McCright v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 4/11/2014. (KAM, )

FILED
2014 Apr-11 PM 02:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JAMES MCCRIGHT,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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) Case No.: 4:13-CV-1206-VEH
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MEMORANDUM OPINION
Plaintiff James Larry McCright (“Mr. McCright”) brings this action under 42
U.S.C. § 405(g), Section 205(g) of the Social Security Act. He seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”), who denied his application for Supplemental Security Income
(“SSI”).1 Mr. McCright timely pursued and exhausted his administrative remedies
available before the Commissioner. The case is thus ripe for review under 42 U.S.C.

1

In general, the legal standards applied are the same regardless of whether a claimant seeks
Disability Insurance Benefits (“DIB”) or SSI. However, separate, parallel statutes and regulations
exist for DIB and SSI claims. Therefore, citations in this opinion should be considered to refer to
the appropriate parallel provision as context dictates. The same applies to citations of statutes or
regulations found in quoted court decisions.

§ 405(g).2
FACTUAL AND PROCEDURAL HISTORY
Mr. McCright was 44 years old at the time of his hearing before the
Administrative Law Judge (“ALJ”). (Tr. 37). He has completed the seventh grade.
(Tr. 38). His past work experience includes employment as a machinist, welder, and
construction laborer. (Tr. 58). He claims he became disabled on January 1, 2009, due
to symptoms and limitations related to back, leg, and neck pain and depression. (Tr.
15, 153, 183). His last period of work ended on August 5, 2010. (Tr. 183).
On November 2, 2010, Mr. McCright protectively filed a Title XVI application
for SSI. (Tr. 176). On January 18, 2011, the Commissioner initially denied this claim.
(Tr. 89). Mr. McCright timely filed a written request for a hearing on March 7, 2011.
(Tr. 99).
The ALJ conducted a hearing on the matter on May 7, 2012. (Tr. 33). On May
22, 2012, the ALJ issued his opinion concluding Mr. McCright was not disabled and
denying him benefits. (Tr. 25-27). On April 26, 2013, the Appeals Council issued a
denial of review on his claim. (Tr. 1-5).
Mr. McCright filed a Complaint with this court on June 27, 2013, seeking

2

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
2

review of the Commissioner’s determination. (Doc. 1). The Commissioner answered
on October 28, 2013. (Doc. 7). Mr. McCright filed a supporting brief on January 14,
2014 (Doc. 11), and the Commissioner responded with her own on February 10,
2014. (Doc. 12). With the parties having fully briefed the matter, the court has
carefully considered the record and reverses and remands the decision of the
Commissioner.
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
3

standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.3 The Regulations define “disabled” as
“the inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
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.

3

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499, current through January 24, 2014.
4

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)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
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, 56263 (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.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After consideration of the entire record, the ALJ made the following findings:
5

1.

Mr. McCright had not engaged in substantial gainful activity since
January 1, 2009, the alleged disability onset date. (Tr. 25).

2.

He had the following severe impairments: lumbar degenerative disc
disease and status post L4-S1 hemilaminectomy. (Tr. 25-26).

3.

He did not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Tr. 26).

4.

He had the residual functioning capacity (“RFC”) to perform a reduced
range of light work. Id.

5.

He was unable to perform any past relevant work. Id.

6.

Considering his age, education, work experience, and residual
functioning capacity, there are light jobs that existed in significant
numbers in the national economy that he can perform. (Tr. 26).

7.

He had not been under a disability, as defined in the Social Security Act,
from November 2, 2010 through the date of this decision. Id.
ANALYSIS

The court may only reverse a finding of the Commissioner 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

6

Cir. 1980)).4 However, the court “abstains

from reweighing the evidence or

substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Mr. McCright urges this court to reverse the Commissioner’s decision to deny
him benefits on the grounds that the ALJ substituted his own opinion for that of the
examining and treating physicians. (Doc. 11 at 16). He also asserts that “the ALJ
failed in his duty to develop a full and fair record” and “denied the claimant a
reasonable opportunity to confront the evidence against him.” (Doc. 11 at 12). In its
review, this court finds that the ALJ’s decision was not supported by substantial
evidence and that the ALJ failed to fully develop the record. Accordingly, the court
remands the case for further development and consideration.
I.

