Pounds v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/17/2016. (AVC)

FILED
2016 Feb-17 AM 09:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SAMANTHA DENISE POUNDS,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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) Case No.: 2:14-CV-1785-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Samantha Denise Pounds (“Pounds”) brings this action under 42 U.S.C.

§ 405(g), Section 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 Pounds’s application for a determination of disability
and disability insurance benefits (“DIB”). Pounds 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). The court has carefully considered the record and,
for the reasons that follow, finds that the decision of the Commissioner is due to be
REVERSED and REMANDED.

II.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff was thirty-three years old at the time of the ALJ’s decision (Tr. 119).

She completed four or more years of college (Tr. 151), and worked as an information
technology specialist (Tr. 61). Pounds filed an application for disability insurance
benefits under Title II of the Social Security Act on June 2, 2011. (Tr. 66, 119-121).
This application was denied initially by the State Agency, and Plaintiff requested a
hearing before an Administrative Law Judge (ALJ) on September 16, 2011. (Tr.
75-76). A hearing was held on behalf of Plaintiff on October 18, 2012. (Tr. 38-65).
The ALJ denied disability benefits to Plaintiff on November 19, 2012,
concluding that Plaintiff did not have an impairment or a combination of impairments
listed in, or medically equal to one listed in, the Regulations. (Tr. 26-27). The ALJ
found that Plaintiff retained the residual functional capacity to perform work at the
light level of physical exertion and that there would be jobs available in the economy
that would accommodate Plaintiff’s residual limitations. (Tr. 27-32).
This became the final decision of the Commissioner of the Social Security
Administration (Commissioner) when the Appeals Council declined to grant review
of the ALJ's decision on June 9, 2014. (Tr. 9-12). Having exhausted all administrative
remedies, Plaintiff filed this action for judicial review in Federal Court pursuant to
§205(g) of the Social Security Act, 42 U.S.C. §405(g) on September 17, 2014. (Doc.
2

1). Pounds filed her brief, doc. 7, and the Commissioner filed hers. (Doc. 10).
Accordingly, the motion is now under submission.
III.

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
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
3

1143, 1145-46 (11th Cir. 1991).
IV.

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. 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 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

(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).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
V.

ALJ FINDINGS
After consideration of the entire record, the ALJ made the following findings:
1.

The claimant meets the insured status requirements of the Social
Security Act through September 30, 2013.

2.

The claimant has not engaged in substantial gainful activity since
November 8, 2010, the alleged onset date (20 CFR 404.1571 et
seq.).

3.

The claimant has the following severe impairments: asthma,
migraines, Type II insulin dependent diabetes, hypertension,
5

recurrent major depression, and an anxiety disorder (20 CFR
404.1520(c)).
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 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except she
should not climb ladders, ropes or scaffolds and can occasionally
climb ramps and stairs. She should avoid even moderate exposure
to unprotected heights. She is capable of understanding,
remembering, and carrying out short and simple instructions, but
would not be able to carry out detailed or complex instructions.
She can maintain attention and concentration for 2-hour periods
or short simple instructions with customary work breaks. She
functions best in a well-spaced environment. Public contact, as
well as contact supervisors and co-workers should be casual.
Workplace changes should be infrequent and gradually
introduced.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565).

7.

The claimant was born on August 3, 1979 and was 31 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).

9.

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 (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
6

10.

Considering the claimant's age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569 and 404.1569(a)).

11.

The claimant has not been under a disability, as defined in the
Social Security Act, from November 8, 2010, through the date of
this decision (20 CFR 404.1520(g)).

(Tr. 25–31).
VI.

ANALYSIS
The court may reverse a finding of the Commissioner only 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
Cir. 1980)).1 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Pounds makes two arguments in support of reversal. First, that the “ALJ failed
to properly consider listing 3.03B of the regulation’s listing of impairments.” Second,
she argues that “the ALJ failed to properly consider the opinion of plaintiff’s treating
physicians.” The first argument is persuasive; the second is not. This case is due to be
1

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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REVERSED and REMANDED to the Commissioner of Social Security.
A.

