Kelley v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 3/29/18. (MRR, )

FILED
2018 Mar-29 PM 03:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
MORT KELLEY,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

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Case No.: 6:16-cv-01875-SGC

MEMORANDUM OPINION1
Plaintiff Mort Kelley appeals from the decision of the Commissioner of the
Social Security Administration ("Commissioner") denying his application for a
period of disability and Disability Insurance Benefits ("DIB"). (Doc. 1). Plaintiff
timely pursued and exhausted his administrative remedies, and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). For
the reasons stated below, this matter is due to be remanded to the Commissioner.
I.

FACTS, FRAMEWORK, AND PROCEDURAL HISTORY
Plaintiff was fifty-four years old at the time of the Administrative Law

Judge's ("ALJ's") decision. (See R. 24, 26). Plaintiff has a high school education
and speaks English. (R. 24). Plaintiff's past work experience includes work as a
1

The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
(Doc. 5).

construction supervisor and construction manager. (R. 24). Plaintiff alleges a
disability onset of August 2, 2013, due to mental state issues, short term memory
problems, high blood pressure, ear cysts, and problems with his left arm, left
elbow, and right shoulder. (R. 225).
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; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The
first step requires a determination whether the claimant is performing substantial
gainful activity ("SGA").

20 C.F.R. § 404.1520(a)(4)(i).

If the claimant is

engaged in SGA, he or she is not disabled and the evaluation stops. Id. If the
claimant is not engaged in SGA, the Commissioner proceeds to consider the
combined effects of all the claimant's physical and mental impairments. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments must be severe and
must meet durational requirements before a claimant will be found disabled. Id.
The decision depends on 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, at which the Commissioner determines
whether the claimant's impairments meet the severity of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1.
2

20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the impairments fall within this category, the claimant will be
found disabled without further consideration. Id. If the impairments do not fall
within the listings, the Commissioner determines the claimant's residual functional
capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e).
At step four the Commissioner determines whether the impairments prevent
the claimant from returning to past relevant work.

20 C.F.R. §§

404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of performing
past relevant work, he or she is not disabled and the evaluation stops. Id. If the
claimant cannot perform past relevant work, the analysis proceeds to the fifth step,
at which the Commissioner considers the claimant's RFC, as well as the claimant's
age, education, and past work experience, to determine whether he or she can
perform other work. Id.; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
claimant can do other work, he or she is not disabled. Id.
Applying the sequential evaluation process, the ALJ found Plaintiff had not
engaged in SGA since the alleged onset of his disability. (R. 16). At step two, the
ALJ found Plaintiff suffered from the following severe impairments: generalized
anxiety disorder; major depressive disorder; adjustment disorder; obesity; and
status post open reduction and internal fixation of the left upper extremity. (R. 1617).

3

At step three, the ALJ found Plaintiff did not have an impairment or
combination of impairments meeting or medically equaling any of the listed
impairments. (R. 17-19). Before proceeding to step four, the ALJ determined
Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. §§
404.1567(c) and 416.967(c) with the following exertional and non-exertional
limitations:
[T]he claimant is able to occasionally use left non-dominant hand
controls. He can frequently reach overhead as well as in all other
directions with his right dominant hand. He can reach in all other
directions with his left non-dominant hand occasionally. He can
frequently handle, finger and feel with his left non-dominant hand.
He can frequently climb ramps and stairs but never climb ladders or
scaffolds. He can frequently balance, stoop, crouch, kneel, and crawl.
The claimant should never be exposed to unprotected heights,
dangerous machinery, dangerous tools, hazardous processes or
operate commercial motor vehicles. He can tolerate moderate noise in
the workplace. The undersigned further finds that the claimant could
perform routine and repetitive tasks and make simple work related
decisions. He could do simple routine repetitive tasks but would be
unable to do detailed or complex tasks. He is able to make simple,
routine work-related decisions. He could have occasional interaction
with the general public and co-workers and could maintain frequent
interaction with supervisors. He would be able to accept constructive
non-confrontational criticism, work effectively alone or in secluded
work areas or environments and would be able to accept changes in
the work place setting if introduced gradually and infrequently. He
would be unable to perform assembly line work with production rate
pace but could perform other goal-oriented work. In addition to
normal workday breaks, he would be off-task 5% of an 8-hour
workday (non-consecutive minutes).
(R. 19-20).

