WILLIAM E. CASSADY, Magistrate Judge.
Social Security Claimant/Plaintiff Leah Deanne Boutwell brought this action under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Defendant Commissioner of Social Security (the "Commissioner") denying her applications for a period of disability ("PoD") and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 19 ("In accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties in this case consent to have a United States Magistrate Judge conduct any and all proceedings in this case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings.")).
Upon consideration of the briefs of the parties, (Docs. 13 & 16), the administrative record, (Doc. 12), (hereinafter cited as "(R. [page number(s) in lower-right corner of transcript])"), and after hearing from the attorneys at oral argument, it is determined that the Commissioner's decision is due to be
Boutwell completed high school in 1985 and, then, attended clerical school in 1986. (R. 255). In October 1987, Boutwell began a data entry job with a bookkeeping firm for which she performed "data entry," "ran reports," and "ran payroll" for seven hours per day, five days per week. (R. 255-56). Boutwell worked for the same bookkeeping firm until April 2009, when she was "laid off" due to a downturn in the economy. (R. 254).
On April 27, 2012, Boutwell filed a Title II application for a PoD and DIB with the Social Security Administration (the "SSA"),
Boutwell requested review of the ALJ's decision by the Appeals Council for the SSA's Office of Disability Adjudication and Review. (R. 15). The Appeals Council denied Boutwell's request for review on September 10, 2015, which made the ALJ's the final decision of the Commissioner. (R. 1-7). On November 13, 2015, Boutwell filed this action pursuant to § 405(g)
"In Social Security appeals, [the Court] must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations and internal quotations omitted). The Court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]." Id. (citations omitted). "Even if the evidence preponderates against the Commissioner's findings, [the Court] must affirm if the decision reached is supported by substantial evidence." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); and Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). "Yet, within this narrowly circumscribed role, [the Court does] not `act as automatons.'" Bloodsworth, 703 F.2d 1233, 1239 (11th Cir. 1983) (citing Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L. Ed. 2d 452 (1982)). The Court "must scrutinize the record as a whole, [Ware, 651 F.2d at 411]; Lewis v. Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975), to determine if the decision reached is reasonable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), and supported by substantial evidence, Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. 1981)." Bloodsworth, 703 F.2d at 1239.
"In contrast to the deferential review accorded to the [Commissioner's] findings of fact, the [Commissioner's] conclusions of law, including applicable review standards are not presumed valid." Martin, 894 F.2d at 1529 (citing MacGregor, 786 F.2d at 1053; Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983), Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982); Smith v. Schweiker, 646 F.2d 1075, 1076 (5th Cir. Unit A June 1981). "The [Commissioner's] failure to apply the correct legal standard or to provide the reviewing court with sufficient basis for a determination that proper legal principles have been followed mandates reversal." Martin, 894 F.2d at 1529 (citing Gibson v. Heckler, 779 F.2d 619, 622 (11th Cir. 1986); Bowel v. Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984); Smith, 707 F.2d at 1285; Wiggins, 679 F.2d at 1389; Ambers v. Heckler, 736 F.2d 1467, 1470 (11th Cir. 1984)).
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Phillips v. Barnhart, 357 F.3d 1232, at 1237-39 (11th Cir. 2004)).
1. "The Commissioner's decision should be reversed because the ALJ erred in not giving adequate weight to the opinion of Ms. Boutwell's treating physician, Daniel K. Stubler, M.D." (Doc. 13, at 3).
"At the first step, the ALJ must consider the claimant's current working situation. If the claimant is `doing substantial gainful activity, [the ALJ] will find that [the claimant is] not disabled.'" Phillips, 357 F.3d at 1237 (alterations in original) (quoting 20 C.F.R. § 404.1520(a)(4)(i) & (b). "If however, the claimant is not currently `doing gainful activity' then the ALJ moves on to the second step." Phillips, 357 F.3d at 1237. At the first step, the ALJ determined that Boutwell had "not engaged in substantial gainful activity since May 14, 2009, the alleged onset date." (R. 23).
Phillips, 357 F.3d at 1237 (alterations in original). At Step Two, the ALJ determined that Boutwell had the following severe impairments: "possible fibromyalgia, myalgia, menstrual migraine, hypertension, degenerative disc disease lumbar spine, and depression." (R. 23).
