Opinion
Case No: 8:16-cv-1187-T-CM
08-23-2017
DAVID WAYNE LANCE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
Plaintiff Wayne Lance seeks judicial review of the denial of his claim for disability and disability insurance benefits ("DIB") by the Commissioner of the Social Security Administration ("Commissioner"). The Court has reviewed the record, the briefs, and the applicable law. For the reasons set forth herein, the decision of the Commissioner is AFFIRMED.
Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) ("[A] legal claim or argument that has not been briefed before the court is deemed abandoned and its merits will not be addressed.").
Plaintiff raises three issues on appeal: (a) whether the Administrative Law Judge ("ALJ") properly considered Plaintiff's multiple sclerosis ("MS"); (b) whether substantial evidence supports the determination of the ALJ concerning Plaintiff's residual functional capacity ("RFC"); and (c) whether the ALJ properly assessed Plaintiff's credibility.
II. Procedural History and Summary of the ALJ Decision
On August 22, 2012, Plaintiff filed an application for a period of disability and DIB alleging that he became disabled and unable to work on August 19, 2004. Tr. 65, 150-55. Plaintiff alleged disability due to MS, depression, fibromyalgia, vertigo, ruptured, bulging discs, and walking problems. Tr. 65. Plaintiff's applications were denied initially and upon reconsideration. Tr. 88-96, 98-103. Plaintiff requested and received a hearing before ALJ James P. Alderisio on May 19, 2014. Tr. 27, 120-24. Plaintiff, who was represented by counsel during the hearing, appeared and testified in person at the hearing. Tr. 29. A vocational expert ("VE") and Plaintiff's wife appeared and testified in person at the hearing. Id.
On December 12, 2014, the ALJ issued a decision finding Plaintiff not disabled from August 19, 2004 through December 31, 2009, the date last insured. Tr. 21. At step one, the ALJ determined that Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2009, and had not engaged in substantial gainful activity from August 19, 2004 through December 31, 2009. Tr. 15. At step two, the ALJ determined that through the date last insured, Plaintiff had the following severe impairments: disorders of the spine, disorders of the left shoulder, vertigo, chronic fatigue syndrome, and fibromyalgia. Id. At step three, the ALJ concluded that through the date last insured, Plaintiff "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." Tr. 16.
The ALJ then determined that through the date last insured, Plaintiff had the RFC to perform light work except "no climbing of ladders, ropes, scaffolds, ramps or stairs; no exposure to hazards or machinery; and no driving jobs." Id. Next, the ALJ found that through the date last insured, Plaintiff was unable to perform any past relevant work. Tr. 19. Through the date last insured, considering Plaintiff's age, education, work experience and RFC, the ALJ determined there were jobs that exist in significant numbers in the national economy that Plaintiff could have performed and therefore concluded he was not disabled from August 19, 2004 through the date last insured, December 31, 2009. Tr. 20-21.
The regulations define light work as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. §§ 404.1567(b), 416.967(b).
Following the ALJ's decision, Plaintiff filed a request for review by the Appeals Council, which was denied on April 1, 2016. Tr. 1. Accordingly, the December 12, 2014 decision is the final decision of the Commissioner. Plaintiff filed an appeal in this Court on May 12, 2016. Doc. 1. Both parties have consented to the jurisdiction of the United States Magistrate Judge, and this matter is now ripe for review. Docs. 14, 16.
III. Social Security Act Eligibility and Standard of Review
A claimant is entitled to disability benefits when he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step sequential analysis for evaluating a claim of disability. See 20 C.F.R. §416.920. The Eleventh Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether these impairments meet or equal an impairment listed in the Listing of Impairments; (4) if not, whether the claimant has the residual functional capacity ("RFC") to perform his past relevant work; and (5) if not, whether, in light of his age, education, and work experience, the claimant can perform other work that exists in "significant numbers in the national economy."Atha v. Comm'r Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion through step four; and, at step five, the burden shifts to the Commissioner. Id. at 933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing 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., evidence that must do more than create a suspicion of the existence of the fact to be established, and 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) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding that "[s]ubstantial evidence is something more than a mere scintilla, but less than a preponderance") (internal citation omitted).
The Eleventh Circuit has restated that "[i]n determining whether substantial evidence supports a decision, we give great deference to the ALJ's fact findings." Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). 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 preponderance of the evidence is 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 record as a whole, taking into account evidence favorable as well as unfavorable to the decision." Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings). It is the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses. Lacina v. Comm'r, Soc. Sec. Admin., 606 F. App'x 520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)). The Court reviews the Commissioner's conclusions of law under a de novo standard of review. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
IV. Discussion
a. Whether the ALJ properly considered Plaintiff's MS
At step two, the ALJ found that through the date last insured, Plaintiff had various severe impairments. Tr. 15. The ALJ determined, however, that although Plaintiff alleged disability partly due to MS, Plaintiff's MS was not a medically determinable impairment through the date last insured. Tr. 15-16. The ALJ explained that despite Plaintiff's regular complaints of symptoms associated with MS, Plaintiff's medical evidence does not establish Plaintiff's MS as a medically determinable impairment. Tr. 15. The ALJ specifically discussed:
Multiple sclerosis is a disease of the brain and spinal cord. Multiple sclerosis, Attorney's Dictionary of Medicine (2016). This disease subjects various parts of the brain and spinal cord to a type of deterioration called sclerosis. Id. Sclerosis causes functional nerve tissue to harden and to give way to supporting, nonfunctional tissue. Id.
