Stalling v. Astrue (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Susan Russ Walker on 12/17/13. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIVIL ACTION NO. 3:11cv944-SRW
Plaintiff appeals the Commissioner’s final decision denying plaintiff’s application for
disability benefits under Title II of the Social Security Act. The parties have consented to
proceeding before the undersigned Magistrate Judge. (Doc. ## 9, 10). Plaintiff asserts that
the ALJ erred1 by giving “great weight” to the opinion expressed by Michelle Warren, a
single decision-maker (“SDM”), as to plaintiff’s residual functional capacity; she contends
that this error is not harmless and requires that the Commissioner’s decision be reversed.
(Doc. # 14). The Commissioner agrees that “it was not appropriate to give the disability
examiner’s assessment weight,” but contends that plaintiff has not shown that the error was
harmful. (Doc. # 17, p. 9).2
The Appeals Council denied review (R. 1-5) and, thus, the ALJ’s decision is the final
decision of the Commissioner.
See SSR 06-03p, 2006 WL 2329939 at *2 (“only ‘acceptable medical sources’ can give us
medical opinions”)(citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)); POMS DI 24510.050
(physical RFC forms completed by the single decision-maker (“SDM”) “are not opinion evidence
at the appeal levels”).
In reaching his RFC finding, the ALJ provided a thorough summary of plaintiff’s
records of treatment over a period of several years. (R. 17-25). He assigned weight to the
opinion evidence as follows:
As for the opinion evidence, I afford great weight to the opinion of the state
agency disability specialist, who reviewed the record in December 2008, and
concluded that the claimant could perform sublight work (Exhibit 6F). As
indicated above, the opinion expressed on the form completed by the nurse in
September 2009, which was countersigned by the claimant[’]s primary care
doctor, is entitled to no weight (Exhibit 11F).
The “harmless error” doctrine applies to review of the Commissioner’s decisions3 and,
as the Commissioner argues, the plaintiff bears the burden of demonstrating that an error is
harmful.4 Plaintiff argues that, because the opinion the ALJ rejected (Exhibit 11F) is the only
“record opinion from an acceptable medical source” regarding plaintiff’s functional
limitations, it is reasonable to infer that the ALJ relied on the SDM opinion to which he had
given “great weight” in reaching his RFC finding; therefore, she contends, the error is not
harmless. (Doc. # 14, p. 11). The Commissioner responds that “Plaintiff cannot show that
this error was harmful because the ALJ did not rely exclusively on the disability examiner’s
assessment.” (Doc. # 17, p. 9). Despite the ALJ’s assignment of “great weight” to the SDM’s
See Diorio v. Heckler, 721 F.2d 726 (11th Cir. 1983)(finding ALJ’s misstatement of facts
relating to vocational factors to be harmless, where those factors were irrelevant because the ALJ
had found no severe impairment).
Shinseki v. Sanders, 556 U.S. 396, 409 (2009)(“[T]he burden of showing that an error is
harmful normally falls upon the party attacking the agency’s determination.”).
opinion, the Commissioner contends that “[m]ost significant to the ALJ’s determination in
this case was the medical evidence.” (Id., p. 10). The Commissioner argues that the ALJ’s
decision “makes clear that he would have reached the same outcome even without
consideration of the disability examiner’s assessment” (id., p. 9) and that “[a]ny notion that
Plaintiff was ‘disabled’ is belied by the medical record which was devoid of diagnostic and
clinical findings that suggested greater limitations than found by the ALJ” (id., p. 10). Thus,
the Commissioner’s contention is that the SDM’s opinion was not significant to the ALJ’s
conclusion because the medical evidence of record does not support a finding of disability.
In other words, the Commissioner invites the court to re-weigh the evidence that was before
the ALJ (excluding the SDM’s opinion, which is not entitled to any evidentiary weight) and
find that the claimant is not disabled. The “harmless error” doctrine does not require or allow
this court to do as the Commissioner asks.
