Tenney v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/25/2018. (PSM)

FILED
2018 Sep-25 PM 01:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBINSON L. TENNEY,
Plaintiff,
vs.
NANCY BERRYHILL,
Commissioner of
Social Security,
Defendant.

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2:17-cv-0761-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Robinson L. Tenney, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
his applications for a Period of Disability and Disability Insurance Benefits
(“DIB”). 1 Mr. Tenney timely pursued and exhausted his administrative remedies

In a decision dated May 20, 2014, the Administrative Law Judge (“ALJ”) found the
plaintiff was not disabled. (Tr. at 124-44.) The Appeals Council remanded the case on December
8, 2015. (Tr. at 145-49.) Among the Appeals Council’s stated reasons for remanding the case to
the ALJ was that the ALJ, despite giving “considerable” weight to the opinion of the state agency
non-examining medical expert, Dr. Robert Estock, which found that Plaintiff was limited in his
ability to interact appropriately with supervisors, co-workers, and the general public, did not
include corresponding limitations in Plaintiff’s RFC. (Tr. at 147.) Following another hearing on
March 1, 2016, the ALJ again issued an unfavorable decision on June 27, 2016. (Tr. at 219, 12-32.)
The Appeals Council denied the plaintiff’s request for review. (Tr. at 1-3.)

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and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§
405(g), 1383(c)(3).
Mr. Tenney was fifty-three years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision. (Tr. at 40.) He has a graduate equivalent degree
(“GED”). (Tr. at 59.) His past work experiences include employment as a
department store manager, an office manager, and a security guard. (Tr. at 25.) Mr.
Tenney claims that he became disabled on September 18, 2009. (Tr. at 27.) He
claims he is disabled due to degenerative disc disease and depression. (Tr. at 24.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”).

See id. §§

404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.

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The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s

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residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work.

See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

If the plaintiff’s

impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Mr. Tenney
meets the nondisability requirements for a period of disability and DIB and was
insured through December 31, 2013. (Tr. at 16.) He further determined that Mr.
Tenney has not engaged in SGA from the alleged onset of his disability through his
date last insured. (Tr. at 19.) According to the ALJ, Plaintiff’s impairments of
depression, polysubstance abuse, degenerative disc disease, and carpal tunnel

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syndrome are considered “severe” based on the requirements set forth in the
regulations. (Id.) However, he found that these impairments neither meet nor
medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. at 20.) The ALJ did not find Mr. Tenney’s allegations to be
totally credible, and he determined that he has the following RFC: to perform light
work as defined in 20 C.F.R. § 404.1567(b), which allows occasional stooping and
crouching, no driving, and no unprotected heights; he should be restricted to
simple, repetitive, non-complex tasks; and he should have only casual contact with
the general public. (Tr. at 22.)
According to the ALJ, Mr. Tenney is unable to perform any of his past
relevant work. (Tr. at 25.) Through the dated last insured, considering his age,
education, work experience, and RFC, the ALJ found that there were jobs that
existed in significant numbers in the national economy that Plaintiff could perform,
such as cashier II, production assembler, and parking lot attendant. (Tr. at 27.) The
ALJ concluded his findings by stating that Plaintiff “was not under a ‘disability,’ as
defined in the Social Security Act, from September 18, 2009, the alleged onset
date, through December 31, 2013, the date last insured.” (Id.)

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II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)).

“The substantial evidence standard permits administrative decision

makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the

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proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion
One of Mr. Tenney’s arguments in support of reversal and remand is that

the ALJ failed to state the weight he gave to the opinion of David Eakin, Ph.D., his
treating psychologist. 2 The Court agrees that this case must be reversed and
remanded on that ground.
The weight afforded to a medical opinion regarding the nature and severity
of a claimant’s impairments depends, among other things, upon the examining and
treating relationship the medical source had with the claimant, the evidence the
medical source presents to support the opinion, how consistent the opinion is with
Plaintiff also argued that the ALJ erred in his consideration of the opinion of the state
agency non-examining medical expert, Dr. Estock.
2

