Opinion
Case No. 04-21309-CIV-HIGHSMITH/DUBÉ.
August 30, 2005
REPORT AND RECOMMENDATION
THIS CAUSE is before this Court on the Motion for Summary Judgment filed by the Plaintiff (D.E. #12) and the Motion for Summary Judgment filed by the Defendant (D.E. #15) pursuant to an Order of Reference entered by the Honorable Shelby Highsmith, United States District Judge. The issue before this Court is whether the record contains substantial evidence to support the denial of benefits to Plaintiff Janice L. Tarver (hereinafter "Tarver" or "Plaintiff').
I. FACTS
Tarver filed an application for disability insurance benefits on April 8, 1997. (R. 182). This application was denied initially and on reconsideration. (R. 149, 154). Following two hearings(R. 34-138), the ALJ issued a decision denying the request for benefits. (R. 17-33). A request for review filed with the Appeals Council (R. 11) was denied. (R. 5).
All references are to the record of the administrative proceeding filed as part of the Defendant's answer.
The Plaintiff, age 45 at the time of the hearing on December 8, 1999, testified that she completed 12 years of school. (R. 66). Tarver testified that her husband drove her to the hearing, but that she does drive. (R. 67). Tarver stated that her last employment involved working with disabled persons and included such tasks as doing household chores, driving, as well as bathing and feeding the clients. (R. 68). She indicated that she stopped working due to problems in her left leg and pain. (R. 69).
The Plaintiff testified that she could not lift more than 5 pounds without having pain across the lower part of her back (R. 77). Tarver also stated that she cooks a complete meal twice a week, and that the frequency had decreased since 1997. (R. 82). She was also able to go food shopping for a few items approximately 3 weeks prior to the hearing. (R. 83). According to the Plaintiff, the only household chore that she does is making her bed. (R. 83). Tarver also stated that she goes to church when she can and had not been to a store such as Ross or K-Mart in two or three months. (R. 84).
Dr. Bernard Gran testified as a medical expert at the hearing. Dr. Gran recounted the medical records presented and stated that in his opinion the Plaintiff's ailments did not meet or equal the listings. (R. 101). Dr. Gran also testified that in the time period from the summer of 1997 to December 1998, the Plaintiff would have been able to lift and carry 10 pounds frequently and 20 pounds occasionally. (R. 105). According to the doctor, the Plaintiff would also have the ability to sit six hours a day, one to two hours at a time and stand or walk for three hours a day, one hour at a time. (R. 105). Tarver was seen as having occasional limitations in the use of her left lower extremity and also had some limitations as to bending, stooping and squatting. (R. 106-107). Additionally, Dr. Gran stated that the Plaintiff should avoid concentrated exposure to fumes, dust and chemicals. (R. 108).
Dr. Gran testified that while he did not "have any good physical exams" after December 1998, the symptoms from the anesthesiologist who examined the Plaintiff led him to the opinion that the Plaintiffs ability to lift probably went down after that time period to 10 pounds occasionally, with walking and standing reduced to 2 to 3 hours total, with 1 hour at a time. (R. 109-110).
Gary Fannin, a vocational expert, also testified at the hearing. Fannin stated that the Plaintiffs prior work as a mental retardation worker and nurse's assistant would be classified in the medium to heavy range and that her work as a sales/clerk cashier and cashier supervisor would be classified as light. (R. 118-119).
The ALJ presented Fannin with a hypothetical in which the Plaintiff could stand or walk for 3 hours a day, with 1 hour at a time without interruption; sit for 1 to 2 hours at time for a total of 6 hours of an 8 hour workday; lift/carry 20 pounds occasionally and 10 pounds frequently; with some limitations on the left lower extremity; no ability to climb a rope or scaffold; an ability to occasionally climb a ladder, stairs or a ramp; an ability to occasionally stoop, kneel, crouch and crawl and with environmental restrictions which required avoiding concentrated exposure to dust, fumes and strong chemicals. (R. 120-122).
In response to this hypothetical, Fannin stated that the Plaintiff would not be able to perform her prior work. According to Fannin, while the Plaintiff could do light work, the restrictions on standing would preclude the sales clerk and cashiering positions that she previously performed. He added that there were cashiering positions that allow for standing and sitting, such as a ticket seller in a movie theater or a parking lot cashier. (R. 122-123). Fannin also pointed to a number of assembly or labor positions which allow for a sit/stand option. (R. 127).
