Victoria J. Snyder v. Commr. of Social Security , 330 F. App'x 843 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16676 ELEVENTH CIRCUIT
MAY 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00350-CV-OC-GRJ
VICTORIA J. SNYDER,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee,
SSA,
Interested Party.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 29, 2009)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Victoria J. Snyder appeals from the district court’s order affirming the
Commissioner of Social Security’s denial of her application for disability benefits
and supplemental security income (“SSI”). This appeal involves whether the
Administrative Law Judge (“ALJ”) properly considered the claimant’s testimony
and her treating physician’s opinion. After review, we reverse and remand for
further proceedings.
I. BACKGROUND
A. 2004 Hearing
Snyder contracted Hepatitis C in 1981 after receiving a blood transfusion.
Snyder’s condition was not diagnosed until 1991, when her symptoms, including
fatigue, joint and liver pain and low grade fever, began to bother her. She stopped
working as a waitress in October 2000.
In November 2001, Snyder applied for disability benefits and SSI. Snyder
alleged that, as of May 1, 2000,1 she was disabled due to her Hepatitis C. Since
2001, Dr. L.A. Oliverio has been Snyder’s treating physician. The record contains
a February 2004 assessment by Dr. Oliverio of Snyder’s ability to do work-related
activities, or “functional capacity,” which Dr. Oliverio based primarily upon
1
Snyder later amended her disability onset date to November 1, 2001.
2
Snyder’s “clinical history.” In the assessment, Dr. Oliverio opined that Snyder: (1)
occasionally could carry less than 10 pounds; (2) could stand and sit for less than 2
hours each during an 8-hour work day and could sit for 10 to 15 minutes before
changing position and stand for 5 to 10 minutes before changing position; (3)
would need to walk around every 5 to 10 minutes for a 5 to 10-minute period
during the work day; (4) would need to shift at will from sitting to standing or
walking and would need to lie down 5 times a day at unpredictable intervals; and
(5) would be absent from work more than 3 times a month.
In May 2004, Snyder was seen by Dr. Anil Bhatia, a consulting physician
for the Commissioner. Dr. Bhatia performed a physical examination, during which
he took Snyder’s history from her. Dr. Bhatia gave a primary diagnosis of
“Hepatitis-C with fatigue and body ache” and secondary diagnoses of anxiety
depression and musculoskeletal pain. Like Dr. Oliverio, Dr. Bhatia prepared a
functional capacity assessment, which he stated was based on Snyder’s slow
movements and cautious behavior getting on the exam table. Dr. Bhatia opined
that Snyder: (1) occasionally could lift 20 pounds and frequently lift 10 pounds; (2)
could stand or walk for at least 2 hours in an 8-hour work day; and (3) could sit for
about 6 hours.
The Commissioner denied Snyder’s application. After a 2004 hearing, the
3
ALJ also denied Snyder’s application. The Appeals Council then denied Snyder’s
request for review. Snyder appealed to the district court, which remanded the
decision pursuant to 42 U.S.C. § 405(g) for further development of the record.
In turn, the Appeals Council remanded with instructions to the ALJ to, inter
alia, further consider the opinion of Snyder’s treating physician, Dr. Oliverio;
further evaluate Snyder’s subjective complaints and provide a rationale with regard
to that evaluation; and, if warranted, obtain evidence from a vocational expert. The
Appeals Council also requested that the ALJ recontact Dr. Oliverio and ask for
additional evidence and further clarification of his opinion.
B. 2007 Supplemental Hearing
On May 1, 2007, Dr. Oliverio wrote a letter to the ALJ clarifying that he
based his September 2004 functional capacity assessment on a review of his office
notes, the objective medical evidence and Snyder’s subjective complaints. Dr.
Oliverio also reaffirmed his opinion that his assessment represented Snyder’s
condition prior to September 30, 2003.
