Johnson v. Colvin

Filing 22

MEMORANDUM OPINION: The Commissioners decision is due to be reversed. Aseparate judgment will be entered. Signed by Honorable Judge Susan Russ Walker on 1/29/2016. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
APRIL JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 2:14CV671-SRW

MEMORANDUM OPINION
Plaintiff appeals the Commissioner’s final decision denying plaintiff’s applications
for benefits under Titles II and XVI of the Social Security Act. The parties have consented
to proceeding before the undersigned Magistrate Judge. (Doc. ## 9, 10). Upon consideration
of the administrative record and the arguments of the parties, the court concludes that the
Commissioner’s decision is due to be reversed.
Single Decision-maker
Plaintiff asserts that the ALJ erred1 by giving “great weight” to the opinion expressed
by S.P. Cooper, a single decision-maker (“SDM”), as to plaintiff’s residual functional
capacity; she contends that this error is not harmless2 and requires that the Commissioner’s

1

The Appeals Council denied review (R. 1-7) and, thus, the ALJ’s decision is the final
decision of the Commissioner.
2

The “harmless error” doctrine applies to review of the Commissioner’s decisions. See
Diorio v. Heckler, 721 F.2d 726 (11th Cir. 1983)(finding ALJ’s misstatement of facts relating to
vocational factors to be harmless, where those factors were irrelevant because the ALJ had found no
severe impairment).

decision be reversed. (Doc. # 15). The Commissioner agrees that “the ALJ erroneously
referred to SDM Cooper as a state agency medical consultant and gave SDM Cooper’s
‘opinion’ great weight. (Tr. 27).” (Doc. # 16, 7). However, she contend that, “[t]o the extent
this was error, it was harmless.” (Id.).3
In reaching his RFC finding, the ALJ summarized plaintiff’s testimony, her records
of treatment, and the reports of consultative examiners (R. 25-27). He assigned weight to the
medical opinion evidence as follows:
Pursuant to 20 CFR § 404.1527 and Social Security Rulings 06-03p, 96-6p,
and 96-2p, the undersigned has considered the medical opinions, which are
statements from acceptable medical sources which reflect judgments about the
nature and severity of the impairment and resulting limitations, of the
claimant’s treating physicians, evaluating physicians, and the state agency
medical consultants. Regarding medical opinion of the state agency medical
consultant, the undersigned has accorded the opinion great weight (Exhibit
5A); however, found the claimant’s ability to climb ramps and stairs not as
limited as the state agency consultant determined based on examinations that
show that the claimant had a normal gait and full lower extremity strength.
Regarding the psychiatric review technique (Exhibit 9F), the undersigned finds
that the claimant has no more than mild limitations in social functioning as
opposed to moderate. There are no opinions from any treating physicians.
(R. 27)(emphases added).4 The ALJ then assigned “some weight” to the opinion of the

3

See SSR 06-03p, 2006 WL 2329939 at *2 (“only ‘acceptable medical sources’ can give us
medical opinions”)(citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)); POMS DI 24510.050
(physical RFC forms completed by the single decision-maker (“SDM”) “are not opinion evidence
at the appeal levels”).
4

The Commissioner argues that, “[n]otably, Plaintiff’s treating physician, E. Shane
Cunningham, indicated she could not engage in ‘heavy’ lifting but could lift and carry over 23
pounds ‘on a regular basis’ with proper lifting technique (Tr. 492).” (Doc. # 16, p. 6). Dr.
Cunningham noted:
2

consultative clinical psychologist, Dr. Moyer. (R. 27-28).
Plaintiff argues:
The present record does not contain a medical source opinion from a treating
physician. The ALJ acknowledged this in the decision. Additionally, the
examining physician Dr. May did not render a medical opinion and the ALJ
does not articulate what if any weight he gave Dr. May’s report in reaching his
decision. Based on this record, we cannot discern whether the ALJ’s error in
giving “great weight” to S.P. Cooper’s opinion was harmless, given the
absence of any other medical opinion upon which the ALJ could have relied.
(Doc. # 15, pp. 11-12) (footnotes omitted).5
The patient does have a little bit of muscle spasm of her lower back today with some
mild decreased ROM and some pain on ROM. We will give her a short course of the
Flagyl and the Lortab again for the discomfort. The patient is advised to avoid heavy
lifting[.] The patient does have a young child and does have to lift the young child
that weighs 23 pounds plus all the equipment to help carry the child on a regular
basis. I did tell her to try to use proper lifting technique[.]
(R. 492). There is no indication in the treatment note that Dr. Cunningham ascribed the
Commissioner’s definition of “heavy” work to the word as used in his advice to his patient.
Additionally, the ALJ was aware of the cited treatment note, but – with good reason – did not
interpret it to mean what counsel now contends that it does. (See R. 27) (ALJ’s statement, in
summarizing Dr. Cunningham’s treatment note, that “[o]n examination, she was noted to have a little
bit of muscle spasm of her lower back with mild decreased range of motion. ... Her discomfort was
attributed to her lifting her child who weighs about 23 pounds as well as all the equipment to help
carry the child on a regular basis.).
5

