Bauman v. Astrue(CONSENT)

Filing 14

MEMORANDUM OPINION AND ORDER: The Court has carefully and independently reviewed the record and concludes that, for the reasons further set out in the opinion and order, the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr. on 12/20/2010. (dmn)

Bauman v. Astrue(CONSENT)

Doc. 14

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 K E N N E T H BAUMAN, P la in tiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:10cv042-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tiff Kenneth Bauman applied for disability insurance benefits under Title II of th e Social Security Act ("the Act"), 42 U.S.C. §§ 401 et seq. His application was denied at th e initial administrative level. Plaintiff then requested and received a hearing before an A d m in is tra tiv e Law Judge (ALJ). Following the hearing, the ALJ issued a decision in which h e found Plaintiff not disabled from the alleged onset date of August 5, 2005, through the d a te of the decision. Tr. 22. The Appeals Council rejected Plaintiff's request for review of th e ALJ's decision. The ALJ's decision consequently became the final decision of the C o m m is s io n e r of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (1 1 th Cir. 1986). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings 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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and entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s C o n s e n t to Jurisdiction (Doc. #7); Def.'s Consent to Jurisdiction (Doc. #8). Based on the C o u rt's review of the record and the briefs of the parties, the Court REVERSES the decision o f the Commissioner. 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 rs o n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e te rm 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 ir m e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of Im p a irm e n ts] (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 q u e s tio n , or, on steps three and five, to a finding of disability. A negative a n s w e r to any question, other than step three, leads to a determination of "not

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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disabled." 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 , the 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 Guidelines4 (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 lig h t work, inability to speak English, educational deficiencies, and lack of job experience.

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

Each 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 fin 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 r a 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 is s 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 tire ty and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a s o n a b le n e s s of the [Commissioner's] . . . factual findings. . . . No similar p re s u m 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).

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III.

ADMINISTRATIVE PROCEEDINGS P la in tiff was forty-seven years old at the time of the hearing before the ALJ. Tr. 28,

3 3 . Plaintiff completed the eleventh grade and "took a GED." Tr. 35. Plaintiff's past re le v a n t work experience was as a boilermaker and a welder. Tr. 35. 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 the alleged onset date of August 5, 2005 (Step 1 ). Tr. 16. At Step 2, the ALJ found that Plaintiff suffers from the following severe im p a irm e n ts: "a rupture of the right distal biceps tendon and carpal tunnel syndrome." Tr. 1 6 . The ALJ then found that "[t]he claimant does not have an impairment or combination o f impairments that meets or medically equals one of the listed impairments . . . ." (Step 3) T r. 16. Next, the ALJ found that Plaintiff "has the residual functional capacity to perform th e full range of light work as defined in 20 CFR 404.1567(b) . . . ." Tr. 16. The ALJ then fo u n d that Plaintiff is unable to perform his past relevant work. (Step 4) Tr. 22. Next, the A L J found that, given Plaintiff's age, education, work experience, and RFC, the MedicalV o c a tio n a l Guidelines dictate a finding of "not disabled." Accordingly, the ALJ determined th a t Plaintiff "has not been under a disability . . . from August 5, 2005, through the date of th is decision." Tr. 22. IV . P L A I N T I F F 'S CLAIMS P la in tiff presents three issues for this Court's consideration in review of the ALJ's d e c is io n : (1) "whether the ALJ impropertly [sic] rejected the opinion of Dr. Bowman,

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[Plaintiff's] treating physician[;]" (2) "whether the ALJ erred by improperly rejecting p o rtio n s of Dr. Vanderzyl's opinion or in the alternative erred by exclusively relying on the m e d ic a l vocational guidelines[;]" and (3) "whether the ALJ erred as a matter of law in failing to properly consider mechanics of treatment." Pl.'s Brief (Doc. #11) at 1.5 V. DISCUSSION A. T h e ALJ's treatment of Plaintiff's treating physician's opinion.

P la in tiff claims that the ALJ "failed to clearly articulate reasons for giving less weight to the opinion of Dr. Bowman, [Plaintiff's] treating physician," and that such error mandates re v e rsa l. Pl.'s Brief (Doc. #11) at 8. Plaintiff also faults the ALJ for failing to "clearly a rtic u la te the weight he assigned to Dr. Bowman." Id. Plaintiff further asserts that, although th e ALJ summarized portions of records from Dr. Bowman, including records in which Dr. B o w m a n released Plaintiff to perform sedentary work with some restrictions, "the ALJ's d e c is io n represents a rejection of Dr. Bowman's opinion because Dr. Bowman opined that [P la in tiff's ] conditions render him much more limited than what the ALJ found." Id. at 9. In support of this contention, Plaintiff relies upon Dr. Bowman's notation, from July 23, 2 0 0 7 , that "he had released Mr. Bauman a year prior `with job restrictions per his FCE.'" Id. (quoting from Tr. 378). According to Plaintiff, the FCE to which Dr. Bowman was

