Short v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DIANE LLOREN SHORT,

Plaintiff,

v. Case No. 6:19-cv-1695-Orl-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 her application for a period of disability and disability insurance

benefits (“DIB”). Following two administrative hearings held by video on October

18, 2017 and September 20, 2018, the assigned Administrative Law Judge

(“ALJ”) Denise Pasvantis issued a decision, finding Plaintiff not disabled from

December 21, 2012, the alleged disability onset date, through March 31, 2017,

the date last insured.2 (Tr. 15-24, 30-65, 93-134.) Based on a review of the

record, the briefs, and the applicable law, the Commissioner’s decision is

REVERSED and REMANDED.

1 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. (Docs. 10 & 13.)

2 Plaintiff had to establish disability on or before March 31, 2017, her date last

insured, in order to be entitled to a period of disability and DIB. (Tr. 15)

I. Standard of Review

The scope of this Court’s review is limited to determining whether the

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 failing to properly weigh “the medical

opinions of record, based on an adequate rationale and substantial evidence at

each step of the sequential evaluation process.” (Doc. 18 at 17-25.) Specifically,

Plaintiff argues that the ALJ erred in giving little to no weight to the opinions of

her treating physicians, Dr. Lily Steel, Dr. Ashish Udeshi, and Dr. Mark Pinsky,

while according great weight to the opinions of Dr. Craig Nielsen, a one-time

consultative examiner, and Scott Miller, M.D., a non-examining State agency

physician who testified at the hearing. (Id.) Plaintiff urges the Court to remand

for further administrative proceedings and a supplemental hearing. (Id. at 24-25.)

Defendant counters that the ALJ applied the correct legal standards and

that her decision is supported by substantial evidence. (Doc. 20.) Defendant

asserts that (1) the ALJ properly evaluated the opinions of Dr. Udeshi and Dr.

Pinsky; (2) the ALJ’s error in failing to directly evaluate Dr. Steel’s opinion was

harmless; and (3) the ALJ properly gave great weight to the opinion of Dr.

Nielsen. (Id. at 4-13.) 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

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

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). “However,

the ALJ is not required to explicitly address each of those factors. Rather, the

ALJ must provide ‘good cause’ for rejecting a treating physician’s medical

opinions.” Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir.

2011) (per curiam).

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, 2008 WL 649244,

at *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., 2007 WL 708971, at *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. 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

physicians, the ALJ may not ignore these opinions and must explain the weight

given to them in his decision. SSR 96-6p.

B. Relevant Medical Opinions

1. Dr. Lilly Steel

On May 27, 2014, Dr. Lilly Steel completed a Physical Treating Source

Statement Questionnaire. (Tr. 509-10.) Dr. Steel indicated that she had seen

Plaintiff “at least quarterly since 1992.” (Tr 509.) Dr. Steel diagnosed Plaintiff

with severe low back pain, difficult-to-control hypertension, and Meniere’s

disease. (Id.) Plaintiff’s symptoms included severe low back pain requiring

multiple medications, fatigue, hearing loss, and difficulty walking. (Id.) Dr. Steel

then identified the following positive objective signs: abnormal gait, sensory loss,

tenderness, muscle spasm, muscle atrophy, and muscle weakness. (Id.) Based

on Plaintiff’s impairments, Dr. Steel opined that she was limited to walking up to

one block without rest; sitting for up to 30 minutes at one time; standing for up to

10 minutes at one time; sitting for less than two hours total in an eight-hour

workday with normal breaks; and standing/walking for less than two hours total in

an eight-hour workday with normal breaks. (Id.) She also opined that Plaintiff

needed a job permitting her to shift positions at will from sitting, standing, or

walking. (Tr. 510.) According to Dr. Steel, Plaintiff could occasionally lift and

carry less than ten pounds, but never more than ten pounds. (Id.) Dr. Steel

opined that Plaintiff had significant limitations in pushing/pulling and noted that

Plaintiff could never twist, stoop (bend), or climb ladders, but could occasionally

crouch and climb stairs. (Id.) Dr. Steel also noted that Plaintiff “had severe

physical limitations since December 2012 or earlier. She has failed numerous

conservative modalities and continues to have significant pain and limitation[s].

She is scheduled for surgery 6/2/2014.”3 (Id.)

2. Dr. Ashish Udeshi

On May 6, 2015, Dr. Udeshi, Plaintiff’s pain management physician,

completed a Residual Functional Capacity (“RFC”) Form, indicating that he

began treating Plaintiff on October 20, 2014 and “continue[d] to follow her

3 On June 4, 2014, Plaintiff underwent the following surgical procedures for

lumbar spondylosis, degenerative scoliosis of L1-S1, and spinal stenosis:

“[d]ecompressive laminectomy [of] L2 through the sacrum, bilateral discectomy [of] L5-

S1, posterior lumbar interbody fusion [of] L5-S1 . . ., transpedicular instrumentation [of]

L1 through S1 . . ., correction of scoliotic spinal deformity with instrumentation[,] and

posterolateral fusion [of] L1 through S1 using autologous bone.” (Tr. 437.) Operative

findings were listed as “[r]igid lumbar degenerative scoliosis, severe lateral recess and

foraminal stenosis.” (Tr. 440.)

monthly for her chronic conditions.” (Tr. 647-52.) Dr. Udeshi diagnosed Plaintiff

with chronic lumbar radiculopathy, myofascial pain, chronic low back pain,

lumbar post-laminectomy syndrome, and neuropathy. (Tr. 647.) Plaintiff’s

treatment included “medication management with opioid regimen, decreasing

frequency and amount” and physical therapy with pool exercise. (Tr. 648.) Dr.

