Reid v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/24/2014. (JLC)

FILED
2014 Jul-24 PM 04:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
MARLO M. REID,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION.

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) Case No.: 6:13-CV-320-VEH
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Defendant.

MEMORANDUM OPINION
INTRODUCTION
Plaintiff Marlo M. Reid 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 decision of the
Commissioner of the Social Security Administration (“Commissioner”), who denied
her application for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”).1 Ms. Reid timely pursued and exhausted her administrative remedies
available before the Commissioner. The case is thus ripe for review under 42 U.S.C.
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.

§ 405(g).2 For the following reasons, the court REVERSES and REMANDS the
Commissioner’s decision for further consideration in accordance with this opinion.
STATEMENT OF THE CASE
Ms. Reid was 40 years old at the time of her hearing before the Administrative
Law Judge (“ALJ”). Compare Tr. 155 with Tr. 9. She has completed the tenth grade.
Tr. 35. Her past work experience includes employment as a gluer, material handler,
and hair dresser. Tr. 54-55. She claims she became disabled on June 16, 2009, due to
limitations imposed by her Hepatitis C infection, depression, bad eyesight and
hearing, low immune system, dizziness, fatigue, joint and muscle pain, bad liver, and
high blood pressure. Tr.185. Her last period of work ended on that date. Id.
On June 22, 2009, Ms. Reid protectively filed a Title II application for a period
of disability and DIB. Tr. 9. She also protectively filed a Title XVI application for SSI
on that date. Id. On October 5, 2009, the Commissioner initially denied these claims.
Tr. 69.3 Ms. Reid timely filed a written request for a hearing on October 27, 2009. Tr.
80. The ALJ conducted a hearing on the matter on March 18, 2011. Tr. 9. On May 13,

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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.
3

The ALJ below recorded the initial denial date as November 17, 2009. Tr. 9. It is
uncontested, however, that Ms. Reid requested a hearing challenging this denial on October 27,
2009. Tr. 80. Given this fact, the court has credited October 5, 2009 – the earliest transmission
date on record (tr. 69) – as the accurate date here.
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2011, he issued his opinion concluding Ms. Reid was not disabled and denying her
benefits. Tr. 24. She timely petitioned the Appeals Council to review the decision on
May 20, 2011. Tr. 5. On December 19, 2012, the Appeals Council issued a denial of
review on her claim. Tr. 1.
Ms. Reid filed a Complaint with this court on February 15, 2013, seeking
review of the Commissioner’s determination. Doc. 1. The Commissioner answered
on June 19, 2013. Doc. 7. Ms. Reid filed a supporting brief (doc. 9) on July 23, 2013,
and the Commissioner responded with her own (doc. 10) on September 3, 2013.
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
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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

4

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.
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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)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment listed
by the Commissioner;

(4)

whether the claimant can perform his or her past work; and

(5)

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 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).

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The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
ALJ FINDINGS
After consideration of the entire record, the ALJ made the following findings:
1.

Ms. Reid met the insured status requirements of the Social Security Act
through March 31, 2010.

2.

She had not engaged in substantial gainful activity since June 16, 2009,
the alleged disability onset date.

3.

She had the following severe impairments: degenerative disease of the
right knee status post arthroscopic surgery; essential hypertension,
diffuse pain with no objective neurological deficit; major depressive
disorder, recurrent; post traumatic stress disorder; anxiety disorder, not
otherwise specified; and borderline personality disorder.

4.

She did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.

5.

She had the residual functioning capacity (“RFC”) to perform sedentary
work with limitations. She could lift and carry ten pounds occasionally
and frequently; sit for six hours out of an eight hour workday; stand and
walk for four hours out of an eight hour workday; had no limitations on
the use of her upper and lower extremities for pushing and pulling or
operation of hand and foot controls; could occasionally climb ramps and
stairs, balance, stoop, kneel and crouch; for safety reasons, she should
not work on ladders, ropes, or scaffolds; she should avoid concentrated
exposure to extreme cold; she should not work around dangerous
machinery or unprotected heights; she could understand, remember, and
carry out short, simple instructions but not detailed or complex
instructions; she could maintain attention for an eight-hour workday at
two-hour increments with normal breaks; she should have only
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occasional contact with the public; and any changes in the work setting
needed to be gradually introduced and infrequent.
6.

She was unable to perform any past relevant work.

7.

She was born on [redacted], and was 38 years old, which is defined as
a younger individual age 18-44, on the alleged disability date.

8.

She had at least a limited education and was able to communicate in
English.

9.

Transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supported a finding that she was “not disabled,” whether or not she had
transferable job skills.

10.

Considering her age, education, work experience, and residual
functioning capacity, there were jobs that existed in significant numbers
in the national economy that she could perform.

11.

Ms. Reid had not been under a disability, as defined in the Social
Security Act, from June 16, 2009, through the date of this decision.

Tr. 11-24.
DISCUSSION
The court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th

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Cir. 1980)). However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Ms. Reid urges this court to reverse the Commissioner’s decision to deny her
benefits on the following grounds: (1) the ALJ improperly disregarded the opinions
of Ms. Reid’s treating physician, and (2) the ALJ failed to consider the combined
effect of Ms. Reid’s various severe impairments. Doc. 9 at 7-15. The court agrees
with Ms. Reid’s first objection. The ALJ inappropriately dismissed her only treating
physician’s opinion that her Hepatitis C and associated fatigue were severe
impairments. The court will therefore remand the case for reconsideration of Ms.
Reid’s disability claims in accordance with this opinion.
I.

