DOUGLAS N. FRAZIER, District Judge.
Plaintiff, Beverly Fonda Woodward, seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying her claim for a period of disability and Disability Insurance Benefits ("DIB"). The Commissioner filed the Transcript of the proceedings (hereinafter referred to as "Tr." followed by the appropriate page number), and the parties filed memoranda setting forth their respective positions. For the reasons set out herein, the decision of the Commissioner is
The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The impairment must be severe, making the claimant unable to do her previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
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 and is such relevant evidence as a reasonable person would accept as adequate support to a conclusion. Even if the evidence preponderated against the Commissioner's findings, we must affirm if the decision reached is supported by substantial evidence." Crawford v. Comm'r, 363 F.3d 1155, 1158 (11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894 F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However, the District Court will reverse the Commissioner's decision on plenary review if the decision applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). The Court reviews de novo the conclusions of law made by the Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42 U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520, 416.920. At step one, the claimant must prove that she is not undertaking substantial gainful employment. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. § 404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she is suffering from a severe impairment or combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the claimant's impairment or combination of impairments does not significantly limit her physical or mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the impairments listed in Appendix 1, she must prove that her impairment prevents her from performing her past relevant work. Id. At this step, the ALJ will consider the claimant's RFC and compare it with the physical and mental demands of her past relevant work. 20 C.F.R. § 1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of performing other work available in the national economy, considering the claimant's RFC, age, education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If the claimant is capable of performing other work, she will be found not disabled. Id. In determining whether the Commissioner has met this burden, the ALJ must develop a full and fair record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The first is by applying the Medical Vocational Guidelines ("the Grids"), and the second is by the use of a vocational expert ("VE"). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the Commissioner meets this burden does the burden shift back to the claimant to show that she is not capable of performing the "other work" as set forth by the Commissioner. Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
Plaintiff filed an application for a period of disability and DIB on February 2, 2012, alleging a disability onset date of February 10, 2011. (Tr. 186). Plaintiff's application was denied initially on April 16, 2012, and upon reconsideration on June 29, 2012. (Tr. 133, 140). Plaintiff requested a hearing and a hearing was held before Administrative Law Judge Tammy Whitaker ("the ALJ") on November 18, 2014. (Tr. 60-108). On January 22, 2015, the ALJ entered a decision finding that Plaintiff was not disabled. (Tr. 14-31). Plaintiff requested review of this decision and the Appeals Council denied Plaintiff's request on April 25, 2016. (Tr. 1-8). Plaintiff initiated the instant action by Complaint (Doc. 1) on June 24, 2016. The parties having filed memoranda setting forth their respective positions, this case is ripe for review.
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 10, 2011, the alleged onset date. (Tr. 16). At step two, the ALJ found that Plaintiff had the following severe impairments: history of recurring deep vein thrombosis on anticoagulation therapy; trochanteric bursitis of right hip; degenerative disk disease, degenerative joint disease, and spondylosis of cervical spine with bilateral radiculopathy and history of headache and cephalgia with chronic pain; history of right shoulder pain; obstructive sleep apnea with history of hypersomnia; asthma with history of dyspnea; obesity; depressive disorder not otherwise specified; mood disorder secondary to chronic pain; anxiety disorder; and panic disorder with agoraphobia. (Tr. 16). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 17).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform
(Tr. 19). At step four, the ALJ found that Plaintiff was capable of returning to her past relevant work as an office helper. (Tr. 30). The ALJ concluded that Plaintiff was not under a disability from February 10, 2011, through the date of the decision. (Tr. 30).
Plaintiff raises three issues on appeal: (1) whether the ALJ erred by finding that Plaintiff can return to her past relevant work; (2) whether the ALJ erred by failing to provide good cause for rejecting the opinions of Plaintiff's treating and consulting physicians; and (3) whether the ALJ erred by discrediting Plaintiff subjective complaints. (Doc. 19 p. 2). The Court begins by addressing Plaintiff's second raised argument.