The ALJ conducted a supplemental hearing, at which he heard testimony
from Snyder as to the effect of her Hepatitis C symptoms of pain and fatigue on her
daily life. According to Snyder, she experiences extreme tiredness and pain all
over her body, but particularly in her legs, knees and feet. She has a constant low
4
grade fever that causes her to feel tired and dizzy and to sweat. She also gets
nauseous and has little appetite. Snyder had lost 30 pounds since she stopped
working and 15 pounds since the last hearing. At 5'8" tall, Snyder weighed only
105 pounds.
Snyder testified that she spends most of her day lying down or sleeping and
that she is asleep more than she is awake. In recounting her day, Snyder said she
gets up and sees her ten-year-old son off to school, goes back to bed for two or
three hours and then rises to eat and sit on her porch. After about an hour, Snyder
goes back to bed to sleep for two more hours before her son comes home from
school. Snyder helps her son with his homework between 4:00 pm and 6:00 pm
and then sleeps again until 8:30 pm, at which point she gets up again to see her son
to bed. Once her son is in bed, she goes to sleep for the night.
Snyder no longer does household chores or cooks. Instead, she buys pre-
made meals that her son can make in the microwave. Her son and husband clean
the house. She can care for herself, but does not shower everyday and takes
showers in the evening when someone else is home in case she becomes dizzy.
A vocational expert testified in response to hypothetical questions that a
person with the functional limitations described by Dr. Oliverio and Snyder would
not be able to perform any jobs in the economy, but that a person with the
5
limitations described by Dr. Bhatia could perform sedentary work, such as
Snyder’s previous job as a telemarketer. The vocational expert testified that there
were no jobs available for a person who had to lie down 5 times a day, take
frequent naps and miss 3 days of work a month.
After the supplemental hearing, the ALJ again denied Snyder’s application.
The ALJ concluded that Snyder’s Hepatitis C was a severe impairment and “could
reasonably be expected to produce the alleged symptoms, but that [Snyder’s]
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible.”2 The ALJ gave “greater weight” to Dr.
Bhatia’s opinion, which the ALJ stated was “based on [Snyder’s] history and
objective findings.” As to Dr. Oliverio’s opinion, the ALJ did not state what
weight he was giving. Rather, the ALJ stated: “In contrast, Dr. Oliverio indicated
that his responses to the assessment form regarding [Snyder’s] abilities were based
on [Snyder’s] subjective statements.”
The ALJ concluded that Snyder could “sit for at least 6 of 8 hours in an 8-
hour workday, shifting her positions to standing or walking from time to time” and
could “lift and carry at least 10 pounds.” The ALJ rejected Snyder’s allegations of
2
The ALJ also concluded that Snyder’s mental impairments of depression and anxiety
were not severe. Snyder does not challenge this finding on appeal. Thus, our analysis focuses
only on Snyder’s Hepatitis C.
6
disabling pain in her legs, feet and hands as “not supported by the objective
medical evidence of record to the extent alleged.” Based on the vocational expert’s
testimony that a person with the functional limitations imposed by Dr. Bhatia could
perform work as a telemarketer, the ALJ concluded that Snyder had the residual
functional capacity to perform her past relevant work as a telemarketer and was not
disabled.
Snyder appealed to the district court, and the parties consented to proceed
before a magistrate judge.3 The magistrate judge affirmed the ALJ’s decision.
Snyder appealed to this Court.4
II. DISCUSSION
A. Treating Physician’s Opinion
In evaluating medical opinions, the ALJ considers many factors, including
the examining relationship, the treatment relationship, whether an opinion is amply
3
Although Snyder did not file exceptions to the ALJ’s decision with the Appeals Council,
the Commissioner has not argued that Snyder failed to exhaust her administrative remedies and,
thus, has waived this defense. See Crayton v. Callahan, 120 F.3d 1217, 1220-21 (11th Cir.
1997).