This summarization of Plaintiff's claims is taken from the all-caps "STATEMENT OF ISSUES" provided on the first page of Plaintiff's brief. In quoting from this section, the Court has adjusted the typeface for purposes of continuity with the remainder of this opinion. 6

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referring imposed numerous additional limitations to Plaintiff's ability to perform light work, a n d thus conflicts with the ALJ's finding that Plaintiff may perform the full range of light w o rk . Thus, according to Plaintiff, "because the ALJ's finding of [Plaintiff's] RFC is less re s tric tiv e than that imposed by Dr. Bowman, the ALJ's decision represents an implicit re je c tio n of Dr. Bowman's opinion," and the ALJ's purported failure to "clearly articulate th e reasons for giving less weight to the opinion of" Dr. Bowman requires reversal. Id. at 101 1 . Defendant argues that the ALJ properly did not include Dr. Bowman's more restrictive lim ita tio n s in Plaintiff's RFC because "subsequent medical evidence demonstrated that P la in tiff's condition improved such that Plaintiff could perform the full range of light work." Def.'s Brief (Doc. #12) at 6. Defendant also maintains that, while the ALJ did not include s o m e of Dr. Bowman's limitations in the RFC, the ALJ did not reject all of Dr. Bowman's o p in io n s because Dr. Bowman gave opinions about Plaintiff's ability to return to work on m u ltip le occasions, and at least one of those is consistent with the ALJ's determination of P la in tiff's RFC. Id. at 6-7. In 2006, Dr. Bowman twice indicated that Plaintiff was cleared for "light duty." Tr. 3 8 6 (April, 24, 2006); Tr. 384 (June 5, 2006). On July 17, 2006, Dr. Bowman noted that P la in tiff was to undergo a FCE. Tr. 381. On August 14, 2006, Dr. Bowman noted that P la in tiff had the FCE, but that "we do not have a copy of that . . . ." Tr. 380. Dr. Bowman re s o lv e d to call Plaintiff with the results of the FCE and "assign an impairment rating" at a la te r date. Tr. 380. There does not appear to be any contemporaneous notation of this phone

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call or other follow-up in the record. Indeed, there does not appear to be any record of Dr. B o w m a n 's independent consideration and assessment of the FCE. However, almost one year la te r, on July 23, 2007, Dr. Bowman's treatment note indicates that "almost one year ago" P la in tiff was released to work "with job restrictions as per his FCE." Tr. 378. The FCE to w h ic h Dr. Bowman refers is the "Dictionary of Occupational Titles Residual Functional C a p a c ity (DOT-RFC) Battery," which was performed on July 20, 2006. The examiner c o n c lu d e d that, based on Plaintiff's performance during the examination, Plaintiff may not re tu rn to his previous work as a boilermaker, but that he could successfully return to light w o rk with additional restrictions, including, inter alia, no "standing for more than 20 minutes c o n tin u o u s ly ," no "crawling on hands and feet," no "tip-pinching with the right hand," and n o "Palmer-pinching with the right hand." Tr. 157. In the ALJ's review of Dr. Bowman's treatment notes, the ALJ discusses the July 23, 2 0 0 7 , treatment note in which Dr. Bowman mentions the FCE from July, 2006. However, th e ALJ does not discuss that portion of the treatment note. Rather, the ALJ only discusses D r. Bowman's observations of Plaintiff at that time and his prescription of physical therapy fo r Plaintiff. Tr. 18. Moreover, nowhere else in his opinion does the ALJ discuss the FCE

(T r. 153-57) to which Dr. Bowman alludes in his treatment notes. The ALJ determined that Plaintiff has the RFC "to perform the full range of light work a s defined in 20 CFR 404.1567(b) . . . ." Tr. 16. "Light work" requires, in relevant part, "a g o o d deal of walking or standing." 20 CFR 404.1567(b). Moreover, "light work" requires

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the ability to stand or walk, "off and on, for a total of approximately 6 hours of an 8-hour w o rk d a y . Sitting may occur intermittently during the remaining time. . . . Many unskilled lig h t jobs are performed primarily in one location, with the ability to stand being more c ritic a l than the ability to walk." SSR 83-10. Because the FCE alluded to - and apparently e n d o rs e d - by Dr. Bowman limits Plaintiff to standing continuously for only twenty minutes, it appears that the ALJ at least implicitly rejected such evidence. However, in failing even to address the FCE or the aspect of Dr. Bowman's notes which endorses the FCE, the ALJ c le a rly failed to provide reasons for his rejection of the opinion. When confronted with the opinion of a claimant's treating physician, the ALJ must a ffo rd it substantial and considerable weight unless "good cause" is shown to the contrary. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); see also Bliss v. C o m m 'r of Soc. Sec., 254 F. App'x 757, 758 (11th Cir. 2007) ("An ALJ may reject the o p in io n of a treating physician, which ordinarily receives substantial weight, where `good c a u s e ' is established."). "`[G]ood cause' exists when the: (1) treating physician's opinion w a s not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating p h y s ic ia n 's opinion was conclusory or inconsistent with the doctor's own medical records." Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). "Where the ALJ articulated s p e c ific reasons for failing to give the opinion of a treating physician controlling weight, and th o s e reasons are supported by substantial evidence," a reviewing court may not "disturb the A L J 's refusal to give the opinion controlling weight." Carson v. Comm'r of Soc. Sec., 2008

