Henry v. Astrue
Order ent. that the decision of the Commissioner of Social Security, denying Plaintiffs claim for period of disability and disability income benefits and for supplemental security income be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 9/30/2011. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LASHANE TYNETTA HENRY,
MICHAEL J. ASTRUE,
CIVIL ACTION 10-00430-B
Plaintiff Lashane Tynetta Henry (“Plaintiff”) brings this
Commissioner of Social Security denying her claim for period of
security income under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401 et seq., and 1381 et seq.
On February 16,
2011, the parties consented to have the undersigned conduct any
and all proceedings in this case. (Doc. 16). Thus, this case was
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73. (Doc. 17). Oral argument was held on February
record, the oral arguments, and the memoranda of the parties, it
is ORDERED that the decision of the Commissioner be REVERSED and
Plaintiff protectively filed her current applications for
benefits on August 20, 2007, alleging disability since May 22,
2005 due to “problems with left side of body” and “emotional
record shows that she has sufficient quarters of coverage to
insured”), and that she is insured through that date.
Her applications were initially denied on November 19,
Administrative Law Judge (“ALJ”). (Tr. 83, 88, 95).
On May 13,
2009, ALJ Linda J. Helm, (“ALJ”) held an administrative hearing
which was attended by Plaintiff, her attorney, and a vocational
On September 1, 2009, The ALJ
request for review was denied by the Appeals Counsel (“AC”) on
June 10, 2010. (Tr. 1-3).
The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C. §
405(g) and 1383(c)(3).
Issues on Appeal
Whether the ALJ erred by failing to consider and
address the opinions contained in the interrogatories
completed by Plaintiff’s treating physician?
Whether the ALJ erred in failing to include the
limitations denoted by Plaintiff’s treating physician
in the hypothetical questions posed to the vocational
III. Background Facts
Plaintiff was born on June 23, 1971, and was 37 years old
at the time of the administrative hearing (Tr. 36, 178).
has a 10th grade education and past relevant work (hereinafter
“PRW”) as a private sitter, a shipyard laborer (“firewatcher”),
motel housekeeper, and fast food worker. (Tr. 41, 44-5, 155,
175, 213, 227). Plaintiff testified that she has been unable to
work since May 2005 after her husband attacked her with a hammer
and knife. (Tr. 39, 48). She reported that she attempted to
return to her former work in the shipyard after the assault but
Plaintiff, she cannot presently work due to sharp, stabbing pain
on her left side and because her medicine makes her drowsy. (Tr.
at 46). Plaintiff also testified that she experiences pain when
Plaintiff further testified that she has migraine headaches, hot
flashes, and panic and anxiety attacks. (Tr. 48) The record
Tramadol2, and Cyclobenzaprine3. (Tr. 173, 189).
With respect to her daily activities, Plaintiff reported
assistance from her oldest son or she has to stop and take a
break. She also cares for her four children, ages 18, 17, 14 and
12; drives; watches a lot of television; and attends church and
parent-teacher conferences at her children’s school.
Standard of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
Martin v. Sullivan, 894 F.2d
legal standards were applied.
Celebrex is a nonsteroidal anti-inflammatory drug (NSAID)
used to treat pain or inflammation. See www.drugs.com. (Last
visited February 7, 2011).
Tramadol, is a narcotic-like pain reliever, used to treat
moderate to severe pain.
See www.drugs.com. (Last visited
February 7, 2011).
Cyclobenzaprine, is a muscle relaxant which works by
blocking nerve impulses or pain sensations that are sent to the
brain. See www.drugs.com. (Last visited February 7, 2011).
1520, 1529 (11th Cir. 1990).4
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
affirmed if they are based upon substantial evidence.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that
substantial evidence is defined as “more than a scintilla but
evidence as a reasonable person would accept as adequate to
support a conclusion”).
In determining whether substantial
evidence exists, a court must view the record as a whole, taking
into account evidence favorable as well as unfavorable to the
Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. Lexis 10163
(S.D. Ala. June 14, 1999).
An individual who applies for Social Security disability
benefits must prove his disability.
