Andrews v. Colvin

Filing 15

MEMORANDUM OPINION AND ORDER directing that the decision of the Commissioner will be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) byseparate judgment so that the Commissioner can conduct additional proceedings consist entwith this opinion; ORDERING that plf's 12 MOTION for an award of reasonable attorney' s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 241(d), is DENIED without prejudice, as further set out in order. Signed by Honorable Judge Susan Russ Walker on 9/22/17. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
STEPHEN THOMAS ANDREWS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

CASE NO. 2:16cv221-SRW

MEMORANDUM OPINION AND ORDER2
Plaintiff Stephen Thomas Andrews commenced this action on March 31, 2016,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner denying his application for disability, disability insurance benefits, and
Supplemental Security Income. See Doc. 1; Doc. 12; Doc. 13. Plaintiff alleged disability
as of February 20, 2013 due to “[t]horacic / lumbar / cervical disc disease / neuropathy”
and “septic shock.” Doc. 14-6 at 6. On August 26, 2014, Administrative Law Judge Walter
V. Lassiter, Jr. (“the ALJ”) issued an adverse decision.3 See Doc. 14-2 at 21-44. The

1
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. The Clerk of Court is DIRECTED to
take the appropriate steps to reflect this change on the docket sheet.
2

For the purposes of this appeal, the court uses the Code of Federal Regulations (“C.F.R.”) that was
effective until March 27, 2017, as that was the version of the C.F.R. in effect at the time of the ALJ’s
decision and the filing of this appeal.
3

Plaintiff was represented by counsel at the hearing before the ALJ. See Doc. 14-2 at 21.

1

Appeals Council denied plaintiff’s request for review, and the ALJ’s decision became the
final decision of the Commissioner. See id. at 2-8.
In the instant appeal, the plaintiff requests that the court remand this cause to the
Commissioner under sentence four of § 405(g). See Doc. 12. This case is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to entry of final
judgment by the Magistrate Judge. See 28 U.S.C. § 636(c). See Doc. 9, 10. For the reasons
stated herein, and based upon its review of the record, the court finds that the
Commissioner’s decision is due to be remanded. Plaintiff also moves for an award of
reasonable attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 241(d). See Doc. 12 at 8. This motion will be denied without prejudice. Plaintiff may file
a renewed motion for EAJA fees and a supporting brief after the entry of final judgment in
this case.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this court is to determine whether the decision of the Commissioner is
supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002). This court must “scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” Id. It
is “more than a scintilla, but less than a preponderance.” Id. A reviewing court “may not
2

decide facts anew, reweigh the evidence, or substitute [its] decision for that of the
[Commissioner].” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). In other words,
this court is prohibited from reviewing the Commissioner’s findings of fact de novo, even
where a preponderance of the evidence supports alternative conclusions.
While the court must uphold factual findings that are supported by substantial
evidence, it reviews the ALJ’s legal conclusions de novo because no presumption of
validity attaches to the ALJ’s determination of the proper legal standards to be applied.
Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s
application of the law, or if the ALJ fails to provide the court with sufficient reasoning for
determining that the proper legal analysis has been conducted, it must reverse the ALJ’s
decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder. The Regulations define “disabled” as “the inability
to do 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 twelve (12) months.” 20 C.F.R. §
404.1505(a). To establish an entitlement to disability benefits, a claimant must provide
evidence about a “physical or mental impairment” that “must result from anatomical,
physiological, or psychological abnormalities which can be shown by medically acceptable
clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.

