Reed v. Astrue
Order entered that the decision of the Commissioner of Social Security, denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income is REVERSED and REMANDED.. Signed by Magistrate Judge Sonja F. Bivins on 9/28/2012. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CLAUDIA M. REED,
MICHAEL J. ASTRUE, Commissioner
of Social Security,
CIVIL ACTION 11-00376-B
Plaintiff Claudia M. Reed (“Plaintiff”) brings this action
seeking judicial review of a final decision of the Commissioner
of Social Security denying her claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et. seq.,
1381, et. seq.
On April 24,
parties consented to have the undersigned conduct any and all
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c).
(Docs. 22, 23).
Oral argument was held on April 24, 2012.
memoranda of the parties, and the representations of counsel at
oral argument, it is hereby ORDERED that the decision of the
Commissioner be REVERSED and REMANDED.
Plaintiff protectively filed applications for a period of
alleges that she has been disabled since May 9, 2009, due to a
heart condition and depression.
(Id. at 131, 151, 183).
application was denied at the initial stage (id. at 78-82), and
she filed a timely Request for Hearing before an Administrative
vocational expert Jody Skinner.
Plaintiff is not disabled.
(Id. at 13-31).
On December 9,
for review was denied by the Appeals Council (“AC”) on May 27,
(Id. at 1-4, 9-12).
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 improperly evaluating
the opinions of Plaintiff’s treating physicians,
Dr. Hardy and Dr. Sharpe?
Whether the ALJ erred by failing to order a
consultative cardiac examination?
Whether the ALJ erred in finding that Plaintiff
retained the RFC to perform light work?
III. Factual Background
Plaintiff was born on March 1, 1976, and was 34 years old
at the time of the administrative hearing.
(Tr. 37, 64, 66).
She earned her GED and has worked in the past as a day care
worker, fast food worker, and cashier/checker.
42, 152, 176, 201).
(Id. at 25, 38,
Plaintiff reported that she stopped working
due to chest pains, numbness in her hands, and swelling.
Plaintiff also reported that since she experienced a
heart attack, she “stay[s] out of breath all the time”, and that
she experiences shortness of breath and tightness in her chest
when walking short distances or standing for thirty minutes.
(Id. at 44-49).
Plaintiff indicated that she does not have any
(Id. at 49).
Plaintiff also testified that
she is not receiving any treatment for her alleged depression.
(Id. at 47).
According to Plaintiff, she is able to drive, clean her
house, take care of her two children, aged 15 years and 16
months, and handle her finances.
(Id. at 51-52).
testified that she stays home a lot because it is a big job for
her to lift her baby in and out of his car seat.
Standard Of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).1
Martin v. Sullivan, 894 F.2d
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.
substantial evidence is defined as “more than a scintilla but
evidence as a reasonable person would accept as adequate to
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
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).
(11th Cir. 1986); Short v. Apfel, 1999 U.S.
Dist. LEXIS 10163
(S.D. Ala. 1999).
An individual who applies for Social Security disability
Disability is defined as the “inability to do any
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 for determining if a claimant has proven her disability.
20 C.F.R. § 404.1520, 416.920.2
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
In the case sub judice, the ALJ determined that Plaintiff
benefits through December 31, 2013.
The ALJ found
that Plaintiff has not engaged in substantial gainful activity
impairments of coronary artery disease, ischemic cardiomyopathy,
chronic obstructive pulmonary disease, and asthmatic bronchitis.
The ALJ found that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals any
of the listings
contained in 20 C.F.R. Pt. 404, Subpt. P, App.
1, Regulations No. 4.
