Whittington v. Colvin (CONSENT)

Filing 15

MEMORANDUM OPINION: it is ORDERED that the decision of the Commissioner denying benefits is REVERSED and this matter is REMANDED to the Commissioner, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 5/20/2016. Copies mailed to SSA Chief Judge and SSA Office of Hearings and Appeals (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

ROBERT WHITTINGTON,
Plaintiff,
v.
CIVIL ACTION NO. 2:15-cv-314-WC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION
I.

INTRODUCTION
On May 23, 2012, Plaintiff Robert Whittington applied for disability insurance benefits

under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging a disability onset date
of April 30, 2012. Tr. 178. Plaintiff’s claims were denied at the initial administrative level. Plaintiff
then requested and received a hearing before an Administrative Law Judge (“ALJ”). On July 16,
2013, the ALJ held a hearing and, on September 6, 2013, the ALJ denied Plaintiff’s claims.
Plaintiff requested a review of the ALJ’s decision by the Appeals Council (“AC”) and provided
additional evidence for the Appeals Council to consider. The Appeals Council denied the request
for review on March 16, 2015. Thus, on that date, the ALJ's decision became the final decision of
the Commissioner of Social Security (“Commissioner”).1 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
Rule 73.1 of the Local Rules for the United States District Court Middle District of Alabama, the

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.

1

parties have consented to have the undersigned United States Magistrate Judge conduct all
proceedings in this case and enter a final judgment. Based on the court's review of the record and
the relevant law, 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 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 (2011).
(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?
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 Four. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying

2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities
that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
3
McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability insurance benefits.
Supplemental security income cases arising under Title XVI of the Social Security Act are appropriately cited as
authority in Title II cases. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th Cir. 1981); Smith v. Comm'r of Soc.
Sec., 486 F. App'x 874, 876 n.* (11th Cir. 2012) (“The definition of disability and the test used to determine whether
a person has a disability is the same for claims seeking disability insurance benefits or supplemental security
income.”).

2

disability once they have carried the burden of proof from Step One through Step Four. At Step
Five, 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. The RFC is what the claimant is still able to do
despite the claimant’s impairments and is based on all relevant medical and other evidence. Id. It
may 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.
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. Id. at 1240.
Combinations of these factors yield a statutorily required 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, 1158-59 (11th Cir. 2004) (“Even

4

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

3

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

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty-four years old at the time of his last date insured, December 31, 2012.

Tr. 161, 164. He has at least a high school education and can communicate in English. Tr. 56-57.
His past work was as a roofer and roofer helper. Tr. 30, 80-82. Following the administrative
hearing, the ALJ found at Step One that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date, April 30, 2012, through his last date insured, December 31, 2012. Tr.
23. At Step Two, the ALJ determined that Plaintiff suffers from the severe impairment of
schizophrenia. Tr. 23. At Step Three, the ALJ found that through the last date insured, Plaintiff
“did not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments . . ..” Tr. 23. The ALJ articulated Plaintiff’s residual
functional capacity as follows:
The claimant had the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except: the claimant requires a sit/stand at will option; the
claimant can occasionally bend, balance, stoop, kneel, crouch and crawl; the
claimant can never climb ladders, ropes, or scaffolds; the claimant should avoid
constant exposure to cold, heat, wetness, humidity, vibrations, and loud noises; the
claimant should avoid all exposure to unprotected heights, dangerous machines,
and uneven surfaces; the claimant is limited to low stress, unskilled work with no
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more than simple short instructions and simple work-related decisions with few
workplace changes; the claimant is limited to occasional interaction with the
general public, interaction with supervisors, and interaction with co-workers; and
claimant is unable to work in close proximity to others because of being easily
distracted.
Tr. 25. Having consulted a VE at the hearing, the ALJ found at Step Four that Plaintiff could not
perform his past relevant work. Tr. 30. Then, at Step Five, the ALJ determined there were jobs that
existed in significant numbers in the national economy that Plaintiff could have performed,
including small parts assembler, hand finisher, and garment folder. Tr. 31. Thus, the ALJ
concluded that Plaintiff was not disabled within the meaning of the Social Security Act from April
30, 2012, his alleged disability onset date, through December 31, 2012, his date last insured. Tr.
31.
Plaintiff requested a review of the ALJ’s decision by the AC and submitted additional
evidence to the AC for consideration. The additional evidence included court records from 2010
concerning Plaintiff’s involuntary hospitalization for hallucinations; an October 29, 2013, letter
from Plaintiff to a judge; arguments from Plaintiff’s counsel dated July 11, 2014, September 12,
2014, and October 23, 2014; a September 25, 2014, letter from Plaintiff’s brother, Edward
Whittington, M.D.5; medical records from Beth Manor Inpatient and Elmore County In Home
dated November 21, 2013, to May 12, 2014; and medical records from Donald W. Blanton, Ph.D.,
dated October 2, 2014, and October 6, 2014. Tr. 5-6, 17, 249-68, 325-76. The Appeals Council
expressly made the additional evidence part of its record, but found the evidence provided no basis
to change the ALJ’s decision, and denied Plaintiff’s petition for review. Tr. 1-6. This action
followed.

