DAVID A. BAKER, Magistrate Judge.
Plaintiff brings this action pursuant to the Social Security Act (the Act), as amended, Title 42 United States Code Section 405(g), to obtain judicial review of a final decision of the Commissioner of the Social Security Administration (the Commissioner) denying his claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits under the Act.
The record has been reviewed, including a transcript of the proceedings before the Administrative Law Judge (ALJ), the exhibits filed and the administrative record, and the pleadings and memoranda submitted by the parties in this case. Oral argument has not been requested.
For the reasons that follow, the decision of the Commissioner is
Plaintiff filed for a period of disability, DIB and SSI benefits on January 27, 2008. R. 113-17, 120-23. He alleged an onset of disability on November 8, 2006, due to pain in the lower back, right leg, knee, and hip. R. 54-56, 132, 162-166, 183. His application was denied initially and upon reconsideration. R. 58-61, 62-72. Plaintiff requested a hearing, which was held on September 9, 2009, before Administrative Law Judge Marc Mates (hereinafter referred to as "ALJ"). R. 24-52. In a decision dated October 16, 2009, the ALJ found Plaintiff not disabled as defined under the Act through the date of his decision. R. 11-23. Plaintiff timely filed a Request for Review of the ALJ's decision. R. 9. The Appeals Council denied Plaintiff's request on June 25, 2010. R. 5-8. Plaintiff filed this action for judicial review on October 25, 2010. Doc. No. 1.
Plaintiff was born on October 13, 1966 and was 40 years old on the alleged disability onset date and forty-three years old at the time of the hearing; had graduated from high school. R. 29, 168. Prior to November 8, 2006, the alleged onset date of disability. R. 113, 120. Plaintiff had worked as a laborer, as a brick layer, and as a roofer. R. 137-145, 163.
Plaintiff's medical history is set forth in detail in the ALJ's decision. Approximately twenty years prior to the onset date, Plaintiff was involved in a motorcycle accident and suffered (along with other injuries not relevant here) a fracture of the right femoral shaft, necessitating surgery and placement of a fixation rod in his right leg. R. 205-10, 217. For many years, Plaintiff did not have pain from this accident, however, around the beginning of 2008, he began to experience pain in the lower back, in the right leg from a cracked rod in the femur from the accident, in the knee, and hip; he also complained of high blood pressure and anxiety. R. 54-56, 132, 162, 164, 166, 183. After reviewing Plaintiff's medical records and Plaintiff's testimony, the ALJ found that Plaintiff suffered from complications of an internal orthopedic device (right femur) and spondylolisthesis of L5 upon SI, which were "severe" medically determinable impairments, but not impairments severe enough to meet or medically equal one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4. R. 17. The ALJ determined that Plaintiff retained the residual functional capacity (RFC) to perform sedentary work which does not involve climbing, although he can engage in all other postural activities, including stooping and crouching, on an occasional basis, with pushing and pulling of the lower extremities is also limited to occasional, and no more than moderate exposure to vibration and hazards. R. 17. In making this determination, the ALJ found that Plaintiff's statements regarding his limitations concerning the intensity, persistence, and limiting effects of his symptoms were not credible to the extent they were inconsistent with the ALJ's residual functional capacity assessment. R. 18. Based upon Plaintiff's RFC, the ALJ determined that he could not perform past relevant work. R. 21. Considering Plaintiff's vocational profile and RFC, the ALJ applied the Medical-Vocational Guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2, and, based on the testimony of the vocational expert ("VE"), the ALJ concluded that Plaintiff could perform work existing in significant numbers in the national economy as routing clerk, surveillance system monitor, and grader/sorter. R. 22. Accordingly, the ALJ determined that Plaintiff was not under a disability, as defined in the Act, at any time through the date of the decision. R. 22.
