stating the court must scrutinize the entire record to determine the reasonableness of the Commissioner’s factual findings
How later courts described this case
- stating the court must scrutinize the entire record to determine the reasonableness of the Commissioner’s factual findings
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DANIEL REINERT,
Plaintiff,
v. Case No. 3:18-cv-405-J-MCR
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying his application for a period of disability and disability insurance
benefits (“DIB”). Following an administrative hearing held on February 23, 2017,
the assigned Administrative Law Judge (“ALJ”) issued a decision, finding Plaintiff
not disabled from September 13, 2014, the alleged amended disability onset
date, through April 20, 2017, the date of the decision.2 (Tr. 12-73.) Based on a
review of the record, the briefs, and the applicable law, the Commissioner’s
decision is REVERSED and REMANDED.
I. Standard of Review
The scope of this Court’s review is limited to determining whether the
1 The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 11.)
2 Plaintiff had to establish disability on or before December 31, 2018, his date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 15.)
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). 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 evidence
preponderates 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 evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
II. Discussion
Plaintiff argues that the ALJ erred by discounting Plaintiff’s need for a cane,
by substituting her opinion for Dr. Warren Groff’s opinion regarding the need for a
cane, and by improperly excluding the need for a cane from the hypothetical
question to the vocational expert (“VE”). Plaintiff urges the Court to “remand this
2
case for an additional hearing to evaluate the need for a cane and the vocational
impact of the need for a cane.” (Doc. 13 at 10.) Defendant responds that the
ALJ applied the correct legal standards and her decision is supported by
substantial evidence. The Court finds that the ALJ’s decision is not supported by
substantial evidence and, therefore, remands the case for further proceedings.
A. Standard for Evaluating Opinion Evidence and Subjective
Symptoms
The ALJ is required to consider all the evidence in the record when making
a disability determination. See 20 C.F.R. § 404.1520(a)(3). With regard to
medical opinion evidence, “the ALJ must state with particularity the weight given
to different medical opinions and the reasons therefor.” Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Substantial weight must be
given to a treating physician’s opinion unless there is good cause to do otherwise.
See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
“‘[G]ood 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).
When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless weigh the medical opinion based on: (1) the length of the
treatment relationship and the frequency of examination, (2) the nature and
3
extent of the treatment relationship, (3) the medical evidence supporting the
opinion, (4) consistency of the medical opinion with the record as a whole, (5)
specialization in the medical issues at issue, and (6) any other factors that tend to
support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6).
Although a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d 513, 518
(11th Cir. 1984) (per curiam), 20 C.F.R. § 404.1527(c)(2), “[t]he opinions of state
agency physicians” can outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted,” Cooper v. Astrue, No. 8:06-cv-1863-
T-27TGW, 2008 WL 649244, *3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ may
reject any medical opinion if the evidence supports a contrary finding.”
Wainwright v. Comm’r of Soc. Sec. Admin., No. 06-15638, 2007 WL 708971, *2
(11th Cir. Mar. 9, 2007) (per curiam). See also Sryock v. Heckler, 764 F.2d 834,
835 (11th Cir. 1985) (per curiam) (same).
“The ALJ is required to consider the opinions of non-examining state
agency medical and psychological consultants because they ‘are highly qualified
physicians and psychologists, who are also experts in Social Security disability
evaluation.’” Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. May 2, 2008)
(per curiam); see also SSR 96-6p (stating that the ALJ must treat the findings of
State agency medical consultants as expert opinion evidence of non-examining
sources). While the ALJ is not bound by the findings of non-examining
4
physicians, the ALJ may not ignore these opinions and must explain the weight
given to them in his decision. SSR 96-6p.
When a claimant seeks to establish disability through his own testimony of
pain or other subjective symptoms, the Eleventh Circuit’s three-part “pain
standard” applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per
curiam). “If the ALJ decides not to credit such testimony, he must articulate
explicit and adequate reasons for doing so.” Id.
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.
Id.
