Lee v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 2/15/2013. (AVC)

FILED
2013 Feb-15 PM 04:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
FLORA A. LEE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

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Case No.: 4:11-CV-3557-RDP

MEMORANDUM OF DECISION
Plaintiff Flora A. Lee (“Plaintiff”) brings this action pursuant to Section 205(g) of the Social
Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security
(“Commissioner) denying her application for a period of disability and disability insurance benefits
(“DIB”) under the Act. 42 U.S.C. § 405(g).
I.

Proceedings Below
Plaintiff filed her application for a period of disability and DIB on December 29, 2008. [R.

79-87].1 Plaintiff alleged a disability onset date of August 25, 2008. [R. 143]. Plaintiff’s
application was denied on February 27, 2009. [R. 64-68]. Plaintiff then requested a hearing before
an Administrative Law Judge (“ALJ”), which was held on June 16, 2010. [R. 23]. In his August
11, 2010 decision, the ALJ determined that Plaintiff was not eligible for a period of disability or DIB
because she failed to meet the disability requirements of the Act and retained the residual functional
capacity to perform light work with restrictions. [R. 14-15, 17-18]. After the Appeals Council

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The Administrative Law Judge’s (“ALJ”) decision states that Plaintiff filed her application on December 5,
2008. [R. 10]. However, this court’s review of the record indicates that Plaintiff’s application is dated December 29,
2008. [See R. 79-87]. The court makes note of this date only for clarification purposes only. When Plaintiff’s
application was filed is inapposite to this court’s ruling.

denied Plaintiff’s request for review of the ALJ’s decision, that decision became the final decision
of the Commissioner, and therefore a proper subject of this court’s review. [R. 1]. 42 U.S.C. §
405(g).
At the time of the hearing in question, Plaintiff was 48 years old and had received a GED.
[R. 29]. Plaintiff had previously worked as a closing checker for a telecommunications business.
[R. 29-30]. Plaintiff alleges she suffers from fibromyalgia and depression. [R. 12-13, 31, 33, 38].
According to Plaintiff, she has been unable to work or engage in substantial gainful activity since
August 25, 2008. [R. 143].
Plaintiff complains that her fibromyalgia causes pain in her back, feet, legs, shoulder, and
right arm. [R. 32-33]. Plaintiff states that she gets “sharp knife pains” in her feet and legs, and that
the pains make her feel like she will fall down, thus requiring her to use a walker. [R. 33]. Plaintiff
also asserts that she cannot use her right arm or lift it very high and that her shoulder pain sometimes
makes her feel as though she is going to “pass out.” [R. 33]. Plaintiff complains her back pain is
continuous and that if she stands or sits for very long she feels as though she is going to “pass out”
and has to lie down. [R. 32-33]. Plaintiff has testified that her back pain prevents her from sitting
for more than 15 to 20 minutes or standing for more than 30 minutes. [R. 33-34].
Plaintiff has testified that she lives alone and does not do any housework or activities. [R.
35]. Plaintiff states that she lies down “almost all day long.” [R. 35]. She further states that she
spends about eight hours a day on the couch or in her bed. [R. 35]. Plaintiff states that she does no
lifting and that her family members carry her groceries in and out of her house for her. [R. 34].
Plaintiff complains that the medicine prescribed for her fibromyalgia is not working and that
previous cortisone blocks have not helped the pain in her back and neck. [R. 37]. Plaintiff further
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states that she has recently added a second medication for her depression. [R. 37]. Plaintiff has
testified that she has trouble sleeping and concentrating and suffers from memory loss. [R. 37-39].
On February 10, 2009, shortly after Plaintiff’s claim of disability was filed, Dr. Jack L.
Zaremba examined Plaintiff at the behest of the Social Security Administration. [R. 279-284]. After
a physical examination, Dr. Zaremba diagnosed Plaintiff with the following: fibromyalgia;
hypertension; venous insufficiency with lower extremity edema; hypothyroidism; and chronic pain.
[R. 284]. Dr. Zaremba’s consultative examination report also indicates that Plaintiff “can sit
comfortably for one hour, but [she] then needs to lie down or change position.” [R. 283].
The Social Security Administration provided Dr. Zaremba’s consultative report to Dr.
Richard Whitney, a state agency doctor who provided a physical residual functional capacity
assessment. [R. 289-296]. Based upon a review of Dr. Zaremba’s report and Plaintiff’s past medical
records from various physicians, Dr. Whitney’s February 25, 2009 assessment concluded that
Plaintiff could perform the demands of light work. [R. 290-291].
On February 25, 2009, Dan Lowery, Ph.D., examined Plaintiff at the behest of the Social
Security Administration. [R. 285-288]. After Dr. Lowery’s psychological evaluation, he concluded
that Plaintiff has pain disorder associated with a general medical condition, but ruled out major
depressive disorder. [R. 288]. Based upon information provided by Plaintiff, Dr. Lowery noted that
Plaintiff “is able to stand an hour before she needs to sit due to pain and is able to sit two hours
before she needs to stand due to pain.” [R. 285]. Dr. Lowery also noted in his consultative report
that Plaintiff’s “verbal reports of pain and depression [were] inconsistent with her demeanor during
the interview.” [R. 288]. Dr. Lowery’s report also indicates that Plaintiff “displayed significant pain
behaviors while walking and during the process of sitting but not while seated.” [R. 288]. Dr.
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Lowery further noted that Plaintiff’s “mood was energetic and not depressed” and that her
“interpersonal skills were high and she demonstrated no significant cognitive impairments from the
mental status evaluation.” [R. 288].
On February 26, 2009, Larry H. Dennis, Ph.D. reviewed Plaintiff’s records and completed
a psychiatric review technique for and a mental capacity residual functional capacity assessment. [R.
299-316]. Dr. Dennis reviewed records from Plaintiff’s physician, Dr. Jane Dow, at Grayson &
Associates as well as Dr. Lowery’s consultative report and found that Plaintiff could attend to simple
tasks for two hours over an 8-hour day, could carry out short and simple instructions, should have
casual contact with the general public, should receive criticism in a non-confrontational manner,
would work best with a few familiar coworkers, and could handle gradual infrequent changes in the
work setting. [R. 315].
On March 8, 2010, Robert A. Strorjohann, Ph.D., examined Plaintiff at her attorney’s request.
[R. 319-331]. Based upon his examination of Plaintiff, Dr. Storjohann diagnosed Plaintiff with:
major depression, recurrent, severe, without psychotic features, chronic; generalized anxiety
disorder; pain disorder; personality disorder NOS, mixed type; and fibromyalgia (by patient report);
occupational and economic problems. [R. 325]. As a result of these impairments, Dr. Strorjohann
opined that Plaintiff appeared to have “marked deficits in her ability to respond appropriately to
supervision, coworkers, and work pressures in a work setting.” [R. 325]. Dr. Storjohann also noted
that Plaintiff’s speech, orientation, concentration/attention, memory, fund of information,
abstraction, thought processes, thought content, and judgment/insight were all normal or as expected.
[R. 322]. Dr. Strojohann completed a supplemental questionnaire as to residual functional capacity