4

At step four, the ALJ determined Plaintiff was unable to perform past
relevant work. (R. 24). Because the Plaintiff's RFC did not allow for the full range
of medium work, the ALJ relied on the testimony of a vocational expert ("VE") in
finding a significant number of jobs in the national economy Plaintiff could
perform. (R. 25). The ALJ concluded by finding Plaintiff was not disabled. (R.
25-26).
II.

STANDARD OF REVIEW
A 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 Stone
v. Comm'r of Soc. Sec., 544 F. App'x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). A court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, a court may not decide facts, weigh evidence, or substitute its
judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)). "The substantial evidence standard permits administrative decision makers
5

to act 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 a court finds that the proof
preponderates against the Commissioner's decision, it must affirm if the decision is
supported by substantial evidence.

Miles, 84 F.3d at 1400 (citing Martin v.

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
No decision is automatic, for "despite th[e] deferential standard [for review
of claims], it is imperative that th[is] 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) (citing Arnold v. Heckler, 732 F.2d 881, 883 (11th
Cir. 1984)). 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
Plaintiff argues the Commissioner's decision should be reversed and benefits

should be awarded because the ALJ's decision: (1) was not based on substantial
evidence; (2) erred in its assessment of Plaintiff's credibility; and (3) erred by

6

failing to consider whether Plaintiff is disabled under 12.05(C).2 (Doc. 9 at 13).
Plaintiff's arguments focus solely on the ALJ's conclusions regarding Plaintiff's
mental impairments. (See generally Doc. 9). Accordingly, this opinion is limited
to consideration of the ALJ's conclusions regarding Plaintiff's mental impairments.
The timing of Plaintiff's alleged disability onset—August 2, 2013—suggests
it principally was triggered by a psychotic episode.3 On August 5, 2013, Plaintiff
was admitted to Walker Baptist Medical Center under a court order; he was
experiencing an altered mental state and exhibited suicidal and homicidal ideation,
as well as evidence of decompensation. (R. 265, 310). Plaintiff's altered mental
state began on August 2, 2013, but was noted to be a "recurrent problem." (R.
266). On admission, Plaintiff made "bizarre statements," including that he knew
"Jesus is under the stairwell." (R. 265). Plaintiff's brother and then-wife reported
he had been psychotic, making "increased references to God and Satan, [and
considering] committing suicide." (R. 266). On admission, Plaintiff demonstrated:
(1) an anxious mood; (2) paranoid and delusional thought content; (3) impaired
cognition and memory; (4) inappropriate judgement; and (5) homicidal and

2

The Commissioner construed Plaintiff's arguments in this regard as alleging Plaintiff should
have been found disabled under Listing 12.05 for intellectual disorder. (Doc. 10 at 14 n.14).
The record is insufficiently developed to determine whether Plaintiff met this listing. Because
this matter will be remanded, the Commissioner may further evaluate the applicability of Listing
12.05.
3

It appears this was the last of several psychotic or dissociative episodes Plaintiff experienced.
(R. 266).
7

suicidal ideation. (See R. 268). Plaintiff was admitted to inpatient psychiatric care
at Walker Baptist, where he stated the admitting doctor was Satan because he was
wearing black clothing. (See R. 265, 268).
Plaintiff was subsequently committed to the State Department of Mental
Health and transferred to North Alabama Regional Hospital for treatment, where
he was under observation "for safety." (R. 306-07, 310). Plaintiff was discharged
on September 13, 2013. (R. 306). Following discharge, Plaintiff initially lived
with his brother. (R. 307-08). Plaintiff and his then-wife subsequently divorced.
(See Doc. 9 at 28).
The records from Plaintiff's involuntary psychiatric hospitalization indicate
opioid addiction and/or poly-substance abuse contributed to his mental
impairment. (See, e.g., R. 265). Years prior to his hospitalization, Plaintiff was
prescribed opiate painkillers following a severe arm fracture when he fell from a
scaffold at work; he subsequently became addicted to painkillers.

