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Griffin v. Commissioner of Social Security

United States District Court, M.D. Florida

June 20, 2018

EDWARD GRIFFIN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION [1]

          CAROL MIRANDO UNITED STATES MAGISTRATE JUDGE

         Plaintiff Edward Griffin seeks judicial review of the denial of his claims for disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”) by the Commissioner of the Social Security Administration (“Commissioner”). The Court has reviewed the record, the Joint Memorandum (Doc. 19), [2] and the applicable law. For the reasons discussed herein, the Court recommends the decision of the Commissioner be reversed and this matter be remanded pursuant to 42 U.S.C. § 405(g), sentence four.

         I. Issues on Appeal[3]

         Plaintiff raises three issues on appeal:[4] (1) whether substantial evidence supports the administrative law judge's (“ALJ”) discounting the opinion of Debra Roggow, D.O.; (2) whether the ALJ failed to inquire into a conflict between the vocational expert's (“VE”) testimony and the Dictionary of Occupational Titles (“DOT”); and (3) whether the ALJ improperly relied on the VE's testimony to find certain jobs exist in significant numbers in the national economy.

         II. Procedural History and Summary of the ALJ's Decision

         On June 5, 2014, Plaintiff filed applications for DIB and SSI, alleging his disability began January 1, 2004, due to coronary artery disease, triple heart bypass (10 years prior), uncontrolled diabetes, and prostate cancer in remission. Tr. 71, 79, 85-86, 186-87. Plaintiff's DIB claim was denied initially and upon reconsideration because his onset date was after his date last insured, but his SSI claim was approved with a disability onset date of June 5, 2014. Tr. 83, 85-86, 93, 95, 103. On June 1, 2015, Plaintiff requested a hearing before an ALJ on his DIB claim. Tr. 114. The ALJ held a hearing on December 3, 2015, during which Plaintiff and VE Silvio S. Reyes testified. Tr. 33-70. At the hearing, P44laintiff amended the alleged disability onset date to July 31, 2007.[5] Tr. 38-39. On January 13, 2016, ALJ Hope E. Grunberg found Plaintiff not disabled through March 31, 2008, his date last insured. Tr. 27.

         At step one, the ALJ found Plaintiff “last met the insured status requirements of the Social Security Act on March 31, 2008.” Tr. 20. The ALJ determined Plaintiff did not engage in substantial gainful activity from his amended alleged onset date, July 31, 2007, through his date last insured, March 31, 2008. Id. Next, the ALJ found, through the date last insured, that Plaintiff had severe impairments of coronary artery disease, status post four coronary artery bypass grafting and multiple stenting procedures, peripheral vascular disease, hypertension, hyperlipidemia and hypothyroidism. Tr. 21.

         The ALJ then concluded Plaintiff “did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1” through the date last insured. Tr. 22. The ALJ then determined that Plaintiff had the residual functional capacity (“RFC”) through the date last insured to perform light work[6] with certain limitations, including that he “was limited to understanding, remembering and carrying out simple, routine and repetitive tasks.” Tr. 23. Next, the ALJ found Plaintiff was unable to perform his past relevant work as a plasterer or tile paster through the date last insured. Tr. 25. Considering Plaintiff's age, education, work experience and RFC, the ALJ concluded that Plaintiff could have performed other jobs that exist in significant numbers in the national economy through the date last insured. Tr. 26. As a result, the ALJ found that Plaintiff is not disabled. Tr. 27. Following the ALJ's decision, Plaintiff filed a request for review by the Appeals Council, which was denied on April 4, 2017. Tr. 1. Accordingly, the January 13, 2016 decision is the final decision of the Commissioner. Plaintiff filed an appeal with this Court on May 22, 2017. Doc. 1. The matter is now ripe for review.

         III. Standard of Review

         The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390, 401 (1971)). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).[7] Substantial evidence is “more than a scintilla, i.e., evidence that must do more than create a suspicion of the existence of the fact to be established, and 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) (internal citations omitted).

