Garcia v. Colvin

Filing 17

MEMORANDUM OPINION. Signed by Honorable Judge Susan Russ Walker on 3/31/2017. (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
EASTERN DIVISION
ANETRA GARCIA,

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Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

CASE NO. 3:15cv450-SRW

MEMORANDUM OPINION2
Plaintiff commenced this action on June 25, 2015, pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a final adverse decision of the Commissioner denying her claim
for a period of disability insurance benefits. (Doc. 1, 12, 15). The plaintiff asserts that she
is unable to work due to lower back pain, lumbago, spondylosis, radiculitis, obesity, bipolar
disorder, anxiety, depression, “panic attacks,” and insomnia. (Doc. 16-6 at 6). On
February 7, 2014, Administrative Law Judge Angela L. Neal (“ALJ”) issued an adverse
decision.3 (Doc. 16-2 at 16-27). After receiving the unfavorable decision, the plaintiff
submitted new medical evidence to the Appeals Council, which considered the new

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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 is substituted for Carolyn W. Colvin, Acting
Commissioner of Social Security, as the defendant in this lawsuit. The Clerk of Court is DIRECTED to
take the appropriate steps to reflect this change on the docket sheet.
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For the purposes of this appeal, the court uses the Code of Federal Regulations (“C.F.R.”) that was
effective until March 27, 2017, as that was the version of the C.F.R. in effect at the time of the ALJ’s
decision and the filing of this appeal.
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Plaintiff was represented by counsel at the hearing before the ALJ. (Doc. 16-2 at 16).

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evidence and denied the plaintiff’s request for review. (Doc. 16-2 at 2-4). Consequently,
the ALJ’s adverse determination is the Commissioner’s final decision (Id.); however, the
Appeals Council’s written denial of review is part of the final decision and is subject to
judicial review. See Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1263
(11th Cir. 2007) (“the denial of a request for review by the Appeals Council is part of the
‘final decision’ of the Commissioner” and must be considered by a reviewing court).
This case is ripe for a decision pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The
parties have consented to entry of final judgment by the Magistrate Judge. See 28 U.S.C.
§ 636(c). (Doc. 9, 10). For the reasons stated herein, and based upon its review of the
record, the court finds that the Commissioner’s decision is due to be remanded for
additional proceedings because the Commissioner did not employ proper legal standards.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this court is to determine whether the decision of the Commissioner is
supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002). This court must “scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” Id. It
is “more than a scintilla, but less than a preponderance.” Id. A reviewing court “may not
decide facts anew, reweigh the evidence, or substitute [its] decision for that of the

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[Commissioner].” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). In other words,
this court is prohibited from reviewing the Commissioner’s findings of fact de novo, even
where a preponderance of the evidence supports alternative conclusions.
While the court must uphold factual findings that are supported by substantial
evidence, it reviews the ALJ’s legal conclusions de novo because no presumption of
validity attaches to the ALJ’s determination of the proper legal standards to be applied.
Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the
ALJ’s application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining that the proper legal analysis has been conducted, it must reverse
the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder. The Regulations define “disabled” as “the inability
to do 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 twelve (12) months.” 20 C.F.R. §
404.1505(a). To establish an entitlement to disability benefits, a claimant must provide
evidence about a “physical or mental impairment” that “must result from anatomical,
physiological, or psychological abnormalities which can be shown by medically acceptable
clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:

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(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the Commissioner;

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to a formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). The sequential
analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment. If
the claimant does not have a listed impairment but cannot perform her work,
the burden shifts to the [Commissioner] to show that the claimant can
perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Id.
DISCUSSION
The plaintiff was 35 years old on the date of her hearing before the ALJ. (Doc. 15
at 2). She is able to communicate in English and completed the eleventh grade in 1996.
(Id.; Doc. 16-6 at 5, 7). Plaintiff has past relevant work experience as a creeler, assembler,
OES operator, and hand trimmer. (Doc. 15 at 2; Doc. 16-6 at 7).

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The ALJ found that plaintiff suffered from the severe impairments of “degenerative
disc disease of the lumbar spine status post transforaminal lumbar interbody fusion,
obesity,4 essential hypertension, bipolar disorder, and panic disorder (20 CFR §
404.1520(c)).” (Doc. 16-2 at 18). She concluded that none of plaintiff’s severe impairments
meets a listing requirement. (Id. at 19). After relying almost entirely on opinion evidence
supplied by a non-examining, consultative physician, Dr. Robert Estock, M.D.,5 and upon
consideration of the record, the ALJ determined that plaintiff has the RFC
to perform sedentary work as defined in 20 CFR 404.1567(a) except that the
individual can never operate foot controls with the left lower extremity. She
can never climb ladders or scaffolds, balance, kneel, or crawl. The claimant
should never work at unprotected heights or around dangerous moving
mechanical parts. She is limited to simple, routine, and repetitive tasks and
making simple work related decisions. She can occasionally interact with
supervisors, coworkers, and the general public. She is limited to tolerating
few changes in a routine work setting.
(Id. at 22). Based upon the RFC determination, the ALJ found that plaintiff could not
perform her past relevant work. (Id. at 25). After considering the testimony of a vocational
expert, the ALJ concluded that the plaintiff is not disabled because she can perform tasks
required by jobs that exist in significant numbers in the national economy. (Id. at 26-27).

