Fletcher v. Colvin

Filing 15

MEMORANDUM OPINION AND ORDER: In light of the inadequate development of the medical evidence and the ALJ's failure to fully and fairly develop the record in this case, the court concludes that this case should be remanded for further proceedings consistent with this opinion. Further, it is ORDERED that, with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 n.2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice of any amount of past due benefits awarded to seek attorneys fees under 42 U.S.C. § 406(b). Seealso Blitch v. Astrue, 261 F. Appx 241, 242 n.1 (11th Cir. 2008). A separate final judgment will be entered. Signed by Honorable Judge Charles S. Coody on 8/17/2016. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
STERLING FLETCHER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.

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) CIVIL ACTION NO. 2:15cv176-CSC
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(WO)
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MEMORANDUM OPINION and ORDER
I. Introduction
On March 29, 2013, the plaintiff applied for supplemental security income benefits
under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., and disability insurance
benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that
he was unable to work because of a disability. His 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).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

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2

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.

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.

The case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and
1383(c)(3). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have
consented to a United States Magistrate Judge conducting all proceedings in this case and
ordering the entry of final judgment. 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
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.

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disabled.
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’r 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 support the decision of the ALJ but instead must view the record in its entirety
and take into account 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).

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III. The Issues
A. Introduction. Fletcher was 56 years old on the date of onset. (R. 77). He has a
General Equivalency Diploma (“GED”) and some college. (R. 44). Fletcher’s prior work
experience includes work as a roofer and custodian.

(R. 29 & 45).

Following the

administrative hearing, the ALJ concluded that when considering his substance abuse, Fletcher
has severe impairments of “seizures secondary to alcohol withdrawal; [and] alcohol abuse with
seizures.” (R. 20). The ALJ concluded that when excluding consideration of Fletcher’s
alcoholism, he suffers only from the severe impairment of seizures. (R. 23). When excluding
consideration of his substance abuse, the ALJ concluded that Fletcher was able to return to his
past relevant work. (R. 29). In the alternative, the ALJ concluded that Fletcher also has the
residual functional capacity to perform other jobs that exist in significant numbers in the
national economy, and thus, he is not disabled. (R. 29-30).
B. The Plaintiff’s Claims. As stated by Fletcher, he presents four issues for the
Court’s review.
1.

The ALJ failed to adequately evaluate the “materiality” of Mr. Fletcher’s
alcohol use.

2.

The ALJ erred in his assessment of Mr. Fletcher’s cerebral atrophy.

3

The ALJ’s residual functional capacity is not rooted in the record.

4.

The ALJ failed in his duty to fully and fairly develop the record.

(Doc. # 12, Pl’s Br. at 6-10).

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IV. Discussion
This court’s ultimate inquiry is whether the Commissioner’s disability decision is
supported by the proper legal standards and by substantial evidence. See Bridges v. Bowen,
815 F.2d 622 (11th Cir. 1987). While a claimant has the burden of proving that he is disabled,
an ALJ has a basic duty to develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003); Kelley v. Heckler, 761 F.2d 1538 (11th Cir. 1985). “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, 110-111 (2000).
The SSA is perhaps the best example of an agency that is not based to a
significant extent on the judicial model of decisionmaking. It has replaced
normal adversary procedure with an investigatory model, where it is the duty of
the ALJ to investigate the facts and develop the arguments both for and against
granting benefits; review by the Appeals Council is similarly broad. Id. The
regulations also make the nature of the SSA proceedings quite clear. They
expressly provide that the SSA “conducts the administrative review process in
an informal, nonadversary manner.” 20 C.F.R. § 404.900(b).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
The ALJ must also state, with sufficient specificity, the reasons for his decision
referencing the plaintiff’s impairments.
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) (emphases added).

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The ALJ is not free to simply ignore medical evidence, nor may he pick and choose
between the records selecting those portions which support his ultimate conclusion without
articulating specific, well supported reasons for crediting some evidence while discrediting
other evidence. Marbury v. Sullivan, 957 F.2d 837, 839-41 (11th Cir. 1992). “In the absence
of such a statement, it is impossible for a reviewing court to determine whether the ultimate
decision on the merits is rational and supported by substantial evidence.” Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).5 Because the court finds that the ALJ erred
as a matter of law when he failed to develop the record regarding Fletcher’s cerebral atrophy,
the court pretermits discussion Fletcher’s remaining issues.
The medical evidence demonstrates that, on January 29, 2013, Fletcher was transported
by ambulance to Jackson Hospital Emergency Room in Montgomery, Alabama after suffering
syncope and a seizure. (R. 252). On arrival, he was in distress, confused, postictal, and
disoriented. (R. 254-255, 264). He was admitted to the hospital, and diagnosed with alcohol
withdrawal-induced seizure. (R. 259-60). The seizure was “attributed to active chronic
alcohol abuse.” (R. 254, 262). During the course of Fletcher’s treatment, he underwent a CT
scan of his brain which revealed “[i]ntracranically, there is moderate degree of white matter
disease in the periventricular regions compatible with chronic small vessel ischemic
change.” (R. 270) (emphasis added). Fletcher was diagnosed with cerebral atrophy at least
five (5) times. (R. 254, 259, 260, 262 & 265). Treatment notes reveal that Fletcher’s “atrophy
5

See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.