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and determined that Plaintiff’s current medical condition prevented her from returning to gainful
employment. [R. 329].
Also in March 2010, Plaintiff’s attorney arranged for her to be examined by Dr. David
McLain. [R. 16, 332-340]. Upon examination on March 31, 2010, Dr. McClain diagnosed Plaintiff
with fibromyalgia with 18 of 18 tender point areas; adhesive capsullitis of the right should; arthritis
of the hands; and arthritis of the knees. [R. 339]. Dr. McClain’s consultative report concludes that
Plaintiff is “totally disabled from any employment.” [R. 339]. As part of his assessment, Dr.
McClain completed a functional capacities evaluation and checked boxes indicating that Plaintiff
could stand/walk for up to two hours in an 8-hour work day, could sit for two to four hours in an 8hour work day, and could drive for 20 to 30 minutes at a time. [R. 334]. Dr. McClain also noted that
Plaintiff could occasionally lift up to 10 pounds, could do simple grasping and fine manipulation but
no pushing, pulling, or operating of foot controls. [R. 334]. Dr. McClain also concluded that
Plaintiff could bend, climb, and reach occasionally. [R. 335]. He further stated that significant side
effects of Plaintiff’s pain medication were expected and would limit her ability to effectively perform
her work duties or daily tasks. [R. 332]. Ultimately, Dr. McClain opined that Plaintiff would never
be released to return to work. [R. 335].
In response to a hypothetical question presented by the ALJ during the hearing, a vocational
expert (“VE”) testified that, based upon the observations and limitations contained in Dr. Lowery’s
and Dr. Dennis’s reports, Plaintiff could perform light work such as a laundry worker, assembler,
or hand packer. [R. 51-52]. In response to hypothetical questions presented by the ALJ during the
hearing, the VE testified that based upon the observations and limitations contained in Dr.

