Gaught v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION Signed by Judge Virginia Emerson Hopkins on 5/14/12. (SAC )

FILED
2012 May-14 PM 03:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
TONY RAY GAUGHT,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 6:11-CV-2681-VEH
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MEMORANDUM OPINION
Plaintiff Tony Ray Gaught (“Mr. Gaught”) brings this action pursuant to 42
U.S.C. §§ 216(i) and 223 of the Social Security Act (the “Act”). He seeks review of
a final adverse decision of the Commissioner of the Social Security Administration
(hereinafter “Commissioner” or “Secretary”), who denied his applications for
Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”).1

In general, the legal standards applied are the same regardless of 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 of statutes or regulations found in quoted court decisions.
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Mr. Gaught timely pursued and exhausted his administrative remedies available
before the Commissioner. The case is ripe for review pursuant to 42 U.S.C. § 405(g),
§ 205(g) of the Act.2
FACTUAL AND PROCEDURAL HISTORY
Mr. Gaught was a thirty-one -year-old male at the time of his hearing before
the administrative law judge (the “ALJ”) held on August 2, 2010. (Tr. 48, 42). In
terms of education, Mr. Gaught completed the tenth grade of high school and later
obtained his GED. (Tr. 49, 48). Mr. Gaught’s prior vocational experience includes
positions as a construction laborer, a stocker in a grocery store, a fast food worker,
and a cook. (Tr. 70).
Mr. Gaught protectively applied for DIB and SSI on January 28, 2009. (Tr.
18, 81, 79). Mr. Gaught maintains that he became disabled on November 6, 2008,
due to affective mood disorders and other unspecified arthropathies (i.e., joint
diseases). (Tr. 18, 81, 79); see New Webster’s Dictionary and Thesaurus & Medical
Dictionary 898 (1991) (defining arthropathy as “any joint disease”). His claims were
denied initially on May 11, 2009. (Tr. 18, 81, 79).
Mr. Gaught filed a request for a hearing on Mary 14, 2009. (Tr. 18, 95). A

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.
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hearing was held on August 2, 2010, in Birmingham, Alabama. (Tr. 18, 42, 44).
On January 24, 2011, the ALJ concluded Mr. Gaught was not disabled as
defined by the Act and denied his DIB and SSI applications. (Tr. 18-32). On
February 25, 2011, Mr. Gaught submitted a request for review of the ALJ’s decision,
which was received on March 2, 2011. (Tr. 14). On June 22, 2011, the Appeals
Council denied review, which resulted in the ALJ’s disability determination that was
adverse to Mr. Gaught becoming the final decision of the Commissioner. (Tr. 1).
On July 27, 2011, Mr. Gaught initiated his lawsuit with this court asking for
a review of the ALJ’s decision. (Doc. 1). On December 19, 2011, Mr. Gaught filed
a brief (Doc. 10) in support of his appeal, and on January 23, 2012, the Commissioner
answered with his responsive brief. (Doc. 11). This court has carefully considered
the record, and for the reasons stated below, reverses the Commissioner’s denial of
benefits, and remands the case for further development and consideration.
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
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if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed 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, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish her entitlement for a period of
disability, the claimant must be disabled as defined by the Act and the Regulations

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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 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 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 Secretary;
whether the claimant can perform 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 former applicable C.F.R.

The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts
400 to 499, as current through April 19, 2012.
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section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (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 Secretary 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. Foote,
67 F.3d at 1559.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found Mr. Gaught had not engaged in substantial gainful activity
since the alleged onset date of his disability, i.e., November 6, 2008. (Tr. 25; Tr. 31
¶ 2). Thus, the claimant satisfied step one of the five-step test. 20 C.F.R. §
404.1520(b).
Under step two, the ALJ concluded that “[t]he claimant has the following
‘severe’ impairments of bipolar disorder and lumbar facet arthropathy at L4-5 and L5S1[.]” (Tr. 31 ¶ 3). Accordingly, the ALJ concluded that Mr. Gaught satisfied the
second step of the sequential disability evaluative process. 20 C.F.R. § 404.1520(c).
At step three, the ALJ determined that Mr. Gaught did not have an impairment
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or a group of impairments that met or medically equaled one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 31 ¶ 4). Mr. Gaught does not
challenge this determination on appeal.
Regarding Mr. Gaught’s residual functional capacity (“RFC”), the ALJ found:
The claimant . . . [can] perform light work as defined in 20 C.F.R. §§
404.1567(c) and 416.967(c) except the claimant can occasionally bend
and stoop. He should primary work with or around things and not the
general-public, and contact should be casual. He can perform simple,
repetitive non-complex tasks. He should avoid unprotected heights. His
contact with co-workers and supervisors should be causal and
occasional.
(Tr. 31 ¶ 5).4
The ALJ also indicated that Mr. Gaught could “occasionally bend and stoop”
and that “[i]f he complies with his assigned residual functional capacity, the
4

