Bingham v. Social Security Administration, Commissioner

Filing 13

SUBSTITUTED MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/1/2016. (KEK)

FILED
2016 Sep-01 PM 04:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

MARK LEE BINGHAM,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of the
Social Security Administration,
Defendant.

}
}
}
}
}
}
}
}
}
}
}

Case No.: 4:15-CV-00458-MHH

SUBSTITUTED MEMORANDUM OPINION1
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Mark Lee Bingham
seeks judicial review of a final adverse decision of the Commissioner of Social
Security. The Commissioner denied his claims for a period of disability and
disability insurance benefits and supplemental security income.

After careful

review, the Court remands this action for further proceedings.
I.

PROCEDURAL HISTORY
Mr. Bingham applied for a period of disability and disability insurance

benefits on October 12, 2012. (Doc. 7-6, pp. 2-5). Mr. Bingham applied for
supplemental security income on November 16, 2012. (Doc. 7-6, pp. 6-11). Mr.
1

This substituted memorandum opinion corrects two case citations on pages 12 and 13.
Otherwise, this opinion is identical to the opinion that the Court entered on August 31, 2016.

Bingham alleges that his disability began on July 1, 2012. (Doc. 7-6, pp. 2, 6).
The Commissioner initially denied Mr. Bingham’s claims on February 22, 2013.
(Doc. 7-5, pp. 2-11). Mr. Bingham requested a hearing before an Administrative
Law Judge (ALJ). (Doc. 7-5, pp. 12-13). The ALJ issued an unfavorable decision
on June 24, 2014. (Doc. 7-3, pp. 18-20). On February 24, 2015, the Appeals
Council declined Mr. Bingham’s request for review (Doc. 7-3, pp. 2-4), making the
Commissioner’s decision final and a proper candidate for this Court’s judicial
review. See 42 U.S.C. § 405(g) and § 1383(c).
II.

STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the

ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.

“Substantial evidence is more than a

scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). In making this evaluation, the Court may not “decide
the facts anew, reweigh the evidence,” or substitute its judgment for that of the
2

ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir.
2011) (internal quotations and citation omitted). If the ALJ’s factual findings are
supported by substantial evidence, then the Court “must affirm even if the evidence
preponderates against the Commissioner’s findings.” Costigan v. Comm’r, Soc.
Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d
at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
III.

SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that he is disabled, an ALJ

follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
3

Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Mr. Bingham has not engaged in substantial
gainful activity since July 1, 2012, the alleged onset date. (Doc. 7-3, p. 23). The
ALJ determined that Mr. Bingham suffers from the following severe impairments:
intra-articular loose body and chondromalacia of the medial tibial plateau; right
paracentral disc protrusions; moderate radiculopathy, right cervical spine;
degenerative and arthritic changes, cervical and lumbar spine; mixed hearing loss,
left ear; sensorineural hearing loss, right ear; and tinnitus in right ear due to the
greater high frequency hearing loss. (Doc. 7-3, p. 24). The ALJ determined that
Mr. Bingham suffers from the following non-severe impairments: hypertension;
depression; and history of substance abuse. (Doc. 7-3, p. 24). Based on a review
of the medical evidence, the ALJ concluded that Mr. Bingham does not have an
impairment or combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Doc. 7-3, p. 26).
Next, the ALJ evaluated Mr. Bingham’s residual functional capacity in light
of his impairments.

The ALJ determined that Mr. Bingham has the RFC to

perform:
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
that the claimant can alternate between sifting, standing, and walking
at up to 60-minute intervals, while remaining at his workstation. The
claimant can sit at least six hours over the course of an eight-hour
4

workday. The claimant can stand and/or walk a total of at least six
hours over the course of an eight-hour workday. The claimant cannot
stand or walk on uneven terrain. The claimant can frequently use his
upper extremities for reaching in all directions, pushing, pulling,
handling, and fingering. The claimant cannot climb ladders, ropes,
poles, or scaffolds. The claimant can occasionally climb ramps and
stairs. The claimant can occasionally balance, stoop, kneel, and
crouch. The claimant cannot crawl. The claimant can occasionally
work in humidity, wetness, and extreme temperatures. The claimant
cannot work at unprotected heights. The claimant cannot work with
operating hazardous machinery. The claimant can occasionally
operate motorized vehicles. The claimant can occasionally work while
subject to vibration. The claimant cannot perform work activity that
requires his response to rapid and/or frequent multiple demands. The
claimant can perform work in noise levels such as found in an office
environment.
(Doc. 7-3, pp. 26-27).
Based on this RFC, the ALJ concluded that Mr. Bingham is not able to
perform his past relevant work as a timber cruiser, logging equipment operator,
logging truck driver, or supervisor (logging). (Doc. 7-3, p. 32). Relying on
testimony from a vocational expert, the ALJ found that jobs exist in the national
economy that Mr. Bingham can perform including assembler, wire worker, and
non-postal mail clerk. (Doc. 7-3, p. 33). Accordingly, the ALJ determined that
Mr. Bingham has not been under a disability within the meaning of the Social
Security Act. (Doc. 7-3, p. 33).

