Slonaker v. Social Security Administation, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 3/31/2017. (KEK)

FILED
2017 Mar-31 PM 01:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

RONALD SLONAKER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No.: 4:15-cv-00751-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Ronald Slonaker
seeks judicial review of a final adverse decision of the Commissioner of Social
Security.1

The Commissioner denied Mr. Slonaker’s claims for a period of

disability and disability insurance benefits and supplemental security income.
After careful review, the Court remands this action for further administrative
proceedings.

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
(See https://www.ssa.gov/agency/commissioner.html). Therefore, the Court asks the Clerk to
please substitute Ms. Berryhill for Carolyn W. Colvin as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).

I.

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

benefits and supplemental security income on October 29, 2012. (Doc. 7-6, pp. 2,
8). Mr. Slonaker alleges that his disability began on September 15, 2012. (Doc.
7-6, pp. 2, 8). The Commissioner initially denied Mr. Slonaker’s claims on
December 11, 2012. (Doc. 7-5, p. 8). Mr. Slonaker requested a hearing before an
Administrative Law Judge (ALJ).

(Doc. 7-5, p. 16).

The ALJ issued an

unfavorable decision on July 24, 2014. (Doc. 7-3, p. 23). On March 8, 2015, the
Appeals Council declined Mr. Slonaker’s request for review (Doc. 7-3, p. 2),
making the Commissioner’s decision final and a proper candidate for this Court’s
judicial review. See 42 U.S.C. § 405(g), § 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
2

adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). In evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence” or substitute its judgment
for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence
supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”

Costigan v.

Comm’r of 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
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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.
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Mr. Slonaker has not engaged in substantial
gainful activity since September 15, 2012, the alleged onset date. (Doc. 7-3, p.
28). The ALJ determined that Mr. Slonaker suffers from the following severe
impairments: diabetes mellitus with neuropathy, essential hypertension, bipolar
disorder, intermittent explosive disorder, and history of alcohol abuse. (Doc. 7-3,
p. 28). Based on a review of the medical evidence, the ALJ concluded that Mr.
Slonaker does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Doc. 7-3, p. 29).
Next, the ALJ evaluated Mr. Slonaker’s residual functional capacity in light
of Mr. Slonaker’s impairments. The ALJ determined that Mr. Slonaker has the
RFC to:
perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) with the following deviations and/or limitations. The
claimant is limited to unskilled work. The claimant is precluded from
climbing ladders, ropes or scaffolds, and he cannot work at
unprotected heights or with hazardous machinery. The claimant can
operate foot controls bilaterally no more than occasionally. He can
have no more than frequent interaction with co-workers or
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supervisors, and no more than occasional interaction with the general
public.
(Doc. 7-3, p. 31). Based on this RFC, the ALJ concluded that Mr. Slonaker is not
able to perform his past relevant work as a truck driver. (Doc. 7-3, pp. 35-36).
Relying on testimony from a vocational expert, the ALJ found that jobs exist in the
national economy that Mr. Slonaker can perform, including automobile detailer,
hand packager, and janitor. (Doc. 7-3, p. 36). Accordingly, the ALJ determined
that Mr. Slonaker has not been under a disability within the meaning of the Social
Security Act. (Doc. 7-3, p. 37).
IV.

ANALYSIS
Mr. Slonaker presents five arguments in support of his appeal, the first of

which is that the Appeals Council failed to adequately review new evidence.
Because the Court finds that the Appeals Council should have considered the new
evidence, the Court will discuss only the first argument.
After the ALJ issued a decision in this case in July 2014, Mr. Slonaker
petitioned the Appeals Council for review and submitted additional evidence in
support of his claim for benefits. The new evidence included Cherokee EtowahDekalb Mental Health Center (CED) records for Mr. Slonaker from August 28,
2014 and September 11, 2014 (Doc. 7-3, pp. 19-21); an August 28, 2014 Mental
Health Source Statement from his CED treating physician, Dr. Richard Grant

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(Doc. 7-3, p. 22); and a September 11, 2104 Mental Health Source Statement from
a CED mental health therapist, (Doc. 7-3, p. 18).
“‘With a few exceptions, [a] claimant is allowed to present new evidence at
each stage of the administrative process,’ including before the Appeals Council.”
Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015)
(quoting Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007)).
The Appeals Council must review evidence that is new, material, and
chronologically relevant. Ingram, 496 F.3d at 1261. The Court considers de novo
whether supplemental evidence is new, material, and chronologically relevant.
Washington, 806 F.3d at 1321.
Evidence is “new” if it is not redundant of evidence already present in the
record.

As discussed in greater detail below, the records that Mr. Slonaker

presented to the Appeals Council constitute new evidence.