Once a claimant establishes that his pain is disabling through “objective
medical evidence from an acceptable medical source that shows a medical
impairment that could reasonably be expected to produce the pain or other
symptoms, pursuant to 20 C.F.R. § 404.1529(a), “all evidence about the intensity,
persistence, and functionally limiting effects of pain or other symptoms must be
considered in addition to the medical signs and laboratory findings in deciding the
issue of disability,” Foote, 67 F.3d at 1561. See also SSR 16-3p3 (stating that
after the ALJ finds a medically determinable impairment exists, the ALJ must
3 SSR 16-3p rescinded and superseded SSR 96-7p, eliminating the use of the
term “credibility,” and clarifying that “subjective symptom evaluation is not an
examination of an individual’s character.” SSR 16-3p.
5
analyze “the intensity, persistence, and limiting effects of the individual’s
symptoms” to determine “the extent to which an individual’s symptoms limit his or
her ability to perform work-related activities”).
As stated in SSR 16-3p:
In considering the intensity, persistence, and limiting effects of an
individual's symptoms, [the ALJ must] examine the entire case
record, including the objective medical evidence; an individual’s
statements about the intensity, persistence, and limiting effects of
symptoms; statements and other information provided by medical
sources and other persons; and any other relevant evidence in the
individual’s case record.
In evaluating an individual’s symptoms, it is not sufficient for our
adjudicators to make a single, conclusory statement that “the
individual's statements about his or her symptoms have been
considered” or that “the statements about the individual’s symptoms
are (or are not) supported or consistent.” It is also not enough for
our adjudicators simply to recite the factors described in the
regulations for evaluating symptoms.* The determination or decision
must contain specific reasons for the weight given to the individual’s
symptoms, be consistent with and supported by the evidence, and
be clearly articulated so the individual and any subsequent reviewer
can assess how the adjudicator evaluated the individual’s symptoms.
In evaluating an individual’s symptoms, our adjudicators will not
assess an individual's overall character or truthfulness in the manner
“These factors include: (1) a claimant’s daily activities; (2) the location, duration,
frequency, and intensity of the claimant’s pain or other symptoms; (3) any precipitating
and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any
medication taken to alleviate the claimant’s pain or other symptoms; (5) any treatment,
other than medication, received by the claimant to relieve the pain or other symptoms;
(6) any measures (other than treatment) used to relieve the pain or other symptoms
(e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping
on a board); and (7) any other factors concerning the claimant's functional limitations
and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 16-
3p.
typically used during an adversarial court litigation. The focus of the
evaluation of an individual’s symptoms should not be to determine
whether he or she is a truthful person. Rather, our adjudicators will
focus on whether the evidence establishes a medically determinable
impairment that could reasonably be expected to produce the
individual’s symptoms and given the adjudicator’s evaluation of the
individual’s symptoms, whether the intensity and persistence of the
symptoms limit the individual’s ability to perform work-related
activities[.]
SSR 16-3p.
“[A]n individual’s attempts to seek medical treatment for symptoms and to
follow treatment once it is prescribed” will also be considered “when evaluating
whether symptom intensity and persistence affect the ability to perform work-
related activities.” Id. “[I]f the frequency or extent of the treatment sought by an
individual is not comparable with the degree of the individual’s subjective
complaints, or if the individual fails to follow prescribed treatment that might
improve symptoms, [the adjudicator] may find the alleged intensity and
persistence of an individual’s symptoms are inconsistent with the overall evidence
of record.” Id. However, the adjudicator “will not find an individual’s symptoms
inconsistent with the evidence in the record on this basis without considering
possible reasons he or she may not comply with treatment or seek treatment
consistent with the degree of his or her complaints.” Id. In considering an
individual’s treatment history, the adjudicator may consider, inter alia, one or
more of the following:
• That the individual may have structured his or her activities to
7
minimize symptoms to a tolerable level by avoiding physical
activities or mental stressors that aggravate his or her
stressors;
• That the individual may receive periodic treatment or
evaluation for refills of medications because his or her
symptoms have reached a plateau;
• That the individual may not agree to take prescription
medications because the side effects are less tolerable than
the symptoms;
• That the individual may not be able to afford treatment and
may not have access to free or low-cost medical services;
• That a medical source may have advised the individual that
there is no further effective treatment to prescribe or
recommend that would benefit the individual;
• That due to various limitations (such as language or mental
limitations), the individual may not understand the appropriate
treatment for or the need for consistent treatment.
