Fassina v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 8/18/15. (MRR )
2015 Aug-18 PM 04:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
DONNA M. FASSINA,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CASE NO. 2:14-CV-0081-SLB
Plaintiff Donna M. Fassina brings this action pursuant to 42 U.S.C. § 405(g),1 seeking
review of the Commissioner of Social Security’s final decision denying her applications for
a period of disability, disability insurance benefits [“DIB”], supplemental security income
[“SSI”], and disabled widow’s benefits.2 Upon review of the record and the relevant law, the
court is of the opinion that the Commissioner’s decision is due to be remanded for further
The judicial review provisions for a DIB claims, 42 U.S.C. § 405(g), apply to claims
for SSI. See 42 U.S.C. § 1383(c)(3).
Under the Social Security Act, the widow of a fully-insured individual is entitled to
benefits if she establishes that she is at least 50, but less than 60 years of age, and is disabled.
See 42 U.S.C. § 402(e); 20 C.F.R. § 404.335(c). To collect widow’s benefits, a claimant
must prove that she was disabled, as defined under 20 C.F.R. § 404.1505. See e.g., Miles v.
Commissioner of Social Sec., 469 Fed. Appx. 743, 744 (11th Cir. 2014).
I. PROCEDURAL HISTORY
Ms. Fassina protectively filed applications for a period of disability, DIB, SSI, and
disabled widow’s benefits on October 12, 2010, alleging an inability to work beginning
September 30, 2010. (Doc. 6-3 at 14; doc. 6-6 at R.193, R.200.)3 Her claims were denied
initially. (Doc. 6-3 at 14; doc. 6-4 at 85-90.) Thereafter, she requested a hearing before an
Administrative Law Judge [“ALJ”], which was held on August 28, 2012. (Doc. 6-3 at R.14;
doc. 6-5 at R.111.) After the hearing, the ALJ found that Ms. Fassina was unable to perform
her past relevant work but that other jobs existed in the national economy in significant
numbers that Ms. Fassina could perform. (Doc. 6-3 at R.33.) Therefore, the ALJ determined
that Ms. Fassina was not under a disability at any time through the date of his decision,
September 28, 2012. (Id. at R.34.)
Ms. Fassina then requested review of the ALJ’s decision by the Appeals Council. (Id.
at R.9.) The Appeals Council “found no reason under [its] rules to review the [ALJ]’s
decision,” and it denied Ms. Fassina’s request for review. (Id. at R.1.) Therefore, the ALJ’s
decision is the final decision of the Commissioner. (See id.)
Following denial of review by the Appeals Council, Ms. Fassina filed an appeal in this
court. (Doc. 1.)
Reference to a document number, [“Doc.”], refers to the number assigned to each
document as it is filed in the court’s record. Reference to a page numbers in the
Commissioner’s record, [“R.”], refers to the page number assigned to the record by the
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is a
narrow one: “Our review of the Commissioner’s decision is limited to an inquiry into
whether there is substantial evidence to support the findings of the Commissioner, and
whether the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court
gives deference to factual findings and reviews questions of law de novo. Cornelius v.
Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court “may not decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner], rather [it]
must scrutinize the record as a whole to determine if the decision reached is reasonable and
supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983)) (internal quotations
and other citation omitted). “The Commissioner’s factual findings are conclusive if
supported by substantial evidence.” Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)).
“Substantial evidence” is “more than a scintilla and is such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Winschel v. Commissioner of
Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936
F.2d at 1145. “No . . . presumption of validity attaches to the [Commissioner’s] conclusions
of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for a period of disability, DIB, and/or SSI. See
20 C.F.R. § 404.1520(a)(1)-(2); 20 C.F.R. § 416.920(a)(1)-(2); Bowen v. City of New York,
476 U.S. 467, 470 (1986). “[A]n individual shall be considered to be disabled for purposes
of [determining eligibility for DIB and SSI benefits] if he is unable to engage 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 twelve months.” 42 U.S.C. §
1382c(a)(3)(C)(1); see also 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). The specific
steps in the evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations
define “substantial gainful activity” as “work activity that is both substantial and gainful.”4
20 C.F.R. § 404.1572; 20 C.F.R. § 416.972. If the claimant is working and that work is
substantial gainful activity, the Commissioner will find that the claimant is not disabled,
regardless of the claimant’s medical condition or his age, education, and work experience.
20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b). “Under the first step, the claimant has the
burden to show that she is not currently engaged in substantial gainful activity.”
