Isbell v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 9/23/14. (SAC )

FILED
2014 Sep-23 PM 02:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
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STANFORD DWAYNE ISBELL,
Plaintiff
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.

CIVIL ACTION NO.
5:13-CV-0131-KOB

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MEMORANDUM OPINION
I. INTRODUCTION
The claimant, Stanford Isbell, filed applications for a period of disability and Disability
Insurance benefits on October 2, 2006, alleging disability commencing on June 8, 2006 because
of back pain, depression, hypertension, diabetes mellitus, cervical and lumbar arthritis,
degenerative disc disease, sleep apnea, hand injury, severe impairment of history of carpal tunnel
release surgery, and fractured right foot. The Commissioner denied the claims. The claimant filed
a timely request for a hearing before an Administrative Law Judge, and the ALJ held a video
hearing on May 11, 2009.
In a decision dated July 14, 2009 , the ALJ found that the claimant was not disabled
within the meaning of the Social Security Act and, thus, was ineligible for Disability Insurance
Benefits. (R. 135). The claimant appealed the decision on July 29, 2009. The Appeals Council
remanded the case on March 19, 2010, instructing the ALJ inter alia to obtain evidence from a
medical expert to clarify the nature and severity of claimant’s impairments and to give further
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consideration to the claimant’s maximum residual functional capacity.
The same ALJ held a second hearing on March 23, 2011. After the hearing, the claimant
amended his onset date to February 17, 2009. On May 23, 2011, the ALJ issued a decision
denying the claimant’s application. (R. 24). On appeal, the Appeals Council denied the claimant’s
request for review. The claimant has exhausted his administrative remedies, and this court has
jurisdiction under 42 U.S.C. §§ 405(g) and 1631(c)(3). For the reasons stated below, the decision
of the Commissioner will be reversed and remanded.
II. ISSUE PRESENTED
Whether the ALJ failed to comply with the special instructions contained in the Appeals
Council’s order by not obtaining another Psychiatric Review Technique from a mental health
expert after the remand.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must affirm
the Commissioner’s decision if the Commissioner applied the correct legal standards and if the
factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determination de novo. The
court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
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U.S. 389, 401 (1971).
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look
only to those parts of the record that support the decision of the ALJ, but also must view the
record in its entirety and take account of evidence that detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person
cannot “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 12 months.” 42 U.S.C. §
423(d)(1)(A). To make this determination, the Commissioner employs a five-step sequential
evaluation process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. pt. 404, subpt. P, app. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
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 than step three, leads to a determination of “not disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920.
On remand by the Appeals Council, the administrative law judge must take any action
that is ordered by the Appeals Council and may take any additional action that is not inconsistent
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with the Appeals Council’s remand order. 20 C.F.R. § 404.977(a) and (b).
V. FACTS
The claimant has a high school education and was forty-seven years old at the time of the
administrative hearing. His past work experience includes employment as a welder/ fitter. (R. 35).
The claimant alleged that he was unable to work because of back pain, depression, hypertension,
diabetes mellitus, cervical and lumbar arthritis, degenerative disc disease, sleep apnea, hand injury
and severe impairments of history of carpal tunnel release surgery. (R. 142).
In making her most recent determination, the ALJ reviewed and considered the extensive
medical evidence dating back to 2004 regarding the claimant’s physical impairments. However,
this court will not address the claimant’s physical limitations because the issue before the court
involves only the ALJ’s failure to follow the Appeal Council’s order regarding the claimant’s
mental impairments and limitations.
Mental Limitations
Medical records reflect Dr. Greg J. Sullivan, a treating physician at Parkway Medical
Center, treated the claimant from August 1998 to February 2006 for anxiety and depression. Dr.
Sullivan began prescribing the claimant Xanax for stress and nerves in August, 1998. (R. 356).
Dr. Sullivan is the only physician of record who has treated and prescribed medication for the
claimant’s depression and anxiety disorders.
In October 2004, Dr. Sullivan indicated that the claimant suffered from depression that
was confirmed by the claimant’s mother, and he prescribed the claimant Prozac. (R.336).
In February 2006, the claimant presented to Dr. Sullivan complaining specifically of
headaches, sleeping poorly, and having trouble reading blue prints. Upon examination, Dr.
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Sullivan continued the claimant’s prescription for Xanax, noting that the claimant’s depression
was related to his work schedule and divorce. (R.330).