Id.
B. The ALJ’s Decision
At step two of the five-step sequential evaluation process, the ALJ found
that Plaintiff had the following severe impairments: degenerative disc disease,
hypertension, obesity, and affective disorder. (Tr. 17.) Then, the ALJ found that
Plaintiff had the RFC to perform light work5 as follows:
He is able to occasionally lift and carry 20 pounds, and he can
frequently lift and carry 10 pounds. He can sit or stand for eight
hours each. He needs to alternate his body posture every 30
minutes. He can walk for four hours. He cannot climb ropes,
ladders or scaffolds. He can occasionally climb ramps and stairs,
and he can occasionally perform the remaining postural activities.
5 By definition, light work involves lifting no more than twenty pounds at a time
with frequent lifting or carrying of objects weighing up to ten pounds; it requires a good
deal of walking or standing, or sitting most of the time with some pushing and pulling of
arm or leg controls. 20 C.F.R. § 404.1567(b); SSR 83-10.
8
There are no restrictions to the use of his upper extremities. He
cannot have any exposure to heights and vibrations. He is limited to
simple 1-2 step, unskilled tasks.
(Tr. 19.)
In making this finding, the ALJ discussed, inter alia, Plaintiff’s subjective
complaints, the objective medical findings, the treatment records, and the opinion
evidence. (Tr. 20-26.) The ALJ noted Plaintiff’s testimony that “he ha[d] used a
cane for two years,” that “he use[d] an electric cart at the store or a wheel chair,”
that he was “often in pain,” and that he needed “to lie down to relieve [the] pain.”
(Tr. 20.) The ALJ stated:
The claimant said he could walk 10 minutes with his cane. He said
he could not stand because it [was] very difficult. He said he could
sit for 20 minutes. The claimant said he could lift and carry 10-15
pounds. The claimant said he [got] relief from his pain medications.
(Id.) After considering Plaintiff’s complaints, the ALJ found that Plaintiff’s
statements concerning the intensity, persistence, and limiting effects of his
symptoms were “not entirely consistent with the medical evidence and other
evidence in the record.” (Id.)
The ALJ also considered Plaintiff’s examination findings and results from
objective diagnostic tests as follows:
On July 15, 2014, . . . [Plaintiff’s] gait was abnormal. . . . There were
spasms and tenderness in the lumbar spine. . . .
On August 13, 2014, an MRI of the cervical spine revealed at T3-4, a
disc herniation and a protruding C3-4 intervertebral disc. (Ex. 5F)
An MRI of the lumbar spine done on August 13, 2014 revealed disc
protrusions on the left side at the L2-3 levels and a left side[d]
9
subarticular disc herniation at L4-5. (Ex. 5F)
. . .
Electrodiagnostic studies of the claimant’s lower extremities done on
February 1, 2016 were abnormal and were consistent with chronic
radiculopathy involving the left L5 and to a lesser degree S1 root.
(Ex. 18F) Weight is accorded to the finding of left sided
radiculopathy.
An imaging study of the claimant’s lumbar spine done on February
21, 2015 revealed multilevel degenerative changes of the thoracic
spine, most pronounced at T3-T4 and a stable, benign left intercostal
lipoma. (Ex. 11F)
On February 28, 2015, the claimant was admitted to the hospital
after reporting pain going down his legs. The claimant said he could
not walk. A pulse could not be felt in one foot while the claimant was
in the emergency room. . . . The claimant was able to walk with a
cane. . . . Great weight is accorded to the finding that the claimant
was able to walk with a cane and to the lumbar x-rays that did not
document any new findings.
