Evans v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER the decision of the Commissioner is REVERSED and the case REMANDED for further proceedings consistent with this opinion. A separate order will issue. Signed by Honorable Wallace Capel, Jr on 6/2/2009. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J E R R Y EVANS, 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. 2:08cv237-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P lain tiff Jerry Evans applied for disability insurance benefits under Title II of the Act, 4 2 U.S.C. §§ 401 et seq and for supplemental security income (SSI) benefits based on d is a b ility under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. (hereinafter "the Act"). P la in tif f 's application was denied at the initial administrative level. Plaintiff then requested a n d received a hearing before an Administrative Law Judge (ALJ). Following the hearing, th e ALJ also denied the claims. The Appeals Council rejected a subsequent request for re v ie w . The ALJ's decision consequently became the final decision of the Commissioner o f Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1 9 8 6 ). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to

Pursuant to the Social Security Independence and Program Improvements A c t of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health a n d Human Services with respect to Social Security matters were transferred to the C o m m is s io n e r of Social Security.

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2 8 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry o f a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Ju risd iction (Doc. #12); Def.'s Consent to Jurisdiction (Doc. #11). Based on the Court's re v ie w of the record and the briefs of the parties, the Court REVERSES AND REMANDS th e Commissioner's decision. 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 "physical or mental impairment" is one resulting from anatomical, p h ysio lo g ica l, or psychological abnormalities which are demonstrable by medically a c c e p ta b l e clinical and laboratory diagnostic techniques. 2

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A n affirmative answer to any of the above questions leads either to the next 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 t i o 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.

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental s e c u rity 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

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 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 . 4

W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). III. ADMINISTRATIVE PROCEEDINGS A t the time of the hearing Plaintiff was approximately fifty-one years old and had g rad u ated from high school and attended college for two years (Tr. 68). Plaintiff's primary p ast relevant work experience included work as a food service worker, commercial bakery f o re m a n trainee, housekeeping worker, and laborer (Tr. 64). Following the administrative h e a rin g , and employing the five-step process, the ALJ found Plaintiff had not engaged in s u b s ta n tia l gainful activity since the alleged onset date. (Step 1). (Tr. 14). At Step 2, the A L J found that Plaintiff suffers from the severe impairments of deep vein thrombosis and d e g e n e ra tiv e disc disease of the lumbar spine. Id. The ALJ nonetheless found Plaintiff " d o e s not possess an impairment or combination of impairments that meets or medically e q u a ls one of the listed impairments." (Tr. 15). Next, the ALJ found that Plaintiff retains th e RFC to perform the full range of light work (Step 3). (Tr. 15). At Step 4, the ALJ found th a t Plaintiff could perform his past relevant work. (Tr. 17). Consequently, the ALJ found P la in tif f had not been disabled since the alleged onset date. IV. P L A I N T I F F 'S CLAIMS P la in tif f sets forth three claims in challenging the Commissioner's decision: (1) w h e th e r the ALJ erred by failing to give substantial weight to the opinions of his treating p h ysician s; (2) whether the ALJ failed to properly evaluate the credibility of Plaintiff's c o m p l a in ts of pain; and (3) whether the ALJ erred by failing to elicit vocational expert 5

te stim o n y. Because the Court finds remand necessary as to the first issue, the Court need not a d d re s s Plaintiff's other claims. V. DISCUSSION The ALJ failed to properly articulate good cause for according less weight to P la i n tif f' s treating physicians. P la in tif f argues that the ALJ erred by failing to give substantial weight to the opinions o f treating physicians Drs. Pande and Tayara. See (Doc. #13 at 4-7). Drs. Pande and Tayara o p in e d that Plaintiff was incapable of working and was disabled. The ALJ discounted these o p in io n s because they were "conclusory [and] provid[ed] very little explanation of the ev iden ce relied on in forming [those] opinions." (Tr. 17). T h e opinion of a treating physicians must be afforded substantial and considerable w e ig h t by the ALJ unless "good cause" is shown to the contrary. Crawford v. Comm'r of S o c . Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). "`[G]ood cause' exists when the: (1) tre a tin g physician's opinion was not bolstered by the evidence; (2) evidence supported a c o n tra ry finding; or (3) treating physician's opinion was conclusory or inconsistent with the d o c t o r ' s own medical records." Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2 0 0 4 ). "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). In this instance, the ALJ's determination that the treating physicians were entitled to 6

lo w weight because their opinions were conclusory was, itself, conclusory. As stated above, the ALJ gave the treating physicians' opinions "very little weight" because they were " c o n clu s o ry [and] provid[ed] very little explanation of the evidence relied on in forming [ th o s e ] opinions." (Tr. 17). That is the entirety of the ALJ's articulation. Where the ALJ d is c o u n ts a treating physician's opinion as being conclusory, the Court would expect the ALJ to articulate why that opinion is conclusory. Especially here, where there are two reports by s e p a ra te treating physicians, as well as several years of treatment records by those same p h ysic ian s. Here, the ALJ's articulation was that the opinions only provided "very little e x p lan a tio n of the evidence relied" upon in their formulation. (Tr. 17). However in his o p inion /rep o rt, Dr. Pande clearly states that he has been treating Plaintiff for several years a n d that Plaintiff has a history of other illnesses, and was being treated by Dr. Tayara. (T. 1 8 3 ). Both physicians treatment notes are in the record, and the ALJ's articulation leaves this C o u rt to speculate whether the ALJ disbelieved the treatment notes or found the reports to b e inconsistent with the physician's own treatment notes.5 T h e ALJ is under an obligation to "clearly articulate the reasons for giving less weight t o the opinion of a treating physician." Lewis, 125 F.3d 1436. While in this case the ALJ s ta te d his reasons for giving less weight, "he must clearly articulate his reasoning, and the

In other words, if the physician's treatment notes were consistent with the opinions in the reports, the ALJ could hardly have good cause to assign lower weight to the physicians' opinions simply because their reports were short and to the point. Without any explanation or mention of the physicians' records, it appears the ALJ may have "substitute[d] his own hunch or intuition for the diagnosis of a medical professional." Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir.1992) (Johnson, J., concurring).

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f a ilu re to do so is reversible error." Pritchett v. Comm'r, Soc. Sec. Admin., 2009 WL 449177 (1 1 th Cir. Feb. 24, 2009) (citing MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.1986)) (e m p h a sis added). Thus, this case is due to be remanded, so the ALJ can clearly articulate h i s reasons for finding the opinions of the treating physicians to be conclusory, or, otherwise re c o n sid e r his decision to afford the treating physicians' opinions little weight. IV . CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is REVERSED and the case REMANDED for further p ro c e ed in g s consistent with this opinion. A separate order will issue. D O N E this 2nd day of June, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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