Butler v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 12/4/2013. (JLC)

FILED
2013 Dec-04 AM 10:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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) Case No.: 2:12-CV-3562-VEH
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MEMORANDUM OPINION1
Claimant Penny Latese Butler (“Ms. Butler”) brings this action pursuant to 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 (the
“Commissioner” or “Secretary”), who denied her application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). Ms. Butler timely
1

The court notes that, on February 14, 2013, Carolyn W. Colvin was named the Acting
Commissioner of the Social Security Administration. 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.

pursued and exhausted her administrative remedies available before the
Commissioner. The case is ripe for review pursuant to 42 U.S.C. §§ 405(g), 205(g)
of the Social Security Act.2
FACTUAL AND PROCEDURAL HISTORY
Ms. Butler was forty-six years old at the time of the onset of her alleged
disability on June 1, 2010, and was forty-eight years at the time of the Administrative
Law Judge’s decision (“ALJ”). (Tr. 10). She has a limited education, never finishing
ninth grade, and took special education classes in English and Math. (Tr. 34). Ms.
Butler’s past work experience includes home health aide, general labor as a boxmaker, and general cleaning and janitorial type work. (Tr. 44). She claims she
became disabled because of a heart attack, short term memory loss, anxiety, high
blood pressure, and acid reflux. (Pl.’s Br. 2).
On December 13, 2010, Ms. Butler protectively filed applications for DIB and
SSI. (Tr. 10). On March 21, 2011, the Commissioner initially denied these claims.
Id. Ms. Butler timely filed a written request for a hearing on March 28, 2011. Id.
The ALJ conducted a hearing on the matter on November 9, 2011. Id. On March 21,

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In general, the legal standards applied are the same regardless of whether a claimant seeks
DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI 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.
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2012, the ALJ issued his opinion concluding that Ms. Butler was not disabled and
denied her benefits. (Tr. 10, 20). Ms. Butler timely petitioned the Appeals Council
(“AC”) to review the decision on March 21, 2012, and on August 13, 2012, the AC
declined to review her claims, and, as a result, the ALJ’s disability determination
became the final decision of the Commissioner. (Tr. 1).
Ms. Butler filed a complaint with this court on October 10, 2012, seeking
review of the Commissioner’s ruling. (Doc. 1). 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 for further development of the record.
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
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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.3 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

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

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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. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity since
June 1, 2010, the alleged onset date.
3. The claimant has the following severe impairments: coronary artery
disease secondary to myocardial infarction, anxiety, and depression.
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1525, 404.1526, 416.920(d), 416.925, 416.926).
5. After careful consideration of the entire record, the [ALJ] finds that
the claimant has the residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b)
except the claimant can lift and carry twenty pounds frequently and ten
pounds occasionally; the claimant can stand or walk six hours in an
eight-hour workday and sit for six hours in an eight-hour workday; the
claimant can frequently climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl; the claimant cannot work around unprotected heights,
dangerous moving machinery, or ladders, ropes, or scaffolds; the
claimant should avoid concentrated exposure to extreme cold, heat,
humidity, fumes, odors, dusts, and gases; the claimant can remember
simple and detailed but not complex instructions; the claimant is able to
sustain concentration and attention for two hour period to complete
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simple, detailed tasks in a regular workday at an acceptable pace and
attendance schedule; proximity to others should not be intense; the
claimant is able to interact appropriately in casual settings and will
respond appropriately to constructive instructions; the claimant is able
to respond to at least simple and infrequent changes in routine.
6. The claimant is unable to perform and past relevant work.
7. The claimant . . . was 46 years old, which is defined as a younger
individual age 18-49, on the alleged disability onset date.
8. The claimant has a limited education and is able to communicate in
English.
9. Transferability of job skills is not material to the determination of
disability because using Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled” whether or not the
claimant has transferable job skills.
10. Considering the claimant’s age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the national
economy that the claimant can perform.
11. The claimant has not been under a disability, as defined by the
Social Security Act, from June 1, 2010 through the date of this decision.
(Tr. 12–19).
Accordingly, the ALJ concluded that Ms. Butler had not been under a
disability, as defined in the Social Security Act, from June 1, 2010, through the date
of the ALJ’s decision.

