Opinion
Case No: 6:20-cv-562-DCI
05-10-2021
SHANNON DOUGLAS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM AND DECISION
THIS CAUSE is before the Court on Claimant's appeal of an administrative decision denying her application for a period of disability and disability insurance benefits. In a decision dated March 21, 2019, the Administrative Law Judge (ALJ) found that Claimant had not been under a disability, as defined in the Social Security Act, from March 24, 2016 through the date of the decision. R. 26. Having considered the parties' memoranda and being otherwise fully advised, the Court concludes, for the reasons set forth herein, that the Commissioner's decision is due to be AFFIRMED.
I. Issues on Appeal
Claimant makes the following argument on appeal: the ALJ did not adequately evaluate a functional capacity evaluation (FCE) in relation to the Residual Functional Capacity (RFC). Doc. 15 at 11.
II. Standard of Review
As the Eleventh Circuit has stated:
In Social Security appeals, we must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards.
Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations and quotations omitted). "With respect to the Commissioner's legal conclusions, however, our review is de novo." Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).
III. Discussion
The ALJ found that Claimant had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) except:
She can frequently climb ramps and stairs; she can never climb ladders, ropes or scaffolds; she can frequently balance; she can occasionally stoop, kneel, crouch and crawl; she can occasionally operate foot controls with her bilateral lower extremities; she can frequently reach in all directions with her bilateral upper extremities; she must avoid concentrated exposure to extreme cold and work place hazards such as moving machinery, moving mechanical parts, and unprotected heights; she will need to alternate between sitting and standing every sixty minutes while remaining on task during the transition.R. 21.
Claimant complains that this RFC does not account for some of the limitations included within her FCE. Doc. 15 at 7. In August 2016, Shane Miller, CSCS and Carly Penhollow, DPT, ATC, conducted a FCE of Claimant which, in relevant part, indicates that Claimant was able to lift up to 10 pounds from the floor level and up to 15 pounds lifting/carrying from waist level to above the shoulder. R. 415. Also, the questionnaire portion of the same FCE answers in the affirmative that Claimant needs a job that permits shifting positions at will from sitting, standing, or walking, and she will "sometimes need to take unscheduled breaks during an 8-hour working day. R. 436.
The ALJ reviewed the FCE and found the following:
In a functional capacity assessment in August of 2016, it was noted that the claimant could work at the light exertion level, lifting up to twenty pounds one-third of the time. It was noted she had intermittent tolerance for prolonged standing or sitting, ranging from thirty to sixty minute intervals. It was noted she could perform limited repetitive stooping, overhead reaching or kneeling/squatting to standing. She could perform limited repetitive trunk rotation. She could lift up to ten pounds from floor level and fifteen pounds from waist level to above the shoulders. It was noted that she could pull up to fifty pounds and push up to sixty-five pounds. Ladder climbing was precluded. (Exhibit 8-F, page 46) Because this opinion is consistent with the record as a whole and because the opinion is based on a thorough evaluation of the claimant, significant weight has been placed on it.R. 22-23.
Claimant recognizes that the ALJ considered the opinion giving it "significant weight" but asserts that the ALJ committed error when he failed to add the shifting positions, lifting, and unscheduled breaks limitations within the RFC. Doc. 15 at 8. Claimant argues that the ALJ should have incorporated all of the limitations found in the FCE or, alternatively, explained why the limitations were not included as "unsupported." Id. at 9. Claimant asserts that the error was not harmless because the ALJ's hypothetical questions to the VE did not incorporate all limitations set forth in the FCE and the substantial evidence does not show that Claimant could maintain employment with the FCE's work restrictions. Id. at 15.
As an initial matter, the Court does not necessarily agree that the ALJ failed to include the FCE's restrictions regarding Claimant's need to shift positions. The questionnaire part of the FCE does include the "at will" language as Claimant describes, but the Functional Restrictions and Limitations section of the same FCE states that there is "intermittent tolerance of prolonged standing or sitting ranging 30-60 min intervals; variable." R. 415. The Recommendation and Accommodation section then states that Claimant should be "[a]llowed to changed [sic] positions freely if required to sit/stand for extended periods of time, minimal lifting, pushing or pulling." R. 416 (emphasis added). Additionally, the FCE reflects that Claimant reported an ability to sit 40 minutes and to stand 30 minutes but the "demonstrated duration" was 60 minutes for both sitting and standing. R. 434.