Plaintiff argues the ALJ erred by improperly rejecting the opinion of treating physician Fred Liebowitz, M.D., on the basis that the opinion was "internally inconsistent with the longitudinal treatment records" and inconsistent with Plaintiff's report that should could perform daily chores without interruption. (Doc. 19 p. 13). Plaintiff contends that the ALJ's rationale for rejecting Dr. Liebowitz's opinion is not consistent with the record and does not constitute good cause for rejection. (Doc. 19 p. 13). Plaintiff argues that contrary to the ALJ's finding, the longitudinal treatment records from Dr. Liebowitz, who treated Plaintiff on a monthly basis for several years throughout the relevant time period, fully supported Dr. Liebowitz's opinion. (Doc. 19 p. 14). Plaintiff further argues that the ALJ improperly rejected the opinion of Plaintiff's treating psychiatrist, Daryl Tanski, M.D., effectively on the basis that Plaintiff could not comply with physician's advice to seek mental health treatment. (Doc. 19 p. 15).
Defendant argues that the ALJ had good cause to reject Dr. Liebowtiz's opinion on the basis that the opinion was inconsistent with the longitudinal treatment records and the nature and extent of Plaintiff's activities. (Doc. 22 p. 8).
"The Secretary must specify what weight is given to a treating physician's opinion and any reason for giving it no weight, and failure to do so is reversible error." MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). 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). Without such a statement, "it is impossible for a reviewing court to determine whether the ultimate decision on the merits of the claim is rational and supported by substantial evidence." Id. (citing Cowart v. Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinions of treating physicians are entitled to substantial or considerable weight unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). The Eleventh Circuit has concluded that good cause exists when the: "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. Id.
In her decision, the ALJ addressed Dr. Liebowitz's opinion as follows:
(Tr. 28).
Here, the Court finds that the ALJ erred by failing to provide good cause for rejecting Dr. Liebowitz's opinion. Contrary to the ALJ's statement, it is not clear that Dr. Liebowitz's opinion was "internally inconsistent with the longitudinal treatment records." (Tr. 28). To the contrary, Dr. Liebowtiz's longitudinal treatment notes support his opinion rather than undermine it. As just a few examples, as noted by Plaintiff, the record shows that:
The ALJ provided no examples as to how Dr. Liebowitz's opinion was "internally inconsistent with the longitudinal treatment records" and it is not apparent from the ALJ's discussion of the record proceeding his explanation. Such conclusory reasons, without reference to the record, do not constitute good cause for rejecting the opinion of a treating physician.
The ALJ's remaining reason for rejecting Dr. Liebowitz's opinion also does not constitute good cause. The ALJ failed to sufficiently articulate how Plaintiff's daily activities undermine Dr. Liebowitz's opinion, as the performance of light chores does not constitute good cause to reject a medical opinion. See Barreto v. Comm'r of Soc. Sec., 2012 WL 882520, at *4 (M.D. Fla. Mar. 15, 2012) (citing Venette v. Apfel, 14 F.Supp.2d 1307, 1314 (S.D. Fla. 1998)).
Turning to the opinion of Plaintiff's treating psychiatrist Dr. Tanski, the ALJ's decision noted that Dr. Tanski had completed a medical source statement at Plaintiff's request and opined that Plaintiff had marked limitations with her ability to perform at production levels expected by most employers; marked limitations with her ability to respond appropriately to work changes and to remember instructions; extreme limitations with the ability to behave predictably, reliably, and in an emotionally stable manner, and with her ability to tolerate work pressures; mild to moderate limitations with social interaction and no more than moderate limitations with concentration, persistence, and pace for her ability to complete work tasks and carry through instructions. (Tr. 26). After reviewing Dr. Tanski's opinion, the ALJ explained her decision for rejecting the opinion as follows:
(Tr. 26).
Here, the Court finds that the ALJ provided good cause for rejecting Dr. Tanski's opinion. Unlike her treatment of Dr. Liebowitz's opinion, the ALJ explained the reasons for rejecting Dr. Tanski's by direct citation to the record. Contrary to Plaintiff's claim, the ALJ did not reject Dr. Tanski's opinion based on Plaintiff's noncompliance with medical advice due to financial problems, but on the basis that the record did not support Dr. Tanski's limitation findings. Accordingly, the Court finds no error in the ALJ's decision to reject Dr. Tanski's opinion.
Because the ALJ's error in her treatment of Dr. Liebowitz's opinion may impact the ALJ's findings concerning Plaintiff's subjective complaints, Plaintiff's RFC, and the question of whether Plaintiff can return to her past relevant work, the Court defers from addressing Plaintiff's other raised issues as this time. On remand, the ALJ shall further evaluate the opinion of Dr. Liebowitz and conduct any further proceedings as necessary.
The decision of the Commissioner is
