Opinion
Case No: 6:21-cv-603-EJK
2022-06-22
Dorian Wade BOWIE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Shea A. Fugate, Law Office of Shea Fugate, Maitland, FL, for Plaintiff. John F. Rudy, III, US Attorney's Office, Tampa, FL, Nadine DeLuca Elder, Social Security Administration, Atlanta, GA, for Defendant.
Shea A. Fugate, Law Office of Shea Fugate, Maitland, FL, for Plaintiff.
John F. Rudy, III, US Attorney's Office, Tampa, FL, Nadine DeLuca Elder, Social Security Administration, Atlanta, GA, for Defendant.
ORDER
On June 23, 2021, both parties consented to the exercise of jurisdiction by a magistrate judge. (Doc. 21.) The case was referred by an Order of Reference the same day. (Doc. 22.)
EMBRY J. KIDD, UNITED STATES MAGISTRATE JUDGE
This cause comes before the Court on Plaintiff's appeal of an administrative decision denying his application for Supplemental Security Income ("SSI"), alleging October 9, 2018, as the disability onset date. (Doc. 30 at 1.) In a decision dated July 22, 2020, the Administrative Law Judge ("ALJ") found that Plaintiff was not disabled. (Tr. 7–24.) Plaintiff has exhausted the available administrative remedies and the case is properly before the Court. The undersigned has reviewed the record, the joint memorandum (Doc. 30), and the applicable law. For the reasons stated herein, the Court affirms the Commissioner's decision.
I. ISSUES ON APPEAL
Plaintiff raises the following issues on appeal:
1. Whether the residual functional capacity ("RFC") determination of the ALJ is supported by substantial evidence.
2. Whether the ALJ properly relied on the testimony of the Vocational Expert ("VE").
(See Doc. 30.)
II. STANDARD OF REVIEW
The Eleventh Circuit has stated:
In Social Security appeals, we must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].
Winschel v. Comm'r of Soc. Sec. , 631 F.3d 1176, 1178 (11th Cir. 2011) (citations and quotations omitted). "With respect to the Commissioner's legal conclusions, however, our review is de novo. " Lewis v. Barnhart , 285 F.3d 1329, 1330 (11th Cir. 2002).
III. ANALYSIS
A. Issue One: Whether the RFC determination is supported by substantial evidence.
Plaintiff argues the ALJ erred in determining that he has the RFC to perform light work with some additional limitations after failing to properly consider the opinion of Bella Dattani, M.D. ("Dr. Dattani"), the examining, consultative physician. (Doc. 30 at 13.) Specifically, Plaintiff states the "opinion of Dr. Dattani is clearly at odds with the residual functional capacity determination of the ALJ regarding the claimant's requirement of a cane." (Id. at 16.) Plaintiff contends that Dr. Dattani "opined that the claimant would require the cane at all times," but that the ALJ "merely limited the claimant to use of a cane with ambulation." (Id. ) Plaintiff states that because "the ALJ does not indicate the weight assigned to Dr. Dattani's opinion, it is impossible to know how this opinion was factored into the residual functional capacity determination." (Id. )
Defendant acknowledges that the ALJ did not specifically consider the persuasiveness of Dr. Dattani's medical opinion but responds that the "ALJ's RFC finding accounted for Dr. Dattani's opinion that Plaintiff needed a cane." (Doc. 30 at 18.) Defendant states that Plaintiff's argument that "Dr. Dattani's opinion should be interpreted to mean that he needed a cane at all times" is "unsupported by and inconsistent with her own objective medical findings and the other evidence in the record." (Id. at 18–19.) Defendant further notes that "because the ALJ's assessment of Plaintiff's RFC is consistent with and supported by Dr. Dattani's opinion, Plaintiff failed to show that any error by the ALJ was harmful." (Id. at 22.)
The ALJ is tasked with assessing a claimant's RFC and ability to perform past relevant work. Phillips v. Barnhart , 357 F.3d 1232, 1238 (11th Cir. 2004). 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). In determining a claimant's RFC, the ALJ must consider all relevant evidence, including the opinions of medical and non-medical sources. 20 C.F.R. § 404.1545(a)(3).
Under the revised regulations, the Commissioner no longer "defer[s] or give[s] any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [ ] medical sources." 20 C.F.R. §§ 1520c(a), 416.920c(a). Rather, the Commissioner must "consider" the "persuasiveness" of all medical opinions and prior administrative medical findings. Id. To that end, the Commissioner considers five factors: 1) supportability; 2) consistency; 3) relationship with the claimant; 4) specialization and 5) other factors "that tend to support or contradict a medical opinion or prior administrative medical finding." Id. §§ 404.1520c(c); 416.920c(c).