5

Plaintiff’s brother has a medical degree, and his specialty is obstetrics and gynecology. Tr. 75.

5

IV.

PLAINTIFF’S CLAIMS
Plaintiff presents three arguments for reversal of the Commissioner’s decision: (1) the ALJ

erred in his finding concerning the RFC where the ALJ “relied on a flawed State agency consulting
psychologist’s report”; (2) the ALJ erred in his finding concerning the RFC where the ALJ “failed
to appropriately evaluate the ‘other source’ evidence of Mr. Whittington’s brother”; and (3)
alternatively, “remand under Sentence 6 of 42 U.S.C. § 405(g) [is] appropriate for the taking of
New Evidence where the New Evidence indicates the administrative law judge failed to appreciate
the severity of Mr. Whittington’s psychiatric illness.” Pl.’s Br. (Doc. No. 12) at 1.
V.

DISCUSSION
A disability claimant bears the initial burden of demonstrating the existence of a disability.

Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990). In determining whether the claimant has
satisfied this burden, the Commissioner is guided by four factors: (1) objective medical facts or
clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and
disability, that is, the testimony of the claimant and his family or friends; and (4) the claimant’s
age, education, and work history. Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). The
ALJ must conscientiously probe into, inquire of and explore all relevant facts to elicit both
favorable and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir.
1981) (citations omitted). The ALJ must also state, with sufficient specificity, the reasons for the
decision concerning the claimant’s impairments. See 42 U.S.C. § 405(b)(1) (decision must
“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”).

6

Plaintiff was involuntarily hospitalized in 2010 for psychotic symptoms after he threatened
to hurt his brother. Tr. 273. Plaintiff did not believe he had a mental illness but instead believed he
was being investigated by the police, who could communicate with him and read his mind through
a computer, speak through him, make him burn himself, and tried to erase his memory. Tr. 27174, 293-94. By the time he was discharged, Plaintiff said his symptoms had disappeared
completely. Tr. 272. Subsequent medical records indicate continued symptoms. See generally Tr.
301-24. At the hearing before the ALJ, Plaintiff testified he hears voices and responds to them
“because it’s like you can’t really control the words coming out of your mouth. You know, they
just—they just come out of your mouth.” Tr. 76. Plaintiff testified that he heard voices the morning
of the hearing, and he explained:
It’s still a police investigation and it was—it’s just where they just—they can read
your mind, the words come through your mouth and they just—they’re just talking
to you, you know, about you can think of something they can tell you what you’re
thinking, you know.
Tr. 77. Plaintiff testified the medicine he takes initially helped, but it stopped being as effective,
that he sees his doctor every three months, and his next option was to try taking the medicine as a
shot. Tr. 77-78.
Plaintiff argues that the report of one-time State agency consultative examiner, Warren G.
Brantley, Ph.D., a psychologist, is flawed, and the ALJ’s decision to give “considerable weight”
to it is not supported by substantial evidence. Pl.’s Br. (Doc. 12) at 7-10; Tr. 28. “Medical opinions
are statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s] impairment(s), including [the
claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2).
Absent “good cause,” an ALJ is to give the medical opinions of treating physicians “substantial or
7

considerable weight.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R.
§ 404.1527(d)(1)-(2). Good cause exists “when the: (1) treating physician's opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s
opinion was conclusory or inconsistent with the doctor's own medical records.” Phillips v.
Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). A consultative examiner’s opinion is not entitled
to the deference normally given a treating source. See 20 C.F.R. § 404.1527(c)(2); Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) (one-time examiner’s opinion is not
entitled to great weight). A specialist’s opinion generally receives more weight on those issues
related to the specialty than the opinion of someone who is not a specialist. 20 C.F.R. §
404.1527(c)(6). Nonetheless, all opinions, even those of non-treating state agency or other
program examiners or consultants, are to be considered and evaluated by the ALJ. See 20 C.F.R.
§ 404.1527.
Dr. Brantley’s impression for Plaintiff was alcohol dependence with daily drinking,
nicotine dependence, and “self-reported Psychotic Features in the form of auditory hallucinations.”
Tr. 298.