objective medical imaging of the [Plaintiff's] brain through August 2009 repeatedly showed no evidence of the disorder including no "areas of demyelination or MS plaques or other significant intercranial pathology." Thus, as Dr. Colon noted [Plaintiff] had "no clinical correlation" to support his subjective symptom reports (Exhibits 1F, 3F, 5F, 7F and 20F). [Plaintiff's] representative has argued that [Plaintiff] has a documented history of MS since 2006. However, this argument is based on the June 2014 consultative examination of Dr. Modi. Here, Dr. Modi does note a history of MS since 2006 as well as a history of depression by [Plaintiff] since 2004. However, the doctor's opinion is based solely on [Plaintiff's] subjective complaints and examination findings that took place five years after [Plaintiff's] date last insured. There is no evidence that Dr. Modi had available the repeated negative findings of record and the notations of various doctors, such as that by Dr. Colon, that [Plaintiff] had no evidence of MS prior to the date last
insured. Moreover, the record is void of any evidence that [Plaintiff] sought or received treatment for or was diagnosed with a mental impairment prior to his date last insured. Thus, the undersigned gives such opinion evidence little weight in finding insufficient evidence to establish the existence of MS or depression as a medically determinable impairment during the period from his alleged onset date of August 19, 2004 through his date last insured of December 31, 2009 (Exhibits l 7E and 27F).Tr. 15-16.
Plaintiff argues that although he had signs and symptoms of MS prior to the date last insured, the ALJ did not properly consider his MS. Doc. 20 at 16. Plaintiff further asserts that the ALJ violated Social Security Ruling ("SSR") 83-20 by not calling a medical advisor to the hearing but referring Plaintiff to a consultative examination. Id. at 17-18. Plaintiff also claims that his magnetic resonance imaging ("MRI") does not negate the existence of his MS. Id. at 18. The Commissioner responds that the ALJ properly considered the relevant evidence and determined that Plaintiff did not have a medically determinable impairment of MS through the date last insured. Doc. 23 at 4-8. The Commissioner also argues that the ALJ did not violate SSR 83-20. Id. at 6.
In a DIB case, like here, a claimant must show he was disabled before the expiration of his insured status. Tr. 15; see 42 § U.S.C. §§ 416, 423; Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) ("For DIB claims, a claimant is eligible for benefits where she demonstrates disability on or before the last date for which she [was] insured.") (citing 42 U.S.C. § 423(a)(1)(A); Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir.1981)); see also, Jenkins v. Comm'r of Soc. Sec., No. 6:14-cv-377-Orl-41DAB, 2015 WL 413112, at *13 (M.D. Fla. 2015) ("To be eligible for DIB, a claimant must show that he became disabled prior to the expiration of his insured status.") "In order to be entitled to disability benefits, [a claimant] must have applied for benefits while disabled or no later than twelve months after the month in which [her] period of disability ended." Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002). See 20 C.F.R. §§ 404.315(a)(3), 404.320(b)(3), 404.621(d). See also 20 C.F.R. §404.320(a) ("A period of disability is a continuous period of time during which you are disabled.").
Here, Plaintiff's date last insured is December 31, 2009, and Plaintiff applied for a period of disability and DIB on August 22, 2012. Tr. 13, 15. Thus, Plaintiff bears the burden to show that he was disabled as of his date last insured, December 31, 2009, and continuously through August 22, 2011. See Wilson, 284 F.3d at 1226; 20 C.F.R. §§ 404.315(a)(3), 404.320(b)(3), 404.621(d). As a result, Plaintiff must show that his MS was a medically determinable impairment from December 31, 2009 to August 22, 2011. Wilson, 284 F.3d at 1226. The Court finds that the ALJ appropriately considered whether Plaintiff's MS was a medically determinable impairment as of the date last insured, and determined that it was not. Tr. 15-17.
A medically determinable physical or mental impairment is one that "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. § 1382c(a)(3)(A). The Social Security Regulations explain what is needed for a claimant to show an impairment:
Your impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable
clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.20 C.F.R. § 404.1508 (2014). The regulations clearly state that a claimant's statements "alone are not enough to establish that there is a physical or mental impairment." 20 C.F.R. § 404.1528 (2014). Medically acceptable laboratory diagnostic techniques to establish a medical determinable impairment include "chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays), and psychological tests." Id.
Here, the Court finds that substantial evidence supports the ALJ's finding that Plaintiff's medical evidence does not establish Plaintiff's MS as a medically determinable impairment as of the date last insured. Tr. 15-16. The ALJ acknowledged that Plaintiff complained of symptoms associated with MS, such as weird feelings in his head, blurred vision, dizziness, loss of balance and numbness in his hands and arms. Tr. 15, 524-25, 575. The ALJ also noted that Plaintiff was certain he had MS, as his mother had. Tr. 15, 524. Nonetheless, these subjective statements "alone are not enough to establish that there is a physical or mental impairment." 20 C.F.R. § 404.1528 (2014).
