Farris v. Social Security Administation, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by US Magistrate Judge T Michael Putnam on 4/7/2014. (MSN)

FILED
2014 Apr-07 AM 10:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LISSA DAWN FARRIS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Case No. 5:12-cv-3416-TMP

MEMORANDUM OPINION
The plaintiff, Lissa Dawn Farris, appeals from the decision of the
Commissioner of the Social Security Administration (ACommissioner@) denying her
application for Supplemental Security Income (ASSI@) and Disability Insurance
Benefits (ADIB@).

Ms. Farris timely pursued and exhausted her administrative

remedies, and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. '' 405(g), 1383(c)(3).
Ms. Farris was forty-four years old at the time of the Administrative Law
Judge’s (AALJ@) decision, and she has a year of college education. (Tr. at 33.) Her
past work experiences include employment as an advertising account executive or
representative. (Tr. at 53). Ms. Farris claims that she became disabled on February 27,
2007, due to back pain, neck pain, shoulder pain, bipolar disorder, depression, anxiety
and panic attacks, and post-traumatic stress disorder (“PTSD”). (Tr. at 31-32).
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When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process.

See 20 C.F.R.

'' 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
The first step requires a determination of whether the claimant is Adoing substantial
gainful activity.@

20 C.F.R. '' 404.1520(a)(4)(i), 416.920(a)(4)(i).

If she is, the

claimant is not disabled and the evaluation stops. Id. If she is not, the Commissioner
next considers the effect of all of the claimant’s physical and mental impairments
combined. See 20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments
must be severe and must meet the durational requirements before a claimant will be
found to be disabled. Id. The decision depends upon the medical evidence in the
record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant’s
impairments are not severe, the analysis stops.
416.920(a)(4)(ii).

20 C.F.R. '' 404.1520(a)(4)(ii),

Otherwise, the analysis continues to step three, which is a

determination of whether the claimant’s impairments meet or equal the severity of an
impairment listed in 20 C.F.R. pt. 404, Subpart P, Appendix 1.

20 C.F.R. ''

404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s impairments fall within this
category, she will be found disabled without further consideration. Id. If they do not,
a determination of the claimant’s residual functional capacity (ARFC@) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. '' 404.1520(e), 416.920(e).
Residual functional capacity is an assessment, based on all relevant evidence, of a

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claimant’s remaining ability to do work despite her impairments.

20 C.F.R.

' 404.1545(a).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R.
'§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do her past relevant
work, the claimant is not disabled and the evaluation stops. Id. If the claimant cannot
do past relevant work, then the analysis proceeds to the fifth step. Id. Step five
requires the court to consider the claimant’s RFC, as well as the claimant=s age,
education, and past work experience, in order to determine if she can do other work.
20 C.F.R. '' 404.1520(a)(4)(v) 416.920(a)(4)(v). If the claimant can do other work,
the claimant is not disabled. Id. The burden of demonstrating that other jobs exist
which the claimant can perform is on the Commissioner; and, once that burden is
met, the claimant must prove her inability to perform those jobs in order to be found
to be disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Ms. Farris has
not been under a disability within the meaning of the Social Security Act from the
February 27, 2007, date of onset through the date of his decision on April 4, 2011.
(Tr. at 21). In reaching that finding, he first determined that Ms. Farris has not
engaged in substantial gainful activity since the alleged onset of her disability. (Tr. at
14). At the second step of the sequential analysis, the ALJ found that the plaintiff has
severe impairments of major depressive disorder with anxiety; panic disorder;
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personality disorder; lumbar spondylosis; and lumbar scoliosis. However, at the third
step of the analysis, he found that these impairments did not meet or medically equal
any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 14).
As such, the ALJ was required to determine the plaintiff ’s RFC. In doing so, he
determined that she has the following residual functional capacity:
[T]he claimant has the residual functional capacity to perform sedentary
work…, except … that the claimant can lift or carry up to 10 pounds
occasionally and 5 pounds frequently. She can sit for up to six hours
and stand/walk for up to 2 hours in an 8-hour workday and must be
afforded a sit/stand option. She can never use a ladder, rope, or scaffold
and can occasionally crawl or use a ramp or stairs. She must avoid
concentrated exposure to extreme heat or cold and hazards. She can
perform simple routine, repetitive tasks with only occasional public
contact and low stress (defined only as occasional change in work setting
and decision making).
(Tr. at 16).
According to the ALJ, Ms. Farris is unable to perform any of her past relevant
work, she is a “younger individual,” and she has at least a high school education. (Tr.
at 20).

