Brock v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 4/12/12. (ASL)
2012 Apr-12 PM 03:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
LISA DALENA BROCK,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CASE NO. CV 11-J-2856-S
This matter is before the court on the record. This court has jurisdiction
pursuant to 42 U.S.C. § 405. The plaintiff is seeking reversal or remand of a final
decision of the Commissioner. All administrative remedies have been exhausted.
Plaintiff applied for Supplemental Security Income benefits on April 22, 2009,
alleging disability beginning March 1, 2008, due to problems related to hepatitis C
and bipolar disorder (R. 40-41, 55, 116).1 The administrative law judge (“ALJ”)
denied plaintiff’s application on January 26, 2011 (R. 14-22). The Appeals Council
denied her request for review on June 15, 2011 (R. 3-5). The ALJ’s decision thus
Plaintiff’s application for benefits is not included in the record; only the Disability
Determination Transmittal is included. See R. at 55.
became the final order of the Commissioner. See 42 U.S.C. § 405(g). This action for
judicial review of the agency action followed (doc. 1). The court has considered the
entire record and whether the decision of the ALJ is supported by substantial
evidence. For the reasons set forth below, the decision of the Commissioner is due to
Plaintiff was 40 years old at the time of her hearing, and has a high school
education plus “about half a year” of community college (R. 35-36). She has one
child, a young daughter; the daughter lives with her father, and the plaintiff has
custody and assists with child care (R. 33-34). Plaintiff has no significant past
relevant work experience, as testified to by the Vocational Expert (“VE”) present at
the hearing, and her lifetime income is de minimis (R. 49-50).2
Plaintiff testified that she has “been labeled bipolar,” and listed several
medications she takes to help with the associated symptoms (R. 40, 166). She
complains of getting “very sick,” with severe headaches, vomiting, mood swings,
difficulty remembering things, and depression such that she “do[esn’t] make it out of
In the Disability Report, plaintiff wrote that the longest job she has held was as a
“contractor clean up person,” for three months in 1998 (R. 117). She worked a 40-hour week at a
rate of pay of $9.00/hour (R. 117). Plaintiff also lists a few other short-term jobs, held for less
than two months each, over a decade ago. See R. at 129-37.
bed” (R. 40-41). She also complains of “degeneration of the back,” which causes her
to fall down when she gets out of bed (R. 40). She claims her medicine causes her to
“get to where [she] won’t eat” and become “so weak [she] can’t move” because she
has no appetite, and that she has had significant weight fluctuations (R. 41-42).
Plaintiff claims that she is not able to work because of her mental health, as she
“couldn’t deal with the public and people in general” (R. 46).
In her Disability
Report, plaintiff wrote that her ability to work is limited by bi-polar disorder, hepatitis
C, and nerve disorder, and that she was “exposed to hep a-b” (R. 116).3 She wrote
that she has “poor vision; severe pain in side; cyst on ovaries; extreme nausea; severe
panic attacks; severe mood swings; fatigue; anxiety; difficulty speaking clearly; [and]
depression” (R. 116). In her Function Report, she wrote that she has “no interest” in
brushing her teeth anymore, and that she must sometimes be reminded that she needs
to bathe (R. 139-40). Plaintiff says she has “no bills,” no savings account and no
checking account (R. 141).
Plaintiff is a former smoker and does not drink (R. 34). Plaintiff has a criminal
record, and has been jailed on several occasions for DUI, possession of drug
paraphernalia, public intoxication, and failure to appear (R. 36). The record is replete
with references to plaintiff’s prior drug abuse (see, e.g., R. 198, 205). Plaintiff claims
Plaintiff subsequently tested negative for hepatitis A or hepatitis B. See R. at 181-85.
that she has not had any drug problems since completing rehabilitation therapy in
2006 (R. 47; see also R. at 150-51).
Plaintiff’s medical records begin with a March 19, 2008, visit to Dr. Jason
Hatfield, during which visit plaintiff complained of lumpy breasts (R. 187). Plaintiff’s
diagnostic mammogram, taken several days before, was negative (R. 187-92).
