Goodson v. Astrue (CONSENTS)

Filing 23

MEMORANDUM OPINION and Order that the decision of the Commissioner is REVERSED and REMANDED. A separate order is entered herewith. Signed by Honorable Terry F. Moorer on 12/31/08. (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 LISA M. GOODSON, Plaintiff, v. M IC H A E L J. ASTRUE, C O M M IS S IO N E R OF SOCIAL S E C U R IT Y D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 1:08-cv-231-TFM [w o]

M E M O R A N D U M OPINION F o llo w in g administrative denial of her application for disability insurance benefits u n d e r Title II of the Social Security Act, 42 U.S.C.§§ 401, et seq. and Supplemental Security In c o m e benefits under Title XVI of the Social Security Act, 42. U.S.C. §§ 1381, et seq., Lisa M . Goodson ("Goodson" or "Plaintiff") received a requested hearing before an a d m in istra tiv e law judge ("ALJ") who rendered an unfavorable decision. When the Appeals C o u n c il rejected review, the ALJ's decision became the final decision of the Commissioner o f Social Security ("Commissioner"). Judicial review proceeds pursuant to 42 U.S.C. § 4 0 5 (g ) and 28 U.S.C. § 636(c), and for reasons herein explained, the court REMANDS the C o m m is s io n e r's decision. I . NATURE OF THE CASE G o o d so n requests judicial review of the Commissioner of Social Security

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A d m in is tra tio n 's decision denying her application for disability insurance benefits and s u p p le m e n ta l security income. United States district courts may conduct limited review of s u c h decisions to determine whether they comply with applicable law and are supported by s u b s ta n tia l evidence. 42 U.S.C. § 405 (2006). The court may affirm, reverse and remand w ith instructions, or reverse and render a judgment. Id. I I . STANDARD OF REVIEW Ju d icia l review of the Commissioner's decision to deny benefits is narrowly c ir c u m s c rib e d . The court reviews a social security case to determine whether the

C o m m is s io n e r's decision is supported by substantial evidence and based upon proper legal s ta n d a rd s . Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The court "may not d e c id e the facts anew, reweigh the evidence, or substitute [its] judgment for that of the C o m m is s io n e r," but rather "must defer to the Commissioner's decision if it is supported by s u b s ta n tia l evidence." Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting B lo o d s w o r th v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also Foote v. Chater, 67 F .3 d 1553, 1560 (11th Cir. 1995) (stating the court should not re-weigh the evidence). This c o u rt must find the Commissioner's decision conclusive "if it is supported by substantial e v id e n c e and the correct legal standards were applied." Kelley v. Apfel, 185 F.3d 1211, 1213 (1 1 th Cir. 1999), (citing Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997)). Substantial evidence is more than a scintilla -- i.e., the evidence must do more than m e re ly create a suspicion of the existence of a fact, and must include such relevant evidence

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a s a reasonable person would accept as adequate to support the conclusion. Lewis, 125 F.3d a t 1440 (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 8 4 2 (1971) and MacGregor v. Bowen, 785 F.2d 1050, 1053 (11th Cir. 1986)); Foote, 67 F.3d a t 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson, 402 U .S . at 401, 91 S.Ct. at 1427). If the Commissioner's decision is supported by substantial evidence, the district court w ill affirm, even if the court would have reached a contrary result as finder of fact, and even if the court finds that the evidence preponderates against the Commissioner's decision. E d w a r d s v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); see also Moore v. Barnhart, 4 0 5 F.3d 1208, 1213 (11th Cir. 2005) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th C ir. 1990) ("even if the evidence preponderates against the Secretary's factual findings, we m u st affirm if the decision reached is supported by substantial evidence."). The district court m u s t view the record as a whole, taking into account evidence favorable as well as u n f a v o ra b le to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792 F.2d 129, 1 3 1 (11th Cir. 1986)). The district court will reverse a Commissioner's decision on plenary review if the d e c isio n applies incorrect law, or if the decision fails to provide the district court with s u f f ic ie n t reasoning to determine that the Commissioner properly applied the law. Keeton v . Department of Health and Human Services, 21 F.3d 1064, 1066 (11th Cir. 1994) (internal c ita tio n s omitted). There is no presumption that the Secretary's conclusions of law are valid.

