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Martin v. Commissioner of Social Security

United States District Court, M.D. Florida

June 29, 2018

LISA HEATHER MARTIN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION [1]

          CAROL MIRANDO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Lisa Heather Martin seeks judicial review of the denial of her claims for disability and disability insurance benefits (“DIB”) by the Commissioner of the Social Security Administration (“Commissioner”). The Court has reviewed the record, the Joint Memorandum (Doc. 23), [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 the administrative law judge (“ALJ”) properly weighed the medical opinions of Daniel Johnson, M.D., and Michael Mozzetti, M.D. and declined to incorporate them into the ALJ's assessment of Plaintiff's residual functional capacity (“RFC”); (2) whether the ALJ failed to inquire into and resolve a conflict between the vocational expert's (“VE”) testimony and the Dictionary of Occupational Titles (“DOT”); and (3) whether the ALJ erred in failing to allow Plaintiff's attorney to cross-examine the VE regarding the source of the job numbers provided.

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

         On May 16, 2014, Plaintiff filed an application for DIB, alleging her disability began July 21, 2012, due to neck/back problems, “stomach/gastro/colon issues, ” chronic gastritis, stomach ulcers, gallbladder removal, auto-immune disease, bipolar disorder, clinical depression, and anxiety. Tr. 89-90, 101, 189. Plaintiff's DIB claim was denied initially and upon reconsideration. Tr. 99, 116-119, 123. On December 31, 2014, Plaintiff requested a hearing before an ALJ. Tr. 128. ALJ Elizabeth P. Neuhoff held a hearing on May 31, 2016, during which Plaintiff and VE Melissa Neal testified. Tr. 37-68. On August 1, 2016, the ALJ found Plaintiff not disabled through the date of her decision. Tr. 30-31.

         At step one, the ALJ found Plaintiff “meets the insured status requirements of the Social Security Act through December 31, 2017.” Tr. 16. The ALJ determined Plaintiff has not engaged in substantial gainful activity since the alleged onset date, July 21, 2012. Id. Next, the ALJ found that Plaintiff has severe impairments of mild to moderate degenerative disc disease in the cervical and lumbar spine, bipolar disorder, generalized anxiety disorder, and organic mental disorder. Id.

         The ALJ then concluded 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 CFR Part 404, Subpart P, Appendix 1.” Tr. 17. The ALJ then determined that Plaintiff had the RFC to perform light work[5] with certain limitations, including that she “can occasionally stoop and crouch; and frequently perform all other postural activities” and is “able to understand, remember and perform simple tasks and instructions.” Tr. 21. Next, the ALJ found Plaintiff was unable to perform her past relevant work as a fast food worker. Tr. 29. Considering Plaintiff's age, education, work experience and RFC, the ALJ concluded that Plaintiff can perform other jobs that exist in significant numbers in the national economy. Tr. 30. As a result, the ALJ found that Plaintiff is not disabled. Tr. 30-31.

         Following the ALJ's decision, Plaintiff filed a request for review by the Appeals Council, which was denied on July 17, 2017. Tr. 1. Accordingly, the August 1, 2016 decision is the final decision of the Commissioner. Plaintiff filed an appeal with this Court on August 30, 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).[6] 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 weighed the medical opinion evidence and declined to incorporate it into the RFC

         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); 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). Although opinions of treating physicians generally are given more weight because they are the most likely to be able to offer detailed opinions of the claimant's impairments as they progressed over time, a medical source opinion may be discounted when the opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the record as a whole. 20 C.F.R. § 404.1527(c)(2); 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). Accordingly, “[a]n ALJ must give a treating physician's opinion substantial weight, unless good cause is shown.” Castle v. Colvin, 557 Fed.Appx. 849, 854 (11th Cir. 2014) (citing Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004)); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Sabo v. Chater, 955 F.Supp. 1456, 1462 (M.D. Fla. 1996). “Good cause exists when the ‘(1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records.'” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d at 1241).

         “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); see SSR 96-6p, 1996 WL 374180 (July 2, 1996). The RFC is the most that a claimant can do despite her limitations. See 20 C.F.R. § 404.1545(a). At the hearing level, the ALJ has the responsibility of assessing a claimant's RFC. See 20 C.F.R. § 404.1546(c). The ALJ is required to assess a claimant's RFC based on all of the relevant evidence in the record, including any medical history, daily activities, lay evidence and medical source statements. 20 C.F.R. § 404.1545(a). The claimant's age, education, work experience, and whether she can return to her past relevant work are considered in determining her RFC, Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1520(f)), and the RFC assessment is based upon all relevant evidence of a claimant's ability to do work despite her impairments. Phillips, 357 F.3d at 1238; Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1545(a)).

         i. Dr. Johnson's opinion

         Plaintiff argues that the ALJ erred by misinterpreting Dr. Johnson's range of motion chart, which showed that Plaintiff's cervical and lumbar spine had reduced, rather than normal, ranges. Doc. 23 at 19. She contends this limitation prevents her from stooping, which should have been incorporated into her RFC. Id. at 20. Plaintiff also argues the ALJ improperly rejected Dr. Johnson's opinion on the basis that it repeated Plaintiff's own reports because his opinion contained his own observations, including the difficulty she had getting on and off the examination table. Id.