In response to questioning by counsel for the Plaintiff, which included a hypothetical in which the Plaintiff was limited to lifting 10 pounds occasionally and standing reduced to 2 hours per day, Fannin stated that this would place the Plaintiff in the sedentary category. (R. 130). Fannin added that the Plaintiff would still be able to perform the ticket seller position and the sedentary assembly and labor jobs. (R. 130). Counsel also inquired as to the effect of the restriction on exposure to heights and moving machinery found by Dr. Yates. (R. 132). According to Fannin, these restrictions would preclude the Plaintiff from the job as a parking lot cashier and might also reduce the available assembly and labor positions by approximately 10 percent. (R. 134-135).
The Plaintiff's counsel also discussed the findings in the medical assessment by Dr. Mouhanna (Ex. 24F), which according to counsel reduced the lifting and carrying limitation to 3 to 5 pounds on an occasional basis, allowed for standing or walking for only 1 hour per 8 hour day, and permitted only occasional crawling, no climbing, balancing, stooping, crouching or kneeling. (R. 136). In response to this set of facts, Fannin testified that the Plaintiff would be unable to perform any type of job since her capacity would be less than sedentary. (R. 137).
In addition to the testimony presented at the hearing, medical records were submitted to the ALJ. A report of a consultative examination on April 8, 1996 by neurologist Dr. Michael Aptman recounts the Plaintiff's injury in 1994 and resulting impact, but states that the examination showed normal motor strength, bulk and tone; sensory was intact as to pin and touch and gait and coordination were normal. According to the report, the symptoms did not represent a primary neurological disorder. (R. 256-257). The records also include reports from the repair of the Plaintiff's left femoral hernia on May 13, 1996. (R. 259-269).
On April 1, 1997, the Plaintiff was admitted to Deering Hospital for complications relating to her diabetes as well as abdominal pain. The Discharge Summary indicates that her condition improved during her stay, and that when discharged on April 3, 1997, the Plaintiff was seen in "absolutely stable" condition. (R. 275). The impression listed in the Discharge Summary included insulin dependent diabetes mellitus and gastroenteritis. (R. 275).
Operative reports from left ilioinguinal, iliohypogastric and genitofemoral nerve blocks performed on May 19, 1997, May 27, 1997 and June 10, 1997 are also contained in the record. (R. 307-315). The report of the June 10 procedure indicates that the Plaintiff obtained 75 percent relief for the first couple of days and then the pain returned to its original level, which the Plaintiff rated as a "10." (R. 307).
The report of a consultative examination on November 20, 1997 by Dr. Joel Schapiro, states that the Plaintiff was 5'5 ½" and weighed 178 pounds. Tarver was able to ambulate in the office with a normal heel to toe gait, did not limp, and required no assistive device for ambulation. (R. 352). Dr. Schapiro found no significant loss of range of motion of any major joint, with the exception of the lumbar spine. Additionally, the Plaintiff's hands showed no significant loss of grip strength, digital dexterity was preserved, manual function was maintained and there was no evidence of current, acute joint inflammation. (R. 353). According to the report, the Plaintiff had mild difficulty in getting up from a chair, getting on and off an exam table and squatting and arising. No difficulty was seen in walking heel to toe. However, the Plaintiff had moderate difficulty in hopping on one leg. (R. 353).
The report also indicates that the Plaintiff related normally and had no evidence of significant mental incapacity. The doctor noted the Plaintiff's history of diabetes as well as the decreased superficial sensation of the distal lower extremities and the absence of the Achilles' reflexes, which were deemed to be "characteristic of diabetic peripheral sensory neuropathy." (R. 355). Dr. Schapiro listed an assessment of insulin dependent diabetes mellitus and diabetic peripheral sensory neuropathy. (R. 355).
The report also discussed the Plaintiff's three and one-half year history of joint pain involving the lumbar spine and the left hip. According to Dr. Schapiro, X-rays of the lumbar spine revealed minimal anterior and posterior osteophyte formation as well as mild narrowing of the L5-S1 disc space and mild straightening of the lumbar curve. The report lists an assessment of chronic pain involving the left hip and lumbar spine and minimal degenerative changes of the lumbar spine. (R. 355).
