Ricardo M. Siverio v. Commissioner of Social Security ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12450 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 23, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-22263-MGC
RICARDO M. SIVERIO,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 23, 2012)
Before BARKETT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Ricardo Siverio appeals the district court’s order affirming the denial under
42 U.S.C. § 405(g) of his application for disability insurance benefits by Social
Security Commissioner Michael Astrue. On appeal, Siverio argues that the
Administrative Law Judge (“ALJ”) erred by finding that he retained the residual
functional capacity (“RFC”) to perform medium work. He also argues that the
ALJ erred by discounting the opinion of his treating physician, Dr. Emilio Suarez.1
Upon review of the record and consideration of the parties’ briefs, we reverse in
part and affirm in part.
I.
We review the Commissioner’s factual findings to determine whether they
are supported by substantial evidence. Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1260 (11th Cir. 2007). Substantial evidence is defined as “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). It is
“more than a scintilla, but less than a preponderance.” Id. In conducting this
review, we may not decide facts anew, reweigh the evidence, or substitute our
judgment for that of the ALJ. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
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Additionally, Siverio argues that the ALJ erred by relying on the medical-vocational
guidelines, rather than using a vocational expert to determine whether he could perform work
that exists in the national economy. In reversing and remanding, we assume the ALJ will rely on
the guidelines only if substantial evidence supports a finding that nonexertional impairments do
not prevent Siverio from performing a wide range of work at Siverio’s work capacity level. See
Phillips v. Barnhart, 357 F.3d 1232, 1243 (11th Cir. 2004).
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2005). At the same time, we will reverse where the ALJ fails either to apply the
correct law or to “provide [us] with sufficient reasoning for determining that the
proper legal analysis has been conducted.” Keeton v. Dep’t of Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
II.
A claimant seeking disability insurance benefits must demonstrate that he
was disabled on or before the last date on which he was last insured. Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). In this case, Siverio needed to
demonstrate disability on or before December 31, 2008.
The social security regulations establish a five-step, sequential evaluation
process to determine disability for disability benefits claims. See 20 C.F.R.
§ 404.1520. The ALJ must evaluate: (1) whether the claimant engaged in
substantial gainful employment; (2) whether the claimant has a severe impairment;
(3) whether the severe impairment meets or equals an impairment in the Listing of
Impairments; or (4) whether the claimant has the RFC to perform his past relevant
work; and (5) whether, in light of the claimant’s RFC, age, education and work
experience, there are other jobs the claimant can perform. See Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R.
§ 404.1520(a)(4)(i)–(v). Throughout the process, the burden is on the claimant to
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introduce evidence in support of his application for benefits. Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003).
Here, the ALJ found that Siverio was not engaged in substantial gainful
activity, had severe impairments that did not meet or equal a listed impairment,
and could not perform past relevant work. When that happens, the ALJ must then
determine, at step five, whether the claimant’s RFC allows him to perform work
that exists in the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g).
RFC is an assessment of a claimant’s remaining ability to do work despite
his impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The
ALJ makes an RFC finding based on all the “relevant medical and other
evidence.” 20 C.F.R. § 404.1545(a)(3). The ALJ must consider any statements by
medical sources about what the claimant can still do2 and whether those statements
are based on formal medical examinations. The ALJ must also consider
descriptions and observations of the limitations resulting from the claimant’s
impairments, including limitations that result from symptoms, such as pain. Id.Only “acceptable medical sources” can provide medical opinions, which are
2
The term “medical sources” refers to both “acceptable medical sources” and other health
care providers who are not “acceptable medical sources.” See 20 C.F.R. § 404.1502.
“Acceptable medical source” includes treating sources, nontreating sources, and nonexamining
sources. Id. The regulations identify “acceptable medical sources” as licensed physicians,
licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified
speech-language pathologists. See id. § 404.1513(a).
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“statements from physicians and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity of” a claimant’s impairment,
including symptoms, diagnosis and prognosis, what the claimant can still do
despite the impairment, and the claimant’s physical or mental restrictions. Id.
§ 404.1527(a)(2).
To describe what kind of work a claimant is able to undertake, the RFC
assessment typically adopts one of the following work classifications: sedentary,
light, medium, heavy, and very heavy. Id. § 404.1567. Medium work is defined
as “lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds.” Id. § 404.1567(c). Light work involves
“lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.” Id. § 404.1567(b). Sedentary work is defined
as “lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties.” Id. § 404.1567(a). Social Security
Ruling (“SSR”) 83-10 further elaborates on sedentary work by providing that
“periods of standing or walking should generally total no more than about 2 hours
of an 8-hour workday, and sitting should generally total approximately 6 hours of
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an 8-hour workday.” SSR 83-10, available at 1983 WL 31251.
