ORDER
This cause comes before the Court on the Complaint (Doc. No. 1) filed by Plaintiff on November 22, 2010, to appeal the final decision of the Commissioner of So
On February 10, 2012, the United States Magistrate Judge issued a report (Doc. No. 22) recommending that the decision of the Commissioner be reversed and the case be remanded. No objections have been filed. Therefore, it is ORDERED as follows:
1. The Report and Recommendation is CONFIRMED and ADOPTED as рart of this Order.
2. The decision of the Commissioner is REVERSED and the case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).
3. The Clerk of Court is directed to enter judgment in accordance with this order and thereafter close the file.
REPORT AND RECOMMENDATION
TO THE UNITED STATES DISTRICT COURT:
Yvette Lynna Kahle (the “Claimant”) appeals to the District Court from a final decision of the Commissioner of Social Security (the “Commissioner”) denying Claimant’s claim for benefits. See Doc. No. 1. On July 12, 2006, Claimant applied for disability benefits, alleging an onset of disability as of November 2, 2005, due to peripheral neuroрathy and high blood pressure. R. 244-52, 286, 293-95, 316-18. Claimant also has a significant history of alcohol dependence. R. 362-726. On February 11, 2010, the Administrative Law Judge (the “ALJ”) determined that Claimant is not disabled. R. 12-26. After the Appeals Council denied Claimant’s request for review, Claimant appealed the Commissioner’s final decision to the District Court. R. 1-4; Doc. No. 1.
On appeal, Claimant argues that the final decision should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) because the ALJ: 1) lack good cause to reject significant portions of Dr. Barber’s opinion regarding Claimant’s physical limitations; 2) erred by giving controlling weight to the opinion of a non-examining physician; 3) failed to include all of Claimant’s functional limitations in the ALJ’s residual functional capacity assessment (the “RFC”) and in the hypothetical question to the vocational expert (the “VE”); 4) impermissibly accepted the requirements of certain the jobs described by the VE, which conflict with their corresponding definitions in the Dictionary of Occupational Titles; and 5) failed to consider the side-еffects of Claimant’s medications on her ability to work. Doc. No. 18 at 2, 8-18. For the reasons more fully discussed below, it is recommended that the Commissioner’s decision be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) because the ALJ gave insufficient reasons for rejecting portions of Dr. Barber’s opinion and, therefore, the final decision is not supported by substantial evidence.
I. BACKGROUND.
The dispositive issue in this case is whether the ALJ erred by rejecting a portion of Dr. Barber’s opinion and, therefore, the Court will tailor the mediсal and administrative history to that issue. Claimant was born on May 2, 1968, and attended one year of college. R. 69, 244. Claimant has past relevant work experience as a restaurant cashier and waitress. R. 279.
The record does not contain any medical opinion regarding Claimant’s functional limitations from a treating physician, but it does contain three such opinions from con
A. Dr. Barber.
On May 30, 2007, Claimant was examined by Dr. Alvan Barber. R. 483-89. Dr. Barber is only examining physician to offer an opinion regarding Claimant’s physical limitations. Physical examination revealed “[pjositive upper extremity numbness and tingling in the hands,” and “[d]eep tendon reflexes [of] 0 in upper extremities bilaterally.” R. 485. However, muscle and grip strength in the upper extremities were normal. R. 485. Numbness and tingling were also present in the lower extremities with abnormal deep tendon reflexes. R. 485. Claimant’s fine and gross motor skills were intact. R. 485. Dr. Barber’s impressions were as follows:
1. Hx. of alcohol abuse, with associated liver pathology, neuropathy and possible other pathologies, with symptoms and sequel as per present medical history;
2. [High blood pressure];
3. Hepatitis A;
4. Anxiety disorder with panic attacks, on medication; [and]
5. Depression, not on medication.
R. 486. Dr. Barber opined that:
Physical examination reveals [Claimant could be limited in walking and standing for long periods. Claimant could be limited in lifting and carrying heavy objects. Symptoms could limit the [Claimant to activities that require the use of upper body movements and coordinated activities with hands.
R. 486. Thus, Dr. Barber opined that Claimant’s impairments could limit her in walking and standing for long periods, lifting and carrying heavy objections, in activities that require the use of upper body movements, and in coordinated activities with hands. R. 486.