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the record as a whole, and the specialty of the medical source. See 20 C.F.R. §§
404.1527(d), 416.927(d). Within the classification of acceptable medical sources are
the following different types of sources that are entitled to different weights of
opinion: 1) a treating source, or a primary physician, which is defined in the
regulations as “your physician, psychologist, or other acceptable medical source
who provides you, or has provided you, with medical treatment or evaluation and
who has, or has had, an ongoing treatment relationship with you;” 2) a non-treating
source, or a consulting physician, which is defined as “a physician, psychologist, or
other acceptable medical source who has examined you but does not have, or did
not have, an ongoing treatment relationship with you;” and 3) a non-examining
source, which is a “a physician, psychologist, or other acceptable medical source
who has not examined you but provides a medical or other opinion in your case . . .
includ[ing] State agency medical and psychological consultants . . . .” 20 C.F.R. §
404.1502.
The regulations and case law set forth a general preference for treating
medical sources’ opinions over those of non-treating medical sources, and nontreating medical sources over non-examining medical sources. See 20 C.F.R. §
404.1527(d)(2); Ryan v. Heckler, 762 F.2d 939, 942 (11th Cir. 1985). Thus, a
treating physician’s opinion is entitled to “substantial or considerable weight

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unless ‘good cause’ is shown to the contrary.” Crawford, 363 F.3d at 1159 (quoting
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotations
omitted). “Good cause” exists for an ALJ to not give a treating physician’s opinion
substantial weight when the: “(1) treating physician’s opinion was not bolstered by
the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records.”
Phillips, 357 F.3d at 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also
Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good
cause” existed where the opinion was contradicted by other notations in the
physician’s own record). On the other hand, the opinions of a one-time examiner or
of a non-examining medical source are not entitled to the initial deference afforded
to a physician who has an ongoing treating relationship with a plaintiff. McSwain v.
Bowen, 814 F.2d 617, 619 (11th Cir. 1987). However, an ALJ “may reject the
opinion of any physician when the evidence supports a contrary conclusion.”
McCloud v. Barnhart, 166 F. App’x 410, 418–19 (11th Cir. 2006) (citing Bloodsworth
v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983)).
The record indicates that Dr. Eakin has been treating Plaintiff for mental
health issues at the Birmingham, Alabama Veterans Administration Medical
Center since March 2001. (Tr. at 363-1148, 1153-1216, 1223-1404.) In the ALJ’s

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first hearing decision denying Plaintiff’s claim for disability, dated May 20, 2014,
the ALJ discussed several treatment notes from Dr. Eakin: (1) a follow-up
examination shortly after Plaintiff was hospitalized for suicidal ideations in
November 2011, in which Dr. Eakin diagnosed Plaintiff with a Global Assessment
of Functioning (“GAF”) score of 60 (tr. at 132, 800-1148);3 (2) a March 2012
examination in which Dr. Eakin opined that Plaintiff’s depression was in remission
and diagnosed him with a GAF score of 70 (tr. at 133, 800-1148); (3) a November
2012 examination for reported depression in which Dr. Eakin assessed Plaintiff
with a single episode of severe depression without psychotic features and a GAF
score of 48 (tr. at 133, 800-1148); (4) an examination for reported anxiety in
September 2013 in which Dr. Eakin diagnosed Plaintiff with moderate depression
and a GAF score of 52 (tr. at 133, 1153-1216); and (5) a follow-up examination in
October 2013 in which Dr. Eakin diagnosed Plaintiff with a GAF score of 52 (tr. at
134, 1153-1216). The ALJ did not specify any weight that he was giving to these
treatment notes in his first denial decision.
GAF scores reflect an examiner’s subjective opinion regarding a patient’s ability to
function. See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV-TR) 32-34 (4th ed. 2000, Text Rev.) (describing the GAF scale used in Axis V of a
diagnostic multiaxial evaluation). A GAF score falling in the range of 61-70 indicates only mild
symptoms. See id. A GAF score falling in the range of 51-60 indicates “[m]oderate symptoms
(e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).” See id. A GAF score of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job, cannot work).” See id.
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After the Appeals Council remanded this case back to the ALJ in December
2015, Dr. Eakin completed a “Medical Source Statement of Ability to Do WorkRelated Activities (Mental)” on March 31, 2016. (Tr. at 1217-19). In this opinion,
Dr. Eakin indicated that Plaintiff had moderate limitations in his ability to
understand, remember, and carry out simple instructions; moderate limitations in
his ability to make judgments on simple work-related decisions; marked limitations
in his ability to understand, remember, and carry out complex instructions; marked
limitations in his ability to interact with the public, co-workers, and supervisors;
and marked limitations in his ability to respond appropriate to changes in routine
work setting. (Tr. at 1217-18). In the ALJ’s second denial decision, dated June 27,
2016, the ALJ discussed Dr. Eakin’s medical source statement, outlining the
findings as stated above. (Tr. at 19.) However, the ALJ did not specifically state
what weight, if any, he was giving to Dr. Eakin’s medical source statement.
The regulations provide that an ALJ must consider all medical opinions in a
claimant’s case record, together with other relevant evidence. 20 C.F.R. §
404.1527(b). Eleventh Circuit case law is clear that “the ALJ must state with
particularity the weight given to different medical opinions and the reasons
therefor.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)
(citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). In the absence of

