King v. Colvin

Filing 17

MEMORANDUM OPINION AND ORDER: Based on the foregoing, the undersigned concludes that the Commissioner's decision is not supported by substantial evidence and based upon the proper legal standards. It is therefore ORDERED that the decision of the Commissioner denying benefits is REVERSED and this matter REMANDED for further proceedings consistent with this opinion. It is further ORDERED that this matter be reassigned to a different Administrative Law Judge.A final judgment will be entered separately. Signed by Honorable Judge Gray M. Borden on 1/16/2018. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ANGELA M. KING,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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CASE NO.: 2:16-cv-846-GMB
[WO]

MEMORANDUM OPINION AND ORDER
On June 12, 2013, Plaintiff Angela M. King applied for supplemental security
income under Title XVI of the Social Security Act, alleging a disability onset date of
January 1, 2013. King’s applications were denied at the initial administrative level. King
then requested a hearing before an Administrative Law Judge (“ALJ”). On November 14,
2014, the ALJ held a hearing and on April 21, 2015, he denied King’s claim. King
requested a review of the ALJ’s decision by the Appeals Council, which denied her request
on September 9, 2016. As a result, the ALJ’s decision became the final decision of the
Commissioner of the Social Security Administration (the “Commissioner”) as of
September 9, 2016.
The case is now before the court for review pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). Under 28 U.S.C. § 636(c)(1) and Rule 73 of the Federal Rules of Civil
Procedure, the parties have consented to the full jurisdiction of the undersigned United
States Magistrate Judge. Based on a careful review of the parties’ submissions, the relevant

law, and the record as a whole, the court concludes that the decision of the Commissioner
is due to be REVERSED and this matter REMANDED for further proceedings consistent
with this opinion.
I. STANDARD OF REVIEW
The court reviews a Social Security appeal 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 will
reverse the Commissioner’s decision if it is convinced that the decision was not supported
by substantial evidence or that the proper legal standards were not applied. Carnes v.
Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). The court “may not decide the facts anew,
reweigh the evidence, or substitute its judgment for that of the Commissioner,” but rather
“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) (citation and internal quotation marks
omitted). “Even if the evidence preponderates against the Secretary’s factual findings, [the
court] must affirm if the decision reached is supported by substantial evidence.” Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Moreover, reversal is not warranted even
if the court itself would have reached a result contrary to that of the factfinder. See Edwards
v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
The substantial evidence standard is met “if a reasonable person would accept the
evidence in the record as adequate to support the challenged conclusion.” Holladay v.
Bowen, 848 F.2d 1206, 1208 (11th Cir. 1988) (quoting Boyd v. Heckler, 704 F.2d 1207,
1209 (11th Cir. 1983)). The requisite evidentiary showing has been described as “more

2

than a scintilla, but less than a preponderance.” Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983). The court must scrutinize the entire record to determine the
reasonableness of the decision and cannot “act as [an] automaton[] in reviewing the
[Commissioner’s] decision.” Hale v. Bowen, 831 F.2d 1007, 1010 (11th Cir. 1987). Thus,
the court must consider evidence both favorable and unfavorable to the Commissioner’s
decision. Swindle v. Sullivan, 914 F.2d 222, 225 (11th Cir. 1990).
The court will reverse the Commissioner’s decision on plenary review if the
decision applies incorrect law or fails to provide the court with sufficient reasoning to
determine that the Commissioner properly applied the law. Id. (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).
King 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).

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A determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a). The Commissioner must determine in sequence:
(1) Is the claimant presently unable to engage in substantial gainful activity?
(2) Is the claimant’s impairment(s) severe?
(3) Does the claimant’s impairment(s) satisfy or medically 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 her former occupation?
(5) Is the claimant unable to perform other work given her residual
functional capacity, age, education, and work experience?
See Frame v. Comm’r, Soc. Sec. Admin., 596 F. App’x 908, 910 (11th Cir. 2015). “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) (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. FACTUAL BACKGROUND AND ADMINISTRATIVE PROCEEDINGS
King was 37 years old at the time of the ALJ’s decision. R. 105. She is single with
three children, but lives without her children in a boarding house for people with
developmental disabilities in Montgomery, Alabama. R. 64. She did not complete high
school but attended special education classes through the eleventh grade. R. 48–49. She
claims to suffer from schizophrenia, depression, arthritis, and fibromyalgia. R. 46. In the
past, King worked as a cashier, an assembler, a cook, and a poultry worker. R. 37, 89, 215