The ALJ did not have sufficient evidence for the RFC finding.5
In this appeal, Mr. McCright asserts that the ALJ substituted his own judgment

for that of Mr. McCright’s physicians, and that in doing so, he committed reversible
error. The Eleventh Circuit has held that “[a]n ALJ sitting as a hearing officer abuses
his discretion when he substitutes his own uninformed medical evaluations for those

4

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).
5

The undersigned has rendered a comparable decision from which the framework, analysis,
and disposition of this case, in part, persuasively flow. See Cannon v. Astrue, No. 5:11-cv-2022VEH, 2012 WL 3030580 (N.D. Ala. July 25, 2012).
7

of a claimant’s treating physicians.” Marbury v. Sullivan, 957 F.2d 837, 840 (11th
Cir. 1992).
The ALJ’s disability determination is not supported by substantial evidence
because there is not a medical opinion by an examining physician in support of the
ALJ’s RFC determination. Without a proper basis in the record for the ALJ’s opinion,
the ALJ substituted his own opinion in making the RFC determination. Accordingly,
the court agrees with Mr. McCright that, under the circumstances of this case, the
ALJ committed reversible error.6
A.

In the absence of a supporting medical source statement or physical
capacities evaluation upon which the ALJ could have based his
opinion, the ALJ’s opinion was not supported by substantial
evidence.

The only physical capacities evaluation upon which the ALJ has based his
opinion is that of a reviewing physician, Dr. Heilpern. The record contains the notes
of four physicians: two treating, one consultative, and one reviewing. The ALJ
assigned little weight to the medical source statement of the consultative physician,
Dr. Teschner (Tr. 23), and the two treating physicians did not produce a medical
source statement. (Tr. 220-46, 255-74). The opinion of the reviewing physician alone
did not constitute substantial evidence for the ALJ’s RFC determination.

6

As a result, the court does not reach the merits of the other issues presented on appeal.
8

1.

The ALJ could not base his opinion on the findings of the
examining physicians.

Two treating physicians evaluated Mr. McCright, neither of whom provided
a medical source statement, and the only medical source statement provided was
discounted by the ALJ. As another district judge of this court aptly explained the RFC
issue in the context of an ALJ who comparably determined, without the benefit of a
physical capacities evaluation conducted by a physician, that the claimant was not
disabled:
While the Record contains Ms. Rogers’[s] medical treatment history, it
lacks any physical capacities evaluation by a physician. The ALJ made
his residual functional capacity evaluation without the benefit of such
evaluation. An ALJ is allowed to make some judgments as to residual
physical functional capacity where so little physical impairment is
involved that the effect would be apparent to a lay person.
Manso–Pizarro v. Secretary of Health and Human Services, 76 F.3d 15
(1st Cir. 1996). In most cases, including the case at bar, the alleged
physical impairments are so broad, complex, and/or ongoing that a
physician's evaluation is required. Id. In order to have developed a full,
fair record as required under the law, the ALJ should have re-contacted
Ms. Roger’s [sic] physicians for physical capacities evaluations and/or
sent her to physicians for examinations and physical capacities
evaluations. Further, Ms. Rogers’[s] ability to lift and to manipulate
objects must be thoroughly evaluated by at least one physician. These
evaluations shall be obtained upon remand. Ms. Rogers’[s] residual
functional capacity was not properly determined nor supported by
substantial evidence in this case.
Rogers v. Barnhart, No. 3:06–CV–0153–JFG, (Doc. 13 at 5) (N.D. Ala. Oct. 16,
2006) (emphasis added); see also Manso–Pizarro, 76 F.3d at 17 (“With a few
9

