Baker v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 12/20/12. (CVA)

FILED
2012 Dec-20 PM 01:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MARK ANTHONY BAKER,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
5:12-cv-676-AKK

MEMORANDUM OPINION
Plaintiff Mark Anthony Baker (“Baker”) brings this action pursuant to
sections 205(g) and 1631(c)(3) of the Social Security Act (“the Act”), 42 U.S.C.
§§ 405(g) and 1383(c)(3), seeking review of the final adverse decision of the
Commissioner of the Social Security Administration (“SSA”). Doc. 1. This court
finds that the Administrative Law Judge’s (“ALJ”) decision - which has become
the decision of the Commissioner - is not supported by substantial evidence.
Therefore, the court will REVERSE and REMAND the decision denying benefits
to the ALJ for him to reach a disability determination based on the medical record
and, if needed, to consult additional physicians to assess Baker’s condition.

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I. Procedural History
Baker filed his applications for Title II disability insurance benefits (“DIB”)
and Title XVI Supplemental Security Income (“SSI”) on November 17, 2009,
alleging a disability onset date of February 28, 2007, due to depression, high blood
pressure, and suicidal ideation. (R. 113-124, 154). After the SSA denied his
applications on March 23, 2010, Baker requested a hearing. (R. 54-63, 64-66). At
the hearing on April 18, 2011, Baker was 43 years old with an eighth grade
education and past relevant work as a poultry hatchery worker and pallet builder.
(R. 37, 45, 155, 158). Baker has not engaged in substantial gainful activity since
his alleged onset date. (R. 154).
The ALJ denied Baker’s claims on May 13, 2011, which became the final
decision of the Commissioner when the Appeals Council refused to grant review.
(R. 1-4, 11-26). Baker then filed this action pursuant to 42 U.S.C. § 1383(c)(3).
Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains 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 ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
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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 “factual 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, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is 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, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
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engage in 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
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). Specifically, the Commissioner
must determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other

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than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ initially determined that Baker
met the insured status requirements of the Act through September 30, 2013. (R.
16). Next, the ALJ determined that Baker has not engaged in substantial gainful
activity since February 28, 2007, and, therefore, met Step One. Id. The ALJ
found next that Baker met Step Two because he suffered from the severe
impairments of “chronic headaches and back pain.” Id. The ALJ then proceeded
to the next step and found that Baker failed to satisfy Step Three because he “does
not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments.” (R. 17). Although the ALJ answered Step
Three in the negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the
ALJ proceeded to Step Four, where he determined that Baker “has the residual
functional capacity [RFC] to perform medium work.” Id. In light of this RFC and
the vocational expert’s testimony, the ALJ determined that Baker is “capable of
performing the requirements of his past relevant work as a hatchery worker... and
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pallet builder...both of which are medium in exertional requirements.” (R. 21).
Consequently, the ALJ found that Baker “has not been under a ‘disability,’ as
defined in the Social Security Act, from February 28, 2007, through the date of
this decision.” (R. 22).
V. Analysis
The court turns now to Baker’s contentions that the ALJ failed (1) to give
appropriate weight to treating licensed clinical social worker Susan Brunson’s
opinion, and (2) to properly consider Baker’s depression and anxiety as “severe
impairments.” See doc. 8 at 4-14. The court addresses each contention in turn.
A.

Failure to give appropriate weight to licensed clinical social
worker’s opinion

Baker argues that the ALJ should have applied the “treating physician rule”
and given the opinion of licensed clinical social worker Susan Brunson substantial
weight. Doc. 8 at 7. “It is well-established that ‘the testimony of a treating
physician must be given substantial or considerable weight unless “good cause” is
shown to the contrary.’” Crawford v. Comm’r of Social Security, 363 F.3d 1155,
1159 (11th Cir. 2004) (emphasis added) (quoting Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997)); see also 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). However, licensed clinical social workers are not “acceptable

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medical sources” as defined in 20 C.F.R. § 416.913(a), and, thus, are not entitled
to the automatic substantial or considerable weight given to treating physicians.
See SSR 06-03p. Instead, licensed clinical social workers are recognized as “other
sources” whose testimony cannot establish the existence of a medically
determinable impairment, but may instead provide insight into the severity of a
claimant’s impairment or how it affects his ability to function. See SSR 06-03p;
20 C.F.R. §§ 416.913(d) and 404.1513(d). Consequently, the ALJ is required to
consider all the relevant evidence in the record and must analyze, including
assigning weight, the opinions issued by “other sources” such as licensed clinical
social workers. See SSR 06-03P; 20 C.F.R. §§ 404.1545(a)(1), (b); 20 C.F.R. §§
416.945(a)(1), (b).
Turning now to the facts here, the ALJ outlined the correct standard for
“other sources,” but failed to apply it properly:
Ms. Brunson has worked extensively with the claimant but she is not
one of the medical sources cited in the Regulations. All opinions,
whether medical or non-medical, may be considered by the
undersigned but there is no requirement that the opinion of a source
who is not an acceptable medical source be accorded controlling or
substantial weight in the process of a sequential evaluation. Insofar
as her opinion is consistent with other evidence in the record, the
undersigned will consider it in assessing the claimant’s limitations.
However, the determination as to whether the claimant is ‘disabled’ is
reserved to the Commissioner of Social Security.