B. Dr. Graham.
On April 19, 2007, Dr. Malcolm J. Graham, III, a clinical psychologist, conducted a consultative mental examination of Claimant. R. 465-68. Mental status examination revealed no indication of depression or anxious mood, appropriate affect, coherent thought process, proper orientation, and intact memory. R. 466-67. Dr. Graham notes that Claimant continues to work part-time as a waitress. R. 467. Dr. Graham’s diagnosed Claimant with the following:
Axis I: Alcohol dependence, not in remission, Marijuana abuse with a possibility of dependence;
Axis II: Anti-social personality disorder;
Axis III: Peripheral neuropathy;
Axis TV: None;
GAF Score 70-80.
R. 467. Dr. Graham opined that there “were no problems ... in attention or concentration and there were no problems noted in recent or remote memory. There were also no behavioral indications of anxiety, depression or of thоught disorder.” R. 468. Thus, Dr. Graham did not provide any mental functional limitations resulting from Claimant’s impairments. R. 467-68.
C. Dr. Parker.
On September 10, 2009, Claimant was examined by Dr. Julie L. Parker, a clinical psychologist. R. 636-43.
Axis I: Alcohol dependence, with physiological dependence, early partial remission, and bipolar disorder;
Axis II: Deferred;
Axis III: Peripheral Neuropathy, hypertension;
Axis IV: In residential treatment, history of drug-related incarceration, finanсial; and GAF Score: 50.
R. 640. Dr. Parker opined that:
[Prognosis is] fair. There are no physical or cognitive barriers to activities of daily living and independent living. However, she would assert that the chronic pain from the neuropathy significantly limits her ability to perform some basic care needs. In addition, concentration, persistence, and pace are disrupted by pain symptoms and the effects of medication. Social functioning is adversely affected by mental illness. [Claimant] seems open to receiving any treatment аnd level of care to address her psycholofical [sic] and substance abuse issues.
R. 640. Thus, Dr. Parker opined that there are no physical or cognitive barriers to Claimant’s activities of daily living, but Claimant’s concentration, persistence, and pace are disrupted by pain symptoms and the effects of medication. R. 640. Dr. Parker also completed a Medical Source Statement of Ability to Do Work-Related Activities (Mental) wherein she opined that Claimant’s ability to understand, remember, and cаrry out instructions are not affected by her impairments, but that symptoms related to bipolar disorder and substance abuse would affect her ability to interact appropriately with supervisors, coworkers, and the public, as well as responding to changes in routine work settings. R. 641-42.
D. Dr. Kronberger.
At the hearing before the ALJ on January 20, 2010, Dr. Carlos Kronberger, a clinical psychologist, testified based upon a medical records review. R. 36-63. Dr. Kronberger opined that Claimant should have a Global Assessment of Functioning Score of 55, whiсh is lower than the score provided by Dr. Graham and higher than the score provided by Dr. Parker. R. 42. Dr. Kronberger opined that Claimant does not meet a listing, she can perform simple, routine tasks, and she has marked difficulties maintaining concentration, persistence, and pace if consuming alcohol, and moderate limitations in that area if not consuming alcohol. R. 53-54. Dr. Kronberger testified that such limitations are a factor in reaching his opinion that Claimant can perform simple, routine tasks. R. 53. Dr. Kronberger disаgreed with Dr. Parker’s diagnosis of bi-polar disorder because “it’s too soon to tell if the [Claimant is able to maintain sobriety, whether she does have a significant mood disorder.” R. 54. Dr. Kronberger agreed with Dr. Graham that Claimant suffers from a personality disorder. R. 55. Dr. Kronberger did not provide a funetion-by-functional analysis of Claimant’s limitations.
II. ADMINISTRATIVE PROCEEDINGS.
At the January 20, 2010 hearing, Claimant testified that while she is able to write, it depends on how her hands are doing at the time. R. 69. Claimant stated that the primary reason that she cannot work is that she cannot stand on her feet and
On February 11, 2010, the ALJ issued a decision finding that Claimant is not disabled. R. 15-26. The ALJ made the following significant findings:
1. The [Claimant meets the insured status requirements of the Social Security Act through June 30, 2012;
2. The [CJlaimant has not engaged in substantial gainful activity since November 2, 2005, the alleged onset date;
3. The [CJlaimant has the following severe impairments: hypertension, peripheral neuropathy, bipolar disorder, and history of alcoholism;
4. The [CJlaimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments;
5. [TJhe [CJlaimant has the [RFCJ to perform unskilled, light work. She can lift/carry 20 pounds occasionally and 10 pounds frequently. She can stand/walk 6 hours and sit 6 hours in an 8-hour workday; however, she must be able to change positions every 30 minutes. She can frequently stoop, kneel, crоuch, and crawl; and occasionally climb and balance. She must avoid hazards and heights. She is limited to simple, routine, repetitive tasks;
6. The [CJlaimant is capable of performing her past relevant work as a cashier. This work does not require the performance of work related activities precluded by the [CJlaimant’s residual functional capacity;
7. [EJven if the [CJlaimant was restricted to sedentary work with the same non-exertional limitations, there are jobs available in significant numbers in the nationаl and regional economy that the [CJlaimant could perform; and