exceptions (not relevant here), an ALJ, as a lay person, is not qualified to interpret
raw data in a medical record.” (emphasis added) (citing Perez v. Sec'y of Health &
Human Servs., 958 F.2d 445, 446 (1st Cir. 1991))); Rohrberg, 26 F. Supp. 2d at 311
(“An ALJ is not qualified to assess a claimant’s RFC on the basis of bare medical
findings, and as a result an ALJ's determination of RFC without a medical advisor’s
assessment is not supported by substantial evidence.” (emphasis added) (citing
Rodriguez v. Sec’y of Health & Human Servs., 893 F.2d 401, 403 (1st Cir. 1989)));
cf. Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir. 1973) (“To meet such a prima
facie case it is not sufficient for the government to rely upon inconclusive medical
discussion of a claimant’s problems without relating them to the claimant's residual
capacities in the field of employment.”) (emphasis added).
Dr. LaGanke treated Mr. McCright from 2008 to 2010. (Tr. 220-46). The
record contains Dr. LaGanke’s notes during that time, describing Mr. McCright’s
self-reported pain and levels of pain medications. Id. Mr. McCright began treatment
with the Quality of Life Clinic in 2011. (Tr. 255-74). The notes from the Quality of
Life Clinic indicate similar complaints of pain. Id. While the notes contain selfreported levels of pain and objective findings such as pulse, muscle tone, and range
of motion, the notes do not contain evidence of how Mr. McCright’s physical
impairments relate to his ability to work such as that found in a medical source
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statement.
The ALJ assigned little weight to the opinion of Dr. Teschner, the only
physician to both evaluate Mr. McCright and prepare a medical source statement. (Tr.
23). Dr. Teschner diagnosed Mr. McCright with chronic lumbar spinal pain, chronic
cervical spinal pain, opiate dependence, and situational depression. (Tr. 20, 283). In
her medical source statement, Dr. Teschner stated that Mr. McCright could not lift or
carry more than ten pounds, could not sit for longer than two hours or stand and walk
for longer than one hour in an eight hour workday. (Tr. 20, 291). Additionally, he had
marked limitations in his ability to interact in a work setting, could use his right hand
occasionally, occasionally operate foot controls, and was unable to perform postural
activities such as climbing, balancing, or stooping. (Tr. 20, 285-96). When basing his
opinion on Dr. Teschner’s assessment, the vocational expert found the plaintiff
unable to work at sedentary, light, or medium levels. (Tr. 65, 285-96). Assuming the
ALJ properly rejected Dr. Teschner’s evaluation, there was not a medical source
statement or physical capacity evaluation by an examining physician upon which the
ALJ could support his RFC determination.
2.

The ALJ could not base his opinion solely on the findings of the
non-examining physician.

A physical capacity evaluation by a non-examining physician is not substantial

11

evidence upon which to base an RFC determination. Swindle v. Sullivan, 914 F.2d
222, 226 n.3 (11th Cir. 1990). The ALJ gave substantial weight to the reviewing
physician, Dr. Heilpern, who concluded Mr. McCright could perform medium work.
(Tr. 23). Giving substantial weight to Dr. Heilpern’s opinion is problematic,
especially because the ALJ discounted Dr. Teschner’s opinion and the treating
physicians did not provide any medical source statements. As a non-examining
physician, Dr. Heilpern’s opinion is insufficient to substantially support an RFC
determination. See Shafarz v. Bowen, 825 F.2d 278 (11th Cir. 1987) (“The opinions
of nonexamining, reviewing physicians . . . when contrary to those of the examining
physicians, are entitled to little weight, and standing alone do not constitute
substantial evidence.”); Swindle, 914 F.2d at 226 n.3 (“Because Dr. Hibbett did not
examine Ms. Swindle, his opinion is entitled to little weight and taken alone does not
constitute substantial evidence to support an administrative decision.”).
When an ALJ makes an RFC determination about a claimant who, like Mr.
McCright, has a complex medical history and who suffers from several severe
impairments, he should have the benefit of a supporting medical source statement or
a physical capacities evaluation from an examining physician. Without that medical
expertise, he risks substituting his own medical judgment for that of a physician and
lacks substantial evidence to support his disability determination.
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B.