A Physical Residual Functional Capacity Assessment dated December 5, 1997, found that the Plaintiff could occasionally lift/carry 50 pounds; frequently lift/carry 25 pounds; stand/walk or sit for 6 hours of an 8 hour day and had unlimited ability to push/pull. (R. 358). No postural, manipulative, visual, communicative or environmental limitations were noted. (R. 359-361).
Notes of visits from October 1997 through March 1998 with Dr. Olivia M. Graves are also included in the record. These notes reflect assessments for diabetes, complaints of chronic back pain and asthma. (R. 375-389). The report of an examination conducted by Dr. Mark Hauser on March 6, 1998, based on a referral from Dr. Graves, states an assessment of extrinsic asthma, diabetes and atropic rhinitis. (R. 391).
The report of a psychological evaluation performed by Hilda M. Lopez, Ph.D. on May 7, 1998, recounts the Plaintiff's family and medical history. According to the report, the Plaintiff has suffered from depression since 1994 and had been under psychiatric treatment. The report also details the 1994 accident which resulted in injuries to the Plaintiff's leg, back and neck. The report adds that the Plaintiff stopped working four years prior to the examination due to her physical and emotional condition. (R. 393).
Dr. Lopez reported that the Plaintiff complained of intense feelings of sadness and depression, difficulty sleeping, poor appetite and a feeling of nervousness and tension. Tarver was seen as walking with the aid of a walker and was unable to bend, strain or lift any weight. (R. 393). The report described the Plaintiff as well-nourished, appropriately dressed and groomed, friendly and compliant. (R. 394). Tarver had appropriate affect, an anxious and sad mood, in addition to coherent, relevant and goal directed thought processes. The Plaintiff was well oriented as to person, place and time, with no signs of suicidal or homicidal ideation. Immediate memory, concentration and remote memory were seen as fair, as was her level of comprehension. Judgment and insight were rated as "fairly good." (R. 394).
Dr. Lopez listed a diagnostic impression of major depressive disorder, moderate with psychotic features and a prognosis deemed "guarded." (R. 395). The report also found that the Plaintiff's ability to sustain focused attention long enough to finish a task was average; that she was not able to push, pull, strain or carry, but was able to understand instructions and directions. Her ability to remember, to relate with supervisors and co-workers was good, but her ability to handle job stress was poor. Additionally, the Plaintiff was able to manage her funds. (R. 396).
The results of a pulmonary function study conducted on May 12, 1998, indicates that the Plaintiff had only fair to poor cooperation and expenditure of effort. The impression listed in the report was of an abnormal pulmonary function study which was consistent with significant restrictive lung defect. The report adds that this condition was consistent with the Plaintiff's obese state and that the results may have been tainted by a lack of expenditure. (R. 397).
A Psychiatric Review Technique dated May 26, 1998, found the presence of the affective disorder of major depression. (R. 413). The report found that the Plaintiff would have a slight limitation as to activities of daily living and in maintaining social functioning; would often suffer from deficiencies of concentration, persistence or pace, but would never have episodes of deterioration or decompensation in work or work-like settings. (R. 417). Additionally, the Plaintiff was seen as moderately limited in her ability to understand, remember and carry out detailed instructions. All other categories were deemed "not significantly limited." (R. 419-420).
A Residual Physical Functional Capacity Assessment dated May 27, 1998, found that the Plaintiff had the ability to occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk or sit for 6 hours of an 8 hour day and had unlimited ability to push/pull. (R. 424). No postural, manipulative, visual, communicative or environmental limitations were seen as present. (R. 425-427).
The report of a neurosurgical evaluation performed by Dr. Basil Yates on May 22, 1998, recounts the Plaintiff's 1994 injury and indicates that at the examination she complained of bilumbar pain going down her legs. She also reported some numbness in her toes and an inability to walk or stand due to the tendency of her leg to give way. (R. 463). Examination revealed no difficulty with the neck, shoulders, arms, hands or fingers, with the exception of tingling in the fingers which the Plaintiff attributed to her diabetes. (R. 463). Tarver had some puffiness in her left supraclavicular area as well as pain in her left upper chest and shoulder which went down to her arm. She also experienced pain in her left arm and numbness in her left fingers. (R. 464).