Plaintiff has undergone three prior breast augmentation surgeries and rhinoplasty (R.
191, 280). Dr. Hatfield noted in plaintiff’s records that she had contracted hepatitis
C from an ex-boyfriend (R. 192). This is verified by records from a December 19,
2008, visit to a Dr. R. K. Sehgal, which show a positive hepatitis C test and negative
hepatitis A and B tests (R. 181-85). Dr. Sehgal listed plaintiff’s current medications
on that date, but his writing is illegible (R. 181).
On January 29, 2009, plaintiff followed up with Dr. Sehgal (R. 180). He listed
her medications on that date as Lithium, 300 mg/twice daily, and Xanax, 0.5 mg/twice
daily when necessary (R. 180).4 Plaintiff followed up again on February 27, 2009 (R.
179); March 27, 2009, where Dr. Sehgal noted that plaintiff had a positive pregnancy
test (R. 178); April 24, 2009, where Dr. Sehgal noted that plaintiff was eight weeks
Lithium is a drug used to treat bipolar disorder and mania. See PHYSICIANS’ DESK
REFERENCE 123 (PDR Network, LLC, 2011). Xanax is a brand name of Alprazolam, a generic
drug used to treat anxiety and panic disorder. See PHYSICIANS’ DESK REFERENCE 117 (PDR
Network, LLC, 2011).
pregnant with an estimated due date of December 1, 2009 (R. 177); and May 22,
2009, where plaintiff stated she had had another panic attack (R. 176). Plaintiff’s
medication regimen remained the same throughout this period (R. 175-85).
On February 23, 2009, plaintiff was examined for further evaluation of a
positive hepatitis C antibody (R. 389). Plaintiff has tested positive for hepatitis C in
March of 2008 (R. 390). Plaintiff was advised to stop drinking and smoking, and that
further treatment would begin three months later, upon receipt and evaluation of
further test results (R. 390). Once plaintiff learned she was pregnant, her doctors
informed her she would not be treated for hepatitis C until after she delivered her
baby and began breast feeding (R. 391).
Plaintiff’s obstetric records are also included in the record. See R. at 276-391.
While they mostly pertain to pregnancy and the health of her baby, there are a few
items of note. On April 15, 2009, plaintiff’s medication list included a flu vaccine and
“Valtrex @ 36 wks.” (R. 278).5 Plaintiff is also noted to have a history of genital
herpes and trichomoniasis, a sexually transmitted infection (R. 279). A psychosocial
assessment also performed April 15, 2009, indicates that plaintiff reported substance
abuse problems from 1998-2002, following a car wreck, and that she was treated with
Valtrex a brand name of Valacyclovir, a generic drug used to treat herpes and shingles.
See PHYSICIANS’ DESK REFERENCE 127 (PDR Network, LLC, 2011).
methadone (R. 327). Plaintiff also reported she had been diagnosed with bi-polar
disorder,6 and was still taking Lithium and Xanax, as previously prescribed (R. 327).
A prenatal summary completed November 10, 2009, indicates that plaintiff has
bipolar disease, hepatitis C, herpes simplex vulvitis, seizure disorder, was “rubella
non immune,” and was anemic (R. 344-45). On June 22, 2009, plaintiff was
prescribed Phenergan and Diflucan (R. 370).7 The latter was prescribed to treat a
yeast infection (R. 362, 370). Numerous subsequent prenatal summaries reveal the
same information (R. 368-69, 363-65, 361-62, 358-59, 356-57, 353-54, 350-51, 34243, 339-40, 335-36). Physician notes from a follow-up on January 11, 2010, indicate
that plaintiff reported she had begun taking Abilify, and was “doing well” (R. 323).8
On June 18, 2009, Dr. Elvadas Radzevicius conducted a psychiatric evaluation
of plaintiff for the Disability Determination Service (R. 194-99). His assessment was
that plaintiff had mood swings, but that these “fluctuations” were “better . . . on
The record does not contain any documents which indicate when plaintiff received this
diagnosis; however, numerous physicians who have either examined plaintiff or evaluated her
case have noted that she is bipolar and that she takes medicine to treat bipolar disorder, such that
this diagnosis appears to be confirmed. See, e.g., R. at 213, 327, 344-45.
