[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 3, 2007
No. 06-12813 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00401-CV-1-SPM-AK
JOE L. MILLS, JR.,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 3, 2007)
Before EDMONDSON, Chief Judge, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Joe Mills, Jr. appeals the district court’s order affirming the Commissioner’s
denial of his application for disability insurance benefits and for supplemental
security income benefits under 42 U.S.C. §§ 405(g) and 1383(c)(3). Mills argues
that the administrative law judge (“ALJ”) erred in rejecting without good cause the
opinion of his treating psychiatrist, Dr. Ramon Enrique Pino.
BACKGROUND
Mills applied for disability insurance benefits and for supplemental security
income benefits, alleging a disability onset date of January 6, 1999 due to a
compressed disc in his lower back with a post-surgical defect, sacroiliac joint
dysfunction, lower back pain with radiation to lower buttock and leg, anxiety, and
depression. The ALJ denied the applications, and the Appeals Council denied
Mills’ request for review. Mills sought review from the district court. The
magistrate judge issued its report and neither party filed any objections. The
district court entered an order adopting the magistrate judge’s report and affirming
the Commissioner’s decision to deny benefits.
The relevant details of Mills’ psychiatric treatment are as follows. Mills
received treatment from psychiatrist Dr. Raymond Pino, following his admission to
Shands Hospital for depression and for suicidal ideation on August 30, 1998. At
discharge on September 5, 1998, Mills’ condition had improved and his depression
was “under control” according to Pino’s discharge summary. Pino diagnosed Mills
with “a major depressive disorder, recurrent, with suicidal ideas” and prescribed
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medications for Mills, including Effexor to treat depression.
In April 1999, Mills saw neurologist Dr. Efrain Salgado for injuries
sustained in a fall. At that time, Mills reported having discontinued the
psychotropic medications prescribed by Dr. Pino out of fear of mixing
medications. He also reported no recurrent problems with depression. Dr. Salgado
referred Mills to Dr. Rigoberto Puente-Guzman of Rehabilitation Medicine
Associates for pain Mills was experiencing in his lower back.
At Mills’ initial visit to Dr. Puente-Guzman on May 12, 1999, the doctor
placed him on sedentary, light level activity and warned him to avoid climbing or
repetitive bending or stopping. Mills continued treatment with Dr. Puente-Guzman
throughout the summer and on November 1, 1999, Dr. Puente-Guzman determined
Mills had reached Maximum Medical Improvement (“MMI”) with a permanent
impairment rating of 7.0%.
When Dr. Puente-Guzman examined Mills on December 6, 1999, Mills
reported that his pain had worsened and he was having trouble with depression,
anxiety, and anger. The doctor’s notes indicate that Mills underwent a Functional
Capacity Evaluation on November 17, 1999 which showed that he could perform
medium category work. Dr. Puente-Guzman recommended a psychological
consultation. He repeated this recommendation when Mills returned on February 9,
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2000 complaining of lower back pain and numbness.
On March 13, 2000, Mills saw Dr. Michael Amiel, a psychiatrist, for
depression and anxiety. Dr. Amiel determined that Mills suffered from a mood
disorder partially caused by the work injury in January 1999. Amiel found that
Mills’ global assessment functioning (“GAF”) score was 60 and, although not at
MMI, he did not present any significant psychiatric restrictions. He recommended
Mills attend weekly psychotherapy for three months.
Mills received a psychiatric review with accompanying mental residual
function capacity assessment (“MRFC”) on June 19, 2000. The MRFC indicated
that Mills displayed characteristics of an affective disorder and somatoform
disorder. The assessment showed a slight functional limitation in Mills’ daily
living activities and his maintenance of social functioning. It further indicated
moderate limitations in his ability to carry out detailed instructions, maintain
attention and concentration for extended periods, complete a normal workday and
workweek without interruptions from psychological symptoms, and to accept
instructions and respond criticism from supervisors.
Beginning July 14, 2000, Mills attended psychotherapy sessions with Dr.
Paula Lovett. At the initial interview, Dr. Lovett performed several psychological
tests. She diagnosed Mills as “experiencing a depressive disorder; NOS [not
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otherwise specified],” and “a pain disorder associated with both psychological
factors and a general medical condition.” She noted that this was directly related
to his work injury in January 1999. She further indicated a GAF of 60, but
withheld prognosis pending treatment.
On August 21, 2000, Mills asked Dr. Puente-Guzman for a trial of
antidepressant medication because of problems with his mood. He attend two
more psychotherapy sessions with Dr. Lovett on September 8th and September
11th. On October 2, 2000, Mills reported to Dr. Puente-Guzman that his condition
was “overall stable.”
A second residual functioning capacity assessment and MRFC were
completed on October 17, 2000. The MRFC concluded that Mills was moderately
limited in his abilities to maintain socially appropriate behavior, get along with
coworkers, and sustain concentration to complete a normal workday and
workweek.
Dr. Pino saw Mills on March 27, 2001 and determined his GAF score was
71. His notes indicate that Mills was oriented and that there was no evidence of
cognitive deficits. Additionally, Mills had no current suicidal ideas and his
judgment and insight were good. On April 24, 2001, Dr. Pino determined that
Mills’ GAF remained at 71.
