Watson v. Astrue

Filing 17

MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Wallace Capel, Jr on 9/14/2011. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JO ANN WATSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 2:10cv837-WC

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
Plaintiff Jo Ann Watson applied for disability insurance benefits under Title II of the

Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq, and supplemental security income
payments under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Her applications were
denied at the initial administrative level. Plaintiff then requested and received a hearing
before an Administrative Law Judge (ALJ). Following the hearing, the ALJ issued a
decision in which he found Plaintiff not disabled from the alleged onset date through the date
of the decision. The Appeals Council rejected Plaintiff’s request for review of the ALJ’s
decision. 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.

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.

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 and entry
of a final judgment by the undersigned United States Magistrate Judge. Pl.’s Consent to
Jurisdiction (Doc. #16); Def.’s Consent to Jurisdiction (Doc. #15). Based on the Court’s
review of the record and the briefs of the parties, the Court REVERSES the decision of the
Commissioner.
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.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation 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
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of
Impairments]
(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?
2

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

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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying
disability 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
of 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
Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do
despite his impairments and is based on all relevant medical and other evidence. Id. It also
can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step,
the ALJ considers the claimant’s RFC, age, education, and work experience to determine if
there are jobs available in the national economy the claimant can perform. Id. at 1239. To
do this, the ALJ can either use the Medical Vocational Guidelines4 (grids) or call a vocational
expert (VE). Id. at 1239-40.

3

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).
4

See 20 C.F.R. pt. 404 subpt. P, app. 2.
3

The grids allow the ALJ to consider factors such as age, confinement to sedentary or
light work, inability to speak English, educational deficiencies, and lack of job experience.
Each factor can independently limit the number of jobs realistically available to an
individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyrequired finding of “Disabled” or “Not Disabled.” Id.
The Court’s 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); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “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). See also Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, [a reviewing court] must affirm if the decision reached is
supported by substantial evidence.”). A reviewing court may not look only to those parts of
the record which support 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 (11th Cir. 1986).
[The court must] . . . 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.
4

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty years old on the alleged disability onset date and held an Associate’s

degree in Accounting. Tr. 25. Plaintiff had past relevant work experience as a sales
attendant. Tr. 32. Following the administrative hearing, and employing the five-step
process, the ALJ found Plaintiff had not engaged in substantial gainful activity since the
alleged onset date. Tr. 22. At Step 2, the ALJ found that Plaintiff suffers from the following
severe impairments: “degenerative disk disease of the lumbar spin, degenerative joint
disease, depression, and hypertension.” Id. The ALJ then found that “[t]he claimant does not
have an impairment or combination of impairments that meets or medically equals one of the
listed impairments . . . .” (Step 3) Tr. 23. Next, the ALJ found that Plaintiff retained the
“residual functional capacity to perform less than the full range of light work” along with
various restrictions. Tr. 24. After consulting with a vocational expert, the ALJ found that
Plaintiff is able to perform her past relevant work as a sales attendant. (Step 4) Tr. 32.
Accordingly, the ALJ determined that Plaintiff “has not been under a disability . . . from
August 14, 2007, through the date of this decision.” Tr. 33.
IV.

PLAINTIFF’S CLAIM
Plaintiff presents one claim for Court’s review: “that the ALJ issued an unsupported

RFC finding that lacks the support of substantial evidence.” Pl.’s Brief (Doc. #10) at 3.
Specifically, Plaintiff challenges the ALJ’s decision to give great weight to the disability
5

specialist, and “[i]n so doing . . . rejected the medical opinions expressed by Ms. Watson’s
treating physician.” Id. at 3-4. Plaintiff argues that by basing the RFC determination on the
disability specialist’s opinion, the ALJ lacked the support of substantial evidence because
“the opinion of a non-examining, reviewing physician ‘is entitled to little weight and taken
alone does not constitute substantial evidence to support an administrative decision.’
Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir.1990).” Id. at 4 (emphasis in original).
Defendant clarifies that the disability specialist was a single decision maker (“SDM”)
and concedes that she was not a medical source. Def.’s Brief (Doc. #11) at 8 n.6. The Court
finds more than one problem with the ALJ’s decision in this case. First, the ALJ assigned the
SDM’s opinion great weight. He did so after expressing that he was assigning great weight
to Dr. Zweifler’s mental RFC and then assigned great weight to the SDM’s physical RFC.
Tr. 30. That the ALJ relied on the SDM’s opinion in forming the physical aspects of the
RFC and then assigned the SDM’s opinion great weight because “it was consistent with the
[RFC] capacity as determined in this decision” was circuitous. Id.
Second, while Defendant admits the SDM is not a medical source, as Plaintiff points
out, there is nothing in the record to indicate the SDM was even a medical professional.
And, while the ALJ clarified that he understood the opinions of non-examining sources are
not entitled to controlling weight, he then stated that the opinions must be “considered and
weighted as those of highly qualified sources who are experts in the evaluation of the medical
and psychological issues in disability claims.” Id. This declaration appears in the same
6