5

IV.

ANALYSIS
Mr. Bingham argues that he is entitled to relief from the ALJ’s decision

because the ALJ failed to properly evaluate the opinion from his treating
neurologist, Dr. Walid W. Freij. The Court agrees.2
An ALJ must give considerable weight to a treating physician’s medical
opinion if the opinion is supported by the evidence and consistent with the doctor’s
own records. See Winschel, 631 F.3d at 1179. An ALJ may refuse to give the
opinion of a treating physician “substantial or considerable weight . . . [if] ‘good
cause’ is shown to the contrary.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41
(11th Cir. 2004). Good cause exists when “(1) [the] treating physician’s opinion
was not bolstered by the evidence; (2) [the] evidence supported a contrary finding;
or (3) [the] treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Id. at 1240-41; see also Crawford, 363 F.3d at
1159.
On January 7, 2014, Mr. Bingham’s treating neurologist, Dr. Freij, opined
that Mr. Bingham was totally and permanently disabled. (Doc. 7-9, p. 39). Prior
to this assessment, Dr. Freij treated Mr. Bingham on multiple occasions.

2

Mr. Bingham also argues that the ALJ failed to properly consider medical evidence from
examining physician, Dr. Dallas Russell. Because the Court remands this case for further
proceedings based on Mr. Bingham’s first argument, the Court does not address at length Mr.
Bingham’s second argument.
6

On February 7, 2012, Mr. Bingham complained of neck pain and lower back
pain that has been present for nearly 30 years. (Doc. 7-9, p. 33). Mr. Bingham
reported that his “symptoms have increased progressively” since “doing physical
jobs such as driving doziers [sic] and skidders.” (Doc. 7-9, p. 33). Mr. Bingham
told Dr. Freij that the pain would radiate to his shoulders and arms. (Doc. 7-9, p.
33). Mr. Bingham also reported that his lower back pain would radiate “to the
lower extremities, especially in the posterior aspect of the thighs and legs.” (Doc.
7-9, p. 33). Dr. Freij stated that “[t]ingling sensation was noted in the feet.” (Doc.
7-9, p. 33). Dr. Freij observed that Mr. Bingham presented “tenderness […] over
the paraspinal muscles in the C spine and LS spine and tenderness over the
Trapezius muscles bilaterally.” (Doc. 7-9, p. 34). Dr. Freij noted that November
29, 2011 MRI of the cervical spine showed evidence of “C5/C6 and C6/C7 right
paracentral disc spurring and protrusions.” (Doc. 7-9, p. 34). A November 29,
2011 MRI of the lumbar spine revealed no abnormalities. (Doc. 7-9, p. 34).
Based on his February 7, 2012 examination, Dr. Freij made the following
diagnoses:
1.

Neck pain with radiating pain to the upper extremities along
with numbness sensation in the thumbs and thenar aspects of
the palms. These are suggestive of C6 radiculopathy. A MRI
of the C spine revealed C5/C6 and C6/C7 right paracentral disc
protrusion.

2.

Lower back pain with radiating pain to the lower extremities
suggestive of LS spinal stenosis, but there is no evidence on the
7

