ELIZABETH A. KOVACHEVICH, District Judge.
This cause is before the Court
Plaintiff Rachel Lynn Davis seeks judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's claim for Supplemental Security Income. In the Report and Recommendation, the assigned Magistrate Judge recommends that the decision of the Commissioner be affirmed.
The District Court reviews de novo the portions of the Report and
Recommendation or specified proposed findings to which an objection is made. The District Court may accept, reject, or modify in whole or in part the report and recommendation of a magistrate judge, or may receive further evidence, or may recommit the matter to the magistrate judge with instructions.
The Court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of its review is limited to determining: (1) whether there is substantial evidence in the record as a whole to support the findings of the Commissioner: and (2) whether the correct legal standards were applied.
Plaintiff objects to the recommendations of the assigned Magistrate Judge in the Report and Recommendation. Plaintiff argues that the Court should reject the following recommendations: 1) ALJ did not err in determining Plaintiff's residual functional capacity: and 2) ALJ did not err in finding that Plaintiff could perform a range of sedentary work.
In seeking review, Plaintiff contended that the ALJ's Residual Functional Capacity ("RFC") determination was unsupported by substantial evidence, because the ALJ erred in weighing and evaluating the medical evidence of record. The ALJ accorded little weight to the opinion of Dr. DiGeronimo that Plaintiff could not work a full eight hour workday, based on inconsistencies between Dr. DiGeronimo's findings as to Plaintiffs RFC, and his findings upon multiple physical examinations, and because the opinion was not supported by the findings of other examining physicians. The assigned Magistrate Judge noted that the ALJ articulated his reasons for according Dr. DiGeronimo's opinion little weight, determined that substantial evidence supports the ALJ's determination, and concluded that the ALJ did not err in according little weight to the opinion of Dr. DiGeronimo.
Plaintiff objects that Dr. DiGeronimo's opinion was more detailed than the simple opinion "Plaintiff could not work a full eight hour day," listing all details included in the Residual Functional Capacity Questionnaire (Dkt. 13-11, pp. 45-47). Plaintiff objects that the ALJ did not properly evaluate Dr. DiGeronimo's opinion, which led to further errors. Plaintiff argues that the ALJ did not evaluate Dr. DiGeronimo's opinion pursuant to the factors set forth in 20 C.F.R. Sec. 416.927(c)(2): 1) length of treatment relationship and frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability; 4) consistency; 5) specialization; and other facts that tend to support or contradict the opinion. Plaintiff argues that the ALJ's decision relies on two factors, consistency and supportability, and decides not to give controlling weight to Dr. DiGeronimo's opinion. Plaintiff further argues that the ALJ selectively picked examination evidence that favors a finding of non-disability. Plaintiff emphasizes that Dr. DiGeronimo had an extensive treatment relationship with Plaintiff, relied upon nerve conduction velocity studies that proved Plaintiff's sensory neuropathy, consistently found that Plaintiff had poor fine motor coordination in her lower extremities, and had difficulty standing due to weakness and edema in her upper and lower extremities. Plaintiff argues that Dr. DiGeronimo diagnosed Plaintiff as having peripheral neuropathy, extremity pain, extremity paresthesia, muscle spasms and depression, and prescribed numerous medications.
Plaintiff also argues that the Magistrate Judge disagrees with Plaintiffs contention that the ALJ's accordance of significant weight to the findings of Dr. Ayercole was erroneous. If the Magistrate Judge is correct that the Magistrate Judge did not err in according significant weight to Dr. Ayercole's hematology findings, such evidence does not provide any opinion as to Plaintiff's functional limitations. Plaintiff further argues that, assuming the Magistrate Judge is correct that the failure to weigh or incorporate much of Nurse Practitioner's opinion was supported by substantial evidence, the ALJ relied on the determinations of the State Disability experts. Plaintiff argues that the opinion of a non-examining reviewing physician, taken alone, does not constitute substantial evidence to support an administrative decision.
Plaintiff argues that this matter should be remanded for further proceedings, for a proper determination regarding the extent of medical improvement of Plaintiff's impairments.
