Filed: Aug. 27, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-14671 Date Filed: 08/27/2015 Page: 1 of 32 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-14671 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-23265-FAM LAZARA PEREZ, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (August 27, 2015) Before JORDAN, JILL PRYOR and FAY, Circuit Judges. PER CURIAM: Case: 14-14671 Date Filed: 08/2
Summary: Case: 14-14671 Date Filed: 08/27/2015 Page: 1 of 32 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-14671 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-23265-FAM LAZARA PEREZ, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (August 27, 2015) Before JORDAN, JILL PRYOR and FAY, Circuit Judges. PER CURIAM: Case: 14-14671 Date Filed: 08/27..
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Case: 14-14671 Date Filed: 08/27/2015 Page: 1 of 32
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14671
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-23265-FAM
LAZARA PEREZ,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 27, 2015)
Before JORDAN, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Lazara Perez appeals summary judgment affirming denial of her application
for supplemental security income (“SSI”). We reverse and remand for further
proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 24, 2010, Perez filed an application for SSI under Title XVI of the
Social Security Act and alleged a disability onset date of January 2, 2005. Perez
maintained she was disabled because of a stroke, difficulty walking, depression,
and anxiety. Her application was denied initially and upon reconsideration.
Through counsel, Perez requested and was granted an administrative hearing
before an administrative law judge (“ALJ”).
A. Medical Evidence
1. Physical Impairments and Assessments
Perez, a resident of Miami-Dade County, Florida, entered the emergency
room at Kendall Regional Medical Center on November 23, 2009, with complaints
of nausea, vomiting, and dizziness. A magnetic resonance imaging scan of her
brain showed she had suffered a stroke. She also had high-blood pressure. When
she was discharged on November 26, 2009, Perez was diagnosed with a stroke,
hypertensive crisis, and high cholesterol.
On March 2, 2010, Perez returned to the emergency room at Kendall
Regional after a doctor’s appointment in which she was found to have elevated
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blood pressure. She also reported anxiety and panic attacks. Her consultation
report stated she had malignant hypertension and a history of cerebrovascular
accident. On March 11, 2010, Perez saw Dr. Basilio Garcia-Sellek and
complained of constipation and fatigue from her blood-pressure medication. Dr.
Garcia-Sellek diagnosed her with hypertension, status post-stroke, and referred her
to a cardiologist.
Perez saw Dr. Rene Hasbun on January 5, February 17, and May 11, 2012,
for abdominal pain, nausea, melena (black or tarry stool), heartburn, and difficulty
walking. In January and February, Dr. Hasbun reported Perez had a diminished
range of motion, but she had exhibited a full range of motion in May. Dr. Hasbun
diagnosed Perez with abdominal pain, gastro-esophageal reflux disease, and
hypertension. Dr. Hasbun further concluded Perez had a malignancy of multiple
myelomas (cancer of plasma cells) and recommended she see an oncologist.
On May 10, 2012, Dr. Hasbun completed a Medical Assessment of Ability
to do Work-Related Activities (Physical). He opined Perez had generalized pain
from multiple myelomas and was unable to lift or carry 10 pounds. Dr. Hasbun
concluded Perez was able to (1) sit, stand, or walk for one hour in an eight-hour
workday, but not without interruption; (2) occasionally use her hands for simple
grasping and fine manipulation; (3) occasionally use her right foot; and
(4) frequently use her left foot. According to Dr. Hasbun, Perez could (1) never
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climb, balance, stoop, crouch, kneel, crawl, or push and pull; (2) occasionally
reach or handle; (3) frequently feel; and (4) continuously hear or speak.
Dr. Hasbun noted Perez would be environmentally restricted in all areas, because
of an unsteady gait and impaired balance.
The treatment notes of Dr. Fernando Mendez-Villamil, Perez’s psychiatrist,
provided a description of Perez’s psychological symptoms. According to a June
2002 initial Psychiatric Evaluation Form, Perez reported hearing voices and was
noted as having paranoid delusions and poor social functioning. Dr. Mendez-
Villamil found Perez was calm and cooperative, had good eye contact, and had a
coherent and relevant thought process. He diagnosed Perez with major depressive
disorder, which was recurrent and severe with psychotic features.
Dr. Mendez-Villamil saw Perez several times between February 11, 2010,
and May 1, 2012. In most visits, Dr. Mendez-Villamil noted Perez had a
disheveled appearance, retarded psychomotor activity, fair eye contact, a depressed
and anxious mood, blunt affect, alert demeanor, poor immediate and recent
memory, impaired concentration, thought blocking, and impoverished thought
process, but no suicidal or homicidal thoughts or delusions. Additionally,
Dr. Mendez-Villamil noted in approximately half the visits Perez reported auditory
hallucinations. Perez frequently reported during her visits with Dr. Mendez-
Villamil she was depressed; she experienced poor sleep, decreased energy, and
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motivation; and she was not stable on medications. Dr. Mendez-Villamil
repeatedly diagnosed Perez with major depressive disorder, which was recurrent
and severe with psychotic features.
