DANIEL C. IRICK, Magistrate Judge.
Julie Levesque (Claimant) appeals the Commissioner of Social Security's final decision denying her applications for a period of disability and disability insurance benefits. Doc. 1. Claimant argues that the Administrative Law Judge (ALJ) erred by: 1) failing to comply with Social Security Ruling 00-4p; and 2) failing to properly weigh the opinions of Claimant's treating gastroenterologist, Dr. Lisa A. Panzini, M.D. Doc. 18 at 13-21. Claimant requests that the matter be remanded for further administrative proceedings. Id. at 25. For the reasons set forth below, the Commissioner's final decision is
This case stems from Claimant's applications for a period of disability and disability insurance benefits. R. 18. Claimant alleged a disability onset date of May 1, 2012. Id. On June 19, 2015, the ALJ entered a decision finding that Claimant was capable of performing light work and could perform her past relevant work. R. 18-28. Thus, the ALJ concluded that Claimant was not disabled. R. 28. Claimant filed a request for review of the hearing decision. R. 12. On July 9, 2016, the Commissioner's Appeals Council denied the request for review. R. 1-6. On September 9, 2016, the Complaint was timely filed in this Court requesting that this Court reverse the decision of the Commissioner or, in the alternative, remand the case for a de novo hearing. Doc. 1. This action is therefore ripe for judicial review under 42 U.S.C. § 405(g).
The ALJ issued the operative decision on June 19, 2015. R. 18-28. The ALJ found that Claimant had the following severe impairments: scleroderma; left wrist tendinitis; left ulnar neuritis. R. 20. The ALJ found that Claimant did not have an impairment or combination of impairments that meets or medically equals any listed impairment. R. 22-23
The ALJ found that "[C]laimant had the residual functional capacity [(RFC)] to perform light work as defined in 20 CFR 404.1567(b) except with no more than occasional bilateral fine and gross manipulation." R. 22-23.
"In Social Security appeals, [the court] must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotations omitted). 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) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)). 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 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. The District Court "`may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].'" Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Claimant asserts that the ALJ failed to apply the correct legal standards at step four of the sequential process, and that the ALJ's decision is not supported by substantial evidence, because the ALJ failed to comply with Social Security Ruling (SSR) 00-4p. Doc. 18 at 13-14. According to Claimant, the ALJ erred by failing to resolve a conflict between the testimony of the Vocational Expert (VE) and the Dictionary of Occupational Titles (DOT). Id. The Commissioner argues in response that, pursuant to SSR 00-4p, the ALJ must only resolve such a conflict if the ALJ is aware of that conflict, although the Commissioner admits that there was, in fact, a conflict between the VE's testimony and the DOT. Thus, because the ALJ was not aware of the conflict, the ALJ was not obligated to resolve the conflict and, in turn, did not violate SSR 00-4p. Doc. 18 at 14-17.
At step four of the sequential evaluation process, the ALJ must determine a claimant's RFC and ability to do past relevant work. Phillips, 357 F.3d at 1238 (citing 20 C.F.R. § 404.1520(a)(4)(iv)). The ALJ may rely on a VE's testimony in determining whether a claimant can perform his or her past relevant work. Hennes v. Comm'r of Soc. Sec. Admin., 130 F. App'x 343, 346 (11th Cir. 2005) (citing 20 C.F.R. § 404.1560(b)(2)). In order for a VE's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which is accurate and includes all of a claimant's limitations. Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). The ALJ, however, is not required to include each and every symptom of the claimant's impairments, Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007), or medical findings that the ALJ properly rejected as unsupported, Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004), in the hypothetical question.
