Hill v. Berryhill

Filing 17

MEMORANDUM OPINION AND ORDER: Memorandum Opinion, the Court REVERSES and REMANDS the Commissioner's decision. A separate judgment will be entered. Signed by Honorable Judge Stephen Michael Doyle on 3/26/2019. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DAVID HILL,

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

CASE NO. 3:17cv00511-SMD

MEMORANDUM OPINION AND ORDER
David Hill (“Plaintiff”) applied for disability insurance benefits under Title II of the
Social Security Act in February 2014, alleging a disability date of August 27, 2013. (R.
110). Plaintiff’s application was initially denied in July 2014. Id. Plaintiff filed a written
request for a hearing, which was held in July 2015; following this hearing, the
Administrative Law Judge (“ALJ”) denied Plaintiff’s claim. (R. 110-118). Plaintiff
requested a review of the decision, which was granted, and the Appeals Council remanded
the case to the ALJ. (R. 125-27). The ALJ held a second hearing in January 2017, (R. 3067), and ultimately denied Plaintiff’s claim. (R. 10-19). The Appeals Council denied
Plaintiff’s second request for review. (R. 1-3). As a result, the ALJ’s decision became the
final decision of the Commissioner of Social Security (“Commissioner”). Id. Judicial
review proceeds pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). After careful
scrutiny of the record and briefs, for the reasons below, the Court concludes that the
Commissioner’s decision is to be REVERSED and REMANDED.
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I. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983).
“The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Substantial evidence is more than a
scintilla—i.e., the evidence must do more than merely create a suspicion of the existence
of a fact, and must include such relevant evidence as a reasonable person would accept as
adequate to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d
842 (1971)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982)).
If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)).
The Court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792
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F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “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) (quoting Bloodsworth, 703 F.2d at 1239).
There is no presumption that the Commissioner’s conclusions of law are valid, and
the Court may reverse the ALJ’s decision if it fails to provide sufficient reasoning to
determine that the Commissioner properly applied the law. Keeton v. Dep’t of Health and
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v. Sullivan, 936 F.2d
1143, 1145 (11th Cir. 1991)); Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991)
(quoting MacGregor, 786 F.2d at 1053).
II. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.

See 42 U.S.C. §

423(a). Applicants under DIB must prove “disability” within the meaning of the Social
Security Act. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§
404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is
unable to “[e]ngage 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), 1382c(a)(3)(A). A “physical or mental impairment”
is one resulting from anatomical, physiological, or psychological abnormalities which are
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demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs the below five-step, sequential
evaluation process to determine whether a claimant is entitled to benefits. See 20 C.F.R.
§§ 404.1520, 416.920 (2010).
(1)

Is the person presently unemployed?

(2)

Is the person’s impairment(s) severe?

(3)

Does the person’s impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?