The Commissioner argues that both Dr. Cunningham and Dr. May rendered “medical
opinions,” as the term is defined in the Commissioner’s regulations. (Doc. # 16, p. 8). While this is
true, it is clear to the court that plaintiff’s argument is that they provided no medical source
statements about plaintiff’s physical capacities. The Commissioner is also correct that an ALJ’s RFC
finding may be supported by substantial evidence even in the absence of such a medical source
opinion. (Id.; see Castle v. Colvin, 557 F. App’x. 849, 853 (11th Cir. 2014)). However, the absence
of such an opinion from an acceptable medical source is relevant, certainly, to the determination of
whether the ALJ’s error in giving “great weight” to what he mistakenly believed to be a physical
RFC assessment rendered by an acceptable medical source is harmless. See Cooper v. Commissioner
of Soc. Sec., 521 F. App’x. 803, 806-07 (11th Cir. 2013) (in a case in which the evidence included
RFC opinions from both plaintiff’s treating physician and a non-examining agency physician, and
in which the ALJ found the claimant to be more limited than reflected in the SDM’s assessment,
3

The Commissioner responds that “[t]he task for this Court is ... to determine whether
there was adequate evidence supporting the ALJ’s conclusion that Plaintiff could perform
a reduce[d] range of light work, even in the absence of SDM Cooper’s findings. The
Commissioner respectfully submits there was more than adequate evidence in the form of Dr.
Cunningham’s treatment notes, Dr. May’s examination findings, and objective imaging.”
(Doc. # 16, p. 9). In other words, the Commissioner invites the court to re-weigh the evidence
that was before the ALJ (excluding the SDM’s opinion, which is not entitled to any
evidentiary weight) and find that the claimant is not disabled. The “harmless error” doctrine
neither requires nor allows this court to do as the Commissioner asks.
While an ALJ’s consideration of an SDM opinion may very well be harmless in some
cases – for example, where the SDM opinion is substantially similar to an opinion of record
from an acceptable medical source,6 or the ALJ’s opinion makes clear that he did not give
the SDM opinion much weight7 – this is not such a case. As noted previously, the ALJ
observed that “[t]here are no opinions from any treating physicians.” (R. 27). Like the
plaintiff (see Doc. # 16, pp. 11-12), the court understands the ALJ to mean – as is in fact the

holding that the ALJ’s error in referring to the SDM as a doctor and giving weight to her opinion was
“harmless because the ALJ stated that he considered all of the evidence in the record, which also
included opinions by Cooper’s treating physician and the non-examining physician, both of whom
were medical doctors and there is nothing to indicate that the opinion of the SDM was anything
more than cumulative of other evidence, let alone dispositive.”) (emphasis added).
6

7

See Cooper, 521 F. App’x. at 806-07; n. 5, supra.
See e.g., Carter v. Astrue, 2012 WL 2135471, *4 (M.D. Ala. Jun. 13, 2012).
4

case – that no treating physician completed a medical source statement regarding plaintiff’s
physical capacities.8 As plaintiff contends, neither did Dr. May, the consultative examiner.
(See R. 440-43). The ALJ’s decision makes clear that he believed the SDM’s opinion to be
that of a “state agency medical consultant,” and he expressly “accorded the opinion great
weight.” (R. 27). Taking the ALJ at his word, the court cannot conclude that the SDM’s
opinion did not affect the ALJ’s RFC formulation. And if it affected his RFC formulation
in any respect, it necessarily affected his step five conclusion, which rested on vocational
expert testimony regarding other jobs plaintiff can perform with the specified RFC. (See R.
29).
This case presents the converse of the situation before the Eleventh Circuit in Nyberg
v. Commissioner of Social Security, 179 F. App’x. 589 (11th Cir. 2006). In that case, the
ALJ failed to consider evidence he is required to consider – the opinion of the claimant’s
treating physician. The Commissioner argued that any such error was harmless because,
“even if the ALJ had considered [the treating doctor’s] opinion, the outcome of the case
could not reasonably have changed.” Id. at 592. The Eleventh Circuit reasoned:
The instant case ... is not one where the unmentioned physician’s opinion
merely supported the ALJ’s conclusion, and was thus unnecessary. See Wilson
v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004). On the contrary,
the potential impact of Dr. Trowbridge’s opinion is strongly and reasonably
disputed by the parties. Thus, we cannot say that the failure to address Dr.
Trowbridge’s opinion was harmless without re-weighing the evidence and
engaging in conjecture that invades the province of the ALJ. See Moore [v.
Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005)](stating that, where ALJ failed
8