(R. 47).

Plaintiff still suffers from frequent pain due to his arm injury. (Id.). At the
hearing, Plaintiff testified he was undergoing Suboxone treatment and had not
taken any opiate painkillers since early 2013. (Id.). The record contains treatment
notes from MedplexMD, a Suboxone clinic, documenting Plaintiff's treatment from
April 11, 2013, through the date of the hearing. (R. 346-79). The MedplexMD
records include Plaintiff's statements that Suboxone was effective, variously
8

reporting 90% to 100% improvement with treatment. (R. 349, 361, 363, 367).
During the hearing, Plaintiff testified Suboxone improved his physical activity but
had no effect on his mental state. (R. 62).
Prior to his involuntary hospitalization, Plaintiff was a construction manager
for heavy industrial projects. (R. 42). He supervised 40 to 100 employees, was
responsible for bidding projects and interpreting architectural plans, and made over
$100,000 per year. (R. 37, 42-45). Plaintiff testified that since his discharge from
North Alabama Regional Hospital, he lived with his bother for a period of time
before moving in with his daughter and her family. (R. 39-40). At the time of the
hearing, Plaintiff had been living with his daughter for approximately one year.
(R. 40). Plaintiff testified he was living with his daughter because he needed her
help with simple decision making and relied on her to correct his behavior; he also
testified he did not think he should be alone. (R. 54, 59). Plaintiff testified his
daughter does not work so she is with Plaintiff "all day long;" she drove Plaintiff to
the hearing. (R. 41-42). Plaintiff testified he has a driver's license and drives short
distances twice a week to go to the store. (R. 41). Plaintiff testified he limited the
frequency and duration of his driving due to nervousness and discomfort caused by
exposure to people and traffic. (R. 42).
As to daily activities, Plaintiff testified he gets up and eats breakfast
prepared by his daughter. (R. 49). Plaintiff then typically sits on the couch or
9

watches TV; sometimes he reads the Bible. (Id.; R. 51; see R. 213). When the
ALJ noted Plaintiff appeared "very tan," Plaintiff noted he often spends time in the
yard and walks near his daughter's house. (R. 49). Plaintiff testified he gets
dressed approximately four days out of a typical week; he spends the entirety of
other days in his pajamas. (R. 58). Plaintiff testified that he would be unable to
shop for groceries with a list. (Id.).
Plaintiff testified he was unable to work due to his nervousness caused by
being around people and lingering effects of his psychotic episode. (R. 51-52, 54).
Plaintiff further testified his memory and concentration had deteriorated since his
hospitalization and that he had difficulty understanding and remembering things he
saw on television.

(R. 52-53).

Plaintiff testified he was prescribed Abilify,

Lexapro, Lorazepam, and Trazodone, in addition to Suboxone. (R. 50).4 Plaintiff
was crying as he testified. (R. 57).
The ALJ found Plaintiff's testimony concerning the severity and persistence
of his symptoms to be less than fully credible. (R. 22). In making this finding, the
ALJ relied on Plaintiff's activities of daily living and the medical record. As to
Plaintiff's activities, the ALJ relied on his ability to groom himself, take his
medication, watch television, take walks, read the Bible, and drive twice weekly.
(Id.).