Phenergan is a brand name of Promethazine Hydrochloride, a drug used in the treatment
of nausea and vomiting. See PHYSICIANS’ DESK REFERENCE 126 (PDR Network, LLC, 2011).
Diflucan is a brand name of Fluconazole, a generic drug used to treat fungal infections. See
PHYSICIANS’ DESK REFERENCE 120 (PDR Network, LLC, 2011).
Abilify is a brand name of Aripiprazole, an anti-depressant used to treat symptoms of
schizophrenia, depression and bi-polar disorder. See
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000221/ (last visited March 26, 2012).
med[icine]” (R. 198). He gave her a Global Assessment of Functioning (“GAF”)
score of 55 (R. 199).9 On July 1, 2009, Dr. Radzevicius indicated on a “Request for
Medical Information” form from the Alabama Food Stamp Program that plaintiff was
not mentally and physically able to work due to bipolar affective disorder (R. 193,
Plaintiff was examined by neurologist Dr. Alfred Paige on June 29, 2009,
complaining of a history of seizures (R. 205-208, 384-85). Plaintiff reported a history
of head trauma with loss of consciousness (R. 384). A testing plan was implemented,
and a follow-up advised for six months later (R. 205, 208, 385).
A medical evaluation provided by Dr. Robert H. Heilpern on August 3, 2009,
includes the following statement: “ADL’s completed by claimant indicate limitations
due to mental conditions and current pregnancy. No significant physical limitations
found in ADL form. Claim Rated 02-Not Severe Impairment” (R. 209).
A “Psychiatric Review Technique” form (R. 210-23) filled out by Dr. Robert
Estock on August 3, 2009, listed plaintiff as possessing mild limitations restricting
activities of daily living and moderate limitations with respect to difficulties in
maintaining social functioning and maintaining concentration, persistence, or pace
This score falls within the GAF bracket of 60-51, which is associated with “Moderate
Symptoms & Impairments.” See R. at 269.
(R. 220). Dr. Estock noted that plaintiff was “[s]table on med[ication]” and that
despite the conclusions of Dr. Radzevicius that plaintiff is mentally and physically
unable to work, the “objective evidence on file does not support a permanent
disability to the level described in the above statements” (R. 222). He also concluded
that plaintiff’s “statements in regards to [sic] her functional limitations are considered
to be partially credible” (R. 222). Dr. Estock further listed numerous moderate
limitations in a number of categories on plaintiff’s Mental Residual Functional
Capacity Assessment (R. 224-27), with the only “marked” limitation being in
plaintiff’s ability to carry out detailed instructions (R. 224).
Following a psychiatric exam by a Dr. Wolfram Glaser on October 15, 2009,
plaintiff was given a GAF score of 50,10 and noted to be at risk for committing acts
of violence (R. 234-35). Dr. Glaser noted that plaintiff has a history of sexual abuse
and brain trauma (R. 234).11 At a follow-up appointment on November 5, 2009, Dr.
Glaser took plaintiff off Lithium and elected to put her on Zyprexa, 2.5 mg/daily at
bedtime (R. 230).12 At a follow-up on December 16, 2009, Dr. Glaser noted that
This score falls within the GAF bracket of 50-41, which is associated with “Moderately
Severe Symptoms & Impairments.” See R. at 269.
Plaintiff told Dr. Glaser that she had been raped twice (R. 234).
