Chitty v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER; A separate judgment will issue. Signed by Honorable Wallace Capel, Jr on 12/30/08. (sl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION C H E R Y L D. CHITTY, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:07cv861-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P lain tiff Cheryl D. Chitty applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (2000) and for supplemental security in c o m e benefits under Title XVI, 42 U.S.C. § 1381 et seq. (hereinafter collectively "the A c t" ). Her applications were denied at the initial administrative level. Plaintiff then re q u e ste d and received a hearing before an Administrative Law Judge (ALJ). Following the h e a r in g , the ALJ also denied the claims. The Appeals Council rejected a subsequent request f o r review. The ALJ's decision consequently became the final decision of the Commissioner o f Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1 9 8 6 ). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.

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2 8 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry o f a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Ju risd iction (Doc. #9); Def.'s Consent to Jurisdiction (Doc. #10). Based on the Court's re v ie w of the record and the briefs of the parties, the Court REVERSES the decision of the C o m m i s s io n e r . II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? ( 3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 2
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q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or
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McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
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See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s um p tio n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). III. ADMINISTRATIVE PROCEEDINGS P la in tif f was forty-four years old and had completed the tenth grade at the time of the

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h e a rin g before the ALJ. (Tr. 19, 326-27). Plaintiff's primary past relevant work experience in v o lv e d work as a "material sorter" at a wood processing plant. (Tr. 22, 76). Following the a d m in is tra tiv e hearing, and employing the five-step process, the ALJ found Plaintiff had not en g ag ed in substantial gainful activity since the alleged onset date of May 15, 2005 (Step 1). (T r. 16). At Step 2, the ALJ found that Plaintiff suffers from the "following severe im p a irm e n ts: hypertension; headaches; major depressive disorder, moderate; and anxiety d is o rd e r." (Tr. 17). The ALJ nonetheless found Plaintiff did not possess an impairment or c o m b in a tio n of impairments that met or equaled the criteria of any listed impairment set forth in the Listing of Impairments and, additionally, that "[n]o physician has mentioned l i m i t a tio n s caused by any medically determinable impairment[s] that are of listing level s e v e rity." (Tr. 17). Thus, the ALJ found that Plaintiff retains the RFC to "perform unskilled w o rk activity at the medium exertional level." (Step 3). (Tr. 17-21). At Step 4, the ALJ f o u n d that Plaintiff could perform her past relevant work as a "material sorter." (Tr. 22). At S te p 5, the ALJ determined that, based on her age, education, past work experience, and R F C , Plaintiff could perform jobs that exist in significant numbers in the national economy. (T r. 21). Consequently, the ALJ found Plaintiff had not been disabled since the alleged onset d a te . IV. P L A I N T I F F 'S CLAIMS P la in tif f sets forth three claims in challenging the Commissioner's decision: (1) "the A L J 's reasons for rejecting the opinion of Dr. Bendinger . . . are not based on substantial 5

e v id e n c e[ ;]" (2) "[t]he ALJ's finding that Ms. Chitty can perform the exertional demands of m e d i u m work is not based on substantial evidence[;]" and (3) "[t]he ALJ's finding that Ms. C h itty retains the [RFC] to perform her past relevant work as a material sorter is not based o n substantial evidence." (Doc. #15 at 1). Because the Court finds reversible error with re sp e c t to an issue that blends components of Plaintiff's first and second claims, below the C o u rt pretermits discussion of claim three. V. DISCUSSION A. T h e ALJ reversibly erred in apparently concluding that the State agency P h y sic a l Residual Functional Capacity Assessment made a part of the r e c o r d constituted "medical expert" opinion about Plaintiff's functional c a p a c i ti e s .

T h e ALJ found that Plaintiff "retains the residual functional capacity to perform u n sk ille d work activity at the medium exertional level." (Tr. 17). The ALJ reached this d e te rm in a tio n despite the apparently contradictory conclusion of Plaintiff's treating p h ys ic ia n , Dr. Bendinger. Prior to the hearing before the ALJ, Dr. Bendinger had been P la in tif f 's treating physician for a period of around eight years. In completing a Physical R e sid u a l Functional Capacity Questionnaire ahead of the hearing, Dr. Bendinger listed s e v e ra l of Plaintiff's impairments and described her symptoms while ultimately concluding th a t she is incapable of performing "even `low stress' jobs." (Tr. 290-91). The ALJ afforded " little weight" to Dr. Bendinger's opinion because, purportedly, "there is no evidence to s h o w that Dr. Bendinger performed a functional capacity evaluation prior to his assessment