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Storjohann’s and Dr. McClain’s consultative reports, no jobs exist in the regional or national
economy that Plaintiff could perform. [R. 52-53].
II.

ALJ Decision
Determination of disability under the Act requires a five step analysis. See 20 C.F.R. § 404.1

et. seq. First, the Commissioner determines whether the claimant is working. Second, the
Commissioner determines whether the claimant has an impairment which prevents the performance
of basic work activities. Third, the Commissioner determines whether claimant’s impairment meets
or equals an impairment listed in Appendix 1 of Part 404 of the Regulations. Fourth, the
Commissioner determines whether the claimant’s residual functional capacity can meet the physical
and mental demands of past work. The claimant’s residual functional capacity is what the claimant
can do despite her impairment. Finally, the Commissioner determines whether the claimant’s age,
education, and past work experience prevent the performance of any other work. In making this final
determination, the Commissioner will use the Medical-Vocational Guidelines in Appendix 2 of Part
404 of the Regulations when all of the claimant’s vocational factors and residual functional capacity
are the same as the criteria listed in the Appendix. If the Commissioner finds that the claimant is
disabled or not disabled at any step in this procedure, the Commissioner will not review the claim
any further.
The court recognizes that “the ultimate burden of proving disability is on the claimant” and
that the “claimant must establish a prima facie case by demonstrating that [s]he can no longer
perform [her] former employment.” Freeman v. Schweiker, 681 F.2d 727, 729 (11th Cir. 1982)
(other citations omitted). Once a claimant shows that she can no longer perform her past

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employment, “the burden then shifts to the [Commissioner] to establish that the claimant can
perform other substantial gainful employment.” Id.
The ALJ found that Plaintiff has not engaged in substantial gainful activity since August 25,
2008, and that Plaintiff acquired sufficient quarters of insurance coverage to remain fully insured
through December 31, 2013. [R. 12]. Based upon the medical evidence presented, the ALJ
concluded that Plaintiff has fibromyalgia and depression. [R. 12]. Nonetheless, the ALJ determined
that Plaintiff’s impairments neither meet nor equal the requirements for any impairment in the
Listing of Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 14]. After consideration
of the medical evidence, the ALJ found that Plaintiff retains the residual functional capacity to
perform light work as defined in 20 C.F.R. 404.1567(b) with no climbing ladders/ropes/scaffolds,
no exposure to hazards, no memory problems, simple tasks for two hours at a time in an 8-hour day,
simple instructions, casual contact with the general public, and gradual changes in work settings.
[R. 15].
The ALJ further concluded that Plaintiff is unable to perform her past relevant work and that
transferability of job skills is immaterial to the determination of disability because Plaintiff is not
disabled under the Medical-Vocational Rules. [R. 17]. See 20 C.F.R. Part 404, Subpart P, Appendix
2; SSR 82-41, 1982 WL 31389. The ALJ also found that there are a significant number of jobs in
the national economy that Plaintiff could perform, including laundry worker, assembler, and hand
packer, all of which allow Plaintiff to work with the above-mentioned limitations. [R. 17-18]. Thus,
the ALJ ruled that Plaintiff is not disabled as that term is defined in the Act, and therefore, that she
is not entitled to a period of disability or DIB. [R. 18].

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III.

Plaintiff’s Argument for Remand or Reversal
Plaintiff seeks to have the ALJ’s decision, which became the final decision of the

Commissioner following the denial of review by the Appeals Council, reversed, or in the alternative,
remanded for further consideration. [Pl.’s Memo. 15]. Plaintiff argues that the ALJ’s decision is
not supported by substantial evidence and improper legal standards were applied because the ALJ
rejected the opinions of a Dr. David McClain, M.D., a Birmingham rheumatologist and Robert
Storjohann, Ph.D., a licensed psychologist in determining her residual functional capacity. [Pl.’s
Memo 2-3, 12-13].
IV.

Standard of Review
The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405 (g); Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847 F.2d 698,
701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§
405(g) and 1383(c) mandate that the Commissioner’s findings are conclusive if supported by
“substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court
may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the
Commissioner; instead, it must review the final decision as a whole and determine if the decision
is reasonable and supported by substantial evidence. See id. (citing Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of evidence;
“[i]t is such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations
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omitted). If supported by substantial evidence, the Commissioner’s factual findings must be
affirmed even if the evidence preponderates against the Commissioner’s findings. See Martin, 894
F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s findings is limited in
scope, the court also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at
701. For the reasons set forth below, the ALJ’s decision denying Plaintiff benefits is due to be
reversed and remanded.
V.