Udeshi opined Plaintiff’s prognosis was favorable, but complete recovery was

unlikely. (Id.) He noted Plaintiff continued to “improve since prior

lumbar/thoracic surgery” and expected Plaintiff’s disability or impairment to last

one year or more. (Id.) Dr. Udeshi opined that Plaintiff was limited to sitting for

less than thirty minutes, standing for up to thirty minutes. (Id.) Dr. Udeshi opined

that Plaintiff could not “stand and/or sit upright for six to eight hours” due to

chronic low back and muscle pain. (Tr. 649.) According to Dr. Udeshi, Plaintiff

also had to lie down during the day to relax her muscles and reduce spasms and

tension. (Id.) He also indicated that Plaintiff could only walk 40 feet without

stopping; had no limitations in reaching up above shoulders and down to waist

level, carefully handling objects, and handling with fingers; but could rarely reach

down towards the floor. (Id.) Dr. Udeshi also noted that Plaintiff was limited to

carrying less than five pounds during an eight-hour period and five to ten pounds

regularly/daily. (Id.)

Dr. Udeshi further opined that Plaintiff was limited in her ability to lift, pull,

and hold objects and would have difficulty bending, squatting, and kneeling due

to limited range of motion. (Tr. 650.) He also stated she would have difficulty

turning parts of her body due to decreased lateral rotation, flexion, and extension.

(Id.) He also described Plaintiff’s pain as chronic with acute exacerbation and

her pain level as moderate to severe and worse with activity. (Id.) Dr. Udeshi

opined Plaintiff was credible with regards to her claims of pain and that there

were objective medical reasons for her pain, including prior disc changes and

recent thoracic/lumbar spine multilevel surgery. (Tr. 651.) He opined that

Plaintiff could not continue or resume her previous employment but could engage

in other work involving “sedentary duty with routine breaks to adjust posture.”

(Id.) He also opined that Plaintiff’s disability was not likely to change over time

and found her return-to-work date “difficult to determine” but would “continue to

evaluate [on an] ongoing basis.” (Id.)

3. Dr. Mark Pinsky

On November 24, 2015, Dr. Pinksy completed a Physical Treating Source

Statement Questionnaire. (Tr. 724-26.) Dr. Pinsky noted he had seen Plaintiff

monthly since August 2015 and listed her diagnosed conditions as bilateral

pulmonary embolism, lumbar disc disease, microcytic anemia, and peripheral

neuropathy. (Tr. 724.) Dr. Pinsky identified the following objective signs:

abnormal gait, sensory loss, reflex changes (left greater than right), tenderness,

crepitus, muscle spasm, muscle weakness, and weight change. (Id.) He also

stated that Plaintiff could not walk a city block, could only walk 50-60 feet, could

only sit for 30 minutes at a time, and stand for 10 minutes at a time. (Id.) Dr.

Pinsky also indicated that Plaintiff was limited to sitting for less than two hours

total in an eight-hour workday with normal breaks; and standing/walking for less

than two hours total in an eight-hour workday with normal breaks. (Id.) He

opined that Plaintiff needed a job which permitted shifting positions at will from

sitting, standing, or walking. (Tr. 725.) He indicated that Plaintiff could frequently

lift and carry less than ten pounds, occasionally lift/carry ten pounds, but never

20 pounds or more. (Id.) He also opined that Plaintiff would have significant

limitations reaching (including overhead), handling (including gross manipulation)

due to hands locking, fingering (fine manipulation) due to fingers locking, and

pushing/pulling. (Id.) He also indicated that Plaintiff could never twist, stoop

(bend), crouch, climb stairs, or climb ladders. (Id.) Dr. Pinsky added that Plaintiff

could not sit in front of a computer for more than twenty minutes because it

triggered vertigo and that she experienced increased swelling in her ankles with

increased humidity. (Tr. 726.)

On May 7, 2017, Dr. Pinsky completed a second Physical Treating Source

Statement Questionnaire. (Tr. 875-77.) He listed Plaintiff’s symptoms as follows:

low back pain levels ranging from at least 6/10 to 10/10; numbness and tingling

down her left leg into her left foot; dizziness; and excessive fatigue. (Tr. 875.)

