SONJA F. BIVINS, United States Magistrate Judge.
Plaintiff Claudia M. Reed ("Plaintiff") brings this action seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability, disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq., and 1381 et seq. On April 24, 2012, the parties consented to have the undersigned conduct any and all proceedings in this case; and as a result, this action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c). (Docs. 22, 23). Oral argument was held on April 24, 2012. Upon careful consideration of the administrative record, the memoranda of the parties, and the representations of counsel at oral argument, it is hereby
Plaintiff protectively filed applications for a period of disability, disability insurance benefits, and supplemental security income on May 14, 2009. (Tr. 131-37). Plaintiff alleges that she has been disabled since May 9, 2009, due to a heart condition and depression. (Id. at 131, 151, 183). Her application was denied at the initial stage (id. at 78-82), and she filed a timely Request for Hearing before an Administrative Law Judge ("ALJ"). (Id. at 83-84). On November 22, 2010, Administrative Law Judge Linda Helm held an administrative hearing, which was attended by Plaintiff, her attorney, and vocational expert Jody Skinner. (Tr. 32-63). On December 9, 2010, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. (Id. at 13-31). Plaintiff's request for review was denied by the Appeals Council ("AC") on May 27, 2011. (Id. at 1-4, 9-12).
The parties agree that this case is now ripe for judicial review and is properly
Plaintiff was born on March 1, 1976, and was 34 years old at the time of the administrative hearing. (Tr. 37, 64, 66). She earned her GED and has worked in the past as a day care worker, fast food worker, and cashier/checker. (Id. at 25, 38, 42, 152, 176, 201). Plaintiff reported that she stopped working due to chest pains, numbness in her hands, and swelling. (Id. at 151). Plaintiff also reported that since she experienced a heart attack, she "stay[s] out of breath all the time", and that she experiences shortness of breath and tightness in her chest when walking short distances or standing for thirty minutes. (Id. at 44-49). Plaintiff indicated that she does not have any problems sitting. (Id. at 49). Plaintiff also testified that she is not receiving any treatment for her alleged depression. (Id. at 47).
According to Plaintiff, she is able to drive, clean her house, take care of her two children, aged 15 years and 16 months, and handle her finances. (Id. at 51-52). Plaintiff testified that she stays home a lot because it is a big job for her to lift her baby in and out of his car seat. (Id.).
In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining 1) whether the decision of the Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.1990).
An individual who applies for Social Security disability benefits must prove his disability. 20 C.F.R. §§ 404.1512, 416.912. Disability is defined as the "inability to do 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
In the case sub judice, the ALJ determined that Plaintiff met the non-disability requirements for disability insurance benefits through December 31, 2013. (Tr. 18). The ALJ found that Plaintiff has not engaged in substantial gainful activity since her alleged onset date and that she has the severe impairments of coronary artery disease, ischemic cardiomyopathy, chronic obstructive pulmonary disease, and asthmatic bronchitis. (Id.). The ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the listings contained in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulations No. 4. (Id. at 19).
The ALJ concluded that Plaintiff retains the residual functional capacity (hereinafter "RFC") to perform less than a full range of light work, that Plaintiff can stand/walk for no more than thirty minutes at a time and for no more than two hours in an eight-hour workday, that she can sit for six hours in an eight-hour workday, and that she can lift/carry up to twenty pounds occasionally and ten pounds frequently. The ALJ found that Plaintiff is unable to climb ladders, scaffolds, or ropes, that she cannot work at unprotected heights or around dangerous equipment, that she is unable to work in temperature extremes or humidity and wetness, and that she cannot tolerate exposure to concentrated environmental pollutants. (Id. at 20).
The ALJ next determined that Plaintiff has some credible limitations resulting from the shortness of breath and other symptoms related to her respiratory and cardiac impairments, but her statements concerning her impairments and their impact on her ability to work are considerably more limited and restricted than is established by the record as a whole. (Id. at 22-23). The ALJ concluded that Plaintiff's RFC precludes her from performing any of her past relevant work and that, considering Plaintiff's RFC and vocational factors, such as age, education and work experience, Plaintiff is able to perform other jobs existing in significant numbers in the national economy. (Id. at 25-26).
The relevant evidence of record reflects that Plaintiff was admitted to Providence Hospital on May 9, 2009, with burning in her chest that radiated up into her neck, and dyspnea.
The record includes treatment notes from W. Dale Hardy, M.D. (hereinafter "Dr. Hardy") at Mobile Heart Specialists from June 16, 2009 through March 16, 2010. (Id. at 240-77; 286; 288). After her initial inpatient treatment for non-ST segment elevation myocardial infarction, Plaintiff followed up with Dr. Hardy on June 16, 2009. Plaintiff reported that her medications made her feel "crazy,", that she has some numbness in her fingers, that she has some shortness of breath and that she was easily fatigued. (Id. at 244-45). Plaintiff also reported that she has not smoked since her heart attack. (Id.). Dr. Hardy explained that fatigue and "feeling crazy" are not side effects of aspirin or Plavix. So he advised Plaintiff not to discontinue the use of those medications. (Id. at 245). He further explained that Plaintiff's symptoms could come from Pravastatin or Lisinopril, and directed her to stop taking Lisinopril for a week to see if her symptoms resolved and if they did not, to restart the Lisinopril and repeat the process by stopping the Pravastatin. (Id.).