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The plaintiff weighed 392 pounds on the date of her hearing. The ALJ and plaintiff discussed plaintiff’s
weight and diet on the record; the ALJ offered the plaintiff advice on healthier food choices and counseled
the plaintiff to consult with a nutritionist. (Doc. 16-2 at 36, 41-42).
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The ALJ states that her “findings are in substantial agreement with those of [] Dr. Estock” and she assigned

his opinion “great weight as a non-examining source who has program knowledge.” (Doc. 16-2 at 20). She
notes that Dr. Estock “determined that the [plaintiff] is not disabled.” (Id.).

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The plaintiff raises three issues on appeal. Plaintiff argues that the ALJ’s Residual
Capacity Function (“RFC”) determination is not consistent with the medical opinion
evidence supplied by Dr. Estock – i.e., the ALJ afforded his opinion “great weight” but the
ALJ did not include all of Dr. Estock’s limitations in the plaintiff’s RFC and she did not
provide an explanation for the exclusion. (Doc. 12 at 3-7; Doc. 16-2 at 20). Plaintiff also
argues that “new evidence” from treating medical sources that she submitted to the Appeals
Council “renders the denial of benefits erroneous” and “warrants remand.” (Doc. 12 at 7,
8). Finally, the plaintiff contends that the ALJ failed to develop a complete medical history
pursuant to 20 C.F.R. § 404.1512(d).6 (Id. at 11). The plaintiff’s first argument and, to an

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20 C.F.R. § 404.1512(d) provides as follows:

Before we make a determination that you are not disabled, we will develop your complete
medical history for at least the 12 months preceding the month in which you file your
application unless there is a reason to believe that development of an earlier period is
necessary or unless you say that your disability began less than 12 months before you filed
your application. We will make every reasonable effort to help you get medical reports
from your own medical sources when you give us permission to request the reports.
(1) “Every reasonable effort” means that we will make an initial request for evidence from
your medical source and, at any time between 10 and 20 calendar days after the initial
request, if the evidence has not been received, we will make one followup request to obtain
the medical evidence necessary to make a determination. The medical source will have a
minimum of 10 calendar days from the date of our followup request to reply, unless our
experience with that source indicates that a longer period is advisable in a particular case.
(2) By “complete medical history,” we mean the records of your medical source(s)
covering at least the 12 months preceding the month in which you file your application. If
you say that your disability began less than 12 months before you filed your application,
we will develop your complete medical history beginning with the month you say your
disability began unless we have reason to believe your disability began earlier. If
applicable, we will develop your complete medical history for the 12-month period prior
to (1) the month you were last insured for disability insurance benefits (see § 404.130), (2)
the month ending the 7-year period you may have to establish your disability and you are
applying for widow's or widower's benefits based on disability (see § 404.335(c)(1)), or (3)
the month you attain age 22 and you are applying for child's benefits based on disability
(see § 404.350(e)).

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even greater degree, the second argument provide a meritorious basis to remand this cause
for additional proceedings before the Commissioner.
The Commissioner must specify what weight is given to a treating physician’s
opinion and any reason for giving it no weight at all. MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (citing Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir. 1985)
and Wiggins v. Schweiker, 679 F.2d 1387, 1389-90 (11th Cir. 1982)). Failure to do so is
reversible error. Id. (citations omitted). The opinion of a treating physician “must be given
substantial or considerable weight unless good cause is shown to the contrary.” Phillips v.
Barnhard, 357 F.3d 1232, 1240 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997)) (internal quotation marks omitted). The Commissioner must
clearly articulate her reasons for disregarding a treating physician’s opinion, and the failure
to do so is reversible error. Lewis, 125 F.3d at 1440 (citation omitted); see also 20 C.F.R.
§ 404.1527(c)(2) (“We will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s opinion.”). Here, there is insufficient
information in the ALJ’s written decision – and, separately, in the Appeals Council’s denial
of review – for the court to be assured that plaintiff’s treating physicians’ opinions were
given proper weight or that good cause exists for discounting those opinions.
Specifically, and for the reasons discussed infra, the court finds that the
Commissioner did not articulate reasons that rise to the level of good cause in either the
ALJ’s written decision or in the Appeals Council’s denial of review for failing to give
substantial weight to the opinions of plaintiff’s treating physicians – Dr. Douglas Pahl,
M.D., plaintiff’s treating orthopedic surgeon, and Dr. Jasmine Naheed, M.D., plaintiff’s