Before proceeding to Step 4 of the sequential evaluation process, the ALJ, after consideration of the entire record, determined that Plaintiff Davis has the residual functional capacity to perform a range of sedentary work:
The ALJ considered all symptoms, and the extent to which Plaintiffs symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence, including Plaintiffs subjective complaints of pain, evaluated under the two-step "pain standard," and opinion evidence. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.
The ALJ acknowledged that the following two-step process in considering a claimant's symptoms: 1) First, determine whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the claimant's pain or other symptoms; 2) Second, evaluate the intensity, persistence and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functioning. Whenever statements about the intensity, persistence or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ is required to make a finding on the credibility of the statements based on a consideration of the entire case record (Dkt. 13-2, p. 33).
The ALJ conducted a hearing on February 7, 2011. Plaintiff testified that after her pacemaker was put in, Plaintiff could not work. (Dkt. 13-2, p. 50). Plaintiff Davis testified that Plaintiff cannot walk due to numbness in her feet from neuropathy. (Dkt. 13-2, p. 50). The ALJ noted that Plaintiff was in a wheelchair, but he did not see a prescription for a wheelchair in the file. When the ALJ asked if Plaintiff ever walked without a walker or in a wheelchair, Plaintiff responded "No." (Dkt. 13-2, p. 50); Plaintiff further testified that her doctors did not prescribe any assistive device (Dkt. 13-2, p. 51). Plaintiff also testified that Plaintiff could walk four minutes without any assistive device, and could stand for a minute (Dkt. 13-2, p. 53). Plaintiff testified that Plaintiff could sit for ten minutes at a time, and could not lift any amount of weight during an eight-hour day. (Dkt. 13-2, p. 54). Plaintiff testified that if Plaintiff used her hands, her hands swelled. (Dkt. 13-2, p. 51). Plaintiff testified that Plaintiff takes medication that helps control her diabetes, and Plaintiff uses a CPAP machine for sleep apnea, but is able to sleep seven hours a night. (Dkt. 13-2, p., 52). Plaintiff testified that Plaintiff has ongoing urinary incontinence, and wears diapers. (Dkt. 13-2, pp. 52-53).
Upon further examination by Plaintiff's counsel as to any continuing problems, Plaintiff testified as to ongoing pain and rapid heartbeat ("pulsurate [sic] real fast") from the automatic implanted cardioverter defibrillator ("AICD"), which is distracting to Plaintiff. (Dkt. 13-2, pp. 54-55). Plaintiff further testified as to ongoing pain and fatigue; Plaintiff's legs hurt and are numb (Dkt. 13-2, p. 55). Plaintiff sits in a lounge chair most of the day, and elevates her feet so they won't swell. (Dkt. 13-2, pp. 55-56). Plaintiff testified that if her feet swell, Plaintiff cannot put shoes on, and cannot walk. (Dkt. 13-2, pp. 56-57). Plaintiff further testified that her hands swell every three to five weeks, and estimated that they remain swollen for two weeks. (Dkt. 13-2, p. 57). Plaintiff testified that Plaintiff becomes drowsy from taking her medications. (Dkt. 13-2, p. 58). Plaintiff testified that Plaintiff had a mild tremor in her arms and hands and muscle spasms in her legs (Dkt. 13-2, p. 67).
The ALJ found Plaintiff's statements concerning her impairments and their impact of her ability to work not entirely credible in light of findings made on examination, and finding inconsistencies between Plaintiff's allegations of disabled symptomology and the objective medical evidence. The ALJ acknowledged Plaintiff's history of diabetes mellitus, neuropathy, cardiomyopathy, hypertension, obesity and sleep apnea, but found that the record did not support that the conditions, considered singly and in combination, prevented Plaintiff from performing all work activity. The ALJ found that the objective medical evidence showed that after the AICD implantation, Plaintiffs symptoms improved, referring to Dr. Rogal's March 24, 2010 opinion that from a cardiovascular standpoint Plaintiffs condition was stable, and March 8, 2010 evaluation by Jennifer Gerges, P.A., in which Plaintiff denied paresthesias, weakness, dizziness, mental status changes, memory loss or speech abnormalities, and denied chest pain, fatigue or tachycardia. Based on laboratory studies, Plaintiff was assessed with controlled diabetes mellitus. The ALJ also refers to Dr. DiGeronimo's evaluations on 4/8/2009, and 6/24/2009, in which Plaintiff had a full range of motion of her extremities, her balance was intact, with no shuffling and Plaintiff walked freely without the use of an assistive device.
