Ruth L. Nyberg v. Commissioner of Soc. Security , 179 F. App'x 589 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 2, 2006
No. 05-16286 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01321-CV-T-23-MAP
RUTH L. NYBERG,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 2, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Ruth L. Nyberg appeals the district court’s order affirming the decision of
the Social Security Commissioner (the “Commissioner”) denying her claim for
disability and disability insurance benefits under the Social Security Act.1
According to Nyberg, the administrative law judge (the “ALJ”) committed
reversible error when, in the course of determining that Nyberg was not disabled,
he failed to acknowledge or address the opinion of Dr. Myrna Trowbridge, a
treating physician.2 The Commissioner responds that any such error was harmless,
and argues that substantial evidence supports her decision. We reverse and
remand.
I. STANDARD OF REVIEW
In a social security appeal, our review is limited to determining whether the
ALJ's decision is supported by substantial evidence, and whether the correct legal
standards were applied. See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.
1997); 42 U.S.C. § 405(g). “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, and such relevant evidence as a reasonable person would
accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553,
1
The parties consented, pursuant to 28 U.S.C. § 636(c), to a magistrate judge conducting
the district court proceedings.
2
Although Nyberg also contends that the ALJ should have re-contacted Dr. Trowbridge,
Nyberg did not raise this argument before the district court. Accordingly, we will not consider it
here. See Passopulos v. Sullivan, 976 F.2d 642, 645 (11th Cir. 1992) (citations omitted).
2
1560 (11th Cir. 1995) (per curiam) (internal citation omitted). “This limited
review precludes deciding the facts anew, making credibility determinations, or re-
weighing the evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)
(per curiam). “We cannot, however, conduct a review that is both limited and
meaningful if the ALJ does not state with sufficient clarity the legal rules being
applied and the weight accorded the evidence considered.” Ryan v. Heckler, 762
F.2d 939, 941 (11th Cir. 1985). Thus, the ALJ must develop a full and fair record,
and evaluate all the relevant evidence. See Cowart v. Schweiker, 662 F.2d 731,
735 (11th Cir. 1981). “[W]e evaluate the [ALJ’s] findings in light of the entire
record, not only that evidence which supports [his] position.” Owens v. Heckler,
748 F.2d 1511, 1515 (11th Cir. 1984) (per curiam).
II. DISCUSSION
In describing the proper evaluation of opinion evidence on disability claims,
the Social Security Administration (“SSA”) states the following:
Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your 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.
3
20 C.F.R.§ 404.1527(d)(2).3 Indeed, the ALJ “must specify what weight is given
to a treating physician’s opinion and any reason for giving it no weight, and failure
to do so is reversible error.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986); see Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004)
(per curiam) (ALJ must accord substantial or considerable weight to opinion of
treating physician unless “good cause” is shown to the contrary); Broughton v.
Heckler, 776 F.2d 960, 961-62 (11th Cir. 1985) (per curiam) (same); see also
Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th Cir. 1982) (ALJ’s failure to
mention appellant’s treating physician and the weight, if any, given to the treating
physician’s opinion constituted grounds for reversal). An ALJ’s “lack of
explanation” for failing to address a treating physician’s opinion is “particularly
troublesome” when that physician was the claimant’s “long-time treating
physician.” Ryan, 762 F.2d at 942.
In the instant case, it is uncontroverted that the reports of Dr. Trowbridge
were part of the record, and that the ALJ failed to address Dr. Trowbridge’s
opinion regarding Nyberg’s condition and limitations during the relevant time
period: June 1, 2000 (the alleged date of onset of Nyberg’s disability) through
3
A “treating source” (i.e., a treating physician) is a claimant’s “own physician,
psychologist, or other acceptable medical source who provides you, or has provided you, with
medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with
you.” 20 C.F.R. § 404.1502.
4
September 30, 2001 (the date Nyberg’s disability insured status expired). Even so,
the Commissioner argues, Dr. Trowbridge was not really a “treating” physician, at
least insofar as Nyberg’s claimed disability involved Parkinson’s disease.
Dr. Trowbridge, the Commissioner points out, indicated on a June 2002
“Attending Physician’s Initial Statement of Disability” form (the “disability form”)
that she (Trowbridge) was treating Nyberg’s hypothyroidism, while Dr. Jennifer
Pallone was “in charge of the Parkinson’s [and] the depression.” As noted above, a
treating physician is one who not only provides (or has provided) the claimant with
medical treatment or evaluation, but also has (or has had) an “ongoing treatment
relationship” with the claimant. 20 C.F.R. § 404.1502. A claimant generally has
an “ongoing treatment relationship” with a physician when medical evidence
establishes that the claimant sees or has seen the physician “with a frequency
consistent with accepted medical practice for the type of treatment and/or
evaluation required for [the claimant’s] medical condition(s).” Id. The record
indicates that Dr. Trowbridge treated Nyberg on numerous occasions throughout
the relevant time period, made notes as to Nyberg’s tremors and
“hemiparkinsonism,” and referred her to (and received updates from) various other
medical professionals, including Dr. Pallone. Thus, the Commissioner’s argument
fails to persuade us that Dr. Trowbridge was not a treating physician (i.e., a
5
“treating source”) within the meaning of § 404.1502.