Evidence is

chronologically relevant if it relates to the period on or before of the ALJ’s
decision. 20 C.F.R. § 404.970(a)(5). A medical evaluation conducted after the
ALJ’s decision may be chronologically relevant if it pertains to conditions that preexisted the ALJ’s opinion. Washington, 806 F.3d at 1322-23 (citing Boyd v.
Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983)). In this case, the new medical
records from August 28, 2014 and September 11, 2014 post-date the ALJ’s July
24, 2014 decision. Nevertheless, the medical records indicate that Mr. Slonaker’s
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limitations have existed since September 15, 2012, which is a date that precedes
the ALJ’s decision. (Doc. 7-3, pp. 18, 22). Thus, the additional evidence is
chronologically relevant because it relates back to the date of the ALJ’s decision.
For supplemental evidence to be material, the evidence must be “relevant
and probative so that there is a reasonable possibility that it would change the
administrative result.” Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987). For
example, if the claimant’s assertion of a particular ailment is unsubstantiated,
supplemental medical evidence with respect to that ailment is material because
there is a reasonable possibility that the ALJ may have decided differently if the
claimant’s assertion had been validated by medical evidence. Caulder v. Brown,
791 F.2d 872, 878 (11th Cir. 1986).
Here, there is a reasonable possibility that Mr. Slonaker’s supplemental
evidence would change the ALJ’s RFC determination, and thus change the
administrative result. Based on the evidence in the record when the ALJ issued his
opinion, the ALJ found that Mr. Slonaker’s RFC enables him to perform unskilled
work with a number of postural and non-exertional limitations. (Doc. 7-3, p. 31).
In reaching his RFC determination, the ALJ relied on treatment notes from Dr.
Brian A. Perry. (Doc. 7-3, p. 32). Dr. Perry treated Mr. Slonaker on June 22, 2009
for emotional issues including anger, anxiety, mood swings, and depressive
symptoms. (Doc. 7-8, p. 65). On November 11, 2009, Dr. Perry recommended
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that Mr. Slonaker not drive until he felt safe to do so due to his bouts of dizziness.
(Doc. 7-8, p. 63). Dr. Perry gave Mr. Slonaker a back to work note explaining the
restriction. (Doc. 7-8, p. 63). In early 2012, Dr. Perry again noted Mr. Slonaker’s
battle with chronic anxiety and mood swings. (Doc. 7-8, pp. 60, 61).
The ALJ also considered medical records from Dr. Chris S. Randolph who
saw Mr. Slonaker on January 6, 2010 during an emergency room visit. (Doc. 7-8,
p. 30). When he arrived at the emergency room, Mr. Slonaker was anxious and
showed signs of depression and schizophrenia.

(Doc. 7-8, p. 33). Before

discharging Mr. Slonaker from the hospital, Dr. Randolph strongly encouraged Mr.
Slonaker to follow up with the Mental Health Center or a physician of his choice.
(Doc. 7-8, p. 30).
The ALJ also reviewed records from a CED psychiatrist and Dr. Grant. The
psychiatrist’s findings and Dr. Grant’s findings are somewhat inconsistent. In
2010, the CED psychiatrist diagnosed Mr. Slonaker with Bipolar II Disorder and
Alcohol Dependence. (Doc. 7-8, p. 46). On August 28, 2012, a CED therapist
noted that Mr. Slonaker had significant treatment issues that included depression,
anger, and self-esteem. (Doc. 7-8, p. 44). The therapist diagnosed Mr. Slonaker
with “Bipolar I, Mixed, Severe with Psychotic Features.” (Doc. 7-8, p. 45). In
addition to economic problems, the therapist noted that Mr. Slonaker has problems
with his primary support group, his social environment, his interaction with the
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legal system, and other psychological and environmental problems. (Doc. 7-8, p.
45).

A medical doctor or licensed psychologist agreed with the therapist’s

diagnosis. (Doc. 7-8, p. 45). Similarly, on October 12, 2012, Dr. Grant described
Mr. Slonaker’s mood as labile and noted that Mr. Slonaker suffered from
delusions. (Doc. 7-8, p. 40). But Dr. Grant noted that Mr. Slonaker’s attention and
concentration was adequate and that he had fair judgment and appropriate
behavior. (Doc. 7-8, p. 40).
On May 9, 2013, Dr. Grant issued a report that indicated that Mr. Slonaker
had fair insight and judgment. (Doc. 7-8, p. 88). Mr. Slonaker’s thought process
was logical, and his attention and concentration were adequate. (Doc. 7-8, p. 88).
In contrast, monthly reports from the CED from July 25, 2013 through December
16, 2013, indicate that Mr. Slonaker was dysphoric, sad, and irritated. (Doc. 7-8,
pp. 89-93).

Similarly, Dr. Grant, on February 6, 2014, determined that Mr.

