Shropshire v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is REVERSED and this action is REMANDED to the Commissioner of the Social Security Administration for further consideration of Dr. Bentley's assessment and any other further proceedings consistent with this order. Signed by Judge C Lynwood Smith, Jr on 9/22/2017. (AHI)

FILED
2017 Sep-22 PM 01:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
ANTONIO SHROPSHIRE,
Claimant,
vs.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 4:17-cv-280-CLS

MEMORANDUM OPINION AND ORDER OF REMAND
Claimant, Antonio Shropshire, commenced this action on February 21, 2017,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of
the Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”),
and thereby denying his claim for a period of disability, disability insurance, and
supplemental security income benefits.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).

Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ: (1) failed to order an additional psychological
evaluation; (2) failed to state adequate reasons for finding claimant’s subjective
complaints to be less than fully credible; (3) failed to find that claimant met Listings
12.04 and 12.06; (4) entered a residual functional capacity finding that was not
supported by substantial evidence; (5) failed to give proper weight to the opinion of
Dr. Jack Bentley, the consultative psychologist; and, (6) failed to assess the intensity
and persistence of claimant’s symptoms pursuant to Social Security Ruling 16-3p.
He also argues that the Appeals Council failed to properly review new evidence
submitted after the date of the ALJ’s decision.
The court finds merit in claimant’s first and fifth arguments, both of which
concern the consultative psychological examination of Jack Bentley, Ph.D., who
examined claimant at the request of the Commissioner on April 12, 2014, and issued
a report on April 18, 2014. Claimant reported experiencing psychiatric problems
after joining the Air Force in 2001. He worked as a medic in a military hospital,
where he “encountered numerous individuals with multiple traumatic injuries suffered
in the wars in Iraq and Afghanistan.”1 After that, claimant began experiencing
“flashbacks, nightmares, panic attacks, periodic crying spells, paranoia, rages and a
1

Tr. 308.
2

marked loss of self-esteem.”2 Claimant was treated with medication prescribed by a
VA psychiatrist, but the medication did not make a significant difference, and the
severity of his flashbacks and nightmares was gradually escalating. After being
honorably discharged from the Air Force in 2010, claimant attempted to return to
college, but he “could not tolerate being in a classroom with other students,” and he
was failing all of his classes.3 He also attempted to work in an emergency room, but
he could not tolerate the atmosphere “and seeing individuals with traumatic injuries.”4
During the clinical examination, claimant exhibited no obvious limitation of
memory or communication skills. His mood was moderately dysphoric, and his affect
was restricted. There was evidence of anxiety, restlessness, and some hypervigilence.
Claimant insisted that the door to the examination room remain open, and he was
suspicious that someone might be trying to enter the room during the examination.
There was evidence of obsessional thinking, but no history of auditory or visual
hallucinations. Additionally, Dr. Bentley observed:
[Claimant] is alert and oriented. The patient did recall two of
three objects after a five-minute delay. Mr. Shropshire did recite six
digits forward and four backwards. The claimant indicated that there
[are] 48 weeks in a year, the sun rises in the East[,] and Shakespeare [is
the] author of Hamlet. He stated that Brazil is in South America. The
patient accurately interpreted one of two proverbs and provided the
2

Id.

3

Tr. 309.

