Hill v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/3/2017. (JLC)
2017 Aug-03 PM 04:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CHERRI ANNETTE HILL,
) Case No.: 5:16-CV-597-VEH
NANCY A. BERRYHILL, ACTING )
Plaintiff Cherri Annette Hill (“Ms. Hill”) brings this action under 42 U.S.C. §
405(g), Section 205(g) of the Social Security Act. She seeks review of a final adverse
the Commissioner of the Social
(“Commissioner”),1 who denied her Title II application for Widow’s Insurance
Benefits and her Title XVI application for Supplemental Security Income (“SSI”).2
Nancy A. Berryhill was named the Acting Commissioner on January 23, 2017. See
https://www.ssa.gov/agency/commissioner.html. Under 42 U.S.C. § 405(g), “[a]ny action
instituted in accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil
Procedure, the Court has substituted Nancy A. Berryhill for Carolyn W. Colvin in the case
caption above and HEREBY DIRECTS the clerk to do the same party substitution on CM/ECF.
In general, the legal standards applied are the same regardless of whether a claimant
seeks Title II Disability Insurance Benefits (“DIB”)/Widow’s Insurance Benefits or Title XVI
SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims. Therefore,
Ms. Hill timely pursued and exhausted her administrative remedies available before
the Commissioner. This case is thus ripe for review under 42 U.S.C. § 405(g).3
FACTUAL AND PROCEDURAL HISTORY
Ms. Hill was 51 years old at the time of her hearing before the Administrative
Law Judge (“ALJ”). (Tr. 38). She has completed the tenth grade and received her
general education degree (“GED”). (Tr. 38-39). Her past relevant work experience
includes employment as a cashier and an electronics assembler. Id. Ms. Hill initially
claimed she became disabled beginning February 15, 2005. (Tr. 165). Her last period
of work ended in 2002. (Tr. 38).
On June 26, 2009, Ms. Hill protectively filed a Title II application for a period
of disability and Widow’s Insurance Benefits. (Tr. 69). She also protectively filed a
Title XVI application for SSI on that date. Id. The ALJ reached a decision on July 14,
2011. Id. That decision was appealed and review was denied by the Appeals Council
on January 17, 2013. (Tr. 81). Ms. Hill did not appeal from the July 14, 2011, ALJ
decision. On April 18, 2013, Ms. Hill protectively filed her second Title II application
for a period of disability and Widow’s Insurance Benefits. (Tr. 165). She also
citations in this opinion should be considered to refer to the appropriate parallel provision as
context dictates. The same applies to citations of statutes or regulations found in quoted court
42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.
protectively filed her second Title XVI application for SSI on that date. (Tr. 173). Ms.
Hill amended the onset date of her disability to April 1, 2010. (Tr. 13). On May 23,
2013, the Commissioner initially denied these claims. Id. Ms. Hill timely filed a
written request for a hearing on June 25, 2013. Id. On August 6, 2014, the ALJ
conducted a video hearing. Id. The ALJ presided over the hearing from Franklin,
Tennessee while Ms. Hill appeared in Decatur, Alabama. Id. On September 16, 2014,
the ALJ issued an unfavorable decision concluding that Ms. Hill was not disabled and
denying her claims. (Tr. 13-27). Ms. Hill timely petitioned the Appeals Council to
review the decision on October 8, 2014. (Tr. 8). On February 10, 2016, the Appeals
Council issued a denial of review on Ms. Hill’s claims. (Tr. 1-4).
