Balcom v. Astrue

Filing 15

MEMORANDUM OPINION AND ORDER that this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion; that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 fn. 2 (11 Cir. th 200 6), the plaintiff shall have sixty (60) days after she receives notice of any amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. § 406(b). See also Blitch v. Astrue, 261 Fed. Appx. 241, 242 fn.1 (11th Cir. 2008); that a separate final judgment will be entered. Signed by Honorable Judge Charles S. Coody on 8/15/2011. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIRSTIE L. BALCOM,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACT. NO. 1:10-CV-00256-CSC
(WO)

MEMORANDUM OPINION AND ORDER
I. Introduction
The plaintiff applied for disability insurance benefits pursuant to Title II of the Social
Security Act, 42 U.S.C. § 401 et seq., and for supplemental security income benefits under
Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., alleging that she was unable
to work because of a disability. Her application was denied at the initial administrative level.
The plaintiff then requested and received a hearing before an Administrative Law Judge
("ALJ"). Following the hearing, the ALJ also denied the claim. The Appeals Council
rejected a subsequent request for review. The ALJ's decision consequently became the final
decision of the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review pursuant to

1

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.

42 U.S.C. §§ 405 (g) and 1383(c)(3).2 Based on the court's review of the record in this case
and the briefs of the parties, the court concludes that the decision of the Commissioner
should be reversed and remanded for further proceedings.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to
engage in any substantial gainful activity by reason of any medically
determinable 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
of not less than 12 months...
To make this determination3 the Commissioner employs a five step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(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
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(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?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of "not
disabled."

2

Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the
United States Magistrate Judge.
3

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

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The standard of review of the Commissioner's decision is a limited one. This court
must find the Commissioner's decision conclusive if it is supported by substantial evidence.
42 U.S.C. § 405(g); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.
2007). "Substantial evidence is more than a scintilla, but less than a preponderance. It is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004). A reviewing court may not look only to those
parts of the record which supports the decision of the ALJ but instead must view the record
in its entirety and take account of evidence which detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986). The court "may not decide
the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the
[Commissioner]." Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration
in original) (quotation marks omitted).
[The court must, however,] . . . scrutinize the record in its entirety to determine
the reasonableness of the [Commissioner's] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner's] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
4

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) (Unit A).

3

III. The Issues
A. Introduction. The plaintiff was 32 years old at the time of the hearing before the
ALJ and has an associate’s degree in applied science. (R. at 27) The plaintiff’s prior work
experience includes work as a X-ray and pharmacy technician.5 Following the administrative
hearing, the ALJ concluded that the plaintiff has impairments of degenerative disc disease
at L5-S1 with left radiculopaty secondary to disc protrusion; obesity; diabetes mellitus and
depression disorder. Nonetheless, the ALJ concluded that the plaintiff was not disabled
because the plaintiff has the residual functional capacity to perform modified light work.
B. The Plaintiff's Claims. As stated by the plaintiff, she presents three claims for
resolution by the court:
1. Whether the ALJ failed to properly evaluate Ms. Balcom’s Degenerative Disc
Disease according to Listing 1.04.
2. Whether the ALJ’s finding that Ms. Balcom retains the residual functional capacity
to perform modified light work is supported by substantial evidence.
3. Whether the new and material evidence submitted to the Appeals Council warrants
remand.
(Pl’s Br., doc. # 12, at 1).

5

In the discussion of the evidence which immediately follows the ALJ’s residual functional
capacity determination (R. at 14) the ALJ correctly notes that the plaintiff’s past work was as an X-ray
technician. Id. However, in his discussion at step 4 of the sequential evaluation, the ALJ incorrectly
states in his opinion that the plaintiff’s past relevant work includes work as a cashier/checker; general
office clerk or desk clerk. (R. at 21) The only mention of these jobs was by the vocational expert who
testified that under the ALJ’s hypothetical question, a person could do these jobs which exist in the
national economy. (R. at 41)

4

IV. Discussion
Balcom contends she meets the requirements of Listing 1.04A, Listing of
Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1 (Appendix 1). That Listing provides as
follows:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root (including
the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
In his opinion, the ALJ remarks that the plaintiff’s impairments “cause significant
limitation of . . . [her] ability to perform basic activities of living and work.” (R. at 13)
Immediately thereafter, the ALJ finds that the plaintiff “does not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).” Id. After setting forth his residual functional capacity
conclusion, the ALJ launches into a description of the medical evidence of record. (R. at 1420) As a prelude to this descriptive exercise, the ALJ recites that he
has considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and
other evidence, based on the requirements of 20 CFR 404.1529 and 416.929
and SSRs 96-4p and 96-7p. The undersigned has also considered opinion
evidence in accordance with the requirements of 20 CFR 404.1527 and
416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.