MRI of the LS spine of any abnormalities. Most likely this
discomfort is muscular in nature.
(Doc. 7-9, p. 35). Dr. Freij prescribed Flerxeril, Elavil, and OxyContin. (Doc. 7-9,
p. 35).
On March 8, 2012, Dr. Freij saw Mr. Bingham for a follow-up visit. Mr.
Bingham reported that his back and neck pain improved on Oxycontin, but Flexeril
was making him drowsy in the morning. (Doc. 7-9, p. 32). Mr. Bingham’s motor
power was 5/5, but Dr. Freij found tenderness in Mr. Bingham’s paraspinal
muscles. (Doc. 7-9, p. 32). Dr. Freij diagnosed “[d]egenerative and arthritic
changes in the [cervical] spine and [lumbar] spine.” (Doc. 7-9, p. 32). Dr. Freij
continued Mr. Bingham on Oxycontin and Elavil, but changed Flexeril to
Baclofen. (Doc. 7-9, p. 32).
On January 9, 2013, Mr. Bingham presented with neck pain, bilateral hand
pain with numbness, tingling and weakness “that has persisted for the past years or
so.” (Doc. 7-9, p. 29). Dr. Freij noted that Mr. Bingham suffered from a history
of high blood pressure, back pain, and neck pain but that he was independent in
activities of daily living and ambulation. (Doc. 7-9, p. 29). During this visit, Mr.

8

Bingham underwent a nerve conduction study which revealed “evidence of
moderate C6 radiculopathy on the right side.” (Doc. 7-9, p. 37).3
The ALJ reviewed Dr. Freij’s medical notes in his assessment (Doc. 7-3, pp.
27-28); however, in his analysis of the medical evidence, the ALJ did not mention
Dr. Freij’s opinion that Mr. Bingham is disabled, and the ALJ did not identify the
weight he assigned to Dr. Freij’s opinion. (See Doc. 7-3, pp. 27-32). An “ALJ
must state with particularity the weight given to different medical opinions and the
reasons therefor.” Winschel, 631 F.3d at 1179 (citing Sharfarz v. Bowen, 825 F.2d
278, 279 (11th Cir. 1987)). “‘In the absence of 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. (quoting Cowart
v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The Commissioner correctly notes that disability opinions are not medical
opinions but are administrative findings reserved to the Commissioner. (Doc. 10,
pp. 7-8, citing 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1)). Still,
opinions from any medical source on issues reserved to the
Commissioner must never be ignored. The adjudicator is required to
evaluate all evidence in the case record that may have a bearing on the
determination or decision of disability, including opinions from
medical sources about issues reserved to the Commissioner. If the
case record contains an opinion from a medical source on an issue
3

The Commissioner points out that Mr. Bingham visited Dr. Freij only once after the alleged
onset of his (Mr. Bingham’s) disability. (Doc. 10, p. 7). That is true, but Dr. Freij’s treatment of
Mr. Bingham’s back and neck pain in 2012 is not irrelevant.
9

reserved to the Commissioner, the adjudicator must evaluate all the
evidence in the case record to determine the extent to which the
opinion is supported by the record.
SSR 96-5P, 1996 WL 374183, at *3.
Dr. Freij’s opinion is consistent with at least some of the medical evidence
in the record, including the report of consultative examiner, Dr. Dallas Russell.
Dr. Russell performed a consultative examination on Mr. Bingham on April 4,
2014. (Doc. 7-9, pp. 78-79). When reviewing the history of Mr. Bingham’s back
and neck pain, Dr. Russell stated:

For the past few years, [Mr. Bingham] has had pretty severe low back
pain, but also neck pain. He has numbness and tingling that goes
down into the arms. He also has severe low back pain. He can have
pain that radiates down the legs into the buttocks area. Particularly
over the past 5 years, his problems have been severe. As a result, he
has been on chronic pain management and apparently it is anticipated
that he will need both back and neck surgery in the future. These
troubles affect him in many ways. He cannot carry or lift things well
and he has trouble with sitting or standing or walking for long periods
of time. He has trouble riding in a car. He also has balance
disturbance. . . .
(Doc. 7-9, p. 78).
Dr. Russell found that Mr. Bingham “has difficulty with heel and toe
walking. He cannot squat and rise.” (Doc. 7-9, pp. 78-79). Mr. Bingham had
trouble getting on and off the examination table. Mr. Bingham had 5/5 muscle
strength, but Dr. Russell noted that “[s]strength testing was limited somewhat by
the pain that [Mr. Bingham] has.” (Doc. 7-9, p. 79). Dr. Russell also found that
10