4

As to the medical record, the ALJ found Plaintiff's testimony was

The record also indicates Plaintiff was prescribed Ativan. (E.g. R. 436).
10

unsupported by his reports of improvement under Suboxone treatment and the
treatment notes from his treating psychiatrist, Dr. Armand Schachter, which the
ALJ described as "indicat[ing] that the claimant's mood was stable, and he was
feeling better than he had prior to his alleged onset date." (Id.).
There are no opinions from treating physicians in the record. Plaintiff has
received psychiatric care from Dr. Schachter on an approximately quarterly basis
since his 2013 discharge from North Alabama Regional Hospital. (R. 435-451).
However, Dr. Schachter refused to provide any opinion regarding Plaintiff's
disability. (See R. 35). According to Plaintiff's counsel, Dr. Schachter's general
policy is to not opine on patients' disability status. (Id.).
The ALJ addressed three opinions regarding Plaintiff's mental condition.
First, the ALJ addressed the opinions of two consultative examiners—Sharon D.
Waltz, Psy.D., and John R. Goff, Ph.D.—each of whom saw Plaintiff one time and
evaluated his mental impairments. The ALJ gave partial weight to the opinions of
Dr. Waltz and Dr. Goff. (R. 23). The ALJ also addressed the opinion of Angela
Register, Ph.D., a state agency psychological consultant. (R. 22-23). Dr. Register
did not examine Plaintiff; her opinion was based on Plaintiff's medical records at
the time. (Id.). Plaintiff gave Dr. Register's opinion substantial weight. (R. 23).
These opinions, and the ALJ's analysis of them, are addressed in turn.

11

Dr. Waltz performed a consultative examination of Plaintiff on January 14,
2014. (R. 329). Dr. Waltz noted Plaintiff: (1) had good eye-contact and adequate
concentration; (2) could count backward from twenty and spell the word "world"
backwards; (3) could recall objects immediately and after five minutes; and (4)
could recite six digits forward and four digits backwards. (R. 330). Dr. Waltz
diagnosed Plaintiff with "Major Depressive Disorder, Recurrent, Severe with
Psychotic Features," opioid dependence, and antisocial features with a rule out
diagnosis of personality disorder, NOS. (R. 331). Dr. Waltz opined Plaintiff had a
"severe degree" of mental impairment which restricted his activities, constricted
his interests, and negatively affected his ability to relate to others. (R. 331). Dr.
Waltz further opined that, with continued treatment and psychiatric care, Plaintiff
had "limited to fair" ability to: (1) understand, carry out, and remember work place
instructions; and (2) respond appropriately to supervision, co-workers, and work
place pressures.

(Id.).

The ALJ afforded Dr. Waltz's opinion partial weight

because she conducted her examination prior to "an adjustment in his medication,
after which he reported 90-100 percent improvement." (R. 23). Although the ALJ
did not cite the evidence he relied upon to show improvement, the Plaintiff's only
reports of 90% to 100% improvement appear in the records from MedplexMD,
related to his Suboxone treatment.

12

On January 22, 2014, Dr. Register reviewed Plaintiff's medical records. (R.
87-93). Dr. Register concluded Plaintiff's mental impairments resulted in moderate
limitations but opined Plaintiff could: (1) understand, remember, and carry out
simple, routine tasks; (2) maintain attention and concentration for at least two
hours at a time; (3) maintain a schedule so long as it was not overly strict or
demanding; (4) maintain appropriate interactions so long as the workplace required
only casual and infrequent contact with coworkers and the general public; (5)
travel alone and understand safety issues; and (6) make plans and set goals of an
immediate nature. (R. 93). The ALJ afforded Dr. Register's opinion substantial
weight. (R. 23). In doing so, the ALJ noted Dr. Register was "familiar with Social
Security Administration program requirements."

(Id.).

The ALJ found Dr.

Register's opinion was consistent with: (1) Plaintiff's self-reported activities; (2)
Dr. Schachter's generally unremarkable treatment notes; (3) Dr. Waltz's findings
regarding Plaintiff's memory and concentration; and (4) a notation in a December
11, 2014 treatment record from Plaintiff's primary physician that he denied anxiety,
depression, or memory loss. (Id.) (citing R. 330, 333, 435-52).
Dr. Goff, a clinical neuro-psychologist, completed his consultative
examination on April 13, 2015, following the hearing. (R. 454-62).5 In addition to
reviewing all of Plaintiff's medical records, Dr. Goff administered the Victoria