(R. at 14)
Other than this boilerplate statement, there is no explanation for the ALJ’s conclusion
that the plaintiff does not meet the listing. The question for the court is whether this
statement is sufficient. The Commissioner says it is and relies on Hutchinson v. Bowen, 787
F.2d 1461, 1463 (11th Cir. 1986), for the proposition that the ALJ is not required to
mechanically recite the evidence leading to his determination about a Listing. Perhaps not,
but that is not the problem here. The Commissioner’s regulations require that a written
decision contain several elements.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphasis added).
The ALJ’s written decision here is devoid of any statement of reasons why the
plaintiff does not meet the Listing. This case is wholly unlike Wilson v. Barnhart, 284 F.3d
1219 (11th Cir. 2002), in which the court said
In rejecting Wilson's claim of disability, however, the ALJ specifically stated
that “the medical evidence establishes that [Wilson] had [several injuries]
which constitute a ‘severe impairment’, but that he did not have an impairment
or combination of impairments listed in, or medically equal to one listed in
Appendix 1, Subpart P, Regulations No. 4.” (emphasis added). The ALJ's
determination constitutes evidence that he considered the combined effects of
Wilson's impairments. See Jones v. Dept. of Health and Human Servs., 941
F.2d 1529, 1533 (11th Cir. 1991) (holding that the following statement by an
ALJ evidenced consideration of the combined effect of a claimant's
impairments: while “[the claimant] has severe residuals of an injury to the left
6

heel and multiple surgeries on that area, [the claimant does not have] an
impairment or combination of impairments listed in, or medically equal to one
listed in Appendix 1, Subpart P, Regulation No. 4.” (emphasis removed)).
284 F.3d at 1224-1225.
First, there is absolutely no language in the ALJ’s opinion which connects his
recitation of the medical evidence to his Listing’s conclusion. But much more importantly,
there is a fundamental error in this case which completely undercuts any argument that the
ALJ properly considered the medical evidence. Towards the end of his opinion, the ALJ
says this.
The undersigned assigns significant evidentiary weight to the opinion of the
State Agency in Exhibit 15F, and assigns significant weight to the opinion of
Douglas McKeown, Ph.D. Their opinions are well reasoned and supported by
the evidence of record. The undersigned finds that claimant's depression is not
severe to the extent that placing claimant at unskilled is necessary; however,
the undersigned finds claimant can perform semi-skilled work, as he has in the
past as a lab technician.
(R. at 21)
The problem with assigning great weight to the opinion of the state agency evaluator
is two-fold. First, as the plaintiff points out, Exhibit 15F is residual functional capacity
assessment which was filled out by a person who, as admitted by the Commissioner, is not
a medical professional. But the Commissioner says any error was harmless because other
evidence supports the ALJ’s decision. It is not, and here is the second reason why.
The state agency residual functional capacity assessment was completed in 2006. In
2007, Dr. William McRae examined Balcom and made findings which the ALJ set forth in

7

his opinion. However, beyond the mere rote recitation of this and most of the other medical
evidence, the ALJ never explains what weight he gave to it and why. An ALJ must state with
particularity the weight given to different medical evidence and the reasons therefor.
Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). A statement that the ALJ carefully
considered all the testimony and exhibits is not sufficient. Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir. 1981). Without an explanation of the weight accorded by the ALJ to the
various medical opinions and evidence, it is impossible for a reviewing court to determine
whether the ultimate decision on the merits of the claim is rational and supported by
substantial evidence. Id. That is especially true here where the ALJ places “significant
evidentiary weight” on the opinion of someone who is not a medical professional and who
did not have before her all of the medical records of the plaintiff. It is absurd to place
significant evidentiary weight on the opinion of someone who did not have all of the
plaintiff’s evidence. On remand, the ALJ must explicitly state with respect to all of the
medical evidence the weight given to it and the reasons for the conclusions.
For these very same reasons, the court is unable to determine whether the ALJ’s
residual functional capacity determination is supported by substantial evidence. And, since
this case must be remanded, the plaintiff will have an opportunity to present updated
evidence to the ALJ, including the evidence submitted to the Appeals Council.
Accordingly, this case will be reversed and remanded to the Commissioner for
further proceedings consistent with this opinion. It is further

8

ORDERED that, in accordance with Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273,
1278 fn. 2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after she receives notice
of any amount of past due benefits awarded to seek attorney’s fees under 42 U.S.C. § 406(b).
See also Blitch v. Astrue, 261 Fed. Appx. 241, 242 fn.1 (11th Cir. 2008). A separate final
judgment will be entered.
Done this 15th day of August, 2011.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

9