4
We review the ALJ’s decision “to determine if it is supported by substantial evidence
and based on proper legal standards.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004) (quotation marks omitted). “Substantial evidence is defined as more than a
scintilla, i.e., evidence that must do more than create a suspicion of the existence of the fact to be
established . . . .” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). “Substantial evidence
is less than a preponderance, but rather such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005).
7
supported, whether an opinion is consistent with the record and a doctor’s
specialization. 20 C.F.R. § 404.1527(d). Generally, the opinions of examining
physicians are given more weight that non-examining physicians and the opinions
of treating physicians are given more weight than non-treating physicians. See id.
§ 404.1527(d)(1)-(2). Treating sources are given more weight because they are
“most able to provide a detailed, longitudinal picture of [a claimant’s] medical
impairment(s) and may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations.” Id. § 404.1527(d)(2).
Thus, a treating physician’s opinion “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (quotation marks
omitted); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Good cause exists
“when the: (1) treating physician’s opinion was not bolstered by the evidence; (2)
evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Phillips v.
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). “The ALJ must clearly
articulate the reasons for giving less weight to the opinion of a treating physician,
8
and the failure to do so is reversible error.” Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)
(requiring the agency to “give good reasons” for not giving weight to a treating
physician’s opinion). If an ALJ either “ignored or failed properly to refute a
treating physician’s testimony, we hold as a matter of law that he has accepted it as
true.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
B. ALJ’s Errors in Snyder’s Case
Here, the ALJ did not specify expressly the weight given to Dr. Oliverio’s
opinion. The most the ALJ said is that he was giving greater weight to Dr.
Bhatia’s opinion. If that implicitly meant that he gave less weight to Dr. Oliverio’s
opinion, then the ALJ failed to articulate clearly the reasons for giving less weight
to his opinion. This problem alone requires reversal.5
In addition, the ALJ erred in stating that Dr. Bhatia’s opinion was based on
Snyder’s “history and objective findings,” while Dr. Oliverio’s opinion was “based
on [Snyder’s] subjective statements.” This statement is not supported by the
record. First, according to Dr. Bhatia, the only “medical/clinical finding(s)” on
which he based his opinion were Snyder’s slow movements and cautious behavior
5
The ALJ also failed to state what, if any weight, he gave to the findings of Dr. Anil
Ram, another of Snyder’s treating physicians. However, accepting Dr. Ram’s findings as true
has no effect on the outcome of the case because Dr. Ram only identified Snyder’s condition and
did not report on her symptoms or functional capacity.
9
getting on the exam table. Dr. Bhatia did not perform, or indicate that he was
relying upon, any objective medical tests, such as liver function tests or other
laboratory findings. Second, Dr. Oliverio indicated on his functional capacity
assessment that his opinion was based on Snyder’s “clinical history,” which the
record shows spanned several years of office visits and examinations.
Furthermore, in his follow-up correspondence with the ALJ, Dr. Oliverio clarified
that his functional capacity assessment was based on his “office notes, objective
medical evidence, and Ms. Snyder’s subjective complaints.”6 Thus, Dr. Oliverio’s
opinion did not rely solely on Snyder’s subjective complaints, as the ALJ stated.
In summary, as to the bases for the two physicians’ opinions, it does not
appear from the record that Dr. Bhatia’s opinion rests upon findings any more
“objective” than those relied upon by Dr. Oliverio. Indeed, it appears both doctors
relied upon their clinical observations, Snyder’s history and Snyder’s subjective
reports of her symptoms. Thus, the mistake by the ALJ in this regard requires
reversal.
The ALJ’s ruling suffers from yet another error: The ALJ failed to give
explicit and adequate reasons for discrediting Snyder’s subjective complaints of
6
We reject Snyder’s argument that the ALJ disregarded the Appeals Council’s order on
remand to recontact Dr. Oliverio about her opinion on Snyder’s functional capacity assessment.
Based on Dr. Oliverio’s May 1, 2007 follow up letter to the ALJ, it is clear the ALJ complied
with the remand instructions.
