Vasser v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/30/2013. (JLC)

FILED
2013 Sep-30 AM 11:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
VICKIE LYNN LAMB VASSER,
Plaintiff,
v.
CAROLYN COLVIN,
ACTING COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION
Defendant.

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) Case No.: 7:12-CV-1757-VEH
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MEMORANDUM OPINION1
Plaintiff Vickie Lynn Lamb Vasser (“Ms. Vasser”) 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

1

Carolyn W. Colvin was named the Acting Commissioner on February 14, 2013. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”) (last accessed on September
16, 2013). Under 42 U.S.C. § 405(g), “[a]ny action instituted in accordance with this subsection
shall survive notwithstanding any change in the person occupying the office of Commissioner of
Social Security or any vacancy in such office.” Accordingly, pursuant to 42 U.S.C. § 405(g) and
Rule 25(d) of the Federal Rules of Civil Procedure, the court has substituted Carolyn W. Colvin
for Michael Astrue in the case caption above and HEREBY DIRECTS the clerk to do the same
party substitution on CM/ECF.

(“DIB”) and Supplemental Security Income (“SSI”).2 Ms. Vasser timely pursued and
exhausted her administrative remedies available before the Commissioner. The case
is thus ripe for review under 42 U.S.C. § 405(g).3
FACTUAL AND PROCEDURAL HISTORY
Ms. Vasser was 46 years old at the time of her hearing before the
Administrative Law Judge (“ALJ”). See Tr. 137. She has completed an 11th grade
education. Tr. 161. Her past work experience includes employment as a laundry
worker, cook, daycare operator, and restaurant manager. Tr. 177. She claims she
became disabled on May 15, 2007, due to diabetes, back and leg pain, insomnia,
bipolar disorder, and depression. Tr. 60-62, 66-71, 156. Her last period of work ended
on that same date. Tr. 156.
On November 4, 2008, Ms. Vasser protectively filed a Title II application for
a period of disability and DIB. Tr. 39. She also protectively filed a Title XVI
application for SSI on that date. Id. In both applications, she alleged her disability

2

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.
3

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.
2

began on May 15, 2007.4 On January 28, 2009, the Commissioner initially denied
these claims. Id. Ms. Vasser timely filed a written request for a hearing on April 1,
2009. Id. The ALJ conducted a hearing on the matter on May 14, 2010. Id. On June
21, 2010, he issued his opinion concluding Ms. Vasser was not disabled and denying
her benefits. Tr. 49. She timely petitioned the Appeals Council to review the decision
on August 25, 2010. Tr. 14. On April 2, 2012, the Appeals Council issued a denial
of review on her claim. Tr. 1.
Ms. Vasser filed a Complaint with this court on May 2, 2012, seeking review
of the Commissioner’s determination. Doc. 1. The Commissioner answered on
August 13, 2012. Doc. 5. Ms. Vasser filed a supporting brief (Doc. 8) on September
27, 2012, and the Commissioner responded with her own (Doc. 10) on November 26,
2012. With the parties having fully briefed the matter, the court has carefully
considered the record and reverses the decision of the Commissioner.
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.

4

Ms. Vasser amended her alleged onset date of disability to July 1, 2009, via a letter from
her attorney dated May 20, 2010. Tr. 136.
3

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
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

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and the Regulations promulgated thereunder.5 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
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

5

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.
5

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

Ms. Vasser met the insured status requirements of the Social Security
Act through December 31, 2012.

2.

She had not engaged in substantial gainful activity since July 1, 2009,
the alleged disability onset date.

3.

She had the following severe impairments: diabetes mellitus; lumbar
degenerative disc disease; and bipolar disorder. She also has the nonsevere impairments of anxiety disorder, high blood pressure (which is
controlled through medication and obesity.

4.

She did not have an impairment or combination of impairments that met
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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 light work
as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) excep the mental
RFC set forth is Exhibit 4F with the following modifications and
additional limitations: she could lift 20 pounds occasionally and 10
pounds frequently; she could stand and walk six hours out of an eighthour workday; she could sit for six hours out of an eight-hour workday;
add a sit/stand option (ability to alternative between sitting and standing
as need be, but still complete job); unlimited push/pull; she could never
climb ladders, ropes, or scaffolds; she could frequently perform
remaining postural activities; no manipulative, visual, or communicative
limitations; environmentally she must avoid concentrated exposure to
dangerous moving machinery, unprotected heights, and bodies of water;
she must avoid concentrated exposure to extreme cold; and she
experienced mild to moderate pain.