On March 6, 2015, the claimant had a follow up appointment with his
primary care physician, Dr. Groff. The claimant reported severe left
hip pain and anxiety. . . . He said the Nucynta relieved his pain for
three hours. . . . There was decreased range of motion in the left hip.
The claimant’s gait was antalgic, and he used a quadripod cane in
the left hand. . . . Dr. Groff prescribed Fentanyl patches and
lorazepam. Dr. Groff prescribed a wheelchair and a cane. (Ex.
16F/56)
A myelogram of the claimant’s lumbar spine done on March 18, 2015
revealed a prior posterior fusion at L5-S1 without evidence of
hardware complication. A CT of the lumbar spine revealed post-
surgical changes status post L5-S1 discetomy, interbody fusion and
posterior fusion without evidence of hardware complications. (Ex.
11F)
. . .
On December 21, 2015, . . . Mr. Reinert reported leg pain,
numbness, tingling and weakness. . . . He had reduced strength in
the lower extremities. The claimant walked with a cane, favoring the
left leg. . . . Great weight is accorded to the mostly normal muscle
testing.
10
. . . Dr. Tavanaiepour informed the claimant that no neurosurgical
intervention was warranted. The claimant was referred to pain
management. (Ex. 12F)
. . .
On December 14, 2016, . . . [t]he claimant requested a spinal cord
trial. . . . He appeared to be in mild distress and moved slowly and
hesitantly. He walked with a slight limp. . . . There was moderate,
diffuse generalized tenderness in the lumbar spine. . . .
On January 25, 2017, . . . [t]he claimant walked with a straight cane,
but the remainder of the physical exam was normal.
. . .
On June 6, 2016, the claimant participated in a psychological
evaluation with Lu Griz, Psy.D. The claimant needed a
psychological evaluation to determine his eligibility for an electrical
stimulator. The claimant said he was in extreme pain 24 hours a day
despite taking pain medications and using pain patches. . . . He said
it was difficult for him to watch his grandchildren because of pain and
physical difficulties. The claimant fidgeted during the evaluation. He
seemed to be in pain and had a difficult time moving or sitting for any
length of time.
(Tr. 20-24.)
As to the opinion evidence, the ALJ gave little weight to Dr. Groff’s January
25, 2017 Physical Capacities Evaluation. (Tr. 24, 519–23.) The ALJ stated:
[Dr. Groff] opined that the claimant could lift and carry five pounds for
two hours.6 Dr. Groff said the claimant could stand and walk for less
than two hours in an eight-hour workday and could sit for less than
six hours in an eight-hour workday. He said the claimant was limited
in pushing and pulling. Dr. Groff opined that the claimant could not
crouch or crawl but could occasionally perform the remaining
postural activities. Dr. Groff said the claimant should avoid all
6 While not very legible, Dr. Groff’s Physical Capacities Evaluation seems to
indicate that Plaintiff could occasionally lift and/or carry five pounds for two minutes, not
two hours as stated by the ALJ, and frequently lift and/or carry one to two pounds for
two minutes. (Tr. 519.) Dr. Groff also indicated that Plaintiff must periodically alternate
sitting and standing to relieve the pain or discomfort. (Id.)
11
exposure to extreme heat and hazards and should avoid even
moderate exposure to the remaining environmental conditions. He
said the claimant would need to lie down two or three times an hour.
Dr. Groff opined that the claimant could not perform sedentary work
on a regular and continuing basis. He said if the claimant were
employed, he would miss four to five days of work a month. (Exs.
15F, 16F/4)
(Id.) The ALJ gave Dr. Groff’s opinions little weight because:
The reported findings and limitations are inconsistent with Dr. Groff’s
treatment notes, which show treatment for routine primary care
issues. Although the claimant reported back pain and was referred
to pain management, the exams were mostly normal. See Exs.
4F/10, 17, 16F/1, 12, 25. Although the claimant consulted
neurosurgeons and pain specialists, these doctors did not impose
work preclusive limitations[] (Exs. 8F, 10F, 12F, 14F). Dr. Groff’s
opinion was sought for the purpose of this application and is
inconsistent with the record as a whole.