The Plaintiff was seen as awake, alert and oriented, with speech, language, memory and cognitive functions preserved. Tarver walked slowly with a quad cane but had full range of motion of the shoulders, elbows, wrists, hands and fingers. No motor impairment was seen. Dr. Yates also noted non-elicitable patellar and Achilles reflexes. (R. 464). Additionally, the Plaintiff had pain in the superior medial angle of the left scapula to palpation as well as pain to palpation without spasm or tightness in the paralumbar muscles. Pain was also noted in the right sciatic notch to palpation and straight leg raising was to 50 degrees. (R. 465).
The notes of a follow-up visit on June 15, 1998 recite the results of an MRI (R. 456) which showed multiple bulging discs, a mild element of stenosis and multi-level degenerative disc disease. (R. 462). The notes conclude as follows:
The best thing for the patient to do is to be engaged in an exercise program to keep her back, hip, and leg muscles in the best shape that she possibly can, but even in spite of the problems she has, she is not a candidate for surgery. She is capable of moderate activity without excessive bending and picking up more than 10 pounds eight times an hour. Bending stooping, and squatting would be difficult for her more than eight times an hour, but within those limitations, she would be able to function.
(R. 462).
On October 9, 1998, Dr. Yates prepared a Medical Assessment of Ability to do Work-Related Activities. (R. 458-461). The assessment found that the Plaintiff was limited to lifting 10 pounds, one-third of the day and that she could only stand/walk for a total of 3 hours per day, including 1 hour without interruption. Her ability to sit was seen as 6 hours a day, also with 1 hour without interruption. (R. 459). Questions relating to postural activities and physical functions were left unanswered in the assessment, but Dr. Yates did find that the Plaintiff had restrictions as to heights and moving machinery. (R. 460-461).
Notes from visits with Dr. Eric A. Sheldon of the Arthritis Rheumatic Care Center were also presented to the ALJ. (R. 451-454). During the first visit on September 17, 1998, the Plaintiff was seen as walking with the use of a cane and with an antalgic gait. Tarver's neck had full range of motion and her shoulder, elbow and hand joints were normal without synovitis or deformity. (R. 453). The Plaintiff's back had severe tenderness to palpation from the mid-back downward. Tarver was unable to perform hip flexion due to severe pain, particularly in the left hip. (R. 453).
On September 28, 1998, the Plaintiff continued to complain of severe pain in her back, groin and left leg region. Examination revealed tenderness diffusely over the Plaintiff's left buttock region extending over the lateral hip and into the left groin. Additionally, pain with palpation over the proximal to distal thigh was noted as was "markedly limited" flexion and rotation of the left hip. (R. 452). Dr. Sheldon noted the results of a bone scan which showed mild uptake at the right side of the lumbar spine. According to the report, the pain was possibly related to lower lumbar disc disease with an associated radiculopathy. Dr. Sheldon added that the Plaintiff's pain seemed to be "greatly out of proportion" to the physical findings. (R. 452).
The notes of an October 13, 1998 visit indicate that the severe pain was continuing, with marked tenderness noted over the Plaintiff's back and left groin. (R. 451). According to Dr. Sheldon, he was unsure of the origin of the pain, but noted the possibility of lumbosacral spinal disease with radiculopathy. The doctor suggested that the Plaintiff see an anesthesiology pain specialist for evaluation and possible treatment and provided the name of Dr. Joseph Mouhanna. (R. 451).
The first visit with Dr. Mouhanna occurred on October 19, 1998. The notes of the visit indicate that Plaintiff was awake, alert and oriented, but that she appeared in moderate to severe discomfort from her pain. Dr. Mouhanna noted that the Plaintiff was overweight and that her gait was antalgic to the left. Tarver was unable to toe and heel walk but had full range of motion in the cervical spine and upper extremities. Additionally, the muscle strength of the upper extremities was seen as 5/5 bilaterally with no evidence of tenderness or atrophic changes. (R. 486). Examination of the thoracic and lumbosacral spine revealed limited range of motion to anterior flexion and to extension, with pain elicited to forward flexion and to extension. Tenderness was noted over the lumbar facet joints bilaterally along the lumbar spine as well as tenderness over the posterior spinous processes of the midline of the lumbosacral spine. (R. 486-487).