         The Commissioner responds Dr. Johnson, who examined Plaintiff one time, observed that she was alert, pleasant and in no distress, had mild difficulties with the examination table, tandem walking, squatting and hopping, but walked unassisted and had full use of her hands, as well as full motor and grip strength, intact sensation and symmetrical reflexes. Id. at 25. The Commissioner contends, although Plaintiff has less than full range of motion in the cervical and dorsolumbar regions, the ranges of motion Dr. Johnson observed appeared to be within the normal range. Id. The Commissioner argues Dr. Johnson limited Plaintiff to walking and standing for 10 minutes each, sitting for 30 minutes, occasionally lifting 20 pounds, and never performing repeated bending stooping or lifting, yet his examination findings were unremarkable. Id. at 26. The Commissioner points out, as the ALJ noted, Dr. Johnson appears to repeat Plaintiff's subjective reports as his findings even though they contradict the benign nature of his examination findings, and such subjective reports do not constitute an acceptable basis for a medical opinion. Id. (citing 20 C.F.R. § 404.1527).

         As an initial matter, Dr. Johnson's opinion as to Plaintiff's ability to sit, stand, walk, lift, bend and stoop is 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. Beegle, 482 Fed.Appx. at 486. Additionally, 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); McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987). Here, the ALJ gave Dr. Johnson's opinion no weight because he appears to completely repeat Plaintiff's subjective reports as his opinion, and those reports “contradict his own basically benign physical findings.” Tr. 25. The Court recommends substantial evidence supports this conclusion. See Phillips, 357 F.3d at 1240-41 (holding an ALJ may properly discount the opinion 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).

         The five pages of records[7] from one-time examining physician Dr. Johnson contain almost an entire page of information Plaintiff provided, including the limitations that she can stand and walk for 10 minutes each, occasionally lift 20 pounds, and cannot do repeated bending, stooping or lifting. Tr. 453-57. Dr. Johnson's listed conclusions mirror this information. Tr. 457. Other than observed ranges of motion, which the ALJ noted were limited as to the cervical and dorsolumbar regions, and the mild difficulties getting on and off the examination table and tandem walking, squatting and hopping, Dr. Johnson did not make any observations or independent findings that would support the stated functional limitations. Tr. 25, 453-457.

         Although Plaintiff argues the ALJ misread Dr. Johnson's notes as to her ranges of motion, the ALJ recognized the ranges were less than full. Doc. 23 at 19-20, Tr. 25. It does appear Plaintiff is correct that the ALJ may have misinterpreted Dr. Johnson's range of motion studies because the meaning of “normal” is unclear. Tr. 455-56. These ranges do not seem like typical ranges in the sense that anything falling within them would qualify as normal. Instead, the ranges seem to be the full ranges of motion for each joint. Id. Nevertheless, Plaintiff does not suggest the effect this misinterpretation would have on the ALJ's determination of her ability to bend and stoop. The ALJ recognized the deficiency in Plaintiff's ranges of motion in the cervical and dorsolumbar spine and accounted for it in RFC finding by limiting Plaintiff to occasionally stooping and crouching. Tr. 21, 25, 455. The ALJ declined to reduce Plaintiff's RFC any further because the objective examinations and/or diagnostic testing did not support it, and the evidence showed her activities were not as limited as one would expect given her claimed symptoms and limitations.[8] Tr. 23, 28-29. Thus, the Court recommends substantial evidence supports the ALJ's rejection of Dr. Johnson's opinion.

         ii. Dr. Mozzetti's opinion

         Dr. Michael Mozzetti treated Plaintiff for neck and back pain from August 2014 until April 2016. Tr. 458-508. His treatment notes from each visit during that period-from her first visit to her last-contain the following work restrictions: “20 lb occasional lift limit, wear a high quality back brace and if available, apply ice 4 times a day; avoid bending, stopping or craning your back.” Tr. 460, 465, 470, 475, 481, 484, 487, 490, 494, 498, 502.

