CHARLES A. STAMPELOS, Magistrate Judge.
This Social Security case was referred to the undersigned upon consent of the parties by United States District Judge Mark E. Walker. ECF No. 8, 9. It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration denying Plaintiff's application for Supplemental Security Income (SSI) pursuant to Title XVI of the Social Security Act. See ECF No. 1. After careful consideration of the record, the decision of the Commissioner is affirmed.
Plaintiff Keica Nell Chapman filed an application for Supplemental Security Income (SSI) on June 11, 2013, alleging disability caused by breast disease, depression, anxiety, birth defect in left hip, and constant pain. Tr. 169.
At the hearing, Plaintiff testified that she had not worked full time for the past fifteen years. Tr. 34. She left school in eighth grade and did not obtain a GED because, she said, she could not concentrate. Tr. 36. She testified she has burning in her hips and tingling down to her toes due to back pain. Id. It is worse in her left leg, and is a sharp, stabbing pain like "little needles are being poked in [her] toes." Tr. 38-39. She said she cannot sleep well at night, and tosses and turns and her hip pops. Tr. 36. She takes pain mediation daily but it wears off and "gets to where it just doesn't help." Tr. 37. She said she has back pain all of the time and her back and her hips can "lock up" due to pain when she is sitting or standing. Id. She testified she has "been known to have to be put in a wheelchair for two months." Tr. 38. She said she can stand for about 15 or 20 minutes and then must start moving and then sit down. Id. When sitting for less than 30 minutes, she said, she must change position. Tr. 40. When she shops, she generally uses a motorized cart. Id. Injections for pain have provided only short-term relief. Tr. 41. She testified that she has had two back surgeries—one in 1999 and one in 2001—and the doctors are considering another surgery. Tr. 48. She has not had any recent physical or occupational therapy. Tr. 49.
Plaintiff testified she has urinary problems which, she believes, are associated with her back pain. Sometimes she cannot urinate at all and must catheterize herself, up to twice a week. Tr. 42. No treatment is planned for that condition because the doctor's bills were too high. Tr. 49-50. She said she is still having problems with breast pain and discharge, which affects her ability to reach. Tr. 42-43.
She testified that most recently she has been taking Prozac and Risperdal for her depression and mental issues. Tr. 43-44. Prior to that she took Paxil and Zoloft but could not tolerate the side effects. Tr. 48. Plaintiff said her memory and focus are impaired and sometimes she goes blank and does not remember what she is doing. Tr. 45. She said her husband sometimes has to remind her to eat. Tr. 46. She has become short-tempered and frustrated, and does not want to be around people, although she does not want to be alone at home and will call her husband to come home. Tr. 45-46. She no longer feels comfortable driving to the store and managing her bank account. Plaintiff testified that she has had no treatment for any psychological or mental issues because she had no insurance or money to do so. Tr. 47.
On December 16, 2015, the ALJ issued a decision finding Plaintiff is not disabled and is not entitled to SSI. Tr. 12-22. The Appeals Council denied review on February 2, 2017. Tr. 1-3. Thus, the decision of the ALJ became the final decision of the Commissioner and is ripe for review. Accordingly, Plaintiff, appearing pro se, filed a Complaint for judicial review pursuant to 42 U.S.C. §§ 1381, et seq., and 42 U.S.C. § 405(g). See ECF No. 1.
In the decision issued on December 16, 2015, the ALJ made the following pertinent findings:
Based on these findings, and the reasons set forth in the decision, the ALJ found Plaintiff is not disabled under section 1614(a)(3)(A)
This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g);
A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 416.909 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than 12 months.
The Commissioner analyzes a claim in five steps, pursuant to 20 C.F.R. § 416.920(a)(4)(i)-(v):
At step one, the ALJ must determine whether the claimant is engaging in substantial gainful activity. If so, she is not disabled and the application for benefits will be disapproved. At step two, the ALJ must determine if the claimant has a medically determinable impairment that is severe or a combination of impairments that is "severe." If the claimant has a severe impairment or combination of impairments that is severe, the analysis proceeds to step three. At step three, if the ALJ determines that claimant's impairments meet or medically equal the criteria of an impairment listed in Appendix 1, and if the duration requirement is met, the claimant is disabled and the application for benefits will be approved. If not, the analysis proceeds to step four. At step four, consideration is given to the assessment of the claimant's RFC and the claimant's past relevant work. If the claimant can still do past relevant work, there will be a finding that the claimant is not disabled. The claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. If the claimant carries this burden, the burden shifts to the Commissioner at step five to establish that, despite the claimant's impairments, the claimant is able to perform other work available in significant numbers in the national economy in light of the claimant's RFC, age, education, and work experience. See
Plaintiff bears the burden of proving that she is disabled and, consequently, is responsible for producing evidence in support of her claim. See 20 C.F.R. § 416.912(a);
The opinion of the claimant's treating physician must be accorded considerable weight by the Commissioner unless good cause is shown to the contrary.
