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Tobin v. Acting Commissioner of Social Security Administration

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

August 14, 2019

JON T. TOBIN, Plaintiff,



         THIS CAUSE is before the Court on Plaintiff's appeal of an administrative decision denying his applications for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”). Plaintiff alleges he became disabled on December 1, 2014. (Tr. 11, 121.) A video hearing was held before the assigned Administrative Law Judge (“ALJ”) on April 13, 2017, at which Plaintiff was represented by counsel. (Tr. 95-119.) The ALJ found Plaintiff not disabled from December 1, 2014, the alleged disability onset date, through December 4, 2017, the date of the decision.[2] (Tr. 19.)

         Plaintiff is appealing the Commissioner's decision that he was not disabled from December 1, 2014 through December 4, 2017. Plaintiff has exhausted his administrative remedies and the case is properly before the Court. Based on a review of the record, the briefs, and the applicable law, the Commissioner's decision is REVERSED and REMANDED.

         I. Standard

         The scope of this Court's review is limited to determining whether the Commissioner applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner's findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). 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 district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord 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 Commissioner's factual findings).

         II. Discussion

         Plaintiff raises two issues on appeal. First, he argues that the ALJ's finding that Plaintiff's epilepsy did not meet or medically equal the severity of Listing 11.02 of the Listing of Impairments in the Social Security Regulations was not supported by substantial evidence or based on adequate rationale. (Doc. 21 at 10.) Second, Plaintiff argues that the ALJ failed to properly weigh the medical opinions of record “at each step of the sequential evaluation process.” (Id. at 13.) Defendant, on the other hand, counters that (1) Plaintiff failed to meet his burden of establishing that his epilepsy met or medically equaled Listing 11.02, and (2) that the ALJ “properly considered and weighed the medical opinions of record.” (Doc. 22 at 4, 7.) The Court finds that a remand is required.

         A. Standard for Evaluating Opinion Evidence

         The ALJ is required to consider all the evidence in the record when making a disability determination. See 20 C.F.R. § 404.1520(a)(3), 416.920(a)(3). With regard to medical opinion evidence, “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). Substantial weight must be given to a treating physician's opinion unless there is good cause to do otherwise. See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).

         “‘[G]ood 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.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). When a treating physician's opinion does not warrant controlling weight, the ALJ must nevertheless weigh the medical opinion based on: (1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the medical evidence supporting the opinion, (4) consistency of the medical opinion with the record as a whole, (5) specialization in the medical issues at issue, and (6) any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6), 416.927(c)(2)-(6). “However, the ALJ is not required to explicitly address each of those factors. Rather, the ALJ must provide ‘good cause' for rejecting a treating physician's medical opinions.” Lawton v. Comm'r of Soc. Sec., 431 Fed.Appx. 830, 833 (11th Cir. 2011) (per curiam).

         Although a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion, see Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984) (per curiam), 20 C.F.R. § 404.1527(c)(2), 416.927(c)(2), “[t]he opinions of state agency physicians” can outweigh the contrary opinion of a treating physician if “that opinion has been properly discounted, ” Cooper v. Astrue, 2008 WL 649244, *3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ may reject any medical opinion if the evidence supports a contrary finding.” Wainwright v. Comm'r of Soc. Sec. Admin., 2007 WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curiam); see also Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (same).

         “The ALJ is required to consider the opinions of non-examining state agency medical and psychological consultants because they ‘are highly qualified physicians and psychologists, who are also experts in Social Security disability evaluation.'” Milner v. Barnhart, 275 Fed.Appx. 947, 948 (11th Cir. 2008) (per curiam); see also SSR 96-6p (stating that the ALJ must treat the findings of State agency medical consultants as expert opinion evidence of non-examining sources). While the ALJ is not bound by the findings of non-examining physicians, the ALJ may not ignore these opinions and must explain the weight given to them in his decision. SSR 96-6p.

         B. The ALJ's Findings

         At step two of the five-step sequential evaluation process,[3] the ALJ found that Plaintiff's epilepsy[4] was a severe impairment. (Tr. 13.) The ALJ also assessed Plaintiff's ankle impairment, but found it was not severe. (Tr. 14.) At the third step, the ALJ stated:

The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments . . . . No. treating or examining physician has indicated finding [sic] that would satisfy the severity requirements of any listed impairment. Particular attention was given to the listings in sections [sic] 11.02, but the available medical evidence did not demonstrate the specified criteria required of any listing.