The lower extremities showed full range of motion, with 5/5 strength in the right and 4/5 in the left. Dr. Mouhanna noted tenderness to palpation of the sciatic notches bilaterally. Straight leg raising was positive at about 60 degrees on the left and negative on the right. (R. 487). The report also notes evidence of severe allodynia and hyperesthesia to palpation of the left inguinal area as well as to palpation of the perineal area on the left side. (R. 487). Deep tendon reflexes were 1+ bilaterally in the upper extremities, with knee jerks trace bilaterally and ankle jerks nonexistent bilaterally. (R. 487). Dr. Mouhanna listed an impression of lumbar radiculopathy, lumbar facet syndrome/spinal episopathy, sympathetically maintained pain to the left inguinal/perineal area and probable left genitofemoral/ilioinguinal nerve neuropathy. (R. 488).
The notes of additional visits with Dr. Mouhanna from October 1998 through September 1999 are also in the record. On October 29, 1998, the Plaintiff was seen as "Depressed but not suicidal." Continued pain classified as severe was noted in the lower back and left thigh, along with numbness and weakness. No improvement was seen in the Plaintiff's condition which was assessed as lumbar facet syndrome. (R. 483). Similar results were noted in the reports of visits from December 1998 (R. 479-480), along with the diagnosis of degenerative lumbar disc disease. (R. 479). Continued severe pain, numbness, weakness and lack of improvement were noted in reports from March 1999, April 1999, July 1999 and September 1999. (R. 438, 449, 450, 470).
Operative reports from Dr. Mouhanna reflect procedures for bilateral lumbar facet joint injection in October 1998 (R. 441-444), November 1998 (R. 445-448) and August 1999 (R. 473-475). Procedures for additional nerve blocks and joint injections were performed in March 1999 (R. 439-440), April 1999 (R. 476-477), August 1999 (R. 471-472) and September 1999 (R. 467-469).
On March 4, 1999, Dr. Mouhanna completed a Medical Assessment of Ability to do Work-Related Activities form. (R. 434-437). The assessment found that the Plaintiff could only lift 3 to 5 pounds and walk/stand or sit for only 1 hour a day with interruptions. (R. 435). Additionally, the Plaintiff could only occasionally crawl, and could never climb, balance, stoop, crouch or kneel. (R. 436). The report also found that the Plaintiff's ability to reach and push/pull were affected by the impairment. (R. 436). Dr. Mouhanna noted restrictions as to heights, moving machinery and temperature extremes. (R. 437).
A Sworn Statement, dated November 5, 1999, was also provided by Dr. Mouhanna. (R. 586-610). Dr. Mouhanna stated that his speciality was anesthesiology, with a sub-speciality of pain management. (R. 588-589). According to the doctor, he first saw the Plaintiff in October 1998 based on a referral from a rheumatologist, Dr. Sheldon. (R. 589). Examination at that time revealed evidence of severe allodynia and hyperesthesia, hypersensitivity to palpation over the left inguinal area and perineal area. Dr. Mouhanna also found diminished ankle jerks bilaterally as well as diffused decrease in motor strength in her legs. (R. 591). According to the doctor, the examination led him to an initial diagnosis of lumbar radiculopathy, a lumbar facet syndrome and spinal episopathy. (R. 592). Dr. Mouhanna also recounted the treatment provided to the Plaintiff, including injections, which provided only temporary relief. (R. 593-596).
Dr. Mouhanna also stated that the Plaintiff was currently on Elavil, Oxycontin, Lortab, and Ambien for her chronic pain condition in addition to medication for her diabetes. (R. 598-600). The doctor added that the Plaintiff has shown signs and symptoms of depression during the time he has treated her, including signs of hopelessness on a couple of occasions. (R. 600). In response to a question as to whether the Plaintiff's pain or physical condition had improved in the past year, Dr. Mouhanna stated as follows:
Improvement in her pain has been cyclical. She has had episodes and periods where she would — where her pain would be better and her quality of life would be improved.
As far as her physical examination this has also been through cyclical. This has also been cyclical, but as far as — you're asking me about her prognosis?