Accordingly, the ALJ analyzed Plaintiff's medical evidence related to MS. Tr. 15-17. Based on his analysis, the ALJ's found that despite Plaintiff's subjective complaints, "multiple [MRIs] of [Plaintiff's] brain showed 'nothing suggestive of MS' and with no significant interval changes through the date last insured." Tr. 17, 292, 294. Consistent with the ALJ's finding, Plaintiff's MRI from March 5, 2004 showed "no evidence for active MS plaque;" one from April 16, 2008 was a "[n]ormal MRI of the brain;" and one from August 12, 2009 demonstrated "no acute intracranial abnormalities" and "no significant interval change from 4/16/08." Tr. 275, 292, 577. As a result, Siddharth H. Shah, M.D., a neurologist who conducted neurological evaluations of Plaintiff on August 6, 2009 and September 16, 2009, concluded that Plaintiff's MRI of his brain dated August 12, 2009 demonstrated "nothing suggestive of MS." Tr. 294.
In assessing, Plaintiff's RFC, the ALJ further found that:
[medical] examination findings repeatedly reflected no focal weakness, intact motor strength and sensation, normal grip strength, the ability to walk without the need for an assistive device, the ability for heel and toe walk, no coordination problems, and no neurological deficits. Further, various doctors including Dr. Colon in 2008 through 2009, Dr. Rakesh Shah in 2009, and Dr. Larry Horton in 2007 through 2009 reported findings inconsistent with MS and thus did not provide a positive diagnosis.Tr. 17. The record contains medical opinions that support this finding, such as that Plaintiff's "several MRI[s] of the brain done [did] not show any demyelinating disease," and there were no neurological deficits. Tr. 294-95, 573, 679. Plaintiff also had no focal weakness or neurological deficits, full motor strength and an ability for heal and toe walk. Tr. 294, 297, 535, 555, 573, 584. Plaintiff also denied any coordination problems. Tr. 460, 467, 478, 507, 514.
Furthermore, Plaintiff does not establish that his MS continued to be a medically determinable impairment from his date last insured to August 22, 2011. Doc. 20 at 16-18; Wilson, 284 F.3d at 1226. He refers to the treatment notes of Craig R. Bennett, M.D., and Christopher A. Reyher, M.D., as his supporting medical evidence. Id. at 16-17. Contrary to Plaintiff's argument, Dr. Bennett is an orthopedic surgeon, who primarily treated Plaintiff for his left shoulder pain. Tr. 328, 580-81. On December 4, 2009, when Plaintiff first saw Dr. Bennett in five years since September 2003 for his left shoulder and neck pain, Dr. Bennett did not note Plaintiff's MS at all. Tr. 580-81. On May 26, 2010, although Dr. Bennett noted that Plaintiff had a history of MS, which had been bothering Plaintiff and "may" have affected his left shoulder pain, Dr. Bennett opined that Plaintiff showed no upper motor neuron signs and no Hoffmann's sign. Tr. 328.
Hoffmann's sign appears in a patient with hyperactive (overly vigorous) reflexes. Hoffmann's sign, Attorney's Dictionary of Medicine (2016). --------
On December 15, 2009, Dr. Bennett referred Plaintiff to Dr. Reyher for Plaintiff's left shoulder injury. Tr. 579. On June 17, 2010, Plaintiff saw Dr. Reyher, who noted that Plaintiff had a history of MS and diagnosed Plaintiff with MS. Tr. 327. Nonetheless, Dr. Reyher did not seek any objective medical evidence to confirm his diagnosis, and Plaintiff's physical examination during this visit was unremarkable. Id. Plaintiff had no constipation, drowsiness or mental status changes. Id. Plaintiff also had 5/5 motor strength and was ambulatory with no gait abnormalities. Id. Apart from continuing the prescription of Valium for Plaintiff's spasticity "due to [Plaintiff's] history of [MS,]" Dr. Reyher did not make any specific treatment plan related to MS. Tr. 323, 327. Otherwise, throughout Plaintiff's visits, Dr. Reyher focused on controlling Plaintiff's back, neck and shoulder pain. Tr. 324-27.
On August 26, 2010, Plaintiff saw Dr. Reyher and reported that he felt Valium was helping him with his spasticity. Tr. 326. Plaintiff was ambulatory with no visible gait abnormalities. Id. Dr. Reyher observed that Plaintiff had no aberrant issues and was meeting his goals of his treatment plan. Id. On September 23, 2010, Plaintiff reported to Dr. Reyher that he had no nausea, constipation, itching or sweating, although he had mild tiredness and headaches. Tr. 325. Dr. Reyher found that Plaintiff had brisk, increased reflexes in his bilateral extremities and "a little bit" of spasticity in his right lower extremity. Id. Nonetheless, Dr. Reyher noted that Plaintiff was "doing well with his medication," and Plaintiff's physical functioning improved with pain relief. Id. Dr. Reyher refilled Plaintiff's prescriptions of medications and noted that Plaintiff had no aberrant issues and was meeting the goals of his treatment plan. Id.
