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, )

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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 Page 1 of 12 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 Page 2 of 12 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. Page 3 of 12 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 1 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 Page 5 of 12 (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 3 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. Page 8 of 12 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 4 " 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 Page 11 of 12 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 Page 12 of 12

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