Q: Yes, prognosis.
A: As far as her prognosis, even though it is hard to foresee the future, I think considering what she has — what she has and considering her condition and the way she responded to treatment so far, I would say that her — I would say that she will always have some pain and that she will probably never be completely pain free. At best, she should hope — we could hope for a level of pain that will be at a minimum, that will allow her to do her daily tasks.
(R. 601-602).
Dr. Mouhanna also reviewed the Medical Assessment form he had completed in March, 1999, and indicated that the Plaintiff was at the same limitations at the time of the statement (November 1999) as she was in March, 1999. (R. 604). He added that her present restrictions were also the same as those found at the time of the initial visit in October 1998. Dr. Mouhanna also stated that based on the presence of multi-level degenerative changes in the Plaintiff's spine, multi-level discogenic disease in her lumbar spine and the presence of a radicular compromise in her lumbar nerve root, the Plaintiff's impairment would meet or equal the listing found at 1.05C. (R. 605).
The Plaintiff also submitted reports from Deering Hospital involving a hospital stay from September 1, 1999 through September 3, 1999 for uncontrolled diabetes, hypertension and medication reaction. (R. 494-549). A Discharge Summary from Baptist Hospital indicates that the Plaintiff was admitted to that facility on October 10, 1999 with upper GI bleeding, nausea, vomiting and dehydration. The Plaintiff was discharged on October 13, 1999 in good condition with a diagnosis of acute gastritis, insulin dependent diabetes mellitus and dehydration. (R. 585).
A Medical Assessment of Ability to do Work-Related Activities dated August 16, 1999, from Cecilia M. Jorge, M.D. found that the Plaintiff had poor or no ability to follow work rules, relate to co-workers, deal with the public, use judgment, interact with supervisors, deal with work stress, function independently and maintain attention/concentration. (R. 616-617). The report also found that the ability to understand, remember and carry out complex or detailed job instructions was poor and that the ability to understand, remember and carry out simple job instructions was fair. (R. 617). Tarver was also seen as having a fair ability to maintain personal appearance and poor abilities to behave in an emotionally stable manner, relate predictably in social situations and to demonstrate reliability. (R. 618). The report also found that the Plaintiff could manage benefits in her own best interest. (R. 618).
On March 21, 2000, the ALJ issued a decision finding that the Plaintiff's impairments of obesity, insulin dependent diabetes mellitus, degenerative disc disease, major depressive disorder and asthma were severe, but did not meet or equal the severity in the listing of impairments. (R. 31). The ALJ also found that the Plaintiff's testimony was not fully supported or credible. According to the ALJ, prior to December 1998, the Plaintiff retained the residual functional capacity to perform the requirements of a reduced range of work at the light and sedentary levels of exertion. Since December 1998, the Plaintiff has retained the residual functional capacity to perform a limited range of work at the sedentary level of exertion. (R. 32). While the Plaintiff was not able to perform her past relevant work, the ALJ found that there were a number of sedentary jobs that she could perform, and thus, Tarver was not disabled. (R. 33).
II. LEGAL ANALYSIS
Judicial review of the factual findings in disability cases is limited to determining whether the record contains substantial evidence to support the ALJ's findings and whether the correct legal standards were applied. 42 U.S.C. section 405(g);Richardson v. Perales, 402 U.S. 389, 401 (1971); Kelle vim. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). "Substantial evidence" is more than a scintilla, but less than a preponderance and is generally defined as such relevant evidence which a reasonable mind would accept as adequate to support a conclusion.Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
In determining whether substantial evidence exists, the court must scrutinize the record in its entirety, taking into account evidence favorable as well as unfavorable to the Commissioner's decision. Foote v. Chater, 67 F.3d 1553 (11th Cir. 1995);Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The reviewing court must also be satisfied that the decision of the Commissioner correctly applied the appropriate legal standards.See, Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). The court may not reweigh evidence or substitute its judgment for that of the ALJ, and even if the evidence preponderates against the Commissioner's decision, the reviewing court must affirm if the decision is supported by substantial evidence. See, Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Baker v. Sullivan, 880 F.2d 319 (11th Cir. 1989).