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& 217. She last worked as an assembler at STS Filing and at a chicken-processing plant
in 2012. R. 32 & 203.
Following an administrative hearing, the ALJ found that King did not suffer from
any severe impairments in isolation, but that the following combination of her impairments
is “possibly severe” under 20 C.F.R. § 404.1520(c): “status post hydrothermal endometrial
ablation and questionable Fibromyalgia, questionable schizophrenia, paranoid type;
generalized anxiety disorder, not otherwise specified; dissociative disorder, not otherwise
specified; and depressive disorder, not otherwise specified (20 CFR 416.920(c)).” R. 28.
However, the ALJ concluded at step three of the analysis that King’s impairments, even in
combination, did not meet or medically equal the severity of any of the impairments listed
in the applicable regulations. R. 29. The ALJ further found, at steps four and five, that
King has the residual functional capacity (“RFC”) to perform light work,1
except 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 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 cannot climb ladders, ropes, poles or scaffolds. The claimant can
occasionally climb ramps and stairs. The claimant can frequently use her
upper extremities for reaching overhead. The claimant can frequently use
her lower extremities for pushing, pulling and the operation of foot controls.
The claimant can frequently balance, stoop, kneel and crouch. The claimant
1

Pursuant to the relevant regulations, light work
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine that he or
she can also do sedentary work, unless there are additional limiting factors such as loss of
fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 416.967(b).

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can occasionally crawl. The claimant can occasionally work in humidity,
wetness, and extreme temperatures. The claimant cannot work in poorly
ventilated areas. The claimant cannot work at unprotected heights. The
claimant cannot work with operating hazardous machinery. The claimant
can frequently work while exposed to vibration. The claimant cannot operate
motor vehicles. The claimant can perform simple, routine and repetitive
work activity with the following exceptions. The claimant cannot perform
work activity that requires her response to rapid and/or frequent multiple
demands. The claimant can respond appropriately to supervision; however,
she is better suited for and can perform work activity requiring only
occasional supervision. The claimant can frequently interact with coworkers
so long as interaction is casual. The claimant is limited to work activity that
does not require interaction with the public.
R. 30. Ultimately, the ALJ concluded that King could perform both her past relevant work
as an assembler and other jobs that exist in the national economy. R. 37. He therefore
concluded that King was not disabled within the meaning of the Social Security Act from
June 12, 2013 through the date of his decision, and he denied King’s claim. R. 38.
On May 7, 2014, Sreelekha Banerjee, M.D., King’s treating physician, completed a
report of his opinions regarding King’s limitations. Overall, Dr. Banerjee observed that
King’s limitations with regard to several areas of mental functioning were “extreme,”
which is defined as a “complete loss of ability in the named activity” such that the
individual “cannot sustain performance during an 8-hour workday.” R. 344–45. Dr.
Banerjee indicated that King’s limitations were extreme in the following categories of
functioning: impaired ability to relate to others; restriction of activities of daily living; and
the ability to maintain concentration, pace, and attention for periods of at least two hours.
R. 344. Dr. Banerjee also observed that King’s limitations were extreme with respect to
her ability to follow directions, respond appropriately with supervisors and coworkers,
handle customary work pressures, respond appropriately to changes in the work