3

The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the Commissioner;

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to a formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). The sequential
analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment. If
the claimant does not have a listed impairment but cannot perform her work,
the burden shifts to the [Commissioner] to show that the claimant can
perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Id.
DISCUSSION
The ALJ found that the plaintiff suffers from the severe impairments of
obesity; status post carpal tunnel release, bilaterally; multilevel degenerative
abnormalities, lumbar spine; status post anterior cervical discectomy and
fusion; multilevel degenerative disc disease with very minimal degree of
4

ventral cord compression, with annular bulging at virtually all levels, and
history of diskitis / osteomyelitis, thoracic spine; chronic defects, bifrontal,
brain; history of lesion, left frontal lobe with encephalomalcia; arthroscopic
debridement, left knee; arthritis; history of aortic valve infective endocarditis
with ongoing mild-to-moderate leaking and mild sclerosis; and history of
small right subcortical, subacute cerebrovascular accident (20 CFR
404.1520(c) and 416.920(c)).
Doc. 14-2 at 23. The ALJ also decided that the plaintiff’s
medically determinable impairments of interstitial fibrosis of the bilateral
lungs; obstructive sleep apnea; diabetes mellitus, Type 2; hypertension,
gastroesophageal reflux disease; status post sinus surgery; long history of
tobacco abuse; mild anemia and thrombocytopenia; and mild cardiomegaly
and pulmonary venous congestion, do not cause more than minimal
limitation in the [plaintiff’s] ability to perform basic physical work activities
and are therefore [non-severe].
Id. at 23-24. The ALJ concluded that the plaintiff does not have an impairment or
combination of impairments that meet or medically equal a listed impairment. See id. at
25.
The ALJ considered all of the plaintiff’s severe or non-severe impairments “in
determining the [plaintiff’s] residual functional capacity” (“RFC”). Id. The ALJ made the
following RFC determination:
[T]he claimant has the [RFC] to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except the claimant can sit at least two hours
without interruption and a total of at least six hours over the course of an
eight-hour workday. The claimant can stand and/or walk at least one hour
without interruption and a total of at least six hours over the course of an
eight-hour workday. The claimant can occasionally use his lower extremities
for the operation of foot controls. The claimant can occasionally use his
upper extremities for reaching overhead. He can frequently use his upper
extremities for pushing, pulling, handling, and fingering. There are no other
limitations involving his extremities. The claimant cannot climb ladders,
ropes, poles or scaffolds. The claimant can occasionally climb ramps and
stairs. The claimant can frequently balance. The claimant can occasionally
stoop, kneel and crouch. The claimant cannot crawl. The claimant can
5

occasionally work in humidity, wetness, and extreme temperatures. The
claimant can occasionally work in dusts, gases, odors and fumes. The
claimant cannot work in poorly ventilated areas. The claimant cannot work
at unprotected heights. The claimant can frequently work with operating
hazardous machinery. The claimant can occasionally operate motorized
vehicles. The claimant can frequently work while exposed to vibration.
Id. at 27. At step four, the ALJ found that the plaintiff can perform his past relevant work
as a technical writer. See id. at 41. The ALJ made alternative findings at step five, based in
part on the testimony of a vocational expert, that the plaintiff can perform other jobs that
exist in sufficient numbers in the national economy. See id. at 42-43. The ALJ’s findings
resulted in a determination that the plaintiff is “not disabled.” Doc. 14-2 at 43.
The plaintiff makes four arguments in favor of remand. First, he asserts that the
ALJ erred by finding that the plaintiff’s medically determinable impairments of
interstitial fibrosis of the bilateral lungs; obstructive sleep apnea; diabetes
mellitus, Type 2; hypertension; gastroesophageal reflux disease; status post
sinus surgery; long history of tobacco abuse; mild anemia and
thrombocytopenia; and mild cardiomegaly and pulmonary venous
congestion[,]
are not severe impairments. Doc. 12 at 3. Second, the plaintiff asserts that the ALJ did not
consider the plaintiff’s impairments “in combination.”4 Id. Third, he argues that the ALJ
was required to obtain an opinion from a “qualified medical expert regarding whether the
[plaintiff’s] impairments meet or are medically equal to a Listed Impairment.” Id. at 5
(citing Doc. 14-11 at 46). Finally, the plaintiff contends that the ALJ “failed in his duty to