On July 29, 2011, Dr. Mendez-Villamil completed a Medical Assessment of
Ability to do Work-Related Activities (Mental) and found Perez had no useful
ability to follow work rules; relate to coworkers; deal with the public or with work
stress; maintain attention or concentration; understand, remember, and carry out
complex or detailed job instructions; maintain her personal appearance; behave in
an emotionally stable manner; relate predictably in social situations; or
demonstrate reliability. Dr. Mendez-Villamil determined Perez had a poor ability
to interact with supervisors; function independently; and understand, remember,
and perform simple job instructions. Dr. Mendez-Villamil opined Perez’s illness
had affected her concentration and attention span. She had “no ability to deal with
[the] public because of her instability.” R. at 370. Dr. Mendez-Villamil further
stated Perez’s illness had affected her “capacity to remember even simple job
instructions,” and her social skills in that “she doesn’t shower, and gets irritable.”
R. at 371. Dr. Mendez-Villamil concluded Perez was “[u]nable to work at all due
to the severity of her illness, poor concentration, [and] poor energy.” R. at 371.
On May 7, 2012, Dr. Mendez-Villamil completed a second Medical
Assessment of Ability to do Work-Related Activities (Mental) and found Perez had
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a poor ability to follow work rules; relate to coworkers; deal with the public and
work stress; interact with supervisors; maintain attention or concentration;
understand, remember, and carry out complex, detailed, or simple job instructions;
maintain her personal appearance; behave in an emotionally stable manner; relate
predictably in social situations; and demonstrate reliability. Dr. Mendez-Villamil
opined Perez’s illness had “affected her concentration and social skills,” and she
had “lost all ability to deal with any stressors.” R. at 386. Dr. Mendez-Villamil
further opined Perez’s illness had affected her energy, concentration, emotional
stability, and reliability. Dr. Mendez-Villamil determined Perez was unable to
manage benefits in her own best interest and unable to work, because of her poor
concentration, energy level, and decreased ability to deal with stressors.
2. Consultative Reports and Medical Opinions
On October 9, 2010, consulting psychologist, Dr. Mayra Miro, examined
Perez and performed a General Clinical Evaluation with Mental Status
Functioning. Dr. Miro observed Perez (1) maintained good eye contact, (2) was
well groomed and appropriately dressed, (3) ambulated without gait disturbance or
apparent difficulty, (4) had clear and understandable speech, and (5) had an open
and straightforward self demeanor but seemed somewhat anxious. Perez reported
being completely independent in her self-care, including grooming, dressing,
bathing, and eating. She reported, however, loss of desire for social activities.
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Testing results showed Perez had “consistent difficulties in concentration tasks,”
but her persistence was adequate. R. at 313. Dr. Miro also noted Perez’s thought
process was coherent, goal oriented, and organized. Dr. Miro further found Perez
“showed clinical symptoms of depression that seemed situational and associated to
her difficulties in coping with changes in physical functioning.” R. at 313.
Dr. Miro opined Perez was “likely to experience limitations in carrying out
complex instructions and achieving satisfactory work performance,” but her
“overall results suggested that [she] ha[d] a good potential for a return-to-work in a
suitable type of occupation with appropriate supportive interventions and treatment
follow-up.” R. at 313. Although Dr. Miro stated Perez appeared to be competent
to manage her funds, Dr. Miro also recommended she be supervised in her
financial management, given her difficulties in attention and concentration.
In an October 26, 2010, Report of Contact, agency reviewer, Sandra Forbes,
reported having a telephone conversation with Perez. In that conversation, Perez
reported being completely independent in grooming, dressing, bathing, and eating.
Perez cooked dinner for her family most days and drove her ten-year-old daughter
to and from school. She oversaw her daughter’s homework to ensure her daughter
completed it but was limited, because of her difficulties with English.
On November 8, 2010, agency medical consultant, Dr. Catherine Nunez,
completed a Mental Residual Functional Capacity (“RFC”) Assessment and a
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Psychiatric Review Technique. Dr. Nunez opined Perez was moderately limited in
her abilities to (1) understand and remember detailed instructions, (2) carry out
detailed instructions, and (3) maintain attention and concentration for extended
periods. Dr. Nunez found Perez not to be significantly limited in any other areas.
She further opined Perez could follow instructions and persist on simple tasks on a
regular basis, but she had some limitations associated with both mental and
physical impairments affecting her motivation and desire to complete tasks. Dr.
Nunez determined Perez was “socially appropriate and capable of adequate
communication with others,” but she was best suited to a setting with low social
demand. R. at 326. Dr. Nunez found Perez “would be able to adapt to the
environmental demands of a work-like setting,” and her overall functioning was
not significantly restricted. R. at 326.
On February 1, 2011, state agency consultant, Dr. Hector Meruelo,
performed a physical examination and noted Perez reported she had had four
strokes, suffered from high-blood pressure, and had a heart murmur. Perez also
reported she could bathe, dress, write, eat using a knife and fork, open door knobs
and jar lids, and button blouses. Dr. Meruelo determined Perez had no impairment
to dexterity, and her gait was normal. Perez could (1) get in and out of a chair and
on and off the examining table by herself without difficulty and (2) walk on heels
and toes.