Plaintiff Davis has a complex medical history. At Step Two of the sequential evaluation process, in determining that Plaintiff has severe impairments, the ALJ noted Plaintiffs treatment for those impairments from 11/21/2008 to 2/21/2011; the Court has carefully examined the Administrative Record, including Plaintiffs medical records. Because Plaintiff Davis had distinct medical conditions, Plaintiff Davis had different treating physicians. Plaintiff was treated at Suncoast Community Health Center as Plaintiffs primary care physician for diabetes mellitus, to refill prescriptions, and to obtain referrals for laboratory tests and to specialists.
Plaintiff was referred to Dr. Max Rattes for cardiac evaluation because of edema (Dkt. 13-7, p. 25); Dr. Rattes noted "edema for 3 years legs" in "History of Present Illness." (Dkt. 13-7, p. 25). On 11/11/2018, Dr. Rattes noted "Edema Present +1 pitting lower legs." (Dkt. 13-7, p. 27). Dr. Rattes' assessment included the following: abnormal electrocardiogram, benign hypertensive heart disease without congestive heart failure, benign essential hypertension, edema, hypercholesterolemia, morbid obesity, diabetes mellitus, fatigue, and "gait disturbance from? a neuropathy." (Dkt. 13-7, p. 28). Dr. Rattes recommended that Plaintiff see a neurologist to evaluate for possible ataxia and neuropathy (Dkt. 13-7, p. 28). On 11/21/2008, the following procedures were performed: right and left heart catheterization, coronary angiography, left ventriculography, and right iliofemoral angiography (Dkt. 13-7, p. 8). In a follow-up on 12/3/2008, consulting physician Dr. J. Thompson Sullenbarger noted Plaintiff was on metformin 500 mg b.i.d, Crestor 5 mg q.d., Darvocet p.m., Lasix 40 mg q.d., metoprolol XL 50 q.d. and Coreg 6.25 mg b.i.d. Dr. Sullenbarger also noted "Review of systems is significant for obesity, tremors, polydipsia, night sweats, pedal edema and ataxia." On examination, Dr. Sullenbarger indicates "Peripheral pulses are present bilaterally, and there is trace peripheral edema." (Dkt. 13-7, p. 14).
The AICD was implanted on December 4, 2008. There was a follow-up with Dr. Max Rattes on 2/16/2009 (Dkt. 13-7, p. 17) which states "Edema for 3 years resolved." Medications include furosemide 40 mg once a day, metformin HCI 500 mg twice a day, Crestor 5 mg once a day, lisinopril 10 mg once a day, Coreg 6.25 mg twice a day, and propoxyphene N-APAP [Darvon] 100-650 mg, as needed. Dr. Rattes also states: "Systemic symptoms: Feeling tired (fatigue)......Musculoskeletal symptoms: No myalgias. Arthralgias knees since fell 7 mos. ago. No muscle cramps and no localized joint stiffness. Neurological symptoms: No dizziness, no vertigo, no convulsions, no slurred speech, and no tremor. Ataxia and numbness of the legs...." (Dkt. 13-7, p. 18). Upon examination, Dr. Rattes noted: "Edema Present +1 pitting lower legs." (Dkt. 13-7, p. 19). Dr. Rattes again recommended that Plaintiff see a neurologist to evaluate for possible ataxia and neuropathy. (Dkt. 13-7, p. 21).
Plaintiff had a follow-up appointment with Dr. Philip Rogal, USF Health Sciences Center Medical Clinic, on 5/7/2009 (Dkt. 13-7, p. 59), which notes "1+ ankle and pretibial edema" (Dkt. 13-7, p. 60). Dr. Rogal states "The patient is stable from a cardiovascular viewpoint. Will increase carvedilol from 6.25 to 12.5 mg b.i.d and also increase lisinopril 10 mg. daily to 10 mg b.i.d. To treat the LV dysfunction more vigorously." (Dkt. 13-7, p. 60). Plaintiff returned to USF Health Sciences Center Medical Clinic for another follow-up on 6/19/2009; upon examination, the record states "Pitting edema." (Dkt. 13-7, p. 63). Medications included: Gabapentin 300 mg 1 capsule 3 times a day, carvedilol 6.25 mg 1 tablet twice daily, propoxyphene N-APAP 100-650 mg 1 tablet q8h p.m., metformin HCI 500 mg 1 tablet 2 times a day, Crestor 5 mg 1 tablet daily, furosemide 40 mg 1 tablet daily, lisinopril 10 mg 1 tablet daily. (Dkt. 13-7, p. 72).