8. The [CJlaimant has not been under a disability ... from November 2, 2005 through the date of this decision.
R. 30-37. In his decision, the ALJ thoroughly reviewed the medical record, including the opinion evidence. R. 18-23. The ALJ gives “controlling weight” to Dr. Kronberger’s opinion because it “is supported by objective medical findings,” and “is consistent with the evidence of record when considered in its entirety.” R. 24. Regarding Dr. Barber’s opinion, the ALJ gives it “great weight,” but states:
The undersigned notes that Dr. Barber had thе opportunity to examine the [CJlaimant and that his opinion is someone [sic] consistent with the evidence of record. However, his opinion that the [CJlaimant has limitations regarding the use of upper body movements and coordinated activities with her hands is inconsistent with the evidence of record, including medical records and statements/ testimony from the [CJlaimant regarding activities of daily living.
R. 24 (emphasis added). Thus, although the ALJ gives Dr. Barber’s opinion great weight, he rejects that portion of Dr. Barber’s opinion regarding Claimant’s upper body limitаtions. R. 24.
Regarding Dr. Parker, although the ALJ accepted her opinion that Claimant
III. THE ISSUE.
As mentioned above, the dispositive issue in this case is whether the ALJ erred by rejecting a portion of Dr. Barber’s opinion regarding Claimant’s upper body limitations. Claimant maintains that the ALJ failed to give “explicit and adequate” reasons for rejecting that portion of Dr. Barber’s opinion. Doc. No. 18 at 12-13. Claimant also asserts that the opinion is actually consistent with both the medical record and Claimant’s testimony. Doc. No. 18 at 13. Claimant requests that the case be reversed and remanded for further proceedings pursuant to sentеnce four of Section 405(g). Doc. No. 18 at 18.
The Commissioner maintains that the ALJ articulated good reasons for rejecting his opinion that Claimant has limitations regarding the use of her upper body. Doc. No. 19 at 12. The Commissioner suggests that by stating that the opinion is “ ‘inconsistent with the evidence or [sic] the record, including medical records and statements/testimony from the [C]laimant regarding activities of daily living,’ ” the ALJ complied with the Eleventh Circuit’s requirement that an ALJ give explicit, well articulated reasons for rejecting an opinion. Doc. No. 19 at 12. The Commissioner then provides post hoc details in the record which support the ALJ’s finding. Doc. No. 19 at 12-13. The Commissioner requests that the case be affirmed.
IV. LEGAL STANDARDS.
A. THE ALJ’S FIVE-STEP DISABILITY ANALYSIS.
Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. See 20 CFR §§ 404.1520(a), 416.920(a). In Doughty v. Apfel,
In order to receive disability benefits, the claimant must prove at step one that he is not undertaking substantial gainful activity. At step two, the claimant must prove that he is suffering from a severe impairment or combination of impairments. At step three, if the claimant proves that his impairment meets one of the listed impairments found in Appendix 1, he will be considered disabled without consideration of age, education, and work experience. If the claimant cannot prove the existence of a listed impairment, he must prove at step four that his impairment prevents him from performing his past relevant work. At the fifth step, the regulations direct the Commissioner to consider the claimant’s residual functional capacity, age, education, and past work experience to determine whether the claimant can perform other work besides his past relevant work.