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o f the claimant's functional abilities," because Dr. Bendinger's opinion was "inconsistent w ith the nature of treatment [he had] provided, which was routine outpatient care," and b e c a u s e Dr. Bendinger's findings were inconsistent "with the minimal findings on diagnostic stud ies." (Tr. 21). The ALJ also found that Dr. Bendinger's assessment of Plaintiff's c o n d itio n was "inconsistent with the claimant's activities of daily living, particularly the c la im a n t's description of her activities while providing care for her two disabled adult sons." (T r. 21). Plaintiff contends both that Dr. Bendinger's assessment is supported by the record, an d that the ALJ's finding to the contrary, as well as his ultimate findings as to Plaintiff's R F C , are not supported by substantial evidence. In December, 2005, a State agency disability examiner completed a Physical Residual F u n c tio n a l Capacity Assessment regarding Plaintiff. The exact findings of the lay disability e x a m in e r appear to have been wholly adopted by the ALJ in determining Plaintiff's RFC. C o m p a r e Physical Residual Functional Capacity Assessment (Tr. 222-229) with ALJ's D ec isio n (Tr. 17). Moreover, it appears that the ALJ considered the disability examiner's a ss e ss m e n t as that of a "State Agency medical expert[]." (Tr. 18). However, as Plaintiff c o n te n d s, and Defendant does not challenge, it does not appear that any State agency p h ysic ian reviewed or concurred with the findings of the disability examiner. Thus, it a p p e a rs that the ALJ misapprehended the nature, and ultimate significance, of the State a g e n cy residual functional capacity assessment. This error assumes special significance b e c au s e the ALJ discounted the opinion of Plaintiff's treating physician which, as Plaintiff

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n o tes, constitutes the only expert medical opinion about the claimant's RFC in the entire re c o rd . See Dewey v. Astrue, 509 F.3d 447, 449-50 (8th Cir. 2007). In Dewey, the Eight Circuit reversed the Commissioner's decision denying disability b e n e f its and remanded to the agency for a rehearing because "the administrative decision in th is case reveals that the Administrative Law Judge erroneously relied on the opinion of a p e rs o n with no medical credentials as a medical consultant." Id. at 448. Specifically, in d e n yin g Dewey's disability claim, "the ALJ explicitly credited a `Physical Residual F u n c tio n a l Capacity Assessment' authored by" a State agency counselor/examiner. Id. D e sp ite the fact that the State agency employee was not a physician and "lacked any other cre d en tials that would qualify her to act as a medical consultant under 20 C.F.R. § 4 0 4 .1 6 1 6 (b )[ ,]" the ALJ "labored under the belief that the Physical Residual Functional C a p a city Assessment had been authored by a physician[.]" Id. at 448-49. The Eighth Circuit d e ter m in e d that the ALJ's apparent misapprehension of the report resulted in a legally e rro n e o u s ruling which, in light of the fact that the ALJ had "refused to give controlling w e ig h t to [the more restrictive opinion of] Dewey's treating physician," could not be deemed h a rm le s s . Id. at 449-50. T h e circumstances in this case are substantially identical to those in Dewey. First, " [ t]h e re is certainly no substantial evidence that the Residual Functional Capacity A s s e ss m e n t in the record was the opinion of a physician." Dewey, 509 F.3d at 449. Plaintiff f irs t alleged this deficiency respecting the State agency Assessment in her initial brief. See 8

D o c . #15 at 11. The Commissioner has not rebutted Plaintiff's assertion that the State agency d is a b ility examiner lacks the credentials of a physician or other medical expert. Likewise, in wholly adopting the findings of the State agency disability examiner and crediting them a s "medical expert" opinion, it is evident that the ALJ "inadvertently weighed the opinion o f a lay person under the rules appropriate for weighing the opinion of a medical consultant, w h ic h would be a legal error in applying the ruling." Id.5 Given the ALJ's legal errors in asse ssing the weight to be given the State agency physical RFC assessment and the ALJ's d e c is io n to discount the opinion of Plaintiff's treating physician, this Court cannot conclude th a t "the ALJ would inevitably have reached the same result if he had understood that the [ p h ys ic a l] Residual Functional Capacity Assessment had not been completed [or even re v ie w e d ] by a physician or other qualified medical consultant." Id. at 449-50. Accordingly, th is matter is due to be reversed and remanded to the ALJ for rehearing. V. CONCLUSION

T h e Court has carefully and independently reviewed the record and concludes the

Apart from describing the State agency disability examiner's opinion as the "opinion[] of . . . State agency medical experts," (Tr. 18), the ALJ also cited to Social Security Ruling 96-6p, also cited by the Commissioner in his brief, which provides that the opinions of "State agency medical and psychological consultants and other program physicians and psychologists regarding the nature and severity of an individual's impairment(s) must be treated as expert opinion evidence" by the ALJ. (Tr. 18). While this citation is proper in the context of the Mental Residual Functional Capacity Assessment completed by a State agency psychological consultant (Tr. 203-21), it is not proper in the context of an assessment completed by a lay person and likely further demonstrates the ALJ's erroneous understanding of the State agency report. Dewey, 509 F.3d at 449 (noting the ALJ's "inapposite" citation of SSR 96-6p in relying upon the physical RFC assessment of a State agency lay examiner). 9

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d e c is io n of the Commissioner is REVERSED and the case REMANDED for further p ro c e ed in g s consistent with this opinion. A separate judgment will issue. D O N E this 30th day of December, 2008.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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