Further, the Eleventh Circuit has explained that "[i]f there is a conflict between the DOT and the jobs identified by a VE in response to the hypothetical question, the testimony of the vocational expert `trumps' the DOT because `the DOT is not the sole source of admissible information concerning jobs.'" Leigh v. Comm'r of Soc. Sec., 496 F. App'x 973, 975 (11th Cir. 2012) (quoting Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999)). Indeed, "[t]he DOT is not comprehensive, . . . the SSA does not consider it to be dispositive [, and] a VE is `an expert on the kinds of jobs an individual can perform based on his or her capacity and impairments.'" Id. (quoting Phillips, 357 F.3d at 1240). Specifically, as to the SSR at issue here, the Circuit explained that:
Id. In Leigh, the VE did not alert the ALJ to any conflict between the DOT and the VE's testimony, and the Circuit found that, even if there were a conflict between the DOT and the VE's testimony, the ALJ did not err in simply relying upon the VE's testimony. Id. (citing Jones, 190 F.3d at 1229-30 (explaining that the testimony of a VE trumps the DOT where there is an inconsistency)); see also Hurtado v. Comm'r of Soc. Sec., 425 F. App'x 793, 795-96 (11th Cir. 2011) (even assuming that an inconsistency existed, no error in relying on VE testimony because it trumps any inconsistent provision of the DOT); Peeler v. Comm'r of Soc. Sec., 400 F. App'x 492, 496 (11th Cir. 2010) ("The ALJ did not err in relying on Dr. Feldman's testimony even if it conflicted with information in the DOT because under our precedent Dr. Feldman's testimony trumps the DOT."); Sollars-D'Annunzio v. Astrue, No. 5:08-CV-80-OC-GRJ, 2009 WL 302170, at *9-10 (M.D. Fla. Feb. 6, 2009) (finding that "the law of the Circuit provides that where there is a conflict between the testimony of the VE and the description in the DOT the testimony of the VE trumps the DOT").
In addition, pursuant to SSR 00-4p, the ALJ is only required to resolve a conflict between the DOT and the VE's testimony if the ALJ is aware of that conflict. See Sollars-D'Annunzio, 2009 WL 302170, at *9 ("SSR 00-4p only requires the VE to resolve the conflict when he is made aware of the conflict"). As the court in Sollars-D'Annunzio explained:
Id. (internal citations omitted). In that case, the court found that "the ALJ complied with this obligation by directing the VE to point out any conflicts," based on the following colloquy:
Id. Thus, the court found that "by expressly directing the VE to advise the ALJ of any inconsistencies, the ALJ satisfied the first requirement of SSR 00-4p." Id. If the VE does not advise the ALJ of a conflict, and the ALJ is not otherwise aware of a conflict, there is no violation of SSR 00-4p. See id.; see also Wright v. Comm'r of Soc. Sec., No. 6:12-CV-1640-ORL-31, 2014 WL 982626, at *9 (M.D. Fla. Mar. 12, 2014) ("The plain language of the SSR provides that the ALJ should inquire on the record as to whether the testimony is consistent with the DOT and, when there is an apparent unresolved conflict, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE evidence.") (emphasis in original).
Here, the ALJ expressly directed the VE to advise the ALJ of any conflict between the VE's testimony and the DOT, and the VE failed to make the ALJ aware of any such conflict. R. 53-54. The following colloquy took place at the hearing:
Id. Thus, as in Sollars-D'Annunzio, the ALJ fulfilled the ALJ's first obligation under SSR 00-4p. Receiving no information about a possible conflict, and there being no objection by Claimant or her counsel, the ALJ was not required to make an independent inquiry as to whether or not the VE's testimony was consistent with the DOT. See Dickson v. Comm'r of Soc. Sec., No. 5:13-CV-48-OC-DNF, 2014 WL 582885, at *5 (M.D. Fla. Feb. 13, 2014) ("SSR 00-4p does not require an ALJ to independently investigate whether a conflict exists, it simply requires that that ALJ ask the vocational expert if a conflict does exist, and if a conflict exists, then the ALJ must explain and resolve the conflict.") (citation omitted); Sollars-D'Annunzio, 2009 WL 302170, at *9 ("Where, as here, the ALJ has requested the VE to point out any conflicts and there is no evidence that a conflict was otherwise brought to the attention of the VE, there is no violation of SSR 00-4p."). Therefore, the ALJ did not err at step four of the sequential process by purportedly failing to comply with SSR 00-4p.
Claimant asserts that the ALJ's reasons for assigning no significant weight to Dr. Panzini's opinions were not based on the correct legal standards and are not supported by substantial evidence. Doc. 18 at 17-21. Thus, Claimant argues that the ALJ erred by assigning no significant weight to Dr. Panzini's opinion. Id. The Commissioner counters that the ALJ applied the correct legal standard to Dr. Panzini's opinions and provided good cause reasons for assigning Dr. Panzini's opinions no significant weight, each of which reasons were supported by substantial evidence. Doc. 18 at 21-25.
The ALJ assesses the claimant's RFC and ability to perform past relevant work at step four of the sequential evaluation process. Phillips, 357 F.3d at 1238. The RFC "is an assessment, based upon all of the relevant evidence, of a claimant's remaining ability to do work despite his impairments." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The ALJ is responsible for determining the claimant's RFC. 20 C.F.R. § 404.1546(c).