See n. 5, supra.
5

to consider certain factors and indicate their impact on his ultimate conclusion
as to claimant’s residual functional capacity, we “[could not] even evaluate the
Commissioner’s contention that the ALJ’s error was harmless”); Wiggins [v.
Schweiker, 679 F.2d 1387, 1390 (11th Cir. 1982)](remanding where we were
“unable to determine whether the ALJ applied the proper legal standard and
gave the treating physician’s evidence substantial or considerable weight or
found good cause not to do so”)[.]
(Id.)(footnotes omitted; emphasis added).
While “an estimation of the likelihood that the result would have been different” is
relevant to the harmless error analysis, so is “an awareness of what body (jury, lower court,
administrative agency) has the authority to reach that result[.]” Shinseki v. Sanders, 556 U.S.
396, 411 (2009).9 This court cannot find that the ALJ’s error in giving “great weight” to the
SDM’s opinion was harmless “without re-weighing the evidence and engaging in conjecture
that invades the province of the ALJ.” Nyberg, 179 F. App’x. at 592. Whether the court
would reach the same ultimate conclusion after re-weighing the evidence is beside the
point.10 Thus, the court concludes – on the particular record under consideration – that the
ALJ committed reversible error by giving “great weight” to the opinion of the SDM.

9

In Allen v. Barnhart, 357 F.3d 1140 (10th Cir. 2004), the Tenth Circuit rejected the
Commissioner’s argument that an ALJ’s failure to make a required finding of fact – that one hundred
of a particular job was “a substantial number” – was harmless error because “the missing fact was
clearly established in the record.” Id. at 1145. While the particular error before this court differs
from that in Allen, the Tenth Circuit’s reluctance to expand the harmless error doctrine was informed
by general concerns also relevant here – i.e., that courts should not “obscure the important
institutional boundary” by usurping the administrative tribunal’s fact-finding responsibility, or
engage in “post hoc justification of administrative action[.]” Id.
10

The court expresses no opinion regarding the conclusion the Commissioner should reach
upon reevaluation of the medical evidence.
6

Dr. Estock’s Opinion
Plaintiff contends that the ALJ erred by failing to consider the mental RFC opinion
of Dr. Estock, the state agency non-examining psychiatrist, who concluded that the plaintiff
was more limited than assessed by the ALJ. (Doc. # 15, pp. 13-15). Social Security Ruling
96-6p provides that “[f]indings of fact made by State agency medical and psychological
consultants and other program physicians and psychologists regarding the nature and severity
of an individual’s impairment(s) must be treated as expert opinion evidence of nonexamining sources at the administrative law judge and Appeals Council levels of
administrative review.” SSR 96-6p, 1996 WL 374180, * 1 (July 2, 1996). It further provides
that, while ALJs are not bound by the findings of state agency physicians, “they may not
ignore these opinions and must explain the weight given to the opinions in their decisions”
and that “RFC assessments by State agency medical or psychological consultants or other
program physicians or psychologists are to be considered and addressed in the decision as
medical opinions from nonexamining sources about what the individual can still do despite
his or her impairment(s).” (Id. at **1, 4). Additionally, if an ALJ’s RFC assessment
“conflicts with an opinion from a medical source, the [ALJ] must explain why the opinion
was not adopted.” SSR 96-8p, 1996 WL 374184, *7 (July 2, 1996).
The ALJ referred to Dr. Estock’s opinion only once, as follows:
Regarding the psychiatric review technique (Exhibit 9F), the undersigned finds
that the claimant has no more than mild limitations in social functioning as
opposed to moderate.

7

(R. 27). As plaintiff argues, the ALJ did not acknowledge or evaluate the mental RFC
opinion given by Dr. Estock in Exhibit 10F, an exhibit separate from the PRTF. While the
ALJ found plaintiff to be “limited to the performance of simple, routine, repetitive tasks[,]”
he included no other mental limitations in his RFC finding. (R. 24). In addition to a limitation
to simple instructions and tasks, Dr. Estock concluded that plaintiff “would likely miss 1-2
days/month due to psych symptoms,” that “[s]upervision should be tactful and constructive
and non-threatening,” and that “[c]hanges in the workplace should be infrequent and
gradually introduced.” (R. 460). The Commissioner offers post hoc explanations of how the
evidence supports rejecting Dr. Estock’s expert opinion regarding plaintiff’s mental RFC
limitations, and contends that “the ALJ’s alleged error in failing to explicitly discount Dr.
Estock’s opinion is harmless and not a basis for remand.” (Doc. # 16, pp. 9-12). However,
the court cannot discern from the ALJ’s written decision his reasons for rejecting the
additional mental limitations assessed by Dr. Estock.11 For this additional reason, the
Commissioner’s decision is due to be reversed, and this action remanded to the
Commissioner for further proceedings.
CONCLUSION

11

While the ALJ did not include it in his RFC finding, his hypothetical question to the
vocational expert included a limitation that “changes in the work place should be infrequent and
gradually introduced[,]” one of the limitations expressed by Dr. Estock. (See R. 24, 75, 460).
However, the ALJ’s hypothetical question did not take into account Dr. Estock’s opinion that
plaintiff “would likely miss 1-2 days/month due to psych symptoms,” and that “[s]upervision should
be tactful and constructive and non-threatening.” (See id.). Thus, the ALJ’s hypothetical question
to the VE does not support a conclusion of harmless error.
8

For the foregoing reasons, the Commissioner’s decision is due to be reversed. A
separate judgment will be entered.
Done, this 29th day of January, 2016.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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