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Dr. Meruelo found no edema, cyanosis, trophic changes, varicose veins, or
venous insufficiency in Perez’s lower extremities. Perez’s joints were all normal;
there was no evidence of inflammatory or deforming arthritis or arthropathy, motor
or sensory deficits, or pathological reflexes. According to Dr. Meruelo, Perez’s
strength was: arms “5/5”; lower right extremity “4+/5”; and lower left extremity
“1+/5.” R. at 346. Dr. Meruelo opined: “There could be considerably very mild
weakness of the right lower extremity but [this] is not a striking finding.” R. at
346. Dr. Meruelo determined Perez’s hypertension was well controlled, and she
had no other hypertensive complications after her stroke a year prior to the
examination. Although Perez complained of some heaviness in her right lower
extremity, Dr. Meruelo found “no specific detectable neurological impairment.”
R. at 346.
On February 14, 2011, state agency reviewer, Marta Sanchez, completed a
Physical RFC Assessment. Sanchez opined Perez (1) occasionally could lift or
carry up to 20 pounds, (2) frequently could lift or carry up to 10 pounds, (3) could
stand, walk, or sit approximately 6 hours in an 8-hour workday, and (4) had an
unlimited ability to push and pull. Sanchez determined Perez had no postural,
manipulative, visual, communicative, or environmental limitations. Sanchez
referenced previous findings Perez did not limp and could walk on her heels and
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toes. She also noted Dr. Meruelo’s findings that Perez exhibited arm strength of
5/5 and any weakness in her right lower extremity was not striking.
B. Hearing Testimony and Evidence of Wages
At the June 2012 hearing before the ALJ, Perez testified she had completed
high school in Cuba and came to the United States from Cuba in 1980. Perez
testified, at one time, she was able to read, write, speak, and understand English,
but she had difficulties doing so after her stroke. Perez had completed training as a
nursing assistant. Although she had training in the travelling and tourism business,
she had not been employed that area.
Regarding work experience, Perez stated she previously had been
self-employed as a caretaker for one person. That job entailed providing breakfast,
bathing the person, lifting her, and helping in other ways as needed. Perez also
discussed a prior job as an event worker and explained she had worked different
events and performed various tasks, including giving out tickets, helping with
different chores, and serving beverages. She did not lift any weight in that job.
Perez had not worked since June 24, 2010, the date on which she filed her SSI
application.
Since suffering a stroke in November 2009, Perez testified her right leg and
right arm remained somewhat disabled. She generally could walk about a block
before having to stop and sit down. Thereafter, she could not continue, because of
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pain in her right leg. Perez stated she could stand in a fixed position for 10 to 15
minutes, after which she experienced pain around her waist and downward toward
her leg on her right side. When Perez tried to squat or kneel, her body leaned to
one side. Consequently, she could not lift anything from the ground.
Perez further testified she was right-handed but did not have strength in her
right arm. She could lift a box of tissues and pick up coins but could not lift a
gallon of milk. She previously had cared for her grandson and son, who were
about the same age, but she no longer was able to do that, because she could not
lift them.
Perez testified she began seeing a psychiatrist, because she lacked the will to
do anything, and she felt worthless; since her stroke, her entire life had changed.
Perez’s children left her medications in a container, indicating when she needed to
take them, and Perez took her medications before her children left for work and
again in the evening. She stated she periodically watched television for a short
while, but could not concentrate. Perez was unable to read books and magazines,
because she could not understand what she read. She had no social life and stayed
at home with her grandchildren. Perez’s daughters performed the household
chores, such as cleaning, and did not allow her to cook because she frequently
forgot things. Perez explained she could drive only short distances, because she
suffered from panic attacks and never had driven on the expressway.
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Using the Dictionary of Occupational Titles (“DOT”), the vocational expert
(“VE”), identified Perez’s caretaker job as a personal-care aide, which was a semi-
skilled, medium-duty job. The VE could not define Perez’s event-worker job
under the DOT; based on her testimony, he explained the job was light and
unskilled. The ALJ then asked the VE whether a person could perform Perez’s
past work if she (1) had training in travel and tourism and as a nurse’s aide; (2) had
a twelfth-grade level of education; (3) could speak Spanish and English but had
problems with English; (4) was 47 years old 1; (5) could perform medium work;
and (6) had some psychological problems that might limit her to be off task not
more than 5 percent of the time. The VE responded such a person could perform
both of Perez’s past jobs.
The ALJ asked the VE whether that person could perform Perez’s past work,
if she was limited to light work. The VE responded such a person could perform
Perez’s event-worker job. The ALJ then asked what work such a person could do
if she was limited to performing only simple, routine, repetitive tasks and could
perform medium work. The VE responded such a person could perform the event-
worker job and also could (1) work as a hand packer, which was an unskilled job,
requiring medium work with 89,000 positions nationally and 4,200 positions in
Florida; (2) perform light housecleaning, which was light, unskilled work with
1
Based on Perez’s SSI application, she was 49 at the time of the hearing.
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237,000 jobs nationally and 2,500 in Florida; and (3) work as a small-parts
assembler, which was light, unskilled work with 235,000 jobs nationally and 1,500
in Florida.
