Taylor v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 5/2/16. (MRR, )

FILED
2016 May-02 PM 01:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
PATRICIA ANN TAYLOR,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 6:15-cv-448-TMP

MEMORANDUM OPINION
I.

Introduction
The plaintiff, Patricia Ann Taylor, appeals from the decision of the

Commissioner of the Social Security Administration (ACommissioner@) denying her
application for Supplemental Security Income (ASSI@) and Disability Insurance
Benefits (ADIB@). Ms. Taylor timely pursued and exhausted her administrative
remedies, and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. '' 405(g), 1383(c)(3). The parties have consented to the jurisdiction of the
undersigned magistrate judge pursuant to 28 U.S.C. ' 626(c).
Ms. Taylor was 50 years old at the time of the Administrative Law Judge=s
(AALJ=s@) decision, she has a limited education, and is able to communicate in
Page 1 of 15

English. (Tr. at 33, 332). She completed the tenth grade. (Ex. 6E, p. 2). Her
past work experiences are as an upholstery seamstress, sewing machine operator,
and kitchen helper in a nursing home. (Id.) Ms. Taylor claims that she became
disabled on December 2, 2011, due to chronic obstructive pulmonary disease
(ACOPD@), a heart valve defect, osteoporosis, carpal tunnel syndrome, shoulder pain
from a broken clavicle (collarbone), cervical disc bulges, and Aall-over@ pain. (Tr.
at 137, 332). 1
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
'' 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is Adoing
substantial gainful activity.@ 20 C.F.R. '' 404.1520(a)(4)(i), 416.920(a)(4)(i). If
she is, the claimant is not disabled and the evaluation stops. Id. If she is not, the
Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
1

In the brief supporting the Commissioner, counsel refers to allegations of obesity;
however, this appears to be a clerical error as Ms. Taylor has apparently been significantly
underweight over the past several years, having weighed as little as 98 pounds, and no more than
110 pounds, at a height of 5'6" or 5'7”, according to the medical records.
Page 2 of 15

claimant will be found to be disabled. Id. The decision depends upon the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant=s impairments are not severe, the analysis stops.

20 C.F.R.

'' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
three, which is a determination of whether the claimant=s impairments meet or equal
the severity of an impairment listed in 20 C.F.R. pt. 404, Subpart P, Appendix 1. 20
C.F.R. '' 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant=s impairments fall
within this category, she will be found disabled without further consideration. Id.
If she does not, a determination of the claimant=s residual functional capacity
(ARFC@) will be made and the analysis proceeds to the fourth step. 20 C.F.R.
'' 404.1520(e), 416.920(e). Residual functional capacity is an assessment based
on all relevant evidence of a claimant=s remaining ability to do work despite her
impairments. 20 C.F.R. ' 404.1545(a).
The fourth step requires a determination of whether the claimant=s
impairments prevent her from returning to past relevant work.
'' 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

20 C.F.R.

If the claimant can still do her past

relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant=s RFC, as well as the
Page 3 of 15

claimant=s age, education, and past work experience, in order to determine if she can
do other work. 20 C.F.R. '' 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant
can do other work, the claimant is not disabled. Id. The burden of demonstrating
that other jobs exist which the claimant can perform is on the Commissioner; and,
once that burden is met, the claimant must prove her inability to perform those jobs
in order to be found to be disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999).
Applying the sequential evaluation process, the ALJ found that Ms. Taylor
has not been under a disability within the meaning of the Social Security Act from
the date of onset through the date of her decision. (Tr. at 34). She determined that
Ms. Taylor has not engaged in substantial gainful activity since the alleged onset of
her disability. (Tr. at 22). According to the ALJ, Ms. Taylor=s COPD, cervical disc
disease, and osteoporosis of the left clavicle are considered Asevere@ based on the
requirements set forth in the regulations. (Id.) She further determined that these
impairments neither meet nor medically equal any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 26). The ALJ found Ms. Taylor=s
allegations concerning the intensity, persistence and limiting effects of the
symptoms to be Anot entirely credible.@ (Tr. at 28-32). The ALJ also gave Alittle
weight@ to the treating physician=s opinion regarding Ms. Taylor=s capabilities, and
Page 4 of 15