4
The ALJ is required to consider the plaintiff’s severe and non-severe impairments collectively. See Jones
v. Dep’t of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991) (“Where a claimant has alleged
several impairments, the Secretary has a duty to consider the impairments in combination and to determine
whether the combined impairments render the claimant disabled.”). The ALJ’s written decision
demonstrates that the ALJ satisfied this requirement. See Doc. 14-2 at 25-42.
6

develop a full and fair record” as to plaintiff’s “memory problems” and chronic obstructive
pulmonary disorder (“COPD”). Id. at 7. The plaintiff asserts that the ALJ should have
obtained “a psychological evaluation” to assess the severity of plaintiff’s memory
impairment and “pulmonary function studies to determine the extent of the [p]laintiff’s
pulmonary impairment[.]” Id. The Commissioner opposes remand. See Doc. 13. After
careful consideration, the court finds that the plaintiff’s third argument merits remand.
Accordingly, except as expressly discussed herein, the plaintiff’s remaining arguments are
not reached in this decision.
I.

The ALJ was required to obtain additional expert testimony.

The plaintiff argues that, “Because of the complexity of this case, the ALJ erred in
failing to seek the advice of a medical expert” in determining whether the plaintiff met or
equaled a listing impairment.5 Doc. 12 at 6. For the reasons discussed below, the plaintiff
is correct that the ALJ was required to obtain such medical expert testimony as a matter of
law, and that such evidence does not appear in the administrative record.
An impairment or combination of impairments “is medically equivalent to a listed
impairment … if it is at least equal in severity and duration to the criteria of any listed

5
The Eleventh Circuit explains the difference between meeting or equaling a Listing as follows:
To “meet” a Listing, a claimant must have a diagnosis included in the Listings and must
provide medical reports documenting that the conditions meet the specific criteria of the
Listings and the duration requirement. See 20 C.F.R. § 404.1525(a)-(d). To “equal” a
Listing, the medical findings must be “at least equal in severity and duration to the listed
findings.” See 20 C.F.R. § 404.1526(a). If a claimant has more than one impairment, and
none meets or equals a listed impairment, the Commissioner reviews the impairments’
symptoms, signs, and laboratory findings to determine whether the combination is
medically equal to any listed impairment. See id.
Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002).
7

impairment.” 20 C.F.R. § 416.926(a). The ALJ “is responsible for deciding the ultimate
legal question whether a listing is met or equaled.” SSR 96-6P, 1996 WL 374180, at *3
(S.S.A. July 2, 1996). In so doing, however, the ALJ is required to “consider the opinion
given by one or more medical or psychological consultants designated by the
Commissioner.” 20 C.F.R. § 416.926(c). See also Wilkinson on Behalf of Wilkinson v.
Bowen, 847 F.2d 660, 663 (11th Cir. 1987) (“When deciding medical equivalence, the
Secretary must consider the medical opinion of one or more designated physicians on an
advisory basis.”) (citing 20 C.F.R. § 416.926(b)); Vinson v. Colvin, 2016 WL 676418, at
*4 (M.D. Ala. Feb. 18, 2016) (“An ALJ’s finding regarding medical equivalence must be
supported by an opinion as to medical equivalence from a physician or psychologist
designated by the Commissioner.”) (citations omitted). The Commissioner does not argue
that the plaintiff’s legal argument is incorrect or that appropriate expert, consultative
medical evidence appears in the administrative record. See Doc. 13 at 7-10. Also, the court
itself scrutinized the record and found no such evidence.
The medical evidence of record in this case is substantial. Notably, a consultative
examiner, Dr. Alan Babb, observed that the plaintiff’s “case” is “very interesting and
complex.” Doc. 14-11 at 46. Dr. Babb wrote that, “The situation with [plaintiff’s]
endocarditis is particularly interesting because of the unusual organism involved and the
fact that the aortic valve was infected.” Id. Dr. Babb indicated that a “particularly rare
organism” caused the plaintiff’s endocarditis and the “key thing now is to determine
whether or not there is something mechanically wrong with the aortic valve and whether
or not conceivable it could still be infected.” Id. Dr. Babb hoped that “the valve does not
8

