Masters v. Social Security Administration, Commissioner

Filing 21

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/25/2017. (JLC)

FILED
2017 Sep-25 AM 11:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TONY PAUL MASTERS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Case No.: 5:16-cv-01267-JHE

MEMORANDUM OPINION1
Plaintiff Tony Paul Masters (“Masters”) seeks review, pursuant to 42 U.S.C. § 405(g), §
205(g) of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying his application for a period of disability, Disability
Insurance Benefits (“DIB”), and Supplemental Social Security Income (“SSI”). Masters timely
pursued and exhausted his administrative remedies. The case is therefore ripe for review under
42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned has carefully considered the record and, for
the reasons stated below, the Commissioner’s decision is REVERSED and this action is
REMANDED for further proceedings.
.

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In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties in this case have voluntarily consented to have a United States
Magistrate Judge conduct any and all proceedings, including trial and the entry of final
judgment. (Doc. 10).

Factual and Procedural History
Masters filed an application for a period of disability and DIB on March 7, 2012, (Tr.
291-293) and an application for SSI on March 21, 2012, alleging disability beginning September
30, 2011. (Tr. 294-298). Masters was a thirty-eight year old male on December 31, 2012, his
date last insured. (“DLI”). (Tr. 76, 103). Masters has an eighth-grade education and past
relevant work as a truck driver and a heavy equipment operator. (Tr. 12-13, 73).

The

Commissioner initially denied Masters’ application, (Tr. 168), and Masters requested a hearing
before an ALJ where he appeared on April 4, 2013. (Tr. 54-75, 181). A supplemental hearing
was conducted on January 30, 2014. (Tr. 34-53). After the hearings, the ALJ denied Masters’
claim on February 20, 2014. (Tr. 73). Masters sought review by the Appeals Council (Tr. 232234), which vacated the ALJ’s decision and remanded the case on June 5, 2014. (Tr. 110-112).
Another hearing was held on November 25, 2014 (Tr. 9-33), and on March 6, 2015, the ALJ
again denied Masters’ claim. (Tr. 140-165). Masters again requested review by the Appeals
Council (Tr. 5-6), but it denied the request on June 3, 2016. (Tr. 1). On that date, the ALJ’s
decision became the final decision of the Commissioner. On August 3, 2016, Masters initiated
this action. (See doc. 1).
Standard of Review2
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

2

In general, the legal standards applied are the same whether a claimant seeks DIB or
SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims. Therefore,
citations in this opinion should be considered to refer to the appropriate parallel provision as
context dictates. The same applies to citations for statutes or regulations found in quoted court
decisions.
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substantial evidence and whether proper legal standards were applied. Richardson v. Perales,
402 U.S. 389, 390, 91 S. Ct. 1420, 1422 (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 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. 3

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

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2007.
3

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last for a continuous period of not less than twelve (12) months.” 20 C.F.R. § 404.1505(a). To
establish entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “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 sequence:
(1)
(2)
(3)
(4)
(5)