The ALJ may discount the treating physician's opinion if good cause exists to do so.
Some opinions on issues such as whether the claimant is unable to work, the claimant's RFC, and the application of vocational factors, "are not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of the case; i.e., that would direct the determination or decision of disability." 20 C.F.R. § 416.927(d); see
A treating physician's opinion that a claimant is unable to work and is necessarily disabled would not be entitled to any special weight or deference. The regulations expressly exclude such a disability opinion from the definition of a medical opinion because it is an issue reserved to the Commissioner and a medical source is not given "any special significance" with respect to issues reserved to the Commissioner, such as disability. 20 C.F.R. § 416.927(d)(1), (3); SSR 96-5p, 1996 SSR LEXIS 2, at *6 (rescinded eff. Mar. 27, 2017). In
Generally, more weight is given to the opinion of a specialist "about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist." 20 C.F.R. § 416.927(c)(2), (5)
Plaintiff alleges in her Complaint that additional record support shows she has a birth defect in her hip and suffers from manic paranoid schizophrenia with manic bipolar condition that causes her to be disabled and that denial of disability benefits deprives her of her constitutional rights. ECF No. 1 at 5. She alleges in her memoranda filed in support of her Complaint that the inclusion of a one-page radiological report of another person in Exhibit B7F of this record constituted reversible error; failure to allow her temporary Medicaid to obtain further documentation was reversible error; disability should have been found based on Exhibit B2A; the Commissioner omitted a critical page of medical documentation from Dr. Robert Burns that shows she cannot return to the workforce and that she is on pain medication that impairs her ability to work; the Commissioner failed to provide a critical medical record of Dr. Robert Burns; the additional record of Dr. Burns would have made a difference in the case and warrants remand; Plaintiff was deprived of her constitutional rights to life, liberty, and due process; and Plaintiff was deprived of her constitutional rights and is also entitled to a remedy under 8 U.S.C. 1324c(a)(3)(5). See ECF Nos. 1, 13, 17, 22.
Plaintiff fails to explain how the inclusion of a one-page radiological report pertaining to another claimant in the record of this case requires remand. The erroneous page was cited by the ALJ only as evidence that Plaintiff has a basis to complain of hip pain. See Tr. 18. The ALJ stated:
Tr. 18. Thus, the ALJ did not rely on the erroneous record to conclude Plaintiff had no basis for hip pain. Moreover, the correct hip X-ray report of August 27, 2013, by the same provider indicated that Plaintiff had mild osteoarthritis of the left hip and mild to moderate osteoarthritis of the left sacroiliac joint. Tr. 314. The correct report shows similar hip osteoarthritis, albeit a somewhat less severe form of it than the report cited by the ALJ. Plaintiff cannot show prejudice from this erroneous inclusion of the unrelated but similar record, nor can she show that had the error not occurred, the ultimate finding of the ALJ would have been different. See
Plaintiff alleges that the Commissioner failed to allow her to receive temporary Medicaid to obtain further medical documentation and to seek additional medical treatment. ECF No. 13 at 1. Plaintiff has not provided a record reference to show that the Commissioner denied a claim for temporary Medicaid. To the contrary, the Commissioner informed Plaintiff on November 15, 2013, in the notice of ineligibility for SSI that "you may be eligible for medical assistance (Medicaid). If you have any questions about your eligibility for Medicaid or you need medical assistance you should get in touch with the Department of Children and Families." Tr. 103. Further, whether Plaintiff was improperly denied Medicaid is not an issue to be considered in this SSI proceeding. As the Defendant correctly notes, the State of Florida administers the Medicaid program in this state through the Agency for Health Care Administration. See
Id. A claim for denial of Medicaid benefits brought under 42 U.S.C. § 405(g) does not raise a federal issue and is properly dismissed. See
Plaintiff alleges the Commissioner failed to follow the opinion evidence of the SDM, concerning Plaintiff's RFP, located at Exhibit B2A, pages 8-9. ECF No. 13 at 1. Plaintiff alleges that the opinion of Jasmine Plummer, SDM, on September 27, 2013, was that Plaintiff has limitations that would hinder her work efforts. ECF No. 13 at 1. However, the Commissioner was not required to rely on the SDM. The Eleventh Circuit has explained:
Furthermore, the RFC determined by SDM Plummer recognized fewer limitations affecting Plaintiff's RFC than those found by the ALJ in this case. The ALJ found Plaintiff could "frequently" climb stairs and ramps, kneel, crouch and crawl. Tr. 16. The SDM concluded that Plaintiff's ability to climb ramps and stairs, kneel, crouch, and crawl was "unlimited." Tr. 73. The SDM concluded Plaintiff could frequently lift 25 pounds and occasionally lift 50 pounds, consistent with the definition of medium work. See § 416.967(c); Tr. 72. The ALJ found, however, that Plaintiff was limited to light work, which anticipates lifting only 20 pounds at a time with frequent lifting of up to 10 pounds. See § 416.967(b); Tr. 16. The ALJ and the Commissioner were not required to rely solely on the opinion of SDM Plummer in determining if Plaintiff is disabled.