Dr. Pinsky noted that Plaintiff had bilateral lumbar low back pain, greater on the

left than the right, which was exacerbated by sitting, standing too long, or walking

and noted that she was using an assistive device for walking. (Id.) He also

noted that she experienced bilateral lower extremity weakness, greater on the left

than the right. (Id.) He opined Plaintiff could walk less than one city block, or

only 50 feet, without rest; sit for no more than ten minutes at a time; and stand for

no more than fifteen minutes at a time. (Id.) According to Dr. Pinsky, she was

limited to sitting for less than two hours total, and standing/walking for less than

two hours total, in an eight-hour workday with normal breaks. (Tr. 876.) He also

opined that Plaintiff would need a job which permitted shifting positions at will

from sitting, standing, or walking and that she would need to take unscheduled

breaks during an eight-hour workday. (Id.) He noted that Plaintiff could

occasionally lift and carry less than ten pounds, but never ten pounds or more.

(Id.) He opined Plaintiff could never twist, stoop (bend), crouch, climb stairs, or

climb ladders. (Id.) He again indicated that Plaintiff had significant limitations

doing repetitive reaching, handling, fingering, and pushing/pulling. (Tr. 877.) Dr.

Pinsky further opined that Plaintiff could not sit/stand for more than fifteen to

thirty minutes at a time, suffered from debilitating low back pain, and “in addition,

if [she] sits in front of [a] computer [for more than] 20 minutes, her vertigo gets

triggered.” (Id.) He also noted that Plaintiff was taking medication for chronic

migraines and migraine prophylaxis that impaired her memory and ability to

retrieve information from her memory. (Id.)

On October 11, 2017, Dr. Pinsky wrote a letter in support of Plaintiff’s

application for benefits stating as follows:

I have offered several opinions regarding Ms. Short’s ability to

perform tasks required for full time, gainful employment. (November

24, 2015, May 7, 2017). In forming my opinions, I have relied on

clinical evidence including observations of abnormal gait, sensory

loss, reflex changes, tenderness, muscle spasms[,] and muscle

weakness.

Additionally, there is objective medical evidence supporting my

opinion regarding Ms. Short’s limitations due to back pain, for

example, an MRI dated June[] 21, 2016, showing an osteophyte

pushing against the nerve at L5 on the left side and significant

findings of lumbar disc disease. Ms. Short’s claims of fatigue are

supported by laboratory results showing low iron levels. In an effort

to alleviate those symptoms, Ms. Short has been treated with iron

infusions for her anemia.

Ms. Short’s complaints of low back pain have been consistent over

time. She has tried a number of treatment options while under my

care, including visits with pain management specialist and physical

therapy. On my advice, Ms. Short saw Dr. David Rosen for a

surgical [consultation].

. . .

(Tr. 1141)

4. State Agency Doctors

On March 15, 2017, Plaintiff was examined by R. Craig Nielsen, M.D. (Tr.

855-62.) Dr. Nielsen noted that Plaintiff was accompanied by her service dog of

two years and had “a rolling/seat walker but could gait without it.” (Tr. 857.)

Upon physical examination, Dr. Nielsen found, inter alia, that light touch and

motor exams of the extremities were normal except Plaintiff stated she felt his

“‘light touch’ very little on [the] lateral lower leg and left foot.” (Tr. 858.) Plaintiff’s

deep tendon reflexes measured +3 and equal. (Id.) Her hand grasp appeared

normal and was rated 5 out of 5 bilaterally; fine and dexterous movements of the

fingers were also normal. (Id.) Lying and sitting straight leg raises were negative

and there was no atrophy of the extremities. (Id.) Dr. Nielsen observed that

Plaintiff got on and off her chair and the exam table slowly. (Id.) He observed no

peripheral joint swelling, redness or deformity, and pain was not elicited with

range of motion testing. (Id.) He also opined that “two of three Waddell’s signs

for confabulation or psychogenic cause were positive”; “axial loading was

negative but positive for very light tapping of her low back caused immediate pain

and concurrent hip/shoulder twisting caused low back pain.” (Id.) Dr. Nielsen

opined that Plaintiff’s range of motion was normal. (Tr. 860-62.) In terms of

Plaintiff’s gait and station, Dr. Nielsen noted she came in using a rolling walker

but could walk without it and upon leaving the office, she “continued to use her

walker but had an even, fairly brisk, pace.” (Tr. 868.) He also observed that

Plaintiff “[h]eel and toe walks [sic] well but takes very short steps. Squats and

unsquats [sic] with some difficulty but successfully. When getting up, lightly

holds on to the table next to her as she does with straightening up from bending

at the waist. No assistive device was used or required.” (Id.)

Dr. Nielsen’s impressions were (1) status-post laminectomy with stated

persistent low back pain, possible failed low back; (2) obesity with BMI of 37.3;

(3) status-post multiple pulmonary emboli; and (4) untreated depression. (Id.)

He opined Plaintiff’s prognosis was “fair, perhaps guarded.” (Id.) He further

explained:

I sense a definite psychogenic component to her low back pain but

find it difficult to sort out objectively how much pain she [is] having

and to what degree it [is] incapacitating. I [am] surprised that a

rolling walker was recommended. To me, that would hurt low back

hygiene rather than help.

I found no objective weakness that she complained about; no

muscle wasting. One attached document from a physiatrist dated

10/20/14 does [not] support her claim of intermittent bilateral leg

par[e]sthesias beginning post op[eratively] and I would [not]

reasonably expect surgery to result in that bilateral leg complaint.