On January 9, 2007, at the request of the Disability Determination Service for a
Psychiatric Review Technique, Dr. Frank J. Nuckols examined the claimant. Dr. Nuckols found
that the claimant had the nonsevere impairment of anxiety related disorders. He assessed that the
claimant had mild limitations in activities of daily living, social functioning, and concentration
persistence or pace and no episodes of decompensation. Dr. Nuckols also noted that the claimant
took Xanax for anxiety related to his work schedule and divorce. He opined that the claimant’s
allegations of pain are partially credible, but that the claimant does his own chores, cooks, shops,
watches TV and remembers what he watched, reads the newspaper and remembers what he read,
drives a car, plays with his grandson and visits with friends.
On March 11, 2011, the claimant’s representatives sent him for a consultative examination
with Dr. Jeremy Allen. During this examination, the claimant complained of being unable to
focus, being unable to read blue prints and being unable to remember what he was doing. After
his examination, Dr. Allen attached a Physical Capacities Evaluation and Clinical Assessment to
his notes. However, he did not attach any mental evaluation notes or Psychiatric Review
Technique Form. (R.567).
First ALJ Hearing (May 11, 2009)
On May 11, 2009, the ALJ held a video hearing with the claimant. At this hearing, the
claimant testified about his physical impairments; however, this court will only discuss testimony
regarding the claimant’s mental limitations.
At the hearing, the claimant testified about his depression only regarding medications that
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he takes for his nerves and depression. When asked about pain, the claimant responded that, on
an average day, his pain was an eight or nine on a scale of one to ten. (R. 50-51)
The ALJ then examined the Vocational Expert, David Head, who testified concerning the
type and availability of jobs that the claimant was able to perform. (R. 55-57). The ALJ posed
three hypothetical situations to the VE based on his possible findings of the claimant’s RFC.
First, the ALJ asked the VE to assume that the claimant was an individual of the same age,
education and past relevant work experience. The individual has historically had back and neck
pain, high blood pressure, diabetes, minimal carpal tunnel syndrome and right leg pain. The
individual’s pain and depression fall within the moderate category. The individual can sit, stand
and walk sufficiently enough to sit six hours in a day and walk at least two hours in a day with a
five, ten pound repetitive motion. The ALJ then asked the VE to identify any jobs that he
believed the claimant could perform. The VE replied that this hypothetical would put the claimant
in the definition of sedentary jobs. He replied that the claimant could perform noncomplex
clerical jobs, such as information, telephone answering or posting clerk. There would also be jobs
available in telephone order sales as well as in monitoring a surveillance system. (R.56).
The ALJ then asked the VE to consider a second hypothetical, regarding a person with
the same limitations but also to assume that the previous individual could handle either an eight
hour sit/ stand option or six hours of standing and walking combined, lifting five to ten pounds
on a regular basis and occasionally lifting beyond 20 to 25 pounds with pain and depression still
being in a moderate category. In response, the VE testified that these limitations would still
qualify the individual for the jobs he first listed at the sedentary level and would add light jobs.
Examples of the light jobs that the individual could now perform would include cashier
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technician, retail sales and security guard. (R. 57).
Finally, the ALJ asked the VE to consider a third hypothetical, regarding a person with
the same functional limitations of the previous individual but also to assume that the previous
individual’s pain or depression reached a marked level, even if it was only one or two times a
week. In response, the VE testified that such a person would not be able to perform any of the
jobs previously mentioned, nor any other jobs in the national economy. (R. 57).
First ALJ Decision (Re: Mental Limitations)
On July 14, 2009, the ALJ issued a decision finding that the claimant was not disabled
under the Social Security Act. (R.137). First, the ALJ found that the claimant had not engaged in
substantial gainful activity since the alleged onset of his disability. Next, she found that the
claimant’s history of carpal tunnel release surgery and hand injury, hypertension, diabetes
mellitus, cervical and lumbar arthritis and degenerative disc disease, depression and sleep apnea
qualified as severe impairments; she concluded, however, that these impairments did not singly
or in combination manifest the specific signs and diagnostic findings required by the Listing of
Impairments. (R.137).
The ALJ found that the claimant’s mental impairment of depression was severe and that it
caused a moderate limitation in the claimant’s activities of daily living; moderate difficulties in
maintaining social functioning; moderate difficulties in maintaining concentration persistence or
pace; and no episodes of decompensation. (R.138).
The ALJ found that because the claimant’s medically determinable mental impairment
did not cause at least two “marked” limitations or one “marked” limitations and “repeated”
episodes of decompensation, the “paragraph B” criteria were not satisfied and the claimant did
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not satisfy the requirements to meet one of the listing impairments.