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 national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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 such work exists in the national economy in significant
numbers. Id.
Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
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At Step One, the ALJ found Masters met the insured status requirements of the Social
Security Act through December 31, 2012, and that Masters had not engaged in substantial
gainful activity since September 30, 2011, the alleged onset date of his disability. (Tr. 146). At
Step Two, the ALJ found Masters has the following severe impairments: early degenerative
changes of the cervical spine and degenerative disc disease of the lumbosacral spine with history
of prior laminectomy at L5-S1 with posterior lumbar interbody fusion in 2005. (Id.). The ALJ
also considered Masters’ mental impairments of borderline intellectual functioning and
depression and determined they were not severe. (Tr. 147-148). At Step Three, the ALJ found
Masters does not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 148).
Before proceeding to Step Four, the ALJ determined Masters’ residual functioning
capacity (“RFC”), which is the most a claimant can do despite his impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined Masters has the RFC
to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b).
He can lift and/or carry up to 10 pounds frequently and 20 pounds
occasionally. At any one time, he can sit for up to three hours, stand for one
hour and walk for one hour. In an eight-hour workday, he can sit for four
hours, stand for two hours and walk for two hours. He can continuously reach
overhead with either hand as well as finger and feel objects on a continuous
basis. He can frequently reach in all other directions and frequently handle,
push and pull with the hands within the range of light work. He can
occasionally work at unprotected heights, around moving parts, around odors,
fumes and other pulmonary irritants, he can occasionally be exposed to
extremes of cold and heat and to vibration. He can frequently operate a motor
vehicle and frequently be exposed to humidity and wetness.
(Tr. 148).
At Step Four, the ALJ determined Masters is unable to perform any past relevant work.
(Tr. 156). At Step Five, the ALJ determined, based on Masters’ age, education, work experience,
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and residual functional capacity, there are jobs that exist in significant numbers in the national
economy Masters could perform. (Tr. 157). Therefore, the ALJ determined Masters has not been
under a disability and denied Masters’ claim. (Tr. 157-158).
Analysis
Masters contends the ALJ erred in three ways: (1) improperly assessing the opinion of
clinical psychologist Dr. Alan D. Blotcky, (2), failing to find Masters’ mental impairments are
severe, and (3) improperly applying the Eleventh Circuit pain standard for disability. Substantial
evidence supports the ALJ’s assessment of Dr. Blotcky’s opinion and analysis of Masters’
mental impairments, and there is no basis to reverse his decision based on those alleged errors.
However, the ALJ’s application of the Eleventh Circuit pain standard is internally inconsistent
and merits reversal for clarification.
A. The ALJ properly evaluated Dr. Blotcky’s opinion
Masters argues the ALJ improperly discounted Dr. Blotcky’s opinion by assigning it
lesser weight because it was obtained at the request of Masters’ counsel. (Doc. 17 at 20). Dr.
Blotcky prepared a psychological evaluation report after examining Masters on March 11, 2013,
opining that Masters suffered from major depression and possessed borderline intellectual
abilities. (Tr. 519). Dr. Blotcky also completed a medical source opinion form in which he
checked boxes concerning Masters’ functional limitations, noting “marked” limitations in
Masters’ ability to respond appropriately to supervisors; respond appropriately to customers or
other members of the general public; use judgment in detailed or complex work-related
decisions; deal with changes in a routine work setting; respond to customary work pressure; and
maintain attention, concentration, or pace for periods of at least two hours. (Tr. 520-21). On the
same form, Dr. Blotcky found “moderate” limitations in Masters’ ability to respond
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appropriately to coworkers; use judgment in simple one- or two-step work related decisions;
understand, remember, and carry out simple one- or two-step instructions; understand,
remember, and carry out detailed or complex instructions; maintain social functioning; and
maintain activities of daily living. (Tr. 520-21).
An ALJ considers many factors when weighing opinion evidence, such as whether the
physician treated the claimant and whether the opinion is consistent with the record as a whole.
See 20 C.F.R. §§ 404.1527(c), 416.927(c). “[T]he testimony of a treating physician must be
given substantial or considerable weight unless ‘good cause’ is shown to the contrary.” Crawford
v. Comm. Of Soc. Sec., 363 F.3d 1436, 1439 (quoting Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997)). A source will not be considered a treating source if the relationship between
the source and the claimant was not based on a need for treatment or evaluation and is instead
based solely on a need to support a claim for disability. 20 C.F.R. §§ 404.1502, 416.902.
Here, the ALJ offered several reasons for giving little weight to Dr. Blotcky’s opinion.
He noted that the opinion had been prepared at the request of Masters’ attorney and was
“obviously obtained for the purpose of qualifying for disability benefits” due to the fact Masters
had not previously sought or received treatment from a psychologist, psychiatrist, or mental
health treatment facility. (Tr. 154). He noted there had been no follow-up to Dr. Blotcky’s onetime examination. (Id.). The ALJ also found the opinion lacked support in the record. He
observed no physician ever recommended psychological or psychiatric intervention or noted a
deficiency in Masters’ intellectual status. (Id.). The ALJ found Dr. Blotcky’s opinion that
Masters has a borderline intellect inconsistent with Masters’ work history of performing skilled
and semiskilled work and with his ability to obtain a commercial driver’s license, which the ALJ