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ANALYSIS
I. INTRODUCTION
The court can reverse a finding of the Secretary if it is not supported by
substantial evidence. 42 U.S.C. § 405(g). The court has the “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 Cir. 1980)).4 Ms.
Butler asserts that (1) the ALJ’s decision is not supported by substantial evidence and
(2) improper legal standards were applied. (Pl.’s Br. 1). In its review, this court finds
that the ALJ’s decision was not supported by substantial evidence and that the ALJ
applied the law incorrectly when he did not mention, much less assign any weight to,
several critical pieces of medical evidence.
II. THE ALJ FAILED TO WEIGH ALL THE MEDICAL EVIDENCE5
The ALJ is required to state specifically the weight accorded each item of
evidence and the reasons for his decision. See, e.g., Cowart v. Schweiker, 662 F.2d

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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
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The undersigned has recently rendered another reversal from which the framework,
analysis, and disposition of this appeal persuasively flow. See Nix v. Colvin, 1:12-CV-1128-VEH
(Docs. 11, 12) (N.D. Ala. Aug. 23, 2013) (reversing and remanding for further development due to
inadequate treatment of medical evidence).
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731, 735 (11th Cir. 1981) (“What is required is that the ALJ state specifically the
weight accorded to each item of evidence and why he reached that decision . . . In the
absence of such a statement, it is impossible for a reviewing court to determine
whether the ultimate decision on the merits of the claim is rational and supported by
substantial evidence.”); Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985) (“The
decision rendered by the ALJ also does not make clear the weight accorded the
evidence considered.”); Ryan v. Heckler, 762 F.2d 939, 942 (11th Cir. 1985) (“We
cannot, however, conduct a review that is both limited and meaningful if the ALJ
does not state with sufficient clarity the legal rules being applied and the weight
accorded the evidence considered.” (citation omitted)); see Nix v. Colvin, No.
1:12-CV-1128-VEH, (Doc. 11 at 8) (N.D. Ala. Aug. 23, 2013) (“The ALJ’s vague
treatment of the medical evidence constitutes reversible error.” (emphasis omitted)).
However, the ALJ can discredit medical evidence and “may reject the opinion
of any physician when the evidence supports a contrary conclusion,” albeit with a
specific explanation. Bloodsworth v. Heckler, 703 F.2d at 1240. Also, there is no
“rigid requirement” that the ALJ must specifically refer to every piece of evidence as
long as the decision allows the court to conclude that the ALJ considered the medical
condition as a whole. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).
Generally, ALJs must accord considerable weight to the claimant’s treating
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physician’s opinion, absent good cause for not doing so. Broughton v. Heckler, 776
F.2d 960, 961–62 (11th Cir. 1985) (per curiam). Also, specialists are generally
entitled to more weight than nonspecialist medical opinion when the ALJ balances
conflicting medical testimony. King v. Barnhart, 320 F. Supp. 2d 1227, 1231-32
(N.D. Ala. 2004). Additionally, nurse practitioners cannot be accepted as medical
evidence unless the nurse “works closely, is supervised, and has her diagnoses
approved by a doctor.” Davis v. Colvin, No. 2:12-CV-2867-VEH, (Doc. 8 at 11)
(N.D. Ala. Nov. 18, 2013). Nurse practitioners can only be recognized as an “other
source” to “show the severity of [the] impairment(s) and how it affects [the] ability
to work.” 20 C.F.R. § 404.1513(d)(1) (2013). If a nurse practitioner satisfies the
“medical evidence” requirements, then the nurse can also be considered a treating
source due more weight. King v. Astrue, 493 F. Supp. 2d 1232, 1234 (S.D. Ala.
2007).