(Id. at 19).
functional capacity (hereinafter “RFC”) to perform less than a
full range of light work, that Plaintiff can stand/walk for no
more than thirty minutes at a time and for no more than two
hours in an eight-hour workday, that she can sit for six hours
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 an eight-hour workday, and that she can lift/carry up to
twenty pounds occasionally and ten pounds frequently. The ALJ
found that Plaintiff is unable to climb ladders, scaffolds, or
ropes, that she cannot work at unprotected heights or around
dangerous equipment, that she is unable to work in temperature
extremes or humidity and wetness, and that she cannot tolerate
exposure to concentrated environmental pollutants.
(Id. at 20).
The ALJ next determined that Plaintiff has some credible
limitations resulting from the shortness of breath and other
symptoms related to her respiratory and cardiac impairments, but
her statements concerning her impairments and their impact on
her ability to work are considerably more limited and restricted
than is established by the record as a whole. (Id. at 22-23).
performing any of her past relevant work and that, considering
Plaintiff’s RFC and vocational factors, such as age, education
and work experience, Plaintiff is able to perform other jobs
existing in significant numbers in the national economy.
(Id. at 26-27).
The relevant evidence of record reflects that Plaintiff was
admitted to Providence Hospital on May 9, 2009, with burning in
her chest that radiated up into her neck, and dyspnea.3
(Id. at 206-07).
balloon angioplasty of the left anterior descending, and due to
discharge, Plaintiff was diagnosed with non-ST segment elevation
myocardial infarction secondary to mid occlusion in the left
anterior descending artery; four cypher stents to the mid and
distal left anterior descending artery; ischemic cardiomyopathy,
ejection fraction of 35%; status post vaginal delivery two weeks
prior; and tobacco use. She was directed to follow up with Dr.
Dale Hardy’s office in two weeks.
(Id. at 203-04).
The record includes treatment notes from W. Dale Hardy,
M.D. (hereinafter “Dr. Hardy”) at Mobile Heart Specialists from
June 16, 2009 through March 16, 2010.
(Id. at 240-77; 286;
After her initial inpatient treatment for non-ST segment
Dyspnea is most frequently described as shortness of
breath, inability to take a deep breath, or chest tightness.
See http://www.ncbi.nlm.nih.gov/pubmed/21250198 (last visited
September 28, 2012).
elevation myocardial infarction, Plaintiff followed up with Dr.
Hardy on June 16, 2009.
Plaintiff reported that her medications
fingers, that she has some shortness of breath and that she was
(Id. at 244-45).
Plaintiff also reported that
she has not smoked since her heart attack.
explained that fatigue and “feeling crazy” are not side effects
discontinue the use of those medications.
(Id. at 245).
Lisinopril for a week to see if her symptoms resolved and if
they did not, to restart the Lisinopril and repeat the process
by stopping the Pravastatin.
The July 17, 2009 treatment notes reflect that Plaintiff
reported that she was feeling better, that she did not stop any
of her medicines and that all of her symptoms resolved.
also reported some burning and tingling in her chest but denied
observed that Plaintiff had some mild transaminase elevation in
pravastatin, lisinopril, aspirin, and Plavix.
(Id. at 241-42).
On September 10, 2009, Plaintiff presented to the Emergency
Room at Providence Hospital complaining of chest pain.
An x-ray of Plaintiff’s chest was taken and revealed
nuclear stress test with angina was performed and showed a large
severe predominately fixed defect in the mid to distal anterior
and anterior septal, apical and distal inferior walls consistent
ejection fraction of 40%.
(Id. at 255).
On exam, Plaintiff had an abnormal heart rhythm, which was
Plaintiff’s labwork, including cardiac markers, were negative
for injury, and her brain natriuretic peptide4, amylase, and
oxaloacetic transminase and serum glutamic-pyruvic levels were
The notes also reflect that Plaintiff was
continuing to smoke.
The burning in her chest was diagnosed as
A brain natriuretic peptide (BNP) test measures the amount
of the BNP hormone in your blood. BNP is made by your heart and
shows how well your heart is working. See http://www.webmd.com
/heart-disease/brain-natriuretic-peptide-bnp-test (last visited
September 28, 2012).