The FCE also reflects that Claimant demonstrated an interval of 30 minutes for sitting and standing. Mr. Miller and Ms. Penhollow noted that Claimant's demonstrated tolerance to sitting did not match her reported ability, but her demonstrated tolerance for standing matched her reported ability. R. 434. --------
So, while the box on the questionnaire section indicates that Claimant should be permitted to shift positions at will from sitting, standing, or walking, Mr. Miller and Ms. Penhollow gave specific findings regarding the restrictions and accommodations needed in this area which are consistent with the RFC. The Court does not agree that the ALJ did not include the limitation.
Further, even though the Functional Restrictions and Limitations section of the FCE discusses the 10-pound and 15-pound limitation, the actual summary regarding her lifting ability does not include this language. R. 415. Instead, Mr. Miller and Ms. Penhollow concluded in the "Lifting Ability Summary" section: "[Claimant's] occasional lifting capabilities are at a light physical demand category (PDC). R. 415. According to the US Department of Labor guidelines, Light work is defined as lifting 0-20 pounds 0-33% of the workday." R. 415. Based on this summary, the Court is not persuaded that the ALJ failed to consider the FCE with respect to Claimant's lifting when determining her RFC.
The same can be said for the unscheduled break language in the FCE. Again, the box is checked on the questionnaire, which is a part of the FCE, but Mr. Miller and Ms. Penhollow did not include that limitation in the Summary, Functional Restriction & Limitations, or Recommendations and Accommodations sections of the FCE. R. 415, 416, 436. The Court is not convinced that the ALJ did not take into consideration all of the limitations in the FCE in light of how Mr. Miller and Ms. Penhollow summarized their findings.
In any event, assuming that Claimant is correct that the FCE provided for these additional restrictions that are absent from the RFC, the Court finds that Claimant is not entitled to relief. The parties represent to the Court that Mr. Miller and Ms. Penhollow from the CORA Rehabilitation Clinic are physical therapists and are considered "other sources." Doc. 15 at 7, 8, 11. "In considering the severity of a claimant's impairments and functional limitations, there is a distinction between 'acceptable medical sources' and 'other sources.'" Mobley v. Comm'r of Soc. Sec., 2019 U.S. Dist. LEXIS 110669, at *16 (M.D. Fla. June 5, 2019), report and recommendation by, 2019 WL 2775551. "Acceptable medical sources are those sources that can provide evidence to establish a medically determinable impairment," such as licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. Curry v. Comm'r of Soc. Sec., 2015 WL 269039, at *4 (M.D. Fla. Jan. 21, 2015) (citing 20 C.F.R. § 404.1513(a); SSR 06-03p, 2006 WL 2329939). "'Other sources' are considered regarding the severity of a claimant's impairment and functional limitations." Id. (citing 20 C.F.R. § 404.1513(d); SSR-06-3p, 2006 WL 2329939).
"A physical therapist is an 'other source,' which 'must be taken into consideration in the assessment of the severity of Plaintiff's impairment and his functional limitations.'" Id. The records and opinions of a physical therapist "are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.'" Id. (citing Jemison v. Colvin, 2014 WL 4207739, at *9 (S.D. Ala. Aug. 25, 2014); 20 C.F.R. § 404.1513(d)). "The ALJ 'should explain the weight given to opinions from these other sources, or otherwise ensure that the discussion of the evidence. . . allows a claimant or subsequent reviewer to follow the [ALJ's] reasoning.'" Id. (quoting Turner v. Astrue, 2008 WL 4489933, at *14 (S.D. Ala. Sept. 30, 2008)).
Here, the ALJ assigned the weight accorded to the FCE and thoroughly discussed the physical therapists' findings and how the findings were adopted given the consistency with the remainder of the record. The ALJ was not required to give special deference to the FCE and he explained how the opinion was considered. The ALJ's decision as written on this issue does not preclude a meaningful judicial review.
