Henry v. Astrue

Filing 18

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
SOUTHERN DIVISION
LASHANE TYNETTA HENRY,

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Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant.

CIVIL ACTION 10-00430-B

ORDER
Plaintiff Lashane Tynetta Henry (“Plaintiff”) brings this
action

seeking

judicial

review

of

a

final

decision

of

the

Commissioner of Social Security denying her claim for period of
disability

and

disability

income

benefits

and

supplemental

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
16,

2011.

Upon

careful

consideration

of

the

administrative

record, the oral arguments, and the memoranda of the parties, it
is ORDERED that the decision of the Commissioner be REVERSED and
REMANDED.

I.

Procedural History
Plaintiff protectively filed her current applications for

disability

income

benefits

and

supplemental

security

income

benefits on August 20, 2007, alleging disability since May 22,
2005 due to “problems with left side of body” and “emotional
problems.”

(Tr.

93-4,

139-43,

154).

Plaintiff’s

earnings

record shows that she has sufficient quarters of coverage to
remain

insured

through

December

31,

2008

(her

“date

insured”), and that she is insured through that date.
161).
2007,

last

(Tr. 14,

Her applications were initially denied on November 19,
and

she

filed

a

request

for

a

hearing

Administrative Law Judge (“ALJ”). (Tr. 83, 88, 95).

before

an

On May 13,

2009, ALJ Linda J. Helm, (“ALJ”) held an administrative hearing
which was attended by Plaintiff, her attorney, and a vocational
expert (“VE”).
issued

an

(Tr. 29-78).

unfavorable

On September 1, 2009, The ALJ

decision.

(Tr.

14-28).

Plaintiff’s

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).

2

II.

Issues on Appeal

A.

Whether the ALJ erred by failing to consider and
address the opinions contained in the interrogatories
completed by Plaintiff’s treating physician?

B.

Whether the ALJ erred in failing to include the
limitations denoted by Plaintiff’s treating physician
in the hypothetical questions posed to the vocational
expert.

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).

She

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
was

unsuccessful

and

was

“fired.”

(Tr.

40).

According

to

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
she

moves

around

too

much

and

when

it

is

cold.

(Tr.

47).

Plaintiff further testified that she has migraine headaches, hot
flashes, and panic and anxiety attacks. (Tr. 48) The record

3

reflects

that

Plaintiff’s

medications

Celebrex1,

include

Tramadol2, and Cyclobenzaprine3. (Tr. 173, 189).
With respect to her daily activities, Plaintiff reported
that

she

is

cleaning,

able

cooking,

to

perform
and

some

shopping,

household
but

chores,

sometimes

such

as

requires

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.

(Tr. 37,

51, 55-7).
IV.

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

This
the

Court’s

decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
Martin v. Sullivan, 894 F.2d

legal standards were applied.
1

Celebrex is a nonsteroidal anti-inflammatory drug (NSAID)
used to treat pain or inflammation. See www.drugs.com. (Last
visited February 7, 2011).
2

Tramadol, is a narcotic-like pain reliever, used to treat
moderate to severe pain.
See www.drugs.com. (Last visited
February 7, 2011).
3

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).

4

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.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

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
less

than

a

preponderance,”

and

consists

of

“such

relevant

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
Commissioner’s decision.

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).
B.

Discussion

An individual who applies for Social Security disability
benefits must prove his disability.
416.912.
substantial

20 C.F.R. §§ 404.1512,

Disability is defined as the “inability to do any
gainful

activity

by

4

reason

of

any

medically

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).

5

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).

The Social

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,

416.920.5

5

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
relevant work.
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
significant
numbers
in
the
national
economy,
given
the
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.
Jones v.
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)).

6

In the case sub judice, the ALJ determined that Plaintiff
met the insured status requirements of the Social Security Act
through

December

substantial

31,

gainful

2008,

and

activity

that

since

she
May

has
22,

not

engaged

2005.