Zyprexa is a brand name of Olanzapine, a generic drug used to treat symptoms of
schizophrenia and bipolar disorder. See
HTTP://WWW.NCBI.NLM.NIH.GOV/PUBMEDHEALTH/PMH0000161/ (last visited March 26, 2012).
plaintiff appeared “stable” on her new medication (R. 229). Plaintiff was also
prescribed Abilify, 5 mg/daily in the morning, during that visit,13 in addition to
continuing to take Zyprexa and Xanax (R. 229). At plaintiff’s subsequent follow-up
on February 9, 2010, plaintiff was prescribed Desyrel, 150 mg/as needed, for
insomnia (R. 274). Plaintiff reported “good results” from medicine up to that point
Plaintiff followed up again on April 8, 2010 (R. 267). Dr. Glaser noted plaintiff
had been “drooling for a couple of months” from the medication, that plaintiff “has
significant anxiety,” and “[t]he potential for depression is significant” (R. 267). One
month later, on May 10, 2010, Dr. Glaser noted that plaintiff “has begun to feel quite
depressed, and has lost her appetite,” that her sleep had been “suboptimal,” and that
she had lost a “great deal of w[eight] and is dysphoric” (R. 265). In addition to the
medication she was then taking (Xanax, Abilify, Desyrel, and Zyprexa) plaintiff was
prescribed Zoloft, 50 mg/daily.14 Following up a month later, on June 3, 2010, Dr.
Glaser noted that plaintiff was “much improved” (R. 264). His notes indicate she was
no longer taking Abilify (R. 264). Her progress was sustained on July 8, 2010, though
Abilify is a brand name of Aripiprazole, an anti-depressant used to treat symptoms of
schizophrenia, depression and bi-polar disorder. See
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000221/ (last visited March 26, 2012).
Zoloft is a brand name of Sertraline, a generic drug used to treat anxiety and
depression. See PHYSICIANS’ DESK REFERENCE 126 (PDR Network, LLC, 2011).
Dr. Glaser noted that “[p]roblematic side effects [from the medication] are evident”
(R. 263).15 She was also prescribed Seroquel, 100 mg/daily (R. 263).16 At a follow-up
on September 16, 2010, Dr. Glaser noted that plaintiff seemed to be doing worse, and
had reported “variable sleep, nightsweats, and [morning] headaches” (R. 262).
Plaintiff received preliminary tests in preparation for treatment of her hepatitis
C in February 2010 (R. 396-98), and on February 22, 2010, was listed as a “candidate
for treatment” by Dr. Donald Marks (R. 408). The next available records indicate that
on May 3, 2010, plaintiff had begun taking a host of medications as treatment for
hepatitis C, and that plaintiff was “stable” on treatment (R. 407). She continued to
be “stable” on June 7, 2010 (R. 406). A progress note from July 12, 2010, indicates
that “no dosage adj[ustment]” was “needed yet” (R. 403). On August 9, 2010, and at
several follow-up visits through November 8, 2010, plaintiff was noted to be “stable
on treatment” or “stable on med[ication]” (R. 402, 400, 417-419, 422). The records
indicate that plaintiff was experiencing side effects such as fatigue and myalgia (R.
402, 400, 417-19, 422). Notes from a diagnostic imaging report reviewed on
December 6, 2010, indicate that plaintiff continued to exhibit “[n]o significant
It was unclear if Dr. Glaser was referring to medications plaintiff was taking for her
bipolar disorder or medications she was taking as treatment for hepatitis C (discussed infra).
Seroquel is a brand name of Quetiapine, a generic drug used to treat or prevent episodes
of mania or depression in individuals with bipolar disorder. See
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001030/ (last visited March 26, 2012).
abnormalities” as a result of her hepatitis C treatment (R. 410), and she continued to
be “stable” (R. 415).
On June 24, 2010, plaintiff was examined by Dr. Carol Leitner for
complications due to a deflated left breast implant (R. 394-95). Notes from
subsequent physician visits indicate that the implant was later determined to be
“ruptured” (R. 255-56), and surgery to remove the implants was discussed at an
appointment on September 23, 2010 (R. 252, 399). Removal was scheduled for
October 11, 2010 (R. 423). There are no records pertaining to this surgery in the
record; however, in the notes for an unrelated physician visit on October 22, 2010,
for ear pain, a Dr. Kent Frost noted that plaintiff “had breast augmentation 9 days ago
with complaints of some pain at the site of stitches” (R. 425).
