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Velazquez v. Commissioner of Social Security

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

September 23, 2019

Yamilet Dominguez Velazquez, Plaintiff,
Commissioner of Social Security, Defendant.


          Patricia D. Barksdale, United States Magistrate Judge.

         Yamilet Dominguez Velazquez brings this action under 42 U.S.C. § 1383(c)(3) to review a final decision of the Commissioner of Social Security denying her application for supplemental security income dated January 20, 2015. Under review is a decision by the Administrative Law Judge (“ALJ”) dated June 27, 2017. Tr. 25– 40. Summaries of the law and the administrative record are in the ALJ’s decision, Tr. 25–40, and the parties’ briefs, Docs. 16, 17, and not fully repeated here.

         The ALJ found Velazquez has severe impairments of fibromyalgia and spinal disorders. Tr. 27. The ALJ found she has the residual functional capacity (“RFC”) to perform light work with additional limitations.[1] Tr. 29. For the RFC, the ALJ rejected an opinion of Miguel Rosada, M.D., a doctor Velazquez saw at least six times in 2014 and 2015.[2] Tr. 323–47. Dr. Rosada’s opinion is in a “Fibromyalgia Medical Source Statement” he completed on June 8, 2015. Tr. 366–69. The statement contains limitations greater than the ALJ found, including that Velazquez would be off-task 25 percent or more in a typical workday and would miss more than four days of work a month if trying to work fulltime.[3] Compare Tr. 29 with Tr. 369. According to a vocational expert who testified at the administrative hearing, either limitation would eliminate all work for Velazquez. Tr. 63–66.

         After summarizing the medical records and analyzing Velazquez’s subjective complaints, the ALJ discussed the opinion evidence and stated she was giving “great weight” to mental RFC findings by state agency psychological consultants Maxine Ruddock, Ph.D., and Nancy Hinkeldey, Ph.D.; “great weight” to a consultative psychological examination by Susana Barsky, Ph.D; “some weight” to a physical RFC finding by Thomas Bixler, M.D. (rejecting his opinion Velazquez can perform medium work); and “little weight” to Dr. Rosada’s opinion. Tr. 33. For all but the latter opinion, the ALJ found the opinions were consistent or largely consistent with the evidence. Tr. 33. For the latter opinion, the ALJ explained:

Dr. Rosada’s opinion was overbroad and unsupported by the evidence and by his own treatment notes. For example, Dr. Rosada reported that the claimant would only be able to use her fingers for 5% of an eight-hour day, which is not supported by evidence of a hand disorder, motor weakness, or loss of grip strength. As his statements are not supported by the evidence, the undersigned gave little weight to Dr. Rosada’s opinion.

Tr. 33–34.

         Velazquez challenges the ALJ’s treatment of Dr. Rosada’s opinion, arguing she “unambiguously” satisfied her burden of establishing she is disabled through Dr. Rosada’s opinion and the ALJ’s evaluation of his opinion is “legally insufficient.” Doc. 16 at 5–19.

         A court reviews the Commissioner’s factual findings with deference and legal conclusions under close scrutiny. Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984). The Commissioner’s factual findings are conclusive if supported by substantial evidence, which is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal quotation marks and alteration omitted). The Commissioner’s “failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).

         An ALJ must consider medical opinions with other record evidence. 20 C.F.R. § 416.927(b).[4] In assessing the weight to give a medical opinion, an ALJ considers the examining relationship; the treatment relationship; the length of the treatment relationship and the frequency of examination; the nature and extent of the treatment relationship; supportability; consistency; specialization; and any other factor that supports or contradicts the opinion. Id. § 416.927(c)(1)–(6). An ALJ applies the same standards whether the medical opinion is from a treating physician, a consultative examiner, or a nonexamining, reviewing physician. Id. §§ 416.927(c), 416.913a(b)(1)–(2).

         An opinion of a treating specialist is entitled to the most weight, while an opinion of a non-examining, reviewing physician is entitled to the least weight. See 20 C.F.R. § 416.927(c)(1)–(2). “Of course, 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). But an ALJ may not substitute her own opinion on a medical issue for that of a medical expert. Graham v. Bowen, 786 F.2d 1113, 1115 (11th Cir. 1986); Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982).

         To facilitate meaningful review, an 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). “When electing to disregard the opinion of a treating physician, the ALJ must clearly articulate [her] reasons.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). A court will not affirm “simply because some rationale might have supported” the decision.” Owens, 748 F.2d at 1516. Good cause to give less weight to a treating source’s opinion exists if the evidence does not bolster the opinion, the evidence supports a contrary finding, or the opinion is conclusory or inconsistent with the treating source’s own records. Phillips, 357 F.3d at 1240. If finding inconsistencies, an ALJ should identify the inconsistencies. Perez v. Comm’r of Soc. Sec., 625 Fed.Appx. 408, 418 (11th Cir. 2015).

         Here, the ALJ stated the weight she was giving to Dr. Rosada’s opinion (“little weight”) and stated in general terms valid reasons for rejecting Dr. Rosada’s opinion (“unsupported by the evidence and by his own treatment notes”), providing a single example (a significant hand limitation despite no objective evidence of a hand impairment) from nearly forty sub-opinions in Dr. Rosada’s Fibromyalgia Medical Source Statement, Tr. 33–34.[5] See 20 C.F.R. § 416.927(c)(3) (supportability factor). But the ALJ did not clearly articulate how Dr. Rosada’s treatment notes or the remainder of the evidence fail to support Dr. Rosada’s opinion, and why they do is unclear considering fibromyalgia.

         Fibromyalgia is a “complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” Social Security Ruling 12-2p, 2012 WL 3104869, at *2 (July 25, 2012). “[T]he symptoms and signs … may vary in severity over time and may even be absent on some days.” Id. Fibromyalgia “often lacks medical or laboratory signs” and “is generally diagnosed mostly on [an] individual’s described symptoms.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). For fibromyalgia, a treating physician’s opinion interpreting the data may be even more valuable. Stewart v. Apfel, 245 F.3d 793 (table), No. 99-6132, 2000 U.S. App. LEXIS 33214, at *9 (11th Cir. Dec. 20, 2000) (unpublished). The absence of objective evidence alone is insufficient to reject a treating physician’s opinion about a claimant’s functional limitations for fibromyalgia. Somogy v. Comm’r of Soc. Sec., 366 Fed.Appx. 56, 64 (11th Cir. 2010).

         Focusing on Dr. Rosada’s opinion that Velazquez would be off-task 25 percent or more in a typical workday and would miss more than four days of work a month if trying to work fulltime, why the evidence or Dr. Rosada’s treatment notes fail to support that opinion is unclear. Velazquez’s activities and abilities (she can shop, drive, maintain self-care, perform light household chores, prepare simple meals, manage money, watch television, attend doctor’s appointments, take medications, provide information to healthcare providers, maintain a good rapport with healthcare providers, follow instructions of healthcare providers, get along with others, spend time with family and friends, live with others, and appropriately deal with authority, see Tr. 28) do not undermine Dr. Rosada’s opinion because none really speak to how long she can be on task during a typical workday or how many days a month she would have to miss if working fulltime. See Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997) (claimant’s participation in everyday activities of short duration is not inconsistent with treating physicians’ opinions about sit-stand-walk limitations during 8-hour workday). Dr. Barsky’s opinion does not undermine Dr. Rosada’s opinion because Dr. Barsky cautioned that her assessment concerned Velazquez’s “psychiatric functioning” without considering medical conditions that “may further impede her functioning.” Tr. 364. The records of ...

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