McClure v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER: For all of the reasons given above, the undersigned Magistrate Judge concludes that the decision of the Commissioner is REVERSED and this matter is REMANDED back to the Commissioner of Social Security for further proceedings consistent with this opinion. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr on 4/25/2017. (kh, )

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

)
)
)
)
)
)
)
)
)
)

Civil Action No.: 2:16cv226-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Rita McClure (“Plaintiff”) filed an application for supplemental security income on

September 14, 2009. The application was denied at the initial administrative level.
Plaintiff then requested and received a hearing before an Administrative Law Judge
(“ALJ”). Following the hearing, the ALJ issued an unfavorable decision, and the Appeals
Council denied Plaintiff’s request for review. The ALJ’s decision consequently became
the final decision of the Commissioner of Social Security (“Commissioner”).2 See Chester
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 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).
2

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.

v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review
of that decision 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. 17); Def.’s
Consent to Jurisdiction (Doc. 16). 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
this matter to the Commissioner for further consideration.
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).3
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?
3

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.
2

(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).4
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
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
Guidelines (“grids”), see 20 C.F.R. pt. 404 subpt. P, app. 2, or call a vocational expert
4

McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits brought under Title II of the Social Security Act. Supplemental security income
cases arising under Title XVI of the Social Security Act are appropriately cited as authority in Title
II cases, and vice versa. 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.”).
3

(“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. Phillips, 357 F.3d 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
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.

4

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

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty-five years old on the date she filed her application (Tr. 26), and

had completed an Associate’s degree in junior college.

Tr. 40-41.

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 February 4, 2013, the
amended alleged onset date[.]” Tr. 22. At Step Two, the ALJ found that Plaintiff suffers
from the following severe impairments: “status post revision of urethral sling (2011); status
post sling procedure (2010); and residuals including retention of urine requiring occasional
catheterization.” Tr. 22. In addition, the ALJ found that Plaintiff suffers from the nonsevere impairments of renal colic, cystitis, and obesity. Tr. 22. 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 listed impairments[.]” Tr. 22. Next,
the ALJ articulated Plaintiff’s RFC as follows:
the claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 416.967(c) 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 is not limited in the use of her upper or
lower extremities. The claimant can occasionally climb ramps, stairs, ladders
and scaffolds. The claimant cannot climb ropes or poles. The claimant can
frequently balance, stoop, kneel and crouch.
This individual can
occasionally crawl. The claimant can frequently work in humidity, wetness,
and extreme temperatures. The claimant can frequently 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 can
5

occasionally work with operating hazardous machinery. The claimant is not
limited with the operation of motorized vehicles. The claimant can
occasionally work while exposed to vibration.
Tr. 23. The ALJ next concluded at Step Four that Plaintiff, who had spent more than ten
years serving as a missionary in Romania prior to returning home due to her medical issues,
“has no past relevant work.” Tr. 26. However, the ALJ next found that, given Plaintiff’s
RFC, and based upon the testimony of the VE, “there are jobs that exist in significant
numbers in the national economy that the claimant can perform.” Tr. 26. The ALJ noted
the following representative occupations: “driver, helper, sales route,” “food service
worker, hospital, dietary aide,” “caretaker,” and “counter supply worker.”

Tr. 27.

Accordingly, at Step Five, the ALJ determined that Plaintiff “has not been under a
disability . . . since January 29, 2013, the date the application was filed[.]” Tr. 27.
IV.

PLAINTIFF’S ARGUMENT
Plaintiff presents four issues in her “Statement of the Issues,” arguing that the ALJ’s

decision should be reversed because: 1) “[t]he ALJ improperly rejected the opinions of
[Plaintiff’s] board certified treating physician;” 2) “[t]he ALJ’s determination as to
[Plaintiff’s RFC] was improper” in that “it was not supported by substantial evidence[,]”
“did not provide appropriate rationale, nor specific references to the evidence which
allegedly supported it[,]” and “did not address [Plaintiff’s] non-exertional impairments;”
3) “[t]he ALJ improperly dismissed [Plaintiff’s] subjective testimony;” and 4) “[t]he ALJ
failed to address the testimony” of the separate vocational experts who both testified at the
hearing and submitted responses to post-hearing interrogatories submitted by the ALJ.