Perez’s counsel asked the VE whether a claimant could perform Perez’s past
relevant work, if she had the same vocational background as Perez and the
limitations identified in Dr. Hasbun or Dr. Mendez-Villamil’s assessments. The
VE stated such a claimant with either set of limitations would be unable to perform
Perez’s past relevant work or any other jobs that exist in significant numbers in the
national economy. As an event worker, Perez earned $421.75 in 2004, and
$391.19 in 2005. The record contains no evidence of event-worker earnings from
any other years.
C. ALJ and Appeals Council’s Decisions
The ALJ concluded Perez had not been under a disability since June 24,
2010, the date on which she filed her application for SSI. The ALJ determined
Perez had not engaged in substantial gainful activity since that date. The ALJ
found Perez suffered from the following severe impairments: status post-stroke,
hypertension, major depressive disorder, and anxiety disorder. In discussing
Perez’s severe impairments, the ALJ did not mention her multiple myeloma. The
ALJ determined Perez did not have an impairment or combination of impairments
that met or medically equaled the severity of those listed in 20 C.F.R. Part 404,
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Subpart P, Appendix 1. Specifically, the examining consulting psychologist, Dr.
Miro, reported Perez had no more than mild restrictions in her activities of daily
living, because she testified her children helped her with housework, but she
reported being independent in self-care, including grooming, dressing, bathing, and
eating. Additionally, the ALJ noted Perez reported to the state agency she was
able to clean around the house, cook, drive her ten-year-old daughter to and from
school, and oversee her daughter’s homework. Perez had no more than moderate
difficulties with social functioning; although she testified she had no social life, she
reported to the state agency she lived with her children and reported no difficulties
with that arrangement. Additionally, Dr. Mendez-Villamil noted Perez was
cooperative, and the ALJ observed Perez interacted appropriately with her counsel,
court staff, and the ALJ.
The ALJ determined Perez had moderate difficulties regarding
concentration, persistence, or pace. The ALJ explained Perez’s testimony
regarding her difficulty concentrating was consistent with Dr. Miro’s opinion. The
ALJ noted, however, Perez was able to follow the hearing without perceptible
difficulties and to provide meaningful testimony.
The ALJ next determined Perez had the RFC to perform a reduced range of
light work, as defined in 20 C.F.R. § 416.967(b). Because of her psychological
problems, however, she could perform only simple, routine, and repetitive tasks.
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Ultimately, the ALJ found Perez’s medically determinable impairments reasonably
could be expected to cause her alleged symptoms. Nevertheless, the ALJ
determined Perez’s statements regarding the persistence, severity, and limiting
effects of her impairments were inconsistent with the medical evidence, because
she (1) had not been hospitalized or required emergency-room treatment at any
time relevant to the ALJ’s decision, (2) had not reported any side effects from
medication to her treating or examining sources, and (3) was independent in self-
care; consequently, her actual functioning evidenced greater abilities than alleged.
The ALJ accorded little weight to the opinion of Perez’s treating physician,
Dr. Hasbun, that she had very limited physical functioning and explained it was
inconsistent with Dr. Hasbun’s contemporaneous treatment notes, the opinion of
consultative examiner Dr. Meruelo, and the record as a whole. The ALJ
emphasized Dr. Meruelo’s findings (1) Perez could tandem walk and heel-and-toe
walk; (2) her joints appeared normal; (3) her upper extremities were rated at 5/5
strength; and (4) her strength in her lower extremities was 4+/5 and 1+/5.
The ALJ accorded considerable weight to Dr. Meruelo’s opinion Perez had
no impairment of either ambulation or dexterity, given Dr. Meruelo’s physical
findings and Perez’s history, symptomatology, ambulation, and dexterity. The
ALJ explained Dr. Meruelo’s opinion was consistent with the record medical
evidence. In deference to Perez’s subjective complaints, however, the ALJ limited
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Perez’s physical functioning to the exertional demands of light work. Likewise,
the ALJ accorded considerable weight to agency reviewer Marta Sanchez, to
whom the ALJ referenced as a “reviewing physician,” because Sanchez’s opinion
Perez retained the ability to perform the physical demands of light work, afforded
“sufficient weight” to Perez’s subjective complaints about pain. R. at 63.
The ALJ accorded little weight to the opinion of treating psychiatrist, Dr.
Mendez-Villamil, that Perez had no more than a poor ability to perform most
mental work-related functioning. The ALJ explained: “While I find that
Dr. Mendez-Villamil’s opinion was inconsistent with his treatment notes, I find
that his treatment notes are scant and rely entirely upon a form of check boxes
which generally indicate that [Perez] was cooperative, had fair eye contact, was
oriented [and] had no delusions, or compulsions.” R. at 63. Additionally, the ALJ
found Dr. Mendez-Villamil’s opinion was inconsistent with Perez’s actual
functioning.
The ALJ accorded considerable weight to Dr. Miro’s opinion Perez was
likely to experience limitations in carrying out complex instructions and achieving
satisfactory work performance. The ALJ explained Dr. Miro’s opinion was
consistent with the record as a whole and with Perez’s overall functioning. The
ALJ also accorded considerable weight to the opinion of consulting psychologist,
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Dr. Nunez, that Perez retained the ability to manage her finances and function in a
work-like setting, because it was consistent with the record medical evidence.