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of the brain [is] not commensurate [with] the age.” (R. 265).
According to the National Institute of Neurological Disorders and Stroke,
Cerebral atrophy is a common feature of many of the diseases that affect the
brain. Atrophy of any tissue means loss of cells. In brain tissue, atrophy
describes a loss of neurons and the connections between them. Atrophy can be
generalized, which means that all of the brain has shrunk; or it can be focal,
affecting only a limited area of the brain and resulting in a decrease of the
functions that area of the brain controls. If the cerebral hemispheres (the two
lobes of the brain that form the cerebrum) are affected, conscious thought and
voluntary processes may be impaired.
The pattern and rate of progression of cerebral atrophy depends on the disease
involved. . . . Many diseases that cause cerebral atrophy are associated with
dementia, seizures, and a group of language disorders called the aphasias.
NINDS Cerebral Atrophy Information Page available at http://www.ninds.nih.gov/disorders/
cerebral_atrophy/cerebral_atrophy.htm (last visited Aug. 16, 2016).
Yet, despite the evidence in the record and without securing additional information, the
ALJ concluded that Fletcher’s cerebral atrophy was not a severe impairment because it did not
“cause more than minimal limitations in the claimant’s ability to perform basic work
activities.” (R. 20). The ALJ offers no explanation and points to no evidence in the record
to support this conclusion. The medical evidence shows without contradiction that Fletcher
suffers from moderate cerebral atrophy not consistent with or commensurate with his age.
However, the ALJ failed to make any inquiry at all about Fletcher’s cerebral atrophy or
consider how that condition impacts his ability to perform work. “[T]he severity of a
medically ascertained disability must be measured in terms of its effect upon ability to work,
and not simply in terms of deviation from purely medical standards of bodily perfection or

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normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986); Gray v. Comm’r of
Soc. Sec., 426 F. App’x 751, 753 (11th Cir. 2011); Manzo v. Comm’r of Soc. Sec., 408 F.
App’x 265, 269 (11th Cir. 2011).
In this case, the ALJ failed to “discuss meaningfully how [Fletcher’s cerebral atrophy]
might affect [his] ability to perform” work. See Barrio v. Comm’r of Soc. Sec. Admin., 394
F. App’x 635, 638 (11th Cir. 2010). While it is undisputed that Fletcher suffers from moderate
cerebral atrophy, it is unclear how this condition affects his ability to work. “[W]hen the ALJ
fails to ‘state with at least some measure of clarity the grounds for his decision,’ we will
decline to affirm ‘simply because some rationale might have supported the ALJ’s conclusion.’
” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (quoting Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir.1984) (per curiam)). Without a more developed
record and further inquiry, the court concludes that the ALJ erred as a matter of law when he
failed to develop the record regarding the severity of Fletcher’s cerebral atrophy and the effect
of that impairment on Fletcher’s ability to perform work.
Moreover, there is sufficient evidence in the record from which the ALJ should have
concluded that it was necessary to secure additional medical evidence regarding Fletcher’s
cerebral atrophy before rendering a decision regarding his disability. The ALJ failed to order
any consultative examination for Fletcher, let alone a neurological evaluation. The ALJ also
did not require any updated x-rays, MRIs, CT scans or other medical testing to determine the
extent of Fletcher’s cerebral atrophy. He made no inquiry and took no action to ascertain how
that impairment might impact Fletcher’s ability to perform work. See Holladay v. Bowen, 848
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F.2d 1206, 1209 (11th Cir. 1988) (ALJ is not required to order consultative examination unless
the record establishes that such an evaluation is necessary to make informed decision); Reeves
v. Heckler, 734 F.2d 519 (11th Cir. 1984) (error for ALJ not to order consultative examination
where the evaluation is needed to make an informed decision). “Failure to apply correct legal
standards or to provide the reviewing court with the sufficient basis to determine that the
correct legal principles have been followed is grounds for reversal.” Wiggins v. Schweiker,
679 F.2d 1387, 1389 (11th Cir. 1982).
Pursuant to 20 C.F.R. § 416.917, the ALJ is required to order additional medical tests
when the claimant’s medical sources do not give sufficient medical evidence to make a
determination as to disability. The ALJ acknowledged that there were no medical opinions
in the record regarding Fletcher’s limitations, (R. 28), but he then failed to order a neurological
evaluation or any additional medical testing. The ALJ’s failure to fully develop the record
requires that this case be remanded for further proceedings because the ALJ could not make
an informed decision based on the record before him. Thus, his decision is not supported by
substantial evidence. On remand, to make a full and fair determination of Fletcher’s disability
claim, the ALJ shall secure a neurological evaluation from a neurologist or similarly qualified
physician to determine the extent and effect of Fletcher’s cerebral atrophy on his ability to
perform work.
V. Conclusion
Accordingly, in light of the inadequate development of the medical evidence and the
ALJ’s failure to fully and fairly develop the record in this case, the court concludes that this
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case should be remanded for further proceedings consistent with this opinion. Further, it is
ORDERED that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273,
1278 n.2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after he 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 F. App’x 241, 242 n.1 (11th Cir. 2008).
A separate final judgment will be entered.
Done this 17th day of August, 2016.

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

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