Dement v. Colvin
MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 4/19/2017. (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
GARY R. DEMENT,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Civil Action No. 2:16cv222-WC
Gary R. Dement (“Plaintiff”) filed an application for disability insurance benefits
under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401, et seq., on August
21, 2013, alleging disability beginning on March 20, 2012. Plaintiff’s application for
benefits was denied at the initial administrative level on December 27, 2013. Plaintiff then
requested and received a hearing before an Administrative Law Judge (“ALJ”). Following
the hearing, the ALJ issued a decision finding Plaintiff had not been under a disability, as
defined in the Social Security Act, from March 20, 2012, through the date of the decision
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 shall be substituted for Acting Commissioner Carolyn
W. Colvin as the Defendant in this suit. No further action needs to be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
Various amendments to 20 C.F.R. § 404.1529(c)(3) became effective on March 27, 2017. See Revisions
to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017) (to be
codified at 20 C.F.R. pts. 404, 416) (establishing amendments’ effective date). Because the ALJ rendered
his decision before March 27, 2017, he used the earlier version of § 404.1529(c)(3). For purposes of this
appeal, the court reviews the ALJ’s decision under the prior version of the regulation.
on August 25, 2015. Plaintiff appealed to the Appeals Council on September 11, 2015, and
while the appeal was pending, Plaintiff presented additional evidence for the Appeals
The Appeals Council denied review on February 24, 2016.
Accordingly, the ALJ’s decision consequently became the final decision of the
Commissioner of Social Security (“Commissioner”).3 See Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986). The case is now before the court for review under 42 U.S.C. § 405(g).
Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all
proceedings and entry of a final judgment by the undersigned United States Magistrate
Judge. Pl.’s Consent to Jurisdiction (Doc. 13); Def.’s Consent to Jurisdiction (Doc. 14).
Based on the court’s review of the record and the briefs of the parties, the court REVERSES
the decision of the Commissioner and REMANDS the matter for further proceedings.
STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person is
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).4
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 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.
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.
To make this determination, 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 [the Listing of
(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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).5
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 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
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.”).
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
Guidelines6 (“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 (11th Cir. 2004) (“Even 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
See 20 C.F.R. pt. 404 Subpt. P, app. 2.
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
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was 57 years old on the date of the hearing before the ALJ, and he had
completed high school, with three years of college. Tr. 52-53. His prior work was as a
state trooper with the Department of Public Safety, Tr. 53, a salesperson at Harley
Davidson motorcycle, Tr. 54, and a substitute teacher with the Elmore County Board of
Education, Tr. 54. Following the administrative hearing, and employing the five-step
process, the ALJ found at Step One that Plaintiff “has not engaged in substantial gainful
activity since March 20, 2012, the alleged onset date.” Tr. 23. At Step Two, the ALJ found
that Plaintiff suffers from the following severe impairments: “status post anterior
discectomy and fusion, secondary to severe chronic desiccation with osteophytes
impinging on the foramina, cervical spine; status post foraminotomy, cervical spine; total
arthroplasty, left knee; status post hemi-arthroplasty, left shoulder; mild diffuse
sensorimotor peripheral neuropathy, extremities; and degenerative disc diseases, disc
bulge, lumbar spine, with reported radiculopathy[.]” Tr. 23-24. At Step Three, the ALJ
found that Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the impairments listed” in the Social
Security Act. Tr. 29. Next, the ALJ articulated Plaintiff’s RFC, stating Plaintiff:
has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(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 two hours without
interruption and a total of at least six hours over the course of an eight-hour
workday. The claimant cannot climb ladders, ropes, poles or scaffolds. The
claimant can occasionally climb ramps and stairs. The claimant can
occasionally balance, stoop, kneel and crouch. The claimant cannot crawl.
The claimant can occasionally use his upper extremities for pushing, pulling
and reaching overhead. The claimant can frequently use his lower
extremities for pushing, pulling and the operation of foot controls. The
claimant can occasionally work in humidity, wetness, and extreme
temperatures. However, the claimant cannot work in bright sunlight and is
better suited for indoor work activity. The claimant can occasionally work
in dusts, gases, odors and fumes. The claimant can occasionally work in
poorly ventilated areas. The claimant cannot work at unprotected heights.
The claimant cannot work in hazardous environments such as a construction
zone or involvement in law enforcement duties. The claimant can
occasionally work with hazardous operating machinery. The claimant can
occasionally operate motorized vehicles. The claimant can occasionally
work while exposed to vibration.