Plaintiff now asserts five points of error. First, he argues that the ALJ erred by by finding he had the RFC to perform sedentary work contrary to statements by his treating physician. Second, Plaintiff argues that the ALJ erred in failing to determine that the claimant suffered from the severe impairment of Spina Bifida Occulta. Third, he contends the ALJ erred by improperly applying the pain standard. Fourth, Plaintiff asserts that the ALJ erred in failing to consider the side effects of his medications. Fifth, he argues that the ALJ erred in evaluating his credibility. All issues are addressed, although not in the order presented by Plaintiff. For the reasons that follow, the decision of the Commissioner is
The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11
"If the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it." Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004). "We may not decide facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner.]" Id. (internal quotation and citation omitted). Dyer v. Barnhart, 395 F.3d 1206, 1210 (11
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant's impairments do not prevent his from doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering his residual functional capacity, age, education, and past work) prevent his from doing other work that exists in the national economy, then he is disabled. 20 C.F.R. § 404.1520(f).
Plaintiff argues that the medical evidence showed he suffered from a severe impairment resulting from spina bifida occulta because this condition resulted in significant limitations, and the impairment was well-documented. The Commissioner argues that the ALJ did not err because he found a severe impairment in Plaintiff's lower back (R. 17), even if it was for lumbar spondylolistheses and not spina bifida occulta, and he continued in the analysis to consider Plaintiff's impairments in the next step in the evaluation process.
At Step 2 of the five-step evaluation process, the ALJ is called upon to determine whether a claimant's impairments are severe. By definition, this inquiry is a "threshold" inquiry. It allows only claims based on the most trivial impairments to be rejected. In this Circuit, an impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience. A claimant need show only that his impairment is not so slight and its effect not so minimal. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).
There are ample complaints of back pain from Plaintiff in the record. An x-ray of Plaintiff's lumbar spine on January 25, 2008 revealed an incomplete fusion of the ossification centers of the left transverse process at L1 and an incomplete fusion of the posterior elements of L5; and there was grade 1/2 spondylolistheses of L5/S1 and narrowing of the disc space. R. 231. An x-ray of the pelvis also indicated an incomplete fusion of the posterior elements of L5 and a fracture intramedullary rod within the femur; however there were no abnormalities in the pelvis or hip. R. 232-33. During an exam on February 27, 2008, orthopedic surgeon Jack R. Steel, M.D., diagnosed Plaintiff with spina bifida occulta and complication of an internal orthopedic device in his right femur. R. 235.
The finding of any severe impairment, based on either a single impairment or a combination of impairments, is enough to satisfy step two because once an ALJ proceeds beyond step two, he is required to consider the claimant's entire medical condition, including impairments an ALJ determined were not severe. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987); see also Phillips, 357 F.3d at 1238. The ALJ must make specific and well-articulated findings as to the effect of the combination of all of the claimant's impairments. Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984). However, a clear statement that an ALJ considered the combination of impairments constitutes an adequate expression of such findings. See Jones v. Dep't of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991).
In this case, although the ALJ did not find Plaintiff had a severe impairment of spina bifida occulta — or even mention it separately — the ALJ did find that Plaintiff's spondylolistheses of L5/S1 of the lumbar spine was severe and caused Plaintiff some limitations (i.e., to sedentary work with postural limitations) from pain in Plaintiff's lower back. Moreover, although Dr. Steel diagnosed Plaintiff with spina bifida occulta, he did not prescribe any specific restrictions or limitations based on that diagnosis, and instead focused on the broken rod in Plaintiff's femur that was causing hip pain. Doc. 235. Even assuming the ALJ erred when he concluded Plaintiff's spina bifida occulta was not severe a impairment, that error was harmless because the ALJ progressed to the next step in the five-step evaluation process and considered all of Plaintiff's impairments in combination — including his lower back restrictions—at later steps in the evaluation process. See R. 17-20.
Plaintiff argues that the ALJ in determining that the claimant has the residual functional capacity to perform sedentary work when Plaintiff's treating physician, Dr. Velleff, indicated Plaintiff had a more restrictive residual functional capacity, and no other examining physician indicated that the claimant had the residual functional capacity as determined by the ALJ. The Commissioner argues that the ALJ is not confined to simply adopting a treating physician's opinions and the ALJ properly gave little weight to the limitations opined by Dr. Velleff.