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WL 4962696 at *1 (11th Cir. Nov. 21, 2008). "The ALJ must clearly articulate the reasons for giving less weight to the opinion of a treating physician, and the failure to do so is reversible error." Lewis v. Callahan, 125 F.3d 1 4 3 6 , 1440 (11th Cir. 1997); see also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1 9 8 6 ) (holding the ALJ "must specify what weight is given to a treating physician's opinion a n d any reason for giving it no weight"). Similarly, the ALJ is "required to state with p a rtic u la rity the weight he gave the different medical opinions and the reasons therefor." Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).6 "In the absence of such a statement, it is impossible for a reviewing court to determine whether the ultimate decision on the merits o f the claim is rational and supported by substantial evidence." Cowart v. Schweiker, 662 F e d .2 d 731, 735 (11th Cir. 1981). However, in certain circumstances, the ALJ's failure to s tric tly comply with this requirement may be deemed harmless error. Caldwell v. Barnhart, 2 6 1 F. App'x 188, 190 (11th Cir. 2008) ("An ALJ's failure to state with particularity the w e ig h t given different medical opinions is reversible error. When, however, an incorrect a p p lic a tio n of the regulations results in harmless error because the correct application would n o t contradict the ALJ's ultimate findings, the ALJ's decision will stand.") (citations o m itte d ). Courts have generally found that an ALJ's failure to state what weight is afforded a particular piece of medical opinion evidence is harmless when the ALJ has relied upon

The Eleventh Circuit has recognized that the obligation to discuss probative medical opinion evidence is not satisfied where the ALJ simply mentions the physician's report in some capacity but fails to address the physician's ultimate opinion. Luckey v. Astrue, 331 F. App'x 634, 640 (11th Cir. 2009). 10

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other opinion evidence which is consistent with the omitted evidence or the omitted opinion is consistent with the ALJ's ultimate findings. See, e.g., id. at 191; Wright v. Barnhart, 153 F . App'x 678, 684 (11th Cir. 2005). In this case, it is apparent that the omitted opinion is not fully consistent with the A L J 's decision or other evidence relied upon by the ALJ. Furthermore, because the ALJ d o e s not even mention the relevant FCE or the salient aspect of Dr. Bowman's treatment note th a t indicates his endorsement of the FCE, the Court is unable to conclude that the ALJ considered this opinion. Whether or not he c o u ld have articulated an adequate reason for rejecting Dr. [Bowman's] o p in io n (if he considered it) is beside the point. The court is unable to review a n analysis that the ALJ did not explicitly conduct. See McCloud v. Barnhart, 1 6 6 F. App'x 410, 418-19 (11th Cir. 2006) ("The AlJ may reject the opinion o f any physician when the evidence supports a contrary conclusion. The ALJ is required, however, to state with particularity the weight he gives to different m e d ic a l opinions and the reasons why. Here, the ALJ neither explained the w e ig h t that he gave to Newman's report nor why he discredited Newman's fin d in g s regarding McCloud's ability to engage in prolonged work. On re m a n d , the ALJ must make these determinations.") (citations omitted). Martin v. Astrue, 2010 WL 743176 at *2 (M.D. Ala. Feb. 26, 2010). Likewise, while there is evidence in the record which supports the ALJ's conclusion, and while the ALJ might have b e e n able to articulate adequate grounds for his rejection of Dr. Bowman's opinion, the ALJ w h o lly failed to discuss the opinion or the underlying evidence upon which it was based. Indeed, to the extent the ALJ addressed any opinion of Dr. Bowman's, the ALJ only claimed th a t Dr. Bowman's opinion supports his RFC findings. Tr. 20. However, as discussed a b o v e , Dr. Bowman rendered several opinions, and the latest of those opinions, which

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endorses a FCE that conflicts with the ALJ's RFC, was not even discussed by the ALJ. As s u c h , the Court is simply unable to assess the sufficiency of "an analysis that the ALJ did not e x p lic itly conduct." Accordingly, this matter is due to be reversed and remanded to the C o m m is s io n e r so that the ALJ may properly consider Dr. Bowman's opinion endorsing the J u ly 20, 2006, FCE. VI. C O N C L U S IO N T h e Court has carefully and independently reviewed the record and concludes that, fo r the reasons given above, the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner. A separate judgment will issue. D O N E this 20th d a y of December, 2010.

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

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