(Tr. 24.)
The ALJ gave significant weight to Dr. Robert Steele’s January 20, 2015
non-examining opinion that Plaintiff could perform a reduced range of light work.
(Tr. 23, 96-98.) The ALJ explained that Dr. Steele’s opinion was “consistent with
the clinical exams, objective imaging studies and electrodiagnostic testing.” (Tr.
23 (citing Exs. 4F/17, 5F, 11F, 12F, 14F, 18F).)
The ALJ concluded that the RFC assessment was “supported by the
medical evidence of record, some of the opinions, and the following additional
factors”:
[T]he clinical exams, objective imaging studies, and electrodiagnostic
studies are inconsistent with a finding that the claimant is disabled
and unable to work. See Exs. 4F/17, 5F, 11F, 12F, 14F, 18F.
12
On May 2, 2013, Dr. Groff examined the claimant for a DOT exam
and certified the claimant’s health and fitness for two years[] (Ex.
4F/10). The claimant said he could not work because of his physical
condition and the effects of his pain medications. However, the
claimant told Dr. Groff that there were no pain medication side
effects[] (Ex. 16F/12, 47). . . .
The claimant is able to drive, and he is able to shop in stores. He
said he does some small chores. The claimant told Dr. Knox that he
went to the beach and cared for a grandchild on Saturdays[] (Ex.
7F). In June 2016, the claimant told Dr. Griz that he watched his
grandchildren[] (Ex. 13F). The claimant’s activities of daily living are
consistent with the finding that he can perform a reduced range of
light work as described in the [RFC].
The claimant reported using a cane, and the record shows that Dr.
Groff prescribed a wheelchair and a cane. Some weight is given to
this but it is also noted that doctors often prescribe equipment or
medications because the patient requests these items and not based
on independent assessment that their patients need the items.
Pursuant to SSR 96-9p, to find that a hand-held assistive device is
medically required, there must be medical documentation
establishing the need for a hand-held assistive device to aid in
walking or standing, and describing the circumstances for which it is
needed (i.e., whether all the time, periodically, or only in certain
situations; distance and terrain; and any other relevant information).
The adjudicator must always consider the particular facts of a case.
For example, if a medically required hand-held assistive device is
needed only for prolonged ambulation, walking on uneven terrain, or
ascending or descending slopes, the unskilled sedentary
occupational base will not ordinarily be significantly eroded.
I find that the claimant is able to perform a reduced range of light
work as described in the [RFC]. Additionally, the record does not
support a finding that the claimant’s use of a cane meets the
requirements of SSR 96-9p.
(Tr. 25-26.) The ALJ determined that while Plaintiff was unable to perform any
13
past relevant work, he was able to perform the requirements of representative
occupations, such as a parking lot cashier, a gate attendant, and a mail sorter.
(Tr. 26-27.)
C. Analysis
The Court agrees with Plaintiff that the ALJ improperly discounted Dr.
Groff’s opinions, including the need for a cane, and the ALJ’s RFC assessment is
not supported by substantial evidence. First, although the ALJ stated that Dr.
Groff was treating Plaintiff for routine primary care issues, the record
demonstrates that in addition to such issues, Dr. Groff was regularly treating
Plaintiff for chronic pain, referring him to appropriate specialists, including
neurosurgeons, when necessary.
The ALJ also stated that Plaintiff’s examinations were “mostly normal.” (Tr.
24.) While this may be true for pre-onset date examinations and, to some extent,
for a few more recent examinations (Tr. 437, 527,7 538, 548, 559, 562,8 567, 569-
70, 572-76, 585), Dr. Groff’s treatment notes were nevertheless consistent with
Plaintiff’s complaints of disabling symptoms and with the record as a whole.
The examinations consistently reflected moderate to severe pain levels and
7 On that visit, Plaintiff was “ambulatory with support of straight cane in [his] left
hand.” (Tr. 527.)