Even if Dr. Trowbridge was a treating physician, the Commissioner argues,
the ALJ’s failure to consider her opinion was harmless error, because the opinion
did not contradict the ALJ’s findings and was unsupported by objective medical
evidence. As the Commissioner points out, Nyberg takes issue with the ALJ’s
statement that “no treating physician has expressed the opinion that the claimant
has limitations greater than those determined in this decision.” One reason Nyberg
does so is that Dr. Trowbridge stated on the disability form that Nyberg’s
limitations had been “slowly progress[ing] since spring of 2000”; i.e., gradually
getting worse. This observation, the Commissioner contends, is vague, and does
not really conflict with the ALJ’s determination that Nyberg’s condition and
limitations were not so severe at the time her insured status expired (in September
of 2001) as to prevent her from working at certain jobs then existing in the national
economy in significant numbers. Furthermore, the Commissioner argues, any
indication to the contrary inferred from Dr. Trowbridge’s reports would be
unsupported by objective medical evidence. See Crawford, 363 F.3d at 1159(treating physician’s report can be discounted when it is unaccompanied “by
objective medical evidence or wholly conclusory”).4
4
The Commissioner states, for example, that there is no evidence Dr. Trowbridge ever
conducted a functional capacities evaluation of Nyberg to help determine the extent of her
6
In essence, the Commissioner contends (and the district court believed) that,
even if the ALJ had considered Dr. Trowbridge’s opinion, the outcome of the case
could not reasonably have changed. See Diorio v. Heckler, 721 F.2d 726, 728
(11th Cir. 1983) (ALJ’s mischaracterization of claimant’s past work was harmless
error, because such characterization of vocational factors was irrelevant where the
ALJ found no severe impairment). The instant case, however, is not one where the
unmentioned physician’s opinion merely supported the ALJ’s conclusion, and was
thus unnecessary. See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir.
2004).5 On the contrary, the potential impact of Dr. Trowbridge’s opinion on the
ALJ’s analysis is strongly and reasonably disputed by the parties.6 Thus, we
cannot say that the failure to address Dr. Trowbridge’s opinion was harmless
without re-weighing the evidence and engaging in conjecture that invades the
limitations.
5
Nor has it been shown that Dr. Trowbridge’s opinion was “so patently deficient that the
Commissioner could not possibly credit it,” or that the Commissioner clearly met the goal of 20
C.F.R. § 404.1527(d)(2) even though she did not comply with its terms. See Wilson, 378 F.3d at
547.
6
Notably, the Commissioner’s position on this issue appears somewhat inconsistent.
Although the Commissioner contends initially that Dr. Trowbridge’s opinion did not conflict
with the ALJ’s determination regarding Nyberg’s limitations, the Commissioner then claims that
“Dr. Trowbridge’s purported opinion concerning [Nyberg’s] limitations conflicts with the
medical findings of Dr. Pallone,” which the ALJ relied upon heavily. Indeed, Dr. Trowbridge’s
reports seem to indicate that Nyberg’s tremors were only growing worse over time, while the
ALJ concluded that the tremors had been significantly reduced through medication by August of
2001.
7
province of the ALJ. See Moore, 405 F.3d at 1214 (stating that, where ALJ failed
to consider certain factors and indicate their impact on his ultimate conclusion as to
claimant’s residual functional capacity, we “[could not] even evaluate the
Commissioner’s contention that the ALJ’s error was harmless”); Wiggins, 679 F.2d
at 1390 (remanding where we were “unable to determine whether the ALJ applied
the proper legal standard and gave the treating physician’s evidence substantial or
considerable weight or found good cause not to do so”); Wilson, 378 F.3d at 546(“A court cannot excuse the denial of a mandatory procedural protection simply
because, as the Commissioner urges, there is sufficient evidence in the record for
the ALJ to discount the treating source’s opinion and, thus, a different outcome on
remand is unlikely.”).
III. CONCLUSION
Contrary to the judgment of the district court, we cannot say that the ALJ’s
failure to consider Dr. Trowbridge’s opinion was harmless. The judgment of the
district court is therefore reversed, and the case is remanded with instructions to
remand the matter to the ALJ for further proceedings not inconsistent with this
opinion.
REVERSED AND REMANDED.
8