Phillips, 257 F.3d at 1238 (alterations in original). At Step Three, the ALJ found that Boutwell "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. §§ 404.1520(d), 404.1525, & 404.1256. (R. 23).
Phillips, 357 F.3d at 1238-39 (alterations in original) (footnote omitted). At the fourth step, the ALJ assessed that Boutwell had the RFC:
(R. 25). Based on Boutwell's RFC assessment, the ALJ determined that Boutwell was "unable to perform any past relevant work." (R. 29).
Phillips, 357 F.3d at 1239-40 (footnotes omitted). At step five, the ALJ determined that, given Boutwell's RFC, age, education, and work experience, "there are jobs that exist in significant numbers in the national economy that [Boutwell] can perform" based on the testimony of the vocational expert, who opined that, based on Boutwell's limitations, she could perform the jobs of silver wrapper, router, and ticket seller. (R. 29-30). Accordingly, the ALJ found that Boutwell "has not been under a disability, as defined in the Social Security Act, from May 14, 2009, through the date of [the ALJ's] decision." (R. 30).
"`Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairments(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairments(s), and [the claimant's] physical or mental restrictions.'" Winschel, 631 F.3d at 1178-79 (alterations in original) (quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)). "The law of this circuit is clear that the testimony of a treating physician must be given substantial or considerable weight unless `good cause' is shown to the contrary." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citations omitted); see also 20 C.F.R. 404.1527(d)(2) ("Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations."). "`[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, 357 F.3d at 1240-41. "When electing to disregard the opinion of a treating physician, the ALJ must clearly articulate its reasons." Id. at 1241. "Where the ALJ articulate[s] specific reasons for failing to give the opinion of a treating physician controlling weight, and those reasons are supported by substantial evidence, there is no reversible error." Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
Winschel, 631 F.3d at 1179 (alterations in original).
Boutwell argues that the ALJ reversibly erred in not giving adequate weight to the opinion of Boutwell's treating physician, Daniel K. Stubler, M.D. Discharging the requirement that she "state with particularity the weight given to different medical opinions and the reasons therefor[,]" Winschel, 631 F.3d at 1179, the ALJ assigned weight to the opinions of Dr. Stubler, which were stated in a Clinical Assessment of Pain form dated 10/31/2012, (R. 324 [SSA Ex. 6F]), a Medical Evidence of Record form dated 10/31/2012, (R. 326-28 [SSA Ex. 7F]), and a Physical Capacity Evaluation form dated 10/31/2012, (R. 329 [SSA Ex. 8F]), and the reasons therefor as follows:
(R. 28-29).
Thus, the ALJ determined that Dr. Stubler's opinions were not bolstered by the evidence and were inconsistent with the doctor's own medical records. Boutwell argues that "[t]he ALJ's reasons for discrediting Dr. Stubler's opinions are not based on substantial evidence." (Doc. 13, at 5). The reasons stated for the ALJ's decision to assign little weight to Dr. Stubler's opinions of Boutwell's physical impairments include the fact that she received "limited and conservative treatment for [her] complaints," (R. 28), her "treatment was limited to medication management, and her objective findings were mild," (R. 28), and she "was able to continue a wide range of daily activities, including activities such as riding a 4-wheeler," (R. 28).
In a Clinical Assessment of Pain form dated 10/31/2012, Dr. Stubler opined that the extent of Boutwell's pain is intractable and virtually incapacitating; physical activity such as walking, standing, sitting, bending, stooping, moving of extremities, etc., will increase the degree of pain experienced by Boutwell to such an extent that bed rest and/or medication is necessary; and the side effects of prescribed medication on Boutwell's ability to perform work would be expected to be severe and would limit her effectiveness due to distraction, inattention, drowsiness, etc. (R. 324 [SSA Ex. 6F]). In a Physical Capacity Evaluation form dated 10/31/2012, Dr. Stubler opined that Boutwell could be expected to carry ten pounds, occasionally, to five pounds, frequently; she could sit for one hour and stand or walk for one hour during an eight-hour work day; she did not require an assistive device to ambulate in a normal workday; she could never perform tasks that would require gross manipulation (grasping, twisting, and handling) and working with or around hazardous machinery; she could rarely (1% to 5% of an 8-hour working day) perform tasks that would require pushing and pulling movements (arm and/or leg controls), climbing (stairs or ladders) and balancing, fine manipulation (finger dexterity), bending and/or stooping movements, reaching (including overhead), and operating motor vehicles; she could occasionally (6% to 33% of an 8-hour working day) perform tasks that would involve environmental problems (allergies, dust, etc.); and, as a result of the impairments of treatment, she would likely be absent from work more than four days per month. (R. 329 [SSA Ex. 8F]).