Plaintiff returned for a follow up with Dr. Rogal on 9/9/2009, referred by Jennifer Curtis (Suncoast). Dr. Rogal states:
(Dkt. 13-9, p. 68).
Dr. Rogal noted 1+ ankle and pretibial edema. "The left hand is swollen and mildly tender with swelling of the interphalangeal joints most markedly. There is mild tenderness of the hand in general without any clinical evidence of acute cellulitis." (Dkt. 13-9, p. 69). In the Assessment/Plan, Dr. Rogal states:
(Dkt. 13-9, p. 69).
Plaintiff returned to USF Health Sciences Medical Clinic on 9/10/2009 after an unheralded shock (Dkt. 13-9, pp. 66-67). The Assessment/Plan states:
(Dkt. 13-9, p. 67).
Plaintiff returned to USF Health Sciences Medical Clinic for a follow-up appointment on 10/15/2009. (Dkt. 13-9, pp. 42-43). Upon examination, Plaintiff had trace ankle edema. The Assessment/Plan states:
(Dkt. 13-9, p. 43).
Plaintiff had a follow-up appointment at USF Health Sciences Medical Clinic on 11/20/2009. (Dkt. 13-9, pp. 40-42). Upon examination, Plaintiff had +1 peripheral edema and +2 pulses in extremities bilaterally. The Assessment/Plan states:
(Dkt. 13-9, p. 42).
Plaintiff returned for a follow up with Dr. Rogal on 3/24/2010 (Dkt. 13-9, pp. 28-29). At that time, Dr. Rogal noted in "History of Present Illness" (Dkt. 13-9, p. 28) "She feels well generally apart from arthritis of her knees." Upon examination, Dr. Rogal noted "EXTREMITIES: Trace ankle edema." In the Assessment/Plan, Dr. Rogal states: "The patient is stable from a cardiovascular standpoint. She will continue present medication and return in 6 months for reevaluation. (Dkt. 13-9, p. 29). Plaintiff had an echocardiogram on 4/7/2010 (Dkt. 13-9, pp. 26-27).
Plaintiff returned to USF Health Sciences Medical Clinic for a pacemaker checkup on 5/7/2010. Upon examination, there was no peripheral edema, and +2 pulses in upper and lower extremities (Dkt. 13-9, pp. 24-26).
During 2009, Plaintiff was treated at Suncoast Community Health Centers as Plaintiffs primary care physician: 3/11/2009, 3/18/2009, 6/3/2009, and 10/14/2009. (Dkt. 13-8, pp. 2-10). During 2010, Plaintiff was further treated at Suncoast on 3/10/2010, 6/21/2010, and 10/5/2010; in 2011, Plaintiff was treated at Suncoast on 1/14/2011 and 1/25/2011 (Dkt. 13-11, pp. 2-43).
On 3/18/2009, Plaintiff was seen at Suncoast for a check-up; at that time Plaintiff attended the appointment in her grandmother's wheelchair. Upon examination, Suncoast noted "no edema, clubbing or cyanosis, and intact pulses" in Plaintiff's extremities (Dkt. 13-8, p. 9). On 6/3/2009, upon examination, Suncoast noted "no edema, clubbing or cyanosis, Pulses intact, No foot ulcers" in Plaintiff's extremities (Dkt. 13-8, p. 5). On 3/10/2010, upon examination, Suncoast noted "no clubbing, cyanosis or edema. Peripheral pulses: normal (2+) bilaterally" in Plaintiffs extremities (Dkt. 13-11, p. 42). The record also states:
(Dkt. 13-11, p. 41).