Residual functional capacity is an assessment based on all relevant evidence of a claimant's remaining ability to do work despite his impairments. 20 C.F.R. § 404.1545(a); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The focus of this assessment is on the doctor's evaluation of the claimant's condition and the medical consequences thereof. Id.
While it is true, as the Commissioner argues, that the ALJ determines Plaintiff's RFC, he must give substantial weight to the opinion, diagnosis and medical evidence of a treating physician unless there is good cause to do otherwise. See Lewis, 125 F.3d at 1440; Edwards, 937 F.2d at 583; 20 C.F.R. §§ 404.1527(d), 416.927(d). If a treating physician's opinion on the nature and severity of a claimant's impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Where a treating physician has merely made conclusory statements, the ALJ may afford them such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986); see also Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987).
From late January to March 2008, Plaintiff was treated at KDMC Family Care Center for complaints of right knee, hip and back pain. R. 237-38. On February 27, 2008, Dr. Steel reviewed the x-rays and told Plaintiff that "removal of the prominent proximal rod will alleviate the symptoms of discomfort at the lateral hip. Removal of the distal portion of the rod would be difficult since the nail is broken. He is primarily interested in the prominent proximal rod and would feel more secure if the remainder of the rod were left in place. The surgery would be done as an outpatient. He would probably need to use his cane post-op in the left hand for awhile post op." R. 235-36. Dr. Steel discussed the risks and benefits of removing the broken rod from the right femur and Plaintiff was unsure if he wanted to have the rod removed. R. 235.
On March 5, 2008, James Aphrem, D.O., reviewed Dr. Steel's report, prescribed pain medication, and referred Plaintiff to pain management. R. 238. A week later, Plaintiff presented to Thomas K. Velleff, M.D., for complaints of lower back pain, right leg pain, and status-post rod problems in the right leg. R. 285. Dr. Velleff noted the broken rod needed to be removed; he also prescribed medications, and recommended that Plaintiff follow up with an orthopedic physician for removal of the rod. R. 286. From April to September 2008, Plaintiff saw Dr. Velleff five more times. R. 287-92. At that time, Dr. Velleff prescribed medications, but did not limit Plaintiff in any activities. R. 285-91. Eleven months later, on August 19, 2009, Dr. Velleff, filled out a form entitled "Medical Opinion Re: Ability To Do Work-Related Activities (Physical)
The ALJ discounted Dr. Velleff's opinion:
R. 19-20.
Plaintiff contends that the ALJ erred in discounting Dr. Vellef's opinion because there was objective medical evidence of Plaintiff's impairment
The Commissioner argues that the ALJ properly discounted Dr. Velleff's opinion because, significantly, he had not treated or evaluated Plaintiff for almost one year at the time that he completed the "checkbox/fill-in-the-blank" form indicating severe functional restrictions. R. 294-96. The Commissioner cites the ALJ's determination that Dr. Velleff "offered very little support or explanation for the severe limitations opined in this form and because they were "inconsistent with the record as a whole." R. 19. The Commissioner also argues that, as noted by the ALJ (R. 19), the severe limitations opined by Dr. Velleff were inconsistent with the weight of the record evidence as a whole. The Commissioner also argues that the ALJ properly gave little weight to the limitations opined by Dr. Velleff based on benign physical exam findings, including normal gait, normal muscle bulk/contour/tone, the absence of any lumbar pain/spasm/tenderness, and a negative straight leg raise test (R. 220-28), and argues that there is no disc herniation, even though Dr. Velleff indicated that there was on the form he completed. R. 295.