The ALJ Failed to Adequately Consider Pounds’s Asthma Under 3.03B

Meeting one of the listed impairments, found at 20 C.F.R. Pt. 404, Subt. P, App.
1, results in conclusive determination of disability. Ambers v. Heckler, 736 F.2d 1467,
1469–70 (11th Cir. 1984). “The listings set out at 20 CFR pt. 404, subpt. P, App. 1 (pt.
A) (1989), are descriptions of various physical and mental illnesses and abnormalities,
most of which are categorized by the body system they affect.” Sullivan v. Zebley, 493
U.S. 521, 529–30 (1990). “For a claimant to show that his impairment matches a
listing, it must meet all of the specified medical criteria.” Id. at 530 (emphasis added).
“To “meet” a Listing, a claimant must have a diagnosis included in the Listings and
must provide medical reports documenting that the conditions meet the specific
criteria of the Listings and the duration requirement.” Wilson v. Barnhart, 284 F.3d
1219, 1224 (11th Cir. 2002).
Listing 3.03 is for Asthma, and under 3.03B, a claimant is automatically
disabled when she suffers asthma attacks “[1] in spite of prescribed treatment and [2]
requiring physician intervention, [and 3] occurring . . . at least six times a year.” 20
C.F.R. Pt. 404, Subpt. P, App. 1. Asthma attacks, in turn, are “[1] prolonged
symptomatic episodes lasting one or more days and [2] requiring intensive treatment.”
Id. Intensive treatment is defined, in relevant part, as “antibiotic administration or
8

prolonged inhalational bronchodilator therapy in a hospital, emergency room or
equivalent setting.” Id. “Prolonged symptomatic episode” is not defined. The attacks
are counted during a period of 12 consecutive months, and an in-patient
hospitalization for longer than twenty-four hours counts as two attacks.
The ALJ considered Pounds’s asthma to be severe, but he also concluded
(without much fanfare) that it did not meet 3.03. (See Tr. 26) (“The claimant’s asthma
. . . [has] not been shown to impose limitations as mentioned in listing[] 3.00.”). When
calculating her RFC, the ALJ dismissed Pounds’s asthma by saying that it is
“responsive to treatment and has never required intubation by a physician” by citing
to exhibits 1F through 21F—over 1100 pages of evidentiary material. (Tr. 29). He
further noted that on a single visit to a doctor in July of 2011, her lungs were clear.
(Id.).
The three chief problems with the ALJ’s discussion of the issue are that he
conducted no analysis to determine whether Pounds’s asthma met Listing 3.03, Listing
3.03B does not require intubation, and the record shows repeated emergency room and
inpatient treatment for her Asthma. To put the third point more directly, the evidence
strongly suggests that Springer’s asthma does meet the Asthma listing. First, the ALJ
must explain the evidence he considered and the weight assigned to it, because “the
grounds upon which the administrative agency acted [must] be clearly disclosed and
9

adequately sustained.” S.E.C. v. Chenery Corp., 318 U.S. 80, 94 (1943). Second,
intubation is not the same as “antibiotic administration or prolonged inhalational
bronchodilator,” the listing’s actual requirements.
As to the third issue, the actual evidence in the case, it appears that, in spite of
her prescribed treatment,2 Pounds had asthma attacks requiring physician intervention
at least six times between December 2010 and December 2011. On December 14,
2010, she visited the emergency room for acute asthmatic bronchitis and asthma
exacerbation, and she was treated with Albuterol/Atrovent Nebulizer and Solumedrol
IV. (Tr. 716). Ditto for February 9, March 8, May 2, July 7, and July 27, 2011. (Tr.
680, 668, 657, 643, 633). At each of these visits, she was given Albuterol, which is
an inhalational bronchodilator. Needless to say, it was administered in an emergency
room setting.3 On December 15, 2010, she was admitted for two days due to asthma.
(Tr. 694–95). Pounds was admitted on March 20, 2011 and remained until the 23rd
for an asthma attack. (Tr. 229–31). She was admitted on an inpatient basis on August
3, 2011 until August 5 for asthma. (Tr. 1013). She received Albuterol Nebulizer