The Regulations define light work as:

(b) Light work. Light work involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide
range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or
she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods
of time.
20 C.F.R. § 404.1567(b) (current through April 19, 2012).
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claimant’s pain and bipolar disorder are reasonably expect to result in no greater than
mild to moderate functional restrictions.

(Tr. 27).

In support of his RFC

determination, the ALJ gave great weight to the mental assessment of Mr. Gaught
performed by the state agency non-examining medical consultant. (Id.).
Against this backdrop, and in reliance upon testimony from a vocational expert,
the ALJ concluded that Mr. Gaught’s impairments prevented him from performing
past relevant employment. (Tr. 29; Tr. 31 ¶ 6). Because of the ALJ’s finding that Mr.
Gaught was unable to perform past relevant work, it was necessary to continue to step
five of the sequential analysis. (Tr. 29-30).
Using the Medical-Vocational Guidelines as a framework and relying upon
testimony from the vocational expert, the ALJ determined that Mr. Gaught was
“capable of making a successful adjustment to other work that exists in significant
numbers in the national economy.” (Tr. 30). Examples of such possible light and
unskilled jobs included employment as a poultry plant worker and hand packager.
(Id.).

Potential sedentary employment was in the area of assembly.

(Id.).

Accordingly, the ALJ concluded Mr. Gaught was not disabled as defined by the
Social Security Act, and denied his DIB and SSI claims. (Tr. 30; Tr. 32).
ANALYSIS
In this appeal, Mr. Gaught raises several different issues, including whether the
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ALJ erred in his consideration of the medical source opinion5 provided by Charles
Houston, Sr., Ph.D. (“Dr. Houston”). The court turns to this issue first and agrees
with Mr. Gaught that, under the circumstances of his case, the Commissioner has
committed reversible error.6
As part of his denial decision, the ALJ acknowledged, by way of a summary
(Tr. 22), the medical source statement by Dr. Houston, an examining physician, who
conducted a mental status evaluation of Mr. Gaught on March 24, 2009, and who
provided the following written vocational assessment of him on April 21, 2009:
Claimant’s ability to follow instructions in a work setting and his ability
to accept supervision are significantly affected by his psychiatric
problems. He has serious difficulty interacting with almost everyone.
The stressors of work would exacerbate his illness.
Current GAF: 45
Highest GAF past year:
(Tr. 284; see also Tr. 280-82; Tr. 282 (“His ability to meet the demands of
competitive employment is effected by his psychiatric problems.”)).
Nowhere in his decision did the ALJ discount Dr. Houston’s report or