(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 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).
The burden of proof rests on the claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants have established a prima facie case
of qualifying for disability once they meet their burden of proof on Steps 1 through 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 that the claimant can perform. Id.
To evaluate the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238-39. A claimant’s RFC is what he is
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still able to do despite his impairments and is based on all relevant medical and other
evidence. Id. The RFC can also 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 any jobs available in the national economy that
the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines (“grids”) or hear testimony from 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. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
III. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Plaintiff was thirty-four years old on the alleged onset date of August 27, 2013. (R.
91, 323). He has a twelfth-grade education. (R. 72). He had previously worked as a U.S.
Army Cavalry scout, a diesel engine mechanic, and a heavy truck driver. (R. 60).
Plaintiff’s alleged disability is due to post traumatic stress disorder (PTSD), traumatic brain
injury (TBI), right knee degenerative joint disease, lumbar degenerative disc disease &
spondylosis, right shoulder impingement, and sleep apnea. (R. at 431).
The ALJ found that Plaintiff has not engaged in substantial gainful activity since the
alleged onset date, and that Plaintiff has the following severe impairments: affective mood
disorder, anxiety disorder, lumber/thoracic spine disorder, right knee disorder, bilateral
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shoulder disorder, asthma, obesity, obstructive sleep apnea, insomnia, bilateral pes planus
deformity, and history of traumatic brain injury. (R. 12). The ALJ concluded, however,
that Plaintiff did not have an impairment or combination of impairments that met or
equaled the severity of a listed impairment. (R. 13). In coming to this conclusion, the ALJ
considered the evaluation reports and opinions of three doctors. (R. 13-14). The ALJ
found that Plaintiff “has the residual functional capacity to perform less than a full range
of light work as defined in 20 CFR 404.1567(b)” and found that Plaintiff can work as
follows:
[Plaintiff] can occasionally perform overhead reaching using his bilateral
upper extremities. He is unable to use his right lower extremity in operating
foot controls, and [Plaintiff] is unable to climb ladders, ropes, or scaffolds.
[Plaintiff] can occasionally climb stairs, and he can occasionally engage in
stooping, bending, crawling, and kneeling activities. He must avoid working
near workplace hazards, such as unprotected machinery or exposed heights.
[Plaintiff] must also avoid exposure to loud noises. [Plaintiff] must avoid
interaction with the public, and he is unable to perform complex tasks (only
unskilled work). [Plaintiff] may require use of a cane for assistance with
ambulation and balance on uneven terrain or for distance greater than 50
meters.
(R. 15). The ALJ found that Plaintiff could not perform any past relevant work, (R. 17),
but, considering his age, education, work experience, and residual functional capacity,
“there are jobs that exist in significant numbers in the national economy that [Plaintiff] can
perform.” (R. 18). Thus, the ALJ found Plaintiff not disabled. (R. 19).
IV. MEDICAL HISTORY
Plaintiff and/or his medical records were examined by four physicians. Dr. June
Cooley, Psy.D., first performed a psychological consultative examination on September
13, 2013. (R. 865). Dr. Cooley noted that Plaintiff experienced insomnia, nightmares,
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emotional detachment, emotional numbing, lack of motivation, decreased interest in leisure
activities, and social isolation; she further stated that the severity of these symptoms was
moderate. Id. Dr. Cooley also noted that Plaintiff’s speech and communication skills and
concentration abilities were normal, and that Plaintiff’s thought processes, ability to
understand direction, memory, abstract thinking, and judgment were good. (R. 867-68).
Dr. Cooley found that Plaintiff suffers from PTSD, which has resulted in Plaintiff’s
“impaired relationships and poor job performance.” (R. 869).
Dr. Scott Jay Stewart, Ph.D., also performed a consultative psychological
examination of Plaintiff on June 13, 2014. (R. 898). Dr. Stewart found Plaintiff unable to
relate with people and noted that Plaintiff appeared anxious and depressed during the
examination. (R. 898-900). Dr. Stewart also found that Plaintiff had mild deficits in
memory function, unimpaired abstraction abilities, an adequate “fund of general
information,” and grossly intact judgment. (R. 899). Dr. Stewart concluded that Plaintiff
suffers with PTSD, Major Depressive Disorder, and Cognitive Disorder Not Otherwise
Specified (“NOS”). (R. 902).
Robert Estock, M.D., a state consultative physician, reviewed Plaintiff’s medical
evidence in July 2014 and completed a Mental Residual Functional Capacity Assessment
(“MRFC”). (R. 101-03). He found that Plaintiff’s understanding and memory limitations,
concentration and persistence limitations, social interactions limitations, and adaptation
limitations were minor to moderate. (R. 101-2). He stated that Plaintiff could “understand,