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(R. 21). Unfortunately, the ALJ’s opinion stopped short and failed to state a basis
for this court to assess properly whether it is supported by substantial evidence.
Specifically, the ALJ failed to articulate how he evaluated Brunson’s opinion and
why he rejected it. Moreover, while the ALJ noted the other medical evidence in
the record, he also failed to articulate whether he considered this evidence, what
weight, if any, he gave to the various medical opinions, and whether he found
Brunson’s opinion consistent or inconsistent with any of the other evidence. See
(R. 16-22). This failure to meaningfully discuss the medical evidence leads the
court to conclude that a remand is warranted to ensure that the ALJ discusses all
the evidence and adequately supports his RFC and disability determinations.
A remand is especially warranted because the medical evidence lends
support to Brunson’s findings and suggests that the ALJ should have considered
Brunson’s findings in assessing Baker’s limitations. As a threshold matter, the
court notes that Brunson, a licensed clinical social worker at Cullman Quality
Heath Care Clinic where Baker has received treatment since 2009, opined that
Baker has “chronic headaches and back pain which began 10 years ago after a
motor vehicle accident” and “symptoms of Major Depression, Recurrent, Severe
256.32, Panic Disorder with Agoraphobia, 300.21, and Post Traumatic Stress
Disorder, 309.81. He has been taking Celexa 40 mg to treat his Depression and
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Anxiety. This has brought very little relief for him.” (R. 347). Brunson added
that “Baker has not been able to work for almost 2 years due to the debilitating
effects of his Depression and Anxiety,” and that he “suffers from severe chronic
daily fatigue, lack of interests, lack of motivation, decreased appetite and poor
sleep. He feels worthless and hopeless.” Id. Brunson attributed the depression to
grief from the deaths of Baker’s brother and father in 2004 and 2008, respectively.
Id. In addition, Brunson opined that “[a]nother factor to consider is that the
patient has low intelligence and only an 8th grade education. He worries about not
earning money but has very poor coping skills for all the stressors in his life.” Id.
Finally, Brunson opined that “[b]ecause [Baker] has not been able to work at all
for over 2 years, and his conditions do not indicate that he will be able to return to
work fulltime in the future, I strongly recommend [Baker] for Social Security
Disability Benefits.” (R. 348).
The latter opinion is, of course, the province of the Commissioner, as the
ALJ aptly noted. (R. 21). Nonetheless, Brunson’s venture into matters outside her
expertise does not negate her clinical findings, especially where, as here, other
evidence in the medical record is consistent with Brunson’s opinion. For example,
during a visit to Cullman Quality Health Care in March 2010, nurse practitioner
Mary Elizabeth Barry reported that Baker “has the symptoms of a major
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depressive episode. Triggered by brother[’]s death a few years ago” and “[Baker]
is experiencing anxious, fearful thoughts, compulsive thoughts or behaviors,
irritable mood, diminished interest or pleasure, fatigue or loss of energy, panic
attacks, poor concentration, indecisiveness, restlessness or sluggishness and sleep
disturbance. Pertinent negatives include feelings of guilt or worthlessness,
hallucinations, manic episodes, significant change in appetite (weight loss or gain
greater than 5%) or thoughts of death or suicide.” (R. 302). Barry diagnosed
Baker with chronic depressive disorder, uncontrolled hypertension exacerbated by
anxiety, and uncontrolled generalized anxiety disorder, and prescribed Baker
Citalopram Hbr for depression, Vistaril for anxiety, and referred Baker to
counseling for alcohol abuse. (R. 303-06).
Significantly, Dr. Eileen Gallagher, an osteopathic medical physician at
Cullman Quality Health Care – and an acceptable medical source – treated Baker
in August and September 2010 and diagnosed him with, among other things,
recurrent severe major depression and generalized anxiety disorder. (R. 341-43).
Dr. Gallagher treated Baker with anxiety and depression medications and reported
that Baker has had depression symptoms for “2 years or more without significant
break” and still has “depressed mood, diminished interest or pleasure, fatigue or
loss of energy, feelings of guilt or worthlessness, panic attacks, poor
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concentration, indecisiveness, restlessness or sluggishness and sleep disturbance”
as well as “anxious, fearful thoughts” and “symptoms of a major depressive
episode.” (R. 341).
The medical record also included Baker’s visits to the emergency room on
several occasions for suicide attempts and anxiety related chest pain in 2009,
2010, and 2011. (R. 250, 258, 352-60, 361-68, 369, 372, 381-86). On one such
visit, Cullman Regional Medical Center admitted Baker to the ICU for a drug
overdose, suspected to be a suicide attempt, and an alcohol level of 0.363.1 (R.
222). Apparently, Baker drank alcohol throughout the day and then took a handful
of Ibuprofen. Id. The admitting physician, Dr. L. James Hoover, reported that
Baker “apparently has once or twice taken some of his wife’s blood pressure
medicine and was sent by a judge to rehab for three months on one occasion for
alcohol abuse...[Baker] has recently lost his job. He has child support that he
cannot pay. His brother died about four [years] ago this time of year. His father
died a year ago and he has been quite depressed because of all of that and
apparently some other things.” Id. Dr. Hoover diagnosed Baker with suicide
gesture or attempt, alcohol abuse, and depression, and recommended Baker seek

