DAVID A. BAKER, Magistrate Judge.
This cause came on for consideration without oral argument on review of the Commissioner's administrative decision to deny Plaintiff's application for disability benefits. For the reasons set forth herein, the decision of the Commissioner is
Plaintiff applied for benefits, alleging that he became unable to work on October 30, 2010 (R.199-205). The agency denied Plaintiff's applications initially and upon reconsideration, and he requested and received a hearing before an administrative law judge ("the ALJ"). On June 21, 2013, the ALJ issued an unfavorable decision, finding Plaintiff to be not disabled (R. 79-99). The Appeals Council denied Plaintiff's request for review (R. 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff timely filed his Complaint (Doc. 1), the parties consented to the jurisdiction of the undersigned United States Magistrate Judge, and the matter is fully briefed and ripe for review pursuant to 42 U.S.C. §405(g) and §1383(c)(3).
Plaintiff claims to be disabled due to a history of traumatic brain injury, current cognitive disorder, current Attention Deficit Hyperactivity Disorder, Disruptive Behavior Disorder, history of back injury (broken tailbone), chronic kidney stones, chronic urinary tract infections, memory problems, and depression (R. 269).
Plaintiff was twenty four years old at the time of the hearing and decision (R. 199). He dropped out of high school but obtained a GED, and has limited past work experience as a crew member for a fast food restaurant (R. 270).
In the interest of privacy and brevity, the medical evidence relating to the pertinent time period will not be repeated here, except as necessary to address Plaintiff's objections. In addition to the medical records of the treating providers, the record includes the testimony of Plaintiff and his father, the testimony of a Medical Expert (at the ALJ's behest), and the testimony of a Vocational Expert. The record also includes written forms and reports completed by Plaintiff and his parents, written statements from two of Plaintiff's former employers (R. 345-346), and opinions from examining and non-examining state agency consultants.
By way of summary, the ALJ determined that: "The claimant has the following severe impairments: history of traumatic brain injury, major depressive disorder, personality disorder, history of ADD, and history of substance abuse (20 CFR 404.1520(c) and 416.920(c))" (R. 84) but found that his alleged abdominal pain, flank pain, and kidney stones; back pain; and anxiety disorder NOS represent non-severe impairments (R. 85). The ALJ determined that the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (R. 85). The ALJ next found that Plaintiff had the residual functional capacity ("RFC") to: "perform medium work as defined in 20 CFR 404.1567(c) and 416.967 (c) except he must avoid heights, vibrations, and dangerous machinery; and is limited to simple 1-3 step work with no assembly line production demands, better to work with things than people, although he can be in the area with people." (R. 87).
The ALJ determined that Plaintiff had no appreciable past relevant work; however, with the assistance of the Vocational Expert ("the VE"), the ALJ found that other work existed in significant numbers that Plaintiff could perform (R. 93), and therefore, the ALJ found Plaintiff was not disabled "from October 30, 2010, through the date of this decision." (R. 94).
The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).
Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual findings).
Plaintiff contends that the Commissioner's decision was not formulated in accordance with proper standards and was not based upon substantial evidence. Specifically, Plaintiff objects to the evaluation of the opinion evidence, contending that the ALJ erred by not granting proper weight to the testimony of the Medical Expert and by not adequately discussing or evaluating the consultative examination report. Plaintiff also contends that the statements of the lay witnesses were not properly evaluated or weighed, the pain standard was not properly applied, the residual functional capacity finding was not supported by substantial evidence, and the hypothetical posed to the Vocational Expert was incomplete.
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 29 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant's impairments do not prevent him from doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering residual functional capacity, age, education, and past work) prevent him from doing other work that exists in the national economy, then he is disabled. 20 C.F.R. § 404.1520(f). The plaintiff bears the burden of persuasion through step four, while at step five the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Plaintiff objects to the findings made by the ALJ with respect to the opinions of testifying Medical Expert, Michael Friedman, Ph.D., and the report of the consultative psychological examiner, Dr. Paul S. Suich.