Ms. Hill filed a Complaint with this court on April 13, 2016, seeking review
of the Commissioner’s determination. (Doc. 1). The Commissioner answered on July
27, 2016. (Doc. 6). Ms. Hill filed a supporting brief (doc. 8) on September 9, 2016,
and the Commissioner responded with an opposing brief (doc. 9) on October 11,
2016. Ms. Hill then followed with a reply (doc. 10) to the Commissioner’s brief on
October 25, 2016.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.4 The Regulations define “disabled” as
“the inability to do 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 (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment
listed by the Commissioner;
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of June 15, 2017.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
To qualify for benefits as a disabled widow under the Regulations of the Social
Security Act, the claimant must meet the definition of “disabled,” and must establish
that she is at least 50 years of age and the widow of a wage earner who died fully
insured. Sullivan v. Weinberger, 493 F.2d 855, 857 (5th Cir. 1974) (citations
omitted). The prescribed period of eligibility to receive benefits as a disabled widow
under the Social Security Act is seven years from the month of the insured wage
earner’s death. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After consideration of the entire record, the ALJ made the following findings:
It was previously found that [Ms. Hill] is the unmarried widow of
the deceased-insured worker and has attained the age of 50. [Ms.
Hill] met the non-disability requirements for disabled widow’s
benefits set forth in section 202(e) of the Social Security Act. (Tr.
The prescribed period ends on July 31, 2019. Id.
[Ms. Hill] has not engaged in substantial gainful activity since
April 1, 2010, the amended alleged onset date (20 C.F.R. §§
404.1571 et seq., and 416.971 et seq.). Id.
[Ms. Hill] has the following severe impairments: degenerative
disc disease, fibromyalgia, post-traumatic stress disorder (PTSD),
and major depressive disorder (20 C.F.R. §§ 404.1520(c) and
[Ms. Hill] does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920 (d),
416.925 and 416.926). Id.
After careful consideration of the entire record, the [ALJ] finds
that [Ms. Hill] has the residual functional capacity (“RFC”) to
perform light work defined in 20 C.F.R. §§ 404.1567(b) and
416.967 (b). [Ms. Hill] can climb no ladders, ropes, or scaffolds
but can frequently perform all other postural activity. [Ms. Hill]
is limited to frequently reaching overhead. [Ms. Hill] should
avoid concentrated exposure to hazards. [Ms. Hill] can
understand, remember, and carry out simple tasks. [Ms. Hill] can
maintain concentration, persistence, and pace for such tasks in
two hour intervals with breaks spread throughout the day. [Ms.
Hill] can interact with others occasionally and can adapt to
occasional changes in the workplace. (Tr. 18).
[Ms. Hill] is unable to perform any past relevant work (20 C.F.R.
§§ 404.1565 and 416.965). (Tr. 25).
[Ms. Hill] was 46 years old, which is defined as a younger
individual age 18-49, on the amended alleged disability onset
date. [Ms. Hill] subsequently changed age category to closely
approaching advanced age (20 C.F.R. §§ 404.1563 and 416.963).
[Ms. Hill] has at least a high school education (20 C.F.R. §§
404.1564 and 416.964). Id.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that [Ms. Hill] is “not disabled,”
whether or not [Ms. Hill] has transferable job skills (See SSR 8241 and 20 C.F.R. Part 404, Subpart P, Appendix 2). Id.
Considering [Ms. Hill]’s age, education, work experience, and
[RFC], there are jobs that exist in significant numbers in the
national economy that [Ms. Hill] can perform (20 C.F.R. §§
404.1569, 404.1569(a), and 416.969(a)). Id.
[Ms. Hill] has not been under disability, as defined in the Social
Security Act, from April 1, 2010, through the date of this decision
(20 C.F.R. §§ 404.1520(g) and 416.920(g)). (Tr. 26).
The ALJ Committed Reversible Error in Formulating Ms. Hill’s Mental
Residual Functional Capacity.
The ALJ has a basic obligation to develop a full and fair record of the
claimant’s medical history. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
This obligation exists regardless of whether the claimant is represented by counsel.
Id.(citing Thorne v. Califano, 607 F.2d 218, 219 (8th Cir. 1979)). The ALJ is required
“to scrupulously and conscientiously probe into, inquire of, and explore for all
relevant facts.” Id. (internal quotation marks omitted) (quoting Cox v. Califano, 587
F.2d 988, 991 (9th Cir. 1978); Gold v. Secretary of Health, Education, & Welfare,
463 F.2d 38, 43 (2d Cir. 1972)). In the Eleventh Circuit, an ALJ has failed in
developing a claimant’s medical record: (1) when the ALJ does not clearly explain
the weight accorded to the various testimony or evidence considered, Cowart, 662
F.2d at 735; or (2) when the ALJ fails to order an examination of the claimant by a
consultative physician when necessary for the ALJ to make an informed decision.