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environment, and use good judgment on the job. R. 344. Finally, Dr. Banerjee found that
King suffered extreme limitations in performing complex, repetitive, or varied tasks and
behaving in an emotionally stable manner. R. 345. Ultimately, Dr. Banerjee diagnosed
King with schizophrenia, paranoid type; depressive disorder; and generalized anxiety
disorder. See R. 343.
Dr. Banerjee regularly treated King at the Montgomery Area Mental Health
Authority. On May 17, 2013, Dr. Banerjee noted that King was “doing well” with the
psychotropic medications she was prescribed, but that she was having trouble sleeping.
R. 288. Otherwise, King reported no side effects from her medication, no hallucinations
or paranoia, and no suicidal or homicidal ideation. R. 288. Similarly, King had no side
effects, delusions, paranoia, or suicidal or homicidal ideations in February of 2013,
although Dr. Banerjee did record that her insight was “poor” and her judgment “impaired.”
R. 290.
On August 22, 2013, Dr. Alan M. Babb examined King at his office in Montgomery.
R. 303. Dr. Babb had not been provided with any of King’s prior medical records, but
noted that she reported having been diagnosed with schizophrenia. R. 303. Most of Dr.
Babb’s physical findings were unremarkable, though he recorded that King was “very
reserved, withdrawn, and depressed.” R. 304.

Dr. Babb’s impressions included a

psychiatric disorder, depression, and an anxiety disorder. R. 305. He concluded by stating
that King’s case would “be judged on psychiatric reasons and not for any specific medical
reasons” and that the mental health records “need to be obtained to be able to give a clearer

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and precise history of what mental health issues [King] has and what their expectations
are.” R. 306.
Two days later, on August 24, King was referred to Dr. Kristin R. Tubre, a licensed
clinical psychologist. R. 309. Dr. Tubre first noted that King “may not have put forth
adequate effort” and might have “exaggerated her symptoms” during her examination and
interview. R. 309.

Therefore, Dr. Tubre’s findings with regard to King’s level of

functioning should be “interpreted with caution.” R. 309. King reported to Dr. Tubre that
she was diagnosed with schizophrenia in 2012 and had hallucinations, crying spells,
isolation, paranoia, and a split personality. R. 310. Her hallucinations included a person
named “Christine” and several small children. R. 310. King spoke to them during the
interview. R. 310. She reported that her psychotropic medications did not decrease the
hallucinations and that her medications caused her to be lethargic. R. 310. King reported
having been sexually abused by her father as a child, as she also reported to both Dr. Babb
and Dr. Banerjee. R. 310. King stated that she lived with a “male friend” who helped her
care for herself, and that she depended “heavily on her friend for assistance with hygiene
and food.” R. 311. She nevertheless testified at the hearing that she lived at a boarding
house for people with developmental disabilities, that the male friend did not live with her,
and that only her family cared for her. R. 74.
Dr. Tubre found that King’s “thought processes were not within normal limits,” and
that she displayed difficulty with thought content and interpreting proverbial statements.
R. 311. She also struggled with attention and concentration and with spelling certain words
forward and backward. R. 311. Her short-term memory was “impaired” and her “level of

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cognitive ability appeared to be in the borderline range of intellectual functioning.” R. 312.
Dr. Tubre noted that, during the examination, King’s mood fluctuated and she reported
experiencing both auditory and visual hallucinations. R. 312. Ultimately, Dr. Tubre
concluded that, despite the fact that King may have exaggerated her symptoms, she is
“moderately to severely impaired” in her ability to comprehend, remember, and carry out
instructions as well as to “respond appropriately to supervision, co-workers and work
pressures in a work setting.” R. 312. Her diagnostic impressions where that King had
paranoid-type schizophrenia and fibromyalgia. R. 312.

Dr. Tubre concluded by

recommending additional psychological testing “to rule out malingering.” R. 312.
King also saw Dr. Albert Lester in 2013 and 2014. These records, however, are
almost entirely illegible, with the exception of a few individual words. See R. 348–54.
Thus, the court is able to discern little of significance from Dr. Lester’s treatment notes,
and encourages King’s counsel to submit records that are legible (and preferably
typewritten) in the future to aid the court in its review. In her brief, King represents to the
court that Dr. Lester diagnosed her with fibromyalgia and prescribed Lortab and Lyrica to
treat her pain. See Doc. 12 at 5–6.
IV. DISCUSSION
King presents three issues on appeal: (1) that the ALJ erred by improperly acting as
both judge and physician; (2) that the ALJ failed to provide King with a full, fair, and
unbiased evaluation of her claim; and (3) that the Appeals Council erred by denying King’s
request for review in light of the additional medical evidence she submitted. Because the

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court agrees with each of King’s first two arguments, any discussion regarding the Appeals
Council’s denial of review is unnecessary.
A.