On October 21, 2010, Plaintiff returned to Dr. Reyher for a clinical evaluation. Tr. 324. Plaintiff reported that Valium helped him with his lower extremity spasticity and swallowing. Tr. 324. His main complaint during this visit was his pain in his back, lower extremity, lumbar spine and neck. Id. Similar to the last visit, Plaintiff had no nausea, constipation, itching or sweating, although he had some tiredness, weakness and headaches. Id. Dr. Reyher opined that Plaintiff was ambulatory with no gait abnormalities and had increased, "very brisk" reflexes throughout his lower extremities. Id. Despite diagnosing Plaintiff with upper motor neuron signs, "most likely secondary to MS," Dr. Reyher refilled Plaintiff's prescriptions of medications and noted that Plaintiff was meeting goals with his treatment plan. Id. Throughout Plaintiff's visits to Dr. Reyher, Dr. Reyher did not order any MRI of Plaintiff's brain or seek a neurological evaluation to confirm his diagnosis of MS and continued to prescribe Valium for Plaintiff's spasticity. Tr. 324-27.
Plaintiff next saw Dr. Reyher on March 19, 2012. Tr. 390-91. During this visit and throughout subsequent visits up to August 16, 2012, Plaintiff saw Dr. Reyher primarily for his lower back pain or medication refills. Tr. 374-76, 384-86, 390-91. Similar to the prior visits, Dr. Reyher did not seek any objective medical evidence to confirm his diagnosis of MS, but diagnosed Plaintiff again with MS. Id. Dr. Reyher consistently prescribed Valium and did not make any other observation or treatment plan specific to MS. Id. Nor did Dr. Reyher recommend at all that Plaintiff see a neurologist, until August 16, 2012 when he recommended that Plaintiff see one because he showed balance issues and hyperreflexia. Tr. 374-76, 384-86, 390-91. Rather, similar to the prior visits, Dr. Reyher's treatment was focused on controlling Plaintiff's pain. Tr. 374-76, 384-86, 390-91.
Thus, as orthopedic surgeons, Drs. Bennett and Reyher primarily treated Plaintiff for his pain, and their diagnosis of MS appears to be based on Plaintiff's subjective complaints and not supported by objective laboratory findings. Tr. 324-28, 374-76, 384-86, 390-91, 579-81. Plaintiff also does not allege that he sought any treatment specific to his MS after his last date insured. Doc. 20 at 16-17. In light of Plaintiff's prior MRIs of his brain that did not confirm the diagnosis of MS and Plaintiff's negative medical findings noted above, the Court finds that the treatment notes of Drs. Bennett and Reyher alone do not provide a sufficient basis to establish Plaintiff's MS as a medically determinable impairment after his date last insured. See 20 C.F.R. § 404.1508 (2014) (requiring that a physical or mental impairment be "established by medical evidence consisting of signs, symptoms, and laboratory findings.").
To rebut the ALJ's findings, Plaintiff also relies on his subjective complaints to the doctors, which "alone are not enough to establish that there is a physical or mental impairment." Doc. 20 at 16-17; 20 C.F.R. § 404.1528 (2015). Furthermore, to the extent that contradictory evidence exists, the ALJ's assessment of conflicting evidence was within his discretion because "when there is credible evidence on both sides of an issue it is the Secretary, acting through the ALJ, and not the court, who is charged with the duty to weigh the evidence and to determine the case accordingly." Powers v. Heckler, 738 F.2d 1151, 1152 (11th Cir. 1984) (citing Richardson, 402 U.S. at 389-409). Thus, the Court will not overturn the ALJ's decision simply because, as Plaintiff argues, conflicting medical evidence exists, and the ALJ resolved the conflicts in the evidence of record. Doc. 20 at 16-17; Lacina, 606 F. App'x at 525 (citing Grant, 445 F.2d at 656) ("It is 'solely the province of the Commissioner' to resolve conflicts in the evidence and assess the credibility of witnesses.").
Next, Plaintiff argues that his MRIs do not negate the existence of his MS. Doc. 20 at 18. The Court finds that this argument is without merit. The regulations require that a physical or mental impairment be "established by medical evidence consisting of signs, symptoms, and laboratory findings." 20 C.F.R. § 404.1508 (2014). In addition, the Court's analysis of the ALJ's findings show that the ALJ's assessment of Plaintiff's MS was based on his analysis of various medical evidence, including medical opinions and Plaintiff's physical examinations. Tr. 15-17. As a result, even assuming the ALJ erred in analyzing Plaintiff's MRIs, it was harmless because it would not have affected the ALJ's ultimate assessment of Plaintiff's MS. Hunter v. Comm'r of Soc. Sec., 609 F. App'x 555, 558 (11th Cir. 2015) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).
Plaintiff further argues that the ALJ erred by not complying with SSR 83-20. Doc. 20 at 17-18. SSR 83-20 is designed to guide the Commissioner in establishing an onset date of a disability because the onset date "may affect the period for which the individual can be paid and may even be determinative of whether the individual is entitled to or eligible for any benefits." SSR 83-20, 1983 WL 31249 (Jan. 1, 1983). The ruling defines an onset date as the "the first day an individual is disabled as defined in the [Social Security] Act and the regulations." Id. In determining onset, the ALJ must consider relevant factors such as the work history and the medical history. Id. Although a claimant's subjective allegation is one of the relevant factors, it is significant only if "it is consistent with the severity of the condition(s) shown by the medical evidence." Id. Similarly, when precise medical evidence establishing an onset date is not available, the ALJ must make an informed decision regarding the onset date based on a "legitimate medical basis." Id. Accordingly, when the ALJ must infer onset based on the medical evidence, the ruling requires the ALJ to call a medical advisor at the hearing level. Id.
