Romano v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 3/28/2017. (KAM, )

FILED
2017 Mar-28 AM 11:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
TINA ROMANO,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration,
Defendant.

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7:16-cv-00295-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Tina L. Romano, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
her applications for Supplemental Security Income (“SSI”), a period of disability,
and Disability Insurance Benefits (“DIB”). Ms. Romano 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).
Ms. Romano was forty-seven years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has a twelfth grade education. (Tr. at 26.)
Her past work experiences include employment as a medical secretary. (Tr. at 464-

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65.) Ms. Romano claims that she became disabled on November 1, 2008, due to
depression and anxiety. (Tr. at 148, 172.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”).

See id. §§

404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
decision depends on the medical evidence contained in the record. See Hart v.

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Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work.

See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

If the plaintiff’s

impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.

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The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Ms. Romano
met the insured status requirements of the Social Security Act through December
31, 2013. (Tr. at 18.) He further determined that Ms. Romano has not engaged in
SGA since the alleged onset of her disability. (Id.) According to the ALJ, Plaintiff’s
anxiety; depression/dysthymia; borderline personality disorder; bipolar disorder;
borderline intellectual functioning (provisional); pain disorder; and attention
deficit hyperactivity disorder (“ADHD”) are considered “severe” based on the
requirements set forth in the regulations. (Id.) However, he found 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 19.) The ALJ did not find Ms.
Romano’s allegations to be totally credible, and he determined that she has the
RFC to perform a full range of work at all exertional levels but with the following

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nonexertional limitations: she is limited to no more than the understanding,
remembering, and carrying out of simple instructions. That activity can be
sustained for two hours and with normal breaks, to include mid-morning, lunch and
mid-afternoon, sustained over an eight-hour day. The work should have no more
than infrequent changes in the work setting and occasional decision making. Her
interaction with the public and co-workers should be limited to no more than
occasional, with no tandem tasks required of the job. (Tr. at 20.)
According to the ALJ, Ms. Romano is unable to perform any of her past
relevant work, she is a “younger individual age 18-49,” and she has a high school
education and is able to communicate in English, as those terms are defined by the
regulations.

(Tr. at 26.) Because Plaintiff cannot perform the full range of

exertional work at all levels, the ALJ enlisted a vocational expert (“VE”) and used
Medical-Vocation Rule 204.00 as a guideline for finding that there are a significant
number of jobs in the national economy that she is capable of performing, such as
production assembler, hand packer, and small products assembler. (Tr. at 27.)
The ALJ concluded his findings by stating that Plaintiff was “not under a
‘disability,’ as defined in the Social Security Act, from November 1, 2008, through
the date of this decision.” (Id.)

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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 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)). This 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, this 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 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 this Court finds that the

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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)).
However, 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
One of Ms. Romano’s arguments in support of reversal and remand is that

the ALJ failed to state the weight he gave to her treating physician’s opinion. 1 The
Court agrees that this case must be reversed and remanded on that ground.
Included in the record are treatment notes from Dr. Deina Nemiary, a
psychiatrist Plaintiff saw at Alabama Psychiatric Services, P.C. on four separate
occasions between April and October 2014. (Tr. at 413-21.) At the first visit, Dr.
Nemiary noted that although Plaintiff was well-groomed, she was “very confused,
Plaintiff also argued that the ALJ erred in discounting her subjective complaints of pain,
assigning less weight to the opinion of her one-time consultative examiner than to the state
agency medical expert, and relying upon Global Assessment of Functioning (“GAF”) scores
assigned by her physicians.
1

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unable to remember dates from the past and what medications she was on.” (Tr. at
413.) Plaintiff reported several suicide attempts through overdoses, hallucinations,
cutting herself to relieve stress, and that three months prior she had “contemplated
stabbing herself.” (Id.) The doctor opined that Plaintiff “does seem to be
paranoid,” noting that she reported that her coworkers at her last job conspired to
kill her and that her husband wanted to kill her. (Id.) She diagnosed Plaintiff with
bipolar disorder, severe with psychotic features, and sedative abuse. (Id.) Despite
that diagnosis, Dr. Nemiary assigned Plaintiff a GAF score of 65 to 70, which
indicates relatively mild symptoms, e.g., depressed mood and insomnia. (Tr. at
414.) Within the physician’s summary on the first treatment note, Dr. Nemiary
referred to Plaintiff as a “47 year old white female, who presents with significant
depressive symptoms and hypomanic symptoms. She also is very paranoid, and had
one instance of seeing a man in her closet which could be a visual hallucination. She
is on high doses of Valium and Klonopin together with Tramadol and Lortab and
that might be adding to her confusion.” (Id.) She also noted that Plaintiff had poor
judgment and memory and that her attention and concentration were distractible.
(Id.) The doctor tapered Plaintiff’s dosage of Klonopin so that she could
discontinue it. (Id.) She kept her on Prozac, Lamictal, and started her on Seroquel.
(Id.) At later visits Plaintiff reported to Dr. Nemiary that she was still experiencing