1

Although the chart entry stated “363,” the court assumes that the physician intended to
note a blood alcohol level of 0.363. See (R. 222).
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case management or social worker assistance after discharge. (R. 223-24).
Based on this court’s assessment, Drs. Hoover and Gallagher’s opinions are
consistent with clinical social worker Brunson’s assessment. Likewise, even the
ALJ’s consultative and reviewing examiner’s opinions are consistent with
Brunson’s. For example, Jack Bentley, Jr., Ph.D., who performed a consultative
examination, opined that Baker’s prognosis was guarded and diagnosed Baker
with depressive disorder, chronic alcoholism, probable borderline to mild mental
retardation, borderline features of personality disorder, hypertension, and S&P
repair of laceration to lower right extremity. (R. 299). Dr. Bentley noted that
Baker started experiencing psychiatric problems seven to eight years ago, was
hospitalized three times in two years due to drug overdoses, has daily active
suicidal thoughts but has not pursued any formal outpatient psychiatric services,
and was on antidepressants. (R. 300). Dr. Bentley described Baker as cooperative
but questioned his motivation, and stated that Baker could have performed Serial
3s from 100 and correctly spelled the word “world” had Baker been more
motivated. (R. 299-300).
Melissa Jackson, Ph.D., who performed a Psychiatric Review Technique on
Baker, reported that Baker “does seem to be having significant problems with
concentration and attention and his social functioning is significantly impaired.”
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(R. 320-333). Dr. Jackson relied heavily on Dr. Bentley’s consultative
examination results in rating Baker and opined that Baker “would be limited to
simple tasks and to casual and infrequent contact with the public/co-workers,” but
that “[t]here is MDI that could reasonably cause the symptoms reported but the
severity of functional limitations alleged is not consistent with current objective
evidence on file. [Baker] is considered partially credible. With psychotherapy and
medication treatment he would likely improve within 6 to 12 months.” (R. 332).
Additionally, Dr. Jackson performed a Mental RFC Assessment in which she
described Baker as only moderately limited in his ability to understand and
remember detailed instructions, to carry out detailed instructions, to maintain
attention and concentration for extended periods, to work in coordination with or
proximity to others without being distracted by them, to complete a normal workday and workweek without interruptions from psychologically based symptoms, to
perform a consistent pace without an unreasonable number and length of rest
periods, and to interact appropriately with the general public and to get along with
his co-workers or peers. (R. 334-336).
As is evident, the medical record contains ample evidence of Baker’s
history of depression and anxiety, which supports the opinion by licensed clinical
social worker Brunson. While Brunson is not an “acceptable medical source” and
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thus is not entitled to the treating physician rule, the ALJ should have nonetheless
considered Brunson’s opinion and outlined why he rejected Brunson’s opinion,
and which physicians’ opinions he found more persuasive. Moreover, because the
ALJ failed to articulate which opinions and evidence he relied upon in
determining Baker’s RFC, the court finds that the RFC, and consequently, the
disability determination, is not supported by substantial evidence.
B.

Failure to properly consider Baker’s depression and anxiety as
“severe” impairments

Baker also contends that the ALJ failed to properly consider his depression
and anxiety as severe impairments, and that, even if the ALJ found they were nonsevere, that pursuant to SSR 96-8p, the ALJ should have considered the impact of
Baker’s severe and non-severe impairments on his ability to work. Doc. 8 at 1011; (R. 12). Based on these contentions, Baker asserts that the ALJ’s decision is
not based on substantial evidence. Id. at 12. The court agrees because of the
ALJ’s failure to fully discuss the medical evidence. The only support the ALJ
provided for finding that Baker did not have severe impairments of depression and
anxiety was that “none of these impairments have been ‘severe’ for more than a
few days at a time.” (R. 17). However, as outlined in Section A, the medical
evidence is replete with diagnoses from acceptable medical sources that at least
deserve some mention to justify the ALJ’s findings. On REMAND, the ALJ is
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charged to make a disability determination based on the entire medical record and
to clearly articulate the evidence that supports his ultimate finding.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination is
not based on substantial evidence. Therefore, the Commissioner’s final decision is
REVERSED and REMANDED for the ALJ to make a disability determination
based on the medical record, and to consult additional physicians, as necessary, to
assess Baker’s condition. Upon remand, the ALJ is charged with finding an RFC
consistent with the medical evidence available to the ALJ such that Baker’s
impairments are properly assessed. A separate order in accordance with the
memorandum of decision will be entered.
Done the 20th day of December, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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