This ruling is applicable, however, only if the ALJ makes a finding of disability and needs to determine when the disability began. Id.; Caces v. Comm'r, Soc. Sec. Admin., 560 F. App'x 936, 939 (11th Cir. 2014) (citing CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1224-25 (11th Cir. 2001)). Thus, if the ALJ finds that a claimant is not disabled, and substantial evidence supports the finding, the ALJ does not err by not calling a medical expert to determine an onset date of disability. Caces, 560 F. App'x at 939 ("[B]ecause the ALJ did not find that [a claimant] was disabled, and because that finding is supported by the evidence, the ALJ did not err in failing to call a medical expert to determine an onset date of such a disability"); Klawinski v. Comm'r of Soc. Sec., 391 F. App'x 772, 776 ("SSR 83-20 only required the ALJ to obtain a medical expert in certain instances to determine a disability onset date after a finding of disability.").
Here, the ALJ found that Plaintiff was not disabled through the last dated insured. Tr. 21. Furthermore, as the Court discussed in detail, substantial evidence supports the ALJ's finding that Plaintiff's MS was not a medically determinable impairment as of the date last insured. Tr. 15-17. Accordingly, the Court finds that SSR 83-20 does not apply here, and therefore the ALJ did not err by not calling a medical advisor during the hearing. SSR 83-20, 1983 WL 31249 (Jan. 1, 1983); Caces, 560 F. App'x at 939; Klawinski, 391 F. App'x at 776. Based on the findings above, the Court concludes that the ALJ properly considered Plaintiff's MS.
b. Whether substantial evidence supports the determination of the ALJ concerning Plaintiff's RFC
The ALJ determined that through the date last insured, Plaintiff had the RFC to perform light work except "no climbing of ladders, ropes, scaffolds, ramps or stairs; no exposure to hazards or machinery; and no driving jobs." Tr. 16. Plaintiff argues that the ALJ erred in assessing Plaintiff's RFC because his impairments preclude him from performing light work. Doc. 20 at 14. In support, Plaintiff refers to various medical evidence. Id. at 14-16. The Commissioner responds that substantial evidence supports the ALJ's RFC findings. Doc. 23 at 14-16.
The RFC is the most that a claimant can do despite his limitations. See 20 C.F.R. § 404.1545(a). At the hearing level, the ALJ has the responsibility of assessing a claimant's RFC. See 20 C.F.R. § 404.1546(c). The ALJ is required to assess a claimant's RFC based on all of the relevant evidence in the record, including any medical history, daily activities, lay evidence and medical source statements. 20 C.F.R. § 404.1545(a). The claimant's age, education, work experience, and whether he can return to his past relevant work are considered in determining his RFC, Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1520(f)), and the RFC assessment is based upon all relevant evidence of a claimant's ability to do work despite his impairments. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004); Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1545(a)).
Here, the ALJ assessed Plaintiff's RFC based on the entire record. Tr. 16-19. In addition to analyzing Plaintiff's MS, the ALJ analyzed Plaintiff's entire medical evidence, including ones that Plaintiff argues contradicts the ALJ's findings. Tr. 16- 19. Plaintiff points to his MRI of his cervical spine in 2004, which, as the ALJ accurately described, showed mild diffuse degenerative disc disease. Doc. 20 at 14; Tr. 17, 268. The ALJ also noted Plaintiff's MRI of his cervical spine dated July 15, 2008, which revealed asymmetric soft disc protrusion to the left at C5-C6, causing flattening of the thecal sac and cord compression, and C6-C7 asymmetric broad disc bulge with superimposed lateral protrusion to the left, causing displacement of the left C7 nerve root. Tr. 17-18, 283-84. Furthermore, the ALJ discussed Plaintiff's MRI of the lumbar spine dated October 31, 2008 showing slight broad-based bulging of disc at L3-L4. Tr. 18, 532-33. Finally, the ALJ considered Plaintiff's MRI of his left shoulder dated October 7, 2009, which demonstrated mild tendon disease of the supraspinatus, minor degenerative changes, and small tear of the inferior labrum. Tr. 18, 588-89. The ALJ compared this MRI with another MRI from August 2002 revealing similar findings and concluded that Plaintiff was able to work with this condition. Tr. 18, 342.
Despite Plaintiff's medical issues, the ALJ found that Plaintiff received routine, conservative care and showed improvement with medication. Tr. 18. The ALJ also explained that until his date last insured, Plaintiff denied many symptoms that he had at the time of the ALJ's decision. Id. The ALJ specifically noted that Plaintiff denied any coordination problems, asthma, cough or shortness of breath. Id. Furthermore, although the ALJ acknowledged that Plaintiff had an occasional tandem or shuffled gait and decreased ranges of motion in his cervical spine and left shoulder, the ALJ found that Plaintiff still showed full motor strength, intact concentration and cognition, intact fine and gross manipulation, full grip strength and intact sensation. Id.