6.

She was unable to perform any past relevant work.

7.

She was born on February 12, 1964, and was 45 years old, which is
defined as a younger individual age 18-49, on the alleged disability date.

8.

She had at least a high school 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. Vasser had not been under a disability, as defined in the Social
Security Act, from July 1, 2009, through the date of this decision.
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Tr. 41-49.
ANALYSIS
I.

Introduction
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
Cir. 1980)).6 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Ms. Vasser urges this court to reverse the Commissioner’s decision to deny her
benefits on four grounds: (1) the ALJ’s improperly considered the opinion of her
treating physician; (2) the ALJ inadequately explained the inconsistency between the
vocational expert’s testimony at the hearing and the Dictionary of Occupational
Titles; (3) the ALJ failed to properly apply the pain standard; and (4) the ALJ
improperly assessed her mental RFC. Doc. 8 at 5-6. The court agrees with Ms.

6

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
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Vasser’s first objection and finds that it merits remand
II.

The ALJ reversibly erred in his treatment of the medical opinion evidence
concerning Ms. Vasser’s psychological limitations.
Ms. Vasser first argues that the ALJ erred in his treatment of the medical

opinion evidence. She is correct. The ALJ dismissed the opinion of Ms. Vasser’s
treating psychiatrist for generic reasons upon which he did not sufficiently elaborate.
Even were this decision somehow justified, the ALJ aggravated his error by relying
exclusively on the contradictory opinion of a non-examining physician in formulating
Ms. Vasser’s mental RFC. Considered together, these actions constitute legal error
requiring remand.

A.

The ALJ did not adequately justify his decision to discredit Ms.
Vasser’s treating physician’s opinion.

The opinion of a treating physician “must be given substantial or considerable
weight unless good cause is shown to the contrary.” Phillips v. Barnhard, 357 F.3d
1232, 1240 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997)) (internal quotation marks omitted). “Good cause” exists when
•

the treating physician’s opinion was not bolstered by the evidence,

•

the evidence supported a contrary finding; or

•

the treating physician’s opinion was conclusory or inconsistent with his

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or her own medical records.
Id. at 1241 (citation omitted). The ALJ must clearly articulate his or her reasons for
disregarding a treating physician’s opinion, and the failure to do so is reversible error.
Lewis, 125 F.3d at 1440 (citation omitted); see also 20 C.F.R. § 404.1527(c)(2) (“We
will always give good reasons in our notice of determination or decision for the
weight we give your treating source’s opinion.”). However, when the ALJ adequately
states specific reasons for doing so, and those reasons are supported by substantial
evidence, there is no such error. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir.
2005) (per curiam).
In this case, Dr. Sayed Aftab treated Ms. Vasser periodically between 2007 and
2010 at Indian Rivers Mental Health Center. Tr. 223-27, 265-91, 392-410. In August
2008, he diagnosed her with bipolar and anxiety disorder. Tr. 223. Relevant here is
a form he filled out on July 10, 2009, rating various aspects of her functioning ability.
Tr. 265-67. In that form, he opined that she had only a mild degree of deterioration
in her personal habits and in her ability to understand, remember, and carry out simple
instructions. He then estimated that she had a “moderate” degree of impairment in:
•

her ability to interact appropriately with the general public;

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her ability to ask simple questions or request assistance;

•

her ability to get along with co-workers or peers;
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•

her constriction of interests;

•

her ability to make simple work-related decisions; and

•

her ability to respond appropriately to supervision.

Tr. 265-66. He stated she had a “marked” degree of impairment in:
•

her ability to understand, remember, and carry out complex instructions;

•

her ability to understand, remember, and carry out repetitive tasks;

•

her ability to perform activities within a schedule, maintain regular
attendance and be punctual within customary tolerances;

•

her ability to sustain a routine without special supervision;

•

her ability to respond appropriately to changes in the work setting; and

•

her ability to be aware of normal hazards and take appropriate
precautions.