Prilosec for at least 2 to 3 weeks.
the following day.
Plaintiff was discharged
(Id. at 248).
Phillip W. Lambert, a single decision-maker (“SDM”) with
the Agency, completed a physical RFC assessment dated October
Mr. Lambert assessed Plaintiff with coronary artery
disease, ischemic cardiomyopathy, ejection fraction equals 40%,
He opined that Plaintiff could occasionally and
frequently lift 10 pounds, stand and/or walk about 2 hours in an
8-hour workday, sit about 6 hours in an 8-hour workday, and push
and/or pull for an unlimited amount of time.
occasionally climb ramps/stairs, and that she can never climb
fumes, odors, dusts, gases, and poor ventilation as well as all
exposure to hazards such as machinery and heights.
(Id. at 68-
The record includes a letter written by Dr. Hardy and dated
December 10, 2009.
In it, Dr. Hardy notes that he has treated
Plaintiff since her heart attack, and that aside from the chest
pain she experienced in September 2009, which was attributed to
acid reflux, she has not reported any chest pain.
indicates that Plaintiff has a decrease in her left ventricular
function but no symptoms of heart failure, and that Plaintiff’s
right distal coronary artery has a lesion, which is relatively
severe, but is in a small vessel and is medically treatable.
further notes that in Plaintiff’s July 17, 2009 office visit,
she was not symptomatic from a cardiac standpoint.
that she “probably does have some decrease in her functional
capacity from her reduction in her left ventricular function at
35-40%, which is documented on several cardiac studies.
disability evaluation, which we are unable to provide at this
(Id. at 270).
Dr. Hardy’s treatment notes dated January 12, 2010 reflect
that Plaintiff reported shortness of breath and fatigue.
also reported dyspnea on exertion with moderate activity and
that she “just gives out.”
She denied paroxysmal nocturnal
dyspnea5, orthopnea, palpitations, or syncope.
In the notes, Dr.
Hardy states that Plaintiff had these symptoms on her last visit
and was scheduled for an x-ray and a brain natriuretic peptide
(BNP) test; however, due to transportation issues, she did not
have the tests.
On exam, Plaintiff was well-developed and well-
Paroxysmal nocturnal dyspnea, or “PND,” is a sensation of
shortness of breath that awakens the patient, often after one or
two hours of sleep, and is usually relieved in the upright
See http://www.ncbi.nlm.nih.gov/books/NBK213/ (last
visited September 28, 2012).
“shortness of breath with exertion” was the result of being out
of shape or overweight given that she weighted 164 pounds in
July 2009 and was now weighing 186 lbs. Dr. Hardy opined her
weight gain was probably attributed to the fact that she had
stopped smoking. She was again directed to have an x-ray and BNP
test performed, and the records reflect that she did so.
at 266-67; 274-75).
During Plaintiff’s March 16, 2010 office visit, she again
reported shortness of breath, but denied any chest pain.
Hardy noted that the chest x-ray and BNP tests were normal and
showed no evidence of heart failure, that Plaintiff’s pulmonary
vascularity was normal, and that her lungs were clear of acute
Additionally, Plaintiff’s cardiac silhouette was
normal in size.
Dr. Hardy decided to continue Plaintiff on
Plavix although she would have normally come off of it in May
Plaintiff was being provided Plavix at no charge, and it was
(Id. at 271-72).
reflect that Plaintiff reported that she was no longer taking
her beta-blocker, ace-inhibitor, and statin because they were
medications were making her forgetful and that she felt better
since she started exercising on a regular basis.
He discontinued Plavix since her heart attack was over a
year ago, but instructed her to continue to take an aspirin a
He also informed Plaintiff that forgetfulness is not a
typical side effect of Lisinopril, Lopressor, or Pravastatin,
and he recommended that Plaintiff start taking the medicines
again, one at a time, at one to two week periods, to see if her
He explained to her the benefits of these
directed to follow up in six months.