Even assuming the ALJ should have discussed the SDM opinion and should have given it some weight, it would not have changed the decision in any manner that would have benefitted Plaintiff. The ALJ's RFC determination reflected more limitations than those opined by SDM Plummer. Thus, any error was harmless. See, e.g.,
Plaintiff contends that records of Robert Burns, M.D., would prove that she cannot return to work. ECF No. 13 at 1-2. She contends that one page of the record was "left out" but she does not indicate what the record would have shown. The record in this case contains Exhibit B16F, pages 446 and 447, which appears to have been submitted to the Appeals Council. See Tr. 5 (listing exhibits B15F and B16F to Notice of Appeals Council Action); Tr. 1-4. Exhibit B16F is a record from Meridian Clinic that contains notes of a January 14, 2016, follow-up visit to Dr. Burns to evaluate Plaintiff's treatment for opioid dependence and addiction. Tr. 446-47. The notes indicate that Plaintiff was being successfully treated with suboxone, which she was to continue at the same dose. Tr. 447. The information contained in this record does not indicate that Plaintiff cannot return to work.
Plaintiff bore the burden of producing evidence she deemed necessary to support her claim.
The page of Dr. Burn's records which discussed Plaintiff's treatment for opioid addiction was submitted to the Appeals Council and considered but was found not to provide a basis to require a remand. Tr. 1-4. The Appeals Council must consider new, material, and chronologically relevant evidence and must review the case if the ALJ's action, findings, or conclusions are contrary to the weight of the evidence currently in the record.
The Appeals Council denied review in this case, stating that it considered the additional evidence and found that it does not provide a basis for changing the ALJ's decision. Tr. 1-4. When a claimant presents new evidence to the Appeals Council and review is denied, the Court will consider the claimant's evidence anew to determine whether the new evidence renders the denial of benefits erroneous.
Plaintiff also cites Exhibit B11F at page 20 for her allegation that Dr. Burns has her on "the highest level of narcotic for pain witch (sic) impairs my ability to work." ECF No. 13 at 2 (citing exhibit at Tr. 382). That cited record, however, is not from Dr. Burns and does not indicate a narcotic level or that such would impair Plaintiff's ability to work. See Tr. 379-83.
The ALJ did not fail to develop the record in the absence of evidence not submitted by Plaintiff or her representative. Moreover, because the evidence cited by Plaintiff is not chronologically relevant to the date of the ALJ's decision and does not demonstrate that the ALJ's decision is not based on substantial evidence, the Appeals Council did not err in denying review. For these reasons, this claim lacks merit.
Plaintiff submitted to this Court a new medical record of her visit to Dr. Burns at the Meridian Clinic on February 8, 2016. ECF No. 17-1. The sixth sentence of 42 U.S.C. § 405(g) permits a district court, on review, to remand an application for benefits to the Commissioner for consideration of new evidence that previously was unavailable. 42 U.S.C. § 405(g). "[A] sentence six remand is available when evidence not presented to the Commissioner at any stage of the administrative process requires further review."
Plaintiff does not explain why this document was not submitted at the administrative level. The document is dated February 9, 2016, and the Appeals Council did not deny her request for review until February 2, 2017, almost one year later. See Tr. 1. Further, the opinions expressed in the record do not support a finding that Plaintiff is totally disabled. Dr. Burns opines in the record that Plaintiff has "significant deficits in the functional, musculoskeletal and neurological [e]xams that will have a life-long negative impact on her overall level of functioning and health," and which "make it difficult for her to compete in the workforce and to hold a job once it is obtained." ECF No. 17-1 at 3.