Reynolds-Buckley v. Commissioner of Social Sec., 457 Fed. Appx. 862, 863 (2012).5
The ALJ found that Ms. Fassina had not engaged in substantial gainful activity since
September 30, 2010, her alleged onset date. (Doc. 6-3 at R.17.)
The regulations state:
(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid
less, or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do for
pay or profit. Work activity is gainful if it is the kind of work usually done for
pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club
activities, or social programs to be substantial gainful activity.
20 C.F.R. § 404.1572; 20 C.F.R. § 416.972.
3Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R. § 416.920(a)(4)(ii), (c). “[A]
‘physical or mental impairment’ is an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(D). The
regulations provide: “[I]f you do not have any impairment or combination of impairments
which significantly limits your physical or mental ability to do basic work activities, we will
find that you do not have a severe impairment and are, therefore, not disabled. We will not
consider your age, education, and work experience.” 20 C.F.R. § 404.1520(c); 20 C.F.R. §
416.920(c). “An impairment can be considered as not severe only if it is a slight abnormality
which has such a minimal effect on the individual that it would not be expected to interfere
with the individual’s ability to work, irrespective of age, education, or work experience.”
Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R. § 404.1521(a); 20
C.F.R. § 416.921(a). A claimant may be found disabled based on a combination of
impairments even though none of the individual impairments alone are disabling. Walker v.
Bowen, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. § 404.1523; 20 C.F.R. §
416.923. A claimant has the burden to show that she has a severe impairment or combination
of impairments. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Ms. Fassina had the following severe impairments: “degenerative
disc disease; status post 1998 neck fracture; aortic aneurysm; asthma; chronic obstructive
pulmonary disease with ongoing tobacco abuse; osteoarthritis, upper extremities bilaterally;
bipolar disorder; general anxiety disorder; attention deficit hyperactivity disorder; personality
disorder; panic disorder; insomnia; a history of polysubstance abuse including cocaine, THC,
methadone, prescription medication, heroin, cannabis and opiates.” (Doc. 6-3 at R.17.) The
ALJ found that claimant’s “thyroid issues,” gastroesophageal reflux disease [“GERD”], and
history of ovarian cancer were non-severe impairments. (Id.)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets the durational requirement and whether it is
equivalent to any one of the listed impairments, which are impairments that are so severe as
to prevent an individual with the described impairment from performing substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(iii), (d)-(e); 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see
20 C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings]. If the claimant’s impairment meets
or equals an impairment listed in the regulations, the Commissioner must find the claimant
disabled, regardless of the claimant’s age, education, and work experience. 20 C.F.R. §
404.1520(d); 20 C.F.R. § 416.920(d). The claimant has the burden of proving that her
impairment meets or equals the criteria contained in one of the Listings. Reynolds-Buckley,
457 Fed. Appx. at 863.
The ALJ found that Ms. Fassina did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix I. (Doc. 6-3 at R.18.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment or combination of impairments does not meet or equal the criteria
of a Listing, the claimant must prove that her impairment or combination of impairments
prevents her from performing her past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv),
(f); 20 C.F.R. § 416.920(a)(4)(iv), (f). At step four, the Commissioner “will first compare
[her] assessment of [the claimant’s] residual functional capacity [“RFC”] with the physical
and mental demands of [the claimant’s] past relevant work.” 20 C.F.R. § 404.1560(b); 20
C.F.R. § 416.960(b). “Past relevant work is work that [the claimant has] done within the past
15 years, that was substantial gainful activity, and that lasted long enough for [her] to learn
to do it.” 20 C.F.R. § 404.1560(b)(1); 20 C.F.R. § 416.960(b)(1). If the claimant is capable
of performing her past relevant work, the Commissioner will find she is not disabled. 20
C.F.R. § 404.1560(e); 20 C.F.R. § 416.920(e). The claimant bears the burden of establishing
that her impairment or combination or impairments prevents her from performing past work.
Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Ms. Fassina could perform medium work with the following
[she] can lift, carry, push and pull 50 lbs occasionally and 25 lbs frequently;
can sit, stand and walk 6 hours each intermittently throughout an 8-hour
workday; limited to frequent gross manipulation of objects bilaterally; must
avoid concentrated exposure to respiratory irritants such as fumes, odors,
dusts, gases and poorly ventilated areas; and must avoid concentrated exposure
to operational controls of moving machinery and unprotected heights; limited
to simple, routine and repetitive tasks; limited to work in a low-stress
environment defined as requiring only occasional decision -making and only
occasional changes in work setting; and limited to only occasional interaction
with the public and co-workers.