Tr. 30. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that
Plaintiff is capable of performing past relevant work as a parts clerk, general merchandise
sales, and as a substitute teacher. Tr. 39. The ALJ determined that “[t]his work does not
require the performance of work-related activities precluded by [Plaintiff’s] residual
functional capacity[.]” Tr. 39. Finally, at Step Five, and based upon the testimony of the
VE, the ALJ determined that Plaintiff “has not been under a disability, as defined in the
Social Security Act, from March 20, 2012, through the date of this decision[.]” Tr. 40.
Plaintiff presents two issues for the court to consider in its review of the
Commissioner’s decision. First, Plaintiff argues “the Appeals Council erred in failing to
remand this matter to the ALJ on the basis of new and material evidence.” Doc. 16 at 1.
Second, Plaintiff argues “the ALJ erred in failing to give appropriate weight to the opinions
of [Plaintiff’s] treating physicians.” Id. Because the second issue is dispositive, the
undersigned will address it first.
Whether the ALJ Erred in Failing to Give Appropriate Weight to the
Opinions of Plaintiff’s Treating Physicians.
“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), 416.927(a)(2). Absent “good cause,”
an ALJ is to give the medical opinions of treating physicians “substantial or considerable
weight.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. §§
404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause to discount a treating physician’s
opinion 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). With good cause, an ALJ may disregard
a treating physician’s opinion, but he “must clearly articulate [the] reasons” for doing so.
Id. at 1240–41.
Moreover, the ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th
Cir. 1987) (per curiam). “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.” Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981). Therefore, when the ALJ fails to “state with at least some measure of
clarity the grounds for his decision,” a court will decline to affirm “simply because some
rationale might have supported the ALJ’s conclusion.” Owens v. Heckler, 748 F.2d 1511,
1516 (11th Cir. 1984) (per curiam). In such a situation, “to say that [the ALJ’s] decision
is supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are rational.”
Cowart, 662 F.2d at 735 (quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979))
(internal quotation marks omitted).
Plaintiff argues that the ALJ committed reversible error by giving little weight to
the opinions of Plaintiff’s treating physicians. Particularly, Plaintiff challenges the ALJ’s
rejection of the opinions of Dr. Tomeka Russell and Dr. F. Donovan Kendrick. Because
the undersigned agrees with Plaintiff that the ALJ did not articulate good cause to discount
Dr. Kendrick’s opinion and that the case should be remanded to the ALJ upon that basis,
the undersigned will not address whether there was good cause to discount the medical
source statements provided by Dr. Russell.
On March 11, 2014, Dr. Kendrick concluded that Plaintiff would not be able to hold
meaningful employment because of severe degenerative disease in his lower back. Tr. 778.
In reaching this opinion, Dr. Kendrick noted that Plaintiff’s description of pain with activity
was consistent with the objective medical evidence, particularly Plaintiff’s MRI. Tr. 778.
Specifically, Dr. Kendrick noted that Plaintiff’s “lumbar MRI shows degenerative changes
at each level of the lumbar spine[,]” and that “[t]here is profound degenerative joint
disease[,] particularly in the lower lumbar segments.” Tr. 777.
Further, Dr. Kendrick
stated that there was not a surgical solution for Plaintiff’s lower back condition. Tr. 778.
However, Dr. Kendrick did determine that surgery would be beneficial for Plaintiff’s neck
condition, and Plaintiff indicated his wish to proceed. Tr. 775, 778. Plaintiff underwent
surgery for his neck and cervical spine on April 16, 2014.
postoperative review, Dr. Kendrick noted Plaintiff’s history prior to the surgery:
[Plaintiff] has pain in his neck with radiation to his left arm and some down
his right, as well as low back pain with radiation down both legs. He is
unable to stand because of severe pain radiating down both legs. . . . Lumbar
MRI was performed showing degenerative changes at essentially every level
of the lumbar spine with profound degenerative joint disease, particularly at
the lower lumbar segments. There was also a disc bulge at L3-L4 on the left.
Due to extensive severe lumbar degenerative disease at multiple levels,
surgery was not recommended; however, with the cervical spine and
radicular pain, the findings of nerve root compression and cervical nonunion,
surgery was discussed, and [Plaintiff] wished to proceed.
