DAVID A. BAKER, Magistrate Judge.
This cause came on for consideration without oral argument
Plaintiff filed an application for a period of disability with a protective filing date of September 16, 2003 (R. 94-98, 102).
Prior to remand, Plaintiff filed a second application for benefits (R. 350). On remand, a new hearing was held and, on May 29, 2008, the ALJ issued a decision finding Plaintiff was not disabled pursuant to 20 C.F.R. § 404.1520(g) (R. 295-311). The Appeals Council declined to assume jurisdiction over the case (R. 284-86), making the ALJ's 2008 decision the final decision of the Commissioner.
Plaintiff filed the instant Complaint for review
In the original application, Plaintiff alleged that he became disabled on June 17, 2003, due to residuals from a herniated disc at L4-5 and depression (R. 16). Since then, Plaintiff alleges additional impairments from a herniated disc at C5-6 with moderate stenosis and a disc protrusion at C6-7 with moderate stenosis (R. 189-90).
Plaintiff was 33 years old at the time of the ALJ's first decision (R. 27) and was 36 years old when the hearing decision was issued in May 2008 (R. 95), with a high school education and past relevant work experience as a security guard, computer room operator and maintenance worker (R. 106). Additionally, in 2006, Plaintiff worked as a courier for approximately three months (R. 924, 930-31, 942-43). Beginning in January 2007, Plaintiff worked part time (4 hours a day) in telephone sales; he was laid off from this job in December 2007 (R. 924-26). The ALJ determined that his monthly earnings from these jobs did not rise to the level of substantial gainful activity for either year (R. 299).
Plaintiff's pertinent medical history is set forth in detail in the ALJ's decision and in the interests of privacy and brevity will not be repeated here, except as necessary to address Plaintiff's objections. In addition to the medical records of treating providers within the pertinent time period, the record includes the opinions of state agency consultants, the forms and reports completed by Plaintiff with respect to this claim, as well as the testimony of Plaintiff at the hearings and the testimony of a Vocational Expert. By way of summary, the ALJ found Plaintiff had the impairments of an adjustment disorder, an intermittent explosive disorder, and degenerative disc disease of the lumbar spine and cervical spine (R. 299), and the record supports these uncontested findings. The ALJ determined that Plaintiff's impairments did not meet or medically equal one of the impairments listed in the Listing of Impairments (the Listings), 20 C.F.R. pt. 404, subpt. P, app. 1, and determined that Plaintiff retained the residual functional capacity ("RFC") to perform sedentary work, "except he is limited to occasional climbing, balancing, stooping, kneeling, and crawling, and needs to have the option to alternate sitting and standing as needed" (R. 301). In addition, the ALJ determined that Plaintiff was "limited to performing simple, routine repetitive tasks." Id. The ALJ concluded that Plaintiff was unable to perform his past relevant work (R. 310), but citing the testimony of the Vocational Expert, made findings that there are other jobs existing in significant numbers in the national economy that Plaintiff was able to perform (R. 310-11). Therefore, the ALJ determined that Plaintiff was not disabled (R. 311).
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 (11th Cir. 1988), and whether the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971).
"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., 357 F.3d at 1240 n. 8 (internal citation omitted); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual findings).
Plaintiff raises three issues on review, asserting that: 1) the ALJ erred in determining that Plaintiff's impairments did not meet or medically equal Section 1.04 of the Listings; 2) the ALJ failed to properly weigh the opinion of the treating physician; and 3) the ALJ improperly evaluated Plaintiff's complaints of pain.
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. 29 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 him from doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering residual functional capacity, age, education, and past work) prevent him from doing other work that exists in the national economy, then he is disabled. 20 C.F.R. § 404.1520(f). The plaintiff bears the burden of persuasion through Step 4, while at Step 5 the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
At step three of the evaluation, the ALJ determined that Plaintiff's impairments did not meet or equal an impairment in the Listings, specifically the Listing of Impairments at 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.04, which provides:
While acknowledging the degenerative disc disease of the lumbar spine, the ALJ found that the evidence did not satisfy this listing as "the record is devoid of evidence of nerve root compression characterized by motor loss (atrophy with associated muscle weakness or muscle weakness), spinal arachnoiditis, or lumbar spinal stenosis with accompanying ineffective ambulation." (R. 300).
