Opinion
Case No. 5:07-CV-355 (HL).
September 29, 2008
ORDER
This is a review of a final decision of the Commissioner of Social Security denying the plaintiff's claim for benefits under the Social Security Act, 42 U.S.C. § 423. All administrative remedies have been exhausted. Jurisdiction arises under 42 U.S.C. § 405(g).
On July 7, 2005, plaintiff filed an application for Disability Insurance Benefits and Period of Disability. She alleged disability commencing on June 29, 2000, due to coronary artery disease, sleep apnea, osteoarthritis, right carpal tunnel syndrome, obesity, chronic obstructive pulmonary disease, and mild neuropathy of the left wrist. The application was denied initially and after further review. This civil action was commenced after the recommendation to deny benefits was adopted as the Commissioner's final decision in this case.
LEGAL STANDARDS
The court's review of the Commissioner's decision is limited to a determination of whether it is supported by substantial evidence and whether the correct legal standards were applied.Walker v. Bowen, 826 F.2d 996 (11th Cir. 1987). Substantial evidence is defined as more than a scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389 (1971).
The court's role in reviewing claims brought under the Social Security Act is a narrow one. The court may not decide facts, reweigh evidence, or substitute its judgment for that of the Commissioner. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The court must, however, decide if the Commissioner applied the proper standards in reaching a decision. Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980).
The court must scrutinize the entire record to determine the reasonableness of the Commissioner's factual findings.Bloodsworth v. Heckler, supra, at 1239. However, even if the evidence preponderates against the Commissioner's decision, it must be affirmed if substantial evidence supports it. Id.
The initial burden of establishing disability is on the claimant. Kirkland v. Weinberger, 480 F.2d 46 (5th Cir. 1973). However, the claimant's burden is a heavy one and is so stringent that it has been described as bordering on the unrealistic.Oldham v. Schweiker, 660 F.2d 1078 (5th Cir. 1981).
A claimant seeking Social Security disability benefits must demonstrate that he suffers from an impairment that prevents him from engaging in any substantial gainful activity for a twelve-month period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of these statutes, in order to be eligible for disability payments, a claimant must meet the requirements of the Commissioner's regulations promulgated pursuant to the authority given in the Social Security Act. 20 C.F.R. 404.1 et seq.
Under the regulations, the Commissioner determines if a claimant is disabled by a five step procedure. 20 C.F.R. § 404.1520, Appendix 1, Part 404. First, the Commissioner determines whether the claimant is working. Second, the Commissioner determines whether the claimant has an impairment which prevents the performance of basic work activities. Next, the Commissioner determines whether the claimant's impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the regulations. Fourth, the Commissioner determines whether the claimant's residual functional capacity can meet the physical and mental demands of past work. Finally, the Commissioner determines whether the claimant's residual functional capacity, age, education, and past work experience prevents the performance of any other work.
In arriving at a decision, the Commissioner must consider the combined effect of all the alleged impairments, without regard to whether each impairment, if considered separately, would be disabling. Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984). The Commissioner's failure to apply correct legal standards to the evidence presented is grounds or reversal. Id.
DISCUSSION
Plaintiff Norman's brief in support of her Complaint begins with an enumeration of alleged failures on the part of Cam Oetter, the Administrative Law Judge (ALJ) who presided over the administrative hearing in this matter. ALJ Oetter's decision was adopted by the defendant Commissioner and, as such, is the subject of the instant appeal. Plaintiff alleges, inter alia, that ALJ Oetter failed to 1) consider key evidence, 2) reconcile key evidence with his findings, 3) poise a complete hypothetical question, 4) consider lay witness testimony, and 5) perform the requisite pain analysis. After setting forth the procedural history, a statement of facts, and a restatement of the legal standards applicable to the appeal, plaintiff in her brief makes almost no argument in support of the aforementioned allegations. To illustrate, the entirety of plaintiff's argument is cited below.
Claimant contends that the Commissioner, acting through the administrative law Judge erred as a matter of law in failing to accord adequate weight to the opinions of treating physicians and erroneously focused on a lack of objective medical evidence supporting the treating physicians diagnosis and opinion. Stewart v. Apfel, 245 F.3rd 793 (11th Cir. 2000).
In this case where the treating physicians expressed their opinion as to limitation of this claimant, the ALJ's rejection of those opinions was not based on even a scintilla of evidence supporting his conclusion, but was a mere opinion which rejected a medical expert without any counter supporting evidence. The law of this circuit is that the testimony of a treating physician must be given substantial or considerable weight unless "good cause" is shown to the contrary. Lewis v. Callahan, 125F.2d at 1053. Here the ALJ discounted without "good cause" the long standing heart condition, the severe mental condition, the broken foot, which hadn't healed.