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noted was scheduled to expire not due to a medically established cause but because of inaction
on Masters’ part. (Id.).
Masters’ objection to this finding is that the ALJ took into account that Dr. Blotcky’s
examination was performed at his attorney’s request, and he implicitly accuses the ALJ of
putting his thumb on the scale by not similarly discounting consultative examinations paid for by
the Social Security Administration. (Doc. 17 at 20). However, the ALJ was entitled to consider
this fact to establish that Dr. Blotcky was a nontreating source. Masters points to no specific
opinion he believes erroneously received greater weight than Dr. Blotcky’s notwithstanding it
came from a nontreating source; notably, the regulations explicitly confirm that “an acceptable
medical source who is a consultative examiner for [the Social Security Administration]” and who
is not a claimant’s treating source is included in the definition of “nontreating source,” see 20
C.F.R. § 404.1502.1, putting those examiners on the same footing as Dr. Blotcky. Finally,
Masters takes no apparent issue with the ALJ’s determination that Dr. Blotcky’s opinion was
inconsistent with the record. Masters’ allegation of error is meritless, and substantial evidence
supports the ALJ’s decision to assign Dr. Blotcky’s opinion little weight.
B. The ALJ did not err in evaluating Masters’ mental impairments
Masters contends that the ALJ should have found his mental impairments to be severe
during step two of the sequential evaluation process. (Doc. 17 at 19). He points to the chronic
nature of his depression and argues the ALJ did not consider his mental impairments at all at step
two. (Id.).
For an ALJ to determine a claimant has a severe impairment, a claimant must have an
impairment or combination of impairments which limits the claimant’s ability to do basic work
activities for at least twelve consecutive months. 20 C.F.R. §§ 404.1520(c), 404.1509. The
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claimant bears the burden of proving that a severe impairment exists. 20 C.F.R. § 416.912. For
mental impairments, the ALJ considers four broad functional areas in rating the degree of a
claimant’s functional limitation: activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation. See 20 C.F.R. § 404.1520a(c)(3) (2011);
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00C (Sept. 29, 2016) (discussing the four criteria of
mental disorder listings).
Here, contrary to Masters’ assertion, the ALJ considered Masters’ alleged mental
impairments at step two. Preliminarily, the ALJ observed that Masters’ borderline intellectual
functioning did not affect his ability to perform the work-related activities involved in skilled and
semiskilled work, which was supported by the vocational expert’s testimony that Masters had
performed such work. (Tr. 73, 146-47). The ALJ also found no more than mild impairment in
any of the four broad functional areas. The ALJ found mild limitation in Masters’ activities of
daily living, noting Masters prepares simple meals, watches television, and visits with friends
and family. (Tr. 147). He also found Masters’ social functioning was mildly limited, as Masters
spent time with one friend and visited his sister. (Id.). Third, the ALJ determined Masters had
mild limitation in concentration, persistence, and pace, citing Masters’ ability to maintain
attention and focus well enough to drive and perform simple cooking tasks, as well as the fact
that he watches television. (Id.). Finally, the ALJ found Masters had experienced no episodes of
decompensation of extended duration. (Id.). The ALJ noted Masters had been hospitalized for a
suicide attempt, but that it was an isolated incident (and not of “extended duration”) because it
was resolved after less than a week in the hospital. (Id.). Thus, the ALJ concluded Masters’
mental impairments were not severe.

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To rebut this, Masters says that his depression has been a chronic concern and did not
“suddenly become ‘better’” as a result of his hospitalization for his suicide attempt. (Doc. 17 at
19). He also cites Dr. Blotcky’s findings. (Id.). As stated above, the ALJ’s decision to assign
little weight to Dr. Blotcky’s opinion was supported by substantial evidence. While Masters
states his depression was not cured by his visit to the hospital, this is not inconsistent with the
ALJ’s finding; the ALJ noted Masters had some transient episodes of depression, but determined
that the most serious of those, the episode of depression for which Masters was hospitalized,
resolved after less than a week in the hospital. (Tr. 147). This is supported by the medical
records of Masters’ hospitalization, which indicate progress from “[m]ood depressed and
irritable . . . [j]udgment poor . . . [t]hought content suicidal ideation with no intent at present . . .
[b]ehavior isolative, withdrawn and impulsive” on admission (April 2, 2014) to “mood stabilized
with pharmacotherapy along with group therapy, activity therapy, and individualized therapy . . .
much improved condition and cognitively intact . . . denied suicidal ideations, homicidal ideation
and denied auditory or visual hallucinations . . . compliant with medications with no adverse
effects” and a prognosis of “[g]ood with continued treatment on an out-patient basis and
medication compliance” on discharge (April 9, 2014). (Tr. 638-40). The ALJ did not determine
Masters’ depression and borderline intellectual functioning were nonexistent, but that they did
not limit his ability to work. This conclusion is supported by substantial evidence, even assuming
the truth of Masters’ contention that his depression was and remains a chronic condition. See
Hutchinson v. Astrue, 408 F. App'x 324, 327 (11th Cir. 2011) (evidence that depression and
anxiety existed is not dispositive of whether it affected ability to perform basic work skills).
Therefore, there is no basis to reverse the ALJ’s finding.