         The ALJ then found that Plaintiff had the residual functional capacity (“RFC”) to perform a full range of work with the following non-exertional limitations: “He is limited to no climbing of ladders, ropes or scaffolds, all other postural limitations occasionally, and avoiding all exposure to hazards in the workplace.” (Id.) In assessing Plaintiff's RFC, the ALJ stated that he considered Plaintiff's symptoms, the objective medical evidence, and the opinion evidence. (Id.)

         The ALJ summarized Plaintiff's testimony as follows:

[H]e lives alone in a house. He testified he has a driver's license, but has not driven since 2013. He testified he relies upon his friends and sister for transportation. He testified he arises between 6:00[] a.m. and 7:00[] a.m. and is able to independently complete personal care. He testified he is able to prepare simple meals such as frozen dinners and deli meats. He testified he completes household chores such as laundry and vacuuming, but does not wash dishes. He testified he spends time during the day checking the weather, talking on the phone with his mother or friends, relaxing outside. He testified he goes shopping at Wal-Mart when his friends aren't too busy to take him. He testified he sleeps 2-3 hours at night because of his medications, and naps during the day.

(Id.) The ALJ also considered Plaintiff's testimony “that he had stopped working as a janitor at the Kennedy Space Center after 14 years due to seizures and ‘falling asleep a lot.'” (Id.) The ALJ continued:

He also testified that he has been diagnosed with seizures since age three and that his medications generally work to control his seizures. However, he feels he is unable to work because of medication side effects of amnesia, stuttering, shaking, and poor balance. He additionally testified to experiencing 6 seizures per day in the previous week, different from other seizures.


         After summarizing Plaintiff's testimony regarding his symptoms, daily routine, and alleged limitations, the ALJ concluded that Plaintiff's “medically determinable impairment could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning intensity, persistence[, ] and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in [the] decision.” (Tr. 15.)

         The ALJ noted that while Plaintiff's severe impairment of epilepsy is limiting, “he remains capable of work with no climbing of ladders, ropes, or scaffolds, [capable of performing] all other postural activities occasionally, and avoiding all exposure to hazards in the workplace.” (Id.) The ALJ noted that a large portion of Plaintiff's medical records are dated prior to the alleged onset date of December 1, 2014, and that Plaintiff “reported no seizures and generally denied any problems, as notated in the records through at least April 2015.” (Id.) The ALJ then summarized the medical evidence as follows:

In October 2015, the claimant complained of daily seizures over the previous 6 months with worsening [sic] stuttering. On examination, the claimant had normal orientation, speech and language. The claimant's medications were reviewed and adjusted, and Dr. Prusinski referred him for follow up with the Mayo clinic and recommended [a] routine one-year neurology follow up. (Ex. 4F/3) In August 2016, the claimant had his annual follow up and continued with no new neurological symptoms and normal orientation, speech and language. (Ex. 8F) In April 2017, he reported doing well, but also having at least 20 seizures. (Ex. 9F/1-4) In June 2017, Dr. Brogan [sic] primary care records [revealed] the claimant [sic] had normal findings on physical examination including 5/5 motor strength, no limb or joint pain, normal musculoskeletal range of motion and normal mental status findings. (Ex. 14F/1-3)

(Tr. 16.)

         The ALJ also assessed the third-party questionnaire completed by Plaintiff's sister, [5] Janell Tobin, dated May 20, 2015. (Id.) The ALJ noted that Ms. Tobin indicated that Plaintiff had suffered “more than 10 seizures in the previous 6 months, but admitted it is ‘hard to tell' because the claimant lives alone and independently.” (Id.) The ALJ also noted that Ms. Tobin “indicated the claimant's seizures have been controlled on medication since he was three years old, but believes he has more side effects and problems because he was recently switched to generic brand medications.” (Id.) Nevertheless, the ALJ found that Ms. Tobin's statements “were of little probative value to the extent [her] statements are inconsistent with the determination herein.” (Id.) The ALJ reasoned that Ms. Tobin “is not a medical professional and does not live with claimant. As a lay witness, [she] is not competent to make a diagnosis or argue the severity of the claimant's symptoms in relationship to his ability to work. The opinion of a layperson is far less persuasive on those same issues than are the opinions of medical professionals relied on herein.”[6] (Id.)

         The ALJ then briefly summarized the medical opinions of Christopher Prusinski, D.O., a treating neurologist, Terri-Ann Brogan, D.O., a treating physician, and Robert Whittier, M.D., a ...

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