(Doc. 6-3 at R.21.) The ALJ found that Ms. Fassina could not return to any of her prior
relevant work as a convenience store cashier, cashier-checker, nurse’s assistant, waitress,
sandwich maker, and home attendant. (Id. at R.33.)
As for Ms. Fassina’s other vocational factors, the ALJ found that Ms. Fassina “was
53 years old, which is defined as an individual closely approaching advanced age, on the
alleged disability onset date. The claimant subsequently changed age category to advanced
age.” (Id.) He found she “has a limited education and is able to communicate in English.”
(Id.) The ALJ also determined that whether Ms. Fassina had any transferrable job skills was
not material to his decision. (Id.)
5. Other Work in the National Economy
If the claimant establishes that she is unable to perform her past relevant work, the
Commissioner must show that the claimant – in light of her RFC, age, education, and work
experience – is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. §
404.1520(c)(1); 20 C.F.R. § 416.920(c)(1). The regulations provide:
If we find that your residual functional capacity is not enough to enable you to
do any of your past relevant work, we will use the same residual functional
capacity assessment we used to decide if you could do your past relevant work
when we decide if you can adjust to any other work. We will look at your
ability to adjust to other work by considering your residual functional capacity
and your vocational factors of age, education, and work experience. Any other
work (jobs) that you can adjust to must exist in significant numbers in the
national economy (either in the region where you live or in several regions in
20 C.F.R. § 404.1560(c)(1); 20 C.F. R. § 416.960(c)(1). If the claimant is not capable of
performing such other work, the Commissioner must find the claimant is disabled. 20 C.F.R.
§ 404.1520(f); 20 C.F.R. § 416.920(f). If, however, the Commissioner finds that the claimant
can perform other work, the claimant has the burden to prove she in not capable of
performing such other work.
Because the ALJ determined Ms. Fassina could not perform a full range of medium
work, he consulted a Vocational Expert [“VE”] to determine whether any jobs exist in the
national economy that Ms. Fassina could perform. (Doc. 6-3 at R.72-76.) The VE testified
that an individual with Ms. Fassina’s limitations and vocational factors could perform jobs
that exist in the national economy in significant numbers such as hand packer, machine
packer, and kitchen helper. (Doc. 6-3 at R.74.) Based on this testimony, the ALJ found Ms.
Fassina could perform other work, and therefore, she was not under a disability at any time
from September 30, 2010, through the date of his decision.6 (Id. at R.34.)
B. FASSINA’S APPEAL
On appeal, Ms. Fassina argues the Commissioner’s decision denying her claim for
benefits is not supported by substantial evidence and improper legal standards were applied.
Because the court finds insufficient evidence to support the ALJ’s assessment of Ms.
Fassina’s residual functional capacity and the weight accorded the mental health providers’
opinions, the decision of the Commissioner will be reversed and remand for further
1. GERD Impairment
The ALJ found Ms. Fassina’s GERD was a non-severe impairment, stating:
Notably, the claimant testified that she vomited everyday from [GERD]. Yet,
the undersigned found nothing in the record to suggest that the claimant’s
providers found her [GERD] symptoms to in any way prohibit employment.
The claimant was noted to have a ventral hernia in 2008. . . . Overall, while
[GERD] was medically established, [it was not] shown to cause more than
minimal interference with the claimant’s ability to perform work-related
The ALJ also found that, although Ms. Fassina admitted to ongoing substance abuse,
“there was little evidence to suggest that her substance abuse was material to her
impairments.” (Doc. 6-3 at R.26). Should Ms. Fassina be found disabled, a decision as to
whether her drug addiction is a contributing factor material to the determination of disability
must be made. 20 C.F.R. § 404.1535(b). “In making this determination, [the ALJ evaluates]
which of [the claimant’s] current physical and mental limitations, upon which [the ALJ]
based [her] current disability determination, would remain if [the claimant] stopped using
drugs or alcohol and then determine[s] whether any or all of [the claimant's] remaining
limitations would be disabling.” Id. § 404.1535(b)(2).