6

Pl.’s Br. (Doc. 13) at 3-4. Because the court finds issue one dispositive of this matter, the
court below addresses only that issue and pretermits discussion of the other issues raised
by Plaintiff.
V.

DISCUSSION
Plaintiff began seeing her treating physician, Dr. Moore, in April 2011, after her

return from her missionary service in Romania. Tr. 324. Dr. Moore is “board certified in
Female Pelvic Medicine and Reconstructive Surgery, and in Obstetrics and Gynecology.”
Tr. 342. Dr. Moore performed surgery on Plaintiff in May of 2011 “to revise and repair”
the surgical implant Plaintiff received in Romania in 2010. Tr. 342. Plaintiff saw Dr.
Moore again in March of 2013 for her “[a]nnual exam and pap smear.” Tr. 288. She
complained that it felt like “something is dropping in her vaginal area again,” and that she
has “urinary infections once a month.” Tr. 288. She indicated to Dr. Moore that she needed
“a cath again from time to time in 2012[,]” and that she had “started getting more UTI’s.”
Tr. 288. Dr. Moore noted “some resistance” when inserting a catheter and noted Plaintiff’s
report of similar issues when self-cathetering. Tr. 289. Plaintiff returned to Dr. Moore in
October of 2013, complaining of frequent urinary tract infections. Tr. 318. Dr. Moore
observed that a cystoscopy performed at this visit “confirmed continued malfunction of the
bladder sling surgery.” Tr. 342. In May of 2014, Plaintiff returned to Dr. Moore and
complained of severe pain in her right side and back, “moving down to her leg,” and that
she was having problems with self-catheterizing herself. Tr. 314. She indicated that her
issues had improved after the second surgery in May of 2011, but were lately “coming

7

back.” Tr. 314. Dr. Moore found it “very difficult” to catheterize Plaintiff, but succeeded
in removing “300 cc residual.” Tr. 315. Dr. Moore discussed medicinal and surgical
options to address Plaintiff’s condition and advised her to “call when ready for surgery.”
Tr. 316.
Against this backdrop of Dr. Moore’s years-long treatment of Plaintiff, Dr. Moore
offered the opinion evidence that Plaintiff faults the ALJ for failing to credit. First, on June
11, 2014, the date of Plaintiff’s hearing before the ALJ, Dr. Moore completed a Physical
Capacities Evaluation. Tr. 341. In pertinent part, Dr. Moore indicated his belief that
Plaintiff can sit for two hours at a time, and stand for one hour at a time, and that, in an
eight-hour workday, she can sit for up to four hours and stand and walk for up to two hours.
Tr. 341. Dr. Moore also opined that Plaintiff can frequently lift or carry up to five pounds,
occasionally lift or carry up to twenty pounds, and never lift or carry more than twenty
pounds. Tr. 341. Apart from his conclusion that Plaintiff should never crawl, he opined
no other serious or unusual limitations or restrictions on Plaintiff’s exertional or postural
abilities. Tr. 341. On July 30, 2014, Dr. Moore followed-up his Physical Capacities
Evaluation with a letter further explaining his findings. In the letter, Dr. Moore explained
that the surgical implant Plaintiff received in 2010 in Romania, “is still causing severe
urinary tract dysfunction.” Tr. 342. Dr. Moore succinctly delivered his medical judgment
as follows:
Given [Plaintiff’s] surgical history, it is my opinion, based on a reasonable
degree of medical certainty, that she should not be lifting or carrying any
objects weighing more than 20 pounds. In my opinion, lifting objects
weighing greater than 20 pounds likely would cause her to be incontinent,
8

