Boyd v. Social Security Administration et al

Filing 10

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/2/2013. (JLC)

FILED
2013 Aug-02 PM 12:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CONNIE COLETTE BOYD,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 2:12-CV-0335-VEH
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MEMORANDUM OPINION1
Plaintiff Connie Colette Boyd (“Ms. Boyd”) brings this action under 42 U.S.C.
§ 405(g), § 205(g) of the Social Security Act. She seeks review of a final adverse
decision

of

the

Commissioner of

the Social

Security Administration

(“Commissioner”), who denied her application Supplemental Security Income

1

The court notes that on February 14, 2013, Carolyn W. Colvin was named the Acting
Commissioner of the Social Security Administration on February 14, 2013. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”). Under 42 U.S.C. § 405(g), “[a]ny
action instituted in accordance with this subsection shall survive notwithstanding any change in the
person occupying the officer of Commissioner of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil Procedure,
the court has substituted Carolyn W. Colvin for Michael Astrue in the case caption above and
HEREBY DIRECTS the clerk to do the same party substitution on CM/ECF.

(“SSI”).2 Ms. Boyd timely pursued and exhausted her administrative remedies
available before the Commissioner. The case is thus ripe for review under 42 U.S.C.
§ 405(g).3
FACTUAL AND PROCEDURAL HISTORY
Ms. Boyd was forty-seven years old at the time of her hearing before the
Administrative Law Judge (“ALJ”). (Tr. 29). She has completed high school. (Tr.
30). Her past work experiences include employment as a cleaner and supervisor. (Tr.
29). She claims she became disabled on March 31, 2007, due to HIV, depression,
back pain, loss of teeth, difficulty using arms, and lack of energy. (Tr. 65, 85, 90).
Her last period of work ended on March 31, 2007. (Tr. 90).
On September 2, 2008, Ms. Boyd protectively filed a Title XVI application for
SSI. (Tr. 85). On April 16, 2009, the Commissioner initially denied this claim. (Tr.
33-35). Ms. Boyd timely filed a written request for a hearing on June 8, 2009. (Tr.
36). The ALJ conducted a hearing on the matter on September 22, 2010. (Tr. 41771). On November 16, 2010, the ALJ issued her opinion concluding Ms. Boyd was

2

In general, the legal standards applied are the same regardless of whether a claimant seeks
SSI or Disability Insurance Benefits (“DIB”). However, separate, parallel statutes and regulations
exist for SSI and DIB claims. Therefore, citations in this opinion should be considered to refer to
the appropriate parallel provision as context dictates. The same applies to citations of statutes or
regulations found in quoted court decisions.
3

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
2

not disabled and denying her benefits. (Tr. 14-31). Ms. Boyd timely petitioned the
Appeals Council (“AC”) to review the decision on February 28, 2011. (Tr. 411-16).
On December 2, 2011, the Appeals Council issued a denial of review on her claim.
(Tr. 5-8).
Ms. Boyd filed a Complaint with this court on January 31, 2012, seeking
review of the Commissioner’s determination. (Doc. 1). With the parties having fully
briefed the matter, the court has carefully considered the parties’ arguments and the
record, and for the reasons stated below, reverses the Commissioner’s denial of
benefits, and remands the case for further development and consideration.4
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
4

The undersigned has rendered several other comparable decisions which have reversed the
Commissioner due to an underdeveloped record and/or an inadequately supported residual functional
capacity (“RFC”) determination from which the framework, analysis, and disposition of this case
persuasively flow. See, e.g., Stewart v. Astrue, No. 5:11-CV-2103-VEH, (Docs. 10, 11) (N.D. Ala.
May 14, 20120) (reversing and remanding when RFC finding is not supported by substantial
evidence); Howard v. Astrue, No. 3:10-CV-527-VEH, (Docs. 15, 16) (Dec. 16, 2010) (same);
Mahaley v. Astrue, No. 5:09-CV-0347-VEH, (Docs. 12, 13) (N.D. Ala. Feb. 18, 2010) (same);
Glover v. Astrue, No. 3:09-CV-0033-VEH, (Docs. 15, 16) (N.D. Ala. Mar. 4, 2010) (same).
3

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.
This court must uphold factual findings that are supported by substantial
evidence. However, 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).
STATUTORY AND REGULATORY FRAMEWORK
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.5 The Regulations define “disabled” as
“the inability to do any substantial gainful activity by reason of any medically

5

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499, current through July 11, 2013.
4

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” which “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:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
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 formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (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
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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.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After consideration of the entire record, the ALJ made the following findings
of fact and conclusions of law:
1.