Here, the record has no evidence of disability provided by a treating physician.
As Ms. Butler’s family nurse practitioner, Ms. McCary has seen the claimant for a
period of years at Cooper Green Hospital, but the record does not substantiate that
Ms. McCary satisfies the requirements to be considered acceptable medical evidence.
More specifically, while Ms. McCary apparently works under Dr. Mark Wilson, the
record does not contain any information about his supervision, approval, or even
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knowledge of Ms. Butler. (Tr. 289-290). Therefore, the ALJ correctly disregarded
Ms. McCary’s statement that Ms. Butler could not sustain a regular work week
because of her maladies. (Tr. 289).
While the ALJ appropriately addressed Ms. McCary’s status as an acceptable
medical source, the ALJ made no reference, other than a vague mention during the
hearing, of two consultative examiners and their medical assessments of Ms. Butler.
(See Tr. 43 (The ALJ asked the claimant at the hearing if she “remember[ed] going
to see this psychologist, [sic] this mental health professional, that Social Security sent
you to?”)).
First, on February 19, 2011, Dr. Timothy Preston (M.D.) performed a
consultative examination (“CE”) in which he reviewed Ms. Butler’s records, took a
history of her present illnesses, and recorded her daily activities, current medications,
past medical history, family history, and social history. (Tr. 230). Dr. Preston then
gave Ms. Butler a physical exam. (Tr. 231-34). He diagnosed Ms. Butler with
ischemic heart disease, residual angina from her heart attack, subjective hearing loss,
history of anxiety and depression, hypertension, hyperlipidemia, and intraocular
pressure. (Tr. 233). This CE was never mentioned in the ALJ’s decision, and thus
the court is unable to tell what weight, if any, was given to Dr. Preston’s medical
opinion or diagnoses. (Tr. 10-20).
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Second, on January 25, 2012, Ms. Butler received a Psychological Evaluation
CE from clinical psychologist Dr. Alan Blotcky (Ph.D.). (Tr. 299). After meeting
with Ms. Butler and administering an MMPI-2 Test to assess her psychiatric status,
Dr. Blotcky found that Ms. Butler produced an invalid profile because she endorsed
so many psychiatric symptoms and problems, resulting in elevated clinical scales.
(Tr. 300). Dr. Blotcky therefore diagnosed Ms. Butler with post-traumatic stress
disorder, dysthymic disorder, histrionic personality disorder, and borderline
intellectual abilities. (Tr. 301). In addition, Dr. Blotcky noted that Ms. Butler had
been a victim of physical and sexual abuse in the past, as well as an abuser of both
alcohol and marijuana. Id.
Although Dr. Blotcky opined that Ms. Butler’s test results were invalid, he
believed that her histrionic personality disorder caused the invalid results: “She is
emotional, reactive, labile, dramatic, suggestible, naive, impaired in her ability to
handle stress, prone to develop somatic complaints in the face of stress, and with poor
psychological-mindedness.” Id. Additionally, Dr. Blotcky did not believe that Ms.
Butler was “producing or exaggerating symptoms for secondary gain.” Id. She had
not been seeking out medical or psychiatric treatment, she had not been doctor
shopping, she had never seen a mental health professional, and had never been
hospitalized for psychiatric reasons. Id. Dr. Blotcky then recommended that Ms.
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Butler be involved in ongoing and regular psychiatric treatment, that she be seen by
physicians for her medical problems, and that Ms. Butler live with a family member
or friend. (Tr. 302). He concluded his evaluation by stating that “Ms. Butler’s
prognosis is very poor because of her three psychiatric disorders and limited
intellect,” the latter of which is “a lifelong problem.” Id.
In his decision, the ALJ did not discuss or indicate a comparative weight for
Dr. Blotcky’s opinion.