need to be replaced.” Id. Dr. Babb further offered the opinion that plaintiff’s
thrombocytopenia “needs to be evaluated and resolved by a hematologist,” and that
additional documentation and testing regarding the plaintiff’s diabetes “would be very
helpful.” Id. In short, Dr. Babb indicated that further development of the medical records
and additional medical testing were needed. In this case, although the Commissioner
obtained consultative medical evidence from Dr. Babb, Dr. Babb did not offer opinions or
findings concerning the plaintiff’s RFC or whether the plaintiff’s impairments meet or
equal the listings. See id. at 41-47.
The Commissioner’s arguments do not cure the legal error and the absence of
material, necessary evidence in the record. The Commissioner argues that the ALJ
“properly considered and cited Listings 1.02, 1.04, 1.00Q, 3.02, 4.02, 11.04, and 11.14, but
noted that the objective evidence from the treating and examining physicians did not
demonstrate that [p]laintiff met or equaled the strict requirements of any of the Listings.”
Doc. 13 at 8 (citing Doc. 14-2 at 25-27). According to the Commissioner, because the ALJ
considered the objective medical evidence of record, his decision “regarding the Listings
is supported by substantial evidence.” Id. The ALJ’s analysis of the evidence and the
plaintiff’s impairments is indeed extensive, and a consultative medical examiner was
appropriately designated by the Commissioner, but the examiner did not supply the
necessary expert opinion evidence regarding the plaintiff’s impairments and the listing
requirements. This is legal error. See Wilkinson on Behalf of Wilkinson, 847 F.2d at 663;
Vinson, 2016 WL 676418, at *4; 20 C.F.R. § 416.926(b) & (c).

9

At all times, the plaintiff bears the burden “to show that his impairment matches a
listing,” Sullivan v. Zebley, 493 U.S. 521, 530 (1991), and the plaintiff has the burden of
producing medical evidence to support his claim that impairments medically equal a listing,
see Bowen v. Yuckert, 482 U.S. 137, 146 & n.5 (1987). The ALJ has a duty to develop a
full record, see Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (20 C.F.R. §
416.912(d)), which includes soliciting consultative medical expert evidence as to whether
the plaintiff’s impairments meet or equal a listing, see Wilkinson on Behalf of Wilkinson,
847 F.2d at 663. Because the record lacks such expert medical evidence, the correct legal
standards were not applied and the ALJ’s findings at Step Three are not supported by
substantial evidence. The ALJ is not required to accept the medical source’s findings or
opinions, see SSR 96-6P, 1996 WL 374180, at *3, but the expert evidence must be included
in the administrative record and considered by the ALJ. See Wilkinson on Behalf of
Wilkinson, 847 F.2d at 663; Vinson, supra.
Under these circumstances, the court must remand this matter for additional
proceedings. See Cornelius, 936 F.2d 1143, 1145-46 (a district court must reverse when
correct legal standards were not applied by the Commissioner).
CONCLUSION AND ORDER
Accordingly, for the reasons discussed, the decision of the Commissioner will be
REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) by
separate judgment so that the Commissioner can conduct additional proceedings consistent
with this opinion. The court does not reach plaintiff’s arguments that are not expressly
discussed herein. The court expects that the Commissioner will consider plaintiff’s
10

arguments as to those issues on remand as well, and will develop the record as is necessary
in areas not expressly considered in this opinion.
In addition, it is
ORDERED that plaintiff’s motion for an award of reasonable attorney’s fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 241(d), see Doc. 12, is DENIED
without prejudice.
DONE, on this the 22nd day of September, 2017.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

11