The ALJ afforded Dr. Kendrick’s opinion that Plaintiff is unable to hold meaningful
employment “little weight” for several reasons. First, the ALJ discounted the opinion
because it “was given prior to [Plaintiff’s] scheduled surgery and the record is void of
follow-up from Dr. Kendrick, beyond the claimant’s release date from the hospital.” Tr.
38. Second, the ALJ noted “the claimant’s work activities leading up to the surgery
consisted of being a teacher and the more stringent duties of a bouncer.” Tr. 38. Third,
the ALJ stated that evidence in the record subsequent to March 11, 2014, “belied Dr.
Kendrick’s comment.” Tr. 38. Fourth, the ALJ noted that Plaintiff “advanced the findings
of his degenerative joint disease of the lumbar spine for consideration of a VA
pension/disability[,]” but the VA concluded that a “[s]ervice connection for degenerative
joint disease, lumbar spine is denied.” Tr. 38, 1317. Fifth, the ALJ stated that “merely
conjecture allows Dr. [Jayesh] Patel’s statement of the claimant’s work activity at his
October 27, 2014[,] visit to mean he was currently engaged in his now sustained
employment as a substitute teacher[,]” suggesting, again, that Dr. Kendrick’s opinion is
not supported by the evidence in the record. Tr. 39. The undersigned will examine each
proffered reason, in turn.
First, the undersigned turns to the ALJ’s reasoning that Dr. Kendrick’s opinion was
given prior to the surgery of Plaintiff, and that no post-surgery records exist with Dr.
Kendrick. The ALJ’s reasoning is problematic because the surgery performed by Dr.
Kendrick was related to Plaintiff’s neck while Dr. Kendrick’s conclusion that Plaintiff
could not hold meaningful employment was related to Plaintiff’s lower back.
Kendrick’s treatment notes indicate that, at the time Plaintiff was recommended for neck
surgery, there was no surgical solution for Plaintiff’s lower back pain. Tr. 777. Because
of the pain and the inability to operate on Plaintiff’s lower back (due to Plaintiff’s severe
degenerative disc disease), Dr. Kendrick opined that he “did not think the claimant was
going to be able to hold meaningful employment.” Tr. 778. While such a conclusion
regarding Plaintiff’s ability to work is reserved for the ALJ and not for Dr. Kendrick, the
undersigned does not find that the ALJ’s stated reason for discounting Dr. Kendrick’s
opinion—i.e., that the opinion was given prior to Plaintiff’s neck surgery and that no postoperative records exist with Dr. Kendrick—establishes good cause to discount the opinion
of this treating physician. Indeed, the reasoning simply does not make sense considering
that the basis for Dr. Kendrick’s opinion was Plaintiff’s lower back, which was inoperable,
and not Plaintiff’s neck, which was amenable to surgery.
Second, the undersigned addresses the ALJ’s reasoning that Plaintiff’s previous
employment as a bouncer and as a teacher provides good cause to discount the opinion of
Dr. Kendrick. Dr. Kendrick treated Plaintiff from February 2014 through April 2014. Tr.
769-781. He gave his opinion that Plaintiff could not hold meaningful employment on
March 11, 2014. Tr. 778. According to the evidence and Plaintiff’s testimony before the
ALJ, Plaintiff was a part-time teacher until the end of the 2013 calendar year. Tr. 23, 5455. As for Plaintiff’s work as a bouncer, it appears that Plaintiff was continuing to work
in this capacity at least until July 25, 2013. Tr. 464. However, these positions were held
by Plaintiff a minimum of several months prior to Dr. Kendrick’s opinion. If Plaintiff was
continuing his work as a substitute teacher and/or as a bouncer at the time Dr. Kendrick
made his assessment, the ALJ’s reasoning might stand. However, because the opinion was
given at least two-and-a-half months after Plaintiff was no longer employed in any
capacity, the undersigned cannot conclude that the ALJ’s reason for discounting Dr.
Kendrick’s opinion was based in good cause.
Third, the ALJ reasoned that Dr. Kendrick’s opinion should be discounted because
evidence in the record after March 11, 2014, belied his conclusion. The evidence after that
date cited by the ALJ relating to Plaintiff’s spinal issues includes the following:
May 20, 2014 – Plaintiff sought treatment from Dr. Jayesh Patel with the VA. Tr.
820. Dr. Patel noted that Plaintiff was ambulatory and stated that he felt better after
his neck surgery, and had no new complaints. Tr. 863-64. Dr. Patel noted that
Plaintiff suffered from chronic lumbar spine degenerative disc disease, which
surgery could not treat. Tr. 864.