McGee v. Weinberger, 518 F.2d 330, 332 (5th Cir. 1975) (citing Long v. Richardson,
334 F.Supp. 305 (W.D.Va. 1971)).5, 6
McGee was decided on August 29, 1975. The Fifth Circuit split did not occur until
October 1, 1981. Therefore, McGee is binding authority on this court. See Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all
decisions of the former Fifth Circuit handed down prior to October 1, 1981).
These two situations referenced are not the exclusive ways in which the Eleventh
Circuit has ruled that an ALJ has failed in developing the claimant’s medical record.
The ALJ Failed To State Adequate Reasons for Discounting
Portions of Dr. Lois Petrella’s Consultative Psychological
Opinion and GAF Score.
Failure to explain the weight given to different medical opinions by the ALJ
is reversible error. See Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (“In
assessing the medical evidence in this case, the ALJ was required to state with
particularity the weight he gave the different medical opinions and the reasons
therefor.” (citing MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986))); see
also Vuxta v. Commissioner of Social Sec., 194 F. App’x 874, 877 (11th Cir. 2006)
(“Since the ALJ did not give controlling weight to the opinion of a treating physician,
she was required to explain the weight given to the opinions of the non-examining
On April 23, 2013, Dr. Lois Petrella (“Dr. Petrella”) conducted a consultative
psychological examination of Ms. Hill at the request of the Social Security
Administration. (Tr. 20). The ALJ’s decision states:
Dr. Petrella conducted a mental status examination, noting generally fair
to good functioning.[Dr. Petrella] observed that, contrary to [Ms. Hill]’s
reports, she had good grooming and hygiene. She observed [Ms. Hill]
to have a mood that fluctuated between depression and anxiety, with
tense, nervous, and teary affect. Dr. Petrella noted that [Ms. Hill]’s
attention and concentration was fair to good, as she spelled "world"
In the Eleventh Circuit, unpublished decisions are not binding precedent, but they may
be cited as persuasive authority. 11th Cir. R. 36-2.
backward, solved simple arithmetic problems involving two operations
and making change, and completed three correct rotations of serial
threes. The psychologist reported that [Ms. Hill]’s memory was fair to
good, as she correctly recalled five digits forward and three backward,
recalled the names of two of three common objects after five minutes,
and adequately related her daily activities and history. Dr. Petrella stated
that [Ms. Hill]’s fund of information was fair, as she knew the name of
the current President of the United States of America but not the former
one, though she knew the number of weeks in a year. The psychologist
reported that [Ms. Hill]’s abstraction ability was good because she could
group like objects into common categories and interpret simple parables.
She judged [Ms. Hill] to have fair insight, judgment, and reasoning and
estimated her to have an average intelligence. Dr. Petrella diagnosed
[Ms. Hill] with PTSD, chronic, and major depressive disorder, recurrent,
severe, without psychotic features (Ex. B3F).
(Tr. 20-21) (emphasis added).
After discussing several of Dr. Petrella’s findings which bolster the ALJ’s
determination of “not disabled,” the ALJ ultimately assigned only little weight to Dr.
Petrella’s opinion, describing it as “vague” and including “language inappropriate for
[a] residual functional capacity determination.”
Dr. Petrella’s opinion also is given little weight. Dr. Petrella opined a
global assessment of function (GAF) score of 45 to 50 at the time of the
examination. The psychologist opined that [Ms. Hill] had "severe"
mental impairment[s] but could manage financial benefits and
independent functioning. She noted that [Ms. Hill]’s activities were
restricted, her interests constricted, and her ability to relate to others
impaired. Dr. Petrella opined that [Ms. Hill] would not have significant
difficulty with simple instructions but would probably have problems
with detailed/complex instructions as of the time of the examination.