         The Eleventh Circuit has restated that “[i]n determining whether substantial evidence supports a decision, we give great deference to the ALJ's factfindings.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citation omitted). 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 or found that the preponderance of the evidence is 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); see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings). The Court reviews the Commissioner's conclusions of law under a de novo standard of review. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

         IV. Discussion

         a. Whether the ALJ properly discounted the testimony of Dr. Roggow

         Plaintiff argues the ALJ did not provide a sufficient explanation for discounting Dr. Roggow's opinion regarding his functional limitations before March 31, 2008. Doc. 19 at 19. He further contends the reasons the ALJ did give-that Dr. Roggow was not treating Plaintiff during the relevant time period and that the record does not support her opinion-are invalid. Id. at 19-22. First, Plaintiff explains that SSR 83-20, 1983 WL 31249, at *3 (Jan. 1, 1983), specifically allows inferences of disability onset when an exact date is unavailable and the consideration of lay evidence to support those inferences. Doc. 19 at 19. Plaintiff argues Dr. Roggow reviewed medical evidence from before and after March 31, 2008, and the record contains evidence from Plaintiff's wife about what he could do during that time, such that the ALJ should not have discounted Dr. Roggow's opinion. Id. at 19- 20.

         Second, Plaintiff argues the ALJ should not have concluded from Plaintiff's lack of treatment in 2007 or 2008 that he was not suffering from severe limitations because the gap in treatment can be explained and excused by his lack of medical insurance. Id. at 20. Plaintiff states the ALJ cannot substitute his judgment for a medical professional by assuming a lack of emergency room visits meant that Plaintiff was doing well during that time. Id. Nor, Plaintiff contends, should the ALJ have relied on Plaintiff's statement during a visit to James C. Ricely, D.O. in December 2013 that he had been doing well, without chest pain for years prior to the episode he was currently experiencing, to conclude Plaintiff retained very substantial functional capacity for a lengthy period. Id. at 21 (citing Tr. 24). Plaintiff contends the ALJ erred in relying on this statement because it was made in 2013, not 2007 and early 2008, and he does not have to be completely unable to function to qualify as disabled. Id.

         The Commissioner responds that Dr. Roggow was an examining, not treating, physician, whose opinion was not entitled to any deference because she saw Plaintiff for the purpose of supporting his claim for disability. Id. at 23. The Commissioner further argues the ALJ properly considered the nature and extent of Dr. Roggow's relationship with Plaintiff, and nothing in the record suggests what evidence Dr. Roggow actually reviewed or how that evidence supported her opinion. Id. at 24. The Commissioner points out Plaintiff's citation of his wife's testimony to challenge the ALJ's conclusions is unavailing because the ALJ rejected his wife's testimony as unsupported and inconsistent with the record. Id. at 24-25 (citing Tr. 25). The Commissioner argues that, while the ALJ did not delve into detail about the lack of support in the record, she earlier explained what the record showed, which allows for meaningful review. Id. at 25. The Commissioner argues Plaintiff's claims regarding his lack of insurance are false because he testified he could go to the VA any time but did not so until 2011 when he could not put up with his condition anymore. Id.(citing Tr. 49). The Commissioner contends the ALJ made commonsense observations that if Plaintiff had been in distress, he would have gone to the emergency room, and when he finally did seek treatment, he stated that he had not been having any issues until recently. Id. at 25-27.

         In evaluating the medical opinions of record, “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). “Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1); Winschel, 631 F.3d at 1178-79.

         When determining how much weight to afford an opinion, the ALJ considers whether there is an examining or treatment relationship and the nature and extent thereof; whether the source offers relevant medical evidence to support the opinion; consistency with the record as a whole; the specialization of the source, if any; and any other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6). Medical source opinions may be discounted when the opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if the opinion is inconsistent with the record as a whole. SSR 96-2p, 1996 WL 374188 (Jul. 2, 1996); Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159-60 (11th Cir. 2004).