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pain. According to Snyder, she suffers from pain in her arms, legs and liver and
from extreme fatigue that causes her to sleep for a couple hours several times
during the day. She also testified that, between 2000 and 2003, she had difficulty
sitting for more than 45 minutes, could stand for about 45 minutes, could walk
about two blocks and could carry no more than 40 pounds. However, her
condition has gradually worsened in recent years and, at the time of the 2007
supplemental hearing, she had difficulty sitting less than a half an hour, could not
stand for more than 15 minutes, could walk about 120 feet and could carry about
15 pounds. She also had lost 15 pounds since the last hearing and, at 5'8" tall,
weighed only 105 pounds.
In evaluating the effect of Snyder’s pain on her ability to work, the ALJ
properly applied the pain standard by finding that Snyder’s underlying medical
condition of Hepatitis C reasonably could be expected to produce the alleged
symptoms.7 However, the ALJ failed to give explicit and adequate reasons for
discrediting Snyder’s testimony about the severity of her pain and fatigue. The
ALJ merely stated that Snyder’s testimony as to the intensity, persistence and
7
We apply a three-part “pain standard” when a claimant seeks to establish a disability
based on testimony of pain and other symptoms. Under this pain standard, the claimant must
satisfy two parts of the three-part test, which includes: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of the alleged
pain; or (b) that the objectively determined medical condition can reasonably be expected to give
rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002).
11
limiting effects of her symptoms was “not entirely credible” and that “[h]er
allegations of disabling pains in her legs, feet, and hands are not supported by the
objective medical evidence of record to the extent alleged.” The ALJ did not point
to any objective medical evidence contradicting Snyder’s pain allegations, but
appears to discredit them based on a lack of objective medical evidence. The ALJ
gave no further explanation for his decision to discredit Snyder’s testimony.
Such a broad credibility finding is not sufficient under our precedent. See
Wilson, 284 F.3d at 1225 (explaining that an ALJ must articulate “explicit and
adequate reasons” for discrediting subjective testimony and that a failure to do so
“requires, as a matter of law, that the testimony be accepted as true”); Foote v.
Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (“While an adequate credibility
finding need not cite particular phrases or formulations[,] broad findings that a
claimant lacked credibility and could return to her past work alone are not enough .
. . .” (brackets and internal quotation marks omitted)). Furthermore, the ALJ
cannot discredit Snyder’s testimony as to the intensity or persistence of her pain
and fatigue solely based on the lack of objective medical evidence. See 20 C.F.R.
§§ 404.1529(c)(2), 416.929(c)(2); see also Todd v. Heckler, 736 F.2d 641, 642
(11th Cir. 1984) (explaining that pain alone may be disabling and that it is
improper for an ALJ to require objective medical evidence to support a claim of
12
disabling pain). Thus, the ALJ’s credibility determination is not supported by
substantial evidence, and Snyder’s testimony of pain and fatigue must be accepted
as true.8
C. Disposition
In light of these errors, we must determine the nature of our remand to the
ALJ. The answer to this question depends upon the stage in the five-step
sequential evaluation process and the state of the record. An ALJ evaluates a
disability benefits claim using a five-step sequential evaluation of: (1) whether the
claimant engaged in substantial gainful activity; (2) whether the claimant has a
severe impairment; (3) whether the severe impairment meets or equals an
impairment in the Listing of Impairments; (4) whether the claimant has the residual
functional capacity to perform his or her past relevant work; and (5) whether, in
light of the claimant’s residual functional capacity, age, education and work
experience, there are other jobs the claimant can perform. See 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); see also Phillips, 357 F.3d at 1237.9 If the claimant
8
We reject Snyder’s claim that the ALJ was required to make findings regarding the side
effects of Interferon because it is undisputed that Snyder stopped taking Interferon before she
applied for disability benefits. See Passopulos v. Sullivan, 976 F.2d 642, 648 (11th Cir. 1992).