Although the Commissioner’s brief suggests that Dr.

Blotcky’s opinion was invalid because it was inconsistent with Ms. Butler’s treating
physicians (Def.’s Br. 17), the record lacks any disability-related opinions from Ms.
Butler’s treating physicians. Further, the ALJ did not provide this (or any) reason for
discounting Dr. Blotcky’s opinion, and the ALJ’s error cannot be corrected by the
Commissioner’s attorneys in their brief.
Thus, although the ALJ committed no error in discounting the evidence
provided by Ms. McCary, the ALJ improperly ignored two critical CEs that were
favorable to Ms. Butler’s disability claims. (Tr. 12-19). Instead, the ALJ relied most
heavily upon, and essentially adopted the opinions contained in a Physical RFC
Assessment by Dr. Steven Dobbs (Ph.D.) and a Psychiatric Review by Dr. Glenn
Carmichael, M.D. (Tr. 17).
The ALJ stated that these doctors “had the benefit of reviewing the entire
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objective . . . record when forming their opinions and are familiar with our disability
program and their requirements . . . [and] their opinions are supported by . . . the
objective evidence of record.” Id. However, the record indicates that these two
doctors never examined Ms. Butler and instead merely performed a paper review of
her medical records when providing their respective physical and mental functional
assessments of her. (Tr. 241-266). Furthermore, the Eleventh Circuit has made it
clear that the opinions of non-examining physicians are “entitled to little weight . .
. .” Shafarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987); see id. (“The opinions of
nonexamining, reviewing physicians, such as those of Drs. Thomas and Register,
when contrary to those of the examining physicians, are entitled to little weight, and
standing alone do not constitute substantial evidence.” (citing Spencer ex rel. Spencer
v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) (per curiam))).
The ALJ’s inadequate treatment of the opinions of Drs. Preston and Blotcky
in his decision is problematic for other reasons. When incompatible medical opinions
and other evidence relating to a claimant’s allegedly disabling conditions are
contained in the record, then the ALJ’s obligation to specify the weight given to such
differing proof becomes even more important. See Cowart, 662 F.2d at 735.
Otherwise, the court is ill-equipped to decipher, much less to aptly review, how the
ALJ resolved those matters of conflict. Id. (finding reversible error in the absence of
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assigning weight, because such a “statement tells us nothing whatsoever—it goes
without saying that the ALJ gave the testimony the weight he believed should be
accorded to it”); Hudson, 755 F.2d at 786 (rejecting as inadequate ALJ’s indication
that he has “carefully considered all the testimony given at the hearing and the
documents described in the List of Exhibits. . . .”) (internal quotation marks omitted);
cf. Jackson v. Astrue, No. CV 107-020, 2008 WL 596769, at *6 (S.D. Ga. Mar. 4,
2008) (“In this case, Plaintiff contends that the ALJ’s consideration of Plaintiff’s
psychological impairment is inadequate because not only did the ALJ fail to address
the [doctors’] opinions, the ALJ also failed to explain the weight given to the medical
opinions she did cite.”).
In sum, two important CEs are entirely undiscussed in the ALJ’s decision, and
the court cannot responsibly reweigh (or, in this case, weigh for the first time) such
pivotal proof when evaluating the merits of the Commissioner’s denial of benefits.
Cf. Savor v. Shalala, 868 F. Supp. 1363, 1366 (M.D. Fla. 1994) (“Therefore, in
determining whether the Secretary’s decision is supported by substantial evidence,
the court is not to reweigh the evidence, but is limited to determining whether the
record as a whole contains sufficient evidence to permit a reasonable mind to
conclude that the claimant is not disabled.”) (emphasis added). The court is therefore
unable to find substantial evidence supports the Commissioner’s decision.
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CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that ALJ did not fulfill his duty to assign
weight to key medical evidence pertaining to Ms. Butler’s claimed disabilities.
DONE and ORDERED this the 4th day of December, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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