Plaintiff contends that there is substantial evidence to support a finding that Plaintiff meets the Listing, and this finding is therefore incorrect.
There is no dispute that Plaintiff has a herniated disc at L4-5 with calcification impinging on the nerve root (R. 229-30) and findings of stenosis (R. 553). As pointed out by the Commissioner, however, Plaintiff does not identify evidence documenting distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss
20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.00B2b.
Although Plaintiff uses a cane (which was provided by his physical therapist in 2004) (R. 698), there was no evidence that this device limited Plaintiff's functioning of both upper extremities. Moreover, there is no finding that the cane was, in fact, prescribed. See SSR 96-9p, available at 1996 WL 374185, 7 ("To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information)").
"To `meet' a Listing, a claimant must have a diagnosis included in the Listings and must provide medical reports documenting that the conditions meet the specific criteria of the Listings and the duration requirement. See 20 C.F.R. § 404.1525(a) (d)." Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). The finding of the ALJ on this point is amply supported.
Plaintiff contends that the ALJ erred in failing to credit the opinion of his treating physician and in discrediting his allegations of pain. In order to evaluate these objections, a detailed review of the record is necessary.
As set forth in the prior decision of this Court and in the briefs, Plaintiff suffered a claimed work related injury while carrying hurricane shutters on April 14, 2003 (R. 139). A lumbar spine MRI taken on August 1, 2003, revealed a herniation on the left at L4-5 (R. 140). Plaintiff presented to the Veteran's Administration clinic for back pain and x-rays were taken on August 24, 2004 (R. 232). The x-rays revealed no abnormalities (R. 232). In October 2004, additional x-rays were taken, which were also normal (R. 231). On November 8, 2004, a CT lumbar spine with and without contrast was performed due to a history of chronic back pain and herniation, and it was noted that Plaintiff was using a cane (R. 230). Impression was bulging annulus at L4 L5 which had undergone calcification impinging on the nerve root as it exits on the left side. Id. A follow-up MRI confirmed the herniated disc at L4-L5 (R. 229).
On January 6, 2005, Plaintiff was seen at the VA by psychiatrist Raymond DeCastro, M.D. (R 224-225). He reported increased temper outbursts at his wife. Dr. DeCastro assessed dysthymic disorder, intermittent explosive disorder and narcissistic personality traits. A GAF
On January 24, 2005, Plaintiff presented to Percival Moraleda, M.D., at the VA for an initial new primary care physician visit (R. 527). A cervical MRI dated February 7, 2005, showed a herniated disc at C5-6 with moderate stenosis with adjacent osteophytes and a disc protrusion at C6-7 with moderate stenosis, also with adjacent osteophytes. (R.189-190). "Chronic findings" were noted. Following review of the cervical MRI, Plaintiff was referred to pain management for spinal stenosis in the cervical spine (R. 213-214).
Plaintiff continued to complain of back and neck pain and continued to receive epidural injections and conservative care from the VA (R. 209-12). On April 20, 2005, Plaintiff again reported pain in his neck and lower back. (R 205). Percocet was prescribed. On June 2, 2005, Plaintiff reported additional pain in both knees along with continued pain in his neck and back. (R 201-202). He was placed on Morphine, with a prescription of Percocet for breakthrough pain (R 202).
On June 15, 2005, Plaintiff returned to his psychiatrist, who noted his "usual flat affect" but "his attitude is much improved and shows an adjustment to his unfortunate impairment" (R. 200). His GAF was assessed at 52 (R. 201).