Mr. Bingham has “significant loss with range of motion in both neck and the lower
back region.” (Doc. 7-9, p. 79).4
After the examination, Dr. Russell provided the following impression of Mr.
Bingham’s condition:
Lower back pain, neck pain, right knee pain, right acoustic
schwannoma, hearing loss, migraine headaches, cervical
radiculopathy and dizziness. He has trouble lifting, carrying, pushing
or pulling objects. He cannot sit, stand, or walk for long periods of
time. He has trouble with climbing, stooping, bending, balancing,
crawling, kneeling and crouching. He has some trouble with fine
motor skills and hands. He has trouble with overhead and forward
reaching. He has diminished hearing.
(Doc. 7-9, p. 79).
Dr. Russell also completed a medical source statement in which he opined
that Mr. Bingham could never lift more than 20 pounds and could never carry more
than 10 pounds. (Doc. 7-9, p. 80). Dr. Russell concluded that Mr. Bingham could
sit for thirty minutes, stand for fifteen minutes, and walk for fifteen minutes at one
time without interruption and that Mr. Bingham could sit for two hours, stand for
one hour, and walk for two hours in an 8-hour work day. (Doc. 7-9, p. 81). Dr.
Russell opined that Mr. Bingham could never reach overhead and could
4

Dr. Russell’s report also states that Mr. Bingham “cannot walk without an assistive device.”
(Doc. 7-9, p. 78). As noted by the ALJ, this statement is inconsistent with Dr. Russell’s
indication that Mr. Bingham does not require the use of a cane to ambulate. (Doc. 7-9, p. 81).
Two weeks after the ALJ issued his decision, Dr. Russell submitted a letter apologizing for the
inconsistency and explaining that his examination notes contain a typographical error or that he
inadvertently used the wrong term. Dr. Russell confirmed in the letter that his examination notes
should state that Mr. Bingham can walk without an assistive device. (Doc. 7-9, p. 86).
11

occasionally handle, finger, feel, and push and pull. (Doc. 7-9, p. 82). Dr. Russell
also found that Mr. Bingham could occasionally operate foot controls and climb
stairs or ramps, but he could never climb ladders or scaffolds, balance, stoop, bend,
kneel, crouch, or crawl. (Doc. 7-9, pp. 82-83). Dr. Russell explained that Mr.
Bingham could perform most activities of daily living; however, Dr. Russell noted
that Mr. Bingham could not walk a block at a reasonable pace on rough or uneven
surfaces or climb a few steps at a reasonable pace with the use of a single hand rail.
(Doc. 7-9, p. 85). Dr. Russell stated that Mr. Bingham’s limitations had been
present since 2007 and that they lasted or will last for 12 consecutive months.
(Doc. 7-9, p. 85).
The ALJ may have implicitly considered and rejected Dr. Freij’s statement
that Mr. Bingham is disabled.5 But “without clearly articulated grounds for such a
rejection,” the Court “cannot determine whether the ALJ’s conclusions were
rational and supported by substantial evidence.”

Winschel, 631 F.3d at 1179

(“[W]hen 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

5

After reviewing the medical evidence in the record, the ALJ cited the proper standards under
which he was required to review the opinion evidence. (Doc. 7-3, p. 30). However, Dr.
Russell’s opinion is the only opinion to which the ALJ afforded specific weight. (Doc. 7-3, pp.
30-31). The Court has considered whether the ALJ’s failure to address Dr. Freij’s statement
regarding total disability might fairly be characterized as harmless error. Given the overall
record and given the ALJ’s statement that “[a] review of the records in this case reveals no
restrictions recommended by any treating physician,” (Doc. 7-3, p. 31), the Court concludes that
remand is appropriate in this case.
12

have supported the ALJ’s conclusion.”) (internal quotation marks and citation
omitted). Accordingly, the Court remands this case to the Commissioner.
On remand, the ALJ should explicitly explain the weight accorded to Dr.
Freij’s opinion. Id.; see also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986) (“The [ALJ] must specify what weight is given to a treating physician’s
opinion and any reason for giving it no weight, and failure to do so is reversible
error.”); Baez v. Comm’r of Soc. Sec., --- Fed. Appx. ----, 2016 WL 4010434, at *4
(11th Cir. July 27, 2016) (finding that the ALJ committed reversible error by
failing to assign weight to a treating physician’s “comprehensive” treatment notes
and stating that “[t]he ALJ needed to assign some weight to Dr. Chin’s opinion as
a treating physician and, if necessary, explain why that weight is less than
substantial or controlling”).
V.

CONCLUSION
For the reasons discussed above, the Court remands the decision of the

Commissioner for further administrative proceedings consistent with the Court’s
memorandum opinion.
DONE and ORDERED this September 1, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

13