2

The Commissioner argues that the Pounds has not shown that she complies with her
course of treatment. Dr. Estock made a similar hypothesis in his RFC assessment. (See tr. 1055).
But, Pounds testified that the nebulizer is not enough to treat the asthma, tr. 48, and the ALJ did
not explain why he (apparently) discredited this testimony.
3

The records do not neatly reflect whether Pounds received the inhalational
bronchodilator for a “prolonged” period, but there was enough smoke on this issue for the ALJ
to at least consider whether there was fire.
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treatments, Solumedrol IV, and a course of antibiotics during her inpatient visits.
When asked why she goes to the emergency room so much, she responded
because “the nebulizer, it’s, it’s not enough to treat the asthma.” (Tr. 48). William
Meador, M.D., a consulting physician, diagnosed Pounds with “significant asthma.”
(Tr. 623). Dr. Sellman, in the RFC assessment, noted that the record reflected severe
persistent asthma. (Tr. 1057). The record certainly documents Pounds’s asthma “in
sufficient detail to permit an independent reviewer to evaluate the severity of the
impairment,” 20 C.F.R. Pt. 404 Subpt. P App. 1, but the ALJ offered little in the way
of analysis, leaving this court with no way of knowing whether he considered all the
evidence in executing his duty to consider whether the claimant meets a listing. See
Todd v. Heckler, 736 F.2d 641, 642 (11th Cir. 1984) (duty to consider whether the
claimant’s impairments meet a listing). On this ground, the case must be
REMANDED for further consideration.
B.

The ALJ Did Not Err in His Treatment of the Physicians’ Opinions

There are a few points worth noting about Pounds’s objections to the ALJ’s
handling of the medical sources. First, Nurse Oden is not an acceptable medical
source, 20 C.F.R. § 404.1513(a), to say nothing of the conclusory nature of her
statement that would preclude its use even if she were an acceptable source. See
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2003) (the ALJ may disregard
11

a treating source’s opinion when it is conclusory). Second, as to Dr. Myers, the ALJ
actually found that Pounds is somewhat more limited than Dr. Myers believed, tr. 30,
undermining Pounds’s use of selective quotation to suggest disability.4 Third, SSR 965p, which included a recontact requirement, has been superseded, see How We Collect
and Consider Evidence of Disability, 77 Fed. Reg. 10,651, 10,655–57 (Feb. 23, 2012)
(to be codified at 20 C.F.R. pt. 404 & 416), and the decision to recontact a physician
is now within the ALJ’s discretion. Thus, Pounds’s suggestion that the ALJ was
required to recontact Eubanks and Oden is wrong.
Fourth, Dr. Eubanks (the treating physician) provided a statement indicating
“marked” deficiencies and impairments on a checklist form provided by Pounds’s
counsel. This is conclusory per se; a physician may not write a permission slip to
receive SSI or DIB. Pounds also quotes a statement by Eubanks that Pounds’s
physical ailments exacerbate her mental impairments. This statement, in isolation,
means nothing vis-à-vis the assessment of disability, so it is impossible to conclude

4

The full text, with Pounds’s emphasis in bold and the court’s underlined, is:
Ms. Pounds is currently applying for disability due to migraines, asthma, and depression. She has
a history of depression but states that her current depression is primarily related to her limitation
due to her asthma and migraines. She describes herself as a pretty happy person but she does not
like to be away from home. She may have some difficulty interacting with others on a dally
basis in a work environment. Her ability to respond to supervision is adequate. Her ability to
learn new tasks in the workplace is adequate. She appears capable of functioning independently
and is able to manage her own finances. Overall she describes her medical problems as the
primary limiting factor for her to maintain regular employment. (Tr. 631).
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on this basis that the ALJ failed to give appropriate weight to Dr. Eubanks’s opinion.
There is no reversible error in the ALJ’s handling of these opinions. 5
VII. CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the Commissioner did not rely upon substantial
evidence in reaching her final decision. Accordingly, the decision will be
REVERSED and REMANDED by separate order.
DONE and ORDERED this 17th day of February, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

5

Pounds also objected to the ALJ’s consideration of Dr. Meador’s opinion. The court
discussed it with the asthma listing, although the ALJ erred to the extent he concluded the “great
weight of the medical evidence” pushed against Dr. Meador’s opinion.
13