4

Id.
3

analogy in three of three abstractions. The patient was able to perform
serial 7’s and 3’s from 100. The client stated the names of national,
state and local leaders. He correctly counted backwards from 20 to 1.
Tr. 309 (alterations supplied).
Claimant reported that his sleep often was disturbed by his obsessional thinking
and anxiety, but those problems improved after he began taking Benadryl at night.
Claimant attends church periodically with his family, but he otherwise rarely leaves
home due to his mistrust of strangers. He has no hobbies, but he is able to carry out
his daily living activities without assistance.
Dr. Bentley assessed claimant as experiencing post-traumatic stress disorder
(“PTSD”) with marked paranoid features and multiple health problems. Dr. Bentley
stated that claimant had developed PTSD as a result of his work as an Air Force
medic. His symptoms — including flashbacks, nightmares, and panic attacks — had
escalated, and he experienced “marked paranoia” at the time of the exam. In
summary, Dr. Bentley stated:
The claimant is judged to be able to manage any funds that he
may be awarded. The prognosis for his current level of functioning is
considered favorable. There was no evidence of symptom exaggeration.
He has reasonable insight into the etiology of his symptoms. The
severity of his PTSD would substantially limit him from sustaining
complex or repetitive tasks. His paranoia would further limit his ability
to communicate effectively with coworkers and supervisors. These
same symptoms would also limit his ability to work at a normal pace.
Mr. Shropshire would appear only capable of sustaining simple workrelated decisions in a non-stressful environment that requires little
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communication with fellow employees.
Tr. 310.
The ALJ stated that he afforded only little weight to Dr. Bentley’s assessment,
because
Dr. Bentley is not an acceptable medical source and cannot make a
medical diagnosis that can be considered a medically determinable
impairment . . . . Furthermore, his assessment is largely based on the
claimant’s self-reported symptoms and is not supported by the limited
treatment evidence of record, which shows that the claimant responded
well to medications when he was compliant with them.
Tr. 26 (emphasis and ellipsis supplied).
Claimant’s challenge to the ALJ’s treatment of Dr. Bentley’s assessment is
two-fold. First, claimant asserts that the ALJ improperly rejected Dr. Bentley’s
opinion. Second, claimant asserts that, after rejecting Dr. Bentley’s assessment, the
ALJ should have ordered an additional psychological examination. The court agrees
with both contentions.
The ALJ’s primary basis for rejecting Dr. Bentley’s assessment was that Dr.
Bentley is not an acceptable medical source. Social Security regulations define an
“acceptable medical source” as including a “licensed psychologist.” 20 C.F.R. §
404.1502(a)(2) (emphasis supplied). A licensed psychologist includes a “licensed or
certified psychologist at the independent practice level.”

20 C.F.R. §

404.1502(a)(2)(i). It seems apparent that Dr. Bentley, a practicing psychologist with
5

a Ph.D. degree, should satisfy these regulatory definitions. The ALJ did not offer any
explanation for his contrary conclusion, or for his illogical decision to select a
professional that he did not consider to be an “acceptable medical source” to
perform a consultative psychological examination.
Moreover, even setting aside the issue of whether Dr. Bentley was an
acceptable medical source under Social Security regulations, the ALJ’s treatment of
Dr. Bentley’s assessment does not make sense. Even though the ALJ gave little
weight to the assessment, his residual functional capacity finding took into account
many of the problems identified by Dr. Bentley. For example, Dr. Bentley stated that
the prognosis for claimant’s current level of functioning was favorable, which is
consistent with the ALJ’s finding that claimant was not precluded from all gainful
work activity. Dr. Bentley stated that claimant’s PTSD would affect his ability to
perform complex or repetitive tasks, which is consistent with the ALJ’s finding that
claimant would be limited to understanding, remembering, and carrying out simple
instructions.5 Dr. Bentley also found that claimant would be limited (not totally
precluded) in his abilities to communicate effectively with coworkers and
supervisors, work at a normal pace, make decisions, and deal with workplace
stressors. The ALJ’s residual functional capacity finding included corresponding
limitations to sustaining work for only two hours at a time; occasional interaction
5

See Tr. 24.
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with the public, co-workers, and supervisors; occasional decisionmaking; and
infrequent changes in the work environment.6
For the foregoing reasons, the court cannot find that the ALJ’s consideration
of Dr. Bentley’s assessment was supported by substantial evidence.7 The decision of
the Commissioner is REVERSED, and this action is REMANDED to the
Commissioner of the Social Security Administration for further consideration of Dr.
Bentley’s assessment, and any other further proceedings consistent with this order.
The Clerk of Court is directed to close this file.
DONE this 22nd day of September, 2017.

______________________________
United States District Judge

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Id.

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Because remand is warranted on these grounds, the court need not consider claimant’s other
arguments.
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