The

in
ALJ

concluded that while Plaintiff has the severe impairment of post
traumatic
joint

stress

pain

with

disorder
left

hand

(“PTSD”),

headaches,

tendonitis,

she

vertigo,

does

not

have

and
an

impairment or combination of impairments that meet or medically
equal

the

criteria

for

any

of

the

impairments

listed

C.F.R. Pt. 404, Subpt. P, App. 1, Regulations No. 4.
17).

in

20

(Tr. 16-

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.)
The

ALJ

concluded

that

Plaintiff

retains

the

residual

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
no

work

around

unprotected

heights

and

dangerous

moving

equipment. The ALJ further found Plaintiff has limited use of
the

left

non-dominant

hand

such

that

she

could

not

do

any

repetitive fine fingering with that hand, and she is restricted
from working in temperature extremes. Relying on the testimony
7

of the VE, the ALJ determined that Plaintiff cannot return to
her

past

relevant

work,

but

is

capable

of

performing

a

significant number of other occupations in the national economy,
including bench assembler, mail clerk, and presser.

Thus, she

is not disabled. (Tr. 26-7).
While
evidence

the

undersigned

contained

in

the

has

examined

record,

all

including

of

the

that

medical

which

was

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,
her

long-time

treating

physician,

and

did

not

include

the

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
opinion.
(Tr. 25).
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).

8

See also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)
(a treating physician’s opinion must be given substantial weight
unless

good

Circuit

to

is

shown

to

concluded

has

physician’s
contrary

cause

“good

cause”

opinion
the

is

not

evidence,

the

contrary).
exists

bolstered
or

when

by

the

The

Eleventh

a

treating

when
the

evidence,

treating

is

physician’s

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
not

accompanied

by

objective

medical

evidence

or

is

wholly

conclusory.”).
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,
1275-76

(11th

Cir.

2003)

(per

curiam),

citing

Oldham

v.

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
9

opinion

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
that

Dr.

However,

Saitz
the

failed

record

to

also

provide

support

contains

Dr.

for

Saitz’s

her

opinion.

interrogatory

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).

In her

decision, the ALJ did not mention let alone discuss the weight
to be accorded Dr. Saitz’s opinions expressed in the June 1,
2009 document.
While

it

is

true

that

an

ALJ

is

not

required

to

“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
curiam),

the

problematic

ALJ’s

because

omission
she

in

stated

this
in

her

case

is

decision

particularly
that

“[n]o

treating or examining source of record has offered his or her
opinion regarding specific functional limitations as the result
10

of

specific

statement

medically

is

determinable

incorrect

because

Dr.

impairments.”
Saitz

The

specifically

ALJ’s
listed

functional limitations that she opined resulted from Plaintiff’s
mental

impairments.

This

is

significant

because

the

record

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.
Saitz,

who

is

a

medical

doctor

at

the

facility,

involved in her treatment. (Tr. 225-251, 330-53).
course
bipolar

of

her

treatment,

disorder

Plaintiff’s

and

history

of

Plaintiff

PTSD6.
mental

(Tr.

has

been

225-229,

health

has

Over the

diagnosed
242-243).

treatment,

her

been

with
Given

treating

doctor’s opinions regarding the functional limitations flowing
from her mental impairments were probative and should have been
discussed by the ALJ.

6

The record also reflects that Plaintiff was evaluated by D.
Kent Welsh, Ph.D. on April 13, 2006, at the request of the
Agency.
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)

11

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
sufficiently

explained

the

weight

he

has

given

to

obviously

probative exhibits, to say that his decision is supported by
substantial

evidence

approaches

an

abdication

of

the

court's

duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.” (quoting Cowart, 662 F.2d
at

735

(internal

altered)).
(9th

quotation

marks

omitted

and

punctuation

See also Carter v. Astrue, 308 Fed. Appx. 75, 76

Cir.

2009)

(reversing

and

remanding

district

court's

affirmation of ALJ decision denying benefits and stating that
“[w]hen the probative evidence takes the form of a treating
physician's

contradicted

medical

findings,

an

ALJ

must

articulate specific and legitimate reasons for the rejection. In
light

of

Malabed's

these

standards,

findings

was

the

ALJ's

failure

to

erroneous”)(internal

mention

Dr.

citations

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
12

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
remanded

to

the

Commissioner

so

that

the

ALJ

may

properly

consider the opinions expressed in Dr. Saitz’s response dated
June 1, 2009, and explain the weight, if any, to be accorded
those opinions8.
V.

Conclusion
For the reasons set forth, and upon careful consideration

of

the

administrative

record,

the

oral

arguments,

and

the

memoranda of the parties, it is ORDERED that the decision of the

7

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
omitted).
8

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.

13

Commissioner of Social Security, denying Plaintiff’s claim for
period

of

disability

and

disability

income

benefits

and

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

14