8 On that visit, Dr. Groff assessed left hip pain, left sciatica, and chronic low back
pain, and noted that Plaintiff would be referred for a second neurosurgical opinion to
address his symptoms. (Tr. 562.)
14
some adverse side effects from medications.9 (See Tr. 496 (reporting “extreme
pain 24 hours a day in spite of pain medications and wearing pain patches”); Tr.
580 & 603 (reporting severe left hip pain level of 8 on a scale of 0 to 10); Tr. 418
(reporting a pain level of 7 on a scale of 0 to 10); Tr. 420-21, 437, 452 & 458
(reporting a pain level of 6 on a scale of 0 to 10); Tr. 484, 501 & 526 (reporting a
pain level of 5 on a scale of 0 to 10); Tr. 490, 560, 574 & 579 (reporting a pain
level of 4 on a scale of 0 to 10, despite utilizing Nucynta and a Fentanyl patch);
but see Tr. 537 (noting a pain level of 3 on a scale of 0 to 10).) On some visits,
Plaintiff moved slowly and hesitantly and/or with a limp. (Tr. 501, 508-09.) He
also used a cane for ambulation due to the pain, which was prescribed by Dr.
Groff. (Tr. 582; see also Tr. 482, 488, 493, 522, 527, 592; cf. Tr. 603 (noting that
Plaintiff “was not being given his pain medications and not being allowed to
ambulate with his cane which caused acute increase in his chronic back pain”).)
His symptoms were exacerbated by sitting, standing, walking, climbing stairs,
bending, and twisting, among others. (Tr. 420, 451, 458, 466, 500, 595.) The
pain interfered with his daily activities and his sleep. (Tr. 418, 420, 422, 454-55,
460.)
Plaintiff was diagnosed with, inter alia, chronic low back pain with left-sided
sciatica, lumbar spine radiculopathy, and left foot pain, numbness, tingling, and
9 Plaintiff reported sweating, dizziness, and muscle weakness with the use of
Fentanyl. (Tr. 51, 501, 508.) For that reason, he was switched to morphine. (Tr. 51.)
15
weakness. (See, e.g., Tr. 418, 452, 483-84, 488-89, 592, 604, 617.) His
examinations showed, inter alia: back, arm, and leg pain; extremity weakness,
tingling, and numbness; abnormal gait; musculoskeletal swelling, spasm, and
tenderness; arthritis; a positive Spurling’s test; and a decreased range of motion
in the left hip. (Tr. 421, 459, 467, 485, 490-91, 493, 502, 509, 551, 579, 582,
595-97.) After his lumbar spinal fusion in 2001, Plaintiff underwent a number of
epidural steroid injections without relief. (See Tr. 418-20, 454-55, 457, 461, 466.)
He was also treated with bed rest, anti-inflammatory medications, and pain
medications. (Tr. 466.) His treatment notes reflect that he failed conservative
treatment, including activity modification, ice, heat, medications, and physical
therapy. (Tr. 418, 422, 454-55, 457, 460.) Plaintiff was referred for a trial of a
spinal cord stimulator. (Tr. 483.) Although he was initially approved for the trial,
he had to go through the approval process again when his insurance coverage
changed.10 (Tr. 500.)
The results of the diagnostic studies were consistent with Plaintiff’s
complaints and treatment regimen. (See, e.g., Tr. 469 (noting “significant
degenerative disease”).) For example, a lumbar MRI from August 13, 2014
showed disc protrusions on the left side at L2-3 and L3-4, and a left-sided
subarticular disc herniation at L4-5. (Tr. 426-27, 466 (describing the disc bulge at
10 With that process underway, Plaintiff was scheduled for a neurosurgical
consultation on January 17, 2017. (Tr. 500.)