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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. Id. “Therefore, when the ALJ fails to state with at least some measure of
clarity the grounds for his decision, we will decline to affirm simply because some
rationale might have supported the ALJ’s conclusion.” Id. (internal quotation
marks omitted). In Winschel, the Eleventh Circuit reversed an ALJ’s denial of
benefits after determining that it was “possible that the ALJ considered and
rejected” two medical opinions because “without clearly articulated grounds for
such a rejection, we cannot determine whether the ALJ’s conclusions were rational
and supported by substantial evidence.” Id.; see also McClurkin v. Social Sec.
Admin., 625 F. App’x 960, 962-63 (11th Cir. 2015) (unpublished) (failing to state
weight given to non-examining physician’s opinion constitutes reversible error).
The Court agrees with Plaintiff that the ALJ’s failure to state what weight he
was giving, if any, to Dr. Eakin’s medical source statement was reversible error in
this case. As an initial matter, Dr. Eakin’s medical source statement is without
question a “medical opinion” under the regulations and Eleventh Circuit case law.
See Winschel, 631 F.3d at 1178–79 (holding that whenever a physician offers a
statement reflecting judgments about the nature and severity of a claimant’s
impairments, including symptoms, diagnosis, and prognosis; what the claimant can

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still do despite his or her impairments, and the claimant’s physical and mental
restrictions, the statement constitutes an opinion, which requires the ALJ to state
with particularity the weight given to it and the reasons therefor) (citing 20 C.F.R.
§§ 404.1527(a)(2), 416.927(a)(2)). Moreover, as in Winschel, without an explicit
statement of weight, this Court does not have a basis for reviewing whether the
ALJ’s decision was supported by substantial evidence. This is illustrated by the fact
that the ALJ gave “significant” weight to the opinion of the non-examining
medical expert, Dr. Estock, who opined in 2012 that Plaintiff was able to
understand, remember, and carry out simple instructions, but would have greater
difficulty with more detailed and complex instructions; was able to appropriately
manage at least casual and informal contact with the general public, with coworkers, and with supervisors; and that proximity to others should not be intensive
or prolonged, as Plaintiff might have difficulty interacting extensively with others
when taxed or stressed. (Tr. at 119-123). The ALJ incorporated many elements of
Dr. Estock’s opinion into Plaintiff’s RFC, stating that Plaintiff “should be
restricted to simple, repetitive, non-complex tasks, and should have only casual
contact with the general public.” (Tr. at 22.) However, differing from the opinion
of Dr. Estock, Dr. Eakin opined that Plaintiff had “marked” limitations in
interacting appropriately with the public, supervisors, and co-workers. (Tr. at 19.)