Ms. Boyd has not engaged in substantial gainful activity since September 2,
2008, the application date. (Tr. 19).

2.

Ms. Boyd has the following severe impairments: HIV, bipolar disorder,
peripheral neuropathy, hepatitis C, arthritis, obesity and hypertension. Id.

3.

Ms. Boyd does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 21).

4.

The ALJ found that Ms. Boyd has the residual functional capacity to perform
sedentary work as defined in 20 CFR 416.967(a) except she can occasionally
climb stairs or ramps, but never ladders, ropes or scaffolds. (Tr. 24). Ms. Boyd
can occasionally balance, stoop and kneel; but never crouch or crawl. Id. She
should avoid exposure to hazardous conditions such as heights and moving
machinery. Id. Ms. Boyd is also limited to repetitive, routine tasks. Id. Work
place changes should be infrequent and introduced gradually. Id. She can
perform work that needs little or no judgment and she can make simple, workrelated decisions. Id. Ms. Boyd can have occasional, casual interaction with
the public, and also occasional interaction with co-workers and supervisors.
Id. She is able to sustain concentration and attention for two hours at one time
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with normal breaks throughout an eight-hour day. (Tr. 25).
5.

Ms. Boyd is unable to perform any past relevant work. (Tr. 29).

6.

Ms. Boyd was 45 years old, which is defined as a younger individual age 4549, on the date the application was filed. Id.

7.

Ms. Boyd has at least a high school education and is able to communicate in
English. (Tr. 30).

8.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferable
job skills. Id.

9.

Considering Ms. Boyd’s age, education, work experience, and residual
functional capacity, the ALJ found that there are jobs that exist in significant
numbers in the national economy that the claimant can perform. Id.
Accordingly, the ALJ concluded that Ms. Boyd has not been under a disability,

as defined in the Social Security Act, since September 2, 2008, the date on which her
application was filed. Id.
ANALYSIS
I.

INTRODUCTION
The court may only reverse a finding of the Commissioner if it is not supported

by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th

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Cir. 1980)).6 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Ms. Boyd urges this court to reverse the Commissioner’s decision to deny her
benefits on two grounds:
1) the ALJ’s residual functional capacity findings are not based on
medical opinion, and;
2) the ALJ’s residual functional capacity findings are not based on
substantial evidence.
(Doc. 8). The court turns to the lack of an underlying vocationally-related medical
opinion by a physician in support of the ALJ’s RFC determination that Ms. Boyd is
capable of performing sedentary work with additional restrictions given her severe
physical and mental impairments. In light of this deficiency, the court agrees with Ms.
Boyd that, under the circumstances of her case, the Commissioner has committed
reversible error.

6

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
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II.

IN THE ABSENCE OF A SUPPORTING MEDICAL SOURCE
STATEMENT OR A PHYSICAL CAPACITIES EVALUATION BY A
PHYSICIAN THAT CONSIDERS THE VOCATIONAL IMPACT OF
MS. BOYD’S SEVERE PHYSICAL AND MENTAL IMPAIRMENTS,
THE ALJ’S RESIDUAL FUNCTIONAL CAPACITY
DETERMINATION THAT SHE CAN PERFORM SEDENTARY WORK
WITH ADDITIONAL RESTRICTIONS IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE.
A. The ALJ has failed to adequately develop the record.
While Ms. Boyd has the burden of proving her disability, the ALJ has a basic

obligation to develop a full and fair record. Cowart v. Schweiker, 662 F.2d 731, 732
(11th Cir. 1981) (citing Thorne v. Califano, 607 F.2d 218, 219 (8th Cir. 1979)). When
the ALJ has failed to develop a full and fair record, the court “has required the
Secretary to reopen the case ‘until the evidence is sufficiently clear to make a fair
determination as to whether the claimant is disabled or not.’” Thorne, 607 F.2d at
220 (quoting Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974)). In
support of her RFC determination for Ms. Boyd, the ALJ did not identify a medical
source opinion or a physical capacities evaluation conducted by a physician that
substantiates Ms. Boyd’s ability to perform sedentary work given her severe
collection of impairments. Such an omission from the record is significant to the
substantial evidence inquiry pertaining to the ALJ’s RFC determination. See, e.g.,
Rohrberg v. Apfel, 26 F. Supp. 2d 303, 311 (D. Mass. 1998) (“The ALJ failed to refer
to-and this Court has not found-a proper, medically determined RFC in the record.”).
9

The court acknowledges that the ALJ did refer in her decision to several of Ms.
Boyd’s medical records. (Tr. 26-29) (Exhibits 1F, 2F, 3F, 4F, 5F, 6F, 7F, 9F and
10F). However, these referenced medical documents contain merely raw physical and
mental findings related to Ms. Boyd’s diagnosed conditions. (See, e.g., Tr.105-28
(medical

records

from

Bridgeport

Community

Health);

Tr.