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treating psychiatrist.7 See Ingram, 496 F.3d at 1260 (“The [Commissioner]’s failure to
apply the correct law or to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted mandates reversal.”)
(bracketed text in original); Phillips, 357 F.3d at 1240 (treating physician is entitled to
substantial weight unless the Commissioner articulates good cause for assigning lesser
weight). As a practical matter, remand for the reasons discussed herein will necessitate
consideration by the Commissioner of the evidence supplied to the Appeals Council; this
evidence may enable the Commissioner to reevaluate the plaintiff’s RFC, and allows for
the possibility of further development of the record as appropriate.8 Thus, the court does
not consider plaintiff’s remaining arguments.
As mentioned above, the plaintiff filed a timely appeal of the ALJ’s adverse decision
to the Appeals Council. She also submitted new medical evidence in the form of
functionality reports and medical records from “the Hartford,” an insurance company that
pays disability insurance benefits to plaintiff, and from Dr. Naheed of “West Georgia
Psychiatric” dated February 13, 2012 through July 1, 2013. (Doc. 16-2 at 5). The records
from the Hartford supplement medical records and a functionality report provided by Dr.

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A “physician” is qualified to give “medical opinions” as a matter of law. 20 C.F.R. § 404.1527(a)(2). The
Commissioner is obligated to consider the medical opinions of a claimant’s treating physicians. 20 C.F.R.
§ 404.1527(c).

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The court does not make any finding on the merits of the plaintiff’s arguments that the record is
insufficiently developed or that the RFC is erroneous. It is entirely possible that the Commissioner will
decline to alter the RFC or the ultimate disability determination after considering the evidence of record in
accordance with relevant legal principles. As explained infra, the inclusion of opinion evidence from
physicians who are treating medical sources without an explanation from the Commissioner about the
weight assigned to those opinions is legal error in that it fails to provide this court with a sufficient record
to review the Commissioner’s conclusions of law.

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Pahl – whom plaintiff identifies as her treating orthopedic surgeon – which were in the
Administrative Record at the time of plaintiff’s hearing before the ALJ. (Doc. 12 at 9). Dr.
Pahl completed the functionality reports for the Hartford. (Doc. 16-8 at 2-8; Doc. 16-11).
Dr. Pahl’s functionality report (Doc. 16-8 at 2-8) is referenced by the ALJ; however, she
does not identify Dr. Pahl by name and does not discuss his status as plaintiff’s treating
physician.9 (Doc. 16-2 at 24). Likewise, the Appeals Council does not explain its rejection
of Dr. Pahl’s limitations contained within the new opinion evidence. (Doc. 16-2 at 2-4;
Doc. 16-11 at 3-8).
Plaintiff also provided to the Appeals Council a completed “questionnaire” by Dr.
Naheed that is dated June 4, 2012. (Doc. 16-4 at 10-20). In denying plaintiff’s request for
review, the Appeals Council “considered … the additional evidence” and “found no reason
to review the [ALJ’s] decision.” (Doc. 16-2 at 2-3). The Appeals Council did not indicate
whether it gave the opinion evidence supplied by a treating medical source substantial
weight, nor did it articulate good cause for assigning lesser weight.
The Appeals Council’s written denial is the Commissioner’s final word on the new
medical evidence supplied by the plaintiff. That evidence contains at least one opinion
from plaintiff’s treating physician, and the written denial is silent on what weight, if any,

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Without naming Dr. Pahl or indicating that he is a treating physician and a specialist, the ALJ states that
the plaintiff’s “physician limited her to light work duty” in 2012, and “[t]his is given appropriate weight,
as it is not inconsistent with my findings which are more restrictive, taking the overall record into account.”
(Doc. 16-2 at 24). In the exhibits cited by the ALJ to support this conclusion, Dr. Pahl indicates that plaintiff
is restricted to light work and that she has “lift/carry/push/pull” and “bending” limitations. (Doc. 16-8 at
2-4). Those limitations are not reflected in the RFC, and the Commissioner does not explain the reason for
their absence in light of Dr. Pahl’s opinions on those issues. In other words, the RFC is not based on
substantial evidence or in accord with proper legal standards because it is unclear that Dr. Pahl’s opinions
were given substantial weight.