Relying on the VE’s testimony, the ALJ determined Perez was capable of
performing her “past relevant work” as an event worker, because it did not require
the performance of work-related activities precluded by her RFC. R. at 64. The
ALJ did not make specific findings about Perez’s ability to perform other work.
Perez sought review by the Appeals Council of the ALJ’s decision. The Appeals
Council denied the request, which made the ALJ’s decision the final decision of
the Commissioner of Social Security (“the Commissioner”).
D. Proceedings in District Court
In proceedings before the district judge, Perez and the Commissioner each
moved for summary judgment. Perez argued the ALJ erred in considering her
event-worker job to be past relevant work, because her earnings from that job were
minimal. A magistrate judge issued a Report and Recommendation (“R&R”),
recommending summary judgment for the Commissioner. The magistrate judge
explained any error in treating Perez’s event-worker job as past-relevant work was
harmless, because of the VE’s testimony Perez could perform other work available
in significant numbers in the national economy. The district judge adopted the
R&R over Perez’s objections and granted summary judgment to the
Commissioner.
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II. DISCUSSION
A. Review Standards for Treating Physicians and Reviewing State Agency
Perez argues the ALJ failed to identify valid reasons for discounting the
weight of the opinions of treating physicians, Dr. Mendez-Villamil and Dr.
Hasbun. Instead, the ALJ gave conclusory statements regarding alleged
inconsistencies between their treatment notes and assessments without identifying
any inconsistencies. Additionally, Perez argues the ALJ improperly accorded
greater weight to the opinions of Sanchez, a state agency, non-examining reviewer.
We review the Commissioner’s decision to determine if it is supported by
substantial evidence and based on proper legal standards. Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). Substantial evidence is “more
than a scintilla” and is relevant evidence a reasonable person would accept as
adequate to support a conclusion.
Id. (internal quotation marks omitted). We may
not decide the facts anew, reweigh the evidence, or substitute our judgment for that
of the Commissioner. Mitchell v. Comm’r of Soc. Sec.,
771 F.3d 780, 782 (11th
Cir. 2014). Even if the evidence preponderates against the Commissioner’s factual
findings, we must affirm if substantial evidence supports the decision.
Crawford,
363 F.3d at 1158-59.
“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
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contrary.” Id. at 1159 (internal quotation marks omitted). “‘[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.” Phillips v.
Barnhart,
357 F.3d 1232, 1241 (11th Cir. 2004). The ALJ clearly must articulate
reasons when electing to disregard the opinion of a treating physician.
Id.
In Moore v. Barnhart, the ALJ discredited the testimony Moore’s treating
chiropractor, Dr. Pardo, about Moore’s fibromyalgia.
405 F.3d 1208, 1210, 1212
(11th Cir. 2005). Dr. Pardo, who had treated Moore for approximately six months,
opined Moore was unable to work indefinitely.
Id. at 1212. The ALJ found this
opinion deficient, because (1) Dr. Pardo failed to account for Moore’s diverse daily
activities; (2) Dr. Pardo failed to give any specific assessment of Moore’s
functional capacity or explain how it bore on the conclusion Moore could not
work; and (3) Dr. Pardo’s opinion was prepared on a short form used to support
Moore’s food-stamp eligibility.
Id. As to that particular determination by the ALJ,
we explained as follows: “Where our limited review precludes re-weighing the
evidence anew, and as the ALJ articulated specific reasons for failing to give Dr.
Pardo’s opinion controlling weight, we find no reversible error.”
Id. (citation
omitted).
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In Lewis v. Callahan, however, we concluded the ALJ lacked “‘good
cause’” to credit the opinions of non-treating consulting physicians over the
opinion of the claimant’s treating physician. 125 F.3d 1436, 1440 (11th Cir.
1997). The claimant, Lewis, had suffered a heart attack and was diagnosed with
unstable angina, atherosclerotic heart disease, and ventricular tachycardia.
Id. at
1437. Lewis’s treating cardiologist, Dr. Anderson, opined on Lewis’s functional
capacity and stated, though Lewis had improved somewhat after quintuple bypass
surgery, in view of his “‘documented cardiac problems . . . he should qualify for
disability and be declared completely disabled.’”
Id. at 1437-38. Lewis’s general
practitioner, Dr. Timberlake, similarly opined Lewis was “severely disabled with a
large ventricular aneurysm in his heart and severe coronary artery disease.”
Id. at
1438 (alteration omitted). Two consulting physicians, neither of whom were
cardiologists, also examined Lewis. See
id. at 1438, 1440. The first, Dr.
Fitz-Gerald, acknowledged Lewis’s history of coronary artery and hypertensive
cardiovascular disease but opined Lewis could sit, stand, and walk for eight hours
at a time.
Id. at 1438. The second, Dr. Singleton, also acknowledged Lewis’s
history of heart disease and high-blood pressure but opined Lewis could (1) sit for
four hours at one time or six hours during the day, and (2) stand or walk for two
hours at one time or four hours during the day.
Id.