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On May 22, 2001, Dr. Pino noted that Mills had reached MMI but he needed
to continue therapy to treat his illness, to attempt to alleviate his suffering, and to
prevent suicidal depressive relapse. Dr. Pino recommended outpatient, individual
bio-psycho-social therapy. He determined that Mills’ GAF remained at 71.
On May 23, 2001, Dr. Pino administered a MMI, Evaluation of Psychiatric
Impairment, and concluded that Mills’ psychiatric impairment rating was 12% and
that his GAF was 41. The evaluation indicated no intellectual impairment, a severe
deficit in thinking, a poor significant deficit in judgment, and severe mood and
behavioral problems. Dr Pino’s evaluation also indicated that Mills had plateaued
in his treatment and that he had poor improvement potential.
Mills was readmitted to the hospital on July 27, 2001 for depression after he
told his wife he planned to commit suicide. Mills complained of nightmares and
visual and auditory hallucinations. Mills was diagnosed with, and treated for,
depression and suicidal ideation, and he was released the following day.
On August 1, 2001, Mills saw Dr. Puente-Guzman and denied that he would
ever kill himself. The doctor concluded that Mills should continue “with full-time,
sedentary to light duty restrictions.” On August 15, 2001, Mills saw Dr. Pino who
determined that Mills had reached MMI, but still needed therapy to alleviate
suffering and prevent relapse. Mills’ GAF remained at 41. Dr. Pino recommended
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outpatient, individual therapy.
Dr. Pino administered a MRFC on September 5, 2001, which indicated that
Mills had a mild limitations in his abilities to (1) remember locations and simple
instructions, (2) carry out simple instructions, (3) make work-related decisions, (4)
ask simple questions or request assistance, (5) be aware of normal hazards and take
appropriate precautions, and (6) set realistic goals. The MRFC also indicated a
moderate limitation in Mills’ ability to remember detailed instructions and sustain
an ordinary routine without special supervision, and a marked limitation in his
ability to carry out detailed instructions. Mills showed an extreme limitation in his
ability to (1) maintain attention and concentration for extended periods of time, (2)
perform activities within a schedule, (3) work in coordination with others without
distraction, (4) complete a normal workday or workweek, (5) interact appropriately
with the general public, (6) accept instructions and respond to criticism, (7) get
along with coworkers without distracting them, and (8) maintain socially
appropriate behavior.
On October 19, 2001, Dr. Puente-Guzman discontinued Mills’ oxycontin
prescription because of Mills’ inability to follow the narcotic contract agreement.
In a psychotherapy session with Dr. Lovett that same day, Mills complained of
frustration with Dr. Puente-Guzman’s treatment and the system. On October 31,
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2001, Mills called Dr. Lovett to say he planned to go to the psychiatric hospital
because of pain. The doctor told his wife that the hospital was unlikely to admit
him unless he was suicidal and the wife indicated that she didn’t want to travel to
the hospital if there was no chance of admission.
On November 15, 2001, Dr. Lovett reviewed Mills’ file to determine
whether he reached MMI. She completed a medical report which indicated that he
had reached MMI on 11/15/01 with a 3% permanent impairment rating. Dr. Lovett
indicated that there were no psychological restrictions and deferred to Dr. Puente-
Guzman for physical restrictions.
Mills returned to Dr. Pino on January 18, 2002. Dr. Pino concluded Mills’
GAF score was 41. Dr. Pino diagnosed Mills with “major depression, with
anxiety, [and with] insomnia that is partially treated.” After seeing Mills in
January and March 2002 with an unchanged condition, Dr. Puente-Guzman
determined based on a clinical pain assessment that Mills had chronic pain
syndrome based on recurrent pain on July 1, 2002. Dr. Puente-Guzman opined
that Mills was mildly restricted to full time sedentary to light duty, but also noted
that he deferred to psychiatrists as to any psychological issues.
At the benefits hearing, the ALJ posed one hypothetical to the vocational
expert (“VE”) asking what employment would be available to a man with Mills’
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educational background and physical limitations that was “limited to unskilled
work activity not requiring social interactions beyond a few words.” The VE
concluded that the individual could perform three jobs–surveillance system
monitor, ticket seller, and parking lot attendant. When Mills’ attorney posed a
hypothetical using the same restrictions but adding “no social interaction” and
difficulty concentrating for more than 20 to 30 minutes at a time. The VE found
that the person could not perform those three jobs or any other job.
The ALJ denied benefits finding that although Mills had not engaged in
substantial gainful activity since the alleged onset of the disability and he had
severe impairments of lumbosacral disease and depressive disorder, these
impairments did not meet or medically equal one of the listed impairments.
The ALJ did not give Dr. Pino’s findings significant weight on the basis that the
limitations were “excessive” and were “not supported by evidence in the record.”
The ALJ specifically stated that Mills had discontinued his psychotropic
medications without any recurrence of depression, and that Dr. Puente-Guzman’s
findings regarding Mills’ limitations contradicted Dr. Pino’s findings. Although
the ALJ found Mills could not return to his past relevant work, it concluded that
there were significant number of jobs in the economy that he could perform.
