PATRICIA D. BARKSDALE, Magistrate Judge.
This is a case under 42 U.S.C. § 405(g) to review a final decision of the Commissioner of Social Security denying Sharon Marie Dietz's claims for disability insurance benefits.
Dietz was born in 1965. Tr. 80. She completed college and has worked as a medical-equipment-sales representative. Tr. 37, 175, 200, 407. She last worked in October 2011.
Dietz has filed two applications for disability benefits: one on February 8, 2013, and one on August 22, 2016, while the denial of the first application was on appeal before this Court.
In the first case, the Honorable Roy Dalton ruled the ALJ had erred in his treatment of two doctors' medical opinions about Dietz's physical limitations. Tr. 492-511. When that case was remanded, Dietz's 2016 application was still under administrative review, and the Appeals Council directed the ALJ to consolidate the applications and proceed in one administrative case. Tr. 516. The Appeals Council vacated the ALJ's first decision, remanded the case to the ALJ for further proceedings consistent with Judge Dalton's order, and directed the ALJ to "offer the claimant the opportunity for a new hearing, take any further action needed to complete the administrative record, and issue a new decision." Tr. 516.
In a second decision, the same ALJ found no disability. Tr. 362-78. That is the decision now under review.
In December 2016, Dietz saw Dr. Trinidad at Hope Counseling Centers for a consultative exam in connection with her applications for benefits. Tr. 924.
In a report from the exam, under "Review of Records Provided by the Division of Disability Determinations," Dr. Trinidad summarized a September 2016 psychosocial assessment by a licensed marriage and family therapist. Tr. 924. The therapist found Dietz met the criteria for "Major Depressive, recurrent, moderate" and "Partner Relational problems, R/o adjustment disorder with mixed emotions." Tr. 924.
Under "General Observations," Dr. Trinidad wrote:
Tr. 924.
Under "Account of Present Medical/Mental Health Conditions," Dr. Trinidad recorded that Dietz had discussed her physical conditions and had conveyed "the main reason for filing for disability is related to both medical and mental health problems." Tr. 924. Dr. Trinidad wrote,
Ms. Dietz reported current mental health conditions being remarkable for [d]epression and [a]nxiety correlated to physical pain and the emotional pain she experiences from ongoing marital conflict. Current mood was reported as "Not well" and affect appeared extremely labile.
Tr. 925.
Dr. Trinidad wrote, "The current level of mental health symptoms would best be characterized as moderate." Tr. 925. (This appears to be Dr. Trinidad's characterization of Dietz's symptoms as opposed to a statement by Dietz, but the document is not clear on this point.)
Under "Activities of Daily Living," Dr. Trinidad recorded statements by Dietz. Tr. 925. She reported her sleep is "intermittent" because she worries "a lot" about her health, children, and marriage; she takes care of the children, prepares meals, cannot sit or stand for long, and often has to shift positions; and she used to play golf but cannot do much now.
Under "Significant History," Dr. Trinidad wrote that Dietz attends social gatherings like church regularly but cannot return to work because of "chronic neck, back, and leg pain due to [a] spinal injury.'" Tr. 925.
Dr. Trinidad reported the following findings from a mental-status evaluation. Tr. 926. Dietz was alert and oriented to person, place, situation, and time. Tr. 926. She displayed no gross gait abnormalities or significant problems with motor functioning. Tr. 926. Her rate of observed speech was "pressured" and the quality "soft." Tr. 926. Her speech content was relevant, coherent, and logical. Tr. 926. She demonstrated good attention and concentration by answering questions without distraction and completing alphabetic and numeric tasks without error. Tr. 926. Her mental flexibility and receptive language were good; she could spell "world" backward and complete simple tasks of serial calculations without error. Tr. 926. She had no significant difficulties in processing speed. Tr. 926. Her receptive language was good; she completed all verbal commands presented without error. Tr. 926. Her expressive language was good; she completed all written tasks presented without error. Tr. 926. Her immediate memory was good; she could recall three of three words immediately after a short delay. Tr. 926. Her remote memory was adequate; she could recall specific details about past personal events. Tr. 926. Her mental computation was good; she could complete basic verbal arithmetic problems without error. Tr. 926. She displayed good social skills and abstract reasoning; good judgment related to self-care and social problem-solving; good insight; above-average intelligence; coherent, logical, and goal-directed thought processes; and age-appropriate and unremarkable thought form and content. Tr. 926. She denied having a history of suicidal or homicidal attempts or current ideations. Tr. 926. She denied having hallucinations. Tr. 926.
Under "Diagnostic Impressions," Dr. Trinidad wrote "Anxiety Disorder Due to [] Chronic neck, back and leg pain related to `ruptured discs' and frequent stress headaches, prolapsed heart valve"; "Major Depressive Disorder Recurrent Episode, Moderate"; "Relationship Distress With Spouse[]"; and "Other Specified Trauma-and Stressor-Related Disorder." Tr. 927.