The RFC is not so apparent in this case that a medical source
statement or physical capacities evaluation is unnecessary.

While there should be some medical assessment of the ability to perform workrelated functions in nearly all cases, there are rare occasions when the absence of a
disability is so clear that a medical source statement is unnecessary in that finding.
See Manso–Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 17 (1st
Cir. 1996) (“[W]here the medical evidence shows relatively little physical
impairment, an ALJ permissibly can render a commonsense judgment about
functional capacity even without a physician's assessment.”). In one such
commonsense case, Castle v. Colvin, the Eleventh Circuit determined in an
unpublished opinion7 that the ALJ’s decision was supported by substantial evidence
even without a medical source statement. No. 13-10007, 2014 WL 595284, at *3-*5
(11th Cir. Feb. 18, 2014). On appeal, the Eleventh Circuit found that the following
provided substantial evidence for the ALJ’s determination: “(1) Mr. Castle’s lack of
treatment for his knee problems; (2) his denial of musculoskeletal issues; (3) his
weekly regiment [sic]; (4) and Dr. Layton’s release without work restrictions.”8 Id.
7

As an unpublished opinion, Castle is not binding on this court; instead, it is persuasive
authority. See 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.”).
8

The release without work restrictions in Castle related to knee surgery that Mr. Castle
underwent ten years before his alleged onset date. While Mr. McCright also underwent surgery
relating to his alleged disability years before his alleged onset, this court has been unable to find
13

at *4.
In Castle, the claimant did not visit a doctor about his alleged disability of knee
pain between the alleged onset date and date last insured. Id. at *3. Further, when the
claimant visited the doctor during this time period, he denied musculoskeletal
problems which would have related to his disability. Id. Several months after his date
last insured, the claimant sought treatment for the alleged disability. Id. Mr.
McCright, on the other hand, has complained of back pain since the late 1990's and
underwent surgery in 2000. (Tr. 15-16). Additionally, he visited doctors about his
back pain months before and after the alleged onset date. (Tr. 13, 16-18). In contrast
to the claimant in Castle, Mr. McCright has consistently complained of pain directly
related to his disability and visited the doctor both before and after his alleged onset
date. The lack of a longitudinal history of medical treatment as a basis for substantial
evidence is not present here as it was in Castle.
The Castle court also found the claimant’s self-reported weekly regimen to be
in conflict with his alleged level of pain. 2014 WL 595284, at *4. The claimant
“regularly prepared meals taking up to one and a half hours, mowed the yard for up
to four hours, did the laundry, attended church, cared for doves, grocery shopped, and
went out to eat.” Id. Here, the record reflects that Mr. McCright also may have

evidence in the record of a release without work restrictions following the surgery.
14

engaged in some activity inconsistent with his alleged level of back pain. For
example, Mr. McCright has indicated that he attends church, eats with his pastor, and
can lift 15-20 pounds. (Tr. 204). Additionally, Mr. McCright visited the doctor for
pain following activities such as pushing a plantar across a floor, gardening, and
unloading a lawn mower from a truck. (Tr. 225, 255, 264). Mr. McCright’s activities,
however, do not constitute substantial evidence for the ALJ’s RFC determination for
two reasons:

they are not clearly within the light work requirements of the

regulations and the demanding activities were followed by visits to the doctor.
Mr. McCright’s self-reported exertional abilities do not squarely place him
within the light work requirements of the regulations. The regulations provide:
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when
it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls.
To be considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these activities.
20 C.F.R. § 404.1567. Mr. McCright stated he could lift up to 20 pounds, but he also
stated that he could only walk 30-40 yards. (Tr. 22, 204). Additionally, he reported
having difficulty getting dressed and needing to lie down for over six hours during
the day. (Tr. 42, 45). Light work requires more walking or standing than the claimant
reported he is able to perform and even with the ALJ’s restrictions, the claimant’s
15