STANDARD OF REVIEW
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In reviewing claims brought under the Social Security Act, we must affirm
the Commissioner’s decision if we determine that: (1) the decision reached is
supported by substantial evidence in the record; and (2) the correct legal standards
were applied. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
“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.
Commissioner of Social Security, 363 F.3d 1155, 1158 (11th Cir. 2004). “Even if
the evidence preponderates against the Commissioner's findings, we must affirm if
the decision reached is supported by substantial evidence.” Id. at 1158-59.
The failure of a party to object to the magistrate report precludes review of
findings of fact except on grounds of plain error or manifest injustice, but does not
limit review of legal conclusions. United States v. Roberts, 858 F.2d 698, 701
(11th Cir. 1988); United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982).
Here magistrate and district court reviewed the ALJ’s findings for substantial
evidence. Because this is a legal conclusion rather than a finding of fact, we can
exercise judicial review despite Mills’ failure to object to the magistrate report.
DISCUSSION
Mills argues that the ALJ gave improper weight to Dr Pino’s medical
opinion. Generally, the opinions of examining physicians are given more weight
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than non-examining, treating more than non-treating, and specialists on issues
within their areas of expertise more weight than non-specialists. 20 C.F.R. §
404.1527(d)(1), (2) & (5). The opinion of a treating physician “must be given
substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). 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.” Id. at 1240-41.
If the ALJ does not give the treating doctor’s opinion substantial weight, it must
clearly articulate its reasons, and failure to do results in reversible error. 20 C.F.R.
§ 404.1527(d)(2); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The
ALJ's proffered reasons for discounting the treating doctor’s opinion must be
supported by substantial evidence. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir.
1988). However, when an incorrect application of the regulations results in
harmless error because the correct application would not contradict the ALJ's
ultimate findings, the ALJ's decision will stand. See Diorio v. Heckler, 721 F.2d
726, 728 (11th Cir. 1983).
Mills has had a number of treating physicians. He sought treatment from Dr.
Salgado and Dr. Puente-Guzman for his back problems and from Dr. Pino and Dr.
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Lovett for his mental condition. Dr. Pino found that Mills suffered from
significant psychological limitations on his ability to work. The ALJ gave Dr.
Pino’s findings no significant weight finding them “excessive” and not supported
by the evidence in the record. The ALJ specifically reasoned that (1) Mills had
discontinued his psychotropic medications in 1999 with no recurrent problems
with depression and (2) Dr. Pino’s findings were contrary to Dr. Puente-Guzman’s
July 1, 2002 findings of only mild limitations.
The ALJ’s articulated reasons are not supported by substantial evidence.
First, it is evident from the record that Mills had reoccurring problems with
depression after 1999. He reported problems with his mood beginning in
December 1999, requested medication for his mood in August of 2000, and was
again hospitalized for treatment of depression in July of 2001. Second, Dr. Puente-
Guzman focused his treatment on Mills’ back injury; he does not specialize in
mental health and referred Mills’ to a specialist for psychiatric care. In contrast,
Dr. Pino, a psychiatrist, had a long-standing treatment relationship with Mills
beginning from his hospitalization for psychiatric issues in 1998. Dr. Pino
specifically treated Mills’ psychological problems using drug therapy to combat
his depression. Under the regulations, the opinion of such a treating physician and
specialist in the area is generally entitled to more weight than that of a non-treating
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doctor and non-specialist. See 20 C.F.R. 404.1527(d)(2)(ii) & (5). Furthermore,
Dr. Puente-Guzman’s and Dr. Pino’s are not in conflict because Dr. Puente-
Guzman based his functional limitation assessment on his treatment of Mills’
physical condition and specifically deferred the assessment of any mental
limitations to the psychiatrists in his report. Therefore, we cannot find that
substantial evidence supported the ALJ’s articulated reasons for discounting Dr.
Pino’s medical opinion of Mills’ psychiatric condition.
However, our review does not end there, because the decision need not be
disturbed if the error was harmless. See Diorio, 721 F.2d at 729 (finding that
ALJ’s mischaracterization of past work was harmless error, because it was
irrelevant when there was no finding of severe impairment). While there is
evidence in the record, such as Dr. Lovett’s and Dr. Amiel’s opinions, that
supports the ALJ’s final decision, the ALJ did not mention nor explain the weight
given to either of these opinions. We cannot say the error was harmless without re-
weighing the evidence. To do so would call for conjecture that invades the
province of the ALJ. See Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir.
2005) (per curiam) (remanding where the ALJ failed to consider certain factors and
indicate their impact on his ultimate functional capacity conclusion); Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 546 (6th Cir. 2004)(“A court cannot excuse the
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denial of a mandatory procedural protection simply because, . . . 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.”)
The ALJ is not required to give the treating doctor’s opinion substantial
weight, but if he does not do so, he must show good cause by clearly articulating
reasons that are supported by the evidence. Because this ALJ has failed to do so,
we reverse and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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