assigned Agreat weight@ to the opinion of a consulting physician, Dr. Bernard
Simieritsch. (Id.). She determined that the plaintiff has the residual functional
capacity to perform unskilled light work with the following limitations: that she
can frequently lift or carry 10 pounds, and up to 20 pounds occasionally; stand or
walk in combination, with normal breaks, for at least six hours during an eight-hour
workday; sit, with normal breaks, for up to eight hours during an eight-hour
workday; frequently balance, stoop, kneel, crouch, and crawl; occasionally reach at
shoulder level and perform push/pull movements with her left upper extremity;
frequently perform fine and gross manipulations bilaterally. The ALJ further found
that the claimant should avoid concentrated exposure to extreme heat, extreme cold,
wetness, humidity, and working in areas of vibration; avoid concentrated exposure
to pulmonary irritants including fumes, dusts, odors, gases, and areas of poor
ventilation; avoid exposure to industrial hazards including working at unprotected
heights and working in close proximity to moving dangerous machinery. (Tr. at
27-28).
According to the ALJ, Ms. Taylor is unable to perform any of her past relevant
work, and she was a Ayounger individual@ at the date of alleged onset but had since
attained the age of 50 and became an individual closely approaching advanced age.
(Tr. at 32-33). She determined that Atransferability of skills is not material to the
Page 5 of 15

determination of disability@ prior to age 50, and that the claimant, at age 50, does not
possess transferable skills. (Tr. at 33). The ALJ found that Ms. Taylor has the
residual functional capacity to perform a significant range of light work. (Tr. at 25).
Even though Plaintiff cannot perform the full range of light work, the ALJ found that
there are a significant number of jobs in the national economy that she is capable of
performing, such as fitting room attendant, store facility rental clerk, and cafeteria
attendant. (Tr. at 33-34). The ALJ concluded her findings by stating that Plaintiff
is Anot disabled@ under the Social Security Act. (Tr. at 34).
II.

Standard of Review

This court=s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not decide
facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id.
AThe substantial evidence standard permits administrative decision makers to act
Page 6 of 15

with considerable latitude, and >the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency=s finding
from being supported by substantial evidence.=@ Parker v. Bowen, 793 F.2d 1177,
1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar.
Comm=n, 383 U.S. 607, 620 (1966)). Indeed, even if this court finds that the
evidence preponderates against the Commissioner=s decision, the court must affirm
if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No
decision is automatic, however, for Adespite this deferential standard [for review of
claims] it is imperative that the court scrutinize the record in its entirety to determine
the reasonableness of the decision reached.@ Bridges v. Bowen, 815 F.2d 622, 624
(11th Cir. 1987). Moreover, failure to apply the correct legal standards is grounds
for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion

Ms. Taylor alleges that the ALJ=s decision should be reversed and remanded
because, she asserts, the ALJ failed to give proper weight to the opinion of her
treating physician, Farouk Raquib. (Doc. 9, p. 9). Plaintiff contends that the ALJ
failed to properly weigh the opinion of Dr. Raquib, who opined that Ms. Taylor
would not be able to work to the degree that she could maintain a full-time job.
(Tr. at Exh. 12F). The Commissioner has responded that the opinion of Dr. Raquib
Page 7 of 15

was properly assessed as being unsupported by and inconsistent with other evidence
in the record, including his own treatment notes. (Doc. 14, pp. 6-12).
A. Treating Physician=s Assessment
Under prevailing law, a treating physician=s testimony is entitled to
Asubstantial or considerable weight unless >good cause= is shown to the contrary.@
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir.
1997)(internal quotations omitted). The weight to be afforded a medical opinion
regarding the nature and severity of a claimant=s impairments depends, among other
things, upon the examining and treating relationship the medical source had with the
claimant, the evidence the medical source presents to support the opinion, how
consistent the opinion is with the record as a whole, and the specialty of the medical
source. See 20 C.F.R. '' 404.1527(d), 416.927(d). AGood cause@ exists for an
ALJ to not give a treating physician=s opinion substantial weight when the A(1)
treating physician=s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) . . . was conclusory or inconsistent with the
doctor=s own medical records.@ Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir.
2004) citing Lewis, 125 F.3d at 1440; see also Edwards v. Sullivan, 937 F.2d 580,
583-84 (11th Cir. 1991)(holding that Agood cause@ exists where the opinion was
contradicted by other notations in the physician=s own record).
Page 8 of 15

Opinions such as whether a claimant is disabled, the claimant=s residual
functional capacity, and the application of vocational factors Aare not medical
opinions, . . . but are, instead, opinions on issues reserved to the Commissioner;@
thus the court Amay not decide facts anew, reweigh the evidence, or substitute [its]
judgment for that of the Commissioner.@ Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005).

The court instead looks to the doctors= evaluations of the

claimant=s condition and the medical consequences thereof, not their opinions of the
legal consequences of his [or her] condition.@ Lewis, 125 F.3d at 1440.