Tr. 266-67. He finally opined that she had “extreme” impairment in (1) her ability to
maintain attention and concentration for extended periods; and (2) her ability “to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods.” Tr. 266.
In his opinion, the ALJ gave “little weight” to this opinion. He noted that Dr.
Aftab had found Ms. Vasser markedly or extremely impaired in many of the relevant
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areas. He then dismissed it as “inconsistent with the entire medical record and and the
finding of the undersigned.” He does not specify after this statement precisely why
and how Dr. Aftab’s opinion was inconsistent with the record. He simply moved onto
his analysis of the State Agency medical physician’s physical assessment of Ms.
Vasser.7
This justification is reversibly vague. When confronted with a medical opinion
on a claimant’s functional limitations, an ALJ must state both the weight given to
these opinions and the reasons therefor. Rosario v. Comm'r of Soc. Sec., 877 F. Supp.
2d 1254, 1266 (M.D. Fla. 2012) (citing Winschel v. Comm'r of Soc. Sec., 631 F.3d
1176, 1179 (11th Cir. 2011)). “In the absence of such a statement, it is impossible for
a reviewing court to determine whether the ultimate decision on the merits of the
claim is rational and supported by substantial evidence.” Cowart v. Schweiker, 662
F.2d 731, 735 (11th Cir.1981). Here, the ALJ gave Dr. Aftab’s opinion a weight
designation, but he failed to explain why this was so with the required particularity.

7

Later in his opinion, the ALJ references the sporadic nature of the treating relationship
between Dr. Aftab and Ms. Vasser; the evidence showed that she had missed many appointments
with him over the years. The ALJ also emphasized elsewhere that Ms. Vasser had shown notable
(self-reported) improvement when she consistently took her medication. The court is unsure
whether this qualifies as the purported justification (and the ALJ should make this clear on
remand). If so, it ignores that Dr. Aftab encouraged Ms. Vasser to apply for disability – even
after he documented some of these “improvements” – because it would be “difficult for her to
sustain herself at this point.” It also ignores that he filled out the functional limitations form
referenced above after she had evinced improvements from her medications.
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The court must reverse and remand his decision for that reason. See Poplardo v.
Astrue, No. 3:06–cv–1101–J–MCR, 2008 WL 68593 at *11 (M.D. Fla. Jan. 4, 2008)
(failure to specifically articulate evidence contrary to treating doctor's opinion
requires remand); Paltan v. Comm'r of Social Sec., No. 6:07–cv–932–Orl–19DAB,
2008 WL 1848342 at *5 (M.D. Fla. Apr. 22, 2008) (“The ALJ's failure to explain
how [the treating doctor's] opinion was ‘inconsistent with the medical evidence’
renders review impossible and remand is required.”).

B.

The ALJ also erred by relying only on the contradictory opinion of a
non-examining physician.

Even if the ALJ had “good cause” to discredit Dr. Aftab’s opinion, he certainly
erred by instead crediting the contradictory opinion issued by Dr. Lee Blackmon,
M.D., a State Agency physician who did not examine Ms. Vasser. On January 27,
2009, Dr. Balckmon filled out a Psychiatric Review Technique Form (“PRTF”) and
a Mental Residual Functional Capacity Assessment (“mental RFC”) concerning Ms.
Vasser. As the ALJ notes, Dr. Blackmon concluded that Ms. Vasser “had not more
than a moderate degree of limitation in any area due to mental impairments.” This
assessment pointedly diverged from Dr. Aftab’s, and yet the ALJ afforded it “great
weight” because it was “consistent with the medical record and the findings of the
undersigned.” In fact, the ALJ rotely incorporated Dr. Blackmon’s mental RFC
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assessment into his own RFC determination and into the hypothetical question he
posed to the vocational expert at the hearing. This exclusive reliance on the divergent
opinion of a non-examining physician also constituted reversible error. Lamb v.
Bowen, 847 F.2d at 703 (“The opinions or findings of a non-examining physician are
entitled to little weight when they contradict the opinions or findings of a treating or
examining physician.”).
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
and remanded by separate order.
DONE and ORDERED this the 30th day of September, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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