McCall v. Colvin

Filing 17

MEMORANDUM OPINION AND ORDER: it is ORDERED that the decision of the Commissioner is REVERSED and REMANDED for the Commissioner to conduct further proceedings consistent with this opinion, to include (1) evaluating the opinion of Dr. Fernelle L. Warr en; (2) stating what weight, if any, is given to this opinion; and (3) explaining the reasons for the assigned weight; copies mailed to SSA Chief Judge and SSA Office of Hearings and Appeals. Signed by Honorable Judge Gray M. Borden on 2/22/2017. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LALA D. MCCALL,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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CASE NO.: 2:15-cv-902-GMB

MEMORANDUM OPINION AND ORDER
Plaintiff Lala D. McCall filed this action on December 7, 2015, seeking judicial
review of a final adverse decision of the Commissioner of Social Security denying her
application for a period of disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social Security Act. Doc. 1. The case is
ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

The parties have

consented to the entry of a final judgment by the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal Rules of Civil Procedure,
and Rule 73.1 of the Local Rules for the United States District Court for the Middle
District of Alabama. Docs. 11 & 12. Based upon a review of the parties’ briefs, the
evidentiary record, and the relevant authority, the court finds that, for the reasons

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin, Acting
Commissioner of Social Security, as the defendant in this lawsuit. No further action needs to be taken to
continue this lawsuit pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The Clerk
of Court is DIRECTED to take the appropriate steps to reflect this change on the docket sheet.

explained below, the Commissioner’s decision is due to be REVERSED and
REMANDED.
I. STANDARD OF REVIEW
The court reviews a social security case to determine whether the Commissioner’s
decision “is supported by substantial evidence and based upon proper legal standards.”
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The court “may not decide the
facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner,” but rather it “must defer to the Commissioner’s decision if it is
supported by substantial evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997)
(internal quotation marks omitted). Indeed, the court must affirm the Commissioner’s
decision “if it is supported by substantial evidence and the correct legal standards were
applied.” Kelly v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999) (citing Graham v. Apfel,
129 F.3d 1420, 1422 (11th Cir. 1997)).
“Substantial evidence is more than a scintilla—i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion.”
Jones ex rel. T.J.J. v. Astrue, 2011 WL 1706465, at *1 (M.D. Ala. May 5, 2011) (citing
Lewis, 125 F.3d at 1440). The court must scrutinize the entire record to determine the
reasonableness of the decision reached. Hale v. Bowen, 831 F.2d 1007, 1010 (11th Cir.
1987). “If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as a finder of
fact, and even if the court finds that the evidence preponderates against the
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Commissioner’s decision.” Jones, 2011 WL 1706465, at *2 (citing Edwards v. Sullivan,
937 F.2d 580, 584 n.3 (11th Cir. 1991)). The court will reverse the Commissioner’s
decision on plenary review if the decision applies incorrect law, or if the decision fails to
provide the court with sufficient reasoning to determine that the Commissioner properly
applied the law. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991); Jones,
2011 WL 1706465, at *2 (citing Keeton v. Dep’t of Health & Human Servs., 21 F.3d
1064, 1066 (11th Cir. 1994)).

There is no presumption that the Commissioner’s

conclusions of law are valid. Id.
II. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show the “inability 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); 42 U.S.C. § 416(i). A physical or mental impairment is “an impairment
that results from anatomical, physiological, or psychological abnormalities which are
demonstrated by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. § 423(d)(3). McCall bears the burden of proving that she is disabled, and she is
responsible for producing evidence to support her claim. See Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003).
Determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a). Specifically, the Commissioner must determine in
sequence:
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(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’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 claimant unable to perform his or her former occupation?
(5) Is the claimant unable to perform any other work within the economy?
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (quoting 20 C.F.R. § 416.920(a)−(f)).
“Once the finding is made that a claimant cannot return to prior work the burden of proof
shifts to the Secretary to show other work the claimant can do.” Foote v. Chater, 67 F.3d
1553, 1559 (11th Cir. 1995) (citing Gibson v. Heckler, 762 F.2d 1516 (11th Cir. 1985)).
III. DISCUSSION
A.

Facts
McCall filed her applications for benefits on September 20, 2012, alleging a

disability onset date of April 1, 2011. Doc. 16-5. McCall’s claims were denied at the
administrative level. Doc. 16-4.
McCall requested and received a hearing before an Administrative Law Judge
(“ALJ”). Doc. 16-4. After holding a hearing, the ALJ concluded that McCall had the
severe impairments of “back disorders, anxiety, depression, and hypothyroidism,” but
that none of those impairments or combination of impairments meets or medically equals
the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix

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1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
Doc. 16-2. The ALJ concluded that McCall has the residual functional capacity to
perform a range of light work as defined in 20 CFR 404.1567(b) and
416.967(b), except the claimant is able to stand/walk four to six hours of an
eight-hour workday and sit 6 to 8 hours in an 8-hour workday. She should
not be required to reach overhead bilaterally and she should not be required
to handle objects more than frequently with both hands. She should not be
required to climb ladders, ropes and scaffolds, work at unprotected heights
or drive commercial vehicles. The claimant is able to concentrate and carry
out short, simple work instructions, adapt to occasional changes in work
settings and routines and time off task can be accommodated by normal
breaks. The claimant should not be required to work around the general
public but she is able to interact with co-workers and supervisors
occasionally.
Doc. 16-2. Ultimately, the ALJ concluded that McCall was not disabled within the
meaning of the Social Security Act. Doc. 16-2.
B.