Finally, the ALJ based his decision on the fact that the Claimant was obese, and that her obesity contributed to her medical condition and therefore to her disability. He found that she was not losing weight therefore she was responsible for her medical problems. The record clearly shows that she was attempting to lose weight. (T. P. 533,534). This is important because of the weight placed by the ALJ, on her obesity and its connection with the impairments. Claimant weighted 193 in 6-16-03 (Dr. Boddie) (T. p 408) on 8-18-03 Claimant weighted 197 (Dr, Boddie), (T. p. 405) Claimant weighted 210 on 2-15-06 (Dr. Boddie), (T.p. 372). Claimant weighted 206 4-17-06 (Dr. Boddie) (T. p371). On 3-10-04 Dr. Boddie notes Claimant weighted 200, and noted fluid retention and encouraged weight loss. (Dr. Boddie T. p. 394) Next visit 4-12-04 she lost 21bs (Boddie T. p. 393).
This clearly shows that claimant weight was unstable and constantly fluctuated even in light of her attempting to lose weight. A mere inability to lose weight should not and cannot be the basis for denying a claim. This is especially true when there is a medical basis for the weight gain.
A fair reading of this claimant's record clearly shows a lady who worked for 23 straight years, then began to experience serious medical problems. She went to treating physicians and attempted to follow their directions as faithfully as she could. There is no indication that she tried to embellish her disability. She tried to lose weight. She submitted herself for invasive procedures. This is a case where the ALJ dismissed all evidence supporting her disability but offered little or no bases for his action.
Despite the sparse, if not perfunctory, nature of these arguments, the court will address them each in turn. Plaintiff Norman's first argument is that the defendant, "acting through the administrative law Judge[,] erred as a matter of law in failing to accord adequate weight to the opinions of treating physicians and erroneously focused on a lack of objective medical evidence supporting the treating physicians diagnosis and opinion." In support of this somewhat illogical averment, plaintiff cites the case of Stewart v. Apfel, 245 F.3d 793 (Table) (11th Cir. 2000).
Stewart, as it happens, is an unpublished opinion appearing only by reference in a Table of Decisions Without Reported Opinions. As the plaintiff is no doubt aware, unpublished opinions are not considered binding precedent and may only be cited as persuasive authority if a copy of the unpublished opinion is attached to or incorporated within a brief. Eleventh Circuit Rules, Rule 36-2, 28 U.S.C.A. In this instance, no copy of the opinion was attached to the brief or otherwise filed in the record nor was the opinion sufficiently incorporated in to the brief. Nevertheless, in an effort to afford the plaintiff every opportunity of fairness, and in order to sate the court's own curiosity, the undersigned researched the matter and discovered that in Stewart the court reversed an ALJ's decision which rejected a fibromyalgia claimant's testimony based upon the lack of objective evidence documenting the impairment. This, according to the court, was improper because fibromyalgia often lacks objective medical or laboratory signs and is diagnosed mostly on an individual's described symptoms. Because the plaintiff in the instant case has not alleged that she suffers from fibromyalgia or a similar condition, the undersigned finds this argument unpersuasive.
Plaintiff Norman's next argument is that the ALJ improperly rejected her treating physicians' opinions as to her limitations and that the ALJ's decision was not based on even a scintilla of evidence. As has been previously noted, the law of this circuit is that the testimony of a treating physician must be given substantial or considerable weight unless "good cause" is shown to the contrary. Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir. 1985). Moreover, an ALJ can reject the opinion of any physician when the evidence supports a contrary conclusion or when it is contrary to other statements or reports of the physician. Oldham, supra, at 1084. Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991). See also Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984).
Upon consideration of this argument, the undersigned concludes that the ALJ's decision to reject the plaintiff's treating physicians' opinion as to her limitations was proper. In his written decision, the ALJ exhaustively reviewed both the applicable medical and testimonial evidence and concluded that the opinions of the plaintiff's treating physicians as to her limitations were simply not supported by the objective medical evidence. The undersigned agrees.
Plaintiff Norman's final argument is that the ALJ used her obesity and her alleged inability to lose weight as an improper basis for denying her claim. A reading of the ALJ's decision in this case, however, does not support this conclusion. As such, the undersigned also finds this argument unpersuasive.
Accordingly, it is ordered, that the Commissioner's decision be AFFIRMED.
SO ORDERED.