129-45

(emergency/outpatient record from Bridgeport Hospital); Tr. 160-81 (emergency
department notes from St. Vincent’s Hospital); Tr. 190-214 (emergency department
notes from St. Vincent’s East); Tr. 215-70 (treatment notes from 1917 Clinic); Tr.
322-66 (inpatient treatment notes from Presbyterian Hospital); Tr. 367-410
(emergency department notes from UAB Hospital)).
The records noted by the ALJ in her opinion simply documented Ms. Boyd’s
medical conditions, complaints, and treatment, and none of the records cited by the
ALJ provided any assessment of her impairments in vocational terms. See, e.g.,
Rohrberg, 26 F. Supp. 2d at 311 (“Where the ‘medical findings in the record merely
diagnose [the] claimant’s exertional impairments and do not relate these diagnoses
to specific residual functional capabilities such as those set out in 20 C.F.R. §
404.1567(a) . . . [the Commissioner may not] make that connection himself.’”)
(citation omitted).
Another district judge of this court aptly explained the RFC issue in the
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context of an ALJ who comparably determined, without the benefit of a physical
capacities evaluation conducted by a physician, that the claimant was not disabled:
While the Record contains Ms. Rogers’[s] medical treatment
history, it lacks any physical capacities evaluation by a physician. The
ALJ made his residual functional capacity evaluation without the
benefit of such evaluation. An ALJ is allowed to make some
judgments as to residual physical functional capacity where so little
physical impairment is involved that the effect would be apparent to
a lay person. Manso-Pizarro v. Secretary of Health and Human
Services, 76 F.3d 15 (1st Cir. 1996). In most cases, including the case
at bar, the alleged physical impairments are so broad, complex, and/or
ongoing that a physician’s evaluation is required. Id. In order to have
developed a full, fair record as required under the law, the ALJ should
have re-contacted Ms. Roger’s [sic] physicians for physical capacities
evaluations and/or sent her to physicians for examinations and
physical capacities evaluations . . . . Ms. Rogers’ [s] residual
functional capacity was not properly determined nor supported by
substantial evidence in this case.
Rogers v. Barnhart, No. 3:06-CV-0153-JFG, (Doc. 13 at 5) (N.D. Ala. Oct. 16, 2006)
(emphasis added); see also Manso-Pizarro, 76 F.3d at 17 (“With a few exceptions
(not relevant here), an ALJ, as a lay person, is not qualified to interpret raw data in
a medical record.”) (emphasis added) (citations omitted); Rohrberg, 26 F. Supp. 2d
at 311 (“An ALJ is not qualified to assess a claimant’s RFC on the basis of bare
medical findings, and as a result an ALJ’s determination of RFC without a medical
advisor’s assessment is not supported by substantial evidence.”) (emphasis added)
(citation omitted); cf. Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir. 1973) (“To

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meet such a prima facie case it is not sufficient for the government to rely upon
inconclusive medical discussion of a claimant’s problems without relating them to the
claimant’s residual capacities in the field of employment.”) (emphasis added).
Comparable to Rogers, Manso-Pizarro, and other similar cases, a lay person
such as an ALJ is not able to discern Ms. Boyd’s work-related exertional abilities and
appropriate non-exertional restrictions based upon the unfiltered information
contained in her medical records. The ALJ’s direct citation to raw medical evidence
indicates that she improperly “succumbed to the temptation to play doctor and make
[her] own independent medical findings.” Carlisle v. Barnhart, 392 F. Supp. 2d 1287,
1295 (N.D. Ala. 2005) (quoting Rohan v. Charter, 98 F.3d 966, 970 (7th Cir. 1996)).
Therefore, in the absence of a medical source statement and/or a physical capacities
evaluation conducted on Ms. Boyd by a physician that corroborates the ALJ’s
determination that she is capable of performing sedentary work with certain
restrictions despite her severe impairments, the record has not been adequately
developed.7 See, e.g., Cowart, 662 F.2d at 732 (citing Thorne v. Califano, 607 F.2d
218, 219 (8th Cir. 1979)); accord Sobolewski v. Apfel, 985 F. Supp. 300, 314
(E.D.N.Y. 1997) (“The record’s virtual absence of medical evidence pertinent to the