At a hearing before the ALJ on August 21, 2013, Boutwell testified that with medication, on an average day, on a pain scale from zero (no pain) to ten (unbearable pain), she experiences pain that she rates as a seven; and on a bad day, she experiences pain that she rates as a ten, but she does not go to the emergency room as a result. (R. 64). Boutwell testified that she has migraine headaches, for which she takes medication, seven to nine days per month that cause her to "go to bed." (R. 59). Further, Boutwell testified that a side effect of her medications is she takes a one and one-half hour nap, every day. (R. 64).
Despite Boutwell's description of the pain that she experiences, in 2011, she was capable of "riding a 4-wheeler" that resulted in her spraining her back, according to Dr. Stubler's medical records. (R. 334 [SSA Ex. 9F]). Boutwell, also, testified that she was capable of walking for twenty minutes; standing for twenty minutes; sitting for twenty minutes; lifting up to fifteen pounds; performing some personal errands such as grocery shopping, banking, driving twice a week; climbing a set of stairs; bending over to pick up a dropped item but not repeatedly; gripping a coffee cup or opening a door knob; feeling with her fingertips but not on her right hand due to a stroke that occurred years prior; picking up small items from a table; making herself a small meal; bathing and dressing herself; performing housework such as washing dishes and clothes but not ironing, sweeping, mopping, or vacuuming; making her bed; and going to social gatherings and visiting with people. (R. 60-62). Boutwell requires breaks while performing household chores and other tasks. (R. 63).
However, Boutwell did not testify to the fact that these physical activities increased the degree of pain that she experienced to such an extent that she requires bed rest and/or medication, in contrast to Dr. Stubler's opinion in a Clinical Assessment of Pain form dated 10/31/2012, (R. 324 [SSA Ex. 6F]). The diversity of Boutwell's physical activities and capabilities to which she testified to being able to perform contrast with Dr. Stubler's opinions as to her physical capacities in the Physical Capacity Evaluation form. (R. 329 [SSA Ex. 8F]). For example, Dr. Stubler's opinion that Boutwell could never perform tasks that would require gross manipulation and working with or around hazardous machinery, (R. 329 [SSA Ex. 8F]), contrasts with Boutwell's testimony that she operates a motor vehicle twice a week. (R. 60). The severity of Boutwell's pain opined by Dr. Stubler in a Clinical Assessment of Pain form, (R. 324 [SSA Ex. 6F]), to be intractable and incapacitating is not supported by Boutwell's testimony that she can and does perform an array of physical activities, (see R. 60-62).
The severity of the pain that Boutwell experiences is, also, obscured by the fact that Dr. Stubler did not diagnose her with fibromyalgia. Dr. Stubler's medical records indicate that Boutwell had a diagnosis of myofascial pain syndrome and/or early fibromyalgia on February 18, 2008, (R. 337 [SSA Ex. 10F]), and May 14, 2009, (R. 336 [SSA Ex. 10F]). Boutwell's diagnosis was changed to probable fibromyalgia beginning on September 20, 2011, (R. 334 [SSA Ex. 9F]), and remained after visits on March 19, 2012, (R. 333 [SSA Ex. 9F]), September 19, 2012, (R. 332 [SSA Ex. 9F]), and March 19, 2013, (R. 331 [SSA Ex. 9F]). Social Security Ruling, SSR 12-2p
A review of Boutwell's medical records does not reveal to the Court a marked episode of debilitating pain or any need for emergency care. In fact, Dr. Stubler's treatment of Boutwell's complaints of pain was limited to medication management as described in the ALJ's summary of Boutwell's medical records.
The reasons stated by the ALJ for her decision to assign little weight to Dr. Stubler's opinions in regard to Boutwell's mental health issues include the fact that Boutwell received "limited and conservative mental health treatment," (R. 29), she "has not sought emergency treatment, nor has she sought mental health counseling," (R. 29), she "participates in a wide range of daily activities," (R. 29), and the RFC "finding [her] able to perform unskilled work fully accommodates [her] mental health issues," (R. 29).