Discussion
Plaintiff agrees with the ALJ’s finding that she suffers from fibromyalgia and depression.

[Pl.’s Memo 5]. However, Plaintiff argues that the ALJ erred in his determination concerning the
negative impact of Plaintiff’s impairments. [Pl.’s Mem. 5]. Specifically, Plaintiff contends that the
ALJ erred in disregarding the conclusions reached by two consultative physicians, Dr. Strorjohann
and Dr. McClain, and relying instead upon the opinion evidence of a non-examining reviewing
physician, Dr. Whitney, to reach his conclusion that Plaintiff has the residual functional capacity to
perform light work. [Pl.’s Mem. 9].
The Eleventh Circuit recently clarified the standard the Commissioner is required to utilize
when considering medical opinion evidence. In Winschel v. Commissioner of Social Security, 631
F.3d 1176, 1178-79 (11th Cir. 2011). the Eleventh Circuit held that whenever a physician provides
a statement regarding judgments about the nature and severity of a claimant’s impairments, including
symptoms, diagnosis, and prognosis, what the claimant can and cannot do despite impairments, and
the claimant’s physical and mental restrictions, the statement is an opinion requiring the ALJ “to
state with particularity the weight given to it and the reasons therefor.” Id. “In the absence of such
a statement, it is impossible for a reviewing court to determine whether the ultimate decision on the
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merits of the claim is rational and supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir. 1981). “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.’” Winschel, 825 F.3d at 1179 (quoting Owens v. Heckler, 748
F.2d 1511, 1516 (11th Cir. 1984)). A reviewing court may not ignore the error and proceed to
determine whether the decision is supported by substantial evidence. See id. To simply “say that
[the ALJ’s] decision is supported by substantial evidence approaches an abdication of the court’s
duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.”
Cowart, 662 F.2d at 735 (quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir.1979) (internal
quotation marks omitted)). The question before this court is whether the ALJ’s order complies with
this Circuit’s requirement that ALJ state with some measure of clarity the grounds for assigning
weights to various opinions.2
In reaching his conclusion that Plaintiff has the residual functional capacity to perform light
work, the ALJ does provide some reasons for rejecting the opinions of Dr. Storjohann and Dr.
McLain. [R. 16]. Specifically, the ALJ states that Dr. Strorjohann “only examined [Plaintiff] once
but despite relatively mild findings was clearly influenced to assess marked deficits in her ability to
function in a work setting.” [R. 16]. The ALJ also notes that he rejected Dr. Strojohann’s opinion
because his “own lengthy examination procedure (of two to four hours) indicates that [Plaintiff] can

2

Both parties’ memoranda of law appear to ignore this step of the analysis and instead focus on whether and
why the ALJ assigned appropriate weight to the various medical conclusions contained in the record to reach his
conclusion. However, before the court can determine whether the ALJ’s decision is supported by substantial evidence,
the court must examine the reasons stated by the ALJ for assigning particular weight to various medical opinions.
Winschel, 825 F.3d at 1179. However, as here, and as explained in the text following this note, where the ALJ did not
provide specific reasons–or any reasons–for assigning more weight to the non-examining physician’s report, the court
should not (and cannot) even begin an assessment of whether the ALJ’s decision is supported by substantial evidence.
See id.

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focus, attend, and concentration [sic] when she wants to do so.” [R. 16]. The ALJ goes on to state
that Dr. McLain “accepted [Plaintiff’s] subjective complaints as true such as that she had to quit
work due to her complaints when the evidence shows she laid off and the job downsized.” [R. 16].
The ALJ also noted that these two opinions “appear to be overly sympathetic to [Plaintiff].” [R. 16].
Although the ALJ stated with some particularity his reasons for assigning little to no weigh to these
opinions, the same is not true for the opinions upon which he relies to reach his conclusion regarding
Plaintiff’s residual functional capacity and whether Plaintiff is able to do any work considering this
capacity, age, education, and work experience.
First, as it relates to his conclusion that Plaintiff has the residual functional capacity to
perform light work with various other restrictions [See R. 15], the ALJ does not state with
particularity the weight he gave the very opinions that support his conclusion. The ALJ cites to “the
objective medical evidence” in the record in support of his conclusion that Plaintiff is “limited but
able to perform at least some type of work activity, and in this case, work of a light exertional level.”
[R. 17]. The ALJ also cites Dr. Zaremba’s opinion for the conclusion that Plaintiff “has no
clubbing, cyanosis, or edema of the extremities.” [R. 16].3 Moreover, the ALJ refers to “the above
residual functional capacity asessment.” [R. 16].4 However, it is unclear specifically which opinions
the ALJ relies upon to support his conclusion. Without explaining which opinions support his