remember, and complete simple tasks,” and could “maintain attention sufficiently to
complete simple 1-to-2 step tasks for periods of at least 2 hours, without the need for special
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supervision or extra work breaks.” (R. 102). He found that Plaintiff “could complete an
8-hour workday, provided all customary breaks from work are given” but advised that
Plaintiff needs “a flexible daily schedule in a well-spaced work setting.” (R. 103). Finally,
he stated that Plaintiff “can tolerate casual, non-intense interaction with member[s] of the
general public and co-workers” but that “[s]upervision and criticism should be supportive
and non-confrontational.” Id.
Finally, Dr. William D. King, M.D., performed a physical disability examination of
Plaintiff in July 2014. Dr. King found that Plaintiff had normal strength and tone in his
cervical and lumbosacral spines; could squat at 90 degrees; had a normal heel to toe walk
and a normal tandem walk; had normal motion in his feet and ankles; and had a normal
range of motion, strength, and tone in his knees. (R. 903-13).
The ALJ concluded, based on the doctors’ opinions, that Plaintiff did not “have an
impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1450.1525 and 404.1526).” (R. 13). The ALJ found that Plaintiff only has moderate
limitations because he can understand directions, his memory is within normal limits, and
he can handle daily activities. Id. Thus, the ALJ found that, although Plaintiff could not
perform any past relevant work (R. 17), “there are jobs that exist in significant numbers in
the national economy that [Plaintiff] can perform.” (R. 18).
In addition to the aforementioned medical opinions, the Veterans Administration
determined that Plaintiff was permanently disabled for a service-connected disability,
specifying 50% for headache syndrome; 10% for traumatic brain injury; 20% for left
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shoulder strain and impingement syndrome; 20% for right shoulder impingement
syndrome; 10% for lumbar degenerative disc disease; and 10% for right knee ACL tear
status post reconstruction with osteoarthritis. (R. 1000-01). The VA also afforded Plaintiff
a 100% disability rating for PTSD. (R. 1001).
V. PLAINTIFF’S ARGUMENTS
Plaintiff identifies the following two issues in his “Statement of the Issues:”
1) The Commissioner’s decision should be reversed because the ALJ granted great
weight to the medical opinions of Drs. Cooley and Stewart in which include more
restrictions and limitations than the ALJ found in her RFC finding.
2) The Commissioner’s decision should be reversed because the ALJ erred as a
matter of law by failing to assign the requisite “great weight” to the disability
determination reached by the United States Department of Veteran Affairs as
mandated in Brady v. Heckler, 724 F. 2d 914, 921 (11th Cir. 1984).
(Doc. 8) at 3.
VI. ANALYSIS
A. The ALJ erred by failing to include within Plaintiff’s RFC the limitations
stated by the examining psychologists’ opinions despite affording those
opinions great weight.
Plaintiff argues that the ALJ failed to properly consider the examining
psychologists’ opinions in formulating Plaintiff’s RFC despite affording those opinions
great weight. (Doc. 8) at 4. Specifically, Plaintiff argues that the ALJ failed to properly
explain why she did not include all of the impairments set forth by Drs. Cooley and Stewart
within Plaintiff’s RFC, and Plaintiff requests remand so that “all limitations identified by
Drs. Cooley and Stewart may be considered upon [Plaintiff’s] ability to work on a regular
and continuing basis.” Id. at 9.
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Dr. Cooley performed an examination of Plaintiff on September 13, 2013, and found
that Plaintiff, due to combat exposure from 1998-2013, suffers from depression, insomnia,
emotional issues, decreased motivation, and social isolation, which result in impaired
relationships and poor job performance. R. 865. Dr. Cooley also found that Plaintiff suffers
from PTSD, which causes irritability, outburst, impaired relationships, and poor job
performance, which result in reduced reliability and productivity. R. 869. However, Dr.
Cooley found Plaintiff’s speech and communication skills and concentration abilities
normal, and Plaintiff’s thought processes, ability to understand direction, memory, abstract
thinking, and judgment good. R. 867-68.
Similarly, Dr. Stewart found that Plaintiff has a difficult time relating to people and
has problems with memory and balance. R. 898-99. Dr. Stewart found Plaintiff’s mood to
be “anxious and depressed,” and noted that Plaintiff reported symptoms associated with
PTSD. R. 900. Further, Dr. Stewart found Plaintiff “to have limitations with the
interpersonal skills required to relate to others in a work setting.” R. 900. However, despite
these limitations, Dr. Stewart also found that Plaintiff was “fully able to manage his own
activity or daily living needs.” R. 900.
The ALJ ultimately concluded that, in relevant part, Plaintiff
has the residual functional capacity to perform less than a full range of light
work as defined in 20 CFR 404.1567(b). . . . The claimant must also avoid
exposure to loud noises. The claimant must avoid interaction with the public,
and he is unable to perform complex tasks (only unskilled type work)[.]
R. 15. Plaintiff contends that this finding is inconsistent with the opinions of Drs. Cooley
and Stewart, and that the ALJ committed legal error by failing to adequately explain why