After thorough review of the record and the parties’ briefs, we conclude that
substantial evidence does not support the ALJ’s finding that Siverio had the RFC
to perform medium work. It is undisputed that the ALJ erroneously relied on the
RFC assessment of Zuleika Martin as a medical opinion, even though Martin was
a “single decision maker” with no apparent medical credential. In Florida, a single
decision maker (“SDM”) is assigned to make the initial disability determination
after “appropriate consultation with a medical or psychological consultant.” See
20 C.F.R. § 404.906(b)(2). But the “SDM” designation connotes no medical
credentials. See id. § 404.906(a), (b)(2). Indeed, the SSA’s Program Operations
Manual System (“POMS”) explicitly distinguishes RFC assessments produced by
an SDM from those produced by a medical consultant, and states that
“SDM-completed forms are not opinion evidence at the appeals level.” POMS
§ DI 24510.050, available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510050.3 As an SDM with no
apparent medical credential, Martin was not an acceptable medical source.
Nonetheless, the ALJ mistakenly treated Martin’s opinion that Siverio could
3
We have previously noted that, “[w]hile the POMS does not have the force of law, it can
be persuasive.” Stroup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003).
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perform medium work as the “expert opinion” of a “DDS physician[],” “State
Agency physician[],” and “DDS medical consultant[].”
This was not a harmless error. The ALJ’s opinion shows not only that the
ALJ labored under the mistaken belief that Martin’s RFC assessment had been
authored by a physician, but also that he gave Martin’s RFC assessment
“significant weight.” The remaining record evidence does not provide substantial
evidence for the finding that Siverio was capable of performing medium work.
Other than Martin’s opinion, which the ALJ erroneously relied upon as a medical
opinion, there is nothing in the record that could have reasonably led the ALJ to
conclude that Siverio could occasionally lift fifty pounds and frequently lift
twenty-five pounds, and thus perform medium work. Thus, it appears it was
primarily on the basis of Martin’s RFC assessment that the ALJ concluded that
Siverio could perform medium work. Because substantial evidence does not
support this finding, we reverse and remand for reconsideration of Siverio’s RFC.
III.
The ALJ must state with particularity the weight given different medical
opinions and the reasons for doing so. Sharfarz v. Bowen, 825 F.2d 278, 279
(11th Cir. 1987). The ALJ may reject any medical opinion if the evidence
supports a contrary finding. Id. Nevertheless, a treating physician’s opinion about
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the nature and severity of a claimant’s impairment is generally given controlling
weight if it is well supported and is not inconsistent with the other substantial
evidence. 20 C.F.R. § 404.1527(d)(2). A treating physician’s opinion is given
“substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Phillips, 357 F.3d at 1240. Good cause exists when: (1) the treating physician’s
opinion is not bolstered by the evidence; (2) evidence supports a contrary finding;
or (3) the treating physician’s opinion was conclusory or inconsistent with the
physician’s own medical records. Id. at 1240–41.
The ALJ rejected the medical opinion of Siverio’s treating physician, Dr.
Suarez, in so far as the opinion indicated “that the claimant is not capable of
sedentary work.” The ALJ’s explanation for doing so was that Dr. Suarez’s
opinion about Siverio’s capacity to do sedentary work was “not consistent with the
other evidence of record as discussed in the body of the decision.” Siverio argues
this explanation was insufficient to establish good cause for discounting the
opinion of his treating physician. We hold that the ALJ’s articulated reason was
supported by substantial evidence.
In his February 2008 and January 2009 assessments, Dr. Suarez opined that
in an eight-hour workday Siverio could only sit for five hours, stand for two hours,
and walk for one hour. Because sedentary work generally requires being able to
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sit for approximately six hours total in an eight-hour workday, 20 C.F.R. §
404.1567(a); SSR 83-10, Dr. Suarez’s assessments suggested that Siverio may not
be capable of sedentary work.
However, other medical evidence indicated the contrary. For example, Dr.
Muth found that Siverio could stand, sit, or walk for about six hours in an eight-
hour workday, and was thus capable of sedentary work. In addition, in both
September 2005 and January 2006, Dr. Cohen indicated that Siverio had no
restrictions in his ability to stand, walk, sit, or climb. Thus, there was substantial
record evidence that was inconsistent with Dr. Suarez’s opinion regarding
Siverio’s incapacity to perform the full range of sedentary work. The ALJ
therefore acted within the bounds of his discretion when he discounted Dr.
Suarez’s opinion regarding this specific matter. See Phillips, 357 F.3d at1240–41. Accordingly, we affirm as to this issue.
REVERSED in part, AFFIRMED in part.
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