self-reporting is not a sufficient basis for the ALJ’s RFC determination.
While certain activities such as pushing a plantar or doing sit ups may initially
seem inconsistent with his alleged disability, the relationship is not so simple. Instead,
the medical record substantiates the severity of his impairments because when Mr.
McCright engaged in these activities, he exacerbated his pain and then visited the
doctor for treatment. Id. Additionally, isolated instances of some demanding activities
accompanied with worsening pain does not substantially establish that Mr. McCright
is able to perform a reduced range of light work on a sustained basis. Because Mr.
McCright’s activities and post-activities treatment for pain are not inconsistent with
his alleged level of pain, the court finds that this case is significantly distinguishable
from Castle.
In sum, the evidence in this case is different from Castle in at least three critical
respects: (i) Mr. McCright’s longitudinal history of treatment; (ii) his self-reported
activities, including instances of exertion that resulted in a need for treatment; and
(iii) the absence of any medical release (or similar documentation) suggesting that
Mr. McCright is able to work without any vocational restrictions.
Further, Mr. Mr. McCright’s alleged disability is not the type of simple
disability that an ALJ can consider without the benefit of a medical source statement.
Instead, the disability is like that in Manso-Pizzaro, requiring evaluation by an expert
16

because of its complexity. The ALJ could not have made a commonsense
determination of RFC; a medical source statement was necessary in this case.
II.

The ALJ failed to fully develop the record concerning Mr. McCright’s
noncompliance with treatment and drug abuse.
The claimant contends that the ALJ failed in his duty to develop the record by

not asking during the hearing why the claimant was sometimes noncompliant with
treatment. (Doc. 11 at 12). While it is the claimant’s burden to prove his alleged
disability, the ALJ erred in emphasizing the claimant’s noncompliance without
exploring Mr. McCright’s reasons for it.
The ALJ has a duty to investigate possible reasons for noncompliance with
treatment when noncompliance is at issue. See Lucas v. Sullivan, 918 F.2d 1567,
1572-73 (11th Cir. 1990) (“[I]t was incumbent on the ALJ to more fully develop the
record with respect to the role alcohol abuse may play . . . in affecting her compliance
with the prescribed medication therapy.”). Mr. McCright’s noncompliance with
treatment was at issue in the ALJ’s RFC determination. (Tr. 22). The ALJ considered
“any treatment, other than medication, for relief of the alleged symptom(s) and any
measures used to relieve pain or other symptoms” as factors in determining the
claimant’s RFC. Id. In the following sentences, the ALJ noted that, “when compliant,
the claimant received improvement regarding his pain symptoms” and that “the

17

claimant did occasionally exhibit poor compliance with treatment courses and relied
on methods other than medication to treat his pain.” Id. Additionally, the ALJ
described Mr. McCright’s treatment at the Quality of Life Clinic: “the claimant
refused the attending physicians’ recommendation that he attend a drug rehabilitation
program . . . [and] was noted as being non-compliant with his therapy.” Id.
Yet the ALJ did not analyze the effect of the claimant’s drug abuse on his
noncompliance.9 The ALJ used the claimant’s improvement while compliant with
therapy and subsequent noncompliance in determining RFC, but did not develop the
record regarding the claimant’s noncompliance. This court cannot speculate as to
whether the claimant’s drug abuse affected his compliance with treatment, but, as in
Sullivan, there may be a link between the two that should be developed. While asking
Mr. McCright during the hearing may not have been the only way to more fully
develop the record, had the ALJ done so, he would have satisfied his duty to
investigate possible reasons for noncompliance such as drug abuse.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the decision of the Commissioner is not supported

9

See medical records from the Quality of Life Clinic suggesting an ongoing problem of
prescription drug abuse. (Tr. 255-74).
18

by substantial evidence and that she did not apply proper legal standards in arriving
at it. Accordingly, the decision will be reversed and remanded by separate order.
DONE and ORDERED this the 11th day of April, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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