3

The ALJ apparently accepted some portion of Dr. Zaremba’s report but seemingly ignored Dr. Zaremba’s
conclusion that Plaintiff’s fibromyalgia “limits her with much of her physical as well as complex activities requiring her
to be sedentary most of the time or in some cases bed bound.” [R. 284].
4
The court notes that, the ALJ referred to two residual functional capacity assesments earlier in his decision.
One is Dr. Whitney’s physical residual functional assessment. [R.13, 280-296]. One is Dr. Dennis’s mental residual
functional capacity assessment. [R. 14, 313-316]. After careful review, it is impossible for the court to determine to
which of the two residual functional assessments the ALJ is referring.

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conclusion, the ALJ cannot state with particularity the weight assigned these opinions and this
information is altogether absent from his decision.
Second, as it relates to the ALJ’s conclusion that a significant number of jobs exist in the
national economy that Plaintiff could perform, the hearing transcript is clear the ALJ’s hypothetical
to the VE incorporated the opinions of Dr. Whitney and Dr. Dennis. [R. 51; See also Court
Transcript Index]. The ALJ does not provide reason for assigning more weight to these opinions.
Not only is the ALJ’s decision lacking the specificity required, it contains no reasoning at all why
these opinions should be assigned more weight than those of Dr. Storjohann and Dr. McLain.
Of course, it goes without saying that the requirement that the ALJ “state with particularity
the weight he gave different medical opinions and the reasons therefor,” Sharfaz v. Bowen, 82 F.2d
278, 279 (11th Cir. 1987), is crucial because regulations establish a hierarchy of medical evidence,
entitling the opinions of treating physician the greatest deference, followed by those of examining
physicians, then non-examining physicians, and finally other medical sources. See 20 C.F.R §
404.1527.5 The regulations dictate that when considering the medical opinions, the administration
“will always consider the medical opinions in [the] case record together with the rest of the relevant
evidence [received].” 20 C.F.R. §§ 404.1527(b), 416.927(b). Moreover, Social Security Ruling
(“SSR”) 96-8p, which addresses residual functional capacity assessments at steps four and five of
the sequential evaluation, dictates that the ALJ must consider and address medical source opinions
and directs, “[i]f the [residual functional capacity] assessment conflicts with an opinion from a

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Here, the opinions rejected by the ALJ are from examining physicians, Dr. Dr. Storjohann and Dr. McLain.
The opinions apparently relied upon and accepted by the ALJ are from non-examining physicians, Dr. Whitney and Dr.
Dennis.

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medical source, the adjudicator must explain why the opinion was not adopted.” SSR 96-8p, 1196
WL 374184, at *7 (S.S.A).
The court is perplexed that the ALJ provided no explanation regarding the weight assigned
to either non-examining physician’s report but that the ALJ did expressly state that he rejected two
examining physicians reports as “pure conjecture” and “overly sympathetic.” [R. 16]. Moreover, the
court is puzzled by the ALJ’s apparent acceptance of some but not all of Dr. Zaremba’s report,
another examining physician, without any explanation of the weight assigned this opinion. Because
here the ALJ did not state with particularity the weight he gave the opinions of the non-examining
physicians in this case, this court cannot determine whether the decision is supported by substantial
evidence. See Winschel, 825 F.3d at 1179. Accordingly, the decision denying Plaintiff’s application
for disability and DIB is due to be reversed and this action remanded.
VI.

Conclusion
The court concludes that the ALJ did not state with specificity the weight assigned to the non-

examining physician’s opinions and the reasons therefor. Thus, the Commissioner’s decision is due
to be reversed and remanded for further evaluation of Dr. Whitney and Dr. Dennis’s reports by the
ALJ and a clear statement as to the weight afforded their assessments. All medical evidence
appropriate for consideration by the ALJ at that time shall also be considered. A separate order in
accordance with this memorandum of decision will be entered.
DONE and ORDERED this

15th

day of February, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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