The consideration and weighing of medical opinions is an integral part in determining the claimant's RFC. The ALJ must consider a number of factors in determining how much weight to give each medical opinion, including: 1) whether the physician has examined the claimant; 2) the length, nature, and extent of the physician's relationship with the claimant; 3) the medical evidence and explanation supporting the physician's opinion; 4) how consistent the physician's opinion is with the record as a whole; and 5) the physician's specialization. 20 C.F.R. § 404.1527(c).
A treating physician's opinion must be given controlling weight, unless good cause is shown to the contrary. See 20 C.F.R. § 404.1527(c)(2) (giving controlling weight to the treating physician's opinion unless it is inconsistent with other substantial evidence); see also Winschel, 631 F.3d at 1179. There is good cause to assign a treating physician's opinion less than substantial or considerable weight, where: 1) the treating physician's opinion is not bolstered by the evidence; 2) the evidence supports a contrary finding; or 3) the treating physician's opinion is conclusory or inconsistent with the physician's own medical records. Winschel, 631 F.3d at 1179.
The ALJ must state the weight assigned to each medical opinion, and articulate the reasons supporting the weight assigned to each opinion. Id. The failure to state the weight with particularity or articulate the reasons in support of the weight prohibits the Court from determining whether the ultimate decision is rational and supported by substantial evidence. Id.
The record reveals that Claimant began treating with Dr. Panzini in 2005. R. 643. But Claimant did not see Dr. Panzini from about 2005 through 2012. R. 472. Thereafter, as discussed in the following paragraphs, Claimant saw Dr. Panzini a few times 2012 and once in 2013.
In 2005, Dr. Panzini performed a panendoscopy on Claimant due to Claimant's "long standing scleroderma and progressive dysphagia." R. 338. Following that procedure, Dr. Panzini prescribed a "beefed up" anti-reflux regime and suggested that she would follow up with Claimant. Id. Prior to that procedure, Claimant complained to Dr. Panzini of heartburn and difficulty swallowing, but Dr. Panzini noted that Claimant complained of "an annoying tight feeling on the skin of her face and crossing her joints" and noted that she "is sometimes fatigued," although Claimant did "not have any restricted range of motion and can open her mouth adequately to eat without difficulty." R. 339-40. On physical examination, Dr. Panzini noted that Claimant's "extremities [were] grossly within normal limits with the exception of tightening of skin across digits." R. 340.
Most relevant here, Dr. Panzini treated Claimant on at least two occasions in 2012 in relation to esophageal dysphagia. In July 2012, Dr. Panzini saw Claimant for the first time since 2005. R. 472. At that time, Claimant complained of difficulty swallowing. Id. Dr. Panzini noted that Claimant had "substantial scleroderma" and resulting skin changes on her face and fingers. Id. Claimant self-reported that she was working as a realtor but was having difficulty "keeping up" and was "attempting to get disability." Id. On physical examination, Dr. Panzini's findings were unremarkable and did not include any findings indicative of functional limitations; it appeared that Claimant treated with Dr. Panzini solely in relation to her esophageal issues. Id. In September 2012, Dr. Panzini performed another panendoscopy on Claimant and, this time, dilated Claimant's esophagus. R. 449. At a follow-up in October 2012, Dr. Panzini stated that Claimant's dysphagia had "been completely relieved," although she noted that the esophageal stricture would likely reoccur at some point. R. 470. Dr. Panzini noted that Claimant had gained weight and "is looking and feeling well." Id.
On April 16, 2013, Dr. Panzini saw Claimant for a "routine follow-up" and determined that, if Claimant's symptoms progress, then Dr. Panzini may perform another esophageal dilation. R. 575. In addition, Dr. Panzini stated as follows in a letter to Ms. Arcuni:
Id. On that same day, as she stated, Dr. Panzini wrote the following letter
R. 643.
On July 9, 2013, Dr. Panzini completed a Gastrointestinal Disorders Impairment Questionnaire (the Assessment). R. 690-695. The Assessment is the only opinion of Dr. Panzini that Claimant actually discusses in any detail in her brief. Doc. 18 at 18-19. In the Assessment, Dr. Panzini listed Claimant's diagnosis as scleroderma and listed the positive clinical findings as loss of appetite, fatigue, weight loss, and difficulty swallowing. R. 690-91. Dr. Panzini did not indicate that pain or any other physical clinical indication was present. R. 691. Dr. Panzini then listed Claimant's "general" symptoms as "fatigue, malaise, [and] chronic ulceration of digits." Id. Dr. Panzini checked boxes indicating that there is evidence of malnutrition, malabsorption, abscesses, and multiple recurrent inflammatory lesions, amongst other things. R. 691-92. Then, although Dr. Panzini did not check the box indicating that Claimant had positive clinical findings related to pain, Dr. Panzini stated that Claimant had "pain from scleroderma and subsequent digital ulceration" located at "all joints" that "always" was present, and that was moderate to severe. R. 692. Dr. Panzini then opined as to several, severe functional limitations. R. 693-95. For example, according to Dr. Panzini: Claimant's pain, fatigue or other symptoms were "frequently" severe enough to interfere with attention and concentration; Claimant was incapable of even low stress work; in an eight-hour day, Claimant could sit only one hour and stand or walk only one hour; Claimant could lift and carry only 0-5 pounds, and do so only occasionally; and Claimant would be absent from work more than three times per month. Id. Finally, Dr. Panzini stated that these symptoms and limitations apply to the "last couple of years" and referred to the "comments from rheumatologist." R. 695.