See

also 20 C.F.R. ' 404.1527(d)(1)(AA statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will determine that you are
disabled.”). Such statements by a physician are relevant to the ALJ=s findings, but
they are not determinative, because it is the ALJ who bears the responsibility of
assessing a claimant=s residual functional capacity.

See, e.g., 20 C.F.R.

' 404.1546(c).
The court considers the ALJ=s decision to accord Alittle weight@ to Dr.
Raquib=s opinion. Dr. Raquib is a neurologist at Winfield Family Medical Clinic
who treated the claimant regularly and frequently from January 2010 through
December 2012 for a variety of complaints, including chest pain and shortness of
breath, shoulder and joint pain, and pain radiating from her cervical discs. (Tr. at
Page 9 of 15

254-311, 339-364). In April of 2010, Dr. Raquib noted that she had Aradicular
symptoms@ in her left arm from the Aold fracture and dislocation of the left clavicle
and osteoporosis,@ and he noted upon physical examination Athe deformity of the
lateral third of the left clavicle.@ (Doc. 3F, p. 46). In December of 2011, Dr.
Raquib reported that Ms. Taylor had osteoporosis and bone pain connected with her
clavicle. (Exh. 3F, p. 21). In January of 2012, he described her as having Aold
clavicular fracture/dislocation and chronic left clavicular pain.@ In May of 2012, he
reported that she had Achronic left clavicular pain@ as well as chronic pain in the left
chest wall that was triggered by left shoulder movement. (Exh. 4F, pp. 4-5).
Although her treatment for the clavicle fracture in 2008 from Dr. Allen, a general
surgeon, was considered to be Aconservative,@ the records indicate that the reason
Taylor received conservative treatment was because she had no insurance and
wanted to try to avoid surgery. (Exh. 3F, p. 49; Exh. 1F, p. 3).2 Dr. Raquib noted in
2010 that Taylor=s pain had Aincreasingly gotten worse@ since the clavicle fracture in
2008, and that she experienced Apain with range of motion, particularly with
abduction and rotation.@ (Doc. 3F, p. 49). A radiologist noted in January 2010 that
2

Treatment notes from Dr. White at the Tupelo Bone and Joint Clinic on July 10,
2008, indicate that the Plaintiff did not get the follow-up treatment that was recommended after her
shoulder injury because a Dr. Smith Awould not see her without $250.@ A treatment note dated
July 24, 2008, indicates that the Plaintiff was Awanting to get by without surgical intervention,@ but
the doctor Awasn=t sure she could get by with this.@ (Exh. 1F, p. 3).
Page 10 of 15

Taylor=s Abone mineral density is severely decreased@ in the clavicle. (Doc. 3F, p.
51). Accordingly, Dr. Raquib=s observations about the Plaintiff=s shoulder pain is
both consistent with his own records and is supported by other evidence in the
record.
Ms. Taylor=s complaints of pain arise not only from her clavicle injury, but
also from her COPD. The result of chest x-rays taken in February of 2013 to
examine a Aspot on lung@ showed a Asubtle 2.5 cm opacity in the left midlung@ which
was determined to be either Aartifact, a small focus of resolving pneumonia, or a
lesion with thin wall and central cavitation.@ (Exh. 13F, p. 17). Further x-rays or a
Achest CT. with IV contrast@ were suggested as a follow-up, but additional tests
apparently were never conducted. (Id.). Ms. Taylor=s most recent lung function
test, in March of 2013, showed Aminimal obstructive lung defect,@ but noted that
Amore detailed pulmonary function testing@ may be useful. (Exh. 13F, p. 20).
Even Dr. Simieritsch recommended that she undergo a pulmonary stress test and
“PFT to assess her lung disfunction.” (Exh, 7F, p. 8). It does not appear that she
underwent further pulmonary tests. While the record contains limited information
regarding the Plaintiff=s lung function, there is sufficient evidence in the record to
demonstrate that Dr. Raquib=s opinion is supported by other evidence and is
consistent with his own treatment notes.
Page 11 of 15