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Id .; Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). I I I. BACKGROUND AND PROCEEDINGS G o o d s o n claims disability because of carpel tunnel syndrome/nerve damage, high b l o o d pressure, bent valve in heart, asthma, sleep apnea, depression, arthritis, and migraines. (T r. 144). She further asserts obesity, irritable bowel syndrome and fibromyalgia. See Doc. 1 4 , with record citations. Following initial administrative denial of her claim, Goodson re q u e ste d a hearing before an administrative law judge ("ALJ") (Tr. 33-34, 54). ALJ James D . Smith convened an evidentiary hearing on June 16, 2006. (Tr. 403-429). Goodson was re p re se n te d by an attorney, Norma Hilboldt. ALJ Smith received direct testimony from G o o d son and a vocational expert, Sue Berthaum. The remaining evidentiary record consisted o f medical reports from treating sources and residual functional capacity assessments c o m p l e te d by medical consultants who reviewed Goodson's medical records upon request o f Alabama Disability Determination Services.1 ALJ Smith rendered an unfavorable verdict o n August 22, 2006. (Tr. 35-48). Goodson requested a review of the decision by the A p p ea ls Council which remanded the case on March 13, 2006. (Tr. 72-80). O n August 1, 2007, ALJ Smith convened a second evidentiary hearing. (Tr. 430-54). G o o d s o n was represented by Georgia Ludlum and Sue Berthamue testified as the vocational

"Pete Barton" (indecipherable handwriting) (Tr. 288-295) and Luis A. Marco, M.D. (Tr. 296-300). "A medical consultant is a person who is a member of a team that makes disability determinations in a State agency, as explained in § 404.1615, or who is a member of a team that makes disability determinations for us when we make disability determinations ourselves." 20 C.F.R. § 404.1616(a)(2005). Page 4 of 12

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ex p ert. ALJ Murchison rendered a second unfavorable decision on September 21, 2007. (Tr. 1 1 -2 5 ). On January 28, 2008, the Appeals Council denied Goodson's request for review. (T r. 7-9). This Social Security Appeal was filed on March 28, 2008. See Doc. 1, Complaint. I V . ADMINISTRATIVE DECISION A. S e q u e n t ia l Evaluation Process T h e Commissioner utilizes a five-step, burden-shifting analysis to determine when c laim a n ts are disabled. 20 C.F.R. §§ 404.1520, 416.920 (2005); Phillips v. Barnhart, 357 F .3 d 1232, 1237 (11th Cir. 2004). When a claimant is found disabled ­ or not ­ at an early s te p , remaining steps are not considered. Id. This procedure is a fair and just way for d e te rm in in g disability applications in conformity with the Social Security Act. See Bowen v . Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (citing Heckler v . Campbell, 461 U.S. 458, 461, 103 S. Ct. 1952, 1954, 76 L.Ed.2d66 (1983)) (The use of th e sequential evaluation process "contribute[s] to the uniformity and efficiency of disability d e te rm in a tio n s " ). The burden of proof rests on the claimant through Step 4. See Phillips, 357 F.3d at 1 2 3 7 -3 9 . As such, the claimant bears the burden of proof for the following: (1 ) (2 ) (3 ) W h e th e r she is currently performing a substantial gainful activity; W h e th e r she has a severe impairment; W h e th e r that severe impairment meets or exceeds an impairment in the lis tin g s ; and

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(4 )

W h e th e r she can perform her past relevant work.

P h illip s , 357 F.3d at 1237-1239. A prima facie case of qualifying disability exists when a c la im a n t carries the Step 1 through Step 4 burden. Only at the fifth step does the burden shift to the Commissioner, who must then show there are a significant number of jobs in the n a tio n a l 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 in g Capacity ("RFC"). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite her impairments, and is based on all relevant medical and other evidence. Id. M o re v e r, it can contain both exertional and nonexertional limitations. Id. at 1242-43. At the f i f th step, the ALJ considers the claimant's RFC, age, education, and work experience to d e te rm in e if there are jobs available in the national economy the claimant can perform. Id. a t 1239. In order to do this, the ALJ can either use the Medical Vocational Guidelines2 (" g rid s " ) or call a vocational expert. Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h of these factors 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. Otherwise, the ALJ may use a v o c a tio n a l expert. Id. A vocational expert is an expert on the kinds of jobs an individual can