On 6/21/2010, Plaintiff returned to Suncoast to obtain referrals for Dr. DiGeronimo, a rheumatologist, physical therapy and prescriptions (Dkt. 13-11, p. 39). Plaintiff was in a wheelchair on that day. On 10/15/2010, Plaintiff returned to Suncoast for follow-up after hospitalization. Plaintiff refilled prescriptions for Coreg, Metformin and Crestor. Upon examination, no clubbing, cyanosis or edema was noted in Plaintiff's extremities. Plaintiff was prescribed Darvocet-N-100, 650 mg-100 mg, 1 tablet every four hours, five days for knee pain (Dkt. 13-11, pp. 36-37). Plaintiff returned to Suncoast on 1/14/2011 for a referral to a urologist. Plaintiff was in a wheelchair. Upon examination, no clubbing, cyanosis or edema was noted in Plaintiff's extremities. As to Plaintiff's abnormal sed rate, polyarthralgia, joint inflammation, the progress note states that Plaintiff was referred to a rheumatologist in June as per Dr. DiGeronimo's recommendation, but Plaintiff did not keep the appointment (Dkt. 13-11, pp. 32-35). Plaintiff returned to Suncoast on 1/25/2011 for a follow-up appointment. Plaintiff was in a wheelchair on that day. Upon examination, no clubbing, cyanosis or edema was noted in Plaintiff's extremities. Plaintiff obtained referrals for physical therapy, a rheumatologist (Janer), a hematologist (Ayer-Cole), a neurologist DiGeronimo), a urologist (Dholakia), a cardiologist (Rogal) and a pulmonologist (Ackerman) (Dkt. 13-11, pp. 3-28)
Suncoast Community Health Centers referred Plaintiff to neurologist Dr. DiGeronimo, who saw Plaintiff on 4/9/2009, 4/21/2009, 4/27/2009, 5/26/2009, 6/24/2009, 8/11/2009, 9/22/2009, 12/14/2009, 3/9/2010, 5/18/2010, 6/21/2010 and 9/14/2010 (Dkt. 13-7, pp. 87-128, 13-8, pp. 55-72) for Plaintiffs complaint of pain in upper and lower extremities. Dr. DiGeronimo prescribed various medications for pain in the course of treatment: Gabapentin 300 mg tid (nerve pain); Gabapentin 600 mg tid (nerve pain); Sulindac 150 mg bid (NSAID); Naprosyn 500 mg bid (NSAID); carbamazepine 200 mg tid (nerve pain); ibuprofen 800 mg tid; hydrocodone 7.5/325 mg tid (narcotic/acetominophen); Darvocet-N100 tid (narcotic/acetominophen); Tramadol 50 mg 8 daily;
Dr. DiGeronimo repeatedly observed a full range of motion in Plaintiffs upper and lower extremities, no contractures or spasms, and no edema; Plaintiffs back had a full range of motion, with no spasms or trigger points noted; and a seated straight leg raise was negative. Plaintiff was able to heel/toe walk without discomfort. Dr. DiGeronimo repeatedly observed: "Balance is intact. No shuffling noted. Walks freely without the use of assistive devices." In April, 2009, an EMG/NCV test of the extremities was performed, as well as an arterial ultrasound; the NCV results were consistent with sensory neuropathy (Dkt. 13-7, pp. 96-102). On 6/24/2009, Dr. DiGeronimo noted that laboratory testing on 6/2/2009 indicated an elevation in gamma globulins that appeared to be polyclonal, suggesting a chronic inflammatory response. (Dkt. 13-7, p. 111). On that day, and on 8/11/2009, Plaintiff had a full range of motion in upper and lower extremities, no edema in her lower extremities, Plaintiffs "balance was intact, no shuffling noted, and walks freely without assistive devices." (Dkt. 13-7, pp. 110, 112).
On 9/22/2009, Dr. DiGeronimo noted that Plaintiff was walking better, but still has gait ataxia and slowness in her walking. (Dkt. 13-7, p. 106). Dr. DiGeronimo states:
(Dkt. 13-7, p. 107).
