MADELINE HUGHES HAIKALA, District Judge.
Plaintiff Loretta Elaine Minnifield brings this action pursuant to Title XVI of Section 1631(c)(3) of the Social Security Act, seeking review of the decision by the Commissioner of the Social Security Administration
The scope of review in this matter is limited. "When, as in this case, the ALJ denies benefits and the Appeals Council denies review," the Court "review[s] the ALJ's `factual findings with deference' and [his] `legal conclusions with close scrutiny.'" Riggs v. Comm'r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir. 2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record to support the ALJ's findings. "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). In making this evaluation, the Court may not "reweigh the evidence or decide the facts anew," and the Court must "defer to the ALJ's decision if it is supported by substantial evidence even if the evidence may preponderate against it." Gaskin v. Comm'r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
With respect to the ALJ's legal conclusions, the Court must determine whether the ALJ applied the correct legal standards. If the Court finds an error in the ALJ's application of the law, or if the Court finds that the ALJ failed to provide sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis, then the Court must reverse the ALJ's decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
Ms. Minnifield applied for supplemental security income on July 1, 2009. (Doc. 6-6, p. 2; Tr. 103-106). In her application, Ms. Minnifield alleged her disability began on November 23, 2004.
On November 2, 2012, the Appeals Council declined Ms. Minnifield's request for review of the ALJ's decision (Doc. 6-3, p. Tr. 1-6), making the Commissioner's decision final and a proper subject of this Court's judicial review. See 42 U.S.C. § 1383(c)(3).
At the time of her hearing, Ms. Minnifield was 57 years old, and she had completed the requirements for her GED. (Doc. 6-3, p. 37; Tr. 36). She previously worked as a housekeeper, hospital cleaner, and nurse's assistant. (Doc. 6-3, pp. 38-41; Tr. 37-42). Ms. Minnifield testified that she is unable to work due to significant breathing problems and pain in her hands, arms and back. (Doc. 6-3, p. 43; Tr. 42). She gets out of breath if she walks a short distance or walks up stairs. If she stands for more than two to three hours or exerts herself, she gets short of breath. She can perform daily household chores but must do them "little by little." (Doc. 6-3, p. 44; Tr. 43). Ms. Minnifield stated that she spends most of her day lying down due to pain and breathing problems. (Doc. 6-2, p. 45; Tr. 44).
In his decision, the ALJ found that Ms. Minnifield has not engaged in substantial gainful activity since July 1, 2009, the revised application date. (Doc. 6-3, p. 23; Tr. 22). The ALJ then concluded that Ms. Minnifield has the following severe impairments: chronic obstructive pulmonary disorder and early degenerative changes in the cervical spine. (Doc. 6-3, p. 23; Tr. 22). The ALJ noted that Ms. Minnifield suffers from other non-severe impairments including isolated instances of swelling. (Doc. 6-3, p. 24; Tr. 23). Nevertheless, the ALJ determined that Ms. Minnifield does not have an impairment or combination of impairments that meets or medially equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 6-3, p. 24; Tr. 23). The ALJ found that Ms. Minnifield has the RFC to perform work at a medium level of exertion, except that she must avoid concentrated exposure to chemicals, dusts, fumes, and other environmental irritants. (Doc. 6-3, p. 24; Tr. 23). Finally, the ALJ concluded that given her age, education, work experience, and RFC, jobs existed in the national economy that Ms. Minnifield could perform, including cashier, assembler, general office worker, inspector or tester, and order filler. (Doc. 6-3, pp. 26-27; Tr. 25-26). Accordingly, the ALJ found that Ms. Minnifield has not been under a disability, as that term is defined in the Act, since July 1, 2009, the revised application date. (Doc. 6-3, p. 27; Tr. 26).
To be eligible for disability insurance benefits, a claimant must be disabled. Gaskin v. Comm'r of Soc. Sec., 533 Fed. Appx. at 930. "A claimant is disabled if he is unable to engage in substantial gainful activity by reason of a medically-determinable impairment that can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least 12 months." Id. (citing 42 U.S.C. § 423(d)(1)(A)). A claimant must prove that he is disabled. Id. (citing Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). To determine whether a claimant is disabled, the Social Security Administration applies a five-step sequential analysis. Gaskin, 533 Fed. Appx. at 930.
