Tunink v. Astrue
MEMORANDUM OPINION AND ORDER ent. that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this decision; Signed by Magistrate Judge William E. Cassady on 12/27/2011. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ANGELA R. TUNINK,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying her claim for a period
of disability and disability insurance benefits. The parties have consented to the exercise
of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all
proceedings in this Court. (Docs. 16 & 18 (“In accordance with provisions of 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States
magistrate judge conduct any and all proceedings in this case, . . . order the entry of a
final judgment, and conduct all post-judgment proceedings.”).) Upon consideration of
the administrative record, plaintiff’s brief, the Commissioner’s brief, and the arguments
of the parties at the December 16, 2011 hearing before the Magistrate Judge, it is
determined that the Commissioner’s decision denying plaintiff benefits should be
reversed and remanded for further proceedings not inconsistent with this decision. 1
Plaintiff alleges disability due to bipolar disorder, depression, and anxiety. The
Administrative Law Judge (ALJ) made the following relevant findings:
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2012.
The claimant has not engaged in substantial gainful activity since
September 18, 2008, the alleged onset date (20 CFR 404.1571 et seq.).
The claimant has the following severe impairments: bipolar
disorder, depression and anxiety (20 CFR 404.1520(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
The claimant’s mental impairments, considered singly and in
combination, do not meet or medically equal the criteria of listings 12.04
and 12.06. In making this finding, the undersigned has considered
whether the “paragraph B” criteria are satisfied. To satisfy the “paragraph
B” criteria, the mental impairments must result in at least two of the
following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within
1 year, or an average of once every 4 months, each lasting for at least 2
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 16 & 18 (“An appeal from a
judgment entered by a magistrate judge shall be taken directly to the United States court of
appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
In activities of daily living, the claimant has mild restriction. The claimant
cares for both her children, takes her youngest to and from school,
watches television, washes clothes, prepares some meals, does the
laundry, loads the dishwasher, drives and shops.
In social functioning, the claimant has moderate difficulties. She stated
that she has difficulty getting along with others.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. She complained of difficulty with concentration,
following instructions and completing tasks.
As for episodes of decompensation, the claimant has experienced no
episodes of decompensation, which have been of extended duration.
There is no evidence in the record that the claimant had experienced
episodes of such severity.
Because the claimant’s mental impairments do not cause at least two
“marked” limitations or one “marked” limitation and “repeated” episodes
of decompensation, each of extended duration, the “paragraph B” criteria
are not satisfied.
The undersigned has also considered whether the “paragraph C” criteria
are satisfied. In this case, the evidence fails to establish the presence of the
“paragraph C” criteria. The claimant has not had repeated episodes of
decompensation, each of extended duration. She does not have a residual
disease process that has resulted in such marginal adjustment that even
minimal increase in mental demands or change in the environment would
be predicted to cause the claimant to decompensate. She does not have a
current history of 1 or more year’s inability to function outside a highly
supportive living arrangement with an indication of continued need for
such an arrangement.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing
of Impairments (SSR 96-8p). Therefore, the following residual functional
capacity assessment reflects the degree of limitation the undersigned has
found in the “paragraph B” mental function analysis.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform a
full range of work at all exertional levels but with the following
nonexertional limitations: work involving only simple and repetitive
instructions and tasks within 2 hour intervals and minimal general
public contact with no production pace.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The
undersigned has also considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—
i.e., an impairment(s) that can be shown by medically acceptable clinical
and laboratory diagnostic techniques—that could reasonably be expected
to produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity, persistence,
and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s ability to do basic work activities. For this
purpose, whenever statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the undersigned must make
a finding on the credibility of the statements based on a consideration of
the entire case record.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.
The undersigned finds that the record supports the residual functional
capacity as stated previously. No weight is given to the severity of
limitations as stated by Dr. Hanak. Dr. Hanak reported the claimant’s
limitations, listed previously, are moderate to extreme. The record simply
does not support her opinion. On some occasions, Dr. Hanak stated that
the claimant’s issues were with either her sons or her husband and that
she was doing okay on her medications. Furthermore, Dr. Hanak
indicated in Exhibit 7F that the claimant had had this condition since age
18 and also noted that the claimant had held full time jobs in the past.
Finally, the undersigned notes that the claimant was able to go for several
months without treatment and was maintained on her medications
without decompensation in her functioning. She was able to carry out her
daily activities and take care of her family and children. Therefore, Dr.
Hanak’s opinions regarding the level of severity of the claimant’s
impairment is given no weight as it conflicts with the fact that the
claimant was capable of holding full time jobs in the past with the same
The claimant is unable to perform any past relevant work (20
The claimant was born on June 2, 1970 and was 38 years old,
which is defined as a younger individual age 18-44, on the alleged
disability onset date (20 CFR 404.1563).