On 3/9/2010, Dr. DiGeronimo noted that Plaintiff had a spasmodic gait. (Dkt. 13-8,
On 6/21/2010, Dr. DiGeronimo observed edema in the left upper extremity and lower extremities, difficulty walking due to pain and weakness, weakness in the lower extremities and left upper extremity, but no spasticity, flaccidity or abnormal movements (Dkt. 13-8, pp. 56-57). Dr. DiGeronimo referred Plaintiff to a rheumatologist, prescribed Tramadol for pain, sent Plaintiff to physical therapy and for a nerve conduction study (Dkt. 13-8, p. 57).
On 9/14/2010, Dr. DiGeronimo noted Plaintiff attended the appointment in a manual wheelchair. On that day, Dr. DiGeronimo noted a full range of motion in upper and lower extremities, no spasms or contractures; Dr. DiGeronimo noted +2-3 edema in the lower extremities, without joint tenderness. (Dkt. 13-8, pp. 54-55).
On 7/29/2010, Dr. Ayer-Cole states that Plaintiff was referred due to an abnormal serum protein electrophoresis (SPEP), that Plaintiff "sees Dr. DiGeronimo for neuropathy which has been progressing over last several months. [Plaintiff] [r]eports chronic pain in back and legs, and swelling in joints resulting in difficulty walking, and increased fatigue over the last six months"(Dkt. 13-8, p. 28).
Upon examination on 7/8/2010, 7/29/2010 and 8/17/2010, Dr. Ayer-Cole found Plaintiffs systems to be normal. Dr. Ayer-Cole noted the following as to Plaintiffs musculoskeletal system:
Dr. Ayer-Cole's records indicate that on 8/17/2010, Plaintiff complained of fatigue, shortness of breath, chest pain, palpitations, edema and tachycardia/increased heart rate, frequent urination, muscle pain, dizziness, paresthesias, memory loss and syncope (Dkt. 13-8, p. 34).
A sleep study was performed at Tampa General Hospital on 6/15/2009; the record states that Plaintiff was previously diagnosed with sleep apnea in 2003. Plaintiff was diagnosed with sever obstructive sleep apnea. The recommendations included a CPAP. (Dkt. 13-7, pp. 45-46).
On 9/23/2010, Plaintiff was admitted to South Florida Baptist Hospital, Plant City, FL, through the emergency room for acute pyelonephritis, right hydronephrosis (swollen kidney), kidney stones, and cystitis. A ureteral stent was inserted. A CT scan of Plaintiffs abdomen and pelvis showed an enlarged liver, an enlarged adrenal gland and some kidney stones (Dkt. 13-9, p. 18). On 11/11/2010, Plaintiff had a cystoscopy with removal of the right ureteral stent and right ureteral renoscopy. (Dkt. 13-10, p. 9). After the procedure, Plaintiffs physician prescribed Macrobid 100 mg twice daily for one week, and Darvocet-N 100 p.o. 3x daily as needed for pain.
Dr. DiGeronimo completed an RFC Questionnaire on 2/9/2011 (Dkt. 13-11, pp. 45-47). Dr. DiGeronimo's diagnosis was peripheral neuropathy and cardiac pacemaker. Plaintiffs symptoms included difficulty walking, urinary incontinence and diabetes mellitus. Dr. DiGeronimo stated that Plaintiff's symptoms would frequently be severe enough to interfere with the attention and concentration required to perform simple work-related tasks. Dr. DiGeronimo indicated that the only side effects of medication which might impact Plaintiff's capacity for work included leg weakness and gait ataxia. Dr. DiGeronimo further indicated that Plaintiff would require more breaks than a 15-minute break in the morning and afternoon, and a 30 minute break for lunch. Dr. DiGeronimo indicated that Plaintiff could not walk any distance without rest or significant pain, that Plaintiff could sit for 20 minutes at a time, and could sit for 0-1 hours in an 8-hour work day. Dr. DiGeronimo indicated that Plaintiff could not stand or walk for any amount of time in an 8-hour work day, and Plaintiff required a job that permits shifting position from sitting, standing or walking. Dr. DiGeronimo further indicated that Plaintiff would need to take many unscheduled breaks of 15-30 minutes in an 8-hour workday. Dr. DiGeronimo opined that Plaintiff could occasionally lift a weight of less than ten lbs. in an 8-hour work day, and that Plaintiff was very restricted in the use of her hands, fingers and arms for grasping, fine manipulation and reaching in an 8-hour work day. Based on his experience with Plaintiff, and based upon objective medical, clinical and laboratory findings, Dr. DiGeronimo estimated that Plaintiff would likely be absent from work as a result of her impairments and treatments more than four times a month. Dr. DiGeronimo did not answer question #10, which inquires whether Dr. DiGeronimo's patient is a malingerer. In Dr. DiGeronimo's opinion, Plaintiff's impairments were reasonably consistent with the symptoms and functional limitations described in the evaluation. As to other limitations, Dr. DiGeronimo stated that Plaintiff is unable to work due to neurological and cardiac signs and symptoms. Dr. DiGeronimo indicated that he has treated Plaintiff since 4/9/2009, and in his opinion Plaintiff has had the limitations and restrictions outlined in the RFC Questionnaire since 2008.