Id. (citations omitted). The steps are followed in order. If it is determined that
B. THE STANDARD OF REVIEW.
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., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater,
Where the Commissioner’s decision is supported by substantial evidence, the District Court will affirm, even if the reviewеr would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner’s decision. Edwards v. Sullivan,
C. REMEDIES.
Congress has empowered the District Court to reverse the decision of the Commissioner without remanding the cause. 42 U.S.C. § 405(g)(Sentence Four). To remand under sentence four, the District Court must either find that the Commissioner’s decision applied the incorrect law, fails to provide the court with sufficient reasoning to determine whether the proper law was applied, or is not supported by substantial evidenсe. Keeton v. Dep’t of Health & Human Serv.,
This Court may reverse the decision of the Commissioner and оrder an award of disability benefits where the Commissioner has already considered the essential evidence and it is clear that the cumulative effect of the evidence establishes disability without any doubt. Davis v. Shalala,
V. ANALYSIS.
Weighing the opinions and findings of treating, examining, and non-examining physicians is an integral part of the process for detеrmining disability. The ALJ may reject any medical opinion if the evidence supports a contrary finding. Sryock v. Heckler,
Good cause exists when the: “(1) treating physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.” Phillips v. Barnhart,357 F.3d 1232 , 1240-41 (11th Cir.2004) (citations omitted); see also Edwards v. Sullivan,937 F.2d 580 , 583 (11th Cir.1991); MacGregor v. Bowen,786 F.2d 1050 , 1053 (11th Cir.1986).
Johnson v. Barnhart,
While the opinion of a one-time examining physician may not be entitled to deference, especially when it contradicts the opinion of a treating physician, the opinion of an examining physician is generally entitled to more weight than the opinion of a non-examining physician.
In this case, Dr. Barber was the only examining physician to offer an opinion regаrding Claimant’s physical limitations. Dr. Barber examined Claimant and found positive numbness and tingling in the upper and lower extremities and poor reflexes. R. 485-486. Based upon his examination, Dr. Barber opined that Claimant’s impairments could limit the use of upper body movements and coordinated activities with the hands. R. 486. In rejecting that portion of Dr. Barber’s opinion, the ALJ offers only the conclusory statement that Dr. Barber’s opinion is “inconsistent with the evidence of record, including medical records and statements/testimony frоm the [Claimant regarding activities of daily living.” R. 24. The ALJ does not articulate how the opinion is inconsistent the medical record or with which particular statements regarding Claimant’s activities of daily living. R. 24.
In Monte v. Astrue, Case No. 5:08-cv-101-Oc-GRJ,
When assessing the Plaintiffs impairments, the ALJ was required to make “specific and well-articulated findings ...” [b]ecause an ALJ is not permitted to substitute his judgment for that of the medical experts, the ALJ cannot reject portions of a medical opinion without providing an explanation for such a decision. Where an ALJ fails to suffiсiently explain how he reached his decision, the Court may not speculate.
Id. (quoting Walker v. Bowen,
The Court has considered whether the ALJ’s error is harmless. Given that there are no opinions from treating physicians, Dr. Barber was the only examining physician to offer an opinion regarding Claimant’s physical functional limitations, and that he offered an opinion which, if accepted, would necessarily reduce Claimant’s RFC, the Court cannot find that the ALJ’s error was harmless.
VI. CONCLUSION.
Based on the forgoing, the undersigned recommends that the Court:
1. REVERSE and REMAND the final decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) because the decision is not supported by substantial evidence;8 and
2. Direct the Clerk to enter judgment in favor of the Claimant and to close the case.
Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
Recommended in Orlando, Florida on February 10, 2012.
Notes
. In the decision, the ALJ occasionally refers to Dr. Parker as "Dr. Merilson." R. 22, 25. Although the examination of Claimant and resulting opinion were conducted and prepared by Dr. Parker, Dr. Merilson’s name is
. In the preceding paragraph, ALJ also states that "the record does not contain any opinions from treating or examining physicians indicating that ... she has limitations greater than those determined in this decision." R. 24.
. The Court also notes that while the ALJ gave Dr. Kronberger’s opinion controlling weight, he clearly did not accept Dr. Kronberger’s opinion that it was too early to determine whether Claimant had bipolar disorder.
. On remand under sentence fоur, the ALJ should review the case on a complete record, including any new material evidence. Diorio v. Heckler,
. The Regulations maintain that the administrative law judges “will always give good reasons in [their] ... decision for the weight [they] give [a] treating source's opinion.” 20 C.F.R. § 404.1527(d)(2).
. In Venette,
. The Court also notes that the ALJ's opinion is inconsistent because he states that no physician has offered any opinion with limitations greater than those found by the ALJ, but in the following paragraph the ALJ rejects the greater limitations offered by Dr. Barber. R. 24.
. Because the undersigned recommends that the Court find that the final decision of the Commissioner is not supported by substantial evidence, it is unnecessary to address the other issues raised by the Claimant.