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The ALJ gave three reasons for crediting the opinions of the consulting
physicians over those of Lewis’s treating physicians; we rejected all of them. See
id. at 1440-41. First, the ALJ determined Dr. Timberlake’s conclusions regarding
Lewis’s heart were not entitled to greater weight than other medical evidence,
because he was not Lewis’s treating cardiologist.
Id. at 1440. We explained
(1) “[t]he ALJ failed to mention that this conclusion applies with equal force to the
conclusions of Dr. Fitz-Gerald and Dr. Singleton,” and (2) the ALJ’s rationale
actually bolstered Dr. Anderson’s credibility as the only examining specialist.
Id.
at 1440-41.
Second, the ALJ rejected Dr. Anderson’s assessment, which found Lewis
could no longer work as a longshoreman, but did not report Lewis was unable to
perform “any job.” Id. at 1441. We explained Dr. Anderson’s omission was of
ambiguous significance, because he also concluded Lewis was “‘completely
disabled.’”
Id. Third, the ALJ determined other objective medical evidence, (1) a
six-minute graded exercise test on a treadmill, and (2) participation in everyday
activities of short duration, such as housework and fishing, did not support the
opinions of Lewis’s treating physicians.
Id. We explained that rationale was
insufficient, because the six-minute exercise was not necessarily indicative of an
ability to work, and Lewis’s participation in everyday activities of short duration
was not inconsistent with the limitations found by his treating doctors.
Id.
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In this case, substantial evidence does not support the ALJ’s decision to
accord little weight to Perez’s treating physicians and greater weight to the
opinions of the consulting sources. Our analysis consists of three parts. First, we
analyze the reasons the ALJ gave for according little weight to Dr. Hasbun’s
opinion; second, we discuss the reasons the ALJ gave for according little weight to
Dr. Mendez-Villamil’s opinion; and third, we consider the weight accorded to
Sanchez’s opinion.
1. Dr. Hasbun’s Opinion
The ALJ gave two reasons for according Dr. Hasbun’s opinion little weight;
both were insufficient. First, the ALJ stated Dr. Hasbun’s opinion about Perez’s
limitations contradicted Dr. Hasbun’s own contemporaneous treatment notes;
however, this statement was conclusory, because the ALJ did not identify any
contradictions. The ALJ listed several medical findings after making this
statement, but those findings all came from consulting the report of the examining
physician, Dr. Meruelo. To the extent the ALJ relied upon a purported
contradiction between Dr. Hasbun’s treatment notes and assessment of Perez’s
abilities, the explanation is insufficient. See Phillips, 357 F.3d at 1241.
The ALJ’s second reason for according Dr. Hasbun’s opinion little weight
was the record as a whole was inconsistent with it, which is insufficient for three
reasons. First, in stating the record as a whole contradicted Dr. Hasbun’s opinion,
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the ALJ referred only to a discrete portion of the record, Dr. Meruelo’s assessment.
See Lewis, 125 F.3d at 1440-41. Second, the medical findings from Dr. Meruelo’s
report do not contradict Dr. Hasbun’s opinion regarding Perez’s functional
limitations. Specifically, the ALJ cited Dr. Meruelo’s conclusions (1) Perez had no
impairment to her ambulation or dexterity; (2) she could tandem and heel-to-toe
walk; (3) her joints were normal; and (4) she had 5/5 strength in her arms, and 4+/5
and 1+/5 strength in her lower extremities. None of these conclusions directly
contradicts Perez’s inability to lift 10 pounds or to walk or sit for more than an
hour in a workday or any other limitations Dr. Hasbun found to exist. See
id. at
1441. Third, portions of Dr. Hasbun’s treatment notes contradict Dr. Meruelo’s
findings, and the ALJ failed to address this fact in giving Dr. Meruelo’s assessment
greater weight. See
id. at 1440-41. For example, Dr. Hasbun’s repeated findings
Perez had difficulty walking and a limited range of motion in her extremities
contradict Dr. Meruelo’s finding Perez had no impairment to ambulation or
dexterity.
2. Dr. Mendez-Villamil’s Opinion
Similarly, the ALJ gave specific reasons for according little weight to
Dr. Mendez-Villamil’s opinion Perez had little to no ability to perform most
mental work-related functioning, but the opinion was inconsistent with (1) his
treatment notes, and (2) Perez’s actual functioning. In explaining the first reason,
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the ALJ emphasized Dr. Mendez-Villamil’s treatment notes showed Perez was
cooperative, had good eye contact, and had no delusions or compulsions. These
findings, however, do not contradict Dr. Mendez-Villamil’s ultimate conclusion,
concerning Perez’s inability to function in a work setting. See id. at 1441.
The ALJ’s second reason, Dr. Mendez-Villamil’s opinion contradicted
Perez’s actual functioning, does not constitute substantial evidence in support of
the decision to give little weight to Dr. Mendez-Villamil’s assessment. See id.
The ALJ found Perez (1) reported being independent in self-care, including
grooming, dressing, bathing, and eating, (2) sometimes cooked and cleaned at
home, and (3) oversaw her daughter’s homework. During the hearing, the ALJ
observed Perez interacted appropriately with her counsel, court staff, and the ALJ.