This is especially true given the ALJ's discussion of Claimant's medical record and subjective complaints. In addition to the "other source" FCE, the ALJ considered and discussed Claimant's chiropractor's opinion assigning it little weight; the physical therapist's notes/observation regarding Claimant's lifting, carrying, and sitting which was not viewed to be a permanent or long-term restriction; and Claimant's complaints of back pain. R. 22.
Notably, the ALJ considered the record from the State Agency physicians and found the following:
I have considered the opinion of the State Agency physicians who reviewed this matter at the reconsideration determination level. (Exhibits 1-A and 3-A) The physician at the initial determination level was of the opinion the claimant is able to work at the light exertion level. (Exhibit 1-A, page 5) It was noted that she could frequently climb ramps and stairs, but never climb ladders, ropes, or scaffolds. It was noted that she could frequently balance and occasionally stoop, kneel, crouch, and crawl. It was noted that she should avoid concentrated exposure to extreme cold. (Exhibit 1-A, page 6) It was noted that she should avoid concentrated exposure to hazards such as machines and heights. (Exhibit 1-A, page 7) The same restrictions were identified by the State Agency physician at the reconsideration determination level. (Exhibit 3-A) Because these opinions are consistent with the record, as well as each other, and because these sources have program knowledge with respect to the criteria used by the Social Security Administration in making disability determinations, great weight has been placed on these opinions. I note that the residual functional capacity in this matter is not identical to these opinions and includes some additional limitations. The record as a whole, including the assessment by Shane Miller and Carly Penhollow, supports these additional restrictions. (Exhibit 8-F, page 46)R.23.
It is well-settled that the ultimate responsibility for determining a claimant's RFC, in light of the evidence presented, is reserved to the ALJ, not to the claimant's physicians or other experts. See 20 C.F.R. § 404.1546. "[T]he ALJ will evaluate a [physician's] statement [concerning a claimant's capabilities] in light of the other evidence presented and the ultimate determination of disability is reserved for the ALJ." Green v. SSA, 223 Fed.Appx. 915, 923 (11th Cir. 2007). "To find that an ALJ's RFC determination is supported by substantial evidence, it must be shown that the ALJ has 'provide[d] a sufficient rationale to link' substantial record evidence 'to the legal conclusions reached.'" Jones v. Colvin, 2015 WL 5737156, at *23 (S.D. Ala. Sept. 30, 2015) (quoting Ricks v. Astrue, 2012 WL 1020428, at *9 (M.D. Fla. Mar. 27, 2012)).
The ALJ discussed the medical evidence in detail, including the weight assigned to the physicians as well as Mr. Miller and Ms. Penhollow, and found that the restriction to light exertion work was based in part on Claimant's consistent complaints of backpain. R. 22. Having reviewed the evidence, the Court finds that the RFC assessment was supported by substantial evidence. See Adams v. Comm'r, 586 F.Appx. 531, 534 (11th Cir. 2014) ("[T]he ALJ did not err by failing to specifically address [claimant's] neurologist's opinion that she should avoid frequent overhead reaching, and that she needed to take 5-minute breaks every 45 minutes, as his written decision made clear that he considered both the neurologist's opinion and [claimant's] medical condition as a whole.").
IV. Conclusion
The Court does not make independent factual determinations, re-weigh the evidence or substitute its decision for that of the ALJ. Thus, the question is not whether the Court would have arrived at the same decision on de novo review; rather, the Court's review is limited to determining whether the ALJ's findings are based on correct legal standards and are supported by substantial evidence. Applying this standard of review, the Commissioner's decision is due to be affirmed.
For the stated reasons, it is ORDERED that:
1. The final decision of the Commissioner is AFFIRMED;
2. The Clerk is directed to enter judgment for Claimant and close the case.
DONE AND ORDERED in Orlando, Florida on May 10, 2021.
/s/_________
DANIEL C. IRICK
UNITED STATES MAGISTRATE JUDGE Copies furnished to: Counsel of Record
Unrepresented Parties