Moreover, the results of the medical examination noted in the document do not completely bear out Dr. Burns' opinions. The notes indicate that Plaintiff was alert and oriented X3 with appropriate mood and affect, and that her recent and remote memory was intact. She had a normal attention span and concentration. Id. at 2. The notes state that cranial nerves are intact and coordination was normal. She tested 5 out of 5 in strength in upper and lower extremities, with "normal limited (sic) of motion" in both shoulder joints on external rotation. Id. Her gait was "slightly antalgic" with normal station and stability. Her straight leg raise was negative from the sitting position. She did have limited range of motion in her lumbar spine and needed to shift her weight frequently when standing for longer than a few minutes. Id. The significance of Dr. Burns' opinion expressed in this record is further diminished by his caveat that "[s]he may benefit from a formal vocational rehabilitation assessment and/or functional capacity exam at a center with better quantitative functional testing equipment and for a formal disability rating." Id. at 3. Where a medical source expresses uncertainty as to the medical findings, the Commissioner has no obligation to defer to the opinion.
There is no reasonable probability that this record would change the administrative result. The concerns raised by Dr. Burns' opinion were addressed by the ALJ's RFC determination and the stated limitations placed on her work environment. Thus, this new evidence does not require a remand under the sixth sentence of 42 U.S.C. § 405(g).
Plaintiff contends that she has been denied life and liberty under the Fifth and Fourteenth Amendments to the United States Constitution. ECF No. 17 at 1; ECF No. 22. She states:
ECF No. 17. Plaintiff appears to be contending that her constitutional rights were violated by the Commissioner substituting a corrected transcript for one in which a radiological report applicable to another person was erroneously included. Plaintiff also appears be contending that she is entitled to some relief pursuant to Title 8 U.S.C. § 1324c(a)(3), (5). However, Plaintiff does not explain how the initial inclusion and subsequent substitution of a corrected record containing the redaction of the erroneously-included pages in her record has deprived her of a constitutional right.
As discussed above pertaining to the first part of Plaintiff's claim, the substituted transcript removed a radiological report relating to an individual other than Plaintiff. Although the ALJ cited the incorrect document in the decision, he did not rely on the erroneous record to conclude Plaintiff had no basis for hip pain. Instead, the ALJ relied on it to support the finding that "treatment records document complaints of hip pain." Tr. 18. Moreover, the correct hip X-ray report pertaining to Plaintiff dated August 27, 2013, indicated that she had mild osteoarthritis of the left hip and mild to moderate osteoarthritis of the left sacroiliac joint. Tr. 314. Thus, the correct report shows somewhat similar hip osteoarthritis as that cited by the ALJ based on the incorrect report. Plaintiff has not shown how the inclusion, and subsequent redaction, of one erroneous report in the record deprived Plaintiff of life, liberty, or due process. Nor has she shown that the inclusion and subsequent redaction of the erroneous record deprived the ALJ's decision of substantial evidence.
As to the second part of this contention, Plaintiff does not explain how Title 8 U.S.C. §§ 1324c(a)(3), (5) relate to her case. Title 8 U.S.C. §§ 1324c(a)(3), (5) are provisions within the Immigration and Naturalization Act, not the Social Security Act, prohibiting a person from knowingly using the documents of another person or using false documents to satisfy any requirement under the Immigration and Naturalization Act or in making an application for benefits under that act. The provisions are irrelevant to this proceeding. Conduct of the hearing, review of the evidence, and judicial review of the findings of fact or the decision of the Commissioner are to be conducted under the provisions of 42 U.S.C. § 405. The issues are whether the ALJ had substantial evidence to support the findings and conclusions in the decision and whether the ALJ followed the correct law. Plaintiff's final claims provide no basis on which to conclude the findings of the ALJ lacked substantial evidence, that the ALJ failed to follow the law, or that remand is required for any reason.
Plaintiff does not contend that the ALJ's decision is not supported by substantial evidence. Her main contention is that medical records of Dr. Burns should be considered and could make difference in the outcome. Her other claims are collateral to the pertinent issues in the case and do not bear on the issues of the applicable law or the substantial evidence to support the decision.
Considering the record as a whole, the findings of the ALJ are based upon substantial evidence in the record and the ALJ correctly followed the law. Further, no error has been shown in the actions of the Appeals Council in denying review. Accordingly, pursuant to 42 U.S.C § 405(g), the decision of the Commissioner to deny Plaintiff's application for Supplemental Security Income benefits is