This factor combines consideration of the following issues: length of the treatment relationship, frequency of examinations, purpose of the treatment relationship, extent of the treatment relationship, and examining relationship. 20 C.F.R. §§ 404.1520c(c)(3)(i)–(v) ; 416.920c(c)(3)(i)–(v).
Additionally, pursuant to the new regulations, a "medical opinion" is defined as "a statement from a medical source about what [the claimant] can still do despite [his/her] impairments" and whether the claimant has any "impairment-related limitations or restrictions" regarding certain enumerated abilities. 20 C.F.R. § 404.1513(a)(2). A "medical opinion" does not include "judgments about the nature and severity of [the claimant's] impairments, ... medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis." Id. § 404.1513(a)(3) (defining these categories of information as "other medical evidence"). See also Rice v. Kijakazi , Case No. 4:20-cv-01414-RDP, 2021 WL 3473219, at *5 (N.D. Ala. Aug. 6, 2021) ("Statements by a medical source reflecting judgments about a claimant's diagnosis and prognosis are not considered medical opinions because they do not necessarily provide perspectives about the claimant's functional abilities and limitations."). In revising the definition of "medical opinion," the Social Security Administration recognized that "[d]iagnoses and prognoses do not describe how an individual functions" and that although the SSA considers a claimant's statements about his or her symptoms, "[a] more appropriate focus of medical opinions would be perspectives from medical sources about claimants’ functional abilities and limitations." 81 Fed. Reg. at 62,562.
Here, the ALJ made the following RFC determination:
claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except he can occasionally climb ramps and stairs, but cannot climb ladders ropes, and scaffolds. The claimant can occasionally balance and stoop, but cannot kneel, crouch or crawl. He can frequently handle and finger on the left. The claimant would need to alternate between sitting and standing by sitting for 15 minutes after every 30 minutes of standing while remaining on task. He must avoid unprotected heights and workplace hazards. The claimant must avoid concentrated exposure to extreme temperatures. He cannot work with vibrations. The claimant
requires use of a cane for ambulation.
(Tr. 17.)
Both parties are correct that the ALJ did not specifically consider the persuasiveness of Dr. Dattani's medical opinion. However, the Court finds that this error was harmless because the ALJ's RFC determination nonetheless includes a requirement, supported by Dr. Dattani's own opinion, that Plaintiff use a cane for ambulation. Compare Lankford v. Saul , No. CA 20-0228-MU, 2021 WL 867847, at *4 (S.D. Ala. Mar. 7, 2021) (applying harmless error analysis under new regulations to conclude that any error by the ALJ in discounting certain medical opinions was harmless given there were no medical opinions regarding the claimant's functional limitations), and Jackson v. Saul , No. 8:19-cv-2780-T-TGW, 2020 WL 6867408, at *4 (M.D. Fla. Nov. 20, 2020) (finding ALJ's failure to evaluate medical opinions under new regulations was harmless because the symptoms on which the claimant relied did not constitute medical opinions, and even if they did, they were not adequate to support a claim of disability), with Carson v. Comm'r of Soc. Sec. , No. 6:21-cv-20-DCI, 2022 WL 294719, at *2 (M.D. Fla. Feb. 1, 2022) (finding ALJ's error in failing to mention or consider medical opinions was not harmless where it could have impacted the RFC determination), and Spaar v. Kijakazi , No. 5:20-CV-94, 2021 WL 6498838, at *5 (S.D. ), report and recommendation adopted , 2022 WL 141613 (S.D. Ga. Jan. 14, 2022) (finding that error in failing to address the supportability of medical opinions under the new regulations was not harmless where it could have a material impact on the RFC determination).
Although the ALJ did not refer by name to Dr. Dattani, the ALJ did discuss Dr. Dattani's physical consultative examination. (Tr. 19.) The ALJ found that at a physical consultative examination in February 2019, the examiner noted that Plaintiff "walked into the examination room using a cane and that he used it at all times." (Id. ) The ALJ further noted that "[d]espite the use of a cane, the examiner noted that the claimant had a normal, steady gait and was able to walk on his heels and toes." (Id. ) A review of Dr. Dattani's opinion also confirms what Defendant argues, that Dr. Dattani never opined that Plaintiff needed a cane at all times or for any reason other than ambulation. Under the portion of her report entitled "Assessment and Summary," Dr. Dattani wrote that Plaintiff "walked in the office without the need of a wheelchair or a cane who came in with a single prong cane.... in my medical opinion he does need the single prong cane." (Tr. 463.) In this same report Dr. Dattani found that Plaintiff was "able to ambulate with normal gait which is not unsteady. There is no lurching or unpredictability. The claimant appears to be stable at station and comfortable in the supine and sitting position. The claimant is able to walk on heels and toes." (Tr. 461.)