The ALJ's rejection of Dr. Velleff's opinion, and implicit discounting of Dr. Steel's remarks that the "removal of the distal portion of the rod would be difficult because of the broken nail," i.e., that it was possible that it would never be removed, was not based on substantial evidence. The ALJ concluded that "[a]side from the broken intramedullary rod, studies have shown the fracture to be well-healed," and there was no problem with Plaintiff's pelvis. R. 20. However, that does not negate the fact that there was objective medical evidence of a condition that Dr. Steel and Dr. Velleff opined was causing Plaintiff significant pain to warrant the suggested surgery. Plaintiff testified that Dr. Steel told him that surgery possibly would help. R. 38. He told
Plaintiff he could do surgery on the femur and take the top of it out, but "more than likely it would shatter the bone" so he would have to go in and replace the whole femur." R. 38. Dr. Steel told Plaintiff that surgery on the top part "might help with a little bit of" the hip pain but "no guarantee," and would not affect the back pain. R. 39. Dr. Steel said that the surgery to replace the whole femur would cost $50,000; the more simple operation just to replace the top broken piece (with no guarantee of success) would cost $5,000. R. 39-40. Plaintiff could not afford even the less expensive surgery. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) ("While a controllable medical condition is generally not disabling, if the claimant cannot afford the treatment and can find no way to obtain it, poverty may excuse the non-compliance."). The ALJ failed to even comment on Plaintiff's inability to afford the surgery that was the central underpinning to the ALJ's finding that Plaintiff failed to "pursue more aggressive treatment." R. 20. The ALJ also discounts the severity of the broken rod in Plaintiff's femur because "there is also no evidence of leg length discrepancy" (citing Ex. 6F - R. 235-36) even though no physician cited that as evidence Plaintiff was not impaired or limited. The ALJ's decision is not supported by substantial evidence. To the extent there is some question about Dr. Velleff's opinion because he has "discipline on file" with the State of Florida (R.297), the ALJ may order a consultative examination with a different physician, such as an orthopedic surgeon without a problematic record, on remand.
To the extent Plaintiff argues that the ALJ erred in stating Plaintiff's restrictions concerning exposure to vibration and hazards
Plaintiff asserts that the ALJ erred in evaluating his leg and hip pain and by finding his subjective complaints credible only to the extent they are not inconsistent with the RFC as determined by the ALJ. R. 18. The Commissioner again argues that benign examination findings in Plaintiff's lower back and the availability of surgery to fix the pain in Plaintiff's leg/hip negate his statements regarding limitations.
Pain is a non-exertional impairment. Foote v. Chater, 67 F.3d 1553, 1559 (11
Foote, 67 F.3d at 1560, quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11
The ALJ did not refer to the Eleventh Circuit's pain standard since Plaintiff's case was handled in the West Virginia area (where he first filed it); however, the ALJ did cited the applicable regulations and Social Security Rulings. R. 17. The ALJ discussed in pertinent part Plaintiff's hip and femur issues without really discounting their severity, except to the extent Dr. Steel had recommended surgery and Plaintiff did not pursue the surgery:
In addition, the record includes diagnostic studies suggesting grade 1 to 2 spondylolisthesis of L5 upon S1 and a narrowed LS/S1 disk space (Exhibit SF). A January 2008 progress note reflects claimant's report of back pain, but no leg pain or muscle weakness (Exhibit 2F). On physical examination, he had no tenderness to palpation of the lumbosacral spine, no pain, no muscle spasm, negative straight leg raising tests, and normal posture and gait. Accordingly, Maria Sy, M.D., recommended NSAIDs, heat, and physical therapy as needed. In light of these findings, partial credibility is afforded to claimant's subjective reports of pain and limitation to the extent consistent with the residual functional capacity described above. However, for reasons set forth below, the evidence supports a finding that despite some impairment and residual limitation, claimant retains the ability to engage in a reduced range of work activity.
R. 18-19 (emphasis added).
Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Jones v. Dep't of Health and Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991) (articulated reasons must be based on substantial evidence). A reviewing court will not disturb a clearly articulated credibility finding with substantial supporting evidence in the record. Foote, 67 F.3d at 1561-62; Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988).
As explained above, the ALJ's findings regarding limitations from Plaintiff's femur/hip impairment was not based on substantial evidence. Similarly, the ALJ's discounting of Plaintiff's credibility as to his hip pain due to the broken rod in his femur, and his inability to afford the surgery to repair it, was not based on substantial evidence. On remand, the ALJ will properly apply the Eleventh Circuit pain standard in deciding Plaintiff's credibility regarding the non-exertional impairment of pain.
Accordingly, the Court