Under "Summary," Dr. Trinidad wrote that Dietz "appears to meet criteria for Depression, Anxiety both correlated to incapacitating medical condition and marital distress due to claims that her husband puts extreme demands on her to perform as a wife and her daughters to behave appropriately without medical/psychiatric intervention (one child has severe ADHD and anxiety[).]" Tr. 927. He continued:
Tr. 927.
In the same month (December 2016), Dr. Ragsdale reviewed the medical evidence of Dietz's mental impairments in connection with her second application for benefits. Tr. 467-69.
Dr. Ragsdale opined Dietz had severe affective and anxiety disorders and completed a "psychiatric review technique."
Tr. 468-69.
In the "Mental Residual Functional Capacity Assessment," under "Does the individual have understanding and memory limitations," Dr. Ragsdale wrote, "Yes." Tr. 471. He opined Dietz is not significantly limited in the ability to remember locations and work-like procedures; has no evidence of a limitation in the ability to understand and remember very short and simple instructions; and is moderately limited in the ability to understand and remember detailed instructions. Tr. 471.
Under "Does the individual have sustained concentration and persistence limitations," Dr. Ragsdale wrote, "Yes." Tr. 472. He opined there is no evidence that Dietz is limited in the ability to carry out very short and simple instructions. Tr. 471. He opined she is moderately limited in the ability to carry out detailed instructions; is moderately limited in the ability to maintain attention and concentration for extended periods; and is not significantly limited in the ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, work in coordination with or in proximity to others without being distracted by them, and make simple work-related decisions. Tr. 472. He opined she is moderately limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Tr. 472.
Under "Does the individual have social interaction limitations," Dr. Ragsdale wrote, "Yes." Tr. 472. But he opined Dietz is not significantly limited in the ability to interact appropriately with the general public, ask simple questions or request assistance, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or peers without distracting them or exhibiting behavioral extremes, and maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. Tr. 472.
Under "Does the individual have adaptation limitations," Dr. Ragsdale wrote, "Yes." Tr. 473. He opined Dietz is moderately limited in the ability to respond appropriately to changes in the work setting; has no limitation in the ability to be aware of normal hazards and take appropriate precautions and travel in unfamiliar places or use public transportation; and is not significantly limited in the ability to set realistic goals or make plans independently of others. Tr. 473.
Under "Additional Explanation," Dr. Ragsdale wrote:
Tr. 473.
The ALJ entered a decision on October 11, 2018. Tr. 362-78. The period at issue is October 5, 2011 (the originally alleged onset date), to December 31, 2016 (the date last insured). The ALJ's findings pertain to that period only.
At step one of the five-step sequential process,
At step two, the ALJ found Dietz had suffered from severe physical impairments of degenerative disc disease of the lumbar spine, status post microdiscectomy, fibromyalgia, a history of TMJ, and a history of colitis. Tr. 364. He found her mental impairments were not severe, explaining:
Tr. 364-65.
Referencing Dr. Trinidad's report from the December 2016 consultative exam, the ALJ continued:
Tr. 365.
The ALJ then discussed the four "paragraph B" criteria:
Tr. 365.
For the first functional area (understanding, remembering, or applying information), the ALJ reasoned:
Tr. 365.
For the second functional area (interacting with others), the ALJ reasoned:
Tr. 365.
For the third functional area (concentrating, persisting, or maintaining pace), the ALJ reasoned:
Tr. 366.
For the fourth functional area (adapting or managing oneself), the ALJ reasoned:
Tr. 366.
The ALJ concluded, "Because the claimant's medically determinable mental impairments caused no more than `mild' limitation[s] in any of the functional areas, they were nonsevere[.]" Tr. 366. The ALJ did not discuss Dietz's mental limitations or any other opinions concerning them further.
At step three, the ALJ found Dietz had had no impairment or combination of impairments that meets or medically equals the severity of any impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 367. He expressly considered Listing 1.02 (major dysfunction of a joint) and Listing 1.04 (disorders of the spine). Tr. 367.
The ALJ found Dietz had possessed the residual functional capacity ("RFC")
Tr. 367 (emphasis added).
At step four, the ALJ found Dietz had been able to perform her past relevant work as a manufacturer's representative and therefore had not been disabled. Tr. 376.
As an alternative finding, at step five, the ALJ found Dietz had been able to perform "unskilled"
A court reviews the Commissioner's factual findings for substantial evidence. 42 U.S.C. § 405(g). "Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains sufficient evidence to support the agency's factual determinations." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal quotation marks and alteration omitted). "[W]hatever the meaning of `substantial' in other contexts, the threshold for such evidentiary sufficiency is not high." Id. "Substantial evidence ... is more than a mere scintilla. . . . It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted).
