Underwood v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION AND ORDER OF REMAND that the decision of the Commissioner is REVERSED and this action is REMANDED to the Commissioenr of the Social Security Administration for further proceedings consistant with this memorandum opinion and order as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 3/6/2014. (AHI)

FILED
2014 Mar-07 AM 09:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
THOMAS F. UNDERWOOD,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 5:13-cv-192-CLS

MEMORANDUM OPINION AND ORDER OF REMAND
Claimant Thomas Underwood commenced this action on January 28, 2013,
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 and disability insurance
benefits. For the reasons stated herein, the court finds that the Commissioner’s ruling
is due to be reversed, and this case remanded to the Commissioner for further
proceedings.
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 improperly considered the opinions of his treating
physician, Dr. Thomas Royster, and improperly evaluated his subjective symptoms
and credibility.1 Upon review of the record, the court concludes that the first
contention has merit.
The opinion of a treating physician “must be given substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Phillips v. Barnhart, 357 F.3d
1232, 1240-41 (11th Cir. 2004) (internal citations omitted). Good cause exists when
“(1) [the] treating physician’s opinion was not bolstered by the evidence; (2) [the]
evidence supported a contrary finding; or (3) [the] treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Id. (alterations
supplied). Additionally, the ALJ is not required to accept a conclusory statement from
a medical source, even a treating source, that a claimant is unable to work, because the
1

Claimant also makes a passing statement in his brief that the ALJ erred in failing to find
him disabled under one of the Listings. See doc. no. 13 (claimant’s brief), at 7 (“The ALJ erred in
finding that Mr. Underwood’s diabetes and peripheral neuropathy are not ‘severe’ enough to meet
or medically equal an impairment in Appendix 1, Subpart P, Regulations No. 4.”). That conclusory
statement is not sufficient to carry claimant’s burden of establishing the satisfaction of the listing.
See Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991) (“The burden was Barron’s to show that
his impairments combined to meet or equal a listed impairment in Appendix 1 of Subpart P . . . .”).
2

decision whether a claimant is disabled is not a medical opinion, but is a decision
“reserved to the Commissioner.” 20 C.F.R. § 416.927(e). Social Security regulations
also provide that, in considering what weight to give any medical opinion (regardless
of whether it is from a treating or non-treating physician), the Commissioner should
evaluate: the extent of the examining or treating relationship between the doctor and
patient; whether the doctor’s opinion can be supported by medical signs and
laboratory findings; whether the opinion is consistent with the record as a whole; the
doctor’s specialization; and other factors. See 20 C.F.R. § 404.1527(d). See also
Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (“The weight afforded a
physician’s conclusory statements depends upon the extent to which they are
supported by clinical or laboratory findings and are consistent with other evidence as
to claimant’s impairments.”).
Dr. Royster, claimant’s treating family practitioner, wrote a “To Whom It May
Concern” letter on March 23, 2010, stating:
Mr. Underwood has been under my primary medical care since
1992. He was diagnosed with diabetes in 1997. Over the past several
years his disease has progressed to the point that he now uses insulin,
both long acting and a sliding scale. He has developed diabetic
peripheral neuropathy and has fatigue with chronic pain as a result.
In 2005, Mr. Underwood was diagnosed with malignant melanoma
requiring 2 separate operative procedures to remove the cancer. He is
under the care of a dermatologist and oncologist as well. He was advised
to avoid sunlight due to its harmful affects [sic] and he has had to give
3

up his trained position as a building contractor.
Mr. Underwood suffers from depression, anxiety, and lack of
mental focus at times as a result of his diabetes and melanoma and the
disabling effects of them, including his inability to work in his field of
training.
Mr. Underwood is quite compliant with his regimen of treatment
and follows his diet religiously. However, his diabetes is progressive
and incurable. In my professional opinion, Mr. Underwood should be
considered disabled as he is no longer able to perform the functions of
his job.2
Dr. Royster submitted a second letter on March 18, 2011, stating:
As a follow-up to my letter dated March 23, 2010 Mr.
Underwood’s health has continued to decline in several areas, but mostly
in the realm of his diabetes. Over the past year, his glucose levels have
been very difficult to control despite changes in medication dosages,
additions of other medications to his regimen, and more stringent
exercise and diet plans. As a result of this, his peripheral neuropathy has
become more prominent and he has taken on additional stress due to his
worry over his health. Though he continues to work as much as
possible, he finds this increasingly more difficult. The stress of not
being able to compete in the work place even adds more to the instability
of his diabetes. Recently, he was referred to a diabetologist to see if
other measures can be taken to improve his diabetes. As a result of that
workup, he has been found to have an extremely low vitamin D level due
to his inability to get adequate sun exposure (a result of his malignant
melanoma). Also he was found to have an elevated measure of
inflammation in his coronary arteries which could lead to heart attack or
stroke.
Because this gentleman has to concentrate much of his time and
energy towards treatment of his health problems, and because of the way
these health problems have affected him physically and psychologically,
it is my professional opinion that he should be considered disabled and
2