Plaintiff continued to present to the clinic and Dr. Moraleda for narcotics to treat his chronic pain (R. 195-205). A note from his treating physician dated December 6, 2005 (R. 249-51) indicated that Plaintiff would receive a handicap parking permit. In a note dated January 17, 2006, with respect to a jury duty summons, Dr. Moraleda noted that Plaintiff "is known to have a condition that may make prolonged sitting, standing or maintaining certain positions a difficulty" (R. 248, 557). On January 31, 2006, Dr. Moraleda wrote the following:
This note is written in behalf and at the request of the above patient who was seen at the Apollo Clinic today.
(R 246, 555).
Plaintiff continued to be treated at the VA throughout 2007 (R. 861-97).
On May 4, 2007, Plaintiff presented with worsening of his neck pain (R. 891). On examination, limited range of motion of neck in all directions and significant painful spasms were appreciated. Acute exacerbation of neck pain and spasms was assessed, and Plaintiff was given a note explaining "given his current condition and the medications he has been prescribed, Mr. Vasquez may not be able to work for the next 2-3 days." (R. 892). On May 8, 2007, Plaintiff called to report that he was still in "extreme pain" and asked for stronger pain medication (R. 889). He called again on May 9, 2007, advising that he "would take anything that would help with the pain." (R. 888). Percocet was prescribed (R. 887).
Plaintiff returned to Dr. Moraleda on May 23, 2007 (R. 883-884). At that visit, Plaintiff reported that he was working part time, and "the position at work and constant use of the mouse promptly aggravates/exacerbates the pain." (R. 883). Dr. Moraleda assessed "Chronic neck and low back pain, (secondary) to disc herniation with resultant spinal stenosis, continuing disability" (R. 884) and placed Plaintiff on morphine and other drugs (R. 883-884). Dr. Moraleda opined: "patient remains very limited in his capability to do much even with the sedentary nature of his part-time job." Id.
On June 28, 2007, Dr. Basil Theodotou reported Plaintiff's lumbar MRI was unchanged from 2006 but his cervical MRI showed a worsening disk rupture at C5/6 and an identical disk rupture at C6/7 (R. 905). Plaintiff reported he was having difficulty using his right arm due to pain and weakness, but the doctor found no evidence of weakness on examination, although the range of motion in Plaintiff's neck was "severely curtailed." Id. Dr. Theodotou recommended Plaintiff undergo a cervical fusion.
In a letter dated October 1, 2007, treating physician Dr. Moraleda stated: "[D]ue to [Plaintiff's] medical condition, he has difficulty sitting, standing or maintaining the same position for prolonged periods of time (more than 30 minutes at a time). Given this, he is requesting accommodation for his purposes." (R. 859).
On December 6, 2007, Dr. Theodotou reported Plaintiff had declined surgery and stopped taking prescribed narcotics, as the doctor suggested, although he continued to use them occasionally (R. 898). Dr. Theodotou renewed his recommendation that Plaintiff undergo a cervical fusion. There is no evidence in the record that Plaintiff had undergone the surgery to date.
Generally speaking, substantial weight must be given to the opinion, diagnosis and medical evidence of a treating physician unless there is good cause to do otherwise. See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991); 20 C.F.R. § 404.1527(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). The ALJ may discount a treating physician's opinion or report regarding an inability to work if it is unsupported by objective medical evidence or is wholly conclusory. See Edwards, 937 F.2d 580 (ALJ properly discounted treating physician's report where the physician was unsure of the accuracy of his findings and statements.)
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). When a treating physician's opinion does not warrant controlling weight, the ALJ must nevertheless weigh the medical opinion based on the 1) 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 with the record as a whole; 5) specialization in the medical issues at issue; 6) other factors which tend to support or contradict the opinion. 20 C.F.R. § 404.1527(d). However, 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); see also 20 C.F.R. § 404.1527(d)(2).
Applied here, the ALJ found as follows:
In the first instance, the Court finds no evidence to support a conclusion that the letter was offered "to appease" Plaintiff. "Appease" means to pacify or placate someone by acceding to their demands.