20 C.F.R. §§ 404.1512,
Disability is defined as the “inability to do any
This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
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 months.”
42 U.S.C. §§ 423(d)(1)(A), 404.1505(a), 416.905(a).
Security regulations provide a five-step sequential evaluation
process which is be utilized by the ALJ in determining if a
claimant has proven his disability.
20 C.F.R. §§ 404.1520,
The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments. If, at the third step,
the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; (4) the claimant’s
age, education and work history. Id. at 1005. Once a claimant
meets this burden, it becomes the Commissioner’s burden to prove
at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
If the Commissioner can demonstrate that there are such jobs the
claimant can perform, the claimant must prove inability to
perform those jobs in order to be found disabled.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
In the case sub judice, the ALJ determined that Plaintiff
met the insured status requirements of the Social Security Act
concluded that while Plaintiff has the severe impairment of post
impairment or combination of impairments that meet or medically
C.F.R. Pt. 404, Subpt. P, App. 1, Regulations No. 4.
The ALJ found that there was no diagnostic evidence of an
underlying impairment that could reasonably be expected to cause
Plaintiff’s alleged symptoms, although there was some clinical
evidence of back pain, tenderness on palpation of the knee, knee
joint pain, and “pain localized to one or more joints.” (Id.)
functional capacity (“RFC”) to perform light work except she is
restricted to no work in crowds; no more than occasional contact
with the public; no more than one or two step instructions; and
equipment. The ALJ further found Plaintiff has limited use of
repetitive fine fingering with that hand, and she is restricted
from working in temperature extremes. Relying on the testimony
of the VE, the ALJ determined that Plaintiff cannot return to
significant number of other occupations in the national economy,
including bench assembler, mail clerk, and presser.
is not disabled. (Tr. 26-7).
generated before Plaintiff’s alleged onset date of May 22, 2005,
only those records relevant to the issues before the Court are
highlighted. The gist of Plaintiff’s appeal is that the ALJ did
not consider the interrogatory responses of Dr. Marianne Saitz,
limitations noted by Dr. Saitz in the hypotheticals to the VE.
In the decision, the ALJ made the following brief statement in
relation to Dr. Saitz:
As for the opinion evidence, the July
2008 one-line statement by Dr. Marianne
Saitz regarding the claimant’s ability to
work “at this time” is rejected because Dr.
Saitz failed to provide support for her
It is well settled in this Circuit that “[t]he ALJ must
generally give the opinion of a treating physician ‘substantial
or considerable weight’ absent a showing of good cause not to do
so.” Newton v. Astrue, 297 Fed. Appx. 880, 883 (11th Cir. 2008).
See also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)
(a treating physician’s opinion must be given substantial weight
opinion is inconsistent with his or her own medical records.
Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004);
see also Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991)
(“The treating physician's report may be discounted when it is
If an ALJ elects to disregard the medical opinion of a
treating physician, then he or she must clearly articulate the
reasons for so doing. Id. The ALJ may also devalue the opinion
of a treating physician where the opinion is contradicted by
objective medical evidence. Ellison v. Barnhart, 355 F.3d 1272,
Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (holding that
“the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion”) (citation omitted);
Kennedy v. Astrue, 2010 U.S. Dist. LEXIS 39492, *22-23 (S.D.
Ala. Apr. 21, 2010) (“[I]t is the ALJ's duty, as finder of fact,
to choose between conflicting evidence[,] and he may reject the
of any physician when the evidence supports a finding
to the contrary.”).
As noted supra, the ALJ declined to assign weight to Dr.