If substantial evidence supports an ALJ's decision, a court must affirm, even if other evidence preponderates against the factual findings. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The court may not decide facts anew, reweigh evidence, make credibility determinations, or substitute its judgment for the Commissioner's judgment. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
The substantial-evidence standard applies only to factual findings. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). "The Commissioner's failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (quoted authority and alterations omitted).
"[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009). If "remand would be an idle and useless formality," a reviewing court need not "convert judicial review of agency action into a ping-pong game." N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969).
To obtain benefits, a claimant must demonstrate she is disabled. 20 C.F.R. § 404.1512(a). A claimant is disabled if she cannot "engage in 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 12 months." 42 U.S.C. § 423(d)(1)(A).
Regardless of its source, the Social Security Administration ("SSA") "will evaluate every medical opinion" it receives. 20 C.F.R. § 404.1527(c).
An ALJ "must state with particularity the weight given to different medical opinions and the reasons therefor." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). If an ALJ does not "state with at least some measure of clarity the grounds for his decision," a court will not affirm simply because some rationale might have supported it. Id.
An ALJ must consider all relevant record evidence. 20 C.F.R. § 404.1520(a)(3). But "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ's decision ... is not a broad rejection which is not enough to enable [the Court] to conclude that [the ALJ] considered [the claimant's] medical condition as a whole." Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (internal quotation marks omitted).
An ALJ's determination may be implicit, but the "implication must be obvious to the reviewing court." Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983). In unpublished opinions, the Eleventh Circuit has held that failure to explicitly state the weight given to an opinion may be harmless if the opinion is consistent with the ALJ's decision or the decision is in-depth, shows thoughtful consideration of the findings, and does not leave the court wondering how the ALJ reached his decision. See Colon v. Colvin, 660 F. App'x 867, 870 (11th Cir. 2016); East v. Barnhart, 197 F. App'x 899, 901 n.3 (11th Cir. 2006).
Dietz has established error that is not harmless. Despite the requirement he do so, the ALJ neither stated the weight he was giving Dr. Trinidad's opinion—much less "with particularity"—nor explained the "reasons therefor." See Winschel, 631 F.3d at 1179 (quoted).
Dr. Trinidad concluded: Dietz's "overall presentation appeared valid and consistent with the reported conditions"; her "mental health symptoms based on report[s] and clinical observations appear to be moderately impacting activities of daily living, vocational performance, and interpersonal interactions"; and her prognosis is "fair." Tr. 927. The ALJ's failure to state the weight he was giving Dr. Trinidad's opinion, failure to mention those conclusions in his summary of Dr. Trinidad's opinion, and finding that the record revealed no "significant mental health functional limitations that cause any limitations with regards to her ability to work," together make unclear whether the ALJ overlooked those conclusions or rejected them based on the parts of Dr. Trinidad's opinion the ALJ summarized (mainly the findings from the mental-status exam) and other evidence.
The Commissioner observes the ALJ need not cite every piece of evidence and argues the decision shows the ALJ considered Dr. Trinidad's opinion. Doc. 14 at 6. That argument fails. While the ALJ did not have to summarize all of the conclusions in Dr. Trinidad's opinion, and while the decision shows the ALJ considered Dr. Trinidad's opinion, the decision lacks clarity on the weight the ALJ was giving Dr. Trinidad's opinion and the reasons therefore. See Colon, 660 F. App'x at 870.
The Commissioner argues the ALJ did not have to give a specific weight to Dr. Trinidad's opinion because it was conclusory and included no specific functional limitation, primarily relying on Banks v. Comm'r Soc. Sec., 686 F. App'x 706, 711 (11th Cir. 2017), in which the Eleventh Circuit held the ALJ did not have to specifically refer to a doctor's statement that the claimant's arthritis led to significant and marked functional limitation because the statement was vague, conclusory, and failed to explain the type of marked functional limitation or the domains in which his arthritis limited him. Doc. 14 at 7. That argument also fails. Notwithstanding that Dr. Trinidad's report appears detailed and supported rather than vague and conclusory, the ALJ's error is not in failing to summarize every aspect of the opinion but in failing to provide clarity on the weight he gave it and the reasons therefore.
Regardless, Dietz has established other error that is not harmless. Despite the requirement he do so, the ALJ neither stated the weight he was giving Dr. Ragsdale's opinion—much less "with particularity"—nor explained the "reasons therefor." See Winschel, 631 F.3d at 1179 (quoted). Indeed, the ALJ did not reference Dr. Ragsdale's opinion at all.