The psychologist opined that [Ms. Hill] would have problems dealing
with coworkers and supervisors and pressures in a work setting due to
depression and anxiety (Ex. B3F). Dr. Petrella conducted a one-time
examination of [Ms. Hill]. However, the opinion is not fully supported
or explained, as the opinion contains vague statements and language
inappropriate for residual functional capacity determination. Therefore,
the opinion is given little weight.
(Tr. 24) (emphasis added). The weight the ALJ assigned to Dr. Petrella’s opinion is
inconsistent with the ALJ’s apparent reliance upon several of Dr. Petrella’s specific
findings that support her decision to deny Ms. Hill benefits. In light of the ALJ’s
discrediting of the disability-favoring opinion of Ms. Hill’s treating physician, Dr.
Rodney Morris (“Dr. Morris”), additionally, the court finds that the ALJ did not
adequately address her reasons for assigning only limited weight to Dr. Petrella’s
When analyzing a physician’s medical opinion, the ALJ must “state specifically
the weight accorded to each item of evidence and why he reached that decision.”
Cowart, 662 F.2d at 735. “In the absence of such a statement, it is impossible for a
reviewing court to determine whether the ultimate decision on the merits of the claim
is rational and supported by substantial evidence.” Id.
“The [ALJ] must take into account and evaluate the record as a whole.”
McCruter v. Bowens, 791 F.2d 1544, 1548 (11th Cir. 1986) (citing Martin v. Heckler,
This means that the ALJ’s determination of Ms. Hill’s mental residual functional
capacity lacks substantial support from any examining source as discussed infra.
748 F.2d 1027, 1032 (5th Cir. 1984)). In McCruter v. Bowens, the Eleventh Circuit
held that an ALJ’s decision is not supported by substantial evidence when the
decision is reached “by focusing upon only one aspect of the evidence and ignoring
other parts of the record.” 791 F.2d at 1548. It is insufficient for an ALJ to rely upon
certain supportive evidence but to disregard contrary evidence. Id.; see also McCloud
v. Barnhart, 166 F. App’x 410, 418 (11th Cir. 2006) (holding that the ALJ was
required to determine what weight, if any, would be placed on a claimant’s global
assessment of function (“GAF”) score).9 In McCloud, the court found error when the
ALJ either failed to explicitly state the weight given or completely disregarded the
claimant’s GAF scores. Id.
In the present case, after giving Dr. Petrella’s opinion limited weight, the ALJ
referenced Ms. Hill’s GAF score of 45 to 50.10 (Tr. 24). The ALJ made no further
“Axis V [of the Multiaxial Assessment] is for reporting the clinician’s judgment of the
individual’s overall level of functioning.” Diagnostic and Statistical Manual of Mental Disorders
[hereinafter DSM-IV-TR] at 32, American Psychiatric Association (4th ed. text revision, 2000).
“This [functional] information is useful in planning treatment and measuring its impact, and in
predicting outcome.” Id. GAF stands for “Global Assessment of Functioning” and the “GAF
Scale” may be used to report such “overall functioning.” Id. “The GAF Scale is to be rated with
respect only to psychological, social, and occupational functioning. ... [and] is divided into 10
ranges of functioning.” Id. The most recent edition of the Diagnostic and Statistical Manual of
Mental Disorders [hereinafter DSM-5], American Psychiatric Association (5th ed. 2013), has
dropped the GAF Scale and included a different global functioning measure–“the WHO
Disability Assessment Schedule (WHODAS) ...” DSM-5 at 16.
A GAF of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). DSM-IV-TR at 34.
mention of this very low range of scoring and never expressly accepted or rejected
Ms. Hill’s GAF score. While the GAF Scale is no longer a diagnostic measure relied
upon by the DSM-5 (as discussed supra), the ALJ’s reference to Ms. Hill’s GAF
score, without explanation, further produces a lack of clarity (analogous to McCloud
discussed supra, and to Lewis discussed infra) in the evidence relied upon by the ALJ
in discrediting Dr. Petrella and in formulating Ms. Hill’s RFC. Without referencing
any specific evidence in the record, the ALJ merely stated that Dr. Petrella’s opinion
was vague and not fully supported or explained. Id.