(Id.) He opined that Plaintiff could resume secretarial work and that some of her

work-related “activity problems could be related to her overweight problems.”

(Id.) Dr. Nielsen further opined that Plaintiff’s “chronic low back pain might well

be conversion reaction,” which he described as a “psychiatric illness, not a

physical illness, but [which] [could] be equally debilitating.” (Tr. 859.)

On October 29, 2017, the State agency non-examining consultant, Scott

Miller, M.D., completed a Medical Source Statement of Ability to do Work-

Related Activities (Physical) (Tr. 1142-47) and a Medical Interrogatory[,] Physical

Impairment(s)--Adults form (Tr. 1149-52). Dr. Miller opined that, due to Plaintiff’s

chronic lumbar radiculopathy, she was limited to lifting and carrying up to ten

pounds frequently, eleven to twenty pounds occasionally, but never more than

twenty pounds. (Tr. 1142.) He further opined that, during an eight-hour workday,

Plaintiff could sit for four hours, stand for two hours, and walk for two hours at

one time without interruption. (Tr. 1143.) He also opined she could sit for four

hours, stand for two hours, and walk for two hours total during an eight-hour

workday. (Id.) He opined that Plaintiff did not require a cane to ambulate and,

although Plaintiff used a rolling walker at times, the objective evidence did not

support its use. (Id.)

Dr. Miller also opined that Plaintiff could frequently perform activities

involving reaching (overhead), reaching (all other), handling, fingering, feeling,

and pushing/pulling and that there were no upper extremity limitations noted in

the record. (Tr. 1144.) He also noted that Plaintiff could frequently operate foot

controls with her right foot and occasionally with her left foot. (Id.) Dr. Miller

attributed Plaintiff’s chronic pain syndrome to “her L5 nerve root [compression]

on the left” and as the basis for his restrictions. (Id.)

Based on Dr. Nielsen’s physical exam and assessment, Dr. Miller also

opined that Plaintiff could occasionally climb stairs and ramps, stoop, and kneel,

but could never climb ladders or scaffolds, balance, crouch, or crawl. (Id.) Dr.

Miller noted that Plaintiff could never be exposed to unprotected heights;

occasionally to extreme cold, heat, and vibrations; frequently to moving

mechanical parts, operating a motor vehicle, humidity and wetness, and to dust,

odors, fumes, and pulmonary irritants; and frequently to loud noise. (Tr. 1146.)

He also noted that Plaintiff required chronic pain medication which could cause

problems working at unprotected heights. (Id.) Dr. Miller also responded to a

Medical Interrogatory and included a Medical Expert Statement providing details

regarding his opinion that Plaintiff’s conditions did not meet or equal the listing for

disorders of the spine, migraine headaches, hypertension, hypothyroidism, or

Meniere’s disease.4 (Tr. 1152.)

4 Of note, in explaining the basis for his opinion that Plaintiff did not meet or

equal the listing of disorders of the spine, Dr. Miller noted as follows:

C. The ALJ’s Decision

At step two of the sequential evaluation process,5 the ALJ found that

Plaintiff had the following severe impairments: degenerative disc disorder of the

lumbar spine, status-post laminectomy and fusion; and obesity. (Tr. 18.) The

ALJ also found that Plaintiff’s migraines and vertigo were non-severe

impairments. (Id.) At step three, the ALJ found that Plaintiff did not have an

impairment or combination of impairments that met or medically equaled the

severity of one of the listed impairments. (Id.)

The ALJ then found that Plaintiff had the RFC to:

[L]ift and/or carry twenty pounds occasionally and ten pounds

frequently, stand two hours without interruption and two hours total

in an eight-hour day, walk two hours without interruption and two

hours total in an eight-hour day, sit four hours without interruption

While the claimant has an extensive history of lumbar disc disease[,] her

subjective complaints of pain do not correlate with the objective physical

findings. While the claimant had [a] laminectomy and fusion of L1-L5 in

June of 2014 [] for [low back pain][,] she continues to have pain

postoperatively that has been felt to be somewhat due to ongoing issues

with [the] L5 nerve root compression[,] but the latest neurosurgical

[e]valuation found [at] [Exhibit 25F] suggests that there is more than the

nerve root issue contributing to her functional limitations implying that

some psychological issues may be playing a role. Similar issues were

noted during her disability exam on 3-15-17 . . . . It is my opinion that the

claimant can actively participate in some work related activities like

secretarial work but with the limitations noted in the Medical Source

Statement. There are other treatment options being recommended by the

latest treating Neurosurgeon that may also help with the patient’s pain

syndrome. It is also noted that as of 3-13-15, the [c]laimant was able to

climb a ladder as reported by the ER visit note found at [Exhibit 13F, p.

16].

(Tr. 1152.)