While an ALJ’s consideration of an SDM opinion may very well be harmless in some
cases – for example, where the SDM opinion is substantially similar to an opinion of record
from an acceptable medical source,5 or the ALJ’s opinion makes clear that he did not give
the SDM opinion much weight6 – this is not such a case. As plaintiff points out, there is no
medical source opinion of record other than the one rejected by the ALJ, and the ALJ gave
Cf. Pichette v. Barnhart, 185 Fed. Appx. 855, 856 (11th Cir. 2006)(ALJ’s consideration
of unsigned psychological report, even if error, was harmless were it was “cumulative to other
psychological evidence presented to the ALJ”).
See e.g., Carter v. Astrue, 2012 WL 2135471, *4 (M.D. Ala. Jun. 13, 2012).
the SDM’s opinion great evidentiary weight. Taking the ALJ at his word, the court cannot
conclude that the SDM’s opinion did not affect the ALJ’s RFC formulation. If it affected
his RFC formulation in any respect, it necessarily affected his step five conclusion, which
rested on vocational expert testimony regarding other jobs plaintiff can perform with the
specified RFC. (See R. 26-27).
This case presents the converse of the situation before the Eleventh Circuit in Nyberg
v. Commissioner of Social Security, 179 Fed. Appx. 589 (11th Cir. 2006). In that case, the
ALJ failed to consider evidence he is required to consider – the opinion of the claimant’s
treating physician. The Commissioner argued that any such error was harmless because,
“even if the ALJ had considered [the treating doctor’s] opinion, the outcome of the case
could not reasonably have changed.” Id. at 592. The Eleventh Circuit reasoned:
The instant case ... is not one where the unmentioned physician’s opinion
merely supported the ALJ’s conclusion, and was thus unnecessary. See
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004). On the
contrary, the potential impact of Dr. Trowbridge’s opinion is strongly and
reasonably disputed by the parties. Thus, we cannot say that the failure to
address Dr. Trowbridge’s opinion was harmless without re-weighing the
evidence and engaging in conjecture that invades the province of the ALJ. See
Moore [v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005)](stating that, where
ALJ failed to consider certain factors and indicate their impact on his ultimate
conclusion as to claimant’s residual functional capacity, we “[could not] even
evaluate the Commissioner’s contention that the ALJ’s error was harmless”);
Wiggins [v. Schweiker, 679 F.2d 1387, 1390 (11th Cir. 1982)](remanding
where we were “unable to determine whether the ALJ applied the proper legal
standard and gave the treating physician’s evidence substantial or considerable
weight or found good cause not to do so”)[.]
(Id.)(footnotes omitted; emphasis added). While “an estimation of the likelihood that the
result would have been different” is relevant to the harmless error analysis, so is “an
awareness of what body (jury, lower court, administrative agency) has the authority to reach
that result[.]” Sanders, 556 U.S. at 411.7 This court cannot find that the ALJ’s error in giving
“great weight” to the SDM’s opinion was harmless “without re-weighing the evidence and
engaging in conjecture that invades the province of the ALJ.” Nyberg, 179 Fed. Appx. at
592. Whether the court would reach the same ultimate conclusion after re-weighing the
evidence is beside the point.8
For the foregoing reasons, the Commissioner’s decision is due to be reversed. A
separate judgment will be entered.
DONE, this 17th day of December, 2013.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
In Allen v. Barnhart, 357 F.3d 1140 (10th Cir. 2004), the Tenth Circuit rejected the
Commissioner’s argument that an ALJ’s failure to make a required finding of fact – that one hundred
of a particular job was “a substantial number” – was harmless error because “the missing fact was
clearly established in the record.” Id. at 1145. While the particular error before this court differs
from that in Allen, the Tenth Circuit’s reluctance to expand the harmless error doctrine was informed
by general concerns also relevant here – i.e., that courts should not “obscure the important
institutional boundary” by usurping the administrative tribunal’s fact-finding responsibility, or
engage in “post hoc justification of administrative action[.]” Id.
The court expresses no opinion regarding the conclusion the Commissioner should reach
upon reevaluation of the medical evidence.
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