The claimant has a limited education and is able to communicate
in English (20 CFR 404.1564).
Transferability of job skills is not an issue in this case because
claimant’s past relevant work is unskilled (20 CFR 404.1568).
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569 and 404.1569(a)).
In determining whether a successful adjustment to other work can be
made, the undersigned must consider the claimant’s residual functional
capacity, age, education, and work experience in conjunction with the
Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If
the claimant can perform all or substantially all of the exertional demands
at a given level of exertion, the medical-vocational rules direct a
conclusion of either “disabled” or “not disabled” depending upon the
claimant’s specific vocational profile (SSR 83-11). When the claimant
cannot perform substantially all of the exertional demands of work at a
given level of exertion and/or has nonexertional limitations, the medicalvocational rules are used as a framework for decision-making unless there
is a rule that directs a conclusion of “disabled” without considering the
additional exertional and/or nonexertional limitations (SSRs 83-12 and 8314). If the claimant has solely nonexertional limitations, section 204.00 in
the Medical-Vocational Guidelines provides a framework for decisionmaking (SSR 85-15).
The claimant’s ability to perform work at all exertional levels has been
compromised by nonexertional limitations. To determine the extent to
which these limitations erode the occupational base of unskilled work at
all exertional levels, the Administrative Law Judge asked the vocational
expert whether jobs exist in the national economy for an individual with
the claimant’s age, education, work experience, and residual functional
capacity. The vocational expert testified that given all of these factors the
individual would be able to perform the requirements of representative
occupations such as janitor/custodian, DOT #381.687-018 with 1.4 million
jobs in existence in the national economy and 22,000 statewide; kitchen
worker, DOT #318.687-010 with 850,000 jobs in existence in the national
economy and 6,500 statewide[;] and hand packager, DOT #920.587-018
with 800,000 jobs in existence in the national economy and 3,500
Pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with
the information contained in the Dictionary of Occupational Titles.
Based on the record as a whole, to include the testimony of the vocational
expert, the undersigned concludes that, considering the claimant’s age,
education, work experience, and residual functional capacity, the claimant
is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy. A finding of “not disabled”
is therefore appropriate under the framework of section 204.00 in the
The claimant has not been under a disability, as defined in the
Social Security Act, from September 18, 2008 through the date of this
decision (20 CFR 404.1520(g)).
(Tr. 14-16, 16, 18, & 18-19.) The Appeals Council affirmed the ALJ’s decision (Tr. 1-3)
and thus, the hearing decision became the final decision of the Commissioner of Social
In all Social Security cases, the claimant bears the burden of proving that she is
unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (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; and (4) the claimant’s age, education and
work history. Id. at 1005. Once the claimant meets this burden, as here, it becomes the
Commissioner’s burden to prove that the claimant is capable, given her age, education
and work history, of engaging in another kind of substantial gainful employment which
exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that, within the framework of the grids,
she can perform those jobs identified by the vocational expert, is supported by
substantial evidence. Substantial evidence is defined as more than a scintilla and means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In
determining whether substantial evidence exists, we 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). 2
In this case, the plaintiff contends that the ALJ erred in failing to give significant
weight to the opinion of her treating psychiatrist and instead relying upon the mental
residual functional capacity assessment completed by a non-examining agency
psychologist. (See Doc. 12.)
It is clear in this circuit that the Commissioner of Social Security must develop “a
full and fair record regarding the vocational opportunities available to a claimant.”
Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989) (citation omitted). The
Commissioner must articulate specific jobs that the claimant can perform given her age,
education and work history, if any, “and this finding must be supported by substantial
evidence, not mere intuition or conjecture.” See id. (citation omitted). Stated differently,
the burden is on the Commissioner at the fifth step of the sequential evaluation process
to establish capacity to perform other work and thereby to establish the claimant’s
residual functional capacity. See Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
This Court has held on numerous occasions that the Commissioner=s fifth-step
burden cannot be met by a lack of evidence or, where available, by the residual
functional capacity assessment of a non-examining, reviewing physician; 3 instead, this
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
The opinion of a non-examining, reviewing physician Ais entitled to little weight
and taken alone does not constitute substantial evidence to support an administrative decision.@
Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990).
fifth-step burden must be supported by the residual functional capacity assessment of a
treating or examining physician. See, e.g., Cosey v. Astrue, 2008 WL 2561585, *3 (S.D. Ala.