2

See 20 C.F.R. pt. 404 subpt. P, app. 2 Page 6 of 12

p e rf o rm based on her capacity and impairments. Id. In order for a vocational expert's te stim o n y to constitute substantial evidence, the ALJ must pose a hypothetical question w h ic h comprises all of the claimant's impairments. Jones v. Apfel, 190 F.3d 1224, 1229 (1 1 th Cir. 1999) (citing McSwain v. Bowen, 814 F.2d 617, 619-20 (11th Cir. 1987)). B. F in d in g s and Conclusions E m p lo yin g the five step process, ALJ Smith found that Goodson has not engaged in substan tial gainful activity since the alleged onset date (Step 1); has severe impairments (Step 2 )3 ; the impairments, considered individually and in combination, do not meet or equal in sev erity any impairment set forth in the listings (Step 3); and Goodson is unable to perform a n y of her past relevant work (Step 4). (Tr. 16-23). As such, Goodson presents a prima facie c a se . Thus, ALJ Smith analyzed whether Goodson's impairments prevent her from

p e rf o rm in g work in the national economy taking into account her RFC and vocational f a c to rs . At Steps Four and Five, ALJ Murchison states he evaluated Goodson's RFC and also rec eive d testimony from a vocational expert regarding Goodson's ability to perform work a v a ila b le in the national economy (Tr. 24). Upon consideration of the record, including the v o c a tio n a l expert's testimony, ALJ Murchison determined Goodson retains the RFC to p erf o rm work available in the national economy for jobs in the light exertional work

ALJ Smith found the following "severe" impairments: carpel tunnel syndrome, asthma, depression, and anxiety. (Tr. 16). Page 7 of 12

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c a te g o ry. (Tr. 17-18). Consequently, the ALJ found Goodson has not been disabled since the alleged onset date. (Tr. 24-25). V . ISSUES G o o d so n raises two issues on appeal: (1 ) W h e th e r the ALJ erred as a matter of law when he failed to find that M s . Goodson's alleged physical impairments of obesity, hypertension, irrita b le bowel syndrome, and fibromyalgia are severe; and W h e th e r the ALJ erred as a matter of law when he gave more weight to Ms. Goodson's consulative physician's opinion without attempting to discredit the opinions of Ms. Goodson's treating physicians.

(2)

P l. Br. at p. 1. The Commissioner recharacterizes the issues as "whether the final decision of the C o m m is s io n e r is consistent with the Social Security Act, regulations, and applicable case la w , and whether the findings of fact are supported by substantial evidence on the record as a whole." Def. Br. at p. 8. The Commissioner also restates the issues as similarly worded b y Goodson: "whether the ALJ erred by failing to find that Plaintiff's alleged physical im p airm en t s of obesity, hypertension, irritable bowel syndrome, and fibromyalgia were `s e v e re '" and whether the ALJ erred by giving more weight to the opinion of the consultative e x a m in e r without discrediting the opinions of Plaintiff's treating physicians. Id. Regardless, th e Commissioner does specifically address the issues raised by Plaintiff.

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V I . DISCUSSION AND ANALYSIS A. A L J 's Failure to Address with Specificity Claimant's Physical Impairments in h is Step 2 Analysis G o o d s o n asserts the ALJ erred when he failed to find that she suffered the severe im p airm en t s of obesity, hypertension, irritable bowel syndrome, and fibromyalgia. Pl. Br. a t 1, 4. Specifically, Goodson argues the above physical impairments are severe and the ALJ f u rth e r erred when he did not articulate any reason for finding these impairments not severe. A L J Smith states "[t]he claimant does not have an impairment or combination of im p a irm e n ts that meets or medically equals on of the listed impairments in 20 CFR Part 404, S u b p a rt P, Appendix 1." (Tr. 16). The Eleventh Circuit has determined an ALJ's statement th a t a claimant's severe impairment, or combination of impairments, do not meet the listings c a n be taken as evidence that the combined effects of all impairments was considered. W ils o n v. Barnhart, 284 F.3d 1219, 1224-25 (11th Cir. 2002); (citing Jones v. Dept. of H e a l th and Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991)); Wheeler v. Heckler, 784 F .2 d 1073, 1076 (11th Cir. 1986). However, the information immediately following the A L J 's statement relates solely to the mental impairments. (Tr. 16-17). Specifically, the p a ra g ra p h begins with "[t]he claimant's mental impairments, considered singly and in co m b inatio n , do not meet or equal the criterial of listings 12.04 and 12.06." (Tr. 16). There is no reference to Goodson's physical impairments in this discussion. S e v e ra l pages later, when discussing Goodson's pain levels and discrediting her te stim o n y regarding her levels of pain, ALJ Smith provides a brief paragraph regarding Page 9 of 12