In a mental health evaluation form dated 10/31/2012, Dr. Stubler classified as mild (suspected impairment of slight importance which does not affect ability to function) the degree of impairment of Boutwell's ability to ask simple questions or requests, get along with co-workers or peers, sustain a routine without special supervision, and be aware of normal hazards and take appropriate precautions. (R. 326-28 [SSA Ex. 7F]). Dr. Stubler classified as moderate (an impairment which affects but does not preclude ability to function) the degree of impairment of Boutwell's ability to understand, remember, and carry out simple instructions; to understand, remember, carry out repetitive tasks; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; respond appropriately to supervision; and respond appropriately to changes in the work setting. (R. 326-28 [SSA Ex. 7F]). Dr. Stubler classified as marked (an impairment which seriously affects ability to function) the degree of impairment of Boutwell's ability to appropriately interact with the general public, constriction on her interests, deterioration in her personal habits, maintain attention and concentration for extended periods, and make simple work-related decisions. (R. 326-28 [SSA Ex. 7F]). Dr. Stubler classified as extreme (extreme impairment of ability to function) the degree of restriction of Boutwell's daily activities, e.g., ability to attend meetings (church, school, lodge, etc.), work around the house, socialize with friends and neighbors, etc.; understand, remember, and carry out complex instructions; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and respond to customary work pressures. (R. 326-28 [SSA Ex. 7F]). Finally, Dr. Stubler opined that the levels of Boutwell's impairments could be expected to last twelve months or longer. (R. 328 [SSA Ex. 7F]).
Despite Dr. Stubler's findings, according to Boutwell in her testimony, he did not provide mental heath counseling and limited his mental health treatment of her to medication management. (R. 66 & & 331-37 [SSA Exs. 9F & 10F])). In contrast to Dr. Stubler's opinion that Boutwell, due to impairment, is extremely restricted in her daily activities, she testified to performing a variety of physical activities, with limitations, including visiting her family and household chores. (R. 60-62).
Dr. Stubler's opinions as to the degree of Boutwell's mental impairments do not align with the observations of Dr. Kimberly Witchard, a licensed psychologist, who performed a disability evaluation of Boutwell on June 18, 2012, specifically, a mental status exam. (R. 310-14 [SSA Ex. 2F]). Boutwell reported to Dr. Witchard that she had fibromyalgia and that her whole body hurt; her reported symptoms of depression included crying spells, low energy and fatigue due to the fibromyalgia, poor concentration, feelings of helplessness, and sleep disturbance; and her reported symptoms of anxiety included racing heart, nausea, and worry. (R. 310 [SSA Ex. 2F]). Dr. Witchard's mental status exam of Boutwell found that she presented as having good grooming and hygiene, her behavior was within normal limits, her mood was euthymic, her affect was appropriate, and she exhibited direct eye contact. (R. 312 [SSA Ex. 2F]). Dr. Witchard, also, found that Boutwell's speech was within normal limits; her thought processes were intact; she was alert and oriented to person place, date, time, and situation; as to concentration and attention, she was able to perform "serial 4's" but not "serial 7's," she calculated one of three multiplication questions, and was able to calculate two of two simple word problems; she performed memory tests; and she responded to questions designed to probe her level of abstraction, judgment, and her fund of information. (R. 313 [SSA Ex. 2F]). Dr. Witchard concluded, "[b]ased upon her use of language, reported history, and answers to the mental status items, her level of intellectual functioning appears to be in the Average range of ability" and that "[s]he will not need assistance in managing her own funds." (R. 314 [SSA Ex. 2F]). As to Boutwell's judgment and insight, Dr. Witchard concluded "her insight and judgment were good" and diagnosed her with depressive disorder and anxiety disorder and opined that her "prognosis is good if her physical problems can be treated." (R. 314 [SSA. Ex. 2F]).
