Butler v. Astrue

Filing 15

MEMORANDUM OPINION AND ORDER: The Court has carefully and independently reviewed the record and concludes that, for the reasons given above, the decision of the Commissioner is REVERSED and this matter is REMANDED to the Commissioner for further proceedings consistent with this opinion. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr. on 6/24/2010. (dmn)

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 L A R R Y CHARLES BUTLER, 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. 1:09cv802-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P lain tiff Larry Charles Butler applied for disability insurance benefits under Title II o f the Social Security Act ("the Act"), 42 U.S.C. § 401 et seq, and for supplemental security in c o m e under Title XVI of the Act, 42 U.S.C. § 1381, et seq. His applications were denied a t the initial administrative level. Plaintiff then requested and received a hearing before an A d m in i str a tiv e Law Judge (ALJ). Following the hearing, the ALJ also denied the claims. (T r. 14-20). The Appeals Council rejected a subsequent request for review. The ALJ's d e c is io n consequently became the final decision of the Commissioner of Social Security (C o m m issio n er).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is n o w before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c),

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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b o th parties have consented to the conduct of all proceedings and entry of a final judgment b y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #9); D e f .'s Consent to Jurisdiction (Doc. #10). Based on the Court's review of the record and the b rie f s of the parties, the Court REVERSES the decision of the Commissioner and R E M A N D S to the Commissioner for further proceedings. 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). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m iss io n e r ' s findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). 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 u m p t io 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). 4

III.

ADMINISTRATIVE PROCEEDINGS P la in tif f was forty-two years old at the time of the hearing before the ALJ. Tr. 327.

P la in t if f completed his high school education. Tr. 327. The ALJ found that Plaintiff's past re le v a n t work experience includes work as a "laborer." Tr. 18. 5 Following the

a d m in is tra tiv e hearing, and employing the five-step process, the ALJ found Plaintiff had not e n g a g e d in substantial gainful activity since September 2, 2006, the alleged onset date of his d is a b ility (Step 1). Tr. 43. At Step 2, the ALJ found that Plaintiff suffers from the following sev ere impairments: "residuals from surgeries on the right elbow and ankle and knee." Tr. 1 6 . The ALJ then found that Plaintiff "does not have an impairment or combination of im p airm en t s that meets or medically equals one of the listed impairments . . . ." (Step 3) Tr. 1 6 . Next, the ALJ found that Plaintiff has the RFC to "perform light work . . . except such w o rk that requires standing, walking or sitting longer that [sic] 6 hours in an 8 hour day; w o rk that requires climbing of ropes, ladders or scaffolds; work that requires more than o c c as io n a l balancing." Tr. 16. Given this RFC, the ALJ determined that Plaintiff can not p erf o rm any past relevant work (Step 4). Tr. 18. Next, the ALJ found that, given Plaintiff's a g e , education, work experience, and RFC, and after consulting with a vocational expert, " th e re are jobs that exist in significant numbers in the national economy" which Plaintiff can p e rf o rm . (Step 5) Tr. 18. The ALJ found that such occupations include: "Surveillance

Specifically, Plaintiff has worked as a "production worker," "trash collector," "poultry processor," and in custodial occupations. Tr. 318. 5

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m o n ito r," "Parking attendant," "Gate guard," and "Amusement attendant."

Tr. 19.

A c c o rd in g ly, the ALJ determined that Plaintiff "has not been under a disability, as defined in the Social Security Act, from September 2, 2006, through the date of this decision." Tr. 19. IV . P L A I N T I F F 'S CLAIMS P la in tif f alleges three errors requiring reversal of the ALJ's decision: (1) "the ALJ f a ile d to properly evaluate the opinions of Dr. Searcy and Dr. DeHaven, both treating p h ys ic ia n s ;" (2) "the ALJ erred as a matter of law by failing to evaluate [Plaintiff's] d e p re ss io n ;" and (3) "new and material evidence submitted to the Appeals Council warrants re m a n d ." Pl.'s Brief (Doc. #12) at 1. V. DISCUSSION A. T h e ALJ's treatment of Plaintiff's mental impairment of depression.6

P lain tiff claims that the ALJ erred in failing to properly consider Plaintiff's im p a irm e n t of depression, order a consultative psychological exam, and utilize the p s yc h ia tric review technique set forth in 20 C.F.R. § 404.1520a-(a) in rendering his decision. P la in tif f 's Brief (Doc. #12) at 8-12. The ALJ's opinion is devoid of any mention of d e p re ss io n , including Plaintiff's testimony about his depression and the medical evidence

Because the Court finds reversible error with respect to the second issue raised by Plaintiff, the Court pretermits further discussion of Plaintiff's claims about the ALJ's handling of treating physician opinion and whether new evidence submitted to the Appeals Council warrants remand. 6