The Court finds that substantial evidence on the record supports the ALJ's findings. As the ALJ accurately found, although the record reveals that Plaintiff had an occasional tandem or shuffled gait and decreased ranges of motion in his cervical spine and left shoulder, the record also contains contrary medical findings. Tr. 18. On August 6, 2009, when Plaintiff first saw Dr. Shah for a neurological evaluation, he denied any focal weakness and was alert, awake and oriented to time, place and person. Tr. 296-97. Dr. Shah also noted that Plaintiff's speech was clear, and Plaintiff had full range of motion and motor strength and bilaterally equal grip strength and range of motion. Tr. 297. She indicated that Plaintiff's sensory was normal, and he was able to walk heel to toe, although he had difficulty tandem walking. Id. Similarly, during other medical appointments, Plaintiff exhibited full motor strength and no gait abnormalities. Tr. 555, 573, 575, 584, 681-82. Plaintiff also repeatedly denied coordination problems, asthma, cough, or shortness breath. Tr. 460-61, 467-68, 478-88, 507-08, 514-15, 525. Furthermore, Larry W. Horton, M.D., P.A., a neurologist who evaluated Plaintiff on April 5, 2007 and May 2, 2008, noted on both dates that Plaintiff's concentration and cognition were appropriate and normal. Tr. 573, 575.
Plaintiff again attempts to rebut the ALJ's findings by presenting contrary medical evidence. Doc. 20 at 14-16. In contrast, the ALJ did not fail to consider them; in fact, he explicitly noted and considered evidence that Plaintiff argues weighs against the ALJ's findings, such as Plaintiff's medical conditions revealed by his MRIs and his shuffled gaits and difficulty with tandem walking. Doc. 20 at 14-16; Tr. 15-19. Nonetheless, the ALJ still found that Plaintiff had the RFC to perform light work with certain limitations. Tr. 16. By doing so, the ALJ properly exercised his discretion by weighing conflicting evidence because "when there is credible evidence on both sides of an issue it is the Secretary, acting through the ALJ, and not the court, who is charged with the duty to weigh the evidence and to determine the case accordingly." Powers, 738 F.2d at 1152 (citing Richardson, 402 U.S. at 389-409). Thus, as noted, the Court will not overturn the ALJ's decision simply because, as Plaintiff argues, conflicting medical evidence exists, and the ALJ resolved the conflicts in the evidence of record. Id.; Lacina, 606 F. App'x at 525 (citing Grant, 445 F.2d at 656) ("It is 'solely the province of the Commissioner' to resolve conflicts in the evidence and assess the credibility of witnesses.").
To the extent that the ALJ did not explicitly note certain evidence noted by Plaintiff, "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 [Plaintiff's] medical condition as a whole." Dyer, 395 F.3d 1211 (alteration in the original) (citation and internal quotation marks omitted). Here, evidenced by the Court's discussion above, the ALJ clearly considered Plaintiff's medical condition as a whole based on his analysis of the entire record, including evidence that Plaintiff argues contradicts the ALJ's findings. Doc. 20 at 14-16; Tr. 15-19. As long as substantial evidence supports the ALJ's decision, the Court must affirm, "even if the proof preponderates against it. [The Court] may not decide facts anew, reweigh the evidence, or substitute our judgment for that of the Commissioner." Dyer, 395 F.3d 1210 (alteration in the original) (citations and internal quotation marks omitted). Accordingly, the Court finds that the ALJ properly assessed Plaintiff's RFC. Tr. 16-19.
c. Whether the ALJ properly assessed Plaintiff's credibility
The ALJ found that Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms are not entirely credible. Tr. 17. The ALJ explained that:
the medical evidence of record simply does not support [Plaintiff's] additional alleged degree of limitation [caused by] his impairments. There is [no] diagnosis related to emphysema, [Plaintiff] did not exhibit left hand weakness or inability of use, and he was never prescribed a cane or wheelchair to aid in ambulation. Moreover, as noted above, the record reflects insufficient medical evidence to support [Plaintiff's] allegations related to MS and associated symptoms.Id. Furthermore, the ALJ noted that "the record is essentially void of even significant routine care or treatment until several years" after Plaintiff's alleged disability onset date of August 19, 2004. Tr. 18.
The ALJ also discussed discrepancies between Plaintiff's reported activities and his actual activities. Tr. 18. The ALJ found that although Plaintiff reported that he did not stop working until January 1, 2006, he continued working through his date last insured, evidenced by Plaintiff's report to a neurologist in April 2007 that he was the "owner and manager of lawn service company." Tr. 18. Similarly, the ALJ noted Plaintiff's reports to another physician in January 2008 that he was self-employed and through December 2009 that he worked full-time. Id. As a result, the ALJ found that the evidence "reflects much greater activities of daily living than [Plaintiff] has reported and it diminishes [his] general[] credibility." Id. The ALJ additionally noted Plaintiff's denying substance abuse to his physician and testing positive for certain substances, which contradicted Plaintiff's denial. Id. The ALJ concluded that Plaintiff's lack of candor also diminished his credibility. Id.
Plaintiff first argues that he has symptoms related to MS, despite negative MRI findings. Doc. 20 at 20. This argument is now moot because the Court has addressed Plaintiff's argument regarding MS and upheld the ALJ's finding that Plaintiff's MS was not a medically determinable impairment through the date last insured. Tr. 15-17. Next, Plaintiff asserts that contrary to the ALJ's finding that he had mild diffusive degenerative disease in his cervical spine, he suffered from a significant cervical disease. Dc. 20 at 20; Tr. 17. Furthermore, Plaintiff claims that the ALJ incorrectly found he received only routine or conservative care. Doc. 20 at 20-21. Plaintiff also contests the ALJ's assessment of his work history and substance abuse. Id. at 21-23. The Commissioner responds that substantial evidence supports the ALJ's credibility determination. Doc. 23 at 8-13.