         Plaintiff saw Dr. Roggow for a disability evaluation. Tr. 1105.[8] Dr. Roggow performed an examination of Plaintiff on December 1, 2015, and completed a Medical Source Statement (“MSS”) form that same day. Tr. 1102-1108. In the MSS, Dr. Roggow opined, as of March 31, 2008, Plaintiff could never lift or carry 20 pounds or more, citing as supporting “objective evidence/diagnosis”: “shortness of breath, chest pain-office observations.” Tr. 1102. She further opined, again as of March 31, 2008, Plaintiff could stand and/or walk for a total of less than 2 hours in an 8-hour workday, citing “limited endurance, short of breath in office” as the “objective evidence/diagnosis” supporting her opinion. Id. Citing no objective evidence/diagnosis for support, Dr. Roggow also opined that, as of March 31, 2008, Plaintiff would need to take a 15-20 minute break for medical reasons every 2 hours, as well as elevate his legs above his heart for an unspecified amount of time. Id. Dr. Roggow also checked the “Yes” boxes indicating that (1) her opinions were provided within a reasonable degree of medical certainty; and (2) she “read the medical records before and after the onset date of disability.” Id. In her examination notes, after noting a history of coronary heart disease with a quadruple bypass in 2001 and stents placed multiple arteries, most recently in April 2015, and a pacemaker insertion in May 2015, Dr. Roggow stated her impression was Plaintiff had a limited ability to lift and carry more than 10 pounds and could not walk more than 50 yards “without stopping to rest due to chest pain and shortness of breath. Disabled from gainful employment due to cardiac condition.” Tr. 1106-08.

         The ALJ succinctly addressed Dr. Roggow's opinion:

The undersigned also considered the December 1, 2015, opinion of Debra Roggow, D.O. (9F; 10F). Although Dr. Roggow's opinion concerns [Plaintiff's] functional limitations as of March 31, 2008, the record does not establish that she treated him at that time, and does not support her opinion that [Plaintiff] is limited to the sedentary exertional level.[9](10F at 1). Accordingly, the undersigned gave little weight to this opinion as well.

Tr. 25. As an initial matter, Dr. Roggow's MSS opinion essentially is an assessment of Plaintiff's ability to work or RFC, and the ALJ was not required to accord any weight to this assessment. “A claimant's [RFC] is a matter reserved for the ALJ's determination, and while a physician's opinion on the matter will be considered, it is not dispositive.” Beegle v. Soc. Sec. Admin., Comm'r, 482 Fed.Appx. 483, 486 (11th Cir. 2012). Thus, the Commissioner “will not give any special significance to the source of an opinion on issues reserved to the Commissioner. . . .” 20 C.F.R. § 404.1527(d)(3), 416.927(d)(3); see SSR 96-6p, 1996 WL 374180 (July 2, 1996). Nonetheless, the Court recommends the ALJ adequately articulated specific reasons for discounting Dr. Roggow's opinions, and the record reflects good cause for doing so. See e.g., Crawford, 363 F.3d at 1155; Phi lips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2014). The ALJ “may reject any medical opinion if the evidence supports a contrary finding.” Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987) (citation omitted).

         As noted by the Commissioner, Dr. Roggow was not Plaintiff's treating physician, but instead saw him only one time, seven years after the date he was last insured. Doc. 19 at 24; Tr. 1101-1108. Although she indicated on the MSS form by checking a box that she had reviewed records before and after the onset date of disability, there is no indication of what those records were or how they informed her opinion that Plaintiff's condition existed as of March 31, 2008. Tr. 1101. Indeed, in making his argument, Plaintiff does not cite to Dr. Roggow's records but refers the Court to a report Plaintiff made to Dr. Ricely on December 24, 2013, in which Plaintiff stated he had 30-45 seconds of chest pain several weeks before that went away after resting, which was “similar to what he had prior to his bypass in 2001.” Tr. 718. There is no indication Dr. Roggow reviewed this record, and it does not purport to reflect Plaintiff's condition consistently from 2001 through to the date of the record. Tr. 718. As the ALJ found, Dr. Ricely's record suggests the opposite, because Plaintiff had not felt chest pain like what he experienced in 2001 “for years.” Id. Additionally, Dr. Roggow gave no explanation of how she concluded that Plaintiff's condition existed in 2008. For those limitations for which she provided supporting observations, both were based on her examination of Plaintiff that day. Tr. 1101. Accordingly, the ALJ did not err in discounting her opinion as unrelated in time to Plaintiff's condition before the date he was last insured.