He determined that “transferability of skills is not material to the

determination of disability” in this case “because using the Medical-Vocational Rules
as a framework supports a finding that the claimant is ‘not disabled,’ whether or not
the claimant has transferable job skills.” (Tr. at 20). At the fifth stage of the analysis,
the ALJ found that Ms. Farris has the residual functional capacity to perform a
significant range of sedentary work. (Tr. at 20). Even though Plaintiff cannot
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perform the full range of sedentary work, the ALJ used the Medical-Vocation
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, as well as the testimony of a
vocational expert, as a basis for finding that there are a significant number of jobs in
the national economy that she is capable of performing, such as assembler,
grader/sorter, and machine tender. (Tr. at 21). The ALJ concluded his findings by
stating that Plaintiff was not under s disability as defined in the Social Security Act
from February 27, 2007, through the date of his decision. (Id.)

II.

Standard of Review
This court’s role in reviewing claims brought under the Social Security Act is a

narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied.

See

Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002).

The Court approaches the factual findings of the

Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
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supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm=n, 383 U.S. 607, 620
(1966)). Indeed, even if this Court finds that the evidence preponderates against the
Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for
“despite this deferential standard [for review of claims] it is imperative that the Court
scrutinize the record in its entirety to determine the reasonableness of the decision
reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to
apply the correct legal standards is ground for reversal. See Bowen v. Heckler, 748 F.2d
629, 635 (11th Cir. 1984).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the Commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.” 20 C.F.R. '' 404.1527(e), 416.927(d). Whether the Plaintiff
meets the listing and is qualified for Social Security disability benefits is a question
reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence,
or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ
about the significance of certain facts, the court has no power to reverse that finding
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as long as there is substantial evidence in the record supporting it.

III.

Discussion
Ms. Farris alleges that the ALJ=s decision should be reversed and remanded for

two reasons: first, she contends that the ALJ failed to recognize and consider
treatment notes from plaintiff’s psychiatrist, Dr. Alrefai; and second, because new and
material information in the form of a medical opinion was submitted to the Appeals
Council which, if considered by the ALJ, would have changed his opinion. (Doc. 8).
Because the ALJ failed to consider this new medical evidence, plaintiff contends his
finding of her RFC is not based on substantial evidence and that he did not
adequately factor the effects of her mental illness into his RFC determination when he
found that she was capable of performing a range of sedentary work with limitations.
(Doc. 8).
A. ALJ Failed to Consider All of the Evidence Available
Plaintiff ’s first challenge to the ALJ’s decision focuses on the absence of any
mention of Dr. Alrefai’s treatment of the plaintiff, suggesting that the ALJ failed to
make his RFC determination on all of the evidence presented. Although the decision
by the ALJ does not mention Dr. Alrefai or Valley Behavioral, it appears to be true
that the administrative record contained treatment notes by Dr. Alrefai from Valley
Behavioral, beginning in March 2010, at the time of the hearing. These notes were
forwarded to the Office of Disability Adjudication and Review in Florence, Alabama,
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in two letters by plaintiff ’s counsel, dated May 28, 2010, and January 18, 2011. (Tr. at
319 and 332). 1
The first set of treatment notes date to sessions with plaintiff on March 24 and
April 26, 2010, but the notes are largely illegible. (Tr. at 320-326). It is possible to
discern from the March 24 notes that Dr. Alrefai assessed plaintiff as depressed,
anxious, and “constricted” although her thoughts were logical. He diagnosed bipolar
disorder and PTSD. Similarly, on April 26, 2010, he rated her as having moderate
anxiety and depression. Her symptoms rated a 2 on a scale of 10, and her overall
functioning was rated a 6 out of 10. Strangely, under the heading “Diagnosis,” Dr.
Alrefai wrote for his Axis I diagnosis, “No ,” which the court can only guess to
mean “No Diagnosis.” (Tr. at 321).
A second set of treatment notes were delivered in a letter from plaintiff ’s
counsel on January 18, 2011, and these covered various treatment sessions from
May 24, 2010, through November 22, 2010. (Tr. at 333-354). As with the other notes,
the handwritten parts of these notes are essentially illegible, but they appear to report
the same substantial ratings of plaintiff ’s condition. Dr. Alrefai usually found the
plaintiff ’s mood to be depressed and anxious, and her affect “constricted.” She usually
was assessed as having mild to moderate depression, anxiety, and concentration
problems. He rated the severity of her symptoms as a 2 or 3 on a scale of 10, and her
Interestingly, there is another letter from plaintiff’s counsel dated September 8, 2010, (Tr. at 327331), in which he forwarded medical records from Riverside Counseling, which records are
specifically mentioned in the ALJ’s decision.