As we noted in Lewis, however, Perez’s ability to perform everyday activities for a
short duration is not necessarily inconsistent with Dr. Mendez-Villamil’s
assessment of her overall inability to function in a work setting. See
id.
3. Sanchez’s Opinion
In addition to “acceptable medical sources,” which include licensed
physicians and psychologists, an ALJ also may use evidence from other sources to
determine the severity of a claimant’s impairments and how they affect her ability
to work. 20 C.F.R. § 416.913(a), (d). The “other sources” referenced in
§ 416.913(d) include “[m]edical sources not listed in [§ 416.913(a)] (for example,
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nurse-practitioners, physicians’ assistants, naturopaths, chiropractors, audiologists,
and therapists).” Id. § 416.913(d)(1).
The ALJ incorrectly referred to Sanchez as a reviewing physician and
accorded her opinion considerable weight. The ALJ was permitted to consider
Sanchez’s opinion because it was an acceptable “other source.” See id.
§ 416.913(a), (d). Nevertheless, the ALJ erred in according Sanchez’s Physical
RFC Assessment considerable weight, because (1) Sanchez’s assessment
contradicts Dr. Hasbun’s opinions regarding Perez’s functional limitations, and
(2) the ALJ gave insufficient reasons to establish good cause to give Dr. Hasbun’s
opinion less than substantial weight. See
id. § 416.913(a); Phillips, 357 F.3d at
1241. Consequently, substantial evidence did not support the ALJ’s decision to
accord (1) less than substantial weight to the opinions of Dr. Hasbun and
Dr. Mendez-Villamil or (2) considerable weight to the opinions of state agency
non-examining reviewer, Sanchez.
B. Perez’s Multiple-Myeloma Impairment
Perez argues the ALJ improperly failed to find her multiple myeloma
constituted a severe impairment under the regulations. She argues the ALJ should
have recognized it as severe, because of Dr. Hasbun’s repeated diagnosis, referrals
to an oncologist, and findings she suffered generalized pain resulting from the
malady.
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In evaluating whether a claimant is “disabled” for purposes of SSI, an ALJ
uses a five-step process and analyzes whether the individual (1) is performing
substantial gainful activity, (2) has a severe impairment or combination of
impairments (3) that meets or equals an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1, (4) can perform her past relevant work, and (5) based on
her age, education, and work experience, can perform other work of the sort found
in the national economy. 20 C.F.R. § 416.920(a)(4); McDaniel v. Bowen, 800 F.2d
1026, 1030 (11th Cir. 1986). If the ALJ determines none of the claimant’s
impairments, alone or in combination, is medically severe, the ALJ must conclude
the claimant is not disabled.
McDaniel, 800 F.2d at 1030-31 (citing 20 C.F.R.
§ 416.920(c)). If the ALJ concludes the claimant’s impairments are medically
severe, then the ALJ proceeds to the third step. See
id. The claimant bears the
burden of proving she has a severe impairment or combination of impairments.
See
id. at 1030. An impairment or combination of impairments is not severe if it is
a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on the claimant’s physical or mental ability to work,
irrespective of age, education, or work experience. See Bridges v. Bowen,
815
F.2d 622, 625-26 (11th Cir. 1987).
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Perez has shown nothing in the record indicating her multiple myeloma has
had any effect on her ability to work. Therefore, she has not shown the ALJ erred
in failing to find it was a severe impairment. See id.; McDaniel, 800 F.2d at 1030.
C. ALJ’s Discrediting Perez’s Testimony Regarding the Effects of Her
Impairments
Perez argues substantial weight does not support the ALJ’s decision to
discredit her subjective testimony regarding the severity of her impairments. A
claimant becomes eligible for SSI, when she is disabled and has filed an
application for SSI benefits. 20 C.F.R. § 416.202(a), (g); see also Moore, 405 F.3d
at 1211 (“For SSI claims, a claimant becomes eligible in the first month where she
is both disabled and has an SSI application on file.”). An SSI appellant must show
she was disabled between the date on which she applied for SSI and the date of the
ALJ’s decision.
Moore, 405 F.3d at 1211.
When a claimant attempts to show disability through her own testimony
about pain or other subjective symptoms, the ALJ must consider that testimony if
the ALJ finds evidence of an underlying medical condition and either (1) objective
medical evidence to confirm the severity of the alleged symptoms arising from that
condition, or (2) the objectively determined medical condition is of a severity that
reasonably can be expected to give rise to the alleged symptoms. Foote v. Chater,
67 F.3d 1553, 1560 (11th Cir. 1995). If the claimant establishes an underlying
medical condition that reasonably could be expected to produce the symptoms, “all
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evidence about the intensity, persistence, and functionally limiting effects of pain
or other symptoms must be considered in addition to the medical signs and
laboratory findings in deciding the issue of disability.” Id. at 1561.
If the ALJ decides not to credit a claimant’s testimony regarding her
subjective symptoms, she must state “explicit and adequate reasons for doing so.”
Id. at 1561-62. Failure to state the reasons for discrediting subjective symptom
testimony “requires, as a matter of law, that the testimony be accepted as true.”