In relying upon Dr. Petrella’s statements of fair to good functioning while
disregarding Ms. Hill’s GAF score and other findings supporting Ms. Hill’s severe
psychological impairments, the ALJ erroneously focused on a limited portion of the
evidence from Dr. Petrella’s examination and ignored the remainder in reaching her
As a result, the court is left to speculate as to the evidence relied upon
to support the ALJ’s reasoning and, in turn, the sufficiency of that
evidence. While the substantial evidence standard is a highly deferential
one, the appellate review process, nonetheless, demands an
administrative decision that removes the need for guesswork. See Owens
v. Heckler, 748 F.2d 1511, 1514-15 (11th Cir. 1984) (“A clear
articulation of both fact and law is essential to our ability to conduct a
review that is both limited and meaningful.”).
Lewis v. Social Security Administration, No. 2:16-CV-00181-VEH, (Doc. 12 at 11)
(N.D. Ala. Mar. 27, 2017).11 Due to the ALJ’s inadequate explanation of her reasons
for assigning limited weight to Ms. Hill’s GAF score and to Dr. Petrella’s overall
opinion of Ms. Hill’s psychological impairments, while inconsistently relying upon
portions of that opinion that support the ALJ’s decision, the ALJ’s decision is not
supported by substantial evidence.
The ALJ Lacked Sufficient Evidence To Make an Informed
Decision Regarding Ms. Hill’s Mental Residual Functional
To the extent that the ALJ adequately discredited Dr. Petrella’s medical
opinion and Ms. Hill’s treating physician’s opinion, the ALJ lacked sufficient
evidence of the vocational impact caused by Ms. Hill’s psychological impairments
to make a mental functioning assessment supported by substantial evidence. Although
a consultative examination is not specifically required by statute, the Commissioner’s
duty to develop the record includes ordering a consultative examination if one is
needed to make an informed decision. See McGee, 518 F.2d at 332 (holding that “[i]f
the ALJ does not have before him sufficient facts on which to make an informed
decision, his decision is not supported by substantial evidence” and must be
remanded for additional evidence).
In Lewis, this court found that the ALJ’s reference of the claimant’s GAF scores,
without expressly accepting or rejecting the scores, was improper. The court finds Lewis
analogous to the present case regarding the ALJ’s treatment of Ms. Hill’s GAF score.
In Dillard v. Astrue, the district court held that the ALJ erred by not ordering
an additional consultative examination to determine the claimant’s RFC. 834 F. Supp.
2d 1325, 1332-33 (S.D. Ala. 2011) (“[T]he Commissioner’s fifth-step burden cannot
be met by a lack of evidence or, where available, by the [RFC] assessment of a
non-examining, reviewing physician; instead, this fifth-step burden must be supported
by the [RFC] assessment of a treating or examining physician.”) (emphasis added).12
Such an assessment [is particularly] warranted where, as here, the ALJ
has a heightened duty to develop a full and fair record of an
unrepresented claimant and has rightly rejected the only RFC
assessment in the record[.] ... [S]ubstantial evidence in support of such
RFC determination necessarily must include an RFC assessment by a
treating or examining physician. Without such evidence, all this [c]ourt
perceives is mere conjecture and intuition by the ALJ[.]
Id. In Dillard, the ALJ assigned limited weight to the opinion of a non-treating
physician when new evidence of the claimant’s continued treatment was submitted
that diminished the value of the non-treating physician’s prior assessment. Id. at
1333. Although the limited weight assigned by the ALJ was proper, the district court
found error where the ALJ failed to order a consultative physician to develop the
claimant’s medical record. Id. In light of the claimant’s treatment for knee and back
pain and the receiving of new prescriptions for pain medication subsequent to the
Although Dillard v. Astrue is non-binding authority in the Northern District of
Alabama, the court finds the facts to be analogous to this case and, consequently, its holding
most recent RFC assessment in the claimant’s record, the district court found remand
was necessary to make further inquiry in determining the claimant’s RFC. Id. at 133334.