The Eleventh Circuit has long recognized that "credibility determinations are the province of the ALJ." Moore, 405 F.3d at 1212 (citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)). If the objective medical evidence does not confirm the severity of the alleged symptoms but indicates that the claimant's impairments could reasonably be expected to produce some degree of pain and other symptoms, the ALJ must evaluate the intensity and persistence of a claimant's alleged symptoms and their effect on the claimant's ability to work. See 20 C.F.R. §§ 404.1529(c)(1) (2014); Wilson, 284 F.3d at 1225-26; Foote, 67 F.3d at 1561. The ALJ compares the claimant's statements with the objective medical evidence, the claimant's daily activities, treatment and medications received, and other factors concerning limitations and restrictions the symptoms cause. See 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) (2014).
Here, the Court finds that the ALJ properly evaluated Plaintiff's credibility. Tr. 16-19. Based on the requirements of 20 C.F.R. § 404.1529 (2014), the ALJ considered Plaintiff's symptoms and the extent to which the symptoms reasonably can be accepted as consistent with the objective medical and other evidence. Tr. 16-19. After properly discussing the standard and the medical evidence, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." Tr. 17.
"If the ALJ discredits subjective testimony, he must articulate explicit and adequate reasons for doing so. Failure to articulate the reasons for discrediting subjective testimony requires, as a matter of law, that the testimony be accepted as true." Wilson, 284 F.3d at 1225 (internal citations omitted). "The question is not . . . whether the ALJ could have reasonably credited [a claimant's] testimony, but whether the ALJ was clearly wrong to discredit it." Werner v. Comm'r of Soc. Sec., 421 F. App'x 935, 939 (11th Cir. 2011). "A clearly articulated credibility finding with supporting evidence in the record will not be disturbed by a reviewing court." Foote, 67 F.3d at 1562. Here, based on his detailed analysis of the entire record, the ALJ discounted the credibility of Plaintiff's subjective complaints for the reasons clearly articulated in his decision, such as Plaintiff's history of limited medical treatments and the discrepancies between his reported and actual activities. Tr. 16-19.
Plaintiff argues that the ALJ inaccurately found his serious cervical condition as mild degenerative disease and a spine disorder. Doc. 20 at 20. On the contrary, the ALJ accurately noted Plaintiff's MRI dated March 5, 2004, which revealed "mild diffuse degenerative disc disease" in his cervical spine. Id.; Tr. 17, 268. Plaintiff also asserts that the ALJ did not consider his acute cervical spine problems. Doc. 20 at 20. In contrast, as noted in his RFC findings, the ALJ acknowledged and considered Plaintiff's acute cervical condition, as he explicitly discussed Plaintiff's MRI of his cervical spine dated July 15, 2008 revealing asymmetric soft disc protrusion to the left at C5-C6, causing flattening of the thecal sac and cord compression, and C6-C7 asymmetric broad disc bulge with superimposed lateral protrusion to the left, causing displacement of the left C7 nerve root. Tr. 17-18, 283-84.
To the extent the ALJ did not discuss other medical evidence related to Plaintiff's cervical condition, as noted, "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 [Plaintiff's] medical condition as a whole." Dyer, 395 F.3d 1211 (alteration in the original) (citation and internal quotation marks omitted). Here, based on the ALJ's clear discussion Plaintiff's two MRIs of the cervical spine, the Court is able to conlcude that the ALJ considered Plaintiff's cervical condition as a whole and did not mischaracterize the condition. Tr. 17-18; see id.; cf. Doc. 20 at 20.
Plaintiff further contests the ALJ's finding that he received only routine or conservative care at times relevant to his decision. Doc. 20 at 20-21; Tr. 18. Contrary to Plaintiff's argument, the Court finds that substantial evidence supports the ALJ's finding. Although Plaintiff mentions physical therapy and chiropractic care as an example of his non-conservative care, Rudy Panganiban, Jr., M.D., a pain management doctor who evaluated Plaintiff twice, opined on July 3, 2008 that Plaintiff had been treated with "conservative measures including physical therapy and chiropractic care." Tr. 681. Dr. Panganiban also noted that Plaintiff received pain management treatment for two years and epidural injections without any benefit. Id. The doctor examined Plaintiff and ordered a MRI of the cervical spine. Tr. 682. On July 24, 2008, Plaintiff returned to Dr. Panganiban, and the doctor confirmed that the MRI revealed C5/C6 left disc protrusion. Tr. 679. Despite negative medical findings, such as Plaintiff's unsteady gait and left L4/L5 motor and sensory deficits, the doctor simply stated as plan that he "will follow." Id.
Furthermore, the record does not clearly establish whether Plaintiff received cortisone shots during the relevant time period. Doc. 20 at 21. On October 15, 2009, Plaintiff saw Steven Nadler, M.D., of the Center for Bone & Joint Disease for his left shoulder pain. Tr. 582-83. Dr. Nadler noted that Plaintiff saw Dr. Bennett from the same office on several occasions and received cortisone injections in his left shoulder. Tr. 582. Plaintiff reported that he did not seek treatment again since 2004 or 2005 because the last injection he received helped him for several years. Id. Plaintiff noted that his pain recurred several months prior to this visit. Id. Plaintiff complained of having pain despite undergoing pain management and taking two medications, Percocet and Valium, to help with his pain. Id.