Id. (citing 20 C.F.R. § 404.1520(a)(4)). "The claimant's residual functional capacity is an assessment, based upon all relevant evidence, of the claimant's ability to do work despite his impairments." Id. (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R. § 404.1545(a)(1)).
Ms. Minnifield contends that the ALJ's RFC determination is not supported by substantial evidence because the ALJ: (1) improperly discounted the opinion of her treating physician, Dr. Jeremy Allen, and (2) improperly rejected the opinion of the agency consultative examiner, Dr. Rodolf Veluz. (Doc. 8, pp. 5, 8).
In making his RFC determination, the ALJ noted that Ms. Minnifield's medically determinable impairments could reasonably be expected to cause her alleged symptoms but found her statements concerning the intensity, persistence, and limiting effects of those symptoms not fully credible. (Doc. 6-3, p. 25; Tr. 24). The ALJ also reviewed the opinion evidence on record. The ALJ gave the greatest weight to the opinion of Dr. Robert Heilpern, a non-examining reviewing consultant. (Id.). The ALJ adopted Dr. Heilpern's RFC in full because, according to the ALJ, his opinion "is well supported by the evidence of record, is based on access to the claimant's medical history, and reflects [his] experience providing medical opinions in the context of disability review." (Id.).
The ALJ gave "little weight" to Dr. Veluz and Dr. Allen's medical opinions "due to their erroneous reliance on the claimant's breath testing results." (Id.). The ALJ also gave little weight to Dr. Allen's opinion due to his "overreliance upon the claimant's subjective complaints in making his medical findings." (Id.). Before turning to the question of whether the ALJ erred in rejecting the opinions of Dr. Veluz and Dr. Allen, the Court briefly reviews the opinion evidence in this case.
Dr. Veluz performed a consultative examination of Ms. Minnifield on October 26, 2009. (Doc. 6-8, p. 37; Tr. 231). Ms. Minnifield stated that she had suffered from chronic bronchitis since 1990. (Id.). She told Dr. Veluz that she smoked half a pack of cigarettes per day and had visited the emergency room for exacerbation of her chronic bronchitis but was never hospitalized. (Id.). Ms. Minnifield also complained of difficultly sleeping, especially when lying on her right side, neck pain, and shortness of breath. (Id.). Upon examination of her chest, Dr. Veluz noted that Ms. Minnifield's lungs showed "no wheezing, rhonchi, rales, decreased breath sounds, or increased AP chest diameter." (Doc. 6-8, p. 38; Tr. 232). Additionally, Ms. Minnifield demonstrated no prolonged expiration. (Id.). Her extremities displayed no clubbling, cyanosis, or edema. (Id.). Additionally, her back showed no spasm or deformity and was non-tender. (Doc. 6-8, p. 39; Tr. 233). Ms. Minnifield had no trouble getting on and off the examination table but she was "unable to squat, heel/toe walk, or tandem gait because of pain." (Id.). Pulmonary function tests showed forced expiration volume in the first second (FEV1) in the range .51 to 1.19.
In November 2009, state agency non-examining medical consultant Dr. Heilpern reviewed Ms. Minnifield's medical records and in a report opined that Ms. Minnifield retained the residual functional capacity to perform medium work despite having some degenerative changes in her neck. (Doc. 6-8, p. 40; Tr. 244). Specifically, Dr. Heilpern considered medical records from Ms. Minnifield's July 2009 visit to Cooper Green where xrays revealed early degenerative changes in her spine and where a physical examination revealed limited range of motion in her neck and muscle spasms. (Id.). Dr. Heilperm also reviewed records from a hospital visit in August 2009. At that time, Ms. Minnifield was diagnosed with bronchitis and "COPD acute exacerbation." (Id.). Dr. Heilpern also reviewed Dr. Veluz's October 2009 report. Dr. Heilpern found the pulmonary function test results that Dr. Veluz had relied on invalid because "the tracings are not reproducible" and the FEV1 values are not within required limits. (Id.). Moreover, Dr. Heilpern opined the pulmonary function test "tracings," which graphically display the volume of forced exhalation over time, seemed to indicate [Ms. Minnifield] did not give maximum effort during the breathing test, "although she was advised that full cooperation and maximum effort were mandatory." (Id.).