In the present case, the ALJ relied upon the opinion of a non-examining,
consultative physician, Dr. Robert Estock (“Dr. Estock”), in determining the impact
of Ms. Hill’s psychological impairments on her RFC. (Tr. 24-25). Dr. Estock gave his
consultative opinion on May 23, 2013. (Tr. 100-12). In the time between Dr. Estock’s
opinion (Tr. 100-12), and the ALJ hearing on August 6, 2014 (Tr. 13), Ms. Hill
continued receiving treatment for her physical and mental impairments. (See Tr. 408
(Ms. Hill receiving treatment at Central North Alabama Health Services, Inc.
(“CNAHS”) on March 7, 2014; physician’s notes are illegibly written)), (see Tr. 407
(same on April 4, 2014)), (see Tr. 406 (same on May 2, 2014)), (see Tr. 405 (same on
May 30, 2014)), (see Tr. 404 (same on June 27, 2014)), (see Tr. 403 (same on August
Due to the ALJ’s discrediting the opinions of Drs. Morris and Petrella, the
court finds the facts of Dillard analogous to the present case because of the extensive
The court provides these references to the administrative record to illustrate instances
when Ms. Hill sought treatment in the fifteen month time period between Dr. Estock’s opinion
and the ALJ hearing. This is not an exhaustive list of Ms. Hill’s treatment records/medications
during this time period.
time period and treatment record between the most current medical opinion regarding
the claimant’s RFC and the ALJ hearing. Because the ALJ assigned limited weight
to the opinions of the two examining physicians, Drs. Morris and Petrella, the record
lacks a medical opinion suitable for the ALJ to make an informed decision regarding
Ms. Hill’s mental RFC in light of the mental health treatment she received over the
fifteen month period prior to the ALJ hearing.
In contrast, the Eleventh Circuit has held that additional expert
testimony/examination is unnecessary when the record includes the opinions of
several credited treating and non-treating physicians. See Wilson v. Apfel, 179 F.3d
1276, 1278 (11th Cir.1999) (per curiam) (“On the contrary, the record, which
included the opinions of several physicians including that of Dr. Cameron Tebbi who
treated [the claimant], was sufficient for a decision and additional expert testimony
was unnecessary.”); see also Outlaw v. Barnhart, 197 F. App’x 825, 828 (11th Cir.
2006) (“[T]he ALJ did not err in refusing to order a consultative examination ...
because the record contained extensive medical records about [the claimant’s]
physical and mental complaints.”).
In the present case, the ALJ found Ms. Hill’s depression and post-traumatic
stress disorder to be severe impairments. (Tr. 16). With the opinions of Dr. Petrella
and Ms. Hill’s treating physician discounted, the only opinion in the record that
supports the ALJ’s RFC determination pertaining to Ms. Hill’s severe psychological
impairments is that of a non-examining/reviewing physician, Dr. Estock. (Tr. 24-25).
Similar to the court in Dillard, the court finds that the opinion of Dr. Estock, without
more, is insufficient for the ALJ to have made an informed decision supported by
substantial evidence regarding Ms. Hill’s psychological impairments.
The Commissioner’s brief cites to an unpublished opinion stating that
“[c]ontrary to [Ms. Hill]’s contentions, an ALJ may rely on a non-examining
physician’s report in making a disability determination.” Randolph v. Astrue, 291 F.
App’x 979, 982 (11th Cir. 2008) (citing Edwards v. Sullivan, 937 F.2d 580, 584–85
(11th Cir. 1991)). (Doc. 9 at 6). This statement, while technically correct, is only a
partial reading of the holding from Randolph. More completely, Randolph states that
“an ALJ can rely on a non-examining physician’s report in denying disability
insurance benefits where the non-examining physician’s report does not contradict
information in the examining physician’s reports.” 291 F. App’x at 982 (emphasis
Contrary to the contention implied by the Commissioner’s statement, the
holding from Randolph does not permit the ALJ to rely solely on the opinion of a
non-examining physician that is contradicted by an examining physician. The
situation in Randolph is not analogous to the facts of the present case. Instead,
because Dr. Estock is a non-examining physician whose opinion contradicts Ms.