The July 17, 2009 treatment notes reflect that Plaintiff reported that she was feeling better, that she did not stop any of her medicines and that all of her symptoms resolved. She also reported some burning and tingling in her chest but denied any actual chest pain or pressure, exertional symptoms, shortness of breath, palpitations, or syncope. Dr. Hardy observed that Plaintiff had some mild transaminase elevation in her lab work. Plaintiff was directed to continue with pravastatin, lisinopril, aspirin, and Plavix. (Id. at 241-42).
On September 10, 2009, Plaintiff presented to the Emergency Room at Providence Hospital complaining of chest pain. (Id. at 247-65). An x-ray of Plaintiff's chest was taken and revealed normal heart with clear lung functions. (Id. at 258). A nuclear stress test with angina was performed and showed a large severe predominately fixed defect in the mid to distal anterior and anterior septal, apical and distal inferior walls consistent with transmural scar and mildly depressed left ventricular systolic function with regional motion abnormalities with an ejection fraction of 40%. (Id. at 255).
On exam, Plaintiff had an abnormal heart rhythm, which was determined to be artifact and not ventricular tachycardia.
Phillip W. Lambert, a single decision-maker ("SDM") with the Agency, completed a physical RFC assessment dated October 27, 2009. Mr. Lambert assessed Plaintiff with coronary artery disease, ischemic cardiomyopathy, ejection fraction equals 40%, and fatigue. He opined that Plaintiff could occasionally and frequently lift 10 pounds, stand and/or walk about 2 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, and push and/or pull for an unlimited amount of time. Additionally, Mr. Lambert opined that Plaintiff has no limitations in manipulative, visual, or communicative ranges, that she can occasionally climb ramps/stairs, and that she can never climb ladder/rope/scaffolds. He also opined that Plaintiff should avoid concentrated exposure to extreme heat, extreme cold, fumes, odors, dusts, gases, and poor ventilation as well as all exposure to hazards such as machinery and heights. (Id. at 68-75).
The record includes a letter written by Dr. Hardy and dated December 10, 2009. In it, Dr. Hardy notes that he has treated Plaintiff since her heart attack, and that aside from the chest pain she experienced in September 2009, which was attributed to acid reflux, she has not reported any chest pain. Dr. Hardy indicates that Plaintiff has a decrease in her left ventricular function but no symptoms of heart failure, and that Plaintiff's right distal coronary artery has a lesion, which is relatively severe, but is in a small vessel and is medically treatable. He further notes that in Plaintiff's July 17, 2009 office visit, she was not symptomatic from a cardiac standpoint. He observed that she "probably does have some decrease in her functional capacity from her reduction in her left ventricular function at 35-40%, which is documented on several cardiac studies. If being considered for disability, she may require a formal disability evaluation, which we are unable to provide at this point." (Id. at 270).
Dr. Hardy's treatment notes dated January 12, 2010 reflect that Plaintiff reported shortness of breath and fatigue. She also reported dyspnea on exertion with moderate activity and that she "just gives out." She denied paroxysmal nocturnal dyspnea
During Plaintiff's March 16, 2010 office visit, she again reported shortness of breath, but denied any chest pain. Dr. Hardy noted that the chest x-ray and BNP tests were normal and showed no evidence of heart failure, that Plaintiff's pulmonary vascularity was normal, and that her lungs were clear of acute infiltrates. Additionally, Plaintiff's cardiac silhouette was normal in size. Dr. Hardy decided to continue Plaintiff on Plavix although she would have normally come off of it in May 2010, which is one year from her surgery. He opined that Plaintiff was being provided Plavix at no charge, and it was reasonable to continue her on it considering that she has multiple stents. (Id. at 271-72).
Dr. Hardy's treatment notes dated September 28, 2010 reflect that Plaintiff reported that she was no longer taking her beta-blocker, ace-inhibitor, and statin because they were making her sick. Specifically, Plaintiff stated that her medications were making her forgetful and that she felt better after she ceased taking them. She denied chest pain and reported that her breathing has gotten significantly better since she started exercising on a regular basis. Dr. Hardy noted that Plaintiff's weight was unchanged since her last visit. He discontinued Plavix since her heart attack was over a year ago, but instructed her to continue to take an aspirin a day. He also informed Plaintiff that forgetfulness is not a typical side effect of Lisinopril, Lopressor, or Pravastatin, and he recommended that Plaintiff start taking the medicines again, one at a time, at one to two week periods, to see if her symptoms reoccur. He explained to her the benefits of these medications in the reduction of cardiac events. She was directed to follow up in six months. (Id. at 286, 288).