Dr. Brantley plainly harbored reservations regarding Plaintiff’s diagnosis of

schizophrenia and was skeptical of his reports of related symptoms. See id. at 297-98 (finding “no
evidence of schizoaffective disorder,” remarking that Whittington’s complaint of hearing voices
“needs confirmation because he was supervising a business and employees up until this last
December when he applied for disability benefits,” speculating that Whittington’s 2010
hospitalization at a psychiatric hospital was “related to alcoholism and polysubstance dependence”
rather than a psychotic episode related to Plaintiff’s schizophrenia, and limiting his impression of
Plaintiff’s condition to “self-reported residual Psychotic Features in the form of auditory
hallucinations”) (emphasis supplied). The ALJ concluded that Dr. Brantley’s opinion “is within

8

the doctor’s field of specialty, and is consistent with and supported by his findings. Furthermore,
it is not inconsistent with the overall medical evidence in the record.” Tr. 28. Accordingly, the
ALJ afforded Dr. Brantley’s opinion “considerable weight.” Tr. 28.
Upon review of the record, the court finds that the ALJ’s decision to afford Dr. Brantley’s
opinion “considerable weight”—and thus his tacit endorsement of Dr. Brantley’s skepticism about
Plaintiff’s schizophrenia, notwithstanding the ALJ’s finding that it is a severe impairment—is not
supported by substantial evidence.

Review of Plaintiff’s medical records demonstrates his

treatment, under the supervision of a treating psychiatrist, for auditory hallucinations and delusions
continued into 2011, 2012, and after Dr. Brantley’s assessment. As such, the “confirmation” Dr.
Brantley claimed to need in order to credit Plaintiff’s self-reports about auditory hallucinations is
easily located in the record.
After his discharge from hospitalization in October 2010, Plaintiff was directed to continue
treatment at Montgomery Area Mental Health Authority (MAMH), which he began in January
2011. Tr. 272. Plaintiff was treated primarily by either S. Banerjee, M.D., M.P.A., or C. Cohen,
D.N.P., C.R.N.P., throughout 2011 and 2012, and his symptoms waxed and waned. Tr. 305-24.
On November 30, 2011, about the time Dr. Brantley stated Plaintiff was still supervising a business
and employees, Plaintiff visited with Dr. Banerjee, who reported positive findings for delusions,
paranoia, and auditory hallucinations. Tr. 313. Plaintiff said the “police are still after him and they
are investigating him [with] computers about a murder mystery at Gulf Shores which happened
more than 10 years ago (as per pt.).” Tr. 313. Dr. Banerjee increased Plaintiff’s prescription for

9

Risperdal6 to 3 mg twice daily, and increased his Artane7 prescription to 2 mg at night and 1mg in
the morning. Tr. 313. On May 30, 2012, Plaintiff told Dr. Banerjee his pharmacy cannot give him
Risperdal 3 mg, and it had to be 2 mg. Tr. 311. On that date Dr. Banerjee reduced his Risperdal to
2 mg, and reduced his Artane to 2 mg at night. Tr. 311. Although Plaintiff did not report
hallucinations or delusions on May 30, 2012, Dr. Banerjee noted that Plaintiff’s insight was poor
and his judgment was impaired. Tr. 311. Neither Dr. Brantley nor the ALJ mentioned these
documented abnormal mental health findings.8 Tr. 28-29, 297.
Moreover, the record demonstrates Plaintiff’s continued symptoms and treatment for
auditory hallucinations after Dr. Brantley’s report but prior to the date he was last insured. On
August 30, 2012, nearly a month after Dr. Brantley’s consultative examination, Plaintiff reported
to Dr. Banerjee that he was hearing voices again and wanted his Risperdal increased Tr. 310, 323.
Dr. Banerjee commented that Plaintiff’s insight was poor and his judgment was impaired. Tr. 310.
She increased his Risperdal to 3mg, increased his Artane to 2 mg at night and 1 mg in the morning.
Tr. 310. She renewed his prescriptions on October 23, 2012. Tr. 310, 324. On November 28, 2012,
Plaintiff reported he was still hearing some voices. Dr. Banerjee commented that he had poor
insight and impaired judgment; his brother moved in with him; and she increased the dose of his
psychotropic medication. Tr. 322.

