Kelley v. Astrue (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 4/11/14. (scn, )
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIV. ACT. NO. 2:13cv18-TFM
I. Procedural History
Plaintiff Vera Kelley (“Kelley”) applied for disability insurance benefits pursuant
to Title II of the Social Security Act, 42 U.S.C. ' 401 et seq., and supplemental security
income benefits pursuant to Title XVI, 42 U.S.C. § 1381 et seq., alleging that she is
unable to work because of a disability.
Her application was denied at the initial
The plaintiff then requested and received a hearing before an
Administrative Law Judge (“ALJ”). Following the hearing, the ALJ concluded that
Kelley was not under a “disability” as defined in the Social Security Act. The ALJ,
therefore, denied the plaintiff’s claim for benefits. The Appeals Council rejected a
subsequent request for review.
Consequently, the ALJ’s decision became the final
decision of the Commissioner of Social Security (“Commissioner”).1 See Chester v.
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.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Pursuant to 28 U.S.C. § 636(c), the parties
have consented to entry of final judgment by the United States Magistrate Judge. The
case is now before the court for review pursuant to 42 U.S.C. §§ 405(g) and 1631(c)(3).
Based on the court’s review of the record in this case and the parties’ briefs, the court
concludes that the Commissioner’s decision should be REVERSED and REMANDED.
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 determination, 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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).2
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).
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); 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). 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 (11th Cir.
[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.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
Kelley was 48 years old at the time of the hearing and is a high school graduate.
(R. 148, 262). She has prior work experience as a line loader at Wellborn Cabinets. (R.
42). Kelley alleges that she became disabled on January 30, 2009, due to chronic back
and knee pain, fibromyalgia, migraine headaches, diabetes, high blood pressure, and
asthma. (R. 44-45). After the hearing on January 31, 2012, the ALJ found that Kelley
suffers from severe impairments of fibromyalgia, osteoarthritis of the thoracic spine and
bilateral hands; chronic obstructive pulmonary disease (COPD) v. asthma; degenerative
disc disease; chest pain of uncertain etiology; loss of vision in the right eye; migraine
headaches; and obesity. (R. 20). In addition, he found that Kelley suffers from nonsevere impairments of hypertension, gastroesophageal reflux disease (GERD), allergies,
diabetes mellitus Type II, and depression. (Id.). The ALJ determined that Kelley retains
the residual functional capacity to perform light work with limitations.
Testimony from a vocational expert led the ALJ to conclude that a significant number of
jobs exist in the national economy that Kelley can perform, including work as an inserter,
inspector, and garment sorter. (R. 30). Accordingly, the ALJ concluded that Kelley is
not disabled. (Id.).
B. The Plaintiff’s Claim
The sole issue presented by Kelley is whether the ALJ erred by relying on the
opinion of a non-examining reviewing physician when the evidence from a consulting
specialist dictates a contrary result. (Pl’s Comp., p. 1).
In his analysis, the ALJ assigned “little weight, if any” to the opinion of Dr. David
A. McLain, a consultative rheumatologist, regarding Kelley’s functional abilities3 and
“great weight” to the opinion of Dr. Robert H. Heilpern, a non-examining consultative
physician. (R. 28).
The ALJ also gave “Dr. McLain’s diagnosis in those areas where he has some authority through being a
rheumatologist, i.e., in fibromyalgia and arthritis, significant weight.” (R. 28). However, he accorded
“little weight if any to his opinions on functional abilities.” (Id.).
Relying on the opinion of Dr. Heilpern, the ALJ determined that Kelley retains
the residual functional capacity to perform light work except:
The claimant would need to have a sit/stand option allowing her to alternate
between sitting and standing positions at 30-60 minute intervals throughout
the workday. She can frequently use her feet for pushing and/or pulling of
foot control operations. She can never climb ramps, stairs, ladders, ropes,
or scaffolds, or crawl. She can occasionally balance, stoop, kneel, and
crouch. She can frequently use both her hands for handling and fingering.
She should avoid concentrated exposure to extreme cold and extreme heat
as well as concentrated exposure to wetness, humidity, and irritants, such as
fumes, odors, dust, gases, and poorly ventilated areas. She should avoid all
hazardous machinery and unprotected heights.
She is limited to
occupations not requiring binocular vision or depth perception. Work is
limited to simple, routine and repetitive one to three step tasks in a low
stress job, defined as having only occasional decision making and changes
in the work setting.
(R. 21) (emphasis added).
