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Pollock v. Saul

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

July 31, 2019

BARBARA LYNICE POLLOCK, Plaintiff,
v.
ANDREW M. SAUL,[1] Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION [2]

          JAMES R. KLINDT, UNITED STATES DISTRICT JUDGE

         I. Status

         Barbara Lynice Pollock (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's (“SSA('s)”) final decision denying her claim for disability income benefits (“DIB”). Plaintiff's alleged inability to work is the result of fibromyalgia, high blood pressure, heart issues, and anemia. See Transcript of Administrative Proceedings (Doc. No. 16; “Tr.” or “administrative transcript”), filed November 7, 2018, at 56, 67, 212. Plaintiff filed an application for DIB on April 10, 2015, [3] alleging an onset disability date of February 9, 2014. Tr. at 182. The application was denied initially, Tr. at 56-64, 65, 66, 90-92, and upon reconsideration, Tr. at 67-77, 78, 79, 96-100.

         On September 19, 2017, an Administrative Law Judge (“ALJ”) held a hearing, during which he heard testimony from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). Tr. at 32-55. Plaintiff was fifty-three years old at the time of the hearing. Tr. at 36 (indicating date of birth).The ALJ issued a Decision on November 24, 2017, finding Plaintiff not disabled through the date of the Decision. Tr. at 13-26.

         On June 15, 2018, the Appeals Council denied Plaintiff's request for review, Tr. at 1-3, thereby making the ALJ's Decision the final decision of the Commissioner. On August 8, 2018, Plaintiff commenced this action under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.

         On appeal, Plaintiff raises two issues: 1) “[w]hether the ALJ erred in determining that [Plaintiff] has the residual functional capacity [(‘RFC')] to perform light work after failing to adequately weigh and consider the medical opinions”; and 2) “[w]hether the ALJ properly relied on the testimony of the [VE] after posing and relying on a hypothetical question that did not adequately reflect the limitations of [Plaintiff].” Plaintiff's Brief Addressing the Merits of Appeal (Doc. No. 20; “Pl.'s Br.”), filed February 6, 2019, at 2-3; see Pl.'s Br. at 8-12 (first issue), 12-14 (second issue). Although phrased broadly, Plaintiff's first issue focuses solely on the ALJ's evaluation of the opinion of Plaintiff's treating podiatrist, Dr. Joanne Balkaran, DPM. See id. at 10-12. On March 29, 2019, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 21; “Def.'s Mem.”) addressing the issues raised by Plaintiff. After a thorough review of the entire record and consideration of the parties' respective memoranda, the undersigned finds that the Commissioner's final decision is due to be affirmed.

         II. The ALJ's Decision

         When determining whether an individual is disabled, [4] 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 15-25. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since February 9, 2014, the alleged onset date.” Tr. at 15 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: degenerative joint disease of the lumbar spine, fibromyalgia/inflammatory polyarthropathy, bilateral Achilles tendonitis and obesity.” Tr. at 15 (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 19 (emphasis and citation omitted).

         The ALJ determined that Plaintiff has the following RFC:

[Plaintiff can] perform light work as defined in 20 [C.F.R. §] 404.1567(b). Specifically, [Plaintiff] can sit, stand and walk up to six hours each in an eight-hour workday. She can lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently. She can frequently handle and operate hand controls with the left and right hand. She can occasionally climb ramps, stairs, ladders, ropes and scaffolds. She can frequently balance, but only occasionally stoop, kneel, crouch and crawl. [Plaintiff] can have occasional exposure to extreme cold, vibration and hazards, such as unprotected heights and moving machinery.

Tr. at 19 (emphasis omitted). At step four, the ALJ relied on the testimony of the VE and found that Plaintiff is “capable of performing past relevant work as a laboratory technician.” Tr. at 24 (emphasis omitted). The ALJ then proceeded to make alternative findings regarding the fifth and final step of the sequential inquiry. Tr. at 24-25. At step five, after considering Plaintiff's age (“49 years old . . . on the alleged disability onset date”), education (“limited education”), work experience, and RFC, the ALJ again relied on the testimony of the VE and found that “there are other jobs that exist in significant numbers in the national economy that [Plaintiff] also can perform, ” Tr. at 24, such as “fast food worker, ” “housekeeper, ” and “storage facility rental clerk, ” Tr. at 25. The ALJ concluded that Plaintiff “has not been under a disability . . . from February 9, 2014, through the date of th[e D]ecision. Tr. at 26 (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). 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) (citation omitted). 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 above, Plaintiff takes issue with the ALJ's evaluation of Dr. Balkaran's opinions and with the ALJ's reliance on the testimony of the VE. The undersigned addresses these issues in turn.

         A. ALJ's Evaluation of Dr. Balkaran's Opinions

         1. Parties' Arguments

         Plaintiff contends the ALJ “did not appropriately weigh the opinion of Dr. Balkar[a]n” because “at no time in the [D]ecision [did] the ALJ state the weight assigned to the opinion [of] this doctor.” Pl's Br. at 10 (citations omitted). According to Plaintiff, “[t]he records from Dr. Balkar[a]n reveal [Plaintiff] had significant problems with walking, and the doctor specifically indicate[d] that [Plaintiff] should elevate her foot and limit activities.” Id. at 11 (citation omitted). Plaintiff asserts that “this opinion is extremely important to the outcome of the case” because the VE appeared to testify that “the need for elevation of a lower extremity would interfere with employment.” Id. Plaintiff contends that because the ALJ failed to assign a weight to Dr. Balkar[a]n's opinion, “it is impossible for any reviewing court to determine whether the [D]ecision of the ALJ is supported by substantial evidence.” Id. at 12.

         Responding, Defendant argues that “[t]he ALJ did not err in failing to assign weight to Dr. Balkaran's . . . treatment note/treatment plan because it was not a medical opinion.” Def.'s Mem. at 7 (citation omitted). According to Defendant, “[t]he treatment note lacked any indication of Dr. Balkaran's judgment about Plaintiff's prognosis and statement of what Plaintiff can still do despite her impairments.” Id. (citation omitted). “Nevertheless, ” argues Defendant, “even if the ALJ should have addressed the treatment plan to elevate [Plaintiff's] leg and limit activity, any error was harmless because the ALJ does not leave this Court to ponder why he made the decision he did.” Id. at 8 (citation omitted). Defendant asserts that “the ALJ considered Plaintiff's left foot and ankle impairment.” Id. According to Defendant, “[r]emand for the ALJ to further consider Plaintiff's left heel spur and ankle impairment would not change the administrative outcome and would be a wasteful activity.” Id. at 9 (citation omitted).

         2. Applicable Law

         The Regulations[5] establish a “hierarchy” among medical opinions[6] 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 Fed.Appx. 919, 923 (11th Cir. 2006) (citing 20 C.F.R. § 404.1527(d)(1), (2), (5) (2006)). 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) ...


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