ALJ’s Role as an Adjudicator
King argues that the ALJ impermissibly occupied the role of both adjudicator and

physician by referring to King’s diagnosed fibromyalgia and schizophrenia as
“questionable” and arbitrarily pretermitting any consideration of King’s physical maladies,
like fibromyalgia, while still incorporating physical limitations into his RFC assessment.
See Doc. 12 at 4–7.
“An ALJ sitting as a hearing officer abuses his discretion when he substitutes his
own uninformed medical evaluations for those of a claimant’s treating physicians . . . .”
Marbury v. Sullivan, 957 F.2d 837, 840 (11th Cir. 1992) (Johnson, J., concurring).
Regardless of an ALJ’s personal feelings or suspicions, “as a hearing officer he may not
arbitrarily substitute his own hunch or intuition for the diagnosis of a medical
professional.” Id. at 840–41. Of course, an ALJ is free to discredit the diagnosis of a
treating physician, but only based on specific articulated reasons, see Hale v. Bowen, 831
F.2d 1007, 1012 (11th Cir. 1987), that are supported by substantial evidence in the record.
See Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). Indeed, an ALJ is not permitted
to “make medical findings or indulge in unfounded hunches about the claimant’s medical
condition or prospect for improvement.” Haag v. Barnhart, 333 F. Supp. 2d 1210, 1220
(N.D. Ala. 2004).
Here, the ALJ repeatedly indulged his own unfounded hunches about King’s
physical and emotional wellbeing and the effects of King’s diagnoses on her ability to

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function. Early in the opinion, the ALJ concluded that each of King’s impairments is not
severe individually, in part because he found that her fibromyalgia and schizophrenia—
which had been diagnosed by multiple physicians––were “questionable.” R. 28. The ALJ
“[q]uite candidly” explained that he “does not believe that even collectively these
impairments limit the claimant’s capacity for work activity” because King’s credibility
undermines his “ability to assess limitation.”2 R. 28. However, despite his reservations,
the ALJ “could not unequivocally rule out the possibility that collectively [King’s]
nonsevere impairments cause greater than slight limitation in her capacity for mental and
physical work activity,” so he continued with the required sequential analysis. R. 28.
In addition to being dismissive of King’s diagnosed fibromyalgia and schizophrenia,
the ALJ repeatedly granted little weight to the opinions of medical professionals based on
his own conclusions about King’s veracity. For example, the ALJ granted “some” weight
to consultative examiner Dr. Tubre’s opinion that King’s limitations are moderate to
severe. R. 35. According to the ALJ, any suggestion of limitations greater than the
moderate limitations found in his RFC assessment “is not consistent with the totality of the
evidence,” including the ALJ’s “own interactions with the claimant.” R. 35. The ALJ also
cast aside Dr. Babb’s opinions regarding King’s mental limitations but credited Dr. Babb’s
report to the extent it concluded that the outcome of King’s claim would be determined by
her mental functioning and not any physical limitations. R. 35. In so doing, the ALJ
2

Despite the fact that he explicitly faulted King’s credibility for his inability to assess her limitations, the
ALJ acknowledged during the administrative hearing that he was “sure this record is not complete,” and he
did not “have a complete picture of [King’s] functioning.” R. 96. As discussed in the next subsection,
ALJ’s opinion does not reveal any circumstances that changed between the hearing and the date of the
opinion so as to alleviate his concerns over the sufficiency of the evidence in the record.