Nonetheless, after examining Plaintiff, Dr. Nadler opined that Plaintiff's condition was "best treated conservatively." Id. Dr. Nadler further indicated that "certainly at this point [Plaintiff] does not want to consider surgery." Id. Neither Dr. Nadler recommend cortisone injections during this visit because Plaintiff had them in the past. Id. The doctor concluded that "the best thing to do is to do some therapy and try to give it some more time." Id.
On December 4, 2009, Plaintiff saw Dr. Bennett for pain in his left shoulder and neck. Tr. 580. Dr. Bennett noted that he had not treated Plaintiff for this pain in over five years since September 2003. Id. Plaintiff reported that he wanted to see Dr. Bennett for his pain because he was displeased with Dr. Nadler's recommendation to continue with physical therapy. Id. After examining Plaintiff "carefully," Dr. Bennett ordered an arthrogram of Plaintiff's left shoulder and a new cervical MRI. Tr. 581. The doctor opined that he would see Plaintiff again after the test results became available. Id. Dr. Bennett referred Plaintiff to Dr. Reyher, who subsequently treated Plaintiff with medications during the relevant time period of June 17, 2010 to August 16, 2012. Tr. 324-27, 374-76, 384-86, 390-91.
Lastly, the treatment notes of Edwin Colon, M.D., and Rafael Santiago, M.D., pain management physicians who treated Plaintiff from August 12, 2008 and December 10, 2009, show that the doctors consistently treated Plaintiff with medications, despite Plaintiff's complaints of continuing pain in his neck and lower back. Tr. 457-569. On August 13, 2008, during his initial visit to Dr. Santiago, Dr. Santiago opined that Plaintiff's cervical condition was a surgical condition. Tr. 556. Nonetheless, Plaintiff reported that he wanted to "avoid surgery at all costs" and "avoid injections." Id. During their ongoing treatment relationship with Plaintiff for over one year, Drs. Santiago and Colon consistently treated Plaintiff with medications, except ordering epidural injections once on April 1, 2009 (Tr. 514-17). Tr. 457-569. Accordingly, based on the findings above, the Court finds that the record supports the ALJ's determination that in general, Plaintiff's treatment notes reflect routine or conservative care at times relevant to his decision. Tr. 18.
Plaintiff next contests the ALJ's assessment of his work history that he continued to work through his date last insured. Tr. 18; Doc. 20 at 21. Although Plaintiff admits that he continued to work, he argues that the ALJ should have asked questions related to his work during the hearing. Doc. 20 at 21. Plaintiff does not provide, however, any binding authority that required the ALJ to question him regarding his work history during the hearing. Id. In contrast, as noted, it was within the ALJ's discretion to assess conflicting evidence and Plaintiff's credibility. Lacina, 606 F. App'x at 525 (citing Grant, 445 F.2d at 656) ("It is 'solely the province of the Commissioner' to resolve conflicts in the evidence and assess the credibility of witnesses."); Moore, 405 F.3d at 1212 (citation omitted) ("[C]redibility determinations are the province of the ALJ."). Furthermore, the regulations require the ALJ to compare Plaintiff's statements with factors concerning limitations and restrictions his symptoms cause, including his daily activities. See 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) (2014).
Lastly, Plaintiff challenges the ALJ's finding that Plaintiff tested positive for illicit drugs, although he denied drug use to his physicians. Tr. 18; Doc. 20 at 21-22. Plaintiff argues that he tested positive for certain substances because he was taking medications for pain, which contained the same substances. Doc. 20 at 21-22. Plaintiff also asserts that he did not deny or lie about his drug use. Id. at 22.
Again, the Court finds that substantial evidence supports the ALJ's analysis. Tr. 18. On October 10, 2008, Dr. Santiago found that Plaintiff's urine test revealed a significant trace of marijuana. Tr. 535. Dr. Santiago discussed this with Plaintiff because Plaintiff denied "any illicit drug use." Id. In contrast to Plaintiff's argument that his positive test results of certain substances was the result of his taking certian medications, Dr. Santiago, who was aware of Plaintiff's medications, clearly stated that the test result was "something we [are] not going to tolerate." Tr. 535, 555-56. Despite this opinion, Dr. Santiago decided to give Plaintiff "a break considering that he has a true pathology and [Dr. Santiago] know[s] that the medications are helping him." Tr. 536. In addition, Dr. Shah, who also was clearly aware that Plaintiff was using opioid medications for his pain, wrote in bold letters that Plaintiff tested positive for Benzodiazepine, opioid and THC. Tr. 294-98. As a reuslt, the Court finds that substantial evidence supports the ALJ's analysis. Tr. 18. Based on the findings above, the Court finds that the ALJ properly assessed Plaintiff's credibility. Tr. 17-18.
V. Conclusion
Upon review of the record, the Court concludes that the ALJ applied the proper legal standards, and his determination that Plaintiff is not disabled is supported by substantial evidence.
ACCORDINGLY, it is hereby
ORDERED:
1. The decision of the Commissioner is AFFIRMED.
2. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner, and close the file.
DONE and ORDERED in Fort Myers, Florida on this 23rd day of August, 2017.
/s/_________
CAROL MIRANDO
United States Magistrate Judge Copies:
Counsel of record