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he found fewer restrictions and limitations than the doctors. (Doc. 8) at 8. Specifically,
Plaintiff argues that Dr. Cooley’s opinion that Plaintiff’s psychiatric symptoms caused
“occupational and social impairment with reduced reliability and productivity” and his
opinion that Plaintiff has “difficulty establishing and maintaining effective work/school
and social relationships because of depression, irritability and social isolation” are not
accounted for in the ALJ’s RFC finding. Id. Similarly, Plaintiff argues that Dr. Stewart’s
opinion that Plaintiff experiences “limitations with the interpersonal skills required to relate
to others in a work setting” is not accounted for in the ALJ’s RFC finding. Id.
Plaintiff cites Cox v. Astrue, Civil Action No. 1:11cv519-WC, 2012 WL 2445067
(M.D. Ala. June 27, 2012), for the proposition that an ALJ has a duty to express why she
deviates from the examining doctors’ opinions after giving great weight to their opinions.
Id. at 9. In Cox, this Court determined that a failure to properly explain the deviation from
an examining doctor’s opinion, which was afforded great weight, is an error that hinders
the reviewing court from “conduct[ing] a full review of the ALJ’s decision to determine
whether it is supported by substantial evidence.” 2012 WL 2445067, at *4.
The undersigned finds Plaintiff’s argument persuasive. In so concluding, the
undersigned first notes that the ALJ is ultimately responsible for determining a claimant’s
RFC, and she is not required to adopt wholesale a medical opinion to which she affords
great weight. Roberts v. Comm’r of Soc. Sec., No. 6:10-CV-930-Orl-DAB, 2012 WL
85172, at *3 n.3 (M.D. Fla. Jan. 11, 2012) (finding no error where the ALJ gave significant
weight to a medical opinion but did not incorporate all limitations from the opinion in the
RFC finding where there was no evidence that Plaintiff’s past work is precluded by these
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limitations). However, when a medical opinion is afforded great weight, the ALJ may not
reject unfavorable portions of the opinion when formulating a Plaintiff’s RFC without
providing sufficient reasoning for such rejection. See Barthol v. Astrue, Civil Action No.
1:08cv39-CSC, 2008 WL 5273113, at *6 (M.D. Ala. Dec. 18, 2008) (“The ALJ is not free
to simply ignore medical evidence, nor may the Commissioner pick and choose between
the records selecting those portions which support his ultimate conclusion. Therefore, the
court cannot conclude that the ALJ’s [ultimate conclusion] is supported by substantial
evidence.”); Sweat v. Berryhill, Civil Action No. 5:17-cv-52, 2018 WL 4043192, at *5
(S.D. Ga. Aug. 24, 2018) (holding that, where the ALJ gave a treating physician’s opinion
great weight, the ALJ was required provide non-speculative reasoning why portions of the
opinion were rejected); Smith v. Colvin, Civil Action No. 2:13-00275-N, 2014 WL 518057,
at *3 (S.D. Ala. Feb. 10, 2014) (stating that “[p]icking some restrictions [within in a
medical opinion] while rejecting others without explanation is clearly grounds to find that
an ALJ’s decision is not supported by substantial evidence”) (emphasis in original).
Here, the undersigned finds that the ALJ did not account for Dr. Cooley’s opinion
that Plaintiff’s psychiatric symptoms caused “occupational and social impairment with
reduced reliability and productivity” despite affording that opinion great weight. A review
of the ALJ’s entire opinion does not point to any particular evidence that contradicts that
opinion concerning Plaintiff’s reliability and productivity. To be sure, the ALJ does note
that Dr. Cooley found that Plaintiff “had not lost any time from duty due to any
psychological problem”; however, such a statement does not necessarily indicate to the
undersigned that Plaintiff, in the civilian work force, would prove reliable and productive.
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Further, the undersigned cannot conclude that the ALJ’s failure to include this
additional limitation, without proper justification, is harmless. During the hearing before
the ALJ, Plaintiff’s attorney inquired of the VE as to whether productivity and reliability
issues would affect Plaintiff’s ability to perform the jobs cited. R. 63-65. The VE affirmed
that productivity and reliability issues would indeed affect Plaintiff’s ability to maintain
employment, testifying specifically that the jobs referenced required “a certain amount of
quota or expectations within [an] eight-hour workday,” and that, if production was not met,
termination would occur. R. 63-65.
Accordingly, the undersigned finds that the ALJ’s failure to offer any explanation
in her apparent decision to discount Dr. Cooley’s limitation as to Plaintiff’s productivity
and reliability is not harmless error. On remand, the ALJ must explicitly consider and
explain the weight to be accorded to Dr. Cooley’s medical opinion. If the opinion is to be
afforded great weight, the ALJ must include Dr. Cooley’s opinion that Plaintiff’s
psychological symptoms translate into reduced reliability and productivity in the
workplace within Plaintiff’s RFC, or the ALJ must adequately explain why that opinion is
excluded.
VIII. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the
Court REVERSES and REMANDS the Commissioner’s decision.
A separate judgment will be entered.

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DONE this 26th day of March, 2019.
/s/ Stephen Doyle
UNITED STATES MAGISTRATE JUDGE

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