5

Plaintiff's brother drove him to the examination. (R. 456).
13

Symptom Validity Test to assess whether dissimulation was an issue; Dr. Goff
concluded Plaintiff did not dissimulate and that his performance was
"straightforward." (R. 454-57).
Dr. Goff also administered several objective assessments. The Wechsler
Adult Intelligence Scale ("WAIS-IV") revealed Plaintiff had an I.Q. of 67,
although Dr. Goff opined Plaintiff's vision may have been causing him to
underperform; he opined a score of 75 was probably a better estimate of Plaintiff's
I.Q. (R. 457). The Reitan-Indiana Aphasia Screening Test ("RAST") revealed
Plaintiff could: (1) read at a fourth grade level; (2) complete credible clock
drawings that were distorted but recognizable; and (3) perform simple arithmetic
both mentally and on paper. (R. 457-58). The Wide Range Achievement Test
("WRAT-IV") revealed plaintiff could: (1) read at a sixth grade level; (2) perform
mathematical calculations at the fourth grade level; and (3) spell at the mid-third
grade level, demonstrating functional literacy. (R. 458).
The Personality Assessment Inventory ("PAI") revealed "pretty substantial
indications for endorsement of psychopathology" to a degree "usually associated
with marked distress," indicating "significant thinking and concentration problems
caused by agitation and distress." (Id.). Based on the PAI results, Dr. Goff
concluded Plaintiff was likely to: (1) be withdrawn and isolated; (2) have few or no
close interpersonal relationships; (3) have poor social judgment; (4) experience
14

difficulty making insignificant decisions; and (5) be socially isolated with limited
social skills. (R. 458). The diagnoses suggested by the PAI results included: (1)
schizophrenia, undifferentiated type; (2) major depressive disorder, single episode,
unspecified; (3) somatization disorder; (4) posttraumatic stress disorder; (5)
schizophrenia paranoid type; and (6) the possibility of schizotypal personality
disorder.

(Id.).

Dr. Goff also noted that, while the diagnosis for opioid

dependence had followed Plaintiff for some time, he did not see any indication of
current use. (Id.).
Based on his review of the record, objective testing, and examination, Dr.
Goff concluded: (1) Plaintiff was "functioning within the borderline range of
psychometric intelligence;" (2) cognitive decline could not be ruled out; (3) there
were "indications for a distress syndrome with high levels of anxiety and
depression;" and (4) Plaintiff's reports of visual hallucinations were credible. (R.
459). Dr. Goff diagnosed Plaintiff with "Major Depressive Disorder, Recurrent,
Severe with Psychotic Features Rule out Cognitive Disorder, NOS (Decline)," and
"Borderline Intellectual Functioning." (Id.). Dr. Goff opined Plaintiff suffered
from "severe impairments because of his psychiatric difficulties." (Id.). Dr. Goff
further opined Plaintiff would have: (1) marked limitations in carrying out complex
instructions, making judgments regarding complex decisions, interacting
appropriately with supervisors, and responding to normal workplace situations and
15

changes in work setting; and (2) moderate limitations in understanding,
remembering, and carrying out simple instructions, carrying out complex
instructions, and interacting appropriately with coworkers and the public. (R. 46061).
The ALJ afforded partial weight to Dr. Goff's opinion, finding his opinions
regarding Plaintiff's limitations appeared "to have relied almost exclusively on the
claimant's representations instead of the longitudinal record." (R. 23). The ALJ
noted Dr. Goff's opinion was not supported by Dr. Schachter's clinical notes, which
the ALJ described as not revealing complaints of memory loss and "reported 90100 percent improvement in his condition." (Id.). The ALJ appears to have given
weight to Dr. Goff's opinion to the extent it concluded Plaintiff could understand,
follow, and carry out simple instructions. (Id.).
The principal issues on appeal are the ALJ's: (1) refusal to fully credit
Plaintiff's testimony; and (2) decision to give partial weight to the opinions of Dr.
Goff and Dr. Waltz, while giving substantial weight to Dr. Register's opinion. As
explained below, the ALJ's conclusions regarding the credibility of Plaintiff's
testimony and the weight afforded to medical source opinions are not supported by
substantial evidence. The issues on appeal are addressed in turn, although not in
the order presented.

16

A.

Opinion Evidence

As previously noted, the record is devoid of opinions from physicians that
treated Plaintiff for mental or psychiatric impairments.