Next, the ALJ concluded that the claimant had the RFC to perform light work as defined
in 20 C.F.R. § 404.1567(b) with a sit/ stand option and no more than mild to moderate pain and
depression. (R.138). In making this determination, the ALJ gave significant weight to the
psychiatric review technique performed by the State agency psychological consultant, Dr. Frank
J. Nuckols on January 9, 2007. In this review Dr. Nuckols opined that the claimant did not have a
severe mental impairment. (R. 364). The ALJ also gave some weight to the claimant’s reports of
his daily activities, noting that they indicate the claimant’s capability of functioning
independently and being able to perform simple light work.
To further support her conclusion, the ALJ noted that the claimant’s testimony regarding
his pain and limitations were inconsistent with the medical evidence. The ALJ stated that the
claimant did not see a doctor on a regular basis and that no treating or consulting source indicated
that the claimant was not capable of performing at least some type of work at a light level of
physical exertion, with only minor physical and mental restrictions. The ALJ noted that treating
sources found that the claimant suffered from mild to moderate major depression but that his
depression was secondary to work stress and the claimant’s divorce. Without explanation, the
ALJ asserted that she accounted for these limitations in the claimant’s RFC. (R. 140).
The ALJ subsequently found that, based on the VE’s testimony, the claimant was unable
to perform any past relevant work, and no transferable skills existed within the sedentary RFC.
However, based on the VE’s testimony, jobs existed in significant numbers in the national
economy that the claimant could perform. Therefore, the ALJ ultimately determined that the
claimant was not disabled under the rules of the Social Security Act. (R. 141).
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The Appeal Council’s Remand Order
Following the first decision of the ALJ, the AC remanded the claimant’s case for further
proceedings on March 19, 2010. In relevant part, the remand order directed the ALJ to“[u]pdate
the medical evidence concerning the claimant’s physical and mental impairments,” to “obtain
medical evidence from a medical expert to clarify the nature and severity of the claimant’s
impairments,” and to “give further consideration to the claimant’s maximum residual functional
capacity during the entire period at issue providing rationale with specific references to evidence
of record in support of assessed limitations.” (R. 146).
The AC, in its order, stated that the ALJ’s decision indicated that the claimant had the
RFC to perform light work as defined in 20 C.F.R.§ 404.1567(b) with a sit/ stand option and no
more than mild to moderate pain and depression, but the AC was concerned that substantial
evidence did not support this RFC assessment. The AC pointed out that the ALJ’s decision
indicated that the claimant suffered from the severe mental impairment of depression; however,
the ALJ’s RFC assessment did not indicate the claimant’s ability to perform mental work-related
activities and it failed to indicate whether the claimant can perform work-related mental activities,
such as the ability to understand, carry out and remember instructions; to use judgment in
making work-related decisions; to respond appropriately to supervision, coworkers and work
situations; and to deal with changes in a routine work setting. (R. 145).
Second ALJ Hearing (March 23, 2011)
After the AC granted the claimant’s request for review and remanded the case to the ALJ
with instructions, the same ALJ held a second hearing on March 23, 2011. At the hearing, the
claimant testified about his physical impairments; however, as stated previously, this court will
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only discuss testimony regarding the claimant’s mental limitations.
At the hearing, the claimant testified that, over the years, his depression has worsened;
however, because he can no longer afford his medication, his depression has gone untreated. (R.
72). Regarding daily activities and limitations, the claimant testified that, on an average day, his
pain is at a level of eight on a scale of one to ten. (R. 83). The claimant also testified that his daily
activities include doing yard work, going grocery shopping, and doing the laundry and household
chores with the help of his mother. (R. 83-88).
The ALJ then examined the VE, David Head, who again testified concerning the type and
availability of jobs that the claimant was able to perform. (R. 88-94). The ALJ posed two
hypothetical situations to the VE based on an individual of the same age, education and past
relevant work experience as the claimant, with the following limitations: has back and neck pain;
has post bilateral carpal tunnel release syndrome; has sinus syndrome; has mild depression; has a
fractured elbow of the non dominant hand; cannot focus on things like reading blue prints, but
can read and watch television; cannot climb stairs on a regular basis; cannot stand, sit or walk for
long periods of time; has a normal range of motion; has no problem operating vehicles or
machinery; can maintain personal hygiene; can sort, file and handle papers; can keep up with
appointments; can coordinate his health care and the health care of his mother; can use public
transportation; and can drive. Next, the VE identified the sedentary work opportunities that the
claimant could perform, which included information clerk, telephone answering clerk, bench and
table worker, or non-production quota sedentary assembler. (R. 89-91).