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C. The ALJ erred in applying the Eleventh Circuit pain standard
Masters finally alleges the ALJ improperly applied the Eleventh Circuit’s pain standard
when assessing his testimony. (Doc. 17 at 20). The Eleventh Circuit “has established a three
part ‘pain standard’ that applies when a claimant attempts to establish disability through his or
her own testimony of pain or other subjective symptoms. The pain standard requires (1) evidence
of an underlying medical condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the objectively determined
medical condition is of such a severity that it can be reasonably expected to give rise to the
alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). Subjective testimony
supported by medical evidence satisfying the standard is sufficient to support a finding of
disability. Id. However, the ALJ may still make a credibility determination on the claimant’s
statements about the intensity and effect of that pain. See Foote v. Chater, 67 F.3d 1553, 156162 (11th Cir. 1995); Hogard v. Sullivan, 733 F.Supp. 1465, 1469 (M.D. Fla. 1990). The ALJ’s
adverse credibility determination must be supported by “explicit and adequate reasons,” Holt,
921 F.2d at 1223, and substantial evidence, see Foote, 67 F.3d at 1561-62. An ALJ’s clearly
articulated credibility determination will not be disturbed if supported by substantial evidence.
Petteway v. Comm’r of Soc. Sec., 353 Fed. App’x. 287, 288 (11th Cir. 2009).
When evaluating the credibility of a claimant’s statements regarding the intensity,
persistence, or limiting effects of her symptoms, the ALJ considers all evidence, objective and
subjective. See 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p. The ALJ may consider the nature
of a claimant’s symptoms, the effectiveness of medication, a claimant’s method of treatment, a
claimant’s activities, and any conflicts between a claimant’s statements and the rest of the
evidence. See 20 C.F.R. §§ 404.1529(c)(3), (4), 416.929(c)(3), (4); SSR 96-7p. If an ALJ
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discredits a claimant’s subjective complaints, “he must articulate explicit and adequate reasons
for doing so.” Wilson v. Comm’r of Soc. Sec., 284 F.3d 1219, 1225 (11th Cir. 2002). “[I]f a
credibility determination is inadequate, a remand to the agency for further consideration is the
proper remedy.” Carpenter v. Astrue, No. 8:10-CV-290-T-TGW, 2011 WL 767652 (M.D. Fla.
Feb. 25, 2011). See also Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 835 (11th Cir. 2011)
(retreating from MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986), based on the prior
precedent rule, and remanding to the agency).
The Commissioner states the ALJ engaged in a “thorough review of Plaintiff’s subjective
complaints in accordance with the appropriate regulatory criteria and with Eleventh Circuit case
law.” (Doc. 20 at 14). While it is true the ALJ devoted a substantial portion of his decision to
reviewing Masters’ testimony and the medical evidence in the record, he offered directly
contradictory and irreconcilable conclusions about whether Masters’ subjective complaints
satisfied the pain standard. Before the ALJ’s evaluation of the medical evidence, the ALJ wrote
that “[n]either prong of part two of the standard is met, since the objective evidence does not
confirm either the severity of the claimant’s alleged symptoms arising from his medically
documented conditions or that those conditions could reasonably be expected to give rise to the
symptoms alleged by the claimant.” (Tr. 149) (emphasis added). He reiterates this conclusion
after discussing the medical evidence. (Tr. 155). However, the ALJ then states he found “that
the claimant’s medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity, persistence, and
limiting effects of those symptoms are not entirely credible for the reasons explained in this
decision.” (Tr. 156) (emphasis added). In the next paragraph, the ALJ returns to his earlier
conclusion, stating he “must conclude that the objective evidence does not confirm . . . that those
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conditions could reasonably be expected to give rise to the symptoms alleged by the claimant.”
(Tr. 156) (emphasis added).
The Commissioner chooses to analyze the ALJ’s decision as supported by the third of
these findings: that Masters facially satisfied part one and prong two of the second part of the
pain standard, but that his testimony was not entirely credible concerning the intensity,
persistence, and limiting effects of the symptoms he alleged. (Doc. 20 at 15). This ignores the
other three instances in which the ALJ found Masters had not satisfied the pain standard at all.
The undersigned cannot speculate as to which of these mutually exclusive findings the ALJ
intended to support his decision, notwithstanding they both potentially lead to the same
conclusion. See Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (declining to affirm
“simply because some rationale might have supported the ALJ's conclusion”). In order to
conduct a meaningful review of an ALJ’s decision, it is necessary he or she provide “[a] clear
articulation of both fact and law.” Id. at 1514–15 (11th Cir. 1984). The ALJ offered no such
clear articulation here, and thus the undersigned cannot review the ALJ’s application of the pain
standard to determine whether it is supported by substantial evidence. Therefore, the claim must
be remanded again.4
Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative
record and memoranda of the parties, the decision of the Commissioner of Social Security

The undersigned notes the ALJ’s initial decision in this claim was vacated and
remanded by the Appeals Council in part because (similar to his error here) the ALJ
inconsistently found that Masters’ borderline intellectual functioning was both severe and nonsevere. (Tr. 110).
4

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denying Masters’ claim for a period of disability and DIB is REVERSED and the action is
REMANDED for the ALJ to reconcile his inconsistent findings regarding the Eleventh Circuit
pain standard, as discussed above.
DONE this 25th day of September, 2017.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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