The ALJ Wrongly Discounted Dr. Morrow’s Opinion that Ms. Reid’s
Hepatitis and Fatigue Were Severe Impairments.
As noted above, at Step Two of the sequential disability analysis, the

Commissioner must determine the severity vel non of the claimant’s various
impairments. An impairment is severe if “it significantly limits [a] claimant's physical
or mental ability to do basic work activities.” Crayton v. Callahan, 120 F.3d 1217,
1219 (11th Cir. 1997) (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). “Although the
claimant bears the burden of showing severity, the burden is mild, such that she need
only show that her impairment is ‘not so slight and its effect is not so minimal’ as to

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be trivial.” Gray v. Comm'r of Soc. Sec., 426 F. App'x 751, 753 (11th Cir. 2011)
(unpublished) (quoting McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986)).
In other words, an impairment is not severe “if it is a slight abnormality which has
such a minimal effect on the individual that it would not be expected to interfere with
the individual's ability to work, irrespective of age, education, or work experience.”
Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984) (per curiam). Importantly, the
severity of a medically ascertained disability “must be measured in terms of its effect
upon ability to work, and not simply in terms of deviation from purely medical
standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir. 1986). In other words, a mere diagnosis is insufficient to establish
severity. Sellers v. Barnhart, 246 F. Supp. 2d 1201, 1211 (M.D. Ala. 2002).
Dr. Stanley K. Morrow, D.O., is an osteopathic physician who treated Ms. Reid
regularly from March 2007 through at least February 2011. He was her primary care
physician during this period and, moreover, was the only physician on record who
maintained such a consistent treating relationship with her. In Dr. Morrow’s treatment
notes, he diagnosed her with Hepatitis C on several occasions. See, e.g., Tr. 408, 414.
In 2007 and 2008, in accordance with his recommendation, she underwent drug
therapy for this condition, which included administrations of Interferon, Pegaysis, and
Ribavirin. Id. In a Functional Capacity Assessment dated November 23, 2010, he
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continued to diagnose Ms. Reid with Hepatitis. Tr. 520. In a deposition dated that
same day, he identified her Hepatitis and fatigue as the “most serious” of her
ailments. Tr. 534. Indeed, he opined that the Hepatitis had been a “devastating
disease” for her. Tr. 534-35. He further agreed with her attorney’s description of the
treatment for the disease as “very debilitating.” Tr. 535.
In his opinion, the ALJ concluded that Ms. Reid’s Hepatitis C and fatigue were
“non-severe impairments.” Tr. 13. He acknowledged that she had undergone
treatment for these impairments, but he noted that there was no evidence showing
explicit treatment for them from a specialist after May 2008. Tr. 12. Instead, she had
sought treatment from Dr. Morrow, whom the ALJ accurately characterized as a
family practitioner and not a specialist in any of the referenced ailments. Tr. 13. The
ALJ conceded that Dr. Morrow diagnosed her consistently with Hepatitis C and
chronic fatigue syndrome, but he discredited the doctor’s judgment that these
maladies were “devastating” or otherwise debilitating. Id. He cited several reasons
in support. These included:
•

Dr. Morrow was not a specialist in this area;

•

he failed to point to any corroborating clinical or diagnostic findings;

•

he did not refer her for specialized care after her treatment ended in May
2008;

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•

his records do not reveal specific “examination findings” supporting
functional limitations;

•

he did not prescribe medication for either Hepatitis or fatigue.

Tr.12-13. For these reasons, the ALJ determined that Ms. Reid’s Hepatitis C and
fatigue “[had] not resulted in any more than minimal limitations of [her] ability to do
basic work activities.” Tr. 13.
The court finds that the ALJ’s scrutiny was too exacting at this stage of the
sequential analysis. As indicated above, Ms. Reid’s responsibility to show the
severity of her (acknowledged) impairments is relatively mild at Step Two. She
merely has to show that they are “not so slight” and their effect “not so minimal as to
be trivial.” Gray, 426 F. App’x at 753 (citation omitted). She satisfied this
responsibility. Dr. Morrow – although not a specialist – was qualified to evaluate the
severity of her Hepatitis C and fatigue. Moreover, as her only treating physician, his
opinion is owed some deference. See Phillips v. Barnhard, 357 F.3d 1232, 1240 (11th
Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). He made
it abundantly clear that (1) Ms. Reid’s Hepatitis C and associated fatigue were her
most serious illnesses and that (2) they significantly affected her ability to work. In
his deposition, Dr. Morrow elaborated on the subject in the following manner:
A.

I’ve actually had quite a few patients with Hepatitis C and I refer them
on to the hepatologist for the treatment regimen, which is typically
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Interferon and a medicine called Pegasys. The medicines in combination
work typically quite well for Hep C, but, I mean, I’ve had a few patients
get suicidal from the medicine and it can cause severe depression. I’ve
had patients have to stop the treatment for one to three months.
I’ve a few people that the treatment was so severe they just couldn’t –
you know, couldn’t even take the treatment and had to deal with
progressive hepatitis.
But the biggest, single problem you see is the severe fatigue that just
typically doesn’t seem to go away at least for –
Q.

Even after the treatment is over?

A.

– even after the treatment for quite a few of the patients.

Q.

Has that happened in this case?

A.

That’s what appears to happen in this case because she – I’ve seen her
for quite a while and she has severe fatigue.

Tr. 536-37. Under the standards prevailing in this Circuit, this opinion – along with
Ms. Reid’s subjective testimony – were sufficient to corroborate the severity of her
Hepatitis C and fatigue at Step Two. The ALJ’s dismissal of this evidence at this
stage was thus reversible error.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the Commissioner did not apply proper legal
standards in reaching her final decision. Accordingly, the decision will be reversed

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and remanded by separate order.
DONE and ORDERED this the 24th day of July, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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