Dr. Allen provided routine care to Ms. Minnifield in 2010 and early 2011 for osteoarthritis (Doc. 6-8, pp. 65-66; Tr. 258-259), for bronchitis and hand and foot pain (Doc. 6-8, pp. 68-71, 74-75; Tr. 262-265, 268-269), and for hypertension and COPD (Doc. 6-8, pp. 68, 72-73; Doc. 6-9, pp. 19-20; Tr. 262, 266-267, 295-296). In April 2011, Dr. Allen examined Ms. Minnifield and provided a report of examination and functional assessment (Doc. 6-9, pp. 22-28; Tr. 298-304), in which he noted that Ms. Minnifield was a "reformed smoker," having quit in April 2010. (Doc. 6-9, p. 23; Tr. 299). During the April 2011 examination, Ms. Minnifield's chief complaints were: "get tired if I walk or bend over; just moving around makes me tired; walking a block makes me tired; if I do anything too long or too strenuous, I have to go lie down." (Doc. 6-9, p. 22; Tr. 298).
Dr. Allen also noted Ms. Minnifield's complaints of pain, which reportedly were relieved by rest, pain medication, shifting and changing positions, and were aggravated by standing, walking, laying, bending and lifting. (Id.) Dr. Allen described Ms. Minnifield as "independent" in most activities of daily living (ADLs) but noted she required help from her son for lifting anything over 10 pounds. (Id.). In his report, Dr. Allen recorded examination results including normal gait, range of motion within normal limits, regular heart rate and rhythm, no sensation deficits, normal spine with no tender points and motor strength in upper and lower extremities normal and equal. (Doc. 6-9, p. 23; Tr. 299). Dr. Allen observed Ms. Minnifield had shortness of breath during examination. (Id.). Her blood oxygen saturation was measured at "100% on room air" (Id.). Based on his examination and review of "available medical records" (Id.), Dr. Allen opined:
(Id.).
Dr. Allen's report included a physical capacities assessment (which he indicated was based upon his physical exam and a review of Ms. Minnifield's medical records) and clinical assessment of pain forms.
Having examined the relevant opinion evidence and the ALJ's decision, the Court concludes that the ALJ properly rejected the opinions of Dr. Allen and Dr. Veluz. "[T]he ALJ must state with particularity the weight given to different medical opinions and the reasons therefor.'" Gaskin, 533 Fed. Appx. at 931 (citing Lewis, 125 F.3d at 1440, and quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)). The ALJ did so here. An ALJ must give the opinion of a treating physician "substantial or considerable weight unless `good cause' is shown to the contrary." Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). Good cause exists when "(1) [the] treating physician's opinion was not bolstered by the evidence; (2) [the] evidence supported a contrary finding; or (3) [the] treating physician's opinion was conclusory or inconsistent with the doctor's own medical records." Id.; see also Crawford, 363 F.3d at 1159. "The ALJ must clearly articulate the reasons for giving less weight to a treating physician's opinion, and the failure to do so constitutes error." Gaskin, 533 Fed. Appx. at 931. The opinion of a one-time examiner is not entitled to deference. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (citing Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986)); see also Russell v. Astrue, 331 Fed. Appx. 678, 681 (11th Cir. 2009) (citing McSwain and holding that the ALJ did not err in affording little weight to an examiner's opinion where the ALJ found the claimant's other records failed to support the opinion).
Here, the ALJ described with particularity his reason for rejecting Dr. Allen's opinion. The ALJ explained that Dr. Allen erroneously relied on breath testing results that Dr. Allen himself conceded did not meeting a listing.
