Dean v. Colvin
MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 7/29/2015. Copies mailed to SSA Chief Judge and SSA Office of Hearings and Appeals.(wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SABRINA D. DEAN,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIVIL ACTION NO.: 3:14-cv-878-WC
Sabrina D. Dean (“Plaintiff”) filed an application for a period of disability and
disability insurance benefits under Title II of the Social Security Act (“the Act”), 42
U.S.C. §§ 401, et seq, on March 21, 2011. Her application was denied at the initial
Plaintiff then requested and received a hearing before an
Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a decision in
which he found Plaintiff not disabled from the alleged onset date of February 7, 2011,
through June 30, 2011, the date Plaintiff last met the insured status requirements of the
Act. Plaintiff appealed to the Appeals Council, which rejected her request for review of
the ALJ’s decision. The ALJ’s decision consequently became the final decision of the
Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d
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
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. 9); Def.’s Consent to Jurisdiction (Doc. 10).
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
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).2
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
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.
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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. 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 1 through Step
4. At Step 5, 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
McDaniel is a supplemental security income case (SSI). The same sequence applies to
disability insurance benefits. Cases arising under Title II are appropriately cited as authority in
Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
Vocational Guidelines4 (“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. 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
See 20 C.F.R. pt. 404 subpt. P, app. 2.
similar presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff, who was thirty-three years old at the time of the hearing before the ALJ,
has a limited education. Tr. 34. Following the administrative hearing, and employing the
five-step process, the ALJ found at Step One that Plaintiff “did not engage in substantial
gainful activity during the period from her alleged onset date of February 7, 2011 through
her date last insured of June 30, 2011[.]” Tr. 31. At Step Two, the ALJ found that
Plaintiff suffers from the following severe impairments:
“fibromyalgia; history of
femoral torsion; and obesity[.]” Id. At Step Three, the ALJ found that Plaintiff “did not
have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments[.]” Tr. 32. Next, the ALJ articulated Plaintiff’s
RFC as follows:
[T]hrough the date last insured, [Plaintiff] had the residual functional
capacity to perform a range of sedentary work as defined in 20 C.F.R. §
404.1567(a), with the following exceptions noted herein. [Plaintiff] can
occasionally lift and/or carry ten pounds and can frequently lift and/or carry
less than ten pounds. [Plaintiff] can stand and/or walk for two hours in an
eight-hour workday and sit for six hours in an eight-hour workday.
[Plaintiff] can frequently push and/or pull with both lower extremities.
[Plaintiff] can frequently balance. [Plaintiff] can occasionally stoop,
crouch, and climb ramps or stairs. [Plaintiff] should never crawl, kneel, or
climb ladders, ropes, or scaffolds. [Plaintiff] should avoid concentrated
exposure to wetness, humidity, vibration, fumes, odors, dusts, gases, poor
ventilation, and extreme cold and heat. [Plaintiff] should avoid all
exposure to unprotected heights and hazardous machinery.
Tr. 34. Based upon the VE’s testimony at the hearing, the ALJ concluded at Step Four
that Plaintiff could perform her past relevant work as a bookkeeper (sedentary & skilled)
and service clerk/customer service representative (sedentary & semi-skilled). Tr. 39.
Accordingly, the ALJ determined that Plaintiff “was not under a disability, as defined in
the Social Security Act, at any time from February 7, 2011, through June 30, 2011, the
date last insured[.]” Tr. 40.
The issue Plaintiff presents for this court’s consideration in review of the ALJ’s
decision is whether “the ALJ erred by failing to provide [an] adequate rationale [for
discrediting] the medical opinions of record expressed by treating and examining sources
that support a disability finding.” Pl.’s Br. (Doc. 12) at 3.
Plaintiff argues that “the ALJ erred by failing to provide [an] adequate rationale”
for discounting the medical opinions of record “that support a disability finding.” Pl.’s
Br. (Doc. 12) at 3. Plaintiff’s argument centers on the ALJ’s decision to discount the
opinions of Dr. Sunil Sharma, M.D., Plaintiff’s treating physician, and Dr. Alphonza
Vester, M.D., an agency examining physician.
Plaintiff alleges that both of these
“physicians agree that [Plaintiff]’s medically determinable impairments prevented her
from maintaining occupational postures (sitting, standing, and walking) throughout an
eight-hour workday,” and that “[the VE] at [Plaintiff]’s hearing testified that the medical
opinions expressed by Drs. Vester and Sharma prevented the performance of substantial
gainful activity.” Id. at 3 (internal citations omitted). Plaintiff argues the ALJ erred by
“fail[ing] to explain how Dr. Sharma’s opinions are not consistent with the available
evidence of record or what specifically [the ALJ] finds inconsistent” and for “fail[ing] to
explain how Dr. Vester’s opinions were only ‘partially’ consistent with the overall
objective findings or what objective findings his opinions conflicted with in a partial
manner.” Pl.’s Br. (Doc. 12) at 7-8.