The Eleventh Circuit has held that whenever a physician offers a statement reflecting judgments about the nature and severity of a claimant's impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite his or her impairments, and the claimant's physical and mental restrictions, the statement is an opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor. Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1178-79 (11th Cir. 2011) (citing 20 CRF §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).) Substantial weight must be given to the opinion, diagnosis and medical evidence of a treating physician unless there is good cause to do otherwise. See Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991); 20 C.F.R. § 404.1527(d). A consultative examiner's opinion is not entitled to the deference normally given a treating source. See 20 C.F.R. § 404.1527(c)(2); Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1161 (11th Cir. 2004) (noting a one-time examiner's opinion is not entitled to great weight). Nonetheless, all opinions, even those of non-treating state agency or other program examiners or consultant, are to be considered and evaluated by the ALJ. See 20 C.F.R. §§ 404.1527, 416.927, and Winschel.
At the administrative hearing, Medical Expert ("ME") Dr. Michael Friedman testified that he is familiar with the listing disability evaluation; he reviewed all of the pertinent exhibits of record and compared it to the mental health listings; and, in his opinion, Plaintiff meets or equals a listing within a reasonable degree of certainty in the field of psychology (R. 22, 28-29). Dr. Friedman explained:
(R. 30).
The ME testified that alcohol and substance abuse are not material to Plaintiff's impairments and that he would still be disabled absent these (R. 30). The ME further testified that Plaintiff's ability to function outside of any people who are very supportive of him and unlikely to reject and terminate their relationship with him is markedly limited (R. 30). As examples of an impaired level of social functioning, he cited to third party reports at Exhibits 7D and 8D, as well as Plaintiff's behavior at the hearing, observing that Plaintiff "was very nervous and needed his father to comfort him"
In the administrative decision, the ALJ summarized, and rejected, Dr. Friedman's testimony, as follows:
Plaintiff contends that the ALJ mischaracterized Dr. Friedman's testimony and the rationale for rejecting the opinion is not supported by substantial evidence. The Commissioner does not directly address either argument, instead contending that an ALJ is not obligated to accept the disability opinion of a Medical Expert and "where, as here, the clinician reports no objective facts/observations/test results to support a conclusion, that conclusion is not credible."
The ALJ misstated the testimony,
Plaintiff underwent a Consultative Examination performed by Paul S. Suich, Ph.D. of Hope Counseling Centers (R. 521-524). A detailed mental status evaluation was conducted and diagnostic impressions included: Major Depressive Disorder, Recurrent, Severe with Psychotic Features; Attention-Deficit/Hyperactivity Disorder Predominately Inattentive Type; Cognitive Disorder; Traumatic brain injury, back injury, broken tailbone, kidney stones, chronic urinary tract infections, headaches, and chronic pain (R. 523). Dr. Suich concluded:
(R. 524 emphasis added).
In the administrative decision, the ALJ set forth the findings of Dr. Suich at great length, and found: "I give some weight to this record but would note that the Father was present and added his own interpretation of the claimant." (R. 90-91). Plaintiff contends that this evaluation does not comport with the requirement to "state with particularity the weight [s]he gave different medical opinions and the reasons therefor." Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). Plaintiff also contends that the presence of Plaintiff's father is inadequate to discount the opinion. In response, the Commissioner argues that the RFC included various limitations on mental functions and "[s]ignificantly, Plaintiff does not explain how Dr. Suich's report is inconsistent with the ALJ's RFC determination." Again, Plaintiff's argument is the better one.
Dr. Suich found Plaintiff's presentation to be valid and consistent with traumatic brain injury, and that the symptoms of his condition were having a moderate to severe impact on his functioning, including vocational performance. If this opinion were to be fully credited, the RFC should reflect "moderate to severe" limitations in functioning. However, the ALJ did not fully credit the opinion, but vaguely discounted it, to an unidentified extent. This is insufficient. See Ryan v. Heckler, 762 F.2d 939, 941 (11th Cir. 1985) ("We cannot . . . conduct a review that is both limited and meaningful if the ALJ does not state with sufficient clarity the legal rules being applied and the weight accorded the evidence considered."). Even if the Court were to assume that by giving the opinion "some" weight the ALJ was crediting the opinion only to the extent it was not inconsistent with the RFC, she did not provide adequate grounds to do so. The only rationale offered was an implication that, because Plaintiff's father was present at the examination, this somehow served to taint the legitimacy of the examination or opinions rendered. Neither the ALJ in her decision nor the Commissioner in her brief cite to any record support for such an assumption, and the Court finds none. Plaintiff's objection is well taken.
Because the ALJ has failed to properly consider and weigh the evidence, remand is required. Although Plaintiff raises other issues, this is dispositive.
As the Court finds the evaluation of the opinion evidence does not comply with the dictates of Winschel and the resulting finding is not supported by substantial evidence, the final administrative decision is