(Id. at 286, 288).
Plaintiff was treated by Thomasina Sharpe, MD (hereinafter
“Dr. Sharpe”) at the Mobile County Health Department on April
19, June 7, and October 13, 2010.
(Id. at 278-87).
shortness of breath with exertion, but not at night.
also reported that she used a relative’s inhaler, which improved
normal heart rate, rhythm and heart sounds, and no murmurs or
obstructive pulmonary disease and provided Ventolin HFA CFC free
90 mcg/inh inhaler, Flovent HFA CFC free 110 mcg/inh inhaler,
and Albuterol PRN.
(Id. at 281-83).
medications, and that she forgets to take her medications often.
On exam, Plaintiff appeared in acute distress.
informed that she was not a good candidate for birth control.
(Id. at 278-80, 284-85).
Dr. Sharpe’s treatment notes dated October 14, 2010 reflect
that Plaintiff reported shoulder and neck pain lasting a week.
She also reported that she felt like she had “slept wrong.”
exam, Plaintiff was in no acute distress.
and depth were normal, and no wheezing or rales/crackles were
Spasm over Plaintiff’s trapezius muscle was observed,
Plaintiff was educated about pain management, and
she was prescribed Naprosyn 500 mg and Flexeril 10 mg.
The record includes a letter from Dr. Sharpe, dated October
14, 2010, and addressed to “whom it may concern.”
Artery Disease and earlier this year she suffered a Myocardial
infarction and had stents placed in her coronary arteries. She
(Id. at 287).
Whether the ALJ erred by failing to order a
consultative cardiac examination.
Plaintiff argues that the ALJ erred by failing to order a
Specifically, Plaintiff notes that Dr. Hardy’s opinion indicated
Plaintiff needed a formal disability evaluation.
The Commissioner responds that the ALJ considered the medical
opinions in the record and is permitted to issue a decision
without obtaining additional evidence so long as the record as a
whole provides a sufficient basis to make an informed disability
It is well established that a hearing before an ALJ in
social security cases is inquisitorial and not adversarial.
producing evidence in support of his claim while the ALJ has “a
basic duty to develop a full and fair record.”
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam); see
also Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253,
1269 (11th Cir. 2007).
This duty to develop the record exists
even when the claimant is represented by counsel.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995).
Social Security regulations provide that the Commissioner will
pay the reasonable cost of providing existing medical records
the Commissioner needs or requests.
Hargove v. Astrue, 2012
U.S. Dist. LEXIS 69821, *31 (N.D. Fla. Mar. 15, 2012).
ALJ’s duty to develop the record is triggered when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
Strawder v. Astrue, 2011
U.S. Dist. LEXIS 122843, *20 (N.D. Fla. Aug. 8, 2011).
The responsibility for determining a plaintiff’s RFC6 lies
with the ALJ and is based on all of the evidence of record.
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004) (ALJ
has duty to assess the residual functional capacity on the basis
of all the relevant credible evidence of record); 20 C.F.R. §§
(responsibility for determining a claimant’s
residual functional capacity lies with the ALJ).
See also Foxx
v. Astrue, 2009 U.S. Dist. LEXIS 80307, *17 (S.D. Ala. August
“Residual functional capacity, or RFC, is a medical
assessment of what the claimant can do in a work setting despite
any mental, physical or environmental limitations caused by the
claimant’s impairments and related symptoms. 20 C.F.R. §
Peeler v. Astrue, 400 Fed. Appx. 492, 494 n.2
(11th Cir. 2010).
relevant evidence in the case such as: medical history, medical
signs and laboratory findings, the effects of treatment, reports
of daily activities, lay evidence, recorded observations, and
medical source statements.”), citing
SSR 96-8p, 1996 SSR LEXIS
In Siverio v. Commissioner, 461 Fed. Appx. 869, 871 (llth
Cir. 2012), a panel of the Eleventh Circuit recently discussed
the ALJ’s duty with respect to the RFC assessment, and held that
the ALJ erred when he treated, as a medical opinion, the RFC
assessment prepared by a single decision maker.