May 21, 2014 – Plaintiff visited Dr. Tomeka Russell for a follow-up after his neck
surgery. Tr. 1285. He stated that his arms and shoulders were better, but advised
that he was told he could not work any longer. Tr. 1285. Plaintiff reported to Dr.
Russell that Dr. Kendrick prescribed Percoset for his pain, and that he was taking it
twice a day, and three times per day if his pain was severe. Tr. 1285. Dr. Russell
found Plaintiff positive for back pain, but with a normal gait. Tr. 1285, 1286. She
prescribed Oxycodone/Acetaminophen. Tr. 1287.
May 29, 2014 – Plaintiff reported to the VA for a compensation and pension
examination. Tr. 237-243. That examination did not lead to an increase in
Plaintiff’s compensation, and the examining doctor concluded that Plaintiff’s knee
and lower leg condition did not impact his ability to work. Tr. 237.
October 13, 2014 – Plaintiff returned to Dr. Russell needing a refill of his Percoset.
Tr. 1282. He reported that he continued to have neck and back pain. Tr. 1282. Dr.
Russell found that Plaintiff was in moderate pain, and that his gait was affected by
a right leg limp. Tr. 1283. Plaintiff had pain associated with range of motion in
both his neck and back. Tr. 1283.
October 27, 2014 – Plaintiff returned to Dr. Patel. Tr. 820. He rated his lower back
pain as a seven. Tr. 826. The nurse noted that he was ambulatory with the assistance
of a cane. Tr. 826. Dr. Patel removed “chronic lumbar degenerative disc disease”
from Plaintiff’s problem list. Tr. 820.
November 5, 2014 – Plaintiff returned to Dr. Russell. Tr. 1280. Dr. Russell found
Plaintiff negative for back pain, arthralgias, and myalgias. Tr. 1280. She completed
a medical source statement in which she opined that Plaintiff could sit and stand for
less than two hours in an eight-hour workday; that Plaintiff would require breaks
every thirty minutes to one hour, and that such breaks would last approximately ten
to fifteen minutes; that Plaintiff’s legs should be elevated for seventy percent of a
workday at a sedentary job; that Plaintiff could occasionally carry up to ten pounds
but never twenty or more; that Plaintiff could spend no more than sixty percent of
the day grasping, turning, or twisting objects and no more than eighty percent of the
day performing fine manipulations; that Plaintiff could never bend, twist, crouch, or
climb ladders; and that Plaintiff would likely be absent from work more than twice
a month. Tr. 1260-63.
Having reviewed this evidence, the undersigned is perplexed by exactly what the
ALJ meant when he stated that the evidence post March 11, 2014, belied Dr. Kendrick’s
Of course, there are snippets of information that seemingly minimize
Plaintiff’s intensity of pain—i.e., the November 5 visit to Dr. Russell where Plaintiff was
found to be negative for back pain; the October 13 visit to Dr. Russell noting Plaintiff was
in moderate pain; and the October 27 visit to Dr. Patel in which he no longer listed “chronic
lumbar degenerative disc disease” as an ailment for Plaintiff. However, the undersigned
cannot find any records to indicate that Plaintiff’s back condition was cured or controlled
with medication, and there are multiple records giving support to Dr. Kendrick’s opinion—
i.e., notations that Plaintiff suffered from chronic lumbar spine degenerative disc disease
which surgery could not treat; Plaintiff’s use of pain medication; Plaintiff’s positive reports
of back pain and problems with his gate; and Plaintiff’s use of a cane for ambulation.
Accordingly, the undersigned cannot conclude that the ALJ’s reason for discounting Dr.
Kendrick’s opinion was based on good cause, particularly considering the ALJ’s failure to
clearly articulate the evidence upon which the discount was based.