and also would create a substantial risk of injury to [Plaintiff’s] surgically
repaired bladder, possibly requiring yet another surgery.
Tr. 342.
Notably, the ALJ took a decidedly skeptical view of Plaintiff’s visits with Dr. Moore
which occurred after she filed her application for supplemental security income. In
particular, with regard to Plaintiff’s visit in March of 2013, The ALJ speculated that, in
waiting “one and one-half months after filing her claim for disability benefits to seek
treatment with Dr. Moore again,” Plaintiff “sought treatment with Dr. Moore only in an
effort to ‘build up’ her disability claim.” Tr. 25.5 The ALJ likewise speculated that
Plaintiff’s complaints to Dr. Moore in May of 2014, occurring one month prior to the
hearing before the ALJ, were also an attempt to “build-up” her disability claim in advance
of the hearing. Tr. 25.
The ALJ’s skepticism about Plaintiff’s visits with Dr. Moore is reflected in his
consideration of Dr. Moore’s Physical Capacities Evaluation, which the ALJ derisively
refers to as “a last minute medical source statement.” Tr. 25. After noting Dr. Moore’s
opinion about Plaintiff’s limitations with respect to sitting, standing, walking, and lifting
and carrying, the ALJ noted that he was “not persuaded by any means.” Tr. 25. As best
the court can tell, the reasons the ALJ was not persuaded are as follows: 1) Plaintiff “made
no effort whatsoever to return to work after she returned home from Romania - it appears
she just came home and filed for disability;” 2) “[h]er reported activities of daily living . .

5

The ALJ appears to overlook the fact that Plaintiff’s March 2013 visit with Dr. Moore was for
her annual exam and pap smear. Tr. 288.
9

. are also inconsistent with Dr. Moore’s assessment of functioning, as is her very infrequent
need for medical treatment and medications;” 3) the medical record does reflect any
prescribed need for further catheterizations following February of 2013; and 4) the ALJ
was more persuaded by a consultative examination performed by Dr. Jani. Tr. 25. The
ALJ did not address Dr. Moore’s letter explaining his reasons for the limitations opined on
the Physical Capacities Evaluation, including his statement that “lifting objects weighing
greater than 20 pounds likely would cause [Plaintiff] to be incontinent, and also would
create a substantial risk of injury to [Plaintiff’s] surgically repaired bladder, possibly
requiring yet another surgery.” Tr. 342.
“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

10

a treating physician’s opinion, but he “must clearly articulate [the] reasons” for doing so.
Id. at 1240–41.
Plaintiff argues that the ALJ did not articulate the requisite good cause for his
rejection of Dr. Moore’s opinion evidence. Pl.’s Br. (Doc. 13) at 8-10. The court agrees.
First, it is irrelevant that Dr. Moore’s opinion was given “last minute” in the ALJ’s
estimation. The court is aware of no regulation or case law establishing that evidence
procured before the close of the administrative record is subject to some sliding scale of
probative value based upon when it was procured or introduced into the record. Dr.
Moore’s opinion is the product of a years-long treatment relationship with Plaintiff,
including both surgery and several office visits over the approximately three years
preceding his opinion statement. His opinion may not be dismissed merely because the
ALJ would characterize it as “last minute.” It is likewise irrelevant that Plaintiff did not
try to go back to work upon her return from Romania. Apart from conveying the ALJ’s
open skepticism about the veracity of Plaintiff’s complaints, the ALJ offers no explanation
as to how the fact that Plaintiff did not attempt to go back to work could have any bearing
on the reliability of Dr. Moore’s independent, professional medical opinion.
The ALJ’s reliance on Plaintiff’s activities of daily living to discount Dr. Moore’s
opinion is likewise unavailing. The activities of daily living described by the ALJ include
“taking care of her personal needs unassisted, cooking, doing laundry, washing dishes,
cleaning, driving, shopping in stores, spending time with family watching movies and on
the phone, and going to church weekly.” Tr. 26. At the outset, the court notes that the ALJ

