Borden v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION and ORDER OF REMAND that 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 opion and order; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/18/2012. (AHI)

FILED
2012 May-18 PM 02:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
BRENDA R. BORDEN,
Claimant,
vs.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.

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Case No. 6:11-cv-3240-CLS

MEMORANDUM OPINION AND ORDER OF REMAND
Claimant Brenda R. Borden commenced this action on September 8, 2011,
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 her claim for a period of disability, disability insurance, and
supplemental security income 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 contends that the Appeals Council should have reversed the ALJ’s decision
after receiving additional evidence from Dr. Jane Teschner, a consultative medical
examiner.
When a claimant submits new evidence to the AC [i.e., Appeals
Council], the district court must consider the entire record, including the
evidence submitted to the AC, to determine whether the denial of
benefits was erroneous. Ingram[v. Commissioner of Social Security
Administration], 496 F.3d [1253,] 1262 [(11th Cir. 2007)]. Remand is
appropriate when a district court fails to consider the record as a whole,
including evidence submitted for the first time to the AC, in determining
whether the Commissioner’s final decision is supported by substantial
evidence. Id. at 1266-67. The new evidence must relate back to the
time period on or before the date of the ALJ’s decision. 20 C.F.R. §
404.970(b).
Smith v. Astrue, 272 F. App’x. 789, 802 (11th Cir. 2008).
Dr. Teschner performed an “Independent Medical Examination” of plaintiff on
April 15, 2011.1 The report of that examination was submitted to the Appeals
Council on June 22, 2011, several months after the ALJ’s March 8, 2011
administrative decision.2 The Appeals Council considered Dr. Teschner’s report, but
1

Tr. 678-86.

2

See Tr. 10 (stating the date of the ALJ’s decision), 677 (cover letter from claimant’s
attorney, submitting Dr. Teschner’s report to the Appeals Council). Claimant also submitted
2

it found no reason to reverse the ALJ’s decision. Consequently, the Appeals Council
denied claimant’s request for review on August 17, 2011.3
Dr. Teschner conducted a full medical examination of claimant, and she noted
multiple physical findings, but the only findings discussed by claimant related to her
psychological impairments. Dr. Teschner stated that claimant’s only complaint was
back pain, but she also noted, “[Claimant] is severely depressed but does not mention
it here in chief complaints. It is as if the depression is such a part of her that she
forgets she has it.”4 When describing claimant’s medical history, Dr. Teschner stated:
Ms. Borden has a history of depression and anxiety for which she
is prescribed Prozac and Xanax. She denied any psychiatric admissions.
Her medical records indicate a diagnosis of major depressive disorder.
She thinks of suicide frequently but has no plan. She does not see a
psychiatrist or a therapist. Apparently, her PCP [primary care provider]
prescribed her Prozac and Xanax. The judge stated that she has “no
severe mental impairment due to depression or anxiety.” She certainly
does have severe depression today with marked psychomotor retardation
and a long latency of response, slowed speech, a family history of
suicide in two relatives and she contemplates suicide regularly though
without plan. Her depression has become severe by my examination of
her today. She did go for a mental health assessment and these
therapists are astute and trained to accurately diagnose mental illness in
one visit despite Judge Stout’s unbelievable statement that they cannot
make a diagnosis in one visit. Cardiologists, surgeons, etc. all must
make diagnoses in one visit and therapists can too. Judge Stout places
enormous weight on Dr. Fowler’s assessment of her depression but I do
not as he is only a general practitioner who is no specialist in mental
additional records Dr. Gary Fowler and Dr. Brian Stone to the Appeals Council, but she does not
argue that those records should have changed the Commissioner’s decision. See Tr. 4.
3

Tr. 1.

4

Tr. 679.
3

illness and might not have picked up on nuances of mental illness. (I
have a background in psychiatry.) Also patients do not always tell their
doctors everything and doctors do not always listen and they enter data
into the medical record incorrectly. Dr. Fowler is given more weight
than is necessary in my opinion. He is a GP dealing with multiple
complaints. Psychological issues take a back burner to medical
problems with him. His assessment of her mental illness is not reliable.5
Upon a mental status examination, Dr. Teschner noted:
The claimant is cooperative but very depressed. Psychomotor
retardation. Paucity of content. Long latency of response. She
maintained no change in facial expression during entire exam. Her
expression was completely bland. She had no facial expression; she just
stared ahead as if in another world. She appears reliable and her pain is
credible. She appears her stated age. Her mood is depressed. Her affect
is markedly depressed. She exhibits poor eye contact with examiner as
if she is so withdrawn she cannot make eye contact. There appears to be
no gross, obvious difficulty with ability to understand, BUT probably
has difficulty with her ability to remember secondary to severe
depression and pain. She likely cannot concentrate for the same reasons.
I doubt she can persist with task but she probably has greater difficulty
starting tasks with her psychomotor retardation. She likely has difficulty
adapting and interacting socially as she isolates. She barely interacted
with me today. Nevertheless, the claimant appears able to handle her
own personal financial affairs.6
Dr. Teschner assessed claimant as suffering from “Major Depressive Disorder,
Severe” and “Anxiety, NOS.”7 In her concluding paragraph, she stated:
Another primary limiting issue is her severe depression which is
apparently not controlled by her psychiatric medication. The odd thing
is that she did not mention the depression to me. It was apparent on her
5

Tr. 680-81.

6

Tr. 683.

7

Tr. 685.
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PE. It was mentioned in her medical records. This problem is severe
and needs further work up. She is obviously refractory to the effects of
Prozac or perhaps she was much worse prior to Prozac and what I see
today is improvement. But there may be some pseudomentia as well as
this goes along with severe unrelenting depression. She failed to even
tell me she had depression. . . . This is HER disability exam this is her
opportunity to tell all the things that are wrong with her including her
past medical/surgical history. But she instead stared a lot, was quiet,
and did not spontaneously give her history. She is so depressed and
needs full psych testing to help aid in her diagnosis and treatment.
However, she has no insurance. She is so depressed she has no
motivation to even get up and make her appointments. No matter what
any doctor or judge says, this woman is severely depressed and this is
a major limiting disabling condition. It makes sense though in light of
her strong mental illness family history. She is at high risk for suicide.
Her pain in the back exacerbates her depression and vice versa. Each
exacerbates the other and we have a vicious circle.8
It cannot reasonably be disputed that Dr. Teschner’s assessment, if afforded full
weight, would reflect disabling psychological limitations that are more severe than
those previously assessed by any other physician. Even so, the Commissioner argues
that none of the limitations assessed by Dr. Teschner relate back to a time period on
or before the ALJ’s March 8, 2011 decision. Dr. Teschner’s evaluation was
performed approximately one month after the ALJ’s decision. It is true, as the
Commissioner points out, that Dr. Teschner did not specifically state that claimant
“retained work-related limitations prior to the date of the ALJ’s decision.”9 Even so,
it is reasonable to conclude that if claimant had psychological symptoms at the level
8

Id.

9

Doc. no. 9 (Commissioner’s response brief), at 5.
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of severity noted by Dr. Teschner on April 15, 2011, she may also have had those
same symptoms one month before.
Considering all of the evidence, including Dr. Teschner’s report, the court
concludes that remand is warranted for further development of claimant’s
psychological limitations. 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 18th day of May, 2012.

______________________________
United States District Judge

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