Analysis
McCall presents the following issues for the court’s review: (1) whether the ALJ

committed reversible error by failing to assign any weight to a psychological consultation
examination by Dr. Fernelle L. Warren and by neglecting, in its entirety, the mental
limitations Dr. Warren assigned to McCall; and (2) whether the ALJ committed
reversible error by relying upon a non-examining reviewing physician’s opinion to
support the residual functional capacity assigned to McCall in violation of Dillard v.
Astrue, 834 F. Supp. 2d 1325, 1332 (S.D. Ala. 2011) (citing Swindle v. Sullivan, 914 F.
2d 222, 226 (11th Cir. 1990)).2 Because the court finds that McCall’s first issue warrants
reversal, the court pretermits discussion and decision on the second issue.

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These are the issues as presented by McCall in her brief. See Doc. 14 at 2.

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Weighing the opinions and findings of treating, examining, and non-examining
physicians is an integral part of steps four and five of the ALJ’s sequential evaluation
process for determining disability. The Eleventh Circuit has explained in Winschel v.
Commissioner of Social Security, 631 F.3d 1178 (11th Cir. 2011), that whenever a
physician or psychologist offers a statement reflecting judgments about the nature and
severity of a claimant’s impairment—including symptoms, diagnosis, and prognosis,
what the claimant can still do despite her impairments, and the claimant’s physical and
mental restrictions—the statement is an opinion requiring the ALJ to state with
particularity the weight given to it and the reasons for doing so. Id. at 1178-79 (citing 20
C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th
Cir. 1987)). In the absence of such a statement, “‘it is impossible for a reviewing court to
determine whether the ultimate decision on the merits of the claim is rational and
supported by substantial evidence.’” Id. (quoting Cowart v. Schweiker, 662 F.3d 731, 735
(11th Cir. 1981)).
In this case, while the ALJ briefly mentions Dr. Warren’s opinion,3 she does not
articulate what weight she gave this opinion, nor her grounds for rejecting this opinion.
The Commissioner does not dispute this flaw in any meaningful way. In fact, the
Commissioner’s brief is devoid of any direct discussion of the ALJ’s failure to articulate

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The only explicit discussion of Dr. Warren’s opinion in the ALJ’s decision is the following: “In
addition, a mental status evaluation of the claimant revealed alertness, attentiveness, normal
speech, coherent expressions, intact orientation, and low average to average range intelligence.
Dr. Fernelle’s objective findings evidenced the claimant was essentially able to mentally
function (Exhibit 12F).” The court notes that the ALJ’s reference to Dr. Fernelle is a mistaken
reference to Dr. Warren, whose first name is Fernelle.

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the weight given to Dr. Warren’s opinion, instead addressing whether the ALJ was
required to base her residual functional capacity finding on Dr. Warren’s opinion. That is
not the issue before the court, however. The issue is whether the ALJ erred by failing to
articulate what weight, if any, she gave to Dr. Warren’s opinion, and the court finds that
she did. The law is clear that the ALJ was required to state with particularity the weight
given to Dr. Warren’s opinion and the reasons therefor, and her failure to do so mandates
reversal. See Scott v. Comm’r of Soc. Sec., 2012 WL 834118, at *3-4 (M.D. Fla. Mar. 13,
2012) (reversing and remanding when ALJ failed to state what weight was given to the
opinion of a consultative examining psychologist).
Moreover, while this argument was not raised by the Commissioner, the court
finds that the ALJ’s error in failing to articulate the weight given to Dr. Warren’s opinion
was not harmless. Dr. Warren’s opinion explicitly states that McCall’s prognosis is
“poor,” that her “ability to function independently is moderately to severely impaired,”
and that “her ability to remember and to carry out instructions, as well as respond
appropriately to supervisors, co-workers, and work pressures in a work setting is
moderately to severely impaired.” Doc. 16-10 at 5. Even the Commissioner recognizes
that Dr. Warren “concluded Plaintiff’s mental functional limitations effectively preclude
her from working.” Doc. 15 at 6. Thus, Dr. Warren’s opinion contradicts the ALJ’s
residual functional capacity finding that McCall can perform light work, that she can
“stand/walk four to six hours on an eight-hour workday, and sit 6 to 8 hours in an 8-hour
workday;” that she can “understand, remember and carry out short, simply work
instructions;” and that she is “able to interact with co-workers and supervisors
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occasionally.” Doc. 16-2. As the Eleventh Circuit has held, while the ALJ might have
considered Dr. Warren’s opinion and rejected it, “without clearly articulated grounds for
such [a finding], [the court] cannot determine whether the ALJ’s conclusions were
rational and supported by substantial evidence.” Winschel, 631 F.3d at 1178-79. Thus,
the court finds that the ALJ’s error was not harmless.
IV. CONCLUSION
Accordingly, for the reasons stated above, it is ORDERED that the decision of the
Commissioner is REVERSED and REMANDED for the Commissioner to conduct
further proceedings consistent with this opinion, to include (1) evaluating the opinion of
Dr. Fernelle L. Warren; (2) stating what weight, if any, is given to this opinion; and (3)
explaining the reasons for the assigned weight.
A final judgment will be entered separately.
DONE this 22nd day of February, 2017.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

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