The ALJ found that Dr. DiGeronimo's opinion that Plaintiff could not work a full 8-hour work day is inconsistent with his findings during multiple examinations and the extreme restrictions are not supported by other reports in the record. The ALJ referred to Dr. DiGeronimo's record of his physical examination of Plaintiff on 12/14/2009, the 5/18/2010 follow-up and the 6/21/2010 report that Plaintiff's coordination was normal with the exception of impaired balance.
The ALJ noted that Dr. DiGeronimo's opinion is not supported by the findings of other examining physicians. The ALJ referred to Dr. Ayer-Cole's examination of Plaintiff on 6/17/2010, which indicates that Plaintiff was alert and oriented, that Plaintiff demonstrated normal posture and motor behavior, that Plaintiff's cardiovascular examination was normal and Plaintiff's musculoskeletal examination was normal with no redness, swelling, tenderness or deformities. Dr. Ayer-Cole reported that Plaintiff had a normal range of motion. Dr. Ayer-Cole stated that Plaintiff had possible monoclonal gammopathy and multiple unexplained symptoms (Dkt. 13-8, p. 36). The ALJ found that the medical evidence as a whole does not substantiate Dr. DiGeronimo's opinion, and therefore accorded little weight to the opinion of Dr. DiGeronimo that Plaintiff could not work a full eight hour day. The ALJ accorded significant weight to the findings of Dr. Ayer-Cole because the findings are consistent with the medical evidence of record as a whole. Dr. Ayer-Cole found that upon examination, the following were normal: Constitutional, Neck, Respiratory, Cardiovascular, Gastrointestinal, Lymphatic, Musculoskeletal (Dkt. 13-8, pp. 28-29; pp. 31-32; pp. 35-36).
The ALJ further considered the March 9, 2010 opinion of Glen Turner, A.R.N.P. (RFC)(Dkt. 13-8, pp. 25-26), but noted that Glen Turner is not an acceptable medical source, and the assessment is not consistent with the findings made during clinical examination, and not consistent with the findings throughout the evidence.
The ALJ further considered the determination of State Agency Disability experts based on their review of the evidence in the record. (Dkt. 13-7, pp. 129-136; Dkt. 13-8, pp. 16-24). The RFC Assessment of Dr. Minal Krishnamurthy is dated 9/28/2009; the RFC Assessment of Dr. Robert Steele is dated 11/23/2009. Both RFC Assessments state that there was no other medical source statement regarding Plaintiffs physical capacities in file. The ALJ found the opinions generally persuasive, but made some adjustments in light of the evidence of record considered in its entirety.
A treating physician's opinion will be granted controlling weight if it is consistent with other medical evidence and is well-supported by acceptable clinical and diagnostic techniques. 20 C.F.R. § 404.1527(d)(2). Where some medical evidence is found to be inconsistent with the treating physician's opinion, the ALJ should give that opinion "substantial or considerable" weight unless "good cause" is shown to the contrary.
In this case, the ALJ clearly identified the inconsistencies which establish good cause to discount the opinion of Dr. DiGeronimo as to the extent of Plaintiff's limitations due to neuropathy.
Dr. Ayer-Cole is an examining physician. Dr. Ayer-Cole was consulted to perform further tests to determine the cause of the abnormality revealed in a laboratory test. The ALJ accorded significant weight to the underlying clinical findings of Dr. Ayer-Cole; upon examination, Dr. Ayer-Cole found Plaintiff's systems to be normal.