Then, the ALJ asked the VE to consider a second hypothetical, regarding a person with
the same limitations as the previous individual but also to assume that the previous individual has
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cardiomaglia with a heart condition with pain in the individual’s chest limiting his ability to exert
himself limiting him to less than eight hours a day of work. In response, the VE testified that such
a person would not be able to perform any of the jobs previously mentioned, nor any other jobs
in the national economy. (R. 93-94).
Second ALJ Decision (Re: Mental Limitations)
On May 23, 2011, the ALJ issued a decision finding that the claimant was not disabled
under the Social Security Act. (R. 25). First, the ALJ found that the claimant had not engaged in
substantial gainful activity since the alleged onset date of his disability. (R. 26). Then, the ALJ
found that the claimant’s degenerative lumbar and cervical disc disease and hypertension
qualified as severe impairments; she concluded however, that these impairments did not singly or
in combination meet a listing impairment. (R. 28).
Unlike the ALJ’s first decision, the ALJ, in this decision, found that the claimant’s mental
impairment of depression was nonsevere because it did not cause more than a minimal limitation
in the claimant’s ability to perform basic mental work activities. The ALJ found that the
claimants’s medically determinable mental impairment of depression caused no more than a
“mild” limitation in activities of daily living; maintaining social functioning; and maintaining
concentration, persistence or pace. The ALJ also found no episodes of decompensation. Thus,
the ALJ found that the claimant did not meet the criteria of the “paragraph B” listings
requirements. (R. 27).
In making this determination, the ALJ gave great weight to the January 9, 2007
psychiatric review technique form completed by Dr. Frank J. Nuckols, a State agency
psychological consultant. In his evaluation, Dr. Nuckols opined that the claimant did not have a
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severe mental impairment. (R. 364-77). The ALJ also gave some weight to the claimant’s and his
then wife’s questionnaires about activities of daily living, completed on October 25, 2006; the
ALJ ruled that, at that time, the claimant was able to watch television and remember what he
watched as well as read the newspaper and remember what he read. (R. 250-54, 27). However,
the ALJ specifically noted that these daily living questionnaires were completed three years
before the claimant’s alleged onset date of disability and are the same questionnaires that she
relied upon in her first decision.
Next, after considering the entire record, the ALJ concluded that the claimant had the
RFC to perform sedentary work with a sit/stand option as defined in 20 C.F.R. § 404.1567(a)
with the following limitations: can occasionally reach overhead; can frequently reach everywhere
else; can continuously handle, finger and feel; can frequently push and pull; can frequently
operate foot controls; can occasionally stoop, kneel, crouch or crawl; can occasionally be
exposed to vibrations and moving mechanical parts; can continuously be exposed to humidity,
wetness, dust, odors, fumes, cold and heat; cannot balance or climb stairs, ramps, ladders or
scaffolds; and cannot work around unprotected heights. (R. 28).
To address the claimant’s allegations of his limitations from his impairments, the ALJ
discussed the claimant’s daily activities questionnaire, dated October, 2006, as well as the
claimant’s testimony from the hearing. (R. 267-71, 86-88). Regarding daily activities, the ALJ
stated that the claimant cooks, does the laundry, does yard work and takes care of his mother.
The ALJ noted that these activities not only require physical exertion, they require mental
exertion as well. The ALJ also considered the opinion of Dr. Allen that the claimant’s
impairments would cause a distraction from tasks or total abandonment of tasks if he were to
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perform activities such as prolonged sitting, walking, standing, bending, stooping, and moving
extremities. However, the ALJ noted that she accounted for those limitations in the claimant’s
RFC determination by providing a sit/stand option. (R. 33).
The ALJ also pointed out that the claimant testified that although his depression has
increasingly gotten worse, he is no longer able to afford his depression medication. The ALJ
dismissed this explanation as the reason he is no longer taking his depression medication by
pointing out that the claimant is a regular cigarette and cigar smoker. The ALJ opined that the
claimant’s ability to find money for his habits, but not for his medications, suggests that his
alleged pain and depression is not as bad as he described. (R. 33).
The ALJ subsequently found that the claimant was unable to perform his past relevant
work, and that no transferable skills existed within the sedentary RFC. However, based on the
VE’s testimony, the ALJ found that jobs existed in the national economy for the claimant based
on his age, education, work experience and RFC. Such jobs included work as an information
clerk, telephone answering clerk, bench and table worker, or non-production quota sedentary
assembler. (R. 89-91). Therefore, the ALJ ultimately determined that the claimant was not
disabled under the rules of the Social Security Act. (R. 88-94).
VI. DISCUSSION
The claimant argues that the ALJ failed to comply with the special instructions contained
in the AC’s order by not obtaining new medical evidence from a psychiatric medical expert. This
court agrees.