         Plaintiff argues the ALJ erred in rejecting Dr. Mozzetti's opinion that she had these work restrictions as unsupported by his notes or the record as a whole. Doc. 23 at 20. She argues these work restrictions were supported by: (1) treatment notes indicating Plaintiff has lumbar tenderness; (2) Dr. Johnson's findings indicating range of motion limitations; and (3) the MRI showing multilevel formation narrowings and nerve root contact. Id. at 20-21. Plaintiff further argues Dr. Mozzetti's indication that Plaintiff needs to apply ice 4 times a day and avoid heat on her back is more than opinion-it is a modality of treatment the ALJ was not qualified to reject as a non-physician. Id. at 21. Plaintiff points to her testimony as consistent with this treatment, and she points to the VE's testimony that the need for breaks to apply ice would preclude work. Id. at 22.

         The Commissioner responds that on examination, Dr. Mozzetti found Plaintiff generally unremarkable other than lumbar tenderness, and his records indicate Plaintiff often reported doing well, having no problems, and experiencing a pain level of 3-4 out of 10. Doc. 23 at 24. Given these notes do not support Dr. Mozzetti's work restrictions, the Commissioner argues, they provide substantial evidence supporting the ALJ's rejection of the additional restrictions. Id. The Commissioner discounts Plaintiff's argument that the application of ice is a modality of treatment, arguing that the ALJ was properly determining Plaintiff's RFC and evaluating Dr. Mozzetti's opinion to do so. Id. at 25.

         The ALJ recognized Dr. Mozzetti was Plaintiff's treating physician for the majority of the relevant period but determined his opinion was entitled to no weight because it was inconsistent with the record as a whole and unsupported by his examination findings or Plaintiff's symptoms upon presentation. Tr. 24. Plaintiff saw Dr. Mozzetti for back and neck pain, but the ALJ found his examinations do not support the numerous limitations Plaintiff claims. Id. Specifically, there was a negative response to straight leg raise testing, full range of motion in Plaintiff's extremities, and normal motor strength and sensation. Id. The ALJ found Dr. Mozzetti's prescription of pain medication inconsistent with Plaintiff's routine reports of low pain levels, consistently a 3 or 4 out of 10, and her reports that she was doing well and having no problems. Id. The ALJ found Dr. Mozzetti's observations and Plaintiff's reports to him inconsistent with the work restrictions limiting lifting to 20 pounds occasionally, requiring a back brace and, if available, application of ice 4 times daily, and avoiding bending and stooping or craning the back. Id.

         The Court recommends the ALJ adequately articulated specific reasons for discounting Dr. Mozzetti's opinions, and the record reflects good cause for doing so. See e.g., Crawford, 363 F.3d at 1155; Phillips v. Barnhart, 357 F.3d at 1241. 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). Although Plaintiff points to her MRI to support the limitations Dr. Mozzetti found, Doc. 23 at 20, 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 recognized Plaintiff's MRI in precluding her from medium work, but declined to find greater limitations based on the record. Tr. 24, 28.

         In her visits with Dr. Mozzetti from August 2014 to April 2016, Plaintiff consistently reported she was feeling well, had no problems, questions or complaints, and her pain with medication was at most a 3 or 4 out of 10. Tr. 459-60, 463-65, 468-70, 473-75, 478-80, 482-83, 485-86, 488-89, 492-93, 496-97, 500-01. Her straight leg raise tests were always negative. Tr. 460, 465, 470, 475, 480, 483, 486, 489, 493, 497, 501. Dr. Mozzetti generally found Plaintiff's various systems unremarkable except for lumbar tenderness. Tr. 460, 469, 474, 480486, 489, 493, 497, 501. Yet Dr. Mozzetti consistently listed Plaintiff's work restrictions as wearing a high back brace, applying ice 4 times a day, if available, limited to occasionally lifting 20 pounds, and avoiding bending, stooping, or craning Plaintiff's back. Tr. 460, 465, 470, 475, 481, 484, 487, 490, 494, 498, 502. These restrictions were identical for every time Plaintiff saw Dr. Mozzetti over an almost two-year period. The ALJ's conclusion-that these restrictions given throughout Dr. Mozzetti's treatment of Plaintiff were inconsistent with her continuous presentation of minimal pain and Dr. Mozzetti's largely normal findings on examination-was a reasonable one. See Lewis, 125 F.3d at 1440 (explaining good cause to discount opinion exists “where the doctors' opinions were conclusory or inconsistent with their own medical records”). Additionally, Dr. Mozzetti's opinion as to Plaintiff's work restrictions is not entitled to any special significance because it relates to Plaintiff's RFC, which is a matter reserved to the Commissioner. Beegle, 482 Fed.Appx. at 486; 20 C.F.R. § 404.1527(d)(3). Thus, the Court recommends substantial evidence and good cause support the ALJ's decision to give no weight Dr. Mozzetti's opinion as to her work restrictions, both because it was an RFC finding and because it was rendered in the absence of either high pain levels or abnormal examination findings to support it.

         b. Whether the ALJ ...


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