On November 9, 2010, plaintiff was evaluated by Dr. Sular Mansur for back
pain (R. 411). Tests revealed “[s]cattered early degenerative disc disease and minimal
facet changes. No focal disc herniation or protrusion, central nor foraminal stenoses
At the hearing, the VE testified that plaintiff has almost no past relevant work
experience, at most “[b]rief periods of employment anywhere from three or four days
up to two months,” mostly “unskilled work . . . light work. Individually, it doesn’t
appear to be past relevant work or even collectively” (R. 49-50). The ALJ posed
several hypothetical questions to the VE regarding a hypothetical individual with
symptoms comparable to plaintiff’s. First, the ALJ assumed an individual with
plaintiff’s age, education, and professional background who is capable of performing
work at the light level of exertion that does not require “the introduction of work in
which contact with the general public or coworkers was frequent” (R. 50). The VE
testified that such individual could perform work such as cleaning jobs, “material
handling jobs,” and sorting jobs (R. 50-51). The ALJ’s next hypothetical was mostly
inaudible and so is not present in the record, but in response the VE testified that
there would be jobs at the sedentary level that the hypothetical individual could
perform, such as “bench and table work” (R. 51). Finally, when the ALJ asked if
plaintiff herself, assuming all her testimony to be credible and accurate, could
perform any work, the VE replied in the negative (R. 51). He stated that “both nonexertionally the psychological factors [plaintiff] indicated” and “the nonpsychological factors, the fatigue, . . . the inability to sustain activity for even two
hour increments to put together eight hours . . . a day in any combination of work”
would limit plaintiff’s activity, and that the psychological factors such as “not being
able to tolerate other people, not being able to even function within her own home .
. . would certainly suggest an eight-hour workday in a competitive work environment
couldn’t be tolerated” (R. 51-52). The VE noted that treatment notes by one of
plaintiff’s treating physicians supported his conclusions (R. 52-53).
Standard of Review
In a Social Security case, the initial burden of establishing disability is on the
claimant, who must prove that due to a mental or physical impairment he is unable
to perform his previous work. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
If the claimant is successful, the burden shifts to the Commissioner to prove that the
claimant can perform some other type of work existing in the national economy. Id.
This court’s review of the factual findings in disability cases is limited to
determining whether the record contains substantial evidence to support the ALJ’s
findings and whether the correct legal standards were applied. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971); Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990). “Substantial evidence” is generally defined as “such relevant
evidence as a reasonable mind would accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
This court also must be satisfied that the decision of the Commissioner is
grounded in the proper application of the appropriate legal standards. McRoberts v.
Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Bridges v. Bowen, 815 F.2d 622, 624
(11th Cir. 1987); Davis v. Shalala, 985 F.2d 528 (11th Cir. 1993). No presumption
of correctness applies to the Commissioner’s conclusions of law, including the
determination of the proper standard to be applied in reviewing claims. Brown v.
Sullivan, 92 F.2d 1233, 1235 (11th Cir. 1991); Corneliuis v. Sullivan, 936 F.2d 1143,
1145 (11th Cir. 1991). Furthermore, the Commissioner’s “failure to . . . provide the
reviewing court with sufficient reasoning for determining that the proper legal
analysis has been conducted mandates reversal.” Cornelius, 936 F.2d at 1145-46.
When making a disability determination, the Commissioner must, absent good cause
to the contrary, accord substantial or considerable weight to the treating physician’s
opinion as against the opinions of other physicians. Lamb v. Bowen, 847 F.2d 698,
703 (11th Cir. 1988); Walker, 826 F.2d at 1000.