Hill’s examining physicians’ reports, the ALJ may not base his mental RFC
determination exclusively upon Dr. Estock’s non-examining opinion. See Edwards,
937 F.2d at 584–85.
In support of the ALJ’s decision, the Commissioner also cites to Brown v.
Shalala, 44 F.3d 931, 935 (11th Cir. 1995). The Commissioner’s brief states that the
“Eleventh Circuit will remand for further development of the evidentiary record
where the record contained ‘evidentiary gaps which result in unfairness or clear
prejudice.’” Id. (Doc. 9 at 13-14). The Commissioner’s brief states that Ms. Hill has
made no such showing of any unfair or prejudicial evidentiary gaps. (Doc. 9 at 1314). While the Commissioner’s description of Brown is accurate, the court finds that
Brown does not apply to the present case. In Brown, the Eleventh Circuit held that:
The lack of medical and vocational documentation supporting an
applicant’s allegations of disability is undoubtedly prejudicial to a claim
for benefits. We have no way of knowing whether the evidence missing
from this case would sustain Brown’s contentions of her inability to
work. In the absence of proof to the contrary, however, we must assume
that it does lend credence to [the claimant’s] allegations.
44 F.3d at 935-36.
In the present case, Dr. Estock formed his non-examining, consultative medical
opinion by reviewing Ms. Hill’s medical records in May of 2013. (Tr. 100-12). Ms.
Hill’s administrative disability hearing was held in August of 2014. (Tr. 13). Apart
from Ms. Hill’s treating physician who was discredited by the ALJ, the record shows
no other medical professionals examining Ms. Hill’s psychological condition or
reviewing her medical records for the purpose of formulating her mental RFC in the
fifteen months between Dr. Estock’s evaluation and the ALJ hearing.14 Because the
ALJ discredited the opinions of Drs. Morris and Petrella (both of which supported
finding Ms. Hill disabled), the record contains, in effect, an evidentiary gap that is
unfair to Ms. Hill. Further, given that the evidentiary gap was created by the ALJ’s
treatment of the medical opinions, there is no basis to find Ms. Hill not disabled under
Brown. Further, the explicit holding from Brown v. Shalala (referencing a period of
a complete lack of medical records) is simply inapplicable to the present case.
In discrediting the opinion of Ms. Hill’s treating physician and assigning
limited weight to the opinion of Dr. Petrella, the ALJ lacked sufficient medical
evidence to determine Ms. Hill’s disability status regarding her psychological
impairments.15 Therefore, the court holds that the ALJ’s decision is not supported by
The record shows that Dr. Petrella’s examination of Ms. Hill occurred before Dr.
Estock conducted his consultative assessment. However, the record is unclear as to whether Dr.
Estock considered Dr. Petrella’s findings (including Ms. Hill’s GAF score) in formulating his
assessment of Ms. Hill’s mental impairments. (Tr. 100-12).
To the extent that the ALJ appropriately gave significant weight to Dr. Estock’s nonexamining opinion, the record is unclear as to whether Dr. Estock considered, or had access to,
all of Ms. Hill’s medical treatment records. Therefore, Dr. Estock’s conclusions cannot serve as
substantial evidence for this additional reason.
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision was
not supported by substantial evidence.16 The ALJ discounted or disregarded medical
opinions and evidence without providing sufficient justification. Further, the ALJ
lacked sufficient evidence to make an informed decision regarding Ms. Hill’s mental
RFC. Accordingly, the decision will be reversed and remanded with such directions
by separate order.
DONE and ORDERED this the 3rd day of August, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
substantial evidence to support the ALJ’s decision.
Because the court finds that the ALJ’s determination of “not disabled” was not based
on substantial evidence for the foregoing independent reasons, the court does not reach Ms.
Hill’s additional arguments raised on appeal.
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