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relate d to Plaintiff's depression. Acknowledging this fact, Defendant concedes that "the ALJ e r re d by not considering Plaintiff's depression, but submits that the error was harmless b e c au s e if the ALJ had considered Plaintiff's depression, he would have found it caused no lim ita tio n s on Plaintiff's ability to work." Def.'s Brief (Doc. #13) at 11. T h e medical evidence in the record establishes that Plaintiff suffers from depression. P la in t if f has been diagnosed and treated - including the prescription of certain medicines f o r depression by his health care providers. See, e.g., Tr. 258, 262, 264, 268, & 276. F u r th e rm o re , when asked by the ALJ what ailments would prevent him from working, P la in tif f described his difficulties with knee and back pain and then stated as follows: "And, a n d , and my depression, I have a little of that, you know, just based upon me not able to f u n c tio n like I used to do in the past. I guess because of the way I was brought up, you know, an d it affects me a little bit." Tr. 329. Despite this medical evidence and Plaintiff's te s tim o n y, the ALJ failed to address Plaintiff's depression in his opinion. Upon a showing of a "colorable claim of mental impairment," Social Security re g u la tio n s require the Commissioner, at all levels of the administrative process, to apply the " s p e c ia l technique" of review set forth in 20 C.F.R. §§ 404.1520a and 416.920a. See E h r is m a n v. Astrue, 2010 WL 1780248 at *2 (11th Cir. May 5, 2010). Under the "special t e c h n iq u e ," after determining whether or not the claimant suffers from some mental im p a irm e n t(s ), the Commissioner then rates the degree of functional limitation resulting from th e impairment(s). The Commissioner rates the degree of limitation imposed in four distinct 7

" f u n c t io n a l areas" including: "activities of daily living; social functioning; concentration, p e rs is te n c e, or pace; and episodes of decompensation." § 404.1520a(c)(3). The

C o m m is s io n e r uses a five-point scale (none, mild, moderate, marked, and extreme) in rating th e first three functional areas, and a four-point scale (none, one, two, three, and four or m o re ) in rating episodes of decompensation. If the degree of limitation found in all of the f irs t three areas is "none" or "mild," and there are no periods of decompensation, then the C o m m issio n er will generally find the impairment not severe. 20 C.F.R. § 1520a(d)(1). If th e ALJ's scoring of the claimant's limitations compels a finding that the claimant's mental im p a irm e n t(s) is severe, the ALJ then proceeds to determine "if it meets or is equivalent in s e v e rity to a listed mental disorder." § 1520a(d)(2). The Commissioner is required to document his application of the special review te c h n iq u e at all stages in the administrative adjudication of a disability claim. 20 C.F.R. § 1 5 2 0 a (e ). During the initial stages of review, application of the "special technique" is f a c ilita te d by the completion of a Psychiatric Review Technique Form ("PRTF") by a q u a lif ie d professional. During review by the ALJ, the ALJ is required "to complete a PRTF a n d append it to the decision, or incorporate its mode of analysis into [the ALJ's] findings a n d conclusions. Failure to do so requires remand." Moore v. Barnhart, 405 F.3d 1208, 1 2 1 4 (11th Cir. 2005). Importantly, the ALJ is required to document his or her application o f the technique as to each of the given functional areas, and failure to do so precludes ju d ic ia l review of the ALJ's decision. Id. Failure to properly apply the special review

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te c h n iq u e requires remand even if the ALJ's ultimate finding that the claimant is not disabled is supported by substantial evidence. Id. In this case, the Court considers Defendant's concession that the ALJ erred in failing to consider Plaintiff's depression an admission that Plaintiff has at least presented a " c o lo ra b le claim" of a mental impairment. Even if it were not such an admission, the e v id e n c e establishes that Plaintiff suffers from depression of some degree, even if less than s e v e re . Accordingly, the ALJ was required by the regulations to "complete a PRTF and a p p e n d it to the decision, or incorporate its mode of analysis into his findings and c o n c lu s io n s . Failure to do so requires remand." Moore, 405 F.3d at 1214. Defendant p re se n ts no authority for his proposition that the ALJ's failure to complete a PRTF - let alone e v e n mention Plaintiff's depression - amounts to harmless error. Indeed, in Moore, where " th e Commissioner concede[d] . . . that the ALJ erred in not completing the PRTF or c o m p lyin g with is mode of analysis," the Eleventh Circuit specifically rejected the C o m m iss io n e r's argument that such error was harmless and remand unnecessary because "it w o u l d require no more than the ALJ's rote completion of the PRTF." Id. Instead, the E le v e n th Circuit held that, "[b]ecause the ALJ's decision lack[ed] consideration of" the c la im a n t's condition in two of the PRTF's "functional areas," the appellate court could not " e v en evaluate the Commissioner's contention that the ALJ's error was harmless." Id. In th is case, as discussed above, the ALJ not only failed to address Plaintiff's condition with re sp e c t to the functional areas described in the PRTF, the ALJ failed to even mention or

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a c k n o w led g e Plaintiff's depression in his opinion. Thus, while Defendant might persuasively a rg u e that, had the ALJ considered Plaintiff's depression, he still would have concluded that it "did not cause any limitations on his ability to work," Def.'s Brief (Doc. #13) at 11-12, s u c h argument nevertheless misses the point. The ALJ's failure to follow the "special te c h n iq u e " of review for this claim precludes the Court from considering whether the error w a s harmless and, hence, "requires remand." Moore, 405 F.3d at 1214; see also Selassie v. B a r n h a r t, 203 F. App'x 174, 176 (9th Cir. 2006) (rejecting Commissioner's harmless error a r g u m e n t with respect to ALJ's failure to properly apply § 404.1520a(a)(3) because the " sp e c if ic documentation requirements . . . are not mere technicalities that can be ignored as lo n g as the ALJ reaches the same result it would have if it had followed those re q u ir e m e n ts ." ). VI. C O N C L U SIO N T h e Court has carefully and independently reviewed the record and concludes that, f o r the reasons given above, the decision of the Commissioner is REVERSED and this matter is REMANDED to the Commissioner for further proceedings consistent with this opinion. A separate judgment will issue. D O N E this 24th day of June, 2010.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 10