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arbitrarily relied on only those portions of Dr. Tubre’s and Dr. Babb’s reports that support
his conclusion that King is not disabled, “without articulating specific, well supported
reasons” for doing so beyond his blanket statements about King’s credibility. See, e.g.,
Thomas v. Colvin, 2016 WL 1048525, at *2 (M.D. Ala. Mar. 16, 2016); Smith v. Colvin,
2014 WL 518057, at *3 (S.D. Ala. Feb. 10, 2014) (gathering cases holding that an ALJ
cannot pick and choose only those portions of medical opinions that support his opinion
without offering an adequate explanation for doing so).
Similarly, the ALJ gave little weight to the report of Dr. Banerjee, a treating
physician. After emphasizing that Dr. Banerjee’s report was a “pre-planned document
which allowed him to annotate the areas in which he believe [sic] that the claimant suffer
limitation [sic] and what if any limitation she suffered,” the ALJ found Dr. Banerjee’s
opinions regarding King’s limitations “incredibl[e].” R. 35. The ALJ concluded that Dr.
Banerjee’s opinions were inconsistent with the “totality of the evidence in the record” and
King’s mental health treatment records without pointing to any specific records
contradicting Dr. Banerjee’s reports. R. 35.

Instead, he noted the absence of

“hospitalizations or restricted living arrangements consistent with such extreme
limitations.” R. 35. Additionally, the ALJ based his discounting of Dr. Banerjee’s report
on King’s representation that she shops for three to four hours because she forgets things,
concluding, while citing to no evidence, that if King is “amongst others for 3-4 hours, she
certainly does not suffer extreme limitation in her ability to interact with others.” R. 36.
Of course, the ALJ must give substantial weight to the opinion of a treating
physician unless the: “1) treating physician’s opinion was not bolstered by the evidence;

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(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). In totality, the ALJ’s reasons for discrediting Dr.
Banerjee’s assessment include: (1) King’s lack of hospitalizations or “restricted living
arrangements”; (2) her ability to shop for three to four hours at a time; and (3) the fact that
neither Dr. Babb nor Dr. Tubre had “voiced any concerns of extreme limitation.”
R. 35–36. These suppositions aside, the ALJ does not adequately explain how Dr.
Banerjee’s opinion was either not bolstered or contradicted by the evidence of record. The
ALJ does not elaborate on his reference to “restricted living arrangements” or explain how
the absence of such arrangements or a history of hospitalizations necessarily rebuts Dr.
Banerjee’s findings with respect to the limitations caused by King’s diagnosed
schizophrenia.

Further, Dr. Babb’s and Dr. Tubre’s reports do not contradict Dr.

Banerjee’s opinions of King’s limitations given that Dr. Babb concluded that King had a
psychiatric disorder and Dr. Tubre concluded that she was “moderately to severely
impaired” in her ability to follow directions and function in a work environment.
Thus, in addition to substituting his own belief about King’s limitations for the
opinions of licensed medical professionals, the ALJ picked and chose only those parts of
the medical records that supported his ultimate conclusion and failed to demonstrate good
cause for granting little weight to the assessment made by treating physician Dr. Banerjee.
Further, as King points out, the ALJ admittedly refused to hear evidence regarding King’s
physical impairments, including her fibromyalgia, despite incorporating physical
limitations into his RFC assessment. See R. 81 (“I’m sure you already figured out, I’m not

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looking at the physical applications or physical aspects of this case.”) & 30 (including a
host of physical limitations into the RFC assessment). As with King’s schizophrenia, the
ALJ referred to her fibromyalgia as “questionable,” R. 28, without making “factual
findings supporting an inference” that King’s physicians “were incompetent or otherwise
failed to perform their duties in a professional manner.” Marbury, 957 F.2d at 841. The
ALJ’s pattern of questioning King’s truthfulness and the diagnoses of multiple medical
professionals while failing to cite to the specific evidence supporting his conclusions makes
it apparent that he substituted his own untrained opinions for those diagnoses.
Accordingly, the court cannot conclude that substantial evidence supports the ALJ’s
opinion.
B.

ALJ’s Impartiality
More fundamentally, the record on appeal calls into question the ALJ’s impartiality.

