and pace and that she is unable to interact appropriately with supervisors. Id. at 21-22.[5] Responding, Defendant argues that “as the ALJ found, the evidence [does] not support the severity of Plaintiff's pain complaints, which undermines Dr. Risch's opinion on persistence and pace.” Def.'s Mem. at 14 (citation omitted). Defendant contends the ALJ properly discounted Dr. Risch's opinion on Plaintiff's inability to interact appropriately with supervisors because there was other evidence of record that contradicted it, including Plaintiff's own testimony. Id. at 17-18.

         1. Applicable Law[6]

         The Regulations establish a “hierarchy” among medical opinions[7] 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 or psychiatrist, [8] 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 or psychiatrist'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 or psychiatrist'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, the frequency of examination, the nature and extent of the treatment relationship, as well as the supportability of the opinion, its consistency with the other evidence, and the specialization of the physician). Id.

         If an ALJ concludes the medical opinion of a treating physician or psychiatrist should be given less than substantial or considerable weight, he or she must clearly articulate reasons showing “good cause” for discounting it. it. Hargress v. Soc. Sec. Admin., Comm'r, 883 F.3d 1302, 1305 (11th Cir. 2018) (citation omitted); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause exists when (1) the opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or (3) the opinion is conclusory or inconsistent with the treating physician's or psychiatrist's own medical records. Hargress, 883 F.3d at 1305 (citation omitted); Phillips, 357 F.3d at 1240-41; see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991); Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987) (stating that a treating physician's medical opinion may be discounted when it is not accompanied by objective medical evidence).

         An examining physician's opinion, on the other hand, is not entitled to deference. See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per curiam) (citing Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986)); see also Crawford, 363 F.3d at 1160 (citation omitted). Moreover, the opinions of non-examining physicians, taken alone, do not constitute substantial evidence. Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985) (citing Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985)). However, an ALJ may rely on a non-examining physician's opinion that is consistent with the evidence, while at the same time rejecting the opinion of “any physician” whose opinion is inconsistent with the evidence. Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. Unit B. 1981) (citation omitted).

         An ALJ is required to consider every medical opinion. See 20 C.F.R. §§ 404.1527(d), 416.927(d) (stating that “[r]egardless of its source, we will evaluate every medical opinion we receive”). While “the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion, ” Oldham, 660 F.2d at 1084 (citation omitted); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2), “the ALJ must state with particularity the weight given to different medical opinions and the reasons therefor, ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.1987)); Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005); Lewis, 125 F.3d at 1440.

         2. Analysis of ALJ's Findings

         The ALJ gave “no weight” to Dr. Risch's opinions that Plaintiff is unable to interact appropriately with supervisors and that she is unable to maintain persistence and pace because, according to the ALJ, these opinions are inconsistent with other evidence of record. Tr. at 28; see Tr. at 373 (Dr. Risch's opinions).[9] Upon review, the undersigned determines that in noting these inconsistencies, the ALJ provided sufficient reasons to discount Dr. Risch's opinions. See Oldham, 660 F.2d at 1084. These reasons are supported by substantial evidence.

         As to Plaintiff's ability to interact with supervisors, the ALJ correctly noted that Plaintiff reported she gets along “OK” with authority figures, Tr. at 225, and her husband reported she gets along “good” with authority figures, Tr. at 217. See Tr. at 28. The ALJ also indicated that Plaintiff was described as “pleasant” in September 2014 hospital records, Tr. at 413, and as “pleasant and cooperative” in June 2013 hospital records, Tr. at 445 (capitalization omitted). See Tr. at 28.

         With regard to Plaintiff's ability to maintain persistence and pace, the ALJ stated that Plaintiff completed high school[10] and that Plaintiff's mental health treatment has been minimal and conservative in nature.[11] Tr. at 28. The ALJ also noted that although Dr. Risch based her opinion regarding persistence and pace on Plaintiff's anxiety and pain, see Tr. at 373, the “diagnostic images and treatment do not support the severity of [Plaintiff's] pain complaints . . ., ” Tr. at 28.[12] Additionally, the ALJ indicated that in the evaluation report containing the opinions at issue, Dr. Risch stated she reviewed medical records from Plaintiff's hospitalization in 2008. Tr. at 28; see Tr. at 369. The ALJ correctly stated that during this hospitalization, Plaintiff was assigned a “[Global Assessment Functioning (‘GAF')] score of 37, indicating major impairment in several areas, ” but her “blood alcohol level was 0.259.” Tr. at 28 (citation omitted); see Tr. at 333, 369. Plaintiff was “diagnosed with alcohol dependence, in addition to a mental disorder.” Tr. at 28; see Tr. at 333. Accordingly, the undersigned finds that the ALJ's rejection of examining physician Dr. Risch's opinions regarding persistence and pace and Plaintiff's inability to interact with supervisors is supported by substantial evidence.[13]

         B. Listing 12.05

         Plaintiff argues her mental impairments meet the criteria in paragraph C of Listing 12.05 or, alternatively, the criteria in paragraph D. Pl.'s Mem. at 11-20. Responding, Defendant contends Plaintiff's arguments consist mostly of conflicting evidence that does not ...


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