In this case, the ALJ found that plaintiff has the severe impairments of bipolar
disorder, hepatitis C, and low back pain (R. 16). He then denied the plaintiff benefits,
finding that her mental impairment does not “meet or medically equal” the so-called
“Paragraph B” criteria, listed in 20 CFR Part 404, Subpart P, Appendix 1, and that
“no treating, examining or reviewing physician has suggested the existence of any
impairment or combination of impairments” that would meet the criteria (R. 16). As
the ALJ summarized, to satisfy the relevant criteria, the mental impairment “must
result in at least two of the following: marked restriction of activities of daily living;
marked difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means more than
moderate but less than extreme.” (R. 16). The ALJ found that in activities of daily
living, plaintiff has “no more than mild restriction”; in social functioning, she has “no
more than moderate difficulties”; with regard to concentration, persistence, or pace,
she has “no more than moderate difficulties”; and with regard to episodes of
decompensation, she has experienced none of “extended duration” (R. 17).
Accordingly, “[b]ecause [plaintiff’s] mental impairment does not cause at least two
‘marked’ limitations or one ‘marked’ limitation and ‘repeated’ episodes of
decompensation, each of extended duration,” the relevant criteria “are not satisfied”
(R. 17).The ALJ found that plaintiff’s impairment “could reasonably be expected to
cause the alleged symptoms,” but that her “statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with” the residual capacity assessment (R. 18). He concluded that
plaintiff has the residual functional capacity to perform “light work . . . that allows
for unskilled, simple work tasks and no production quotas,” provided that “contact
with the general public and co-workers must be brief and casual” and that plaintiff
“is also restricted from working around unprotected heights, and . . . avoid[s] the
hazards of moving machinery” (R. 18).
The ALJ’s findings are simply not supported by substantial evidence; in fact,
they appear to contradict the weight of substantial evidence, which the ALJ appears
mostly to have discounted. The Eleventh Circuit Court of Appeals has stated that the
opinion of a treating physician is to be given substantial weight in determining
disability. See Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986); Parker v.
Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986); Spencer on behalf of Spencer v.
Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985). Absent good cause to the contrary,
the Commissioner must accord substantial or considerable weight to the treating
physician’s opinion. See Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988); Walker
v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987); Sharfarz v. Bowen, 825 F.2d 278, 279
(11th Cir. 1987); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
Here, plaintiff’s treating psychiatrist, Dr. Evaldas Radzevicius, indicated on
July 6, 2009, that Plaintiff was permanently disabled due to bipolar affective disorder
(R. 193, 201). On September 20, 2010, Dr. Radzevicius indicated that plaintiff would
have a “marked” impairment of ability to respond to customary work pressures. (R.
258). The vocational expert present at plaintiff’s hearing testified that with such a
limitation, plaintiff would be incapable of any work-related activities (R. 52-53). Dr.
Radzevicius’s opinion is supported by his treatment notes, which indicate ongoing
treatment for bipolar affective disorder with symptoms including panic attack
episodes, mood swings, decreased sleep, depression, and impaired and poor
concentration (R. 196-199). If the ALJ had given this opinion proper weight as
dictated by the Eleventh Circuit, he would have found plaintiff disabled due to
plaintiff’s impairments. However, as noted above, the ALJ found that “[t]hat portion
of [Dr. Radzevicius’s] opinion finding a ‘marked’ limitation is without substantial
support of the other evidence of record,” and accorded his diagnosis “little weight”
(R. 20). The ALJ also intimated that Dr. Radzevicius’s opinion is to be given limited
weight because it goes to the issue of disability, which is an issue “reserved to the
Commissioner” (R. 20).
While it is true that the Social Security Administration reserves to itself the
issue of “disability” (See Social Security Ruling 96-5p), it has also specifically stated
that opinions from any medical source about issues reserved to the Commissioner
must never be ignored, even in the absence of clarity: “For treating sources, the rules
require that we make every reasonable effort to recontact such sources for
clarification when they provide opinions on issues reserved to the Commissioner and
the bases for such opinions are not clear to us.” Thus, an ALJ may not simply dismiss
a treating opinion at his whim. Dr. Radzevicius’s opinion is fully supported by the
evidence of record. If the ALJ had doubts as to the accuracy of Dr. Radzevicius’s
diagnosis, the regulations make clear he should have recontacted Dr. Radzevicius
rather than dismiss his opinion to the detriment of plaintiff.