5 The Commissioner employs a five-step process in determining disability. See

20 C.F.R. § 404.1520(a)(4).

and four hours total in an eight-hour day, frequently operate foot

controls with the left foot and work around wetness and/or humidity

and atmospheric conditions such as [] fumes, odors, dust, and

gases, occasionally stoop, kneel, climb ramps and stairs, operate

foot controls with the right foot, and work around extreme cold,

extreme heat, and vibration, and never crouch, crawl, climb ladders,

ropes and scaffolds[,] and work around unprotected heights.

(Tr. 19.)

In making this finding, the ALJ discussed, inter alia, Plaintiff’s subjective

complaints, the objective medical findings, the treatment and examining records,

and the opinion evidence. (Tr. 19-24.) In considering Plaintiff’s symptoms, the

ALJ summarized her hearing testimony as follows:

[Plaintiff] is fifty-two years old and has two years of college

education. She was certified as a paralegal and worked in the field

until December 2012. The claimant explained she has been using a

walker to ambulate since her back surgery in 2014. She is unable to

work due to pain in her lower back, left wrist and right knee, as well

as migraines and vertigo. She explained that the pain medication

helps take the edge off, but she always has some pain. She also

feels pins/needles and bugs crawling on her legs. The claimant has

migraines twice a week, lasting five hours to two days, depending on

how fast she takes the medication. Her medications cause fatigue

and word retrieval issues. She is able to prepare simple meals, and

can perform some household chores such as laundry and grocery

shopping using a cart. The back pain shoots down to her kneecap

and she has muscle spasms in her back, calves[,] and thighs at

night. On average her pain level is 3-5, and on bad days up to an 8.

She indicated that she has muscle weakness and has problems

walking. She is exhausted all the time and she only wants to sleep.

The claimant stated the infusions did not work. The pain also affects

her mental state; she has no patience and lacks concentration. She

estimated being able to sit for up to thirty minutes, on a good day[,]

and stand for fifteen to twenty minutes before getting shooting pain

down her left leg. She claimed to be unable to walk more than

twenty feet without the rolling walker due to balance problems. She

goes to the gym three times a week, one of those days she

exercises with a professional trainer. The rest of the days, she does

physical therapy exercises in her pool. It takes some time for her to

get up in the morning; she usually waits until the pain medication

kicks in. She is able to do light chores, such as dishwashing, meal

preparation, and makes her bed.

(Tr. 19-20.)

The ALJ also summarized the hearing testimony of the State agency

medical expert, Dr. Scott Miller, as follows:

[Dr. Miller] was asked to clarify his assessment in the medical

interrogatory he had previously submitted (Exhibit 31F). He opined

the claimant could lift and/or carry up to twenty pounds occasionally

and up to ten pounds frequently. She could stand for two hours,

walk for two hours and sit for four hours in an eight-hour workday.

He noted that nerve root compressions are in general not debilitating

to the point where the person cannot ambulate. Thus[,] he believed

that the use of a walker to ambulate does not appear to be

substantiated by the amount of disease the claimant has. Her

physicians have recommended weight loss and exercise on multiple

occasions, but an assistive device was not indicated. When

questioned about the progress notes documenting severe limitation

with walking, the medical expert noted these were not from a

physician, rather from [a] physical therapist. Nevertheless, Dr. Miller

explained that the claimant’s six-level fusion in 2014 appeared to be

successful. He further noted that [it] is well documented that fusion

reduces pain and improves the ability to ambulate, and it generally

improves the patient’s condition. Degeneration in the non-fused

areas could occur, however, he did not see anything in the objective

evidence in this case to indicate that might be happening. It would

show up on examination as weakness in [the] lower extremities and

bilateral straight leg raising testing, but it has not shown in this case.

He directed us to 33F and 20F where neither physician has found

any weakness in the lower extremities. When referred to exhibit

13F, Dr. Miller explained that there was tenderness, which [did] not

surprise him, but it very clearly state[d] the claimant had normal gait.

The findings have to show up on a physical examination to be

objective evidence, not a mere comment. He further testified that in

20F there is a thorough range of motion examination, which did not

reflect any decrease throughout the examination. He opined she

would be able to stoop on occasion, and that may improve as the

spine compensates itself. However, he disagrees with a total

limitation in stooping. Dr. Miller indicated that the MRI scans show

the same findings, nerve root compression; but, again, the physical

examinations did not reveal any significant sensory abnormalities.

The claimant has no restrictions in the use of her upper extremities.

(Tr. 20.) The ALJ then found that while Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms[,] . . . [her] statements concerning the intensity, persistence and

limiting effects of these symptoms [were] not entirely consistent with the

medical evidence and other evidence in the record.” (Id.) Specifically, the

ALJ found that Plaintiff’s testimony was “not supported by the medical

evidence of record and her activities of daily living [were] inconsistent with

her complaints.” (Id.) The ALJ also found that Plaintiff’s statements

concerning the intensity, persistence, and limiting effects of her symptoms

were “inconsistent because the objective evidence [did] not support the

extent of the alleged complaints during the period at issue.” (Id.)

After summarizing the objective medical evidence (Tr. 21-22), the ALJ also

summarized the consultative evaluation of Dr. Nielsen, as follows:

[Dr. Nielsen] evaluated the claimant on March 15, 2017. She

reported having significant pain, nerve damage and weakness since

her back surgery in 2014. She also had numbness and tingling in

her toes and feeling like bugs crawling up her legs. The physical

examination evidenced negative straight leg raising test bilaterally.