6

Risperdal “is in a class of medications called atypical antipsychotics. It works by changing the activity of certain
natural substances in the brain.” See https://www.nlm.nih.gov/medlineplus/druginfo/meds/a694015.html (last
accessed May 16, 2016).
7

Artane is a brand name for the generic drug, trihexyphenidyl, which “is used to treat the symptoms of Parkinson's
disease and tremors caused by other medical problems or drugs. This medication is sometimes prescribed for other
uses . . . .” See https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682160.html (last accessed May 16, 2016).
8

Dr. Brantley suspected that Plaintiff’s 2010 psychotic episode “was related to alcoholism and possibly polysubstance
dependence. Residual features have not compromised his ability to own his own business up until this last December.
No medical problems were observed.” Tr. 298. Nevertheless, the ALJ did not mention these findings or address
whether Whittington’s alcohol or substance abuse affected his RFC.

10

The ALJ stated that Dr. Brantley’s opinion is “not inconsistent with the overall medical
evidence in the record,” Tr. 28, but—other than to mention that Plaintiff was seen in August 2012
(Tr. 28)—the ALJ does not mention any of this evidence of Plaintiff’s treatment after Dr.
Brantley’s assessment and before the last date insured. Nor does the ALJ address Dr. Brantley’s
failure to more fully engage with medical records indicating Plaintiff’s abnormal mental health
findings and treatment for schizophrenia prior to the date he issued his opinion.9 Therefore, the
court concludes, the ALJ did not adequately consider the evidence that both supported and
detracted from the ALJ’s findings, and the ALJ reversibly erred in affording “considerable weight”
to Dr. Brantley’s opinion in view of the entire record.10 See Cowart, 662 F.2d at 735-36.
Plaintiff similarly challenges the ALJ’s decision to give little weight to the third party
report by Plaintiff’s brother, Edward Whittington, M.D. Tr. 26-27. Although evidence from
subjective, nonmedical, “other sources” cannot establish a medically determinable impairment, it
is appropriate to consider the evidence to show the severity of the impairment and how it affects
the ability to work. See 20 C.F.R. § 404.1513(a) & (d)(4). In doing so, it is appropriate for the ALJ
to consider “such factors as the nature and extent of the relationship, whether the evidence is
consistent with other evidence, and any other factors that tend to support or refute the evidence.”
SSR 06-03p, 2006 WL 2329939, at *6 (S.S.A. Aug. 9, 2006). The ALJ summarized the report
from Dr. Whittington, stating,
Mr. Whittington reported the claimant does light housework, but primarily sits on
the porch and smokes cigarettes. Mr. Whittington reported when the claimant does
9

The court struggles to conceive what would suffice for Dr. Brantley as “confirmation” of Plaintiff’s auditory
hallucinations and delusions, and their serious effects on his functioning, if Plaintiff’s self-reporting, the report of
Plaintiff’s brother, a medical doctor who has observed and been greatly affected by Plaintiff’s mental health issues,
and the treatment records indicating Plaintiff’s continued experiences of and treatment for auditory hallucinations and
delusions were not sufficient to do so.
10

The ALJ also relies on the August 20, 2012, opinion of Robert Estock. M.D., the state agency consultant. Tr. 2930. Dr. Estock likewise relied on Dr. Brantley’s assessment; thus, is it not surprising that Dr. Estock made findings
similar to Dr. Brantley’s. Tr. 95-96, 297-98.