Other than Dr. Dattani's observation that Plaintiff "is a 52-year-old male who walked into the office who uses a single prong cane at all times," Dr. Dattani does not, as Plaintiff argues, opine that Plaintiff actually requires the use of a cane at all times. (Tr. 458; Doc. 30 at 16.) Therefore, although the ALJ did not analyze the relevant factors with respect to Dr. Dattani's opinion, the ALJ's discussion and citations to the opinion demonstrate the ALJ considered the opinion and, again, the ALJ included in the RFC a requirement that Plaintiff use a cane for ambulation. Laurey v. Comm'r of Soc. Sec. , 632 F. App'x 978, 987 (11th Cir. 2015) (holding no reversible error where "[a]lthough the ALJ never stated the weight given to [a physician's] treatment notes, the ALJ discussed the content of [the] notes, showing that the ALJ considered and gave weight to [the] medical evidence").
Moreover, despite the ALJ's error regarding Dr. Dattani's opinion, substantial evidence supports the ALJ's ultimate RFC determination. See Denomme v. Comm'r, Soc. Sec. Admin. , 518 F. App'x 875, 877 (11th Cir. 2013) (concluding that an error is harmless if a correct application of the regulations would not contradict the ALJ's ultimate findings). The ALJ noted a December 2019 physical examination during which the examiner found that Plaintiff's "feet had a normal appearance and his gait and station were normal." (Tr. 19.) The ALJ also considered records that "consistently indicate[ ] that an assistive device is required for ambulation." (Tr. 21.) Notably, in finding statements from Janet Hutchinson, a treating source for Plaintiff, unpersuasive, the ALJ cited to Dr. Dattani's examination findings that Plaintiff's "gait is steady and normal and he is able to ambulate" in finding that the "use of a cane for balance is not supported." (Id. )
As such, a remand for further explanation would be unnecessary because substantial evidence, including Dr. Dattani's own opinion, supports the ALJ's RFC determination that Plaintiff requires the use of a cane for ambulation. See, e.g. , Duffy v. Comm'r of Soc. Sec. , 736 F. App'x 834, 837 (11th Cir. 2018) (holding that remand is unnecessary for additional explanation where an ALJ failed to specify a particular weight but articulated clearly the reasoning for the RFC determination and there was substantial evidence to support that determination); Tillman v. Comm'r of Soc. Sec. Admin. , 559 F. App'x 975, 975 (11th Cir. 2014) ("when the ALJ's error did not affect its ultimate findings, the error is harmless, and the ALJ's decision will stand") (citing Diorio v. Heckler , 721 F.2d 726, 728 (11th Cir. 1983) ).
B. Issue Two: Whether the ALJ properly relied on the VE's testimony.
Plaintiff contends that because there is not substantial evidence supporting the RFC determination of the ALJ, the hypothetical posed to the VE was inaccurate and thus the VE's testimony "should be rejected because it did not fully and accurately reflect the claimant's condition." (Doc. 30 at 25.) Defendant responds that substantial evidence supports the ALJ's assessment of Plaintiff's RFC and the ALJ "was not required to accept the VE's testimony in response to hypothetical questions that included limitations that were not supported by the record, including Plaintiff's interpretation of Dr. Dattani's opinion." (Id. at 27.)
At step five of the sequential evaluation, the ALJ must determine whether jobs exist in significant numbers in the national economy that a plaintiff can perform. Winschel , 631 F.3d at 1180. To make this determination, an ALJ may obtain the testimony of a vocational expert. Id. For the vocational expert's opinion to constitute substantial evidence, "the ALJ must pose a hypothetical question which comprises all of the claimant's impairments." Id. (citing Wilson v. Barnhart , 284 F.3d 1219, 1227 (11th Cir. 2002) ). "If the ALJ presents the vocational expert with incomplete hypothetical questions, the vocational expert's testimony will not constitute substantial evidence." Jacobs v. Comm'r of Soc. Sec. , 520 F. App'x 948, 950 (11th Cir. 2013).
Plaintiff's argument that the hypothetical posed to the VE did not accurately reflect Plaintiff's limitations is unpersuasive because, as discussed above, the Court finds that the ALJ's RFC determination is supported by substantial evidence and even incorporates Dr. Dattani's opinion. See supra III(A). Thus, because this RFC was incorporated into the hypothetical questions posed to the VE, the ALJ did not err in relying on the VE's opinions. See Lee v. Comm'r of Soc. Sec. , 448 F. App'x 952, 953 (11th Cir. 2011) ("The ALJ is not required to include findings in a hypothetical to a vocational expert that the ALJ has found to be unsupported."). Accordingly, the Court finds the ALJ's reliance on the VE's testimony was proper.
IV. CONCLUSION
Upon consideration of the foregoing, it is ORDERED that:
1. The Commissioner's final decision in this case is AFFIRMED ; and
2. The Clerk of Court is DIRECTED to enter judgment in favor of Defendant and CLOSE the file.
DONE and ORDERED in Orlando, Florida on June 22, 2022.