The court held
that the error was not harmless because the remaining evidence
capable of performing “medium work”.
In the instant case, the ALJ, in discussing Plaintiff’s
functional limitations, and the records of Plaintiff’s treating
physicians, stated as follows:
As for the opinion evidence, Dr. Hardy and
Dr. Sharpe submitted letters concerning the
claimant’s impairments; however, they did
not offer an opinion as to the claimant’s
specific limitations resulting from the
impairments. Dr. Sharpe noted the claimant’s
diagnoses, but did not offer an opinion
(Exhibit 10F). Dr. Hardy noted that the
claimant’s cardiac condition is stable, but
“She probably does have some decrease in her
functional capacity” because of the cardiac
impairments (Exhibit 6F). This opinion,
although vague, is consistent with the
record as a whole and is given some weight.
Consequently, I have provided for a decrease
in the claimant’s functional capacity as a
result of the severe impairments.
There are no medical opinions in the record
The undersigned finds that substantial evidence does not
support the ALJ’s RFC assessment.
First of all, while neither
of Plaintiff’s treating physicians offered an opinion regarding
any functional limitations,
Dr. Hardy did not simply state that
Plaintiff probably does have some decrease in her functional
capacity because of her cardiac impairments, as stated in the
Plaintiff’s left ventricular function at 35-40% is documented on
several cardiac studies, and that if she was being considered
for disability, she may require a formal disability evaluation.
consultative evaluation although the only functional assessment
Commissioner acknowledges is a single decision maker7
Notably, the RFC developed by the ALJ closely resembles
the functional assessment completed by Mr. Lambert except that
Mr. Lambert opined that Plaintiff is limited to lifting and
carrying 10 pounds, whereas the ALJ found that Plaintiff can
lift and carry 20 pounds.
however, in his assessment, Mr. Lambert opined that Plaintiff is
limited to lifting and carrying 10 pounds.
Third, the ALJ’s
finding that Plaintiff can lift and carry 20 pounds occasionally
In finding that Plaintiff can lift 20 pounds, the ALJ
noted that Plaintiff testified that she does not leave home a
lot because she has difficulty lifting her then 16 month old son
in and out of his car seat, that according to the Center for
Disease Control and Prevention, the weight for a 16 month old
boy in the 50th percentile is twenty-five pounds, that Plaintiff
attributed her lifting difficulties to shoulder problems that
are expected to resolve within twelve months, and because she
cares for the child independently, she can lift and carry up to
ALJ’s finding is not supported by substantial evidence.
is no evidence regarding the expected duration of Plaintiff’s
shoulder problem, and the fact that she is able to care for the
This is particularly true given Plaintiff’s coronary
disease, her complaints of shortness of breath, her testimony
that she rarely leaves home due to difficulties lifting the
child in and out of the car seat and her physician’s opinion
that she probably has some decrease in her functional capacity
due to her coronary disease.
Because substantial evidence does
not support the RFC finding, this case must be reversed and
remanded for reconsideration of Plaintiff’s RFC.8
For the reasons set forth, and upon careful consideration
insurance benefits, and supplemental security income is REVERSED
DONE this 28th day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
Because the Court determines that the decision of the
Commissioner should be reversed and remanded for further
proceedings based on the Plaintiff’s second claim, there is no
need for the Court to address Plaintiff’s other claims.
Robinson v. Massanari, 176 F. Supp. 2d 1278, 1280 and n.2 (S.D.
Ala. 2001); Pendley v. Heckler, 767 F.2d 1561, 1563 (llth Cir.
1985)(“Because the ‘misuse of the expert testimony alone
warrants reversal’ we do not consider the appellant’s other
claims.”) (citations omitted).
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