Tr. 270 (alteration supplied).
4

is no longer able to perform the daily functions of his job.3
Dr. Royster also submitted a Functional Assessment (Physical) form on April
19, 2011. He indicated that claimant could stand for thirty minutes at a time, and for
two hours total, during an eight-hour work day. He could walk for thirty minutes at
a time, and for one hour total, each day. He could sit for thirty minutes at a time, and
for five hours total, each day. Claimant would require a sit-stand option, and he
would have to lie down for approximately sixty minutes two to three times a week as
a result of his hypoglycemia. Claimant could frequently lift up to twenty pounds and
occasionally lift up to thirty pounds. He could frequently carry up to five pounds and
occasionally carry up to ten pounds. He could frequently push/pull with the left arm
and right leg, reach, handle, feel, talk, and hear. He could occasionally push/pull with
his right arm and left leg, stoop, kneel, and crouch. He could never climb, balance,
or crawl. Those limitations were due to a previous surgery on his right arm for
melanoma, and arthritis in his left knee. Claimant could frequently be exposed to
vibration, but could only occasionally be exposed to wetness, humidity, or proximity
to moving mechanical parts. He could never be exposed to extreme cold or heat,
fumes, noxious odors, dusts, mists, gases, poor ventilation, or work in high, exposed
places. His color vision and field of vision were unlimited. He could frequently use
his far acuity, but could only occasionally use his near acuity, depth perception, and
3

Tr. 74.
5

accommodation. He could be exposed to moderate noise levels.4
The ALJ characterized Dr. Royster’s physical assessment form as indicating
that “claimant is capable of completing an eight hour workday with certain
restrictions.”5 As such, the ALJ accepted the opinion “for the most part as it ws
supported by Dr. Royster’s treatment records and generally consistent with other
medical evidence of record . . . .”6 She assigned little weight, however, to Dr.
Royster’s letters of March 2010 and March 2011, stating:
While the claimant may suffer from peripheral neuropathy, fatigue and
chronic pain now, the evidence does not show he was suffering from
these symptoms prior to December 31, 2009, the date last insured.
Treatment records show the claimant’s health was stable, he was active,
exercising regularly and responding well to treatment. The claimant was
advised to avoid sunlight. However, this condition alone would not
preclude him from performing all work activity. There is also no
objective evidence that the claimant’s health was in decline. The
claimant reported no problems to Dr. Gualtieri and said he was doing
well overall. Dr. Royster apparently relied quite heavily on the
subjective report of symptoms and limitations provided by the claimant
and seemed to accept most of it as reported. His opinion is quite
conclusory and he provided little objective evidence of severity prior to
December 31, 2009. Further, since Dr. Royster’s opinion is without
support from other evidence in the record, it is obviously rendered less
persuasive . . . .7
The ALJ’s findings about Dr. Royster’s assessment of claimant’s physical
limiations are internally inconsitent. The ALJ rejected Dr. Royster’s letters because
4

Tr. 339-40.

5

Tr. 18.

6

Id.
7
Id.
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they related to a time period after claimant’s date last insured of December 31, 2009.
That in and of itself was not improper, as each claimant bears the burden of proving
disabilty on or before his date last insured. See 42 U.S.C. § 423(a) and (c); 20 C.F.R.
§§ 404.101, 404.130, and 404.131; Ware v. Schweiker, 651 F. 2d 408, 411 n.3 (5th
Cir. July 1981).8 But, at the same time, the ALJ accepted Dr. Royster’s Functional
Assessment (Physical) form “for the most part,” even though it was dated April 19,
2011, well after the date last insured. Moreover, the ALJ did not specify which
portions of the Functional Assessment she was accepting and which she was rejecting.
That is significant, because one limitation noted on the Functional Assessment form
was claimant’s need to lie down for an hour at a time, two to three days a week, as a
result of his hypoglycemia. The vocational expert testified during the administrative
hearing that there were no jobs that would accommodate an employee’s need to lie
down routinely during the day.9 Thus, an individual with a need to lie down two to
three times a week would be completely disabled from performing any job. The ALJ
did not include that part of Dr. Royster’s assessment in her residual functional
capacity finding, and she did not explain why it was omitted. Perhaps she found the
assessment to be unsupported by the evidence, or perhaps it was merely an

8

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
9

Tr. 55.
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unintentional omission. It would not be proper for this court to speculate about the
ALJ’s reasoning, and without a clear explanation for the ALJ’s decision, the decision
cannot be adequately reviewed on appeal. Remand is therefore warranted for the ALJ
to give further consideration to Dr. Royster’s Functional Assessment form, to more
clearly state which parts of that assessment were accepted and which were rejected,
and to more clearly explain the reasons for rejecting any portions of the assessment.10
Based on the foregoing, the decision of the Commissioner is REVERSED, and
this action is REMANDED to the Commissioner of the Social Security Administration
for further proceedings consistent with this memorandum opinion and order.
The Clerk of Court is directed to close this file.
DONE this 6th day of March, 2014.

______________________________
United States District Judge

10

Because remand is warranted on these grounds, the court need not consider claimant’s
other arguments.
8