The claimant told the examiner she had “guarding” because she did

not want to be in more pain. She got on and off the examination

table and chair slowly. The claimant had full range of motion in all

joints. Dr. Nielsen noted that the claimant came in using a rolling

walker, but she was able to walk without it. In fact, he observed the

claimant as she left the office, using the walker but with an even,

fairly brisk pace. His [sic] heel and toe walks were well [sic] but [sic]

very short steps. She squatted with difficulty but successfully. No

assistive device was used or required. He further noted he was

surprised a rolling walker was recommended as it would hurt her

back more than help. He found no objective weakness that she

complained about, and no muscle wasting. Her claim of intermittent

bilateral leg paresthesias she claimed began post operatively [was]

not supported and he would not have expected surgery to result in

bilateral leg complaint.

(Tr. 22-23.) The ALJ then accorded great weight to the opinion of Dr. Nielsen

that Plaintiff “would be able to resume secretarial work.” (Tr. 23.) The ALJ

explained that Dr. Nielsen “reviewed the medical evidence of record and

performed a thorough examination of the claimant” and his “opinion was based

on the objective findings and are consistent with those contained in the medical

evidence of record.” (Id.)

Next, the ALJ summarized the opinions of Dr. Udeshi and Dr. Pinski and

accorded these opinions little weight, finding that they were “not consistent with

the objective findings in the medical evidence of record.” (Id.) The ALJ reasoned

as follows:

The limitations appear to be based on the claimant’s self-reports and

not the objective physical examinations which, as detailed above,

consistently showed normal gait and no neurological deficits. The

Medical Expert studied and reviewed the entire medical record.

Thus, he had a comprehensive overview of all medical evidence in

the file and was able to weigh and evaluate the data and opinions

provided by treating and consulting medical sources. As such, I find

his opinions and conclusions to be most reasonable and convincing.

Accordingly, the undersigned hereby accepts Dr. Miller’s testimony

and recommendations with regard to the severity of the claimant’s

impairments and limitations arising therefrom . . . .

(Tr. 23-24.) In sum, the ALJ concluded, the RFC assessment was “supported by

the objective findings in the record, including the consultative examiner as well as

the medical expert’s opinion.” (Tr. 24.)

Then, at step four, the ALJ determined that, through the date last insured,

Plaintiff was capable of performing her past relevant work as a paralegal. (Tr.

24.) In making this determination, the ALJ relied on the testimony of a vocational

expert (“VE”) who testified that Plaintiff would be able to perform her past work as

a paralegal, requiring light exertion work with a Specific Vocational Preparation

(“SVP”) of 7, “but performed at sedentary and light.” (Id.) The ALJ found that

Plaintiff could perform this work both as “actually and generally performed.” (Id.)

Thus, the ALJ concluded that Plaintiff was not disabled from March 4, 2015

through March 31, 2017, the date last insured. (Id.)

D. Analysis

The Court agrees with Plaintiff that the ALJ’s evaluation of the medical

opinion evidence warrants a remand. As noted previously, in an RFC Form

completed on May 6, 2015, Dr. Udeshi opined, in part, that in an eight-hour

workday, Plaintiff could only sit for less than thirty minutes, stand for thirty

minutes, and lift/carry up to ten pounds; would need to lie down during the

workday to relax her muscles and reduce spasms and tension; and would have

difficulty bending, squatting, kneeling and turning her body. (Tr. 648-50.) In a

Medical Statement completed on November 24, 2015, Dr. Pinsky opined, in part,

that in an eight-hour workday, Plaintiff could only sit for less than two hours total,

and stand/walk for less than two hours total; would need a job that permitted her

to switch positions at will from sitting, standing, or walking; could frequently

lift/carry less than ten pounds, occasionally lift/carry ten pounds, but never more

than 20 pounds; she could never twist, stoop (bend), crouch, climb stairs, or

climb ladders; and could not sit in front of a computer for more than twenty

minutes. (Tr. 724-26.)

In a Medical Statement completed May 7, 2017, Dr. Pinsky opined, in part,

that Plaintiff had bilateral lumbar back pain, greater on the left, which was

exacerbated by sitting, standing too long, or walking. (Tr. 875.) Dr. Pinsky noted

that she was using an assistive device for walking and she experienced bilateral

lower extremity weakness, greater on the left than the right. (Id.) He opined that

she could sit/stand for 30 minutes at a time and, in an eight-hour workday, she

could only sit for less than two hours total and stand/walk for less than two hours

total; she would need a job that permitted her to switch positions at will from

sitting, standing, or walking and would need to take unscheduled breaks; she

could occasionally lift/carry less than ten pounds; she could never twist, stoop

(bend), crouch, climb stairs, or climb ladders; and could not sit in front of a

computer for more than twenty minutes. (Tr. 875-77.) In a letter dated October

11, 2017, Dr. Pinsky stated that he based his previous opinions on “clinical

evidence, including observations of abnormal gait, sensory loss, reflex changes,

tenderness, muscle spasms, and muscle weakness” and that the objective

medical evidence, including the June 21, 2016 MRI, supported his opinions

regarding Plaintiff’s limitations due to back pain. (Tr. 1141.)