Further, the ALJ’s conclusion that the Plaintiff’s hepatitis C is “stable” and
thus not of a disabling level is inconsistent with the medical evidence of record.
Throughout the treatment records from Cooper Green Mercy Hospital there is
documentation of weakness, fatigue, dyspnea, easy fatigability, depression, and
anxiety. See R. at 237-255. The Plaintiff started Interferon treatment for hepatitis C
in April 2010 (R. 237, 408), but in October and November 2010 was still observed
experiencing the same symptoms described above (R. 417-422). She was described
on November 4, 2010, as experiencing fatigue and being “ill appearing” (R. 418).
Though her hepatitis C was described as “stable” on November 8, 2010, she was
described on December 6, 2010, precisely one month before hearing, as experiencing
swollen tongue, weakness/fatigue, headache, myalgia, arthralgia, constipation, easy
bruising, depression, and cognitive problems including decreased memory (R. 415).
The ALJ may reject the opinion of any physician when the evidence supports
a contrary conclusion. Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983).
The ALJ is required, however, to state with particularity the weight he gives to
different medical opinions and the reasons why. Sharfarz v. Bowen, 825 F.2d 278,
279 (11th Cir. 1987).
Absent “good cause,” an ALJ is to give the medical opinions of treating
physicians “substantial or considerable weight.” Lewis, 125 F.2d at
1440; see also 20 C.F.R. §§ 404.1527(d)(1)-(2). Good cause exists
“when the: (1) treating physician’s opinion was not bolstered by
evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records.” Phillips, 357 F.2d at 1241. With good cause, an
ALJ may disregard a treating physician’s opinion, but he “must clearly
articulate [the] reasons” for doing so. Id. at 1240-41.
Winschel v. Comm’r of Soc. Security, 631 F.3d 1176, 1179 (11th Cir. 2011). In short,
“good cause” exists if the opinion is wholly conclusory, unsupported by the objective
medical evidence in the record, inconsistent within itself, or appears to be based
primarily on the patient’s subjective complaints. Edwards v. Sullivan, 937 F.2d 580,
583 (11th Cir. 1991); see also Crawford v. Comm’r of Soc. Security, 363 F.3d 1155,
1159-60 (11th Cir. 2004); Lewis, 125 F.3d at 1440.
The ALJ here did not have good cause for disregarding the treating physicians’
opinions. No medical evidence contradicts plaintiff’s psychiatrist’s conclusions;
indeed, with respect to plaintiff’s history of bipolar disorder, the ALJ improperly
dismissed the only opinion evidence from a treating or examining source contained
in the claim file. With respect to plaintiff’s hepatitis C, the substantive medical
evidence of record, including numerous examples of plaintiff’s symptoms failing to
improve despite months of treatment, is directly contrary to the ALJ’s conclusion that
plaintiff’s hepatitis C is “stable.” Even the VE testified that in a hypothetical scenario
involving an individual with symptoms identical to plaintiff, “an eight-hour workday
in a competitive work environment couldn’t be tolerated” (R. 51-52).
In light of these considerations, the court finds the record devoid of substantial
evidence to support the decision of the ALJ. 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.”
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Before the court in this
case are multiple medical opinions concerning the nature, origins, and severity of
plaintiff’s mental disability due to chronic bipolar disorder, from which the record
demonstrates she has suffered for decades, as well as plaintiff’s debilitating hepatitis,
which has largely been unresponsive to treatment. By inferring that plaintiff was able
to work from his selective review of the evidence, the ALJ substituted his opinion for
that of all of the medical reports in the file, which taken together establish that
plaintiff is indeed disabled.
Based on the foregoing, the court is of the opinion that the decision by the ALJ
was not supported by substantial evidence, and therefore the decision of the
Commissioner must be REVERSED and this case REMANDED for the calculation
of benefits to which plaintiff is entitled. The court shall do so by separate order.
DONE and ORDERED the 12th day of April 2012.
INGE PRYTZ JOHNSON
U.S. DISTRICT JUDGE
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