Plaintiff was treated by Thomasina Sharpe, MD (hereinafter "Dr. Sharpe") at the Mobile County Health Department on April 19, June 7, and October 13, 2010. (Id. at 278-87). Treatment notes dated April 19, 2010 reflect that Plaintiff reported shortness of breath with exertion, but not at night. Plaintiff also reported that she used a relative's inhaler, which improved her shortness of breath. She reported no chest pain, discomfort, congestion, or palpitations. On exam, she had normal heart rate, rhythm and heart sounds, and no murmurs or edema were noted. Plaintiff was assessed with chronic obstructive pulmonary disease and provided Ventolin HFA CFC free 90 mcg/inh inhaler, Flovent HFA CFC free 110 mcg/inh inhaler, and Albuterol PRN. (Id. at 281-83).
During a June 7, 2010 office visit with Dr. Sharpe, Plaintiff continued to report shortness of breath with or without exertion, that she was taking multiple cardiac medications, and that she forgets to take her medications often. On exam, Plaintiff appeared in acute distress. Plaintiff was informed that she was not a good candidate for birth control. (Id. at 278-80, 284-85).
Dr. Sharpe's treatment notes dated October 14, 2010 reflect that Plaintiff reported shoulder and neck pain lasting a week. She also reported that she felt like she had "slept wrong." On exam, Plaintiff was in no acute distress. Respiration rhythm and depth were normal, and no wheezing or rales/crackles were heard. Spasm over Plaintiff's trapezius muscle was observed, and Plaintiff had full range of motion, with pain, in the shoulders. Plaintiff was educated about pain management, and she
The record includes a letter from Dr. Sharpe, dated October 14, 2010, and addressed to "whom it may concern." In the letter, Dr. Sharpe advised that: "[Plaintiff] has Coronary Artery Disease and earlier this year she suffered a Myocardial infarction and had stents placed in her coronary arteries. She also suffers from Chronic Obstructive Pulmonary Disease and Asthmatic Bronchitis." (Id. at 287).
Plaintiff argues that the ALJ erred by failing to order a consultative cardiac exam to determine the severity of and limitations resulting from her cardiac impairments, which include coronary artery disease and ischemic cardiomyopathy. Specifically, Plaintiff notes that Dr. Hardy's opinion indicated Plaintiff needed a formal disability evaluation. (Doc. 13). The Commissioner responds that the ALJ considered the medical opinions in the record and is permitted to issue a decision without obtaining additional evidence so long as the record as a whole provides a sufficient basis to make an informed disability decision. (Doc. 20).
It is well established that a hearing before an ALJ in social security cases is inquisitorial and not adversarial. A claimant bears the burden of proving disability and for producing evidence in support of his claim while the ALJ has "a basic duty to develop a full and fair record." Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.2003) (per curiam); see also Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir.2007). This duty to develop the record exists even when the claimant is represented by counsel. Brown v. Shalala, 44 F.3d 931, 934 (11th Cir.1995). Indeed, applicable Social Security regulations provide that the Commissioner will pay the reasonable cost of providing existing medical records the Commissioner needs or requests. Hargove v. Astrue, 2012 WL 1815600, *10, 2012 U.S. Dist. LEXIS 69821, *31 (N.D.Fla. Mar. 15, 2012). The ALJ's duty to develop the record is triggered when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. Strawder v. Astrue, 2011 WL 5057201, *7, 2011 U.S. Dist. LEXIS 122843, *20 (N.D.Fla. Aug. 8, 2011).
The responsibility for determining a plaintiff's RFC
In Siverio v. Commissioner, 461 Fed. Appx. 869, 871 (11th Cir.2012), a panel of the Eleventh Circuit recently discussed the ALJ's duty with respect to the RFC
In the instant case, the ALJ, in discussing Plaintiff's functional limitations, and the records of Plaintiff's treating physicians, stated as follows:
(Tr. 25).
The undersigned finds that substantial evidence does not support the ALJ's RFC assessment. First of all, while neither of Plaintiff's treating physicians offered an opinion regarding any functional limitations, Dr. Hardy did not simply state that Plaintiff probably does have some decrease in her functional capacity because of her cardiac impairments, as stated in the ALJ's opinion. Instead, he noted that the reduction in Plaintiff's left ventricular function at 35-40% is documented on several cardiac studies, and that if she was being considered for disability, she may require a formal disability evaluation. (Tr. at 270). Secondly, the ALJ opted not to have a consultative evaluation although the only functional assessment in the case was rendered by Phillip Lambert, who the Commissioner acknowledges is a single decision maker
For the reasons set forth, and upon careful consideration of the administrative record, memoranda of the parties and arguments at oral argument, it is hereby