The restrictive standard of review set out above applies only to findings of fact. No presumption of validity attaches to the conclusions of law found by the Commissioner, including the determination of the proper standard to be applied in reviewing claims. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The failure by the Commissioner 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. Cornelius v. Sullivan, 936 F.2d 1143, 1145-1146 (11th Cir. 1991); See also, Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
Regulations promulgated by the Commissioner establish a five-step sequential analysis to arrive at a final determination of disability. See, 20 C.F.R. section 404.1520; 20 C.F.R. section 416.920(a)-(f).
The ALJ must first determine whether the claimant is presently employed. If so, a finding of non-disability is made, and the inquiry ends. 20 C.F.R. section 404.1520(b). In the second step, the ALJ must determine whether the claimant suffers from a severe impairment or combination of impairments. If such a finding is not made, then a finding of non-disability results, and the inquiry ends. 20 C.F.R. section 404.1520 (c).
At step three, the ALJ compares the claimant's severe impairments to those in the listing of impairments. 20 C.F.R. section 404.1520(d), subpart P, appendix I. Certain impairments are so severe, whether considered alone or in conjunction with other impairments, that if such impairments are established, the regulations require a finding of disability without further inquiry into the claimant's ability to perform other work. See, Gibson v. Heckler, 762 F.2d 1516, 1518, n. 1 (11th Cir. 1985). If the impairment meets or equals a listed impairment, disability is presumed, and benefits are awarded. 20 C.F.R. section 404.1520(d).
Step four involves a determination of whether the impairments prevent the claimant from performing his or her past relevant work. If the claimant cannot perform his or her past relevant work, then a prima facie case of disability is established and the burden of going forward with the evidence shifts to the Commissioner to show, at step five, that there is other work available in the national economy which the claimant can perform. 20 C.F.R. section 404.1520(e)-(f).
The claimant bears the initial burden of proving that he is unable to perform previous work. See, Barnes v. Sullivan, 932 F.2d 1356, 1359 (11th Cir. 1991). The inability to perform previous work relates to the type of work performed, not to merely a specific prior job. See, Jackson v. Bowen, 801 F.2d 1291, 1293 (11th Cir. 1986).
In the present case, the ALJ found, at step five, that even though the Plaintiff could not perform her past relevant work, she retained the residual functional capacity for a limited range of sedentary work, and thus, was not disabled. The Plaintiff contends that the ALJ erred by failing to accord adequate weight to the opinion of a treating physician, Dr. Mouhanna. According to the Defendant, the ALJ set out good cause for the rejection since the doctor did not provide adequate explanation for the opinion and that it was inconsistent with other evidence in the record.
In her decision, the ALJ discussed the evidence and testimony presented, including the records from Dr. Mouhanna and their review by testifying medical expert Dr. Gran, as follows:
Dr. Gran particularly noted the lack of evidence over various periods in the record. For example, there had been no neurological examination in 1999. In addition, the anesthesiologist, Dr. Mouhanna, only spoke of the claimant's subjective symptoms and that she seemed to be experiencing the same kind of symptoms as she had previously but only to a greater degree. The medical expert also remarked that the anesthesiologist had documented only reported symptoms, but of significance was the fact that her record (of this physician) contains no objective findings. Dr. Gran testified that after reading Dr. Mouhanna's deposition and review of all other medical evidence of record, he was "not convinced" that there was any radiculopathy present (Exhibit 30F). He stated that the claimant probably had a "mild" degree of peripheral neuropathy consistent with her diabetes, but he clarified that he was only basing his opinion on circumstantial evidence — that in fact, there was no real evidence. Although Dr. Mouhanna found that the claimant had diminished ankle jerks bilaterally, and considered this a positive finding, Dr. Gran testified that absent ankle reflexion can be a normal finding on someone (Exhibit 30F, page 6).
(R. 24) (emphasis in original).