         Substantial evidence supports the ALJ's conclusion because her opinion was unsupported by any reference to medical records from the relevant time period or even her own determinations that such limitations had persisted during that time. See Phi lips, 357 F.3d at 1240-41 (holding an ALJ may properly discount the opinion even of a treating physician if the opinion is unsupported by objective medical evidence, is merely conclusory, or is inconsistent with the physician's own medical records). Although an ALJ generally will give more weight to the opinion of an examining physician over one who has not examined the claimant, the opinion of a non-treating physician is not entitled to any deference or special consideration. 20 C.F.R. §§ 404.1527(c)(1); 416.927(c)(1); McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987).

         As to the second argument, Plaintiff contends the record supports a finding that he was limited to sedentary work, but he does not cite to any evidence beyond Dr. Ricely's note.[10] Doc. 19 at 22. Even if Plaintiff could do so, the question for the Court is whether substantial evidence supports the ALJ's findings, not whether the record could support a different one. Parks v. Comm'r, Soc. Sec. Admin., 783 F.3d 847, 850 (11th Cir. 2015); see also Edwards, 937 F.2d at 584 n.3; Barnes, 932 F.2d at 1358. The ALJ focused on the lack of evidence from the relevant time period, noting that Plaintiff had a four-vessel coronary artery bypass graft in 2001, then numerous cardiac catheterizations in 2002, 2003, and 2005. Tr. 24, 1069-71, 1078-81, 1087- 88, 1093-98. The ALJ noted when Plaintiff saw Joseph Califano, M.D. in 2006, he was doing well. Tr. 24, 379. In July 2007, Plaintiff underwent an additional cardiac catheterization after experiencing four months of pain with activity. Tr. 379-82, 1072-73. The ALJ concluded the 2007 procedure was successful. Tr. 24. She based this conclusion on the absence of treatment after the procedure until Plaintiff began experiencing chest pain and shortness of breath in 2013. Tr. 24; 718. At that time, Plaintiff reported that he had been doing well for years until the recent episode. Tr. 24; 718.

         Plaintiff does not dispute this absence of medical records. He contends instead that the gap in treatment following his 2007 surgery should not be held against him because it was based on his inability to afford medical treatment. Doc. 19 at 20. The ALJ addressed this issue by noting “the absence of even emergency room treatment records in the years following the 2007 procedure indicates that it was successful in alleviating his most functionally limited symptoms, and that he did not experience any medical emergencies during this period.” Tr. 24. The ALJ further noted that Plaintiff's statement to Dr. Ricely that he had been doing well for years supported the ALJ's conclusion that he had alleviated at least some of his symptoms for a rather lengthy period. Id. Substantial evidence supports this conclusion, both in Dr. Ricely's notes and the absence of any emergency room visits from the records that would suggest he was suffering from the degree of debilitation he claimed. Tr. 718.

         Plaintiff's situation is distinguishable from the case he cites, Sneed v. Comm'r of Soc. Sec., No. 6:13-cv-1453-Orl-TBS, 2015 WL 1268257 (M.D. Fla. Mar. 19, 2015). Doc. 19 at 20-21. There, the court found the ALJ erred because she did not give the plaintiff the opportunity to explain the lack of treatment; improperly skimmed over 180 pages of treatment notes in one paragraph of her decision, including recommendations from two different doctors that the plaintiff needed back surgery she could not afford; ignored statements from a chiropractor, examining physician, and two state-agency physicians regarding the objective medical evidence supporting her subjective complaints of pain and inability to sit or stand for more than a half an hour; and improperly interpreted MRI scans and nerve conduction tests herself to reach the conclusion that the plaintiff did not suffer from the alleged impairments that would have precluded her from sedentary work. Sneed, 2015 WL 1268257, at *5-6.

         In this case, Plaintiff does not cite evidence the ALJ ignored that would have supported his testimony regarding the existence of his impairments following his 2007 procedure or suggested that he needed further procedures that he could not afford. The evidence the ALJ cited-the notes of Drs. Califano and Ricely regarding Plaintiff's reported condition and the lack of any other treatment evidence from that period-was inconsistent with Dr. Roggow's conclusion that Plaintiff was limited to sedentary work due to shortness of breath and chest pain as of March 31, 2008. Substantial evidence therefore supports the ALJ's ...


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