The only opinions

regarding Plaintiff's mental impairments come in the form of the consultative
examinations of Dr. Waltz and Dr. Goff and the opinion of Dr. Register following
her review of the then-existing medical record.
An ALJ can "reject the opinion of any physician when the evidence supports
a contrary conclusion . . . [but] the ALJ is required [] to state with particularity the
weight he gives to different medical opinions and the reasons why." McCloud v.
Barnhart, 166 F. App'x 410, 418-19 (11th Cir. 2006) (citing Bloodsworth v.
Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983); Sharfarz v. Bowen, 825 F.2d 278,
279 (11th Cir. 1987)). Furthermore, the ALJ must explain why an opinion is
inconsistent with the medical record; he or she cannot simply make a conclusory
pronouncement that the opinion is inconsistent with evidence of record. See Bell v.
Colvin, No. 15-0743, 2016 WL 6609187 at *4 (M.D. Ala. Nov. 7, 2016).
While the opinion of a one-time examining physician may not be entitled to
deference, especially when it contradicts the opinion of a treating physician, the
opinion of an examining physician is generally entitled to more weight than the
opinion of a non-examining physician. Broughton v. Heckler, 776 F.2d 960, 962
(11th Cir. 1985). The opinions or findings of a non-examining physician are
17

entitled to little weight when they contradict the opinions or findings of a treating
or examining physician. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). The
rejection of an examining physician's opinion must be supported by substantial
evidence. See Williams v. Soc. Sec. Admin., 661 F. App'x 977, 979 (11th Cir.
2016).
1.

Dr. Waltz's Opinion

Regarding Dr. Waltz's opinion that Plaintiff had a "significant degree" of
mental impairment which limited his ability to work, the ALJ articulated only one
reason for affording it partial weight: it preceded the "adjustment in [Plaintiff's]
medication, after which he reported 90-100 percent improvement." (R. 23). While
the ALJ did not cite the records reflecting Plaintiff's self-reported improvement,
the only such records come from MedplexMD, which administered Plaintiff's
Suboxone treatment. (R. 349, 361, 363, 376).6 Plaintiff testified Suboxone helped
ease his physical pain but did not have any effect on his mental status. Likewise,
the undersigned cannot discern how Plaintiff's self-reported improvement under
Suboxone—which is prescribed to treat opioid dependence—has any significant
bearing on Plaintiff's mental health status. Accordingly, the ALJ's only stated
reason for giving lesser weight to Dr. Waltz's opinion does not constitute
substantial evidence.
6

Dr. Register also offered her opinion—to which the ALJ gave substantial weight—prior to
Plaintiff's reports of improvement under Suboxone.
18

2.

Dr. Goff's Opinion

The ALJ offered several reasons for partially discrediting Dr. Goff's opinion
that Plaintiff suffered from "severe impairments because of his psychiatric
difficulties" that would cause marked and moderate limitations in a variety of
critical workplace functions. (R. 459). Specifically, the ALJ concluded Dr. Goff's
opinion was: (1) "almost exclusively" based on Plaintiff's representations during
the consultative exam; and (2) unsupported by Dr. Schachter's treatment notes,
which the ALJ described as not revealing complaints of memory loss and as
reflecting Plaintiff's "reported 90-100 percent improvement in his condition." (R.
23).
To the extent the ALJ's treatment of Dr. Goff's opinion is based on its
overreliance on Plaintiff's representations, the Eleventh Circuit has held—albeit in
an unpublished opinion—that an ALJ properly rejected an examining physician's
opinion that was based on subjective complaints without significant clinical
findings. Ogranaja v. Comm'r of Soc. Sec., 186 F. App'x 848, 850 (11th Cir.
2006). The examining psychologist in Ogranaja based his opinion on the
claimant's subjective statements rather than the psychologist's mental examination
showing focused thought content, intact memory, reasonable judgment, average
intelligence, and logical thought process. Id. at 850.

19

The instant case is easily distinguishable from Ogranaja. Dr. Goff did not
base his opinion solely on Plaintiff's subjective statements. Dr. Goff did note
Plaintiff provided his own history and found him to be a "credible historian." (R.
456).