“[An] ALJ must state with particularity the weight given to different medical
opinions and the reasons therefor.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1179 (11th Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987))
(emphasis added). “‘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.’” Winschel, 631 F.3d at 1179 (quoting Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). “[W]hen the ALJ fails to ‘state with at
least some measure of clarity the grounds for his decision,’” the court will remand even if
“‘some rationale might have supported the ALJ’s conclusion.’” Winschel, 631 F.3d at
1179 (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)). Even when “[i]t
is possible that the ALJ considered and rejected” all medical opinions, “without clearly
articulated grounds for such a rejection, [the court] cannot determine whether the
ALJ’s conclusions were rational and supported by substantial evidence.” Winschel, 631
F.3d at 1179 (emphasis added).
Here, the ALJ addressed the weight assigned to the medical opinions of Drs.
Sharma and Vester as follows:
The medical opinion of Dr. Sharma (Ex.15F) is given limited weight
because it is inconsistent with available evidence of record. . . .
The assessment of the consultative examiner, Alphonza Vester, M.D (Ex.
10F) is partially consistent with the overall objective evidence and is
therefore given significant weight to the extent it is consistent with the
[RFC] stated herein.
Tr. 39. While this does “state with particularity the weight given to [the] different
medical opinions” in the record, it does not adequately state “the reasons therefor.”
Winschel, 631 F.3d at 1179. The only “reason” provided by the ALJ is that the opinions
of Drs. Sharma and Vester are not wholly consistent with the evidence of record. Tr. 39.
The ALJ fails to identify any particular evidence of record that is specifically inconsistent
with those opinions.5
A review of the record as a whole reflects inconsistencies between the opinions of Drs. Sharma
and Vester (which were substantially similar to each other regarding Plaintiff’s ability to
maintaining occupational postures such as sitting, standing, and walking throughout an eighthour workday, compare Tr. 361 with Tr. 322), and the opinion of Dr. Robert H. Heilpern, M.D.,
the medical consultant. Dr. Heilpern was of the opinion that Plaintiff was capable of sitting for
six hours in an eight-hour workday and standing or walking for six hours in an eight-hour
workday. The ALJ gave Dr. Heilpern’s opinion “significant weight because [it is] generally
consistent with the overall objective evidence.” Tr. 39, 296. However, to the extent that the ALJ
may have relied on the non-examining physician’s opinion to discredit the opinion of Dr.
Sharma, the court observes that “[t]he opinion of a non-examining physician does not establish
the good cause necessary to reject the opinion of a treating physician.” Johnson v. Barnhart, 138
F. App’x 266, 270 (11th Cir. 2005).
This is of particular concern with Dr. Sharma’s opinion, as Dr. Sharma is
Plaintiff’s treating physician. “Absent ‘good cause,’ an ALJ is to give the medical
opinions of treating physicians ‘substantial or considerable weight.’” Winschel, 631 F.3d
at 1179 (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). “Good cause
exists ‘when the (1) treating physician 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.” Id. (quoting Phillips v. Barnhart,
357 F.3d 1232, 1241 (11th Cir. 2004)). However, a blanket statement that a medical
opinion is inconsistent with the evidence of record is too conclusory to establish the
requisite good cause articulated in Winschel. See Barreto v. Comm’r of Soc. Sec., No.
6:10-CV-1952-ORL-GJK, 2012 WL 882520, at *4 (M.D. Fla. Mar. 15, 2012) (finding an
ALJ’s explanation that a medical opinion “is ‘without substantial support from the other
evidence of record’” is too conclusory to demonstrate good cause); Paltan v. Comm’r of
Soc. Sec., No. 6:07CV932-ORL-19DAB, 2008 WL 1848342, at *5 (M.D. Fla. Apr. 22,
2008) (“[T]he ALJ did not explicitly support his conclusion that [the treating physician]’s
opinion was inconsistent with the medical evidence, and no [legally valid] implicit
support is apparent”); Poplardo v. Astrue, No. 3:06-CV-1101-J-MCR, 2008 WL 68593,
at *11 (M.D. Fla. Jan. 4, 2008) (instructing that, to establish good cause on remand, “the
ALJ should identify any evidence [the ALJ] feels is inconsistent with [the treating
Accordingly, the ALJ has not sufficiently stated the reasons for finding the
opinions of Drs. Sharma and Vester to be inconsistent with the evidence of record, and,
under the instruction of the Eleventh Circuit in Winschel, the court cannot affirm. 631
F.3d at 1179. This matter is due to be remanded so that the ALJ can “state with
particularity the weight given to the medical opinions and the reasons therefor.” Id.
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 29th day of July, 2015.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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