Fourth, the ALJ reasoned that Dr. Kendrick’s opinion should be discounted because
Plaintiff “advanced [to the VA] the findings of his degenerative joint disease of the lumbar
spine for consideration of a VA pension/disability[,]” but the VA concluded that a
“[s]ervice connection for degenerative joint disease, lumbar spine is denied.” Tr. 38-39,
237-38. In order to demonstrate entitlement to VA benefits for a disability claimed to have
originated during peacetime active military service, a veteran must show that the disability
resulted from either an “injury suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease contracted in line of duty.”7 38
U.S.C. § 331 (1988). Here, Plaintiff was denied service connection for degenerative joint
disease in his lumbar spine because the VA “did not find a link between [Plaintiff’s] . . .
medical condition and military service[,]” as the “first instance of this [condition] is well
after [Plaintiff’s] discharge from military service.” Tr. 240. Therefore, because the VA’s
determination was based, at least in large part, to Plaintiff’s inability to link his condition
with military service and not because the condition was not disabling, the undersigned
cannot conclude that the ALJ’s reason for discounting Dr. Kendrick’s opinion was based
on good cause.
Finally, the ALJ reasoned that Dr. Kendrick’s opinion should be discounted because
during a visit with Dr. Patel on October 27, 2014, Plaintiff indicated that he was currently
employed as a history teacher in Elmore County. Tr. 820. The note within the treatment
record reads as follows, with no alteration: “work. history teacher in elmore school. exstate trooper in the past.” Tr. 820. While Dr. Patel’s comment could indeed be interpreted
as Plaintiff’s admission that he was employed as a substitute teacher at that time, Plaintiff’s
The evidence does not indicate that Plaintiff claims his back problems occurred as a result of active
military service. Plaintiff testified that his leg problems, for which the VA determined a thirty percent
rating, are the result of coming into contact with an active grenade, Tr. 57-58, 70-71, but the undersigned
finds no similar assertion regarding Plaintiff’s degenerative joint disease in his lower spine.
testimony at the hearing before the ALJ contradicts this conclusion. Tr. 54-55. Thus,
because there is strong evidence contradicting the ALJ’s interpretation, the undersigned
cannot conclude that the ALJ’s reason for discounting Dr. Kendrick’s opinion is based on
The ALJ’s discount of Plaintiff’s treating physician, Dr. Kendrick, is also
concerning considering the ALJ’s treatment of a Dr. Marcus Whitman’s report. Dr.
Whitman, a state agency physician, reviewed the medical and other evidence in Plaintiff’s
record on December 16, 2013, and concluded that Plaintiff could perform past relevant
work despite his limitations. Tr. 89-92. In affording Dr. Whitman significant weight, the
ALJ reasoned as follows, in its entirety:
[Dr. Whitman] concluded the claimant could perform work activity at the
light grade with several postural and environmental limitations[.] The [ALJ]
also generally concurs with Dr. Whitman and his assessment is directly
reflected in the undersigned’s assessment of the claimant’s residual
Considering that Dr. Whitman’s opinion, as a non-treating, non-examining
physician, conflicts with the opinions of two treating physicians—Dr. Russell and Dr.
Kendrick—and considering that the ALJ’s cursory explanation for affording Dr.
Whitman’s opinion significant weight, the undersigned is particularly concerned as to the
ALJ’s discount of Dr. Kendrick’s opinion.
In conclusion, the undersigned finds that the ALJ did not articulate good cause to
discount the opinion of treating physician, Dr. Kendrick. Accordingly, this case is due to
be remanded back to the ALJ. On remand, if the ALJ decides to discount Dr. Kendrick’s
medical opinion, adequate reasons supported by substantial evidence should be clearly
The Undersigned Will Not Address Plaintiff’s Remaining Arguments.
Because the undersigned concludes that the ALJ erred in his treatment of the opinion
of Plaintiff’s treating physician, Dr. Kendrick, and that the case must be remanded to the
ALJ to either afford Dr. Kendrick’s opinion significant weight or articulate good cause
otherwise, the undersigned will not address Plaintiff’s remaining arguments.8
The court has carefully and independently reviewed the record and concludes that,
for the reasons given above, the decision of the Commissioner is REVERSED and this
matter is REMANDED back to the Commissioner. A separate judgment will issue.
Done this 19th day of April, 2017.
/s/ Wallace Capel, Jr.
CHIEF UNITED STATES MAGISTRATE JUDGE
Notably, the new regulations, which are effective as of March 27, 2017, dispose of the “treating source
rule,” which requires the ALJ to give the treating physician significant weight or to provide good cause for
discounting the physician’s opinion. However, the new regulations also state that the rule change applies
only to claims filed on or after March 27, 2017. See 82 FR 5844-01, 2017 WL 168819, at *5853. Plaintiff’s
claim was filed on August 21, 2013. Thus, when before the ALJ on remand, the ALJ should apply the
regulations as they were in force at the time Plaintiff’s claim was filed.
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