The ALJ discussed Dr. Panzini's opinion, and assigned it no significant weight, explaining as follows:
R. 27. Thus, the ALJ assigned Dr. Panzini's opinions little weight because her opinions were: 1) not well supported by her own treatment records; and 2) inconsistent with the medical evidence of record. Id.
Claimant asserts that the ALJ mischaracterized Dr. Panzini's opinions and that the medical evidence of record supports Dr. Panzini's opinions. Doc. 18 at 19-21. In making the latter argument, Claimant points primarily to medical records supporting her wrist and elbow impairments, which the ALJ took into consideration in formulating the limitations contained within the RFC. See id. In addition, the Court notes that Claimant did not challenge the ALJ's finding that Dr. Panzini's opinions were not well supported by Dr. Panzini's own treatment records. See id.
The undersigned finds that the ALJ stated good cause to assign Dr. Panzini's opinions no significant weight. As an initial matter, the Court notes that Claimant did not challenge the ALJ's finding that Dr. Panzini's opinions were not well supported by Dr. Panzini's own treatment records and, thus, has waived such a challenge. See Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (per curiam) (refusing to consider an argument that the claimant failed to raise before the district court). Regardless, Dr. Panzini's opinions are inconsistent with her own treatment records, which, as the ALJ noted, reflect a resolution of Claimant's dysphagia following esophageal dilation.
Further, when considering Dr. Panzini's treatment records, it is important to put Dr. Panzini's treatment of Claimant in context. Dr. Panzini is a gastroenterologist
In addition, Dr. Panzini's opinions are, as the ALJ found, not bolstered by the medical evidence of record. For example, prior to the alleged onset date, in 2009, Claimant's gynecologist noted that Claimant's "scleroderma situation seems to be under good control." R. 350. In June 2012, Claimant's gynecologist noted that Claimant's "scleroderma seems to be reasonably stable." R. 447. In October 2011, Claimant complained to another physician that she "is exhausted all the time and her hands and her body aches," but upon physical examination the examining physician noted no acute distress, overwhelmingly normal physical findings, and 5/5 strength on her upper and lower extremities. R. 398-402. Further, the examining physician opined that "[t]he only suggestion of problems is swallowing difficulty and some tightness of the skin around her mouth. . . . Most of her functional complaints seem to be related to her anxiety and insomnia." R. 402. In November 2011, Claimant's treating internal medicine physician wrote a letter stating that Claimant suffered from systemic scleroderma and, as a result, Claimant suffered from "profound fatigue and inability to gain and maintain weight." R. 406. That doctor opined that Claimant's "fine motor ability is impaired by the disease affecting her fingers," but noted no other functional limitations. Id.
In 2012 and 2013, following the alleged onset date, Claimant treated with Suzanne Arcuni, APRN, as a primary care practitioner, and those treatment records contained no indications of any functional limitations. See, e.g., R. 503, 505, 507, 510, 512, 514, 521, 545, 547, 549. During those visits, Claimant complained of various ailments, such as an eye lesion (R. 503, 505), shoulder pain (R. 503, 505), clogged-feeling ear (R. 503), migraines (R. 507), an insect sting suffered while trimming her lawn (R. 510), sleeping problems (R. 512), a rib injury from a fall suffered outside at a bonfire (R. 545), and left wrist pain (R. 547). But, overwhelmingly, Ms. Arcuni recommended conservative treatment and Claimant's physical examinations were unremarkable, and included findings of no acute distress (R. 503, 505, 507, 510, 512, 514, 545, 547, 549), well-nourished (R. 503, 505, 507, 510, 512, 514, 545, 547, 549), normal range of motion (R. 505, 512, 521), normal muscle strength (512, 521), negative for fatigue and weakness (R. 517-18), and denials of fatigue and weakness (R. 510).