7

A search of the record yields a physical capacities evaluation performed by Dr. Franco, but
the ALJ specifically noted that she gave little weight to Dr. Franco’s opinion. (Exhibit 5F; Tr. 29).
12

issue of plaintiff’s RFC reflects the Commissioner’s failure to develop the record,
despite his obligation to develop a complete medical history.”) (citations omitted).
B. The ALJ has failed to substantiate the conclusions that she reached
regarding Ms. Boyd’s vocationally-related mental functioning.
The ALJ’s RFC determination additionally lacks substantial support because
it fails to adequately address the impact of Ms. Boyd’s mental impairment, which
condition the ALJ acknowledged was severe.8 In particular, the ALJ gave little weight
to the opinion of a treating psychiatric nurse practitioner as to the vocational effects
of Ms. Boyd’s mental impairments, but did not reference any other documentation
that substantiates her RFC determination that Ms. Boyd can perform sedentary work
with restrictions. The ALJ also gave little weight to the opinions of State medical
consultants regarding Ms. Boyd’s mental limitations. (Tr. 29). Furthermore, the court
notes that the Psychiatric Review Technique Form (“PRTF”) is incomplete due to
“insufficient evidence” and therefore cannot substantially support the RFC
determination with respect to Ms. Boyd’s mental functioning capacity. (Tr. 146-58).
Regarding the PRTF more specifically, the Eleventh Circuit joined sister
circuits in Moore v. Barnhart when it held “that where a claimant has presented a
8

See Brunson v. Astrue, 850 F. Supp. 2d 1293, 1302 (M.D. Fla. 2011) (holding that the
ALJ’s “RFC does not appear to adequately reflect Plaintiff’s mental impairment and certainly does
not reflect ‘a more detailed analysis’ with specific findings as to the impact of Plaintiff’s
[impairments] on his ability to perform work” (citing Millhouse v. Astrue, No. 8:09-CV-378-TTGW, 2009 WL 763740 (M.D. Fla. Mar. 23, 2009))).
13

colorable claim of mental impairment, the social security regulations require the ALJ
to complete a PRTF, append it to the decision, or incorporate its mode of analysis into
his findings and conclusions. Failure to do so requires remand.” Barnhart, 405 F.3d
1208, 1214 (11th Cir. 2005) (citing Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir.
2000) (“where claimant presents colorable claim of mental impairment, ALJ’s failure
to comply with PRTF regulations requires remand”));9 see also Hill v. Sullivan, 924
F.2d 972, 975 (10th Cir. 1991) (“ALJ’s failure to evaluate claimant’s alleged mental
disorder or to document the procedure on a PRTF required reversal”); Montgomery
v. Shalala, 30 F.3d 98, 100 (8th Cir. 1994) (“reversing and remanding because ALJ
purported to evaluate mental disorder, but failed to do so according to PRTF and its
regulations”).
CONCLUSION
In sum, in deciding to give little weight to all of the vocationally-related
medical opinions in the record, the ALJ did not rely upon any medical source
statement in support of her RFC determination. Instead, it appears that the ALJ
9

Superseded on other grounds by regulation, 20 C.F.R. § 404.1520(a) (2001), as first stated
in Jones v. Astrue, No. CIV S-07-2017 KJM, 2009 U.S. Dist. LEXIS 23902, at *6 n.4 (Mar. 24,
2009) (“Previously, a PRTF [] was required to be appended to the ALJ’s decision. The regulation
now only requires that the pertinent findings and conclusions based on the technique be incorporated
into the decision . . . [R]equiring incorporation of the findings and conclusions . . . allows for
meaningful review by the court in determining whether substantial evidence supports the ALJ’s
findings.”); see also Lemke v. Comm’r SSA, No. 09–35379, 380 Fed. App’x 599, 601 (9th Cir. May
21, 2010) (same).
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arbitrarily arrived at Ms. Boyd’s RFC without the benefit of any corroborating
physical or mental functional proof provided by a physician or otherwise
substantiated by the record. Accordingly, the ALJ’s determination that Ms. Boyd can
perform restricted sedentary work is not supported by substantial evidence.
DONE and ORDERED this 2nd day of August, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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