June 25, 2008). Such an assessment particularly is warranted where, as here, the ALJ has
given absolutely no weight to the mental residual functional capacity assessments
completed by plaintiff’s treating psychiatrist, Dr. Pamela Hanak. While the ALJ
admittedly has the responsibility of determining a claimant’s RFC, there must be
substantial support in the record for that determination and it has always been the view
of this Court, and will continue to be the view of this Court, that substantial evidence in
support of such RFC determination necessarily must include an RFC assessment by a
treating or examining physician. Without such evidence, all this Court perceives is mere
“conjecture and intuition” by the ALJ regarding what plaintiff’s impairments equate to
in terms of limitations in her mental ability to perform work, “such as limitations in
understanding, remembering, and carrying out instructions, and in responding
appropriately to supervision, co-workers, and work pressures in a work setting[.]” See
20 C.F.R. § 404.1545(c) (2011). Of course, this Court does not so much perceive
conjecture and intuition in this case as it does an attempt by the ALJ to be evasive about
the evidence from which she derived her RFC assessment. It is clear, however, to the
undersigned that even though the ALJ did not once directly mention in her decision the
RFC assessment completed by the non-examining, reviewing psychologist, Dr. Linda
Duke, or state the weight she was according same, as is her charge in accordance with
the Commissioner’s regulations, compare Tr. 16 (“The undersigned has also considered
opinion evidence in accordance with the requirements of 20 CFR 404.1527 [in making
the residual functional capacity finding.]”) with 20 C.F.R. § 404.1527(f) (“We consider all
evidence from nonexamining sources to be opinion evidence. When we consider the
opinions of nonexamining sources, we apply the rules in paragraphs (a) through (e) of
this section[, paragraph (d) specifically describing how medical opinions are
weighed].”), Duke’s assessment was accorded great weight as the ALJ’s RFC
assessment (Tr. 15 (“After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform a full range of
work at all exertional levels but with the following nonexertional limitations: work
involving only simple and repetitive instructions and tasks within 2 hour intervals
and minimal general public contact with no production pace.”)) is all but a mirror
image of the RFC assessment rendered by Dr. Duke (compare id. with Tr. 187 (“The
claimant has the ability to understand, remember and carry out short and simple
instructions and has the ability to carry out such instructions w/in 2 hr intervals. . . .
The claimant’s contact with the general public should be minimal.”)). 4 Moreover, Dr.
Duke’s assessment formed the basis for the vocational expert’s identification of other
jobs in the national economy plaintiff can allegedly perform. (Compare Tr. 19 (“[T]he
Indeed, the ALJ relied upon the Psychiatric Review Technique form completed
by Duke in determining that plaintiff’s mental impairments do not meet or equal the criteria set
forth in Listings 12.04 or 12.06. (Compare Tr. 15 (ALJ’s findings that plaintiff has a mild
restriction in activities of daily living; moderate difficulties in social functioning; moderate
difficulties in maintaining concentration, persistence, or pace; and no episodes of
decompensation, of extended duration) with Tr. 181 (Duke’s findings that plaintiff has a mild
restriction in activities of daily living; moderate difficulties in social functioning; moderate
difficulties in maintaining concentration, persistence, or pace; and no episodes of
decompensation, of extended duration).)
Administrative Law Judge asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work experience, and
residual functional capacity. The vocational expert testified that given all of these
factors the individual would be able to perform the requirements of representative
occupations such as janitor/custodian, DOT #381.687-018 with 1.4 million jobs in
existence in the national economy and 22,000 statewide; kitchen worker, DOT #318.687010 with 85,000 jobs in existence in the national economy and 6,500 statewide[;] and
hand packager, DOT #920.587-018 with 800,000 jobs in existence in the national
economy and 3,500 statewide.”) with Tr. 37-38 (“I’d like you to assume an individual of
the same age and educational background as the Claimant with the same work history.
I’d like you to further assume that this hypothetical individual does not have any
physical limitations, anything that would prevent the individual from performing
work. However, this individual does have limitations, and I’d like you to look at Exhibit
5F, page three. This individual would have limitations in that their (sic) ability to
understand, remember, and carry out short and simple instructions would be limited to
that they could carry out within two-hour intervals. However contact with the
general public should be minimal, and I’d like you to add to that that they (sic) should
not have to work at a production . . . pace so as not to, I guess, exacerbate any kind of a
stressful situation[.]”) and Tr. 38 & 39 (VE’s identification of jobs as a janitor/custodian,
kitchen worker, and hand packager as representative work of what the hypothetical
individual can perform). Thus, it is clear that without Duke’s assessment, there is
nothing in the record which provides substantial support for the ALJ’s RFC assessment
and since, as aforesaid, an assessment by a non-examining, reviewing physician does
not itself constitute substantial evidence to support an administrative decision, Swindle,
supra, 914 F.2d at 226 n.3, this cause must be remanded to the Commissioner for further
consideration at the fifth step of the sequential evaluation process.
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625,
125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 27th day of December, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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