9
Residual functional capacity is what a claimant can do despite any physical or mental
limitations caused by the impairment and its related symptoms, such as pain. 20 C.F.R. §§
404.1545(a), 416.945(a). As to physical abilities, the residual functional capacity assesses the
claimant’s ability to do things like sit, stand, walk, lift, carry, push or pull. 20 C.F.R. §§
404.1545(b), 416.945(b). The ALJ’s finding as to a claimant’s residual functional capacity is
13
proves that she cannot perform her past relevant work at the fourth step, the burden
shifts to the Commissioner to show, at the fifth step, that there is other work
available in the economy that the claimant can perform. Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999).
Here, the ALJ committed multiple errors in making his residual functional
capacity finding, which informs both steps four and five of the evaluation.
Because the ALJ previously concluded that Snyder had the residual functional
capacity to perform her past relevant work as a telemarketer, the ALJ stopped at
the fourth step of the evaluation and did not address the fifth step. Thus, on
remand the ALJ must not only reconsider step four, but also complete the
sequential evaluation in step five based on the current record. In making a residual
functional capacity determination, the ALJ must accept as true both Dr. Oliverio’s
opinion and Snyder’s statements as to the effects of her Hepatitis C symptoms on
her physical abilities. See Wilson, 284 F.3d at 1225; MacGregor, 786 F.2d at
1053.
Further, the ALJ on remand must consider these factors in determining the
weight, if any, to give to Dr. Bhatia’s opinion. First, Dr. Bhatia conducted only
based on all the relevant evidence in the record, including any medical evidence, and is used in
steps four and five of the sequential evaluation to determine whether the claimant can do his or
her past relevant work or any other work. 20 C.F.R. §§ 404.1520(a)(4), 404.1545(a)(5),
416.920(a)(4), 416.945(a)(5).
14
one brief physical examination. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)
(providing that the opinion of a treating physician who has “seen [the claimant] a
number of times and long enough to have obtained a longitudinal picture of [the
claimant’s] impairment” generally is given more weight than an opinion of a non-
treating physician). Second, Dr. Bhatia’s only stated support for his exertional
limitations was his observation of Snyder’s cautious and slow movements during
that one examination. See 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3) (stating that
“the more knowledge a treating source has about your impairment(s) the more
weight we will give to the source’s medical opinion”). Dr. Bhatia did not explain
why his observation led him to conclude that Snyder could lift, stand, sit and walk
as long as he did. Although Dr. Bhatia’s examination report contained some
clinical findings from his physical examination, he did not offer any interpretation
of that data and did not refer to it in his functional capacity assessment. Third, in
his examination report, Dr. Bhatia indicated that Snyder reported taking one to two
hour naps two or three times a day and diagnosed her with “Hepatitis-C with
fatigue and body ache.” Yet, Dr. Bhatia’s functional capacity assessment did not
address Snyder’s need for rest during the workday.10
10
Two other consulting physicians, Dr. Alan Tetlow, an anesthesiologist, and Dr.
Nicholas Bancks, a radiologist, reviewed Snyder’s medical records and opined that Snyder had
greater functional capacity than Dr. Oliverio assessed. Although the ALJ did not rely on these
doctors to discredit Dr. Oliverio, we note that a non-examining physician’s opinion is accorded
15
III. CONCLUSION
Accordingly, the judgment of the district court is reversed and the case is
remanded with instructions that the case be returned to the Commissioner for
further proceedings consistent with this opinion.
REVERSED and REMANDED.
little weight if it contradicts an examining physician’s opinion and cannot, standing alone,
constitute substantial evidence. See Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991);
Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988); see also 20 C.F.R. §§ 404.1527(d)(1),
416.927(d)(1). We also note that neither of these doctors is offering an opinion in his area of
specialization. See 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5) (providing more weight be given
to opinions of a specialist about medical issues related to his area of specialty).
16