(Doc. 6-3 at R.17 [internal citations omitted; emphasis added].) As a result of this finding
that Ms. Fassina’s GERD was a nonsevere impairment, the ALJ gave insufficient weight to
evidence from her former employer. (Id. at R.31.) The ALJ held:
Some weight was afforded to the report from the claimant’s past employer, the
Highlands Center, who noted that the claimant could handle simple
instructions, had some sick absences, needed frequent breaks for abdominal
pain, had some difficulties dealing with others and handling stress and was
able to sustain attention. This opinion which generally suggested moderate
deficits in mental health functioning was largely supportive of the residual
functional capacity adopted above. . . . Thus, the claimant’s past employer’s
report was corroborated by the findings of a psychological examiner. Overall,
the Highlands Center report was useful in ascertaining the claimant’s mental
limitations in a workplace setting, thus some weight was afforded. Still, as the
claimant was found to have only past non-severe gastrointestinal impairments,
little weight was afforded to the statement regarding frequent breaks for
The Eleventh Circuit has “held that in order for an impairment to be non-severe, it
must be a slight abnormality which has such a minimal effect on the individual that it would
not be expected to interfere with the individual’s ability to work, irrespective of age,
education, or work experience.” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986)(quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984))(internal quotations
omitted). Therefore, the appropriate legal standard is whether an impairment causes “more
than minimal” limitation on the ability to work – not whether this impairment would
“prohibit employment.” See e.g., McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.
1986)(“An impairment is not severe only if the abnormality is so slight and its effect so
minimal that it would clearly not be expected to interfere with the individual’s ability to
work, irrespective of age, education or work experience. Claimant need show only that her
impairment is not so slight and its effect is not so minimal.”). Nevertheless, “[t]he ALJ must
consider the applicant’s medical condition taken as a whole.” Jamison v. Bowen, 814 F.2d
585, 588 (11th Cir. 1987)(citations omitted). In this case, it appears that once the ALJ found
Ms. Fassina’s gastroesophageal impairment to be non-severe, he did not consider this
The ALJ provides “some weight” to the report from plaintiff’s past employer, who
noted that Ms. Fassina could “handle simple instructions, has some sick absences, needed
frequent breaks for abdominal pain, had some difficulties dealing with others and handling
stress and was able to sustain attention.”7 (Doc. 6-3 at R.31.) However, because “the
claimant was found to have only past non-severe gastrointestinal impairments, little weight
was afforded to the statement regarding frequent breaks for abdominal pain.” (Id.) Medical
records reflect Ms. Fassina underwent endoscopy for a gastric mass and abdominal pain in
2003. (Doc. 6-8 at R.379.) An x-ray of her abdomen in 2008 had a clinical diagnoses of
“stomach tumor.” (Doc. 6-10 at R.485.) Records from a CT scan of her abdomen, also in
2008 due to “abdominal pain,” noted a “palpable mass on physical examination” and found
This past employer actually reported that Ms. Fassina was not able to work in close
proximity with other employees, that she was not able to respond appropriately to normal
stresses in carrying out assigned tasks, and that she required frequent breaks or rest periods
due to abdominal pain. (Doc. 6-7 at R.315-16.)
a ventral hernia.8 (Id. at R.487, 491.) Further records reflect Ms. Fassina reported “pain
related to hernia is unchanged” and other notations concerning abdominal pain due to a
hernia. (Id. at R.494, 499.) She was scheduled for hernia surgery in March 2009, when the
surgeon noted that “I have advised her that her surgery is elective and at the present time she
seems to be overwhelmed [with] personal problems that [illegible] are only going to
compound. I advised her to try to get personal problems straightened out and I will see her
in 1 month.” (Id. at R.496, 498.) In 2010, Ms. Fassina’s medical records reflect she still
needed a hernia repair. (Id. at R.520.) According to Ms. Fassina, at the time of her hearing,
she was vomiting everyday. (Doc. 6-3 at R.51.)
The record contains evidence that Ms. Fassina suffered abdominal pain and vomiting.
These symptoms would certainly pose more than a minimal limitation of her ability to sustain
work activity. The ALJ clearly erred in failing to find a severe impairment and failing to
consider such symptoms in establishing Ms. Fassina’s residual functional capacity. See
A ventral hernia occurs when a weak spot in the abdomen enables abdominal tissue
or an organ (such as an intestine) to protrude through a cavity muscle area. Typical symptoms
•Sharp pain in the abdominal area: The most common symptom, this sharp
pain can present during physical activities, like as walking, jogging, and
lifting; sneezing; and coughing.
•Vomiting: Incisional hernias can cause digestive complications, some of
which may lead to vomiting.
McCormick v. Social Sec. Admin., Com'r, No. 14-14428, 2015 WL 4478761, *1-*2 (11th Cir.