“Medical source statements are ‘medical opinions submitted by acceptable
medical sources, including treating sources and consultative examiners, about what
an individual can still do despite a severe impairment(s), in particular about an
individual’s physical and mental abilities to perform work-related activities on a
sustained basis.’” SSR 96-5p.
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As a result, the court does not reach the merits of the other issues presented
on appeal.
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otherwise explain the weight he afforded to it. Additionally, the ALJ gave great
weight to a non-examining doctor, Lee Blackmon, M.D. (“Dr. Blackmon”), who
found that Mr. Gaught’s psychiatric problems posed only either “not significant” or
“moderate limitations” on his vocational functioning. (Tr. 27; see also Tr. 301-04).
In Sharfarz v. Bowen, 825 F.2d 278 (11th Cir. 1987), the Eleventh Circuit
explained:
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. MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986). Further, he was required to accord considerable
weight to appellant’s treating physician’s opinion absent good cause for
not doing so. Broughton v. Heckler, 776 F.2d 960, 961-62 (11th
Cir.1985) (per curiam). The opinions of nonexamining, reviewing
physicians, such as those of Drs. Thomas and Register, when contrary
to those of the examining physicians, are entitled to little weight, and
standing alone do not constitute substantial evidence. See Spencer ex
rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) (per
curiam). Of course, the ALJ may reject any medical opinion if the
evidence supports a contrary finding. Sryock v. Heckler, 764 F.2d 834,
835 (11th Cir.1985) (per curiam).
The ALJ, here, disregarded these rules in assigning weight to the various
medical opinions. The only opinions that indicated that appellant could
meet the medium work requirements of 20 C.F.R. 404.1567(c) (1986)
were those of the nonexamining physicians, Drs. Thomas and Register.
Their opinions were entitled to little weight, however, and could not
serve as substantial evidence.
Sharfarz, 825 F.2d at 279-80 (emphasis added). Mr. Gaught relies upon Sharfarz in
support of his position on appeal. (Doc. 10 at 10).
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In responding to this issue, the Commissioner suggests that the ALJ’s omission
is excusable because he implicitly accepted Dr. Houston’s findings:
While Plaintiff argues the ALJ ignored Dr. Houston’s opinion and
failed to state the weight he gave the opinion, the Commissioner
contends that the ALJ’s ultimate RFC finding accounts for Dr.
Houston’s opinion. Clearly the ALJ was aware of and evaluated Dr.
Houston’s opinion (Tr. 22, 28). While Dr. Houston found that Plaintiff
would have significant limitations, he did not find Plaintiff would be
precluded from interacting with others, but only found Plaintiff had
“serious difficulty” (Tr. 284). As noted above, the ALJ found Plaintiff
capable of work with the following restrictions: Plaintiff should
primarily work around things and not the general public; should have
only casual contact; Plaintiff could perform simple, repetitive,
non-complex tasks; and Plaintiff’s contact with coworkers and
supervisors was to be casual and occasional (Tr. 31, Finding 5). Thus,
the ALJ limited Plaintiff’s interaction to jobs requiring only casual
contact and jobs requiring Plaintiff primarily be around things and not
the general public (Tr. 31, Finding 5). Thus, the ALJ accounted for Dr.
Houston’s opinion in that regard.
Moreover, regarding Dr. Houston’s opinion that Plaintiff’s ability
to follow instructions in a work setting and his ability to accept
supervision were “significantly affected” (Tr. 284), it is again contended
the ALJ’s RFC finding accounted for that opinion by limiting Plaintiff
to work involving only simple, repetitive, non-complex tasks and work
where his contact with co-workers and supervisors was to be casual and
occasional (Tr. 31, Finding 5). These restrictions also accounted for Dr.
Houston’s opinion that Plaintiff had “some” problems with
concentration “but was fairly persistent” (Tr. 282). As noted above, Dr.
Houston found that Plaintiff adapted well to the changing conditions of
the evaluation. According, while the ALJ may not have explicitly stated
the weight he gave to Dr. Houston’s opinion, any potential error in that
regard is harmless because the ALJ’s detailed mental RFC finding
accounted for Dr. Houston’s opinion, and substantial evidence supports
the ALJ’s findings.
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(Doc. 11 at 8-9) (footnote omitted) (emphasis added).
Absent from the Commissioner’s brief is any authority which confirms that an
ALJ’s assigning great weight to an opinion from a non-examining physician while
also failing to expressly assign any weight to a competing opinion from an examining
source is not reversible error. Also missing from the Commissioner’s brief is an
acknowledgment of Sharfarz, much less an explanation of why the court should
disregard it and its summary of the applicable “rules” about medical source opinions.
Cf. Flanigan’s Enters., Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir.
2001) (holding that a party waives an argument if the party “fail[s] to elaborate or
provide any citation of authority in support” of the argument); Ordower v. Feldman,
826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument made without citation
to authority is insufficient to raise an issue before the court).
Moreover, in light of the Eleventh Circuit’s unambiguous discussion in
Sharfarz of how an ALJ must handle medical opinion evidence (i.e., requiring the
ALJ (i) to state with particularity the weight assigned to an examining opinion, (ii)
to articulate the reasoning behind such a weight measure, and (iii) to afford little
weight to a competing non-examining opinion), the court is not inclined to adopt the
Commissioner’s contention that the ALJ’s openly flawed decision was somehow
cured implicitly, especially in the absence of a binding opinion embracing such a
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deviation from Sharfarz and the cases cited therein.
CONCLUSION
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 is
not supported by substantial evidence.

Accordingly, the decision of the

Commissioner will be remanded by separate order.
DONE and ORDERED this the 14th day of May, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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