In January 2013, Claimant treated with Dr. Lenore Buckley, a rheumatologist, at the referral of Ms. Arcuni, for the purpose of a second opinion in relation to Claimant's scleroderma. R. 481. There, Claimant complained of "fatigue, insomnia, neck and shoulder pain" and stated that she felt she could no longer work and had applied for disability. Id. However, Claimant's physical examination was overwhelmingly normal, negative for fatigue and muscle weakness, and, with the exception of "thickening of the skin," callouses, and "decreased extension of PIP," Claimant's "upper and lower extremity exam [was] otherwise normal." R. 482. Dr. Buckley opined that Claimant's scleroderma "appears to be in a stable phase." Id. Dr. Buckley's treatment plan appeared to be conservative, and involved a discussion of the complications of scleroderma, annual and biannual checkups, and a discussion of the side effects of medication. Id. There was no indication in the treatment records of Dr. Buckley that Claimant suffered from a condition that would cause particular functional limitations.
In February 2013 and April 2013, Dr. Reardon, a specialist in orthopedics, saw Claimant for left medial elbow pain and numbness. R. 577; 624. During physical examination, Dr. Reardon noted that Claimant walked "fully weight bearing" and noted that her cervical spine caused no other shoulder, arm or hand pain, and only mild axial neck discomfort. Id. In a follow-up visit, Dr. Reardon diagnosed left wrist tendinitis and left ulnar neuritis. R. 624. Dr. Reardon's treatment and examination records contained no other information that would support the severe functional limitations listed by Dr. Panzini in the Assessment.
In October 2014, Claimant treated with Dr. Sharon Oglesby at the Halifax Health Center for Family and Sports Medicine. R. 696. During that appointment, Claimant complained of joint pain and fatigue that prevented her from working, but Dr. Oglesby noted that Claimant "has no acute concerns today however does need refills on all her medications." R. 698. Upon examination, Dr. Oglesby found that Claimant's motor functions were "grossly within normal limits" and "Five out of 5 muscle strength in arms and legs." R. 699.
In early 2015, Claimant treated with nurse practitioner Ellen Branoff at Ormond Medical Center. R. 715. At that appointment, Claimant reported sleep problems, but denied any pain, fatigue, or weakness. Id. Upon physical examination, Claimant was well developed, well nourished, in no acute distress, and had normal attention span and concentration. Id. Also in 2015, Claimant followed up with Ms. Branoff. R. 711. At that appointment, Claimant reported pain, but denied any fatigue or weakness. R. 712. Further, Claimant reported joint pain, stiffness and tenderness, but denied limited joint mobility, muscle pain, muscle weakness, neck pain, back pain, or difficulty walking. Id. Upon physical examination, Claimant was well developed, well nourished, in no acute distress, and had normal attention span and concentration. R. 712-13.
Thus, the foregoing medical evidence of record stands in contrast to Dr. Panzini's opinions, as well as Claimant's reported symptoms and testimony, which the ALJ did not find entirely credible.
Claimant seems to assert that the ALJ mischaracterized Dr. Panzini's opinions because the ALJ did not list and repudiate each and every functional limitations contained within the Assessment. Doc. 18 at 19-20. While it is accurate that the ALJ did not engage in such a line-by-line analysis, there is no requirement for the ALJ to do so. See Boone v. Colvin, 2015 WL 4944093, at *3 (S.D. Ga. Aug. 19, 2015) ("An ALJ's decision also need not address every limitation included in a physician's report as long as the written decision is clear that the ALJ considered both the physician's opinion and the plaintiff's condition as a whole.") (citing Adams v. Comm'r. Soc. Sec. Admin., 586 F. App'x 531, 534 (11th Cir. 2014)). Here, the ALJ's decision referenced the entirety of the medical records constituting Dr. Panzini's opinions, noted that Dr. Panzini's opinions were opinions that Claimant's scleroderma both "limited her ability to work and justified a finding of disability," and found that that the medical evidence of record "fail[ed] to identify persistent and significant functional limitations." R. 27. Thus, it was clear that the ALJ considered not just Dr. Panzini's purported opinion that Claimant was disabled,
In light of the foregoing, the ALJ has stated good cause to assign no significant weight to Dr. Panzini's opinions. These reasons, as discussed above, are supported by substantial evidence, and, together, support the ALJ's decision to assign no significant weight to Dr. Panzini's opinions. Therefore, the Court finds that the ALJ did not err in assigning Dr. Panzini's opinions no significant weight.
For the reasons stated above, it is