2015). Therefore, the Commissioner’s decision will be reversed and remanded for further
proceedings, including but, not limited to, reconsideration of Ms. Fassina’s residual
2. Examining Mental Health Providers
On January 5, 2011, Catherine Clayton Prince, Ph.D., performed a consultive mental
examination of Ms. Fassina at the Commissioner’s request. (Doc. 6-10 at R.546-47.) The
examination consisted of a number of objective tests and questions designed to demonstrate
Ms. Fassina’s mental status. (See id. at R.549.) Following her examination of Ms. Fassina,
Dr. Prince reported:
Ms. Fassina demonstrates severe mental impairment. She would likely have
significant difficulty carrying out and remembering instructions in a work
setting. She would likely have significant difficulty dealing with work
pressures, and responding appropriately to supervision and co-workers. Ms.
Fassina would likely have significant difficulty managing her finances and
living independently. She is able to hear and understand normal conversation.
(Id. at R.550 [emphasis added].) Dr. Prince gave Ms. Fassina a GAF score9 of 30, (id.),
which indicates “behavior influenced by delusions or hallucinations or serious impairment
in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately,
“The Global Assessment of Functioning, or GAF Scale, is a numeric scale that
mental health physicians and doctors use to rate the occupational, psychological, and social
functioning of adults. McCloud v. Barnhart, 166 Fed. Appx. 410, 413 n.2 (11th Cir.
2006)(citing American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS 32 (Text Revision, 4th ed.2000)).
suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day;
no job, home or friends).” Smith v. Colvin, Case No. 2:13-CV-1783-JEO, 2014 WL
6698419, 4 n.7 (N.D. Ala. Nov. 26, 2014). Although “the Commissioner has declined to
endorse the GAF scale for ‘use in the Social Security and SSI disability programs,’ and has
indicated that GAF scores have no ‘direct correlation to the severity requirements of the
mental disorders listings,’” Wind v. Barnhart, 133 Fed. Appx. 684, 692 n.5 (11th Cir. 2005)
(quoting 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000)), the court notes that Dr. Prince’s
determination of Ms. Fassina’s GAF score reflects her opinion of Ms. Fassina’s limitations;
the court has considered the GAF score for that purpose.
Despite the comprehensive evaluation provided by Dr. Prince, the ALJ relied on a
report prepared by Narithookil S. Xavier, M.D., based on his examination of Ms. Fassina on
September 29, 2010, one day before the alleged on-set date.10 (Doc. 6-10 at R.521, 534; see
also doc. 6-3 at 32.) “Medical opinions that predate the alleged onset of disability are of
limited relevance.” Simpson v. Colvin, Civil Action No. 2:14-CV-0946-AKK, 2015 WL
139329, *4 (N.D. Ala. 2015)(quoting Carmickle v. Comm’r, Soc. Sec. Admin, 533 F.3d 1155,
1165 (9th Cir. 2008)). Moreover, Dr. Xavier’s notes indicate that the purpose of Ms.
Fassina’s visit was an “Initial Assessment,” and she wanted a letter from him that would
allow her to return to work.” (See doc. 6-10 at R.534-38.) His report does not indicate that
Dr. Xavier noted that Ms. Fassina had asked him to give her a letter stating that she
was “fine to go back to work.” (Doc. 6-10 at R.538.)
he performed any tests to determine Ms. Fassina’s level of mental impairment if any. (See
id.) In the “Physician’s Summary” portion of his Initial Assessment, Dr. Xavier notes, “I
discussed [with Ms. Fassina] I need more information from somebody like a family member
. . . and more information from [her] M.D. [who performed] past evaluation (ADHD testing,
etc.).” (Id. at R.538.)
The regulations provide, “The more a medical source presents relevant evidence to
support an opinion, particularly medical signs and laboratory findings, the more weight we
will give that opinion. The better an explanation a source provides for an opinion, the more
weight we will give that opinion.” 20 C.F.R. § 404.1527(c)(3); 20 C.F.R. § 416.927(c)(3).
Under the circumstances. the ALJ’s decision to give more weight to Dr. Xavier’s opinion
than to the opinion of Dr. Prince is contrary to the regulations. Therefore, the court will
reverse the decision of the Commissioner and reverse for further proceedings, including but
not limited to reconsideration of the medical opinions regarding Ms. Fassina’s limitations due
to mental impairments.
The court pretermits further discussion of other alleged errors in the ALJ’s decision.
For the reasons set forth above, the decision of the Commissioner is due to be reversed
and this cause remanded for further proceedings consistent with this Memorandum Opinion.
An Order in conformity with the Memorandum Opinion will be entered contemporaneously.
DONE this 18th day of August, 2015.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
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