The ALJ assigned little weight to the opinions of Dr. Udeshi and Dr. Pinsky

and explained that these opinions were “not consistent with the objective findings

in the medical evidence of records” and that the “limitations appear to be based

on the claimant’s self-reports and not the objective physical evidence which . . .

consistently showed normal gait and no neurological deficits.” (Tr. 23.)

However, the ALJ’s statement that the opinions of Dr. Udeshi and Dr. Pinsky

were not consisted with the objective findings in the medical evidence of record is

not supported by substantial evidence.

Even after Plaintiff’s surgery on June 4, 2014, her examinations were

positive for abnormal gait, decreased range of motion, reduced muscle strength

and paresthesias in the lower extremities, left more severe than the right. (See,

e.g., Tr. 516-17 (noting, on October 20, 2014, back pain, decreased range of

motion, joint pain, muscle weakness, myalgia, antalgic gait, and reduced muscle

strength in the left lower extremity); Tr. 522-23 (noting, on November 3, 2014,

neurological review of systems was positive for numbness, trouble walking, and

tingling and physical examination revealed decreased sensory perception to light

touch at left L5 and S1 and pain with trunk extension); Tr. 542-43; Tr. 655.)

Physical exam findings specifically noted weakness in Plaintiff’s left leg, tibialis

anterior (“TA”) muscle, and foot drop. (See Tr. 667 (“Left TA weakness at 4/5.

Mild left sided antalgic gait.”); see also Tr. 785, 790, 796, 801, 808, 815, 821,

834, 848 (same).)

Moreover, Plaintiff’s physical therapy treatment notes consistently noted

antalgic gait, described as a Trendelenburg gait pattern, and left lower extremity

weakness. (See Tr. 553-55 (noting, on October 9, 2014, that Plaintiff “currently

ambulates with rolling walker, forward posture, and decreased step length with

noted Trendelenburg gait”; finding reduced range of motion in the lumbar spine

and reduced strength, more pronounced on the left than the right, of the hip

flexors, hamstrings, quadriceps, tibialis anterior, gastrocnemius, abdominals, and

hip abductors; decreased sensitivity of in the left lower extremity L3-L5 nerve

distribution; and decreased reflexes in the left lower extremity); Tr. 584 (noting,

on October 16, 2014, that Plaintiff’s left foot was “very weak and as a result she

tends to drag [her] foot when she walks”); Tr. 587 (noting, on October 23, 2014,

that Plaintiff rolled her left ankle during physical therapy and that her left ankle

and leg weakness contributed to her antalgic gait); Tr. 595 (noting antalgic gait

pattern due to left lower extremity weakness); Tr. 943-44 (observing that Plaintiff

“ambulates with antalgic gait pattern and sway[s] during gait”); Tr. 1020 (noting

detailed objective analysis of Plaintiff’s abnormal gait.)

Physical examinations also revealed positive objective findings, including

positive Patrick’s and FABER testing as well as positive straight leg raises. (See,

e.g., Tr. 643-45 (noting, on December 8, 2014, that Plaintiff “demonstrate[d] pain

and point tenderness over the affected gluteal and sacroiliac joint line,” “positive

PATRICK and FABRE’s Sign,” and recommending a left sacroiliac therapeutic

joint block); see also Tr. 747, 897-900, 904.) After the onset date, Plaintiff’s

posture was also noted as kyphotic and forward-leaning. (Tr. 1020 (noting, on

April 11, 2017, Plaintiff demonstrated “a more normalized heel to toe gait pattern

but she continue[d] to maintain a forward flexed trunk and [would] demonstrate a

lateral trunk lean as she start[ed] to fatigue,” and that she was able to “transition

completely off her [assistive devices] in the home but [would] still use her rolling

walker or cane for longer distance mobility due to back and knee pain”).) In July

2016, physical examination revealed positive objective findings, including positive

straight leg raise on the left, prompting a referral to neurosurgeon David S.

Rosen, M.D. for a surgical evaluation. (See Tr. 899-900 (noting “[t]enderness to

palpitation along the L5-S1 [l]eft lateral traverse process, increased back pain

with forward flexion and improvement with extension, normal range of motion,

positive bench on the left[,] [] positive straight leg raise on the left[,] and

decreased ability to get up on her toes on the left or walk on her heel [on] the

left”).)

A number of physical examinations indicated that Plaintiff appeared to be

in moderate to severe pain, had decreased range of motion and tenderness to

palpitation in the lumbar spine, had lumbar kyphosis, radiation of pain into the left

lower extremity, as well as numbness and tingling in the lower extremities. (See

Tr. 516-49, 610-46, 653-75, 728-852, 878-929; see also Tr. 999 (noting Plaintiff

had “significant lumbar kyphosis with some positive sagittal balance”).) Dr.