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was given or any reasons for failing to assign substantial weight. The Appeals Council
also adopted the ALJ’s written decision as the Commissioner’s final determination;
however, the ALJ never had the opportunity to consider the new opinion evidence. Thus,
the record is devoid of information from which the court could determine whether proper
legal standards were employed with respect to the new opinion evidence before the Appeals
Council – i.e., that the new evidence was either given substantial weight or that good cause
exists for assigning of lesser weight. The lack of discussion on this point causes the
Commissioner’s final decision to run afoul of established Eleventh Circuit precedent and
20 C.F.R. § 404.1527(c)(2). See Phillips, Lewis, and MacGregor, supra.
The ALJ’s written decision provides a thorough discussion of Dr. Estock’s opinions,
which the ALJ assigns “great weight.” (Doc. 16-2 at 19-20). In contrast, the ALJ provides
very little insight regarding her judgment as to the opinion evidence provided by Dr. Pahl
and Dr. Naheed, plaintiff’s treating orthopedic surgeon and psychiatrist. The ALJ refers
to medical records and opinion evidence supplied by Dr. Pahl (Doc. 16-2 at 24), and the
written decision suffers from the same deficits as the Appeals Council’s denial of review
– i.e., there is no mention that Dr. Pahl is a treating medical source with an area of specialty
and no indication what weight the ALJ assigned to Dr. Pahl’s opinion evidence, or any
basis for assigning less than the substantial weight to which a treating physician with a
specialty is entitled.
As to Dr. Naheed, the ALJ refers to
an opinion … which is presumably from Dr. Naheed. It was tucked behind
an imaging report. The opinion indicates that the [plaintiff] can do no work.
However, it is unclear who it is actually from, and appears that the individual

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only saw the claimant twice anyway. I give this opinion little weight, noting
that there is little information referenced to support it.
(Doc. 16-2 at 25). This portion of the ALJ’s opinion is difficult to follow – the ALJ twice
admits that she is unsure of the source of the “opinion,” but, in contrast to that admission,
she makes a finding of fact that Dr. Naheed is the author, without explanation. That finding
is not supported by substantial evidence. The ALJ proceeds to discount the opinion on the
basis that “the individual only saw the [plaintiff] twice;” however, treatment notes in the
Administrative Record demonstrate that Dr. Naheed “saw” the plaintiff seven times
between February 23, 2012 and November 16, 2012. (Id.; Doc. 16-8 at 9-37).
In short, the discussion of the “Naheed” opinion, which may or may not be authored
by an acceptable medical source or a treating physician, is based on the ALJ’s conjecture,
which is not substantial evidence. The court reviewed the exhibit and is unable to determine
the author’s identity. (Doc. 16-7 at 61-63). Dr. Naheed’s name is not present in Exhibit
5F, but Dr. Pahl’s name appears on the first page of the “imaging report.” (Id.). Assuming
arguendo that Dr. Naheed is the author of the “Naheed” opinion, the ALJ’s written decision
does not meet the standards of MacGregor, Phillips, and Lewis, supra, in that there is
insufficient explanation for the ALJ’s failure to give the opinion substantial weight. Also,
the finding is not based on substantial evidence. An acknowledgement that Dr. Naheed
“only saw the claimant twice anyway,” which does not accurately characterize the evidence
showing seven office visits, is not good cause for discrediting a treating specialist’s opinion
in favor of Dr. Estock’s opinion – a non-examining, consultative physician who never saw
the plaintiff and who is not a specialist in the area of psychiatry.

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The ALJ’s thorough discussion of Dr. Estock’s opinions notwithstanding, the ALJ’s
written decision is not sufficiently developed as to the assignment of weight to plaintiff’s
treating physicians’ opinion evidence. Consequently, the decision is not in conformity with
correct legal standards and remand is appropriate.
In summary, it is not evident that the Appeals Council or the ALJ considered Dr.
Pahl’s or Dr. Naheed’s history of treating the plaintiff for her severe impairments, their
areas of specialization, or their status as the plaintiff’s treating physicians. See Wilcox v.
Comm’r, Soc. Sec. Admin., 442 F. App’x 438, 440 (11th Cir. 2011) (a treating physician’s
opinion testimony is entitled to substantial weight unless the Commissioner articulates
good cause for assigning lesser weight and “the opinions of specialists regarding medical
issues related to his area of specialty generally are given more weight than the opinions of
non-specialists”); Lewis, supra (the Commissioner must articulate adequate reasons for
failure to give a treating physician’s opinion substantial weight). This is error.
CONCLUSION
Accordingly, for the reasons discussed, the decision of the Commissioner will be
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) by separate judgment so
that the Commissioner can conduct additional proceedings consistent with this opinion.
DONE, on this the 31st day of March, 2017.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

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