Saitz’s one-line statement dated July 29, 2008 on the ground
responses dated June 1, 2009 in which she opines that due to
Plaintiff’s inability to maintain attention and concentration,
difficulty/inability to focus on tasks, and inability to adjust
to changes in work settings, Plaintiff is not able to perform
sustained work activity, and her mental impairments would cause
her to be absent from work 3 or more days. (Tr. 359).
decision, the ALJ did not mention let alone discuss the weight
to be accorded Dr. Saitz’s opinions expressed in the June 1,
“specifically refer to every piece of evidence” so long as the
decision is sufficient to allow the court to conclude that the
ALJ considered the claimant’s medical condition as a whole, see
Dyer v. Barnhart, 395 F. 3d 1206, 1210 (llth Cir. 2005)(per
treating or examining source of record has offered his or her
opinion regarding specific functional limitations as the result
functional limitations that she opined resulted from Plaintiff’s
reflects that Plaintiff has been treated at Altapointe Health
Systems, formerly Mobile County Mental health, for mental health
issues in 2003, 2005, 2006, 2007, 2008 and 2009, and that Dr.
involved in her treatment. (Tr. 225-251, 330-53).
doctor’s opinions regarding the functional limitations flowing
from her mental impairments were probative and should have been
discussed by the ALJ.
The record also reflects that Plaintiff was evaluated by D.
Kent Welsh, Ph.D. on April 13, 2006, at the request of the
Dr. Welsh opined that Plaintiffs symptoms were
consistent with PTSD, and that “[i]t is expected that with
treatment she should see some improvement in her symptoms over
the next six to twelve months.” (Tr. 213-14). Plaintiff was also
examined by clinical psychologist John Davis, Ph.D. on October
11, 2007 at the request of the Agency.
Dr. Davis diagnosed
Plaintiff with bipolar disorder and PTSD (by history). Although
he opined that it was reasonable to expect Plaintiff to have a
favorable response to treatment within the next six to twelve
months, and that she has the ability do simple, routine tasks,
he listed Plaintiff’s prognosis as “fair”. (Tr. 280-85)
In order to fulfill the duty as the reviewing court to
determine whether the ALJ’s decision to deny Plaintiff benefits
is supported by substantial evidence, it is axiomatic that the
ALJ’s decision must make it clear that she has analyzed all
evidence in the record. See Luckey v. Astrue, 331 Fed. Appx.
634, 639 (11th Cir. 2009) (“We have made it abundantly clear
that unless the Commissioner has analyzed all evidence and has
probative exhibits, to say that his decision is supported by
duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.” (quoting Cowart, 662 F.2d
See also Carter v. Astrue, 308 Fed. Appx. 75, 76
affirmation of ALJ decision denying benefits and stating that
“[w]hen the probative evidence takes the form of a treating
articulate specific and legitimate reasons for the rejection. In
omitted)(citing Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1164 (9th Cir. 2008)). Based upon the record before the
Court, the undersigned cannot determine whether the ALJ simply
overlooked the opinions expressed in Dr. Saitz’s June 1, 2009
response, or whether she considered them, and determined that
they were not entitled to great weight.7
Thus, the undersigned
is simply unable to assess whether the ALJ conducted a proper
analysis. Accordingly, this matter is due to be reversed and
consider the opinions expressed in Dr. Saitz’s response dated
June 1, 2009, and explain the weight, if any, to be accorded
For the reasons set forth, and upon careful consideration
memoranda of the parties, it is ORDERED that the decision of the
Whether or not the ALJ would have been able to articulate
an adequate reason for rejecting the opinions contained in Dr.
Saitz’s June 1, 2009 response is of no moment. The Court is
unable to review an analysis that is not apparent from the
record. See McCloud v. Barnhart, 166 Fed. Appx. 410, 418-19
(11th Cir. 2006)(“The ALJ may reject the opinion of any
physician when the evidence supports a contrary conclusion. The
ALJ is required, however, to state with particularity the weight
he gives to different medical opinions and the reasons why.
Here, the ALJ neither explained the weight that he gave to
Newman’s report nor why he discredited Newman's findings
regarding McCloud's ability to engage in prolonged work. On
remand, the ALJ must make these determinations.”)(citations
In light of the fact that this case is being remanded, it
is not necessary to discuss Plaintiff’s claim that the ALJ erred
because she did not present a proper hypothetical to the VE.
Commissioner of Social Security, denying Plaintiff’s claim for
supplemental security income be REVERSED and REMANDED.
The attached sheet contains important information regarding
objections to this Report and Recommendation.
DONE this 30th day of September, 2011.
/s/ SONJA F. BIVINS________
UNITED STATES MAGISTRATE JUDGE
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