16
L3-4 and L4-5 as “significant”).) A cervical MRI from the same date showed a
disc herniation at T3-4 and a “[p]rotruding C3-4 intervertebral disc demonstrating
eccentricity to the left.” (Tr. 428-29. ) A thoracic MRI from February 21, 2015
showed multilevel degenerative changes, most pronounced at T3-T4, and partial
visualization of a stable, benign, left intercostal lipoma. (Tr. 475.) A CT scan of
the lumbar spine from February 27, 2015 showed posterior spinal fusion at L5-
S1.11 (Tr. 606.) Finally, an EMG with nerve conduction study from February 1,
2016 was abnormal and showed “changes consistent with a chronic
radiculopathy involving the left L5 and to a lesser degree S1 root.” (Tr. 616.) The
report stated:
Changes seen on this study may correlate with the patient’s back
and left lower extremity pain. During the course of the study,
however, the patient also reported loss of sensation in the perineal
area . . . . He also stated that occasionally both legs will shake
involuntarily. . . . I would wonder on the basis of the patient’s
additional symptoms if there may be more higher [sic] involvement of
the lumbar spine possibly compromising the level of the conus. I
advised the patient to recontact the referring neurosurgeons for
further evaluation.
(Id.)
In light of these results and his regular treatment of Plaintiff, Dr. Groff
11 A lumbar myelogram from March 18, 2015 showed status post posterior fusion
at L5-S1 without evidence of hardware complication and no myelographic block. (Tr.
473.) A lumbar CT post myelogram from March 18, 2015 showed post-surgical
changes status post L5-S1 discectomy, interbody fusion, and posterior fusion without
evidence of hardware complication; no myelographic block; and mild multilevel
degenerative changes of the lumbar spine. (Tr. 477-78.)
17
prescribed a cane and a wheelchair, and opined that Plaintiff would be unable to
perform even sedentary work on a regular and continuing basis.12 (Tr. 522, 582.)
While the ALJ points out that Plaintiff’s neurosurgeons did not impose work
preclusive limitations, these specialists worked in conjunction with Dr. Groff who
was in a better position to impose such limitations given his regular and
continuous treatment of Plaintiff’s chronic conditions. Further, the fact that Dr.
Groff’s Physical Capacities Evaluation was used to assist in Plaintiff’s disability
application in no way undermines his opinions, which, as shown above, were not
inconsistent with the treatment records, the objective findings, and the record as
a whole.
Moreover, the ALJ’s findings regarding Plaintiff’s need for a cane seem
inconsistent. Throughout her decision, the ALJ acknowledged that Plaintiff was
prescribed a cane and was using one regularly, including at the hearing before
the ALJ. (Tr. 21-26, 37.) The ALJ gave some weight to the fact that Plaintiff was
using a cane. (Tr. 25.) Further, the ALJ accorded great weight to the finding that
Plaintiff was able to walk with a cane after he was admitted to the hospital on
February 28, 2015 with pain going down his legs, no pulse in his foot, and
12 It appears that the ALJ either overlooked or mis-characterized Dr. Groff’s
opinion that Plaintiff could occasionally lift and/or carry five pounds for two minutes and
frequently lift and/or carry one to two pounds for two minutes, when the ALJ stated that
Plaintiff could do so for two hours. (Compare Tr. 24 with Tr. 519.) This factual
inconsistency with the record further undermines the ALJ’s findings as to Dr. Groff’s
opinions and her RFC assessment as a whole.
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inability to walk upon admission. (Tr. 21.) Yet, in her RFC assessment, the ALJ
apparently ignored the need for a cane, reasoning that “doctors often prescribe
equipment . . . because the patient requests [it] and not based on independent
assessment that their patients need [it].” (Tr. 25.) To the extent the ALJ found
this to be the case here, her finding is not supported by substantial evidence.
Plaintiff’s prescription for, and use of, a cane is well documented in the
record. (See Tr. 482, 488, 493, 522, 527, 582, 592.) Moreover, Plaintiff’s need
for a cane is also supported by the record due to the chronic pain in his back, hip,
and lower extremities, as well as the numbness and weakness in his lower
extremities. (See Tr. 488, 493, 580-82, 603; see also Tr. 58-59 (stating that Dr.
Groff thought it was a good idea for Plaintiff to use a cane and a wheelchair); Tr.