Slonaker was agitated and was suffering from hallucinations even though he found
Mr. Slonaker’s thought process, concentration, and behavior to be normal. (Doc.
7-8, p. 97). A few weeks later, on February 24, 2014, a CED therapist noted that
Mr. Slonaker had significant psychiatric, emotional, and psychological issues as
well as increased depression, anger, and delusions.

(Doc. 7-8, p. 94).

The

therapist diagnosed Mr. Slonaker with “Bipolar I, Mixed Severe with Psychotic

9

Features.” (Doc. 7-8, p. 96). The therapist ordered a psychiatric assessment once
every six months and individual therapy once every month. (Doc. 7-8, p. 95).
On April 29, 2014, Dr. June Nichols examined Mr. Slonaker at the request
of the state agency. (Doc. 7-8, p. 99). Mr. Slonaker told Dr. Nichols that he
“began having problems two and ½ years ago with a serious anger problem.”
(Doc. 7-8, p. 99). Mr. Slonaker reported that he sought treatment at a hospital after
he had a nervous breakdown in 2011 and became “unglued.” (Doc. 7-8, p. 99).
Dr. Nichols found that Mr. Slonaker was depressed and anxious, but he was neither
suicidal nor homicidal. (Doc. 7-8, p. 100). Dr. Nichols found that Mr. Slonaker’s
“[s]peed of mental processing was slowed.” (Doc. 7-8, p. 100). Dr. Nichols wrote
that Mr. Slonaker’s “[r]ecent memory functions appear[ed] to be grossly intact,”
and his “[i]mmediate memory functions appear[ed] to be fair.” (Doc. 7-8, p. 100).
Additionally, Dr. Nichols found that Mr. Slonaker’s thought process was within
normal limits and that Mr. Slonaker did not have auditory or visual hallucinations.
(Doc. 7-8, p. 101). Dr. Nichols opined that Mr. Slonaker had “good” judgment and
insight. (Doc. 7-8, p. 101).
Dr. Nichols’s diagnostic impressions for Mr. Slonaker included:
Intermittent Explosive Disorder, Bipolar I Disorder, Mixed Severe with Psychotic
Features by history. (Doc. 7-8, p. 101). Dr. Nichols concluded that Mr. Slonaker’s
“[p]rognosis for significant improvement over the next 12 months is guarded due
10

to lack of financial resources and his involvement at CED has not helped to resolve
symptoms.” (Doc. 7-8, p. 101). Dr. Nichols found that Mr. Slonaker suffers from
symptoms of depression and anxiety and that his impulsive anger is potentially
destructive because Mr. Slonaker believes that others look at him negatively.
(Doc. 7-8, p. 101). Dr. Nichols opined that Mr. Slonaker’s “ability to relate
interpersonally and withstand the pressures of everyday work is moderately
compromised due to the nature of his symptoms.”

(Doc. 7-8, pp. 101-102). Dr.

Nichols also opined that Mr. Slonaker “does not have deficits, which would
interfere with his ability to remember, understand and carry out work related
[instructions].” (Doc. 7-8, p. 102).
There is a reasonable possibility that the administrative decision would have
been different if the ALJ had had the opportunity to analyze the supplemental
evidence that Mr. Slonaker presented to the Appeals Council. The ALJ noted that
“[Only Dr. Nichols and] no other treating or examining source has stated an
opinion regarding the severity of the claimant’s conditions and his degree of
limitation.” (Doc. 7-3, p. 35). Yet, the additional evidence submitted to the
Appeals Council includes opinions on the severity of Mr. Slonaker’s conditions
and his degree of limitation. The additional evidence from the CED therapist

11

substantiates Mr. Slonaker’s allegations. (Doc. 7-3, p. 18).2 Moreover, the CED
therapist’s evaluation of Mr. Slonaker (Doc. 7-3, p. 18) is consistent with Mr.
Slonaker’s monthly psychiatric reports from the CED reviewed by the ALJ. (Doc.
7-8, pp. 89-93). Therefore, an ALJ could not, as the Commissioner argues, easily
dismiss the CED therapist’s evaluation of Mr. Slonaker on grounds of
inconsistency.
Similarly, the ALJ could not readily dismiss Dr. Grant’s August 2014
evaluation (Doc. 7-8, p. 22), especially because in his opinion, the ALJ gave Dr.
Grant’s treatment records “great weight.” (Doc. 7-3, p. 35). In the supplemental
evaluation, Dr. Grant opined that Mr. Slonaker did not have the ability to
“understand, remember or carry out very short and simple instructions,” or
“maintain attention, concentration and/or pace for periods of at least two hours,” or
“maintain socially appropriate behavior and adhere to basic standards of neatness
and cleanliness.” (Doc. 7-3, p. 22). If the ALJ views certain aspects of Dr. Grant’s
history of treatment of Mr. Slonaker in isolation (See e.g., Doc. 7-8, p. 97), then the
ALJ could dismiss Dr. Grant’s evaluation as inconsistent. But, a more holistic
view of Dr. Grant’s history of treatment of Mr. Slonaker suggests that the ALJ
could find a reasonable basis for affording great weight to Dr. Grant’s August 2014
2