The ALJ also stated with specificity his reason for giving little weight to Dr. Veluz's opinion. The ALJ determined that Dr. Veluz erroneously relied upon Ms. Minnifield's breath testing results. (Doc. 6-3, p. 25; Tr. 24). As a one-time examining physician, the ALJ was not required to afford special deference to Dr. Veluz's opinion. See McSwain, 814 F.2d at 619. Even if entitled to some deference, the ALJ concluded that Dr. Veluz's opinion was not properly supported by the medical evidence. Substantial evidence in the record supports the ALJ's decision to reject Dr. Veluz's opinion. See e.g., Phillips, 357 F.3d at 1241.
Having rejected the opinions of Dr. Allen and Dr. Veluz, the ALJ based his RFC assessment on Dr. Heilpern's findings.
First, the Court rejects Ms. Minnifield's contention that because Dr. Heilpern provided an opinion without the benefit of Dr. Allen's formal findings and some portion of Dr. Allen's treatment records, the ALJ should not have afforded great deference to Dr. Heilpern's conclusions. Although Dr. Heilpern did not review Dr. Allen's opinion, the ALJ had the benefit of examining the entire record, including Dr. Allen's examination notes and formal assessment. If neither the ALJ nor Dr. Heilpern had access to Dr. Allen's treatment notes and findings, the Court may be inclined to find that substantial evidence would not support the ALJ's decision to rely upon Dr. Heilpern's RFC assessment. See Lewis v. Astrue, 2012 WL 5868615, at *9 (S.D. Ala. Nov. 20, 2012). However, as it stands, the ALJ referred to specific medical evidence of record and properly rejected Dr. Allen's opinion. Therefore, the Court finds no merit to this particular argument.
Second, the Court concludes that the ALJ was free to rely upon Dr. Heilpern's opinion even though he never examined Ms. Minnifield. The Eleventh Circuit has recognized that the "opinions of nonexamining, reviewing physicians, when contrary to the opinion of a treating physician, are entitled to little weight and do not, `taken alone, constitute substantial evidence.'" Gray v. Comm'r of Soc. Sec., 2013 WL 6840288 *3 (11th Cir. Dec. 30, 2013) (per curiam) (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985)). Nevertheless, if an ALJ properly discounts a treating physician's opinion, then an ALJ may rely on contrary opinions of non-examining physicians. See Wainwright v. Comm'r of Soc. Sec., 2007 WL 708971 (11th Cir. Mar. 9, 2007) (per curiam) (holding that the ALJ properly assigned substantial weight to non-examining sources when he rejected a treating psychologist's opinion and stated proper reasons for doing so); Ogranaja v. Comm'r of Soc. Sec., 186 Fed. Appx. 848, 850-51 (11th Cir. 2006) (per curiam) (noting that an ALJ may consider reports and assessments of state agency physicians as expert opinions and finding that the ALJ's decision was supported by substantial evidence because the ALJ "arrived at his decision after considering the record in its entirety and did not rely solely on the opinion of the state agency physicians.").
Although the ALJ adopted Dr. Heilpern's RFC assessment in full, the ALJ did so after properly rejecting the other opinion evidence of record. Moreover, the ALJ assessed other medical evidence that established diagnoses of "mild chronic obstructive pulmonary disorder" and "diagnostic imaging of [Ms. Minnifield's] lungs showing no significant findings." (Doc. 6-2, p. 24; Tr. 23). Therefore, the ALJ did not rely solely upon the opinion of a state agency physician in making RFC findings. Accordingly, substantial evidence supports the ALJ's decision to deny benefits. See e.g., Osborn v. Barnhart, 194 Fed. Appx. 654, 667 (11th Cir. 2006) (per curiam) (holding that the ALJ did not err in giving more weight to a non-examining physician and minimal weight to the treating physician because the treating physician's opinion was not supported by objective medical evidence); Wilkinson v. Comm'r of Soc. Sec., 289 Fed. App'x. 384, 386 (11th Cir. 2008) (per curiam) ("The ALJ did not give undue weight to the opinion of the non-examining state agency physician because he did not rely solely on that opinion.").
For the reasons outlined above, the Court concludes that the ALJ's decision is based upon substantial evidence, and the ALJ applied proper legal standards. The Court will not reweigh the evidence or substitute its judgment for that of the Commissioner. Accordingly, the decision of the Commissioner is due to be affirmed. The Court will enter a separate order consistent with this memorandum of opinion.