65 & 443 (“I can’t stand but a few minutes[.]”); Tr. 497 (stating that Plaintiff “was
in pain and had a difficult time moving or sitting for any length of time”); Tr. 64-65
(testifying that Plaintiff could walk about ten minutes with his cane, but he did not
need it in his house because it was small).) When Dr. Groff prescribed a cane
and a wheelchair on March 6, 2015 after evaluating Plaintiff for severe left hip
pain, he noted that Plaintiff’s gait was antalgic, the left hip range of motion was
decreased with pain, the new pain medicine had not adequately helped his
severe pain, and Plaintiff needed to follow up with a neurosurgeon regarding his
back and hip pain. (Tr. 580-82.)
Of note, Dr. Groff’s prescription on March 6, 2015 came soon after
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Plaintiff’s February 28, 2015 admission to Memorial Hospital where Plaintiff
presented with “intractable back pain radiating into the left leg” with weakness
and numbness in his left lower extremity and diminished dorsalis pedis pulses
bilaterally. (Tr. 603-04.) During the same admission, it was noted that Plaintiff
suffered “acute increase in his chronic back pain” due, in part, to “not being
allowed to ambulate with his cane” at the facility from which he was transferred.
(Tr. 603.) Based on the foregoing, the ALJ’s findings regarding Plaintiff’s need
for a cane appear somewhat inconsistent and unsupported by substantial
evidence.
Further, the ALJ’s RFC assessment is not supported by substantial
evidence. As shown above, the ALJ did not provide good reasons, supported by
substantial evidence, for discounting Dr. Groff’s opinions. To the extent the ALJ
relied on Dr. Steele’s January 20, 2015 non-examining opinions, those opinions
predated a substantial part of the medical record, including several diagnostic test
results from February and March of 2015, an EMG study from February 2016,
and Dr. Groff’s Physical Capacities Evaluation from January 2017. Finally, to the
extent the ALJ relied on Plaintiff’s daily activities to discredit his complaints, to
discount Dr. Groff’s opinions, and/or to support the RFC assessment for a
reduced range of light work, the record supports activities that are even more
limited than described by the ALJ. For instance, although the ALJ stated that
Plaintiff watched his grandchildren, he did so sporadically and while his wife was
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also at the house. (Tr. 25, 49, 61.) Moreover, even when his grandchildren were
there, Plaintiff was able to “la[y] down a lot,” when needed. (Tr. 62.) To the
extent Plaintiff drove, his driving was limited to the doctor’s office, the pharmacy,
and the store, where he would use a wheelchair. (Tr. 49, 53, 59.) Further,
Plaintiff was only able to do small chores, like doing the dishes. (Tr. 53, 443, 507
(noting “partially disabling” symptoms).)
Based on the foregoing, the ALJ improperly discounted Dr. Groff’s
opinions, including the need for a cane, and her RFC assessment is not
supported by substantial evidence. Therefore, this case will be remanded for
further proceedings to the ALJ to conduct the five-step sequential evaluation
process in light of all the evidence.
Accordingly, it is ORDERED:
1. The Commissioner’s decision is REVERSED pursuant to sentence
four of 42 U.S.C. § 405(g) and REMANDED with instructions to the ALJ to
conduct the five-step sequential evaluation process in light of all the evidence,
including the opinion evidence from Dr. Groff, and conduct any further
proceedings deemed appropriate.
2. The Clerk of Court is directed to enter judgment accordingly,
terminate any pending motions, and close the file.
3. In the event that benefits are awarded on remand, any § 406(b) or §
1383(d)(2) fee application shall be filed within the parameters set forth by the
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Order entered in /n re: Procedures for Applying for Attorney’s Fees Under 42
U.S.C. §§ 406(b) & 1383(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D. Fla. Nov. 13,
2012). This Order does not extend the time limits for filing a motion for attorney’s
fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED at Jacksonville, Florida, on August 13, 2019.
MONTE C. RICHARDSON
UNITED STATES MAGISTRATE JUDGE
Copies to:
Counsel of Record
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