Moreover, the Court finds no support for a finding that the opinions of the treating physician are equivocal, lack specific conclusions or a supporting rationale. In Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1178-79 (11th Cir. Jan. 24, 2011), the Eleventh Circuit held that whenever a physician offers a statement reflecting judgments about the nature and severity of a claimant's impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite his or her impairments, and the claimant's physical and mental restrictions, the statement is an opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor. Id. (citing 20 CRF §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1986)). Applied here, the totality of the treatment notes, summarized above, are themselves statements reflecting judgments about Plaintiff's impairments, and give ample support for the ultimate opinion of Dr. Moraleda that Plaintiff cannot work a full time job.
Plaintiff treated with Dr. Moraleda since January 2005. Objective testing confirmed herniated disks in both lumbar spine and cervical spine, and examinations noted painful spasms, reduced range of motion, and resulting depression. The condition required significant pain medications and modalities and, as reflected in the treatment notes, all without significant improvement. Dr. Moraleda gave particular note to the limitations the conditions caused, noting that Plaintiff "is known to have a condition that may make prolonged sitting, standing or maintaining certain positions a difficulty" (R. 248, 557); "he has difficulty sitting, standing or maintaining the same position for prolonged periods of time (more than 30 minutes at a time)" (R. 859); and remained "very limited in his capability to do much even with the sedentary nature of his part-time job" (R. 884). Indeed, the ALJ accepted Dr. Moraleda's opinion that Plaintiff is limited in his ability to sit and stand by including a sit-stand option into the RFC (R. 307).
These are not mere conclusory statements and the opinions are amply supported by the objective medical evidence. As such, the ALJ's rationale for discrediting the conclusions of the long-standing treating provider is not supported. Remand for full consideration of the opinion, and all other opinions that meet the Winschel definition, is required.
As for allegations of pain, when a claimant attempts to establish disability through his or her own testimony of subjective symptoms, the Eleventh Circuit follows a three-part test that requires: "(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged [symptom] arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged [symptom]." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). "If proof of a disability is based upon subjective evidence and a credibility determination is, therefore, critical to the decision, the ALJ must either explicitly discredit such testimony or the implication must be so clear as to amount to a specific credibility finding." Foote, supra, 67 F.3d at 1562 (quotation omitted). Courts "have affirmed an ALJ's decision that a claimant's testimony as to the alleged levels of pain and symptoms he experienced was not credible where the allegations were inconsistent with activities of daily living, limited use of pain medication, and effectiveness of treatment." Carter v. Commissioner of Social Sec., 2011 WL 292255, 2 (11th Cir. 2011) (unpublished), citing Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002). A reviewing court will not disturb a clearly articulated credibility finding with substantial supporting evidence in the record. As a matter of law, the failure to articulate the reasons for discrediting subjective pain testimony requires that the testimony be accepted as true. Foote, 67 F.3d at 1561-62; Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988).
Here, after evaluating the evidence and testimony, the ALJ concluded that, although Plaintiff has underlying impairments that could reasonably be expected to produce the symptoms alleged, his statements concerning the intensity, persistence and limiting effects of those symptoms were not entirely credible (R. 302-03). As support for this, the ALJ pointed to evidence that the lumbar impairment was not disabling, Plaintiff's failure to have the cervical surgery recommended, and, importantly, to Plaintiff's part time work activity in 2006 and 2007 (R. 306-08). While the Court recognizes that credibility determinations are the province of the ALJ, the undisputed evidence indicates that Plaintiff's condition has worsened over time. Moreover, as summarized above, Plaintiff continued to suffer residuals from his impairments which interfered with his ability to perform his part time work.
The decision of the Commissioner is not supported by substantial evidence and was not made in accordance with proper legal standards. As the administrative decision was not made in accordance with proper legal standards, it is
Dempsey v. Commissioner of Social Sec., No. 11-11434, 2011 WL 6032952, *4 (11th Cir. Dec. 5, 2011) (as an unpublished opinion of the Eleventh Circuit, Dempsey constitutes persuasive, and not binding, authority. See 11th Cir. R. 36-2 and I.O.P. 6.)
