ROY B. DALTON, Jr., District Judge.
In this social security appeal, U.S. Magistrate Judge Gregory J. Kelly recommends that the Court affirm the Commissioner's decision to deny Plaintiff disability benefits. (Doc. 19.) Plaintiff filed objections to the Report and Recommendation (Doc. 20), and Defendant responded (Doc. 21). For the reasons set forth below, the decision of the Commissioner is due to be affirmed and the Report and Recommendation is due to be adopted.
The instant action implicates an eleven-year procedural history. (See Doc. 18, pp. 1-2.) To be sure, Plaintiff first filed his application for social security disability benefits on March 15, 2006. (Id. at 1.) Since that time, Plaintiff has appealed the Commissioner's denial of benefits three times. (Id. at 1-2.)
The Commissioner initially denied Plaintiff's first claim on August 23, 2006, and then upon reconsideration. (Id. at 1.) After Plaintiff requested and received a hearing, an administrative law judge ("
The same ALJ conducted a second administrative hearing on February 15, 2011, and again found that Plaintiff was not disabled ("
Pursuant to the Remand Order, a new administrative hearing was held on April 1, 2015—this time before a different ALJ. (Doc. 18, p. 2.) On June 26, 2015, the ALJ issued an unfavorable decision on Plaintiff's claim for disability benefits ("
When a party objects to a magistrate judge's findings, the district court must "make a de novo determination of those portions of the report . . . to which objection is made." 28 U.S.C. § 636(b)(1). The district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. The district court must consider the record and factual issues based on the record independent of the magistrate judge's report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990).
In social security appeals, a reviewing court "must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. In conducting such review, a court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Id. "Even if the evidence preponderates against the Commissioner's findings, [the reviewing court] must affirm if the decision is supported by substantial evidence." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
In this appeal, Plaintiff alleges that the Commissioner failed to comply with the Remand Order in arriving at the Third Decision. (See Doc. 18, pp. 11-17, 21-27.) Specifically, Plaintiff contends that the Commissioner: (1) failed to apply the correct legal standards to the medical opinions of Plaintiff's treating and non-treating physicians; and (2) improperly discredited the VE's testimony that two or more moderate limitations would preclude Plaintiff from gainful employment. (Id.) Magistrate Judge Kelly disagrees with each of these purported errors and recommends that the Court affirm the Commissioner's decision. (Doc. 19.) Because Plaintiff's Objection is premised on the ALJ's alleged failure to comply with the Directive in the Remand Order (Doc. 20), the Court must review the relevant legal standards in tandem with the findings and conclusions reached in Hourihan I.
On Plaintiff's first appeal to this district court, Magistrate Judge Kelly and District Judge Honeywell each concluded that the hypothetical question posed to the VE during the second administrative hearing did not sufficiently account for Plaintiff's limitations in concentration, persistence, or pace. (Hourihan I, Docs. 21, 22.) Initially, in a Report and Recommendation issued December 13, 2012, Magistrate Judge Kelly found two cumulative errors in the Commissioner's Second Decision—(1) first, that the ALJ erred by relying on the opinions of non-treating physician Olin Hamrick, Psy.D ("
"It is well established that the testimony of a treating physician must be given substantial or considerable weight unless good cause is shown to the contrary." Crawford, 363 F.3d at 1159. "[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." Philips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2014). But "[t]he good cause required before the treating physicians' opinions may be accorded little weight is not provided by the report of a [non-treating] physician where it contradicts the report of the treating physician." Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). Indeed, "[t]he opinions of [non-treating], reviewing physicians, when contrary to those of examining physicians[,] are entitled to little weight in a disability case, and standing alone do not constitute substantial evidence." Id. (quoting Sharfarz v. Bowen, 825 F.3d 278, 280 (11th Cir. 1987)). Rather, "[w]hen electing to disregard the opinion of a treating physician, the ALJ must clearly articulate its reasons," which must be founded on good cause. Philips, 357 F.3d at 1241.
Based on the foregoing principles, Magistrate Judge Kelly concluded that the ALJ failed to articulate good cause for discounting Dr. Oh's opinions. (Hourihan I, Docs. 21, pp. 20-21.)
At the administrative level, an ALJ applies a five-step, sequential evaluation process to determine whether a claimant is disabled. Winschel, 631 F.3d at 1178. Specifically, the ALJ must evaluate:
Id. At step five, if the ALJ finds that "the claimant can make the adjustment to other work, the ALJ will determine that the claimant is not disabled. If the claimant cannot make the adjustment to other work, the ALJ will determine that the claimant is disabled." Phillips, 357 F.3d at 1239.
"An ALJ may make this determination either by applying the Medical Vocational Guidelines or by obtaining the testimony of a [VE]." Winschel, 631 F.3d at 1180. "A [VE] is an expert on the kinds of jobs an individual can perform based on his or her capacity and impairments." Phillips, 357 F.3d at 1240. "When the ALJ uses a [VE], the ALJ will pose hypothetical question(s) to the [VE] to establish whether someone with the [claimant's limitations] will be able to secure employment in the national economy." Id. A VE's testimony constitutes substantial evidence only if the ALJ poses a hypothetical question which comprises all of the claimant's impairments. Winschel, 631 F.3d at 1180.