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depression and hypomanic symptoms, that she was still “not well,” and that she
was having tremors. (Tr. at 416-18.) The doctor adjusted her medications and
referred her to therapy. (Id.)
An ALJ must consider all medical opinions in a claimant’s case record,
together with other relevant evidence. 20 C.F.R. § 404.1527(b). “[T]he ALJ must
state with particularity the weight given to different medical opinions and the
reasons therefor.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir.
2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). 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. Id. “Therefore, when the ALJ fails to state with at least some measure of
clarity the grounds for his decision, we will decline to affirm simply because some
rationale might have supported the ALJ’s conclusion.” Id. (internal quotation
marks omitted). In Winschel, the Eleventh Circuit reversed after determining that it
was “possible that the ALJ considered and rejected” two medical opinions because
“without clearly articulated grounds for such a rejection, we cannot determine
whether the ALJ’s conclusions were rational and supported by substantial
evidence.” Id.; see also McClurkin v. Social Sec. Admin., 625 F. App’x 960, 962-63

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(11th Cir. 2015) (unpublished) (failing to state weight given to non-examining
physician’s opinion constitutes reversible error).
Based on the forgoing, an ALJ may not ignore or even implicitly reject any
medical opinion, but is instead required to state with particularity the weight given
to it and the reasons therefor. In this case, although the ALJ acknowledged and
discussed to some extent Dr. Nemiary’s treatment of Plaintiff and her diagnosis (tr.
at 23-24), he never stated what weight he assigned to Dr. Nemiary’s opinion. 2 The
Court could guess as to what weight the ALJ’s findings indicate, but the fact
remains that the ALJ failed to explicitly assign a weight to Dr. Nemiary’s opinion as
required by the law of this circuit. Without such an explicit statement of weight,
this Court does not have a basis for reviewing whether the ALJ’s decision was
supported by substantial evidence. Thus, the ALJ failed to apply the correct legal
standard to the opinion of Dr. Nemiary, which is not harmless and constitutes
reversible error. See Winschel, 631 F.3d at 1179; McClurkin, 625 F. App’x at 963.
Accordingly, the case must be reversed and remanded for further proceedings. See,
e.g., Williams v. Comm’r of Soc. Sec., 2015 WL 5307732 (M.D. Fla. Sept. 10, 2015)
Dr. Nemiary’s treatment notes and diagnosis constitutes an “opinion” under the
regulations and Eleventh Circuit case law. See Winschel, 631 F.3d at 1178–79 (holding that
whenever a physician offers a statement reflecting judgments about the nature and severity of a
claimant’s impairments, including symptoms, diagnosis, and prognosis; what the claimant can
still do despite his or her impairments, and the claimant’s physical and mental restrictions, the
statement constitutes an opinion, which requires the ALJ to state with particularity the weight
given to it and the reasons therefor) (citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).
2

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(reversing and remanding because ALJ’s failure to state weight given to doctor’s
opinion reversible error); Maholmes v. Comm’r of Soc. Sec., 2016 WL 5462726 (N.D.
Ala. Sept. 29, 2016) (same); Hudson v. Colvin, 2016 WL 3570379 (N.D. Ala. June
30, 2016) (same).
The Court also notes that Commissioner’s assertion that Plaintiff “does not
. . . identify any particular treating physician or cite to any medical opinion that the
ALJ purportedly failed to consider” (Commissioner’s Brief at 8) is not well taken.
While Plaintiff did not mention Dr. Nemiary by name in the argument section of
her brief, she discussed Dr. Nemiary’s treatment, findings, and diagnosis in the
“Statement of Facts” section. (Plaintiff’s brief at 6.) Moreover, subsequently in
the “Argument” section, Plaintiff clearly claimed: “[t]he ALJ does not mention
the statements contained in the records of the claimant’s treating physician.” (Id.
at 20.) Plaintiff then quoted the Eleventh Circuit’s Winschel opinion at length, as
discussed above, and concluded with the statement: “In the instant case the ALJ
failed to give controlling weight to the treating physicians and therefore, was in
error.” (Id. at 21-22.) The argument is properly before the Court.

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On remand, the ALJ must state with particularity the weight given to Dr.
Nemiary’s opinion, and to the extent he did not do so, the weight given to each
treating and non-treating physician’s opinion. 3
IV.

Conclusion
For the reasons set forth herein, and upon careful consideration of the

administrative record and briefs of the parties, the decision of the Commissioner of
Social Security denying Plaintiff’s claim for a period of disability, DIB, and SSI is
REVERSED and REMANDED for further administrative proceedings consistent
with this opinion. A separate closing order will be entered.
DONE and ORDERED on March 28, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

The ALJ’s error, discussed above, is dispositive of this case. Therefore, it is unnecessary
to address Plaintiff’s remaining arguments. See note 1, supra. See also Diorio v. Heckler, 721 F.2d
726, 729 (11th Cir. 1983) (on remand the ALJ must reassess the entire record); McClurkin, 625 F.
App’x at 963 n.3 (no need to analyze other issues when case must be reversed due to other
dispositive errors).
3

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