Even though Mr. Slonaker’s therapist is not an acceptable medical source who can offer an
opinion about what Mr. Slonaker can still do despite his impairments, see 20 CFR § 404.1513(a)(c), the agency may consider evidence from Mr. Slonaker’s therapist “to show the severity of
[his] impairment[s] and how it affects [his] ability to work.” 20 C.F.R § 404.1513(d).
12

evaluation. Thus, if the ALJ had this additional medical evidence to substantiate
Mr. Slonaker’s allegations, there is a reasonable possibility that the administrative
result would have been different. See Lipscomb v. Comm’r of Soc. Sec., 199 Fed.
Appx. 903, 908 (11th Cir. 2006) (“Given the credit the ALJ gave to Dr.
Hammerberg and because Dr. Hammerberg provided more specific opinions about
Lipscomb’s capabilities in the March 2005 questionnaire, it is possible that the new
evidence, if credited, could change the administrative result.”).
The Commissioner argues that the new evidence should not be entitled to
deference or be given substantial weight; therefore, there is no reasonable
possibility that the administrative decision would be different. (Doc. 10, pp. 2225). If Dr. Grant’s opinions were inconsistent with and could not be supported by
the medical evidence, then the Court would agree that these opinions are not
material. However, contrary to the Commissioner’s argument, both the CED
therapist’s and Dr. Grant’s opinions are consistent with the weight of the medical
evidence; therefore, the evidence is material.
In the supplemental records, both Dr. Grant and the CED therapist found
that Mr. Slonaker could not “understand, remember or carry out very short and
simple instructions,” or “maintain attention, concentration and/or pace for periods
of at least two hours,” or “perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances,” or “sustain an ordinary
13

routine without special supervision,” or “accept instructions and respond
appropriately to criticism from supervisors,” or “maintain socially appropriate
behavior and adhere to basic standards of neatness and cleanliness.” (Doc. 7-3, pp.
18, 22). Medical records that pre-date the ALJ’s decision indicate that as far back
as June 22, 2009, Mr. Slonaker had symptoms of anxiety and depression. (Doc. 78, p. 65).

Five years later, Dr. Grant’s records indicate that Mr. Slonaker

experienced hallucinations. (Doc. 7-8, p. 65). Although Dr. Nichols’s ultimate
conclusions about Mr. Slonaker’s limitations are somewhat inconsistent with Mr.
Slonaker’s supplemental records, Dr. Nichols opined in April 2014 that Mr.
Slonaker’s prognosis was poor because the treatment he had received from CED
had not resolved his symptoms. (Doc. 7-8, p. 101). This evidence supports the
therapist’s and Dr. Grant’s supplemental opinions.
Had the ALJ been persuaded by the new medical opinions, there is a
reasonable probability that the ALJ’s decision would have been different because
the medical opinions directly contradict the ALJ’s original findings. Dr. Grant and
the therapist stated that Mr. Slonaker does not have the ability to, “accept
instructions and respond appropriately to criticism from supervisors.” (Doc. 7-3,
pp. 18, 22). However, the ALJ found that Mr. Slonaker has the ability to perform
unskilled work, which requires the “abilities (on a sustained basis) . . . to respond
appropriately to supervision, co-workers and usual work situations.” SSR 85-15,
14

1985 WL 56857, at *4. The ALJ’s finding contradicts the new medical evidence,
and the new evidence is material. See Washington, 806 F.3d at 1322 (finding that
a doctor’s opinion was consistent with the medical record and was, therefore,
material).
Because the CED Mental Health records from August 29, 2014 and
September 11, 2014 (Doc. 7-3, pp. 17-21), as well as the Mental Health Source
Statements from Dr. Grant and the therapist (Doc. 7-3, pp. 18, 22) are new,
material, and chronologically relevant to the ALJ’s decision, the Appeals Council
erred in not reviewing this evidence. On remand, the ALJ should consider these
records in making his ultimate decision on disability.
Because the Court remands this action for the ALJ to consider certain
medical evidence, the Court does not address Mr. Slonaker’s argument that the
Court also should remand this case on the basis of Social Security Ruling16-3P.
(See Doc. 12). The Court asks the ALJ to please consider on remand whether
Social Security Ruling 16-3P changes the analysis with respect to Mr. Slonaker’s
subjective complaints of pain.
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.
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DONE and ORDERED this March 31, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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