Pinsky also noted that “an osteophyte pushing directly against the nerve at L5 on

the left side . . .[,] along with significant findings of lumbar disc disease[,] clearly

explain[ed] the patient’s disability and concur with findings on physical

examination that have been done in the past.” (Tr. 899.)

Further, the results of the diagnostic testing were not inconsistent with the

treatment notes. (See Tr. 636 (stating that the lumbar spine X-rays from

December 2, 2014 showed “severe degenerative disc disease . . . [at] L3-S1,”

mild degenerative disc disease at L1-L3, “[s]tatus-post bilateral pedicle screw

fusion L1-S1,” and “[m]ild residual levoscoliosis”); Tr. 664 (a lumbosacral spine

MRI dated March 26, 2015 showing “[f]usion with bilateral screws L1-S1 noting

no evidence of mechanical failure,” “[r]esidual facet and disc-osteophyte complex

are greater at the right L4/5 lateral recess, bilateral L4/5 neural foramen and the

left L3/4 neural foramen and lateral recess,” and recommending assessment “for

radicular symptoms”); Tr. 864 (stating that an MRI of the right knee from

December 29, 2016 showed, inter alia, “[h]orizontal oblique inferior articular

surface tear posterior horn medial meniscus extending internally toward the

notch, and adjacent to tear in coronal image 7, there is a very prominent radial

tear in the posterior horn medial meniscus with a 4 mm wide tear zone, which is

likely contributing to mechanical instability, and there is extrusion into the medial

gutter”; “Severe Grade II tear [of the] medial collateral ligament without rupture”;

“degenerative disease in the medial compartment”; “moderate sprain of the

medial retinacular insertion without rupture”; “relatively severe sprain of the

medial patellofemoral ligament with blurring and hyperintensity of fibers, which

are surrounded by edema”; and noting the “patella may not be stable”); Tr. 866

(stating that an MRI of the lumbar spine from June 21, 2016 showed, inter alia, “a

convex left lumbar scoliosis”; “a disc protrusion at T11-T12, which causes no

cord contact or deformity”; a “herniation of disc material leftward at the L2-L3

level and also broadly at the L3-L4 and L4-L5 level[s]”; and “a very prominent

leftward lateral protrusion of osteophyte, which displaces the exited left L5 root

outside its foramen prominently”); Tr. 999-1000 (noting, on July 25, 2016, that

review of Plaintiff’s MRI of the lumbar spine and X-rays “show[ed] evidence of

her previous extensive surgical intervention . . . [and] in particular of L5-S1 neural

foraminal stenosis and likely compression of the left L5 nerve root as well as

other areas of mild to moderate neural compression”).)

The records also show that Plaintiff had failed conservative treatment,

including physical therapy.6 (See Tr. 550-60, 930-53, 956-98, 1001-90.)

Moreover, upon referral, Dr. Rosen noted that it appeared that Plaintiff’s 2014

surgical procedure failed to provide long term benefits, resulting in a diagnosis of

post laminectomy syndrome, status post long segment lumbar fusion. (Tr. 999-

1000). According to Dr. Rosen, “compression of [Plaintiff’s] left L5 nerve root

contributed to some of her left lower extremity symptoms,” but he opined that

“her functional limitation [was] attributable to more than simply this nerve root

compression.” (Tr. 1000.) Dr. Rosen also opined that further surgical

6 The record shows Plaintiff consistently participated in physical therapy,

performed exercises at home and at the gym, and participated in aquatic physical

therapy. (See Tr. 550-60, 930-53, 956-98, 1001-90.)

intervention was “unlikely to improve her global functional status and discussed

the options of spinal cord stimulator trials versus intrathecal drug pumps” with

Plaintiff. (Id.) As discussed above, it appears that the ALJ did not adequately

consider the medical evidence as a whole. Based on the foregoing, the Court

cannot conclude that the ALJ’s evaluation of Dr. Pinsky’s and Dr. Udeshi’s

opinions is supported by substantial evidence.

Additionally, the ALJ never weighed the opinion of Dr. Steel (Tr. 509-10)

who opined, inter alia, that Plaintiff had severe physical limitations, including

limited ability to walk, sit, and stand, that she required a job that would allow her

to shift positions at will from sitting, standing, and walking, and that she could

never twist, stoop (bend), or climb ladders. (Tr. 510.) Because the ALJ did not

discuss Dr. Steel’s opinion in her decision, it is unclear whether the ALJ

adequately considered each of these treating doctors’ opinions separately, as

well as in combination, when determining the RFC. To the extent the opinions

were consistent with one another, the ALJ was required to take that into

consideration in weighing them. See 20 C.F.R. § 404.1527(c)(4). However,

based on the foregoing, the Court can only speculate as to whether that

happened here. As such, this case will be remanded with instructions to the ALJ

to re-consider the medical opinions of record.

Accordingly, it is ORDERED:

1. The Commissioner’s decision is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to the ALJ to

conduct the five-step sequential evaluation process in light of all the evidence,

including the opinion evidence from treating, examining, and non-examining

sources, 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

Order entered in In 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 in Jacksonville, Florida, on September 29, 2020.

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

28