Social Security claimants are entitled to hearings that are “both full and fair.” Miles, 84
F.3d at 1400. The ALJ’s duty is to “carefully weigh the evidence, giving individualized
consideration to each claim that comes before him.” Id. at 1401. “The impartiality of the
ALJ is thus integral to the integrity of the system.” Id. A presumption exists that ALJs are
unbiased, which can be rebutted by demonstrating a conflict of interest “‘or some other
specific reason for disqualification.’” Putman v. Soc. Sec. Admin., Comm’r, 2017 WL
4119042, at *5 (11th Cir. Sept. 18, 2017) (quoting Schweiker v. McClure, 456 U.S. 188,
195 (1982)). The Eleventh Circuit has emphasized the importance of the inquisitorial
nature of Social Security proceedings:

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The SSA [Social Security Administration] 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. Id. 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.”
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000) (quoting 20 C.F.R. §
404.900(b)). Accordingly, an ALJ “shall not conduct a hearing if he or she is prejudiced
or partial with respect to any party or has any interest in the matter pending for decision.”
Miles, 84 F.3d at 1400 (quoting 20 C.F.R. § 404.940)).
By his own admission, the ALJ here did not give individualized consideration to
components of King’s claim by issuing a blanket refusal to consider the “physical aspects”
of her claim and instead addressing only the limitations imposed by her schizophrenia.
Even then, as discussed above, the ALJ explicitly acknowledged that the record was not
complete on multiple occasions during the administrative hearing. And the ALJ made
several suppositions and assumptions, both during the hearing and in his opinion, indicative
of a preconceived skepticism of King’s claim. For example, the ALJ opened the hearing
with pointed questions about King’s educational history:
ALJ:
King:
ALJ:
King:

So why did you leave [school after the eleventh grade]?
Just wasn’t making good grades, and I couldn’t catch on.
All right. And why didn’t you at least try to get a GED?
I couldn’t do it. My mental status, I think, could pass the test. I just
couldn’t.
ALJ: So did you try?
King: No, sir.

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R. 49–50. Later in the hearing, King testified to having owned and operated a janitorial
service in 2011 and 2012. See R. 52–55 & 58–63. However, the ALJ correctly suspected
that King lied about the janitorial service for tax purposes, which she eventually admitted.
See R. 73. From that point forward, the ALJ was outwardly skeptical of King’s responses,
probing her, for example, about the possibility that she lived with a male friend who she
had mentioned to her doctors. See R. 73–77. Ultimately, King testified that the friend
visited periodically, helped take care of her, and twice spent the night. R. 77.
Next, the ALJ turned his attention to King’s children––for whom she no longer has
custody––asking repeatedly whether she abused them and inquiring into the circumstances
of the custody arrangement. See R. 78–81. King stated on multiple occasions that she was
unable to care for her children because she was “unstable” and would “lash out.” R. 78–
79. After this exchange, the ALJ first indicated that the record was not complete and that
he was not considering the “physical aspects of this case,” but instead was “only concerned
with the mental.” R. 81. King’s representative then referred to evidence in the record that
purportedly established disability. R. 82. At this point, the ALJ shifted his focus to King’s
criminal history, stating “I don’t want to hear the fluff. Just answer the question. Why did
you go to prison?” R. 83. King explained that she was charged with the distribution of
prescription pain medication, to which the ALJ responded, “You were about to tell me what
about the physical evidence, counsel? She’s selling her Lortab.” R. 84. King added that
she did not sell her medication, but that she gave some to a friend. R. 84–85. The ALJ did
not accept this explanation, continuing as follows:
ALJ: How much were you selling your Lortabs for?

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King: I didn’t sell it.
ALJ: How much were you giving it away for?
King: I just give [sic] it to him because he said he had a toothache, but he
was setting me up. I found out the reason why he done what he done
[sic] to me. This is what happened . . .
ALJ: Ma’am, ma’am, you were convicted, right?
King: Yes, sir.
ALJ: That’s all I need to know.
King: I did my time . . .
ALJ: Any other convictions of that nature?
King: Nothing but child support because that’s what I had, and that’s all.
R. 85–86.
Following this exchange, the ALJ shifted away from King’s past criminal
conviction toward the ultimate issue of disability:
ALJ: Let me ask you one more blunt question. Again, I don’t want any
fluff, I don’t want any stories. I want you to straight up answer this
question.
King: Yes, sir.
ALJ: All right? All joking aside, you and I, right now.
King: Yes, sir.
ALJ: Do you truly believe you cannot perform any work activity
whatsoever? Think about it before you answer. Do you truly believe
you cannot perform any work whatsoever?
King: Yes, sir, I do.
ALJ: Why?
King: I truly believe that.
ALJ: Why?
King: Because I know who I am, and I just lash out, and I don’t want to hurt
[anyone], and I’m just being honest.
ALJ: But luckily, you have two convictions, and none of them involve you
lashing out. Or neither involves you lashing out. Why is that?
R. 86. The ALJ’s skepticism continued:
ALJ: You’re telling [me] you cannot work because of inability to get along
with others.
King: Yes, sir.