paragraph in which the ALJ assigned great weight to the SDM’s (the non-medical source)
physical RFC. This becomes even more troubling, where the ALJ rejected the only RFC
prepared by a physician–Dr. Stanfield, Plaintiff’s treating physician.5 See e.g. Casey v.
Astrue, 2008 WL 2509030 at *4 (S.D. Ala. June 19, 2008) (“Such an assessment particularly
is warranted where, as here, the ALJ has rejected the only RFC assessment in the record
completed by an examining physician.”).
Defendant argues that any error in assigning the SDM weight is harmless because the
ALJ’s decision is supported by substantial evidence.

The problem with Defendant’s

argument is that the ALJ’s error in assigning weight to the SDM’s RFC determination
“permeates the manner in which the record of this case is presented to this Court.” Nicholson
v. Astrue, 2010 WL 4506997 *6 (W.D.N.C. Oct 29, 2010). The ALJ not only assigned
weight to the non-medical source after summarizing the medical evidence of record, he
assigned great weight. The ALJ even assigned great weight to the Physician Statement of
Fairleigh, after finding that the SDM’s opinion was supported by the statement. Tr. 31. The
court finds troubling the ALJ’s use of medical opinion evidence as support for a non-medical
opinion that the ALJ is not permitted to even to consider. Velasquez v. Astrue, 2008 WL
791950, at *3 (D.Colo. Mar.20, 2008) (Opinion of SDM is “entitled to no weight as a
medical opinion, nor to consideration as evidence from other non-medical sources.”).

5

Plaintiff does not challenge the ALJ’s determination to accord Dr. Stanfield’s opinion
little weight and this Court makes no determination as to whether the rejection was proper.
7

The Court finds that this error is not curable in this case because the assignment of
great weight in determining the physical aspects of the RFC to a non-medical source leaves
the ALJ’s determination unsupported by substantial weight. See Dewey v. Astrue, 509 F.3d
447, 449-50 (8th Cir. 2007) (remanded because ALJ relied on the RFC determination of a
non-physician and court was unable to say that ALJ “would inevitably have reached the same
result if he had understood that the RFC Assessment had not been completed by a physician
or other qualified medical consultant.”); Nicholson v. Astrue, 2010 WL 4506997 at *6
(W.D.N.C. Oct 29, 2010) (“Such denomination of a person with no medical credentials
whatsoever, as a ‘medical consultant’ or ‘physician’ when relying on assertions by an SDM
to support medical findings was error.”).6 The ALJ’s reliance on the SDM in this case was
too pervasive and apparently made up a majority of the physical limitations in the RFC,
which in turn allowed the ALJ to find that Plaintiff could perform past relevant work and a
finding that she was not disabled.
“Thus, this case will be remanded with instruction to afford the SDM’s opinion no
weight.” Bolton v. Astrue, 2008 WL 2038513, at *4 ( M.D. Fla. May 12, 2008).
VI.

CONCLUSION

6

The Court also finds persuasive the Court of Appeals holding in Castel v. Commissioner
of Social Sec., 355 F. App’x 260, 266-67 (11th Cir. 2009), wherein the court found the ALJ’s
possible reliance on SDM to be harmless error where “record does not reflect that the ALJ placed
great weight on the [SDM’s] reports.” In contrast, the ALJ in the present case explicitly
expressed his assignment of great weight to the SDM’s opinion and evaluated at least one other
medical source in relation to the SDM’s opinion.
8

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 case
is REMANDED to the Commissioner for proceedings consistent with this decision. A
separate judgment will issue.
DONE this 14th day of September, 2011.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

9