" [ a ]n y other factors concerning the claimant's functional limitations and restrictions due to p a in and other symptoms (SSR 96-7p)" and includes brief references to Plaintiff's weight, irrita b le bowel syndrome, and fibromyalgia. (Tr. 19). There is no reference to hypertension in this paragraph. While hypertension is referenced in ALJ Smith's discussion of medical re p o rts , there is no clear indication that he considered it in making his determination re g a rd in g the severity of her impairments - either singly or in combination. Further, the A L J 's brief references in later sections to Goodson's obesity, irritable bowel syndrome, and f ib ro m ya lg ia do not provide the reviewing Court with a clear indication that these physical im p a irm e n ts were considered in the Step Two analysis.4 All of the plaintiff's impairments m u s t be considered in combination even when the impairments considered separately are not s e v e re . Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir.1985). A n ALJ must state, with sufficient specificity, the reasons for his decision. Here, the A L J made no express determination as to the severity of these impairments nor did his d is c u ss io n on the "combination of impairments" include reference to Goodson's physical im p a irm e n ts . Accordingly, this constitutes reversible error. B. W h e th e r the ALJ properly evaluated the medical opinions of the record G o o d s o n alleges the ALJ gave more weight to the consultative physician's opinion w ith o u t attempting to discredit the opinions of her treating physicians. The regulations give p ref ere n ce to the opinion of the treating physicians. 20 C.F.R. § 404.1527(d)(2). However, This is especially true in light of the previous remand wherein the ALJ was specifically instructed to consider Goodson's obesity. (Tr. 80). Page 10 of 12
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" th e ALJ has the discretion to weigh objective medical evidence and may choose to reject th e opinion of a treating physician while accepting the opinion of a consulting p h ysic ian ..[ b u t] if he follows that course of action, he must show "good cause" for his d e c is io n ." Gholston v. Barnhart, 347 F.Supp.2d 1108, 1114 (M.D. Ala. 2003). A L J Smith provided a detailed description of Goodson's medical records . (Tr. 19-23, 4 0 -4 3 ). Dr. Mark Ellis examined Goodson at the request of the Social Security

A d m in istra tio n . (Tr. 203-209). ALJ Smith specifically notes that "more weight is given to D r. Ellis." (Tr. 22). Goodson avers this is an error because the ALJ did not attempt to d iscred it the opinions of Goodson's treating physicians. As noted by the Commissioner, c o n tra ry to Goodson's assertion, Dr. Ellis' opinion does not contradict the treatment records f ro m her treating physicians. See Def. Br. at 12. In her brief, Goodson points to various medical incidents including flare-ups of her h yp e rte n s io n and the fact Goodson had been prescribed splints/braces to wear on her arms b e c a u s e of carpel tunnel syndrome. See Pl. Br. at 14. A review of the medical records shows th a t no treating or examining physician opined Goodson is so limited that she would be p re c lu d e d from gainful work activity at all exertional levels. Further, Goodson's daily a c tiv itie s include getting her son ready for school, driving him to school, doing household ch o res, cooking, yard work, and trying to "walk a lot." (Tr. 213, 418). It is not for this Court to reweigh the evidence, but rather determine whether the ALJ has articulated sufficient re a so n s for his decision. In terms of his reliance on Dr. Ellis' opinion, the Court finds no

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erro r. V I I . CONCLUSION P u r s u a n t to the findings and conclusions detailed in this Memorandum Opinion and O r d e r, the court concludes that the case should be remanded for review of evidence under th e proper legal standards as to Goodson's all alleged impairments in combination. It is, th e re f o re , ORDERED that the decision of the Commissioner is REVERSED AND R E M A N D E D . A separate order is entered herewith. DONE this 31st of December, 2008. /s / Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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