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ALJ: But you’ve never been convicted of a crime involving the inability to
get along with others. Why should I believe that you’re unable to get
along with others? You [are] doing quite fine here today. Well?
King: I’m just being honest, your honor.
R. 87. To close the hearing, the ALJ telegraphed his thoughts on King’s veracity and the
legitimacy of her claim:
ALJ: Based on what you told me about the janitorial service, nine [times]
out of 10, I would have turned off everything here after you said that.
Everything you said after that, I wouldn’t have even cared.
King: Yes, sir.
ALJ: All right?
King: I understand.
ALJ: Be honest.
King: Yes, sir.
ALJ: If you cannot work, it will come out in your honesty.
King: Yes, sir.
ALJ: If you can, go back to work.
R. 98.
These exchanges are better described as cross-examination than a full and fair
inquisitorial proceeding led by an impartial judge who is carefully weighing the evidence
and developing the arguments both for and against the awarding of benefits. As is evident
from the passages quoted above, the ALJ obsessed over what he perceived to be King’s
lack of honesty and exaggeration of her limitations, grilling her over her high school
education, past conviction, custody of her children, and current living arrangements. It is
hard to conceive of an examination by an impartial adjudicator that would more closely
resemble an adversarial interrogation. For this reason, the court cannot conclude, based on
the transcript of the administrative hearing alone, that the ALJ here has demonstrated the
impartiality necessary to weigh the evidence and give individualized and careful

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consideration to King’s claim. And the ALJ’s written opinion is plagued by the same
indicia of partiality. See R. 28 (opining that he “does not believe that even collectively
these impairments limit the claimant’s capacity for work activity”).
The court acknowledges that the ALJ is free to discredit a claimant’s testimony.
See, e.g., Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005). And the ALJ was
correct to note that there are inconsistencies between King’s testimony at the hearing and
what she reported to her doctors at various times. Compare R. 66–67 & 74–75 (testifying
that she has hallucinations and does not live with a male friend), with R. 304 (reporting that
she lived with male friend) & 305 (reporting no evidence of delusions or hallucinations).
There are also inconsistencies in the medical records themselves, and at least one doctor
remarked that King may have been exaggerating her symptoms. Compare R. 288–90
(reporting to Dr. Banerjee that she had no delusions or paranoia), with R. 309–12 (reporting
to Dr. Tubre that she has “auditory and visual hallucinations, crying spells, isolation,
paranoia, and ‘split personality’”). But a claimant’s credibility is just one component of
an ALJ’s determination of benefits, and any reservations this court may have regarding
King’s truthfulness (and, indeed, the merits of her claim as a whole) do not foreclose its
duty to set aside an opinion marred by bias and assumptions that are unsupported by
substantial evidence in the record. Further troubling is the fact that “a biased ALJ might
not properly develop the record” at all. Allenstein v. Barnhart, 419 F. Supp. 2d 1336, 1337
(N.D. Ala. 2006). For all of these reasons, the court is unable to determine whether
substantial evidence supports a finding that King is not disabled until her case is heard by
an impartial adjudicator.

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V. CONCLUSION
Based on the foregoing, the undersigned concludes that the Commissioner’s
decision is not supported by substantial evidence and based upon the proper legal
standards. It is therefore ORDERED that the decision of the Commissioner denying
benefits is REVERSED and this matter REMANDED for further proceedings consistent
with this opinion. It is further ORDERED that this matter be reassigned to a different
Administrative Law Judge.
A final judgment will be entered separately.
DONE this 16th day of January, 2018.

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