Dr. Ragsdale opined Dietz had moderate difficulties in maintaining concentration, persistence, or pace, Tr. 468; and is moderately limited in abilities to understand and remember detailed instructions, Tr. 471, carry out detailed instructions, Tr. 472, maintain attention and concentration for extended periods, Tr. 472, complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, Tr. 472, and respond appropriately to changes in the work setting, Tr. 473. Dr. Ragsdale further opined her work-related ability and skills may be "moderately limited at times due to psychiatric factors" but she could still comprehend and memorize "simple, succinct job instructions," learn and follow "formulaic work processes," make "basic job-related decisions," perform "slower-paced" simple, routine tasks at two-hour increments, and appropriately adjust to changes in work duties with advance notice. Tr. 473. With no reference to Dr. Ragsdale's opinion and no mental limitations in the RFC, neither the weight the ALJ gave the opinion nor the reasons therefore can be inferred from the decision.
The Commissioner does not dispute the ALJ erred in failing to state the weight he was giving Dr. Ragsdale's opinion or the reasons therefore. See generally Doc. 14 at 7-9. Instead, the Commissioner argues any error is harmless because Dr. Ragsdale's opinion is consistent with the ALJ's step-five finding that Dietz could perform three unskilled jobs, citing cases that hold failing to weigh a medical opinion is harmless if limitations in the opinion would not affect a claimant's ability to perform the jobs identified. Doc. 14 at 8-9 (citing Caldwell v. Barnhart, 261 F. App'x 188, 190 (11th Cir. 2008), Timmons v. Comm'r of Soc. Sec., 522 F. App'x 897, 906 (11th Cir. 2013), and Jones v. Comm'r of Soc. Sec., 492 F. App'x 70, 73 (11th Cir. 2012)).
The Commissioner's argument fails. The office-helper job identified by the ALJ at step five has a reasoning level of two: "Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations."
While Dietz is correct that the ALJ erred in failing to weigh Dr. Trinidad's and Dr. Ragsdale's opinions and the errors were not harmless, Dietz is incorrect about the relief available to her. Citing Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir. 1982), Dietz contends, "The Eleventh Circuit has held that the court may reverse a case for an award of benefits where the claimant has suffered an injustice." Doc. 13 at 22. Based on that authority, she asks the Court to order remand for an outright award of benefits—not further administrative proceedings—because she has had to wait for more than six years for administrative proceedings based on the correct legal standards. Doc. 13 at 22-23. Citing no authority, she alternatively asks for remand with a "reasonable" deadline to make a final decision. Doc. 13 at 23.
Dietz's reading of Walden is too broad. In Walden, the Eleventh Circuit held the ALJ erred by applying an improper legal standard, failing to address the claimant's testimony and other evidence of pain, failing to make credibility findings, failing to develop the record, and exhibiting "total disregard" of "unrefuted evidence" of disability. 672 F.2d at 837. The Eleventh Circuit emphasized that the claimant's "unrefuted evidence established she was unable to perform her prior work," the "burden shifted to the [Commissioner] to show that [she] is capable of engaging in some substantial gainful activity," and the "[Commissioner] offered no evidence in support of his burden." Id. at 840. The Eleventh Circuit concluded, "Due to the perfunctory manner of the hearing [15 minutes], the quality and quantity of errors pointed out, and the lack of substantial evidence to support the ALJ's decision, this court is of the opinion the appellant has suffered an injustice." Id. The Eleventh Circuit ended the decision, "This case is hereby reversed and judgment rendered for the appellant." Id.
A decision's "binding power as precedent ... comes not from what the opinion says or its words imply," but from what the court in that case decided "considering the facts then before the court." New Port Largo, Inc. v. Monroe Cty., 985 F.2d 1488, 1500 (11th Cir. 1993) (Edmondson, J., concurring). Contrary to Dietz's assertions, the Eleventh Circuit in Walden did not hold a court may reverse a case for an award of benefits whenever the claimant has suffered what the court considers an injustice, and certainly did not hold an injustice occurs where, as here, the administrative process has been delayed because an ALJ has twice erred, regardless of whether the claimant has established disability. Having provided no authority for either remand for an outright award of benefits or for remand with a deadline under these circumstances, neither form of relief is warranted.
Assuming authority for an award of benefits based on a finding of an injustice, no such finding is warranted here.
In light of that remedy, the Court need not decide Dietz's remaining argument that the ALJ failed to properly weigh her testimony about her symptoms and limitations by relying on an older description of her activities of daily living that did not reflect her recent, more limited activities, Doc. 13 at 20-21. While his consideration of her testimony primarily dealt with her physical limitations, reconsideration of Dr. Trinidad's and Dr. Ragsdale's opinions could affect the consideration of her testimony because any mental limitations could relate to her activities of daily living. See Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (declining to address issues likely to be reconsidered on remand).
The undersigned recommends:
Dietz's second application states the application date is August 22, 2016. Tr. 594. A remand order from the Appeals Council states the application date is August 18, 2016. Tr. 516. The precise date is immaterial to the issues Dietz raises here.