Although the ALJ places great weight on the State Agency Medical Consultant’s
Opinion and relies upon it to determine Kelley’s residual functional capacity, the ALJ
fails to reconcile the internal inconsistencies in the consultant’s report. In December
2010, the non-examining consultative physician completed a Residual Functional
Capacity Assessment in which he checked that Kelley’s ability to push and/or pull,
including operation of hand and/or foot controls, is limited in the lower extremities;
however, he also specified that the reason for this conclusion is based on “[f]req[uently]
push/pull due to L knee pain.” (Id.) Despite the state consultant’s finding that Kelley
suffers left knee pain and that her ability to push or pull is limited, the ALJ relied on the
non-examining consultative physician’s assessment that she can frequently push or pull.
At a minimum, there exists a conflict or ambiguity in the evidence regarding Kelley’s
ability to push or pull. When there is a conflict, inconsistency, or ambiguity in the
record, the ALJ has an obligation to resolve the conflict, giving specific reasons
supported by the evidence as to why he accepted or rejected one opinion regarding the
plaintiff’s capacity for work over another. When the ALJ determined that Kelley could
perform light work, including the frequent use of her of feet for pushing and/or pulling of
foot control operations, he ignored conflicting evidence in the same report that suggests
that Kelley’s ability to push or pull is limited in the lower extremities. An ALJ may not
arbitrarily pick and choose facts from the medical evidence to support his conclusion
without articulating specific, well supported reasons for crediting some evidence while
discrediting other evidence. Marbury, supra.
The ALJ discounted Dr. McLain’s opinion based on internal inconsistencies in his
report. Nonetheless, the ALJ relies on Dr. Heilpern’s report, which is also internally
inconsistent, to discount Dr. McLain’s residual functional capacity assessment. It is the
responsibility of the ALJ, and not the court, to reconcile inconsistencies in the medical
Because the ALJ did not properly reconcile these inconsistencies in the
evidence, the court cannot conclude that the ALJ’s decision is supported by substantial
The inconsistency in the evidence concerning Kelley’s residual functional capacity
is precisely the issue which the ALJ has failed to clarify and fully develop. Thus, doubt
is necessarily cast on the ALJ’s determination of Kelley’s residual functional capacity.
Without developing the record more fully by resolving the conflicts in the evidence, the
ALJ could not make an informed decision on Kelley’s residual functional capacity based
on the record before and thus, his decision is not supported by substantial evidence.
Therefore, in light of the inadequate development of the record, the court cannot
determine whether the ALJ’s residual functional capacity determination that Kelley is
able to perform light work with limitations is correct.
The court notes that the ALJ also discounted Dr. McLain’s opinion on the basis
that “[Kelley] underwent the examination performed by Dr. McLain not in an attempt to
seek treatment for symptoms, but rather, through attorney referral and in connection with
an effort to generate evidence for the current appeal” and that “the context in which it
was produced cannot be entirely ignored.” (R. 28). The rejection of an examining
physician’s findings on the basis that the examination was conducted at the request of the
claimant’s attorney is not a reason to contradict a medical specialist’s opinion. See
Mulholland v. Astrue, No. 1:06cv2913-AJB, 2008 WL 687326, *12 (N.D. Ga. Mar. 11,
“Social Security proceedings are inquisitorial rather than adversarial. It is the
ALJ’s duty to investigate the facts and develop the arguments both for and against
granting benefits.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). See also Crawford &
Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000). In this regard, the ALJ failed in his
duty to develop the record. Based on the ALJ’s failure to resolve the inconsistencies in
the medical evidence by developing the record in full, the court cannot determine whether
the ALJ’s conclusion that the plaintiff is not disabled is based on substantial evidence.4
Consequently, this case is due to be reversed and remanded to the Commissioner.
Accordingly, this case will be reversed and remanded to the Commissioner for
further proceedings consistent with this opinion.
A separate order will be entered.
Done this 11th day of April, 2014.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
The court also notes that the ALJ’s characterization of several of Kelley’s daily activities is a
mischaracterization of the evidence. For example, the ALJ found that Kelley “walks down the road for
about thirty minutes.” (R. 24). In a cardiovascular questionnaire, Kelley indicated that it takes her thirty
minutes to walk to the end of her driveway and that she walks slow. (R. 194). The ALJ also found that
Kelley goes to church every Sunday and Wednesday. (R. 24). During the hearing, Kelley stated that she
attends church on Sunday. When the ALJ asked Kelley if her church also has Wednesday services, she
responded that her church does have services on Wednesday evening. At no point, however, did Kelley
state that she attends the Wednesday service. (R. 56-58).
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