Id.
at 1562. We will not disturb “[a] clearly articulated credibility finding with
substantial supporting evidence in the record.”
Id.
In form, the ALJ complied with the requirements set forth in Foote;
however, the ALJ’s reasoning is not supported by substantial evidence. See
id. at
1561-62. First, the ALJ determined Perez had medically determinable
impairments that reasonably could be expected to cause her alleged symptoms.
See
id. at 1560. Nevertheless, the ALJ concluded the evidence contradicted
Perez’s testimony about the extent of her impairments for three reasons: (1) she
had not been hospitalized or required emergency-room treatment at any time
relevant to the decision; (2) she exhibited independence in self-care; and (3) she
had not reported any side-effects from medication to her treating or examining
sources. See
id. at 1560-62. Substantial evidence does not support the ALJ’s
conclusion, because (1) the ALJ accorded insufficient weight to the opinions of Dr.
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Hasbun and Dr. Mendez-Villamil, and (2) those opinions call into question the
ALJ’s determination Perez’s testimony about her symptoms was exaggerated. On
remand, the ALJ also should consider Perez’s hospitalizations and reports of
side-effects from medications. Because these events occurred in the months
immediately preceding Perez’s SSI application, they are pertinent to the question
of whether she was disabled during the relevant time period. See 20 C.F.R.
§ 416.929(c)(1)-(2) (providing the ALJ must consider all objective medical
evidence in the record).
D. ALJ’s Assessment of Perez’s RFC
Perez argues substantial evidence does not support the ALJ’s RFC
assessment, because the ALJ failed to take into account all the limitations from her
impairments and to weigh properly her treating doctors’ opinions. At the fourth
step in the analysis of an SSI case, the ALJ assesses the claimant’s RFC. Id.
§ 416.920(a)(4)(iv). The regulations define RFC as that which the individual is
still able to do despite limitations caused by her impairments.
Id. § 416.945(a).
The ALJ makes the RFC determination based on all relevant medical and other
evidence in the case.
Id. § 416.920(e). “That is, the ALJ must determine if the
claimant is limited to a particular work level.”
Phillips, 357 F.3d at 1241
(addressing RFC under the Social Security disability insurance regulations). The
applicable regulations define “light work” as “work [that] involves lifting no more
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than 20 pounds at a time with frequent lifting or carrying of objects weighing up to
10 pounds.” 20 C.F.R. § 416.967(b). Jobs in the “light work” category require “a
good deal of walking or standing,” or “sitting most of the time with some pushing
and pulling of arm or leg controls.” Id.
The ALJ’s RFC assessment contradicts the opinions of Perez’s treating
doctors concerning her functional limitations. For example, the ALJ determined
Perez could perform light work, which involves frequently lifting or carrying
objects weighing up to 10 pounds. See
id. § 416.967(b). But Dr. Hasbun opined
Perez was unable to lift or carry objects weighing 10 pounds. Because substantial
evidence does not support the ALJ’s decision to accord less than substantial weight
to the opinions of Perez’s treating doctors regarding Perez’s functional limitations,
substantial evidence also does not support the ALJ’s corollary RFC assessment.
E. Perez’s Past Relevant Work
Perez argues the ALJ also erred in determining her work as an event worker
constituted past relevant work, because her earnings were minimal. Consequently,
the ALJ’s finding she could perform her past relevant work was erroneous. “Past
relevant work” means work the claimant has performed “within the past 15 years,
that was substantial gainful activity.” Id. § 416.960(b)(1). Whether work
constitutes substantial gainful activity is primarily determined through the
claimant’s earnings.
Id. § 416.974(a)(1). A claimant’s earnings show she was
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engaged in substantial activity, if they average more than the larger of (1) the
amount for the previous year, or (2) $810 per month for 2004 and $830 per month
for 2005. See id. § 416.974(b)(2)(ii). 2
Perez’s event-worker job was not past relevant work, because the wages she
earned from that job, $421.75 in 2004 and $391.19 in 2005, did not rise to the level
required for substantial gainful activity. See id. This error was not harmless,
because substantial evidence does not support the ALJ’s RFC assessment.
Accordingly, the district judge on remand should instruct the ALJ to reassess
Perez’s past relevant work appropriately.
III. CONCLUSION
The ALJ did not err in failing to consider Perez’s multiple myeloma to be a
severe impairment at step two of the analysis. Nevertheless, substantial evidence
does not support (1) the ALJ’s decision to accord little weight to the opinions of
Perez’s treating physician and psychiatrist relative to those of the consulting
sources; (2) the reasons underlying the ALJ’s decision to discount Perez’s
testimony about the persistence and severity of her symptoms; and (3) the ALJ’s
RFC determination. Moreover, the ALJ erred in considering Perez’s event-worker
job to be past relevant work experience. Accordingly, we reverse the district
2
Section 416.974(b)(2)(ii) establishes the formula for calculating the average monthly
figure using the national average wage index. The Commissioner has published a table showing
those calculations. See http://www.socialsecurity.gov/oact/cola/sga.html.
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judge’s granting summary judgment to the Commissioner and remand with
instructions to remand the case to the Commissioner for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
32