Therefore, the Court finds good cause for the ALJ's decision to not accord substantial or considerable weight to the testimony of Boutwell's treating physician, Dr. Stubler, set forth in a Clinical Assessment of Pain form dated 10/31/2012, (R. 324 [SSA Ex. 6F]), a Medical Evidence of Record form dated 10/31/2012, (R. 326-28 [SSA Ex. 7F]), and a Physical Capacity Evaluation form dated 10/31/2012, (R. 329 [SSA Ex. 8F]), and the ALJ's reasons for her decision are supported by substantial evidence. Accordingly, the Court
In accordance with the foregoing analysis, it is
Final judgment shall issue separately in accordance with this Order and Rule 58, FED. R. CIV. P.
. . .
A. The 1990 ACR [(American College of Rheumatology)] Criteria for the Classification of Fibromyalgia. Based on these criteria, we may find that a person has an MDI of FM if he or she has all three of the following:
1. A history of widespread pain — that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back) — that has persisted (or that persisted) for at least 3 months. The pain may fluctuate in intensity and may not always be present.
2. At least 11 positive tender points on physical examination (see diagram below). The positive tender points must be found bilaterally (on the left and right sides of the body) and both above and below the waist.
a. The 18 tender point sites are located on each side of the body at the: occiput (base of the skull); low cervical spine (back and side of the neck); trapezius muscle (shoulder); supraspinaturs muscle (near the shoulder blade); second rib (top of the rib cage near the sternum or breast bone); lateral epicondyle (outer aspect of the elbow); gluteal (top of the buttock); greater trochanter (below the hip); and inner aspect of the knee.
b. In testing the tender-point sites, the physician should perform digital palpation with an approximate force of 9 pounds (approximately the amount of pressure needed to blanch the thumbnail of the examiner). The physician considers a tender point to be positive if the person experiences any pain when applying this amount of pressure to the site.
3. Evidence that other disorders that could cause the symptoms or signs were excluded. Other physical and mental disorders may have symptoms or signs that are the same or similar to those resulting from FM. Therefore, it is common in cases involving FM to find evidence of examinations and testing that rule out other disorders that could account for the person's symptoms and signs. Laboratory testing may include imaging and other laboratory tests (for example, complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor).
B. The 2010 ACR Preliminary Diagnostic Criteria. Based on these criteria, we may find that a person has an MDI of FM if he or she has all three of the following criteria:
1. A history of widespread pain (see section II. A. 1.);
2. Repeated manifestations of six or more FM symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems ("fibro fog"), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome; and
3. Evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded.
77 F.R. 43641-42 (footnotes omitted).
. . .
(b) Publication of rulings. Although not required pursuant to 5 U.S.C. 552(a)(1) and (a)(2), we publish the following rulings in the Federal Register as well as by other forms of publication:
(1) We publish Social Security Rulings in the Federal Register under the authority of the Commissioner of Social Security. They are binding on all components of the Social Security Administration. These rulings represent precedent final opinions and orders and statements of policy and interpretations that we have adopted.
Medical records reflect that the claimant next sought medical treatment in September 2011 when she again saw Dr. Stubler. (Exhibit 9F). The September 2011 examination note references a visit on March 2011. (Exhibit 9F). Since that time, Dr. Stubler noted that the claimant had sprained her back riding a 4-wheeler. The claimant requested Xanax for her fibromyalgia-type symptomology. She reported no other complaints at the time. Dr. Stubler refilled her Vicoprofen and Ultracet and prescribed Xanax. (Exhibit 9F). Subsequently, the claimant sought treatment in March 2012, requesting to increase her Xanax because of family related stress. Dr. Stubler refilled the claimant's Ultracet, Vicoprofen, Soprol XL, Singulair, Paxil, Imitrex, and Neurontin. The claimant reported an increase in headaches, so Dr. Stubler gave her a Sumavel injection for her headaches. Her blood pressure was 149/111. Dr. Stubler increased claimant's Xanax at her request. (Exhibit 9F). The claimant returned for treatment with Dr. Stubler in September 2012. (Exhibit 9F). She reported nighttime incontinence issues, but no other complaints. Her blood pressure was 120/70. Dr. Stubler refilled the claimant's Vicoprofen, Paxil, Ultracet, and Flexeril. (Exhibit 9F). Dr. Stubler advised the claimant to follow up in 6 months. The claimant returned for treatment in March 2013, stating that she was overall doing well. (Exhibit 9F). Dr. Stubler refilled the claimant's Vicoprofen and advised her to return in 6 months. (Exhibit 9F)."
(R. 26-27).