Section 404.977(a) and (b) of Title 20 of Federal Regulations provides that the ALJ must
take any action that is ordered by the Appeals Council and can take any additional action that is
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not inconsistent with the Appeals Council’s remand order. 20 C.F.R. § 404.977(a) and (b). In the
instant case, on March 19, 2010, the AC instructed the ALJ to “[u]pdate the medical evidence
concerning the claimant’s physical and mental impairments”; to “obtain medical evidence from a
medical expert to clarify the nature and severity of the claimant’s impairments”; and to “give
further consideration to the claimant’s maximum residual functional capacity during the entire
period at issue providing rationale with specific references to evidence of record in support of
assessed limitations.” In more general terms, the AC ordered the ALJ to more adequately
evaluate the claimant’s mental and physical impairments by obtaining new medical evidence and
to re-assess the claimant’s RFC and provide findings and supporting rationale that consider the
new medical evidence. (R. 146). Because the AC explicitly ordered the ALJ to update the medical
evidence concerning both the claimant’s physical and mental impairments, this court agrees with
the claimant that the AC’s directive also involved the ALJ’s obligation to obtain new medical
evidence from a mental health expert regarding the claimant’s mental limitations.
In the present case, the ALJ did obtain new medical evidence regarding the claimant’s
physical limitations; however, the ALJ sought no new medical evidence in evaluating the
claimant’s mental limitations. In the ALJ’s first decision, she found the claimant’s mental
impairment of depression to be severe. (R. 137). In making this initial determination, that the
claimant’s depression was severe, the ALJ relied on Dr. Nuckol’s January 2007 Psychiatric
Review Technique Form and the claimant’s October 2006 activities of daily living questionnaire.
(R. 364-77). Based on this evidence, the ALJ assessed the claimant with the RFC to perform light
work with limitations as defined in 20 C.F.R. § 404.1567(b). (R. 138).
In the ALJ’s subsequent 2011 decision, after the AC’s remand order, the ALJ again relied
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on the Dr. Nuckols 2007 Psychiatric Review Technique Form and the claimant’s October 2006
activities of daily living questionnaires. In assessing his mental limitations this time, however, the
ALJ found the claimant’s depression to be nonsevere despite relying on the same evidence, and
assessed that the claimant had the RFC to perform sedentary work with limitations. (R. 27). The
only new evidence that the ALJ relied upon in her 2011 decision was the claimant’s testimony
that, even though his depression had worsened, he had not been taking his prescribed depression
medication since August, 2006. (R. 72, 359). The ALJ acknowledged that the claimant stated that
the reason he was not taking his depression medication was because he could no longer afford it;
but, the ALJ subsequently disregarded his explanation by stating that the claimant was a habitual
smoker and had no problem funding his smoking habit. (R. 33). However, the ALJ’s decision to
go from a finding of depression as a severe impairment to a non-severe impairment based on this
fact alone lacks substantial evidence.
Here, the claimant’s testimony regarding his noncompliance does not amount to the
requisite substantial evidence needed to support the change between the ALJ’s first and second
opinion from severe to nonsevere regarding the claimant’s depression. Furthermore, the
claimant’s testimony and medical records suggest that in 2009, at the time of the ALJ’s first
decision, the claimant had not been taking his prescribed medication for approximately three
years, yet the ALJ still found the claimant’s depression to be a severe impairment at that time. (R.
359).
In her 2011 opinion, the ALJ found the claimant’s mental impairment of depression to be
nonsevere, relying on the claimant’s testimony that he has not taken his depression medication
since August 2006. However, these facts are the same facts that were before the ALJ at the time
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of her first decision. The inconsistency between the ALJ’s first and second opinions are
concerning to the court primarily because both opinions rely on the same evidence, yet reach
opposite results regarding the severity of the claimant’s depression.
The ALJ’s failure to follow the AC’s order and instead rely on the same evidence relied
upon in the her first opinion with a different result amounts to reversible error. On remand, the
ALJ should follow the AC’s order and obtain new evidence from a medical expert to clarify the
nature and severity of the claimant’s mental impairments.
VII. CONCLUSION
For the reasons as stated, this court concludes that the ALJ failed to comply with the
AC’s order to obtain evidence from a medical expert to clarify the nature and severity of the
claimant’s mental impairments. Therefore, the court will reverse the Commissioner’s decision
and will remand it for the ALJ to take steps in accordance with this opinion.
A separate Order will be entered in accordance with this Memorandum Opinion.
DONE and ORDERED this 23rd day of September, 2014.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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