Dr. Ayer-Cole did not provide any opinion as to Plaintiffs limitations associated with the laboratory test results obtained. However, the absence of a treating or examining physician's opinion does not preclude the ALJ from making a proper RFC determination.
In determining Plaintiff's RFC, the ALJ must determine if Plaintiff is limited to a particular work level. The ALJ looked to the opinions of Dr. Krishnamurthy and Dr. Steele in his RFC assessment. If the ALJ articulates good cause for discrediting the treating and examining physicians' opinions, an ALJ is entitled to rely on a non-examining physician's opinion when it is consistent with the medical record and the treating and examining physicians' underlying clinical findings.
20 C.F.R. Sec. 416.927 (c)(2) provides that the Court must consider certain factors when evaluating medical opinions. Plaintiff contends the ALJ erred in citing only factors related to consistency and supportability, and in not considering Dr. DiGeronimo's specialty, or the extent and nature of the treating relationship. Courts have held that when an ALJ rejects or accords little weight to a treating specialist's opinion, the ALJ is required to consider and discuss each of the Sec. 416.927(c)(2) factors.
The Court may not reverse and remand for failure to comply with a regulation without first considering whether the error was harmless. Reversal and remand for failure to comply is appropriate when the complainant affirmatively demonstrates prejudice.
Dr. DiGeronimo's specialization, length of treatment relationship and frequency of examination, and nature and extent of treatment relationship do not explain the inconsistencies between Dr. DiGeronimo's treatment records and the opinions expressed in the RFC Questionnaire. Assuming that the ALJ was in error in not expressly addressing each of the factors, given the scope of the inconsistencies between the limitations set by Dr. DiGeronimo and Dr. DiGeronimo's own findings during multiple physical examinations, and given that other evidence in the record does not support such restrictions, Plaintiff has not demonstrated prejudice that would require remand.
Plaintiff contends the ALJ erred in selectively picking examination evidence that favors a finding of non-disability, citing
In this case, the ALJ determined that Plaintiff has severe impairments, but still has the residual functional capacity to perform a range of sedentary work, with some restrictions. In reaching this RFC assessment, the ALJ necessarily rejected the opinion of Dr. DiGeronimo that Plaintiff is unable to work an 8-hour day. The issue of determining residual functional capacity is reserved to the Commissioner, and delegated to the ALJ. This assessment requires the ALJ to consider the record as a whole and to resolve conflicts in the evidence. The ALJ is not required to discuss every piece of evidence.
After consideration, the Court overrules Plaintiff's Objection to weight accorded to the opinion of Dr. DiGeronimo.
Plaintiff objects that the testimony of the Vocational Expert was in response to an incomplete hypothetical question, and therefore the ALJ's reliance on that testimony to find that Plaintiff was not disabled was erroneous. Plaintiff argues that the hypothetical did not contain many of the limitations found by Dr. DiGeronimo, and this matter should be remanded for further proceedings
At Step Four, the ALJ found that Plaintiff was unable to perform past relevant work. Therefore, at Step Five, the ALJ was required to determine whether there are jobs that exist in the national economy that Plaintiff can perform, considering Plaintiffs age, education, work experience and residual functional capacity.
Plaintiff argues that the hypothetical posed to the VE was incomplete because it did not include the limitations opined by Dr. DiGeronimo, such as the very limited use of Plaintiffs upper extremities, the need to take unscheduled breaks, and the need for more breaks than 15 minutes in the a.m. and p.m. and a 30-minute break for lunch. At the hearing, Plaintiff testified that Plaintiff sits in a recliner most of the day, with her feet elevated to avoid swelling (Dkt. 13-2, p. 56); this limitation was not included in the hypothetical posed to the VE.
One way in which an ALJ may determine that a claimant is able to perform other jobs is by posing a hypothetical question to a Vocational Expert that comprises all of the claimant's impairments.
After consideration, the Court overrules Plaintiff's Objection to the Report and Recommendation as to the hypothetical posed to the VE. The Court adopts the Report and Recommendation. Accordingly, it is