However, Dr. Goff also summarized the entire medical record before

conducting multiple objective assessments. (R. 455-58). Among the tests Dr. Goff
administered was the Victoria Symptom Validity Test, which is used to assess
whether a patient is dissimulating; Dr. Goff concluded Plaintiff did not dissimulate
and that his performance was "straightforward."

(R. 457).

Dr. Goff also

administered the WAIS-IV, RAST, WRAT-IV, and PAI to assess Plaintiff's mental
condition.

Accordingly, the ALJ's conclusion that Dr. Goff relied "amost

exclusively" on Plaintiff's subjective complaints is not supported by substantial
evidence.
Next, the ALJ relied on Dr. Schachter's treatment records, finding they did
not support Dr. Goff's opinion. (R. 23). The ALJ described Dr. Schachter's
records as including Plaintiff's reports of 90-100% improvement in his condition.
(Id.). Contrary to the ALJ's description of Dr. Schachter's records, they do not
include Plaintiff's reports of substantial improvement. The only records reflecting
Plaintiff's reports of substantial improvement come from MedplexMD.

The

Medplex MD records refer to Plaintiff's estimation of his physical improvement
under Suboxone treatment.

Dr. Schachter's records do not include Plaintiff's
20

opinion regarding his improvement under psychiatric care, much less the 90-100%
improvement described by the ALJ. Accordingly, to the extent the ALJ relied on
Dr. Schachter's records as showing Plaintiff's reports of substantial improvement,
the decision to give less weight to Dr. Goff's opinion is not supported by
substantial evidence.

As previously noted, to the extent the ALJ may have

intended to cite the MedplexMD records to show improvement in Plaintiff's mental
condition, the Suboxone treatment records are not probative of this inquiry.
The ALJ also found Dr. Goff's opinion was inconsistent with Dr. Schachter's
treatment records because Dr. Schachter did not note complaints of memory loss.
(R. 23). It is true that most of Dr. Schachter's clinical notes do not specifically
mention memory loss.7 However, Dr. Schachter's records are not particularly
illuminating and are of limited use. The records consist largely of two-page
summaries of Plaintiff's quarterly visits.

These visits appear to be aimed at

monitoring Plaintiff's psychiatric medications.

The records recite Plaintiff's

diagnoses of severe, recurrent major depressive disorder and generalized anxiety
disorder, as well as his psychiatric prescriptions. (E.g. R. 435-444). Dr. Schachter
does not appear to have performed any objective testing of Plaintiff. The ALJ was
correct in observing Dr. Schachter's records are largely silent as to Plaintiff's
complaints of memory loss. But, standing alone, the lack of mention of memory
7

The one exception is a note from January 22, 2014, indicating Plaintiff had "fair" memory and
concentration. (R. 443).
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problems by Dr. Schachter does not provide substantial evidence to discount Dr.
Goff's thoroughly supported opinion regarding Plaintiff's myriad mental
impairments.
3.

Dr. Register's Opinion

As previously noted, Dr. Register rendered her opinion after review of
Plaintiff's medical records; she did not examine Plaintiff. Dr. Register's was the
only opinion the ALJ afforded substantial weight.8 However, the opinions of nonexamining state agency consultants "do not constitute substantial evidence from
which to base a decision." Choquette v. Comm'r of Soc. Sec., 695 F. Supp. 2d
1311, 1330–31 (M.D. Fla. 2010) (citing Spencer ex rel. Spencer v. Heckler, 765
F.2d 1090, 1094 (11th Cir. 1985); see Broughton, 776 F.2d at 962. Accordingly,
the court finds that the ALJ's decision to give substantial weight to Dr. Register's
opinion is not supported by substantial evidence.
B.