1

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overall functioning was always a 5 or 6 on a scale of 10.
At the outset, the court concludes that Dr. Alrefai was one of the plaintiff ’s
treating physicians, as that term is understood by the Commissioner. The Social
Security regulations define a “treating physician” as one with an ongoing medical
relationship with the claimant. The court of appeals has explained:
[A] treating physician is one who not only provides (or has provided) the
claimant with medical treatment or evaluation, but also has (or has had)
an “ongoing treatment relationship” with the claimant. 20 C.F.R.
§ 404.1502. A claimant generally has an “ongoing treatment
relationship” with a physician when medical evidence establishes that the
claimant sees or has seen the physician “with a frequency consistent with
accepted medical practice for the type of treatment and/or evaluation
required for [the claimant’s] medical condition(s).” Id.
Nyberg v. Commissioner of Social Security, 179 F. App'x 589, 591 (11th Cir. 2006). A
treating physician is one who has an ongoing relationship with the claimant, and these
notes plainly indicate that plaintiff met with Dr. Alrefai on a monthly basis from April
2010 until March of 2011 for mental health treatment.
Treatment notes from March 2010 through November 22, 2010, were part of
the record before the ALJ at the time of the hearing, yet there is no reference to the
notes or Dr. Alrefai’s treatment or assessment of the plaintiff in the ALJ’s decision.
Absent some explanation from the ALJ why these treatment records were not
considered, or were considered but rejected, the court cannot find that the ALJ has
properly decided the plaintiff ’s claim on the basis of all the evidence. The Nyberg case
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states the importance of the ALJ’s consideration of a treating physician’s opinion this
way:
In describing the proper evaluation of opinion evidence on disability
claims, the Social Security Administration (“SSA”) states the following:
Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may
bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(d)(2). Indeed, 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.” MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986); see Crawford v. Comm'r of Soc. Sec., 363
F.3d 1155, 1159 (11th Cir. 2004) (per curiam) (ALJ must accord substantial
or considerable weight to opinion of treating physician unless “good
cause” is shown to the contrary); Broughton v. Heckler, 776 F.2d 960, 961–
62 (11th Cir. 1985) (per curiam) (same); see also Wiggins v. Schweiker, 679
F.2d 1387, 1390 (11th Cir. 1982) (ALJ’s failure to mention appellant’s
treating physician and the weight, if any, given to the treating physician’s
opinion constituted grounds for reversal).
An ALJ’s “lack of
explanation” for failing to address a treating physician’s opinion is
“particularly troublesome” when that physician was the claimant’s “longtime treating physician.” Ryan [v. Heckler, 762 F.2d 939, 942 (11th
Cir.1985)].
Nyberg v. Commissioner of Social Security, 179 F. App'x 589, 590-91 (11th Cir. 2006)
(internal footnote omitted); see also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (“[T]he testimony of a treating physician must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.”). Because evidence
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from the treating physician is particularly important, “The ALJ must clearly articulate
the reasons for giving less weight to the opinion of a treating physician, and the
failure to do so is reversible error.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997).
Moreover, the failure of the ALJ to articulate his consideration and weighing
of Dr. Alrefai’s medical opinions is not subject to harmless error analysis. The failure
to consider a treating physician’s evidence prevents a reviewing court from assessing
the impact of the overlooked evidence precisely because doing so requires reweighing
the evidence, which is the province of the ALJ.
Thus, we cannot say that the failure to address [a treating physician’s]
opinion was harmless without re-weighing the evidence and engaging in
conjecture that invades the province of the ALJ. See Moore [v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam)] (stating that, where
ALJ failed to consider certain factors and indicate their impact on his
ultimate conclusion as to claimant's residual functional capacity, we
“[could not] even evaluate the Commissioner’s contention that the ALJ’s
error was harmless”); Wiggins, 679 F.2d at 1390 (remanding where we
were “unable to determine whether the ALJ applied the proper legal
standard and gave the treating physician’s evidence substantial or
considerable weight or found good cause not to do so”); Wilson, 378
F.3d at 546 (“A court cannot excuse the denial of a mandatory
procedural protection simply because, as the Commissioner urges, there
is sufficient evidence in the record for the ALJ to discount the treating
source’s opinion and, thus, a different outcome on remand is unlikely.”).
Nyberg v. Commissioner of Social Security, 179 F. App'x 589, 592 (11th Cir. 2006). Because
a reviewing court is not allowed to reweigh the evidence, the only recourse for
correcting a failure to consider evidence is to remand the matter to the ALJ for
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reconsideration in light of the evidence. The court will remand this to the ALJ for
further consideration in light of the evidence from Dr. Alrefai.
B. Appeals Council’s Consideration is Moot
Because the court has concluded that it must remand this matter to the ALJ
for further consideration in light of evidence from Dr. Alrefai submitted before the
ALJ’s decision, it is unnecessary to address the plaintiff’s second contention that the
Appeals Council improperly failed to consider evidence submitted to it during
plaintiff’s appeal of the ALJ’s adverse decision. Plainly, some evidence of Dr.
Alrefai’s treatment notes were submitted before the ALJ’s hearing on March 10,
2011, and this evidence must be addressed by the ALJ. Whether other evidence
submitted on April 6, 2011, should be considered is a matter the ALJ should address.

IV. Conclusion
Based on the foregoing discussion, the court will vacate the denial of benefits
by the Commissioner and remand this matter to the Administrative Law Judge for
further consideration in light of evidence produced by one of plaintiff’s treating
physicians, Dr. Alrefai. A separate order will be entered.
DONE this 7th day of April, 2014.

________________________________
T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE
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