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“Marked” limitations are described in the regulations as limitations that seriously
interfere with one’s ability to function and indicate substantial loss in particular
areas of mental functioning, second only to “extreme” limitations. See 20 C.F.R. §
404.1520(a). The ALJ’s RFC, which allows for Plaintiff to have casual contact with
the general public and says nothing about contact with supervisors and co-workers,
suggests that at least some of the elements in Dr. Eakin’s medical source statement
were not considered and/or rejected. Thus, as in Winchel, “[i]t is possible that the
ALJ considered and rejected th[is] medical opinion[], but without clearly
articulated grounds for such a rejection, [this Court] cannot determine whether the
ALJ’s conclusions were rational and supported by substantial evidence.” See 631 F.
3d at 1179.
The Commissioner argues that the ALJ implicitly credited Dr. Eakin’s
medical source statement, so any error by the ALJ in failing to expressly state what
weight he was assigning the opinion was harmless. The Court disagrees for the
reasons state above. Indeed, this case is not like some unpublished Eleventh Circuit
opinions in which the court held that error on the part of the ALJ for failing to state
the weight he or she was giving to the opinion of a physician was harmless because
the RFC was consistent with the physician’s opinion and remand would be futile.
See, e.g., Colon v. Colvin, 660 F. App’x 867, 870 (11th Cir. 2016) (distinguishing

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Winschel and affirming the Commissioner’s decision because the court was not left
pondering why the ALJ made the decision he made, noting that the court would not
ignore the rest of the opinion merely due to the ALJ’s failure to assign the weight to
or mention a doctor’s opinion); Carson v. Comm’r of Soc. Sec., 373 F. App’x 986,
988-89 (11th Cir. 2010) (affirming an implicit rejection of a doctor’s opinion where
the ALJ’s other findings on the subject matter of the opinion were clear and
supported by substantial evidence); Denomme v. Comm’r of Soc. Sec., 518 F. App’x
875, 878 (11th Cir. 2013) (ALJ’s failure to specify weight accorded to examiners’
opinions was harmless where RFC was consistent with examiners’ opinions);
Caldwell v. Barnhart, 261 F. App’x 188, 191 (11th Cir. 2008) (absence of weight was
harmless error where psychologist’s opinions did not contradict the ALJ’s
findings).
The Court also notes that the fact that the ALJ had also discussed Dr.
Eakin’s treatment notes in his first denial decision does not make his failure to
assign weight to his subsequent medical source statement harmless error. While the
ALJ said he was incorporating by reference the evidence set forth in his prior
decision into his second decision (see tr. at 19), and that evidence included
treatment notes from Dr. Eakin when he saw Plaintiff at the Veteran’s
Administration Medical Center in November 2011, March 2012, November 2012,

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September 2013, and October 2013 (see tr. at 132-34), that evidence, if anything,
reveals that Dr. Eakin certainly established an ongoing treating relationship with
Plaintiff during the time period under consideration by the ALJ—September 2009
through December 2013—and if the ALJ indeed intended to discount Dr. Eakin’s
opinions based on that treating relationship, he had to have had “good cause” to do
so pursuant to the regulations and Eleventh Circuit case law.
On remand, the ALJ must state with particularity the weight given to Dr.
Eakin’s opinion, and to the extent he did not do so, the weight given to each
treating and non-treating physician’s opinion. 4
IV.

Conclusion
For the reasons set forth herein, and upon careful consideration of the

administrative record and briefs of the parties, the decision of the Commissioner of
Social Security denying Plaintiff’s claim for a period of disability and DIB is
REVERSED and REMANDED for further administrative proceedings consistent
with this opinion. A separate closing order will be entered.

The ALJ’s error, discussed above, is dispositive of this case. Therefore, it is unnecessary
to address Plaintiff’s remaining argument. See note 1, supra. See also Diorio v. Heckler, 721 F.2d
726, 729 (11th Cir. 1983) (on remand the ALJ must reassess the entire record); McClurkin, 625 F.
App’x at 963 n.3 (no need to analyze other issues when case must be reversed due to other
dispositive errors).
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DONE and ORDERED on September 25, 2018.

_____________________________
L. Scott Coogler
United States District Judge
160704

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