11

mischaracterizes the record regarding Plaintiff’s daily activities. The record does not
support that Plaintiff “go[es] to church weekly.” Rather, Plaintiff testified that she
sometimes misses church two or three times a month due to pain caused by urinary tract
infections. Tr. 54-55. In any event, the ALJ fails to explain how any of the activities he
highlighted are inconsistent with Dr. Moore’s opinion. Again, as set forth above, Dr.
Moore opined only a few substantial limitations in Plaintiff’s physical capacities and
functional abilities, including that she can sit for four hours in an eight-hour work day,
stand and/or walk for two hours. Tr. 341. More importantly, Dr. Moore opined that
Plaintiff should lift no more than twenty pounds because it would cause her to be
incontinent, as well as pose a risk of further injury to Plaintiff’s surgically repaired bladder.
Tr. 342. The ALJ wholly fails to explain what in the daily activities he cites (grooming
and personal care, cooking, common household chores, driving, shopping, and socializing)
is inconsistent with Dr. Moore’s limitations, especially as it relates to Plaintiff’s need to
avoid lifting more than twenty pounds.
The ALJ also appears to discount Dr. Moore’s opinion because the record does not
reflect that Plaintiff sought treatment for her symptoms with sufficient regularity to satisfy
the ALJ, and because the record reflects only one physician initiated catheterization after
she applied for disability. Of course, at every visit with Dr. Moore, Plaintiff was prescribed
medication to treat her conditions and, as Dr. Moore noted, the one catheterization he
performed in May of 2014 was very difficult to complete. Furthermore, as discussed
above, and as testified by Plaintiff at the hearing, Dr. Moore even assessed a possible utility

12

for additional surgery in May of 2014. See Tr. 316, 48. Contrary to the ALJ’s apparent
conclusion, the record of Dr. Moore’s treatment of Plaintiff does not conflict with his
opinion or dictate a contrary conclusion.
Finally, Dr. Jani’s opinion, as a consultative examiner, does not provide good cause
for discounting Dr. Moore’s opinion. In general, 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). Moreover, 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). As a specialist, and as a
treating source, Dr. Moore’s opinion about how lifting will impact Plaintiff’s continence
is plainly entitled to substantial deference. Furthermore, Dr. Jani’s opinion is remarkable,
if for no other reason, because he specifically opined that Plaintiff, a fifty-five year old
woman he diagnosed with “[s]uprapubic pain due to urinary retention” and “[r]ecurrent
urinary tract infection” was nevertheless capable of the full range of heavy work
(occasionally lifting one hundred pounds, and frequently lifting fifty) “without any
restrictions.” Tr. 308. Despite his endorsement of Dr. Jani’s opinion at the expense of
Plaintiff’s treating physician, even the ALJ balked at this conclusion. See Tr. 25 (“Greater
weight is therefore given to Dr. Jani’s opinion[], although the undersigned has reduced the

13

claimant from heavy exertion work as set out by Dr. Jani to no more than medium exertion
work.”).
The ALJ’s opinion makes clear that the ALJ was highly skeptical of the severity of
Plaintiff’s complaints about her symptoms, and that Plaintiff somehow used Dr. Moore in
a ploy to obtain disability benefits, rather than enter the workforce, upon her return from
mission service in Romania. Perhaps the ALJ’s beliefs were reasonable based upon his
assessment of Plaintiff’s credibility at the hearing. But, in the court’s view, the record
makes clear that Dr. Moore gave a narrow, reasoned, and nuanced medical opinion, in an
area in which he specializes, based upon a years-long treatment relationship he had
maintained with Plaintiff. In the absence of good cause for discrediting it, Dr. Moore’s
opinion is therefore entitled to great weight. If good cause for discrediting Dr. Moore’s
opinion exists in the record before the court, the ALJ failed to articulate it. Thus, this
matter is due to be reversed and remanded to the Commissioner for further proceedings.
VI.

CONCLUSION
For all of the reasons given above, the undersigned Magistrate Judge concludes that

the decision of the Commissioner is REVERSED and this matter is REMANDED back to
the Commissioner of Social Security for further proceedings consistent with this opinion.
A separate judgment will issue.
Done this 25th day of April, 2017.

/s/ Wallace Capel, Jr.
CHIEF UNITED STATES MAGISTRATE JUDGE
14