The ALJ also discussed the assessment completed by Dr. Mouhanna, noting:
The next physical limitations assessment in the record, dated March 4, 1999, was completed by Dr. Joseph Mouhanna, an anesthesiologist (Exhibit 24F). According to Dr. Mouhanna, he had been treating the patient since October 1998 (Exhibit 30F, page 4). In his opinion, the claimant could only lift/carry 3-5 pounds, occasionally. The form was not completed as to amount of weight the claimant could lift/carry frequently, nor were any medical findings provided (as requested) that support the assessment. The physician also stated that the claimant could not stand/walk for more than an hour at a time, and could sit no more than one hour at a time. Again, the physician did not state what medical findings supported his assessment. In addition, the medical source statement indicated that the claimant could never climb, balance, stoop, crouch or kneel. Once again, the physician left the form blank where it asked the physician to indicate the medical findings that supported his assessment. The physician noted environmental restrictions of heights, moving machinery, and temperatures. Despite the claimant's history of asthma, the physician found no restrictions for dust, fumes, or humidity. Said physician failed to provide information as to how these restrictions affect the claimant's activities, and failed to disclose the degree or severity of same. Once again, although counsel's form requested what medical findings support the assessment, none were provided. (Exhibit 24F, pages 2-5).
Based on the above analysis, the undersigned gives no weight to the medical source statement of Dr. Mouhanna. Not only are the opinions inconsistent with other evidence in the record, the physician failed to provide any degree of supporting explanations for his opinion.
(R. 27-28).
Ultimately, the ALJ found as follows:
The undersigned is in accord with Dr. Gran's opinion that the anesthesiologist's opinion was based only on subjective symptoms and essentially without objective findings in his notes. Accordingly, the residual functional capacity statement by the anesthesiologist is accorded limited weight, with the most weight being accorded to Dr. Gran's opinion. The undersigned is in accord with the limitations found by said medical expert/advisor.
(R. 28).
The opinion of a treating physician is entitled to substantial weight unless good cause exists for not heeding the treating physician's diagnosis. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580 (11th Cir. 1991). The treating doctor's report may be discounted if not accompanied by objective medical evidence; if wholly conclusory; if inconsistent with their own records or if the evidence supports a contrary finding. See, Lewis, 125 F.3d at 1440. The opinion of a physician who examines a Plaintiff on only one occasion should not be entitled to great weight. See, Crawford v. Commissioner, 363 F.3d 1155 (11th Cir. 2004).
This Court agrees with the Plaintiff that the ALJ erred in not giving proper weight to the opinion of treating physician, Dr. Mouhanna. The records of the visits by the Plaintiff to Dr. Mouhanna as well as the multiple operative records recounting nerve block and joint injections and the statement provided, as set out above, detail the symptoms claimed by the Plaintiff as well as the continuing severe pain, numbness and weakness. The ALJ's reliance on the failure by Dr. Mouhanna to fill in all of the spaces on the Medical Assessment form as a basis for discounting his opinion cannot stand in light of the information provided in the medical records and statement provided by Dr. Mouhanna. The ALJ erred in rejecting the findings by treating physician Dr. Mouhanna in favor of the determinations made by the non-examining Dr. Gran and in finding that the opinion was inconsistent with other evidence in the record. Additionally, this Court notes that the decision by the ALJ, as quoted above, is somewhat confusing since the ALJ states at one point that "no weight" would be given to the statement of Dr. Mouhanna, but also states that the opinion would be given "limited weight." (R. 28).
While error is present, this Court cannot find on the record that an award of benefits to the Plaintiff is required at this time. Accordingly, this Court recommends the decision by the ALJ be REVERSED and this cause REMANDED for further proceedings consistent with this Report and Recommendation.
III. CONCLUSION AND RECOMMENDATION
Based on the foregoing, the Court finds that the decision issued by the ALJ determining that the Plaintiff was not disabled is not supported by substantial evidence and that the correct legal standards were not applied. Therefore, it is the recommendation of this Court that the decision of the Commissioner be REVERSED AND REMANDED for further proceedings. Accordingly, the Motion for Summary Judgment filed by the Plaintiff (D.E. #12) should be GRANTED and the Motion for Summary Judgment filed by the Defendant (D.E. #15) should be DENIED.
Pursuant to Local Magistrate Rule 4(b), the parties have ten (10) days from service of this Report and Recommendation within which to serve and file written objections, if any, with the Honorable Shelby Highsmith, United States District Judge. Failure to file objections timely shall bar the parties from attacking on appeal the factual findings contained herein. Loconte v. Dugger, 847 F.2d 745 (11th Cir. 1988), cert. denied, 488 U.S. 958 (1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
DONE AND ORDERED.