Generally, when an ALJ restricts the hypothetical question to simple, routine tasks or unskilled work, he does not account for a claimant's limitations in concentration, persistence, and pace. Id. "But when medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, courts have concluded that limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations." Id.
With this framework in mind, the Hourihan I court was tasked with determining whether the hypothetical question posed to the VE during the second administrative hearing properly accounted for Plaintiff's moderate limitations in concentration, persistence, and pace. (See Hourihan I, Doc. 18, pp. 11-13.) In the Initial R&R, Magistrate Judge Kelly found that the ALJ gave great weight to Dr. Hamrick's opinion that Plaintiff was "not significantly limited in the ability to understand, remember or carry out very short and simple instructions and [could] perform simple, one or two-step, routine, repetitive kinds of tasks that [could] be done without a lot of close supervision" ("
On March 20, 2013, Judge Honeywell issued the Remand Order, which: (1) adopted the Initial R&R in all respects; and (2) reversed and remanded the Commissioner's Second Decision. Id., Doc. 25. The Remand Order also included following Directive:
(Id. at 9-10.)
As aforementioned, Plaintiff appealed the Third Decision on the ground that the ALJ had failed to comply with the Remand Order. (Doc. 18, pp. 11-17, 21-27.) With respect to Plaintiff's argument that the ALJ erred in her assignment of weight to the various medical opinions, Magistrate Judge Kelly found that there was substantial evidence to support the ALJ's purported reason for assigning no weight to Dr. Oh's opinion that Plaintiff had "moderate limitations in understanding, remembering, and carrying out very short and simple instructions," because Dr. Oh's treatment records contradicted this opinion. (Doc. 19, p. 16.) Additionally, based on his findings that the ALJ articulated good cause to discount Dr. Oh's opinion and the non-treating doctors' opinions were supported by the evidence, Magistrate Judge Kelly found that the ALJ did not err in affording significant weight to the non-treating physicians' opinions. (Id. at 17-18.) Such opinions included Dr. Hamrick's testimony that Plaintiff's ability to carry out short and simple tasks was not significantly limited ("
With respect to the Directive in the Remand Order, however, a second wrinkle emerged. Indeed, on remand, while the ALJ posed the Required Hypothetical to the VE, she also posed one similar to the Original Hypothetical, which she relied on in rendering the Third Decision and concluding that Plaintiff was not disabled. (See Doc. 14-11, pp. 63-64, 72-73, 23-24.)
Plaintiff's main assignment of error is related to the first question posed to the VE on remand, in which the ALJ asked her to identify jobs that could be performed in the national economy by an individual with Plaintiff's characteristics, "restricted to light work," and possessing "a non-exertional limitation of moderate limitations in concentration, persistence, and pace" ("
Plaintiff contends that the ALJ should have found Plaintiff disabled based on this exchange. (Doc. 18, p. 16-18.) In particular, Plaintiff argues that the ALJ's Third Decision was not supported by substantial evidence because the ALJ failed to explain why she did not credit the VE's testimony that two or more moderate limitations would preclude employment. (Id. at 18.) Plaintiff's contention, therefore, appears to be that, because he has more than one limitation in concentration, persistence, or pace, he cannot work ("
In her second hypothetical to the VE, the ALJ asked whether an individual with Plaintiff's characteristics, "restricted to light work" and "no more than simple, routine, repetitive tasks with no more than occasional interaction with supervisors, coworkers, and the general public," could perform any fulltime jobs in the national economy ("
It is true that Dr. Hamrick testified that Plaintiff is moderately limited as to multiple abilities in the area of sustained concentration and persistence. (Doc. 14-12, pp. 33-34.) Such abilities include the: (1) the ability to carry out detailed instructions; (2) the ability to maintain attention and concentration for extended periods; (3) the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) the ability to sustain an ordinary routine without special supervision; (5) the ability to work in coordination with or proximity to others without being distracted by them; and (6) the ability to complete a normal workday and workweek without interruptions and psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Id.) Though such testimony supports the argument that Plaintiff has more than one moderate limitation in the area of concentration, persistence, and pace, Plaintiff fails to cite any authority to support his argument that the number of such limitations is of any moment.
At this juncture, the Court's only task is to "determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards." Winschel, 631 F.3d at 1178. A VE's testimony constitutes substantial evidence if the ALJ poses a hypothetical question that comprises all of the claimant's impairments. Id. at 1180. Moreover, binding Eleventh Circuit case law provides that "when medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace," "limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations." Id. at 1180.
Here, despite finding that Plaintiff is moderately limited with respect to several abilities in the area of sustained concentration and persistence, Dr. Hamrick's testified that: (1) Plaintiff is not significantly limited in the ability to carry out very short and simple instructions; (2) Plaintiff is not significantly limited in the ability to make simple work-related decisions; and (3) Plaintiff can perform solitary work involving "simple one and two step routine repetitive kinds of tasks that can be done without a lot of pre-close oversight." (Doc. 14-12, pp. 32-34, 36.) In light of this medical evidence, it was appropriate for the ALJ to pose a hypothetical to the VE, which limited Plaintiff to simple, routine, and repetitive tasks. Indeed, Winschel provides that such a hypothetical "sufficiently accounts for
Having conducted an independent, de novo review of the portions of the record to which Plaintiff objected, the Court agrees with the findings and conclusions set forth in the Instant R&R.
Accordingly, it is