Similarly, records of objective medical tests indicate that Ms. Taylor had
bulging discs at the C4-C5 level and at the C5-C6 level and minimal scoliosis of the
cervical spine, with slight facet arthritic changes. (Exh. 3F, pp. 46, 52). While the
cervical disc problems do not appear to be major, it cannot be said that Dr. Raquib=s
opinions regarding the Plaintiff=s neck pain are unsupported or contradicted by the
record.
For all of these reasons, the ALJ=s decision to give the treating physician=s
opinion Alittle weight@ is not supported by Agood cause.@ Dr. Raquib provided a
medical source statement in October 2012. In that statement supporting Taylor=s
application for disability benefits, Dr. Raquib stated that Ms. Taylor=s pain was
Apresent to such an extent as to negatively affect adequate performance of daily
activities or work,@ that working would increase pain Ato such an extent that bed rest
and/or medication is necessary,@ and that her medical condition would cause her to
miss work Amore than 4 times a month.@ (Tr. at 366). He further stated that she
would need to lie down during working hours and would need a sit/stand option
three to four times per day, for 15 to 20 minutes each time. (Exh. 12F, pp. 2 - 8).
Because the ALJ gave Dr. Raquib=s opinion Alittle weight,@ the hypothetical
questions posed to the vocational expert at the hearing did not encompass all of these
limitations.

The ALJ gave Alittle weight@ to Dr. Raquib=s opinions, based upon her
Page 12 of 15

determination that the doctor=s opinions are Aunsupported@ and Ainconsistent with the
objective evidence.@ (Tr. at 32). Although there do exist medical reports that call
into question Dr. Raquib=s assessment, it cannot be said that his assessment is
Aunsupported.@3 To the contrary, Dr. Raquib treated the Plaintiff for more than two
years, seeing her frequently and regularly. He was apparently the only doctor she
saw with any frequency B or that she could afford to see. The records support his
findings that her shoulder never healed properly, that she experienced persistent pain
from her shoulder, from her chest, and from her neck, and that she had Apoor air
intake@ due to her COPD.4 She was examined in the emergency room on multiple
occasions with complaints of chest pain consistent with her complaints to Dr.
Raquib. The fact that there are insufficient lab or test results to definitively describe
the extent of her medical problems is explained by her lack of ability to pay for
further tests and her efforts to avoid consultations and surgery that she could not
afford. The fact that treatment of her medical conditions was generally conservative

3

The court notes, however, that there is no objective medical evidence to support a
diagnosis of carpal tunnel syndrome.
4

The court takes no issue with the ALJ=s credibility assessment of Ms. Taylor,
finding that her decision that the Plaintiff was Anot entirely credible@ is supported by the fact that
Ms. Taylor left her job on the alleged date of onset because she was laid off, and that she sought
and received unemployment benefits for many months, attesting that she was willing and able to
work.
Page 13 of 15

and limited to medication was more a function of her inability to pay for other
treatment, not the lack of need for treat. The record further supports a finding that
her condition has worsened over time. Dr. Raquib=s notes are internally consistent,
consistent with most of the other medical records, and supported by the claimant=s
own testimony. The ALJ essentially discounted Dr. Raquib=s assessment in favor of
that of a state agency physician, Dr. Simieritsch, who examined the plaintiff once in
July 2012, 5 (Tr. at 320-328), but the ALJ failed to give adequate reasons for virtually
ignoring the opinion of Dr. Raquib.

Accordingly, the ALJ=s weighing of the

opinion evidence from Dr. Raquib is unsupported by substantial evidence and is
contrary to prevailing law.
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Taylor=s

arguments, the undersigned Magistrate Judge finds the Commissioner=s decision is
5

Several aspects of Dr. Simieritsch’s medical assessment are inconsistent and
confusing. For example, he described claimant as “Well/Developed/Nourished,” (Tr. at 325),
while noting her weight to be only 98.6 pounds at a height of 65.6 (5’6.6”) and a Body Mass Index
of 16.1. (Tr. at 324). The federal CDC regards a BMI of less than 18.5 to be “underweight.” See
http://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/index.html. Further, he noted her
neck to be “supple” with a “full range of motion,” without acknowledging that x-rays have
confirmed disc bulging at C4-C5 and C5-C6, with mild scoliosis. Also, his assessment of her
COPD was admittedly incomplete. While he noted that she was positive for “SOB” (shortness of
breath) and recommended a “pulmonary stress test and PFT to assess her lung disfunction,” he had
no basis for assessing the impact of her COPD on her ability to work. He found her to have
osteoporosis, left-shoulder pain, and left chest-wall pain, but found her to have full range of
motion on the left side.
Page 14 of 15

not supported by substantial evidence and is not in accord with the applicable law.
The Commissioner’s determination failed to give appropriate consideration to the
claimant’s treatment physician’s assessment of her pain without an adequate basis
for rejecting that assessment. The determination, therefore, is REVERSED and
REMANDED to the ALJ for proper consideration of the treating physician’s pain
assessment.
DATED the 2nd day of May, 2016.

_______________________________

T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

Page 15 of 15