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not take his medication he is unable to sleep, secondary to auditory hallucinations,
and when he does take his medications, he is sleepy all day. He also reported they
have to remind the claimant to take his medications, shave, and bathe. Mr.
Whittington also reported the claimant does not prepare his own meals. He reported
the claimant does laundry and light cleaning, but has to be reminded to do so. Mr.
Whittington reported the claimant is unable to pay bills, handle a savings account,
or use a checkbook/money order. He reported the claimant spends time with himself
and others including visiting with his sister nightly during meals. He reported the
claimant’s disabling condition affects his abilities related to memory, completing
tasks, concentration, understanding, following instructions, and getting along with
others. He reported the claimant does not follow written or spoken instructions well.
Mr. Whittington also reported the claimant is completely unable to handle stress
and usually refuses to adopt to a new routine. Mr. Whittington reported the claimant
has worsened over the years. He also reported the claimant’s symptoms are
somewhat controlled on medication, but he continues to have hallucinations.
Tr. 26-27.
In addition to the above, Dr. Whittington reported that his brother “might pay bills when
already paid or forget to pay a bill. We sit with him and help him when this is needed. He recently
paid a lawyer $7,000.00 to help him prove that the state police were ‘cybernetically’ controlling
his brain.” Tr. 219. Dr. Whittington further reported that his brother has no hobbies “other than
sitting on the front porch & watching the trees & the birds,” that ten years ago he worked all day,
“but he subsequently became secluded & now isolated.” Tr. 220. Plaintiff’s sister “lives a stone’s
throw away,” and his only social activities are nightly meals with his sister and visits every one
or two weeks with Plaintiff’s brother, who also reported seeing Plaintiff four to six hours a week.
Tr. 216, 220. Dr. Whittington reported that Plaintiff used to have a thriving business and wealth,
but now he trusts no one, and that Plaintiff wanted to hurt him, so he had to have him arrested. Tr.
221. He reported that Plaintiff had no boss for years, but Dr. Whittington believed that ten or
twelve years ago Plaintiff was fired “when all of this began, but he subsequently was arrested.”
Tr. 222. He reported that Plaintiff cannot handle stress, “he pulls away from everyone. eg death of
our mom 8 mos ago.” Tr. 222. In the “Remarks” section, Dr. Whittington wrote, “The gist of the

12

matter is: Some 10-12 years ago, Robert became paranoid. He was particularly afraid of the police.
. . . He worsened over the years . . . . He attempted to self medicate with alcohol and THC. . . .He
is somewhat controlled on meds but continues to have hallucinations. His business has deteriorated
to nothing & he has no way of earning a living--The details are much worse than this outline
provides time or space for.” Tr. 223.
The ALJ determined the third party “statements about the claimant’s symptoms and
functional limitations are considered partially credible as the alleged severity is not consistent with
the objective findings from the evidence in the file, and therefore, it is given little weight.” Tr. 27.
As with the ALJ’s decision to give considerable weight to Dr. Brantley’s opinion, the ALJ’s
decision to give little weight to the third person report by Dr. Whittington fails to more fully
acknowledge the objective medical evidence in the record that supports Plaintiff’s continued
auditory hallucinations, delusions, poor insight, and impaired judgment and, therefore, supports
Dr. Whittington’s statement. Apart from the fact that Dr. Whittington’s statement is largely
consistent with evidence in the record, the other factors listed in SSR06-03p warrant greater
deference to Dr. Whittington’s statement than was afforded by the ALJ.

Namely, Dr.

Whittington’s relationship with his brother appears close, as Dr. Whittington frequently observes
and interacts with this brother and is extensively involved in providing for Plaintiff and ensuring
that his needs are met. Likewise, although Dr. Whittington ostensibly does not treat Plaintiff, and
hence his report is not medical evidence, the fact that he is a medical doctor is a factor which tends
to support the reliability of his observations and his assessment of Plaintiff’s condition. For all of
these reasons, the court concludes the ALJ did not adequately consider the nonmedical opinion
from Dr. Whittington in assessing the severity and functional effect of Plaintiff’s impairment, and,

13

thus, the ALJ did not adequately consider both favorable and unfavorable facts in his review. See
Cowart, 662 F.2d at 735.
“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. 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) (footnote and citation to Sims, 530
U.S. at 111 omitted). For the reasons given above, the court concludes that the ALJ erred in
discharging his duty to “investigate the facts and develop the arguments both for and against
granting benefits.” Id. Thus, the case should be remanded for further proceedings. Because the
court concludes Plaintiff’s case must be remanded based on these grounds, the court does not
address Plaintiff’s alternative argument that the case should be remanded based on the evidence
presented to the AC.
VI.

CONCLUSION
Based on the foregoing, it is ORDERED that the decision of the Commissioner denying

benefits is REVERSED and this matter is REMANDED to the Commissioner. A final judgment
consistent with this Memorandum Opinion and Order will be entered separately.
DONE this 20th day of May, 2016.

/s/ Wallace Capel, Jr.
UNITED STATES MAGISTRATE JUDGE
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