Plaintiff's Testimony Regarding Mental Impairments

Subjective testimony of pain and other symptoms may establish the presence
of a disabling impairment if it is supported by medical evidence. See Foote v.
Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). To establish disability based upon

8

The ALJ concluded Dr. Register's opinion was consistent with Plaintiff's report of daily
activities and with clinical notes. (R. 23). The subsequent section's discussion regarding
Plaintiff's report of daily activities also applies to Dr. Register's opinion. As to treatment
records, the ALJ relied largely on Dr. Schachter's clinical notes. To the extent the ALJ relied on
Dr. Schachter's clinical notes, these notes are not particularly probative, as previously discussed.
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pain and other subjective symptoms, including mental impairments, the Eleventh
Circuit's pain standard requires:
(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the alleged
pain [or other symptoms] 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 [or other
symptoms].
Dyer, 395 F.3d at 1210 (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991)); see Hunter v. Comm'r of Soc. Sec., 651 F. App'x 958, 960-61 (11th Cir.
2016). The ALJ is permitted to discredit the claimant's subjective testimony of
pain and other symptoms if he or she articulates explicit and adequate reasons for
doing so. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002).
Here, the ALJ found the Plaintiff's testimony concerning the severity of his
mental impairments was inconsistent with: (1) Plaintiff's report of daily activities;
(2) Plaintiff's reports of significant improvement under Suboxone treatment; and
(3) Dr. Schachter's clinical notes. (R. 22). As previously discussed: (1) Plaintiff's
reports of improvement under Suboxone are not probative of his mental
impairments; and (2) Dr. Schachter's clinical notes are not particularly
illuminating.

That leaves Plaintiff's report of daily activities as the only

unaddressed rationale for rejecting Plaintiff's testimony. Specifically, the ALJ
found Plaintiff's testimony that he could not work was undermined by his ability to

23

groom himself, take his medication, watch television, take walks, read the Bible,
and drive twice weekly. (R. 22).
The ability to watch television, do occasional shopping, or perform other
sporadic activities does not mean Plaintiff is not disabled. See Lewis v. Callahan,
125 F.3d 1436, 1441 (11th Cir.1997) ("participation in everyday activities of short
duration, such as housework or fishing" does not disqualify a claimant from
disability). As another judge sitting in this district has noted:
Statutory disability does not mean that a claimant must be a
quadriplegic or an amputee. Similarly, shopping for the necessities of
life is not a negation of disability and even two sporadic occurrences
such as hunting might indicate merely that the claimant was partially
functional on two days. Disability does not mean that a claimant must
vegetate in a dark room excluded from all forms of human and social
activity. It is well established that sporadic or transitory activity does
not disprove disability. It is the ability to engage in gainful
employment that is the key, not whether a plaintiff can perform minor
household chores or drive short distances.
Stricklin v. Astrue, 493 F. Supp. 2d 1191, 1197 (N.D. Ala. 2007) (alterations
incorporated) (citations omitted); see id ("What counts is the ability to perform as
required on a daily basis in the 'sometimes competitive and stressful' environment
of the working world;" "[e]mployers are concerned with substantial capacity,
psychological stability, and steady attendance . . . .").
Here, to the extent the ALJ relied on Plaintiff's reported daily activities to
discredit his testimony, the decision was not supported by substantial evidence.
Plaintiff's ability to groom himself, watch television, take walks, and occasionally
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drive does not support the conclusion that he has "the ability to perform as required
on a daily basis" or had the "substantial capacity, psychological stability, and
steady attendance" required to sustain employment. See Stricklin, 493 F. Supp. 2d
at 1197. Moreover, the portions of testimony the ALJ relied upon are tempered by
the full range of Plaintiff's testimony, including that he: (1) typically spent three
days each week in his pajamas; (2) had been living with family members since his
2013 psychotic episode; and (3) needed assistance from his daughter—who was
home with Plaintiff during the days—to make simple decision and correct his
behavior.

Accordingly, the ALJ's stated reasons for discrediting Plaintiff's

testimony are not supported by substantial evidence.
IV.

CONCLUSION
Upon review of the administrative record and the briefs of the parties, the

court finds the Commissioner's decision is not supported by substantial evidence
and did not apply the correct legal standards. Accordingly, the Commissioner's
decision is due to be reversed and remanded for further consideration. A separate
order will be entered.
DONE this 29th day of March, 2018.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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