Parsons v. Astrue

Filing 25

Order entered. It is hereby ORDERED that the final decision of the Commissioner be REVERSED and this case REMANDED to the Commissioner for further proceedings consistent with this opinion. Signed by Magistrate Judge Katherine P. Nelson on 8/28/2012. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERRY A. PARSONS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
Of Social Security,

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CIVIL ACTION NO. 11-0452-N

ORDER
In this action, plaintiff appeals the final decision of the Commissioner denying his claim
for a period of disability and disability benefits (“DIB”) and his claim for supplemental security
income (“SSI”) benefits. Upon joint consent of the parties (doc. 22), this matter has been
referred to the undersigned for entry of judgment (doc. 23). The parties have waived oral
argument (doc. 21). After careful consideration of all matters in the record, including the briefs
of the parties, it is hereby ORDERED that the final decision of the Commissioner be
REVERSED and this case REMANDED to the Commissioner for further proceedings consistent
with this opinion.
Background
Plaintiff filed his applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on May 5, 2009, alleging mental impairments and carpal
tunnel syndrome. Plaintiff’s SSI application claimed an onset date of July 3, 2008, and the DIB
application claimed that plaintiff became disabled beginning on March 8, 2008. Doc. 14 at 144,
148. After his claims were denied, plaintiff timely requested and received a hearing before an
Administrative Law Judge (“ALJ”); the hearing was held on September 27, 2010. Plaintiff was
represented by Attorney Colin Kemmerly at the hearing.

The ALJ issued an unfavorable

decision on December 3, 2010. Following denial of review by the Appeals Council, on July 28,
2011, the decision of the ALJ became the final decision of the Commissioner. Plaintiff timely
filed the instant appeal.
Claims
Plaintiff claims that the ALJ erred by: a) rejecting the opinion of John R. Cranton, M.D.,
plaintiff’s treating psychiatrist, improperly substituting her own medical opinion for that doctor’s
opinion, and b) construing an assertedly unclear statement by the treating physician without
seeking clarification from Dr. Cranton.
Legal Standard
Scope of Judicial Review.
In reviewing claims brought under the Social Security Act, this Court's role is a limited
one. Specifically, the Court's review is limited to determining: 1) whether the decision is
supported by substantial evidence, and 2) whether the correct legal standards were applied. See,
42 U.S.C. § 405(g); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990). Thus, a court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996); Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). Rather, the
Commissioner's findings of fact must be affirmed if they are based upon substantial evidence.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Chater, 84 F.3d at 1400; Brown v.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991).

See also, Martin v. Sullivan, 894 F.2d 1520,

1529 (11th Cir. 1990)(“Even if the evidence preponderates against the Secretary's factual
findings, we must affirm if the decision reached is supported by substantial evidence.”);
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that substantial evidence

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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. Lynch v.
Astrue, 358 Fed.Appx. 83, 86 (11th Cir. 2009); Martino v. Barnhart, 2002 WL 32881075, * 1
(11th Cir. 2002); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Even where there is
substantial evidence to the contrary of the ALJ's findings, the ALJ decision will not be
overturned where “there is substantially supportive evidence” of the ALJ's decision. Barron v.
Sullivan, 924 F.2d 227, 230 (11th Cir. 1991).
Statutory and Regulatory Framework.
The Social Security Act's general disability insurance benefits program (“DIB”) provides
income to individuals who are forced into involuntary, premature retirement, provided they are
both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). The Social Security
Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general
public assistance measure providing an additional resource to the aged, blind, and disabled to
assure that their income does not fall below the poverty line. Eligibility for SSI is based upon
proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However,
despite the fact they are separate programs, the law and regulations governing a claim for DIB
and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the
purpose of determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455,
1456 n. 1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act, which defines disability in virtually identical language for
both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a),

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416.905(a). A person is entitled to disability benefits when the person is unable “to engage in any
substantial gainful activity by reason of any medically 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). A “physical or mental impairment” is one that “results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation process
to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520, 416.920
(2010). The Eleventh Circuit has described the evaluation to include the following sequence of
determinations:
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?1
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or,
on steps three and five, to a finding of disability. A negative answer to any
question, other than step three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). See also Bell v. Astrue, 2012 WL
2031976, *2 (N.D. Ala. May 31, 2012); Huntley v. Astrue, 2012 WL 135591, *1 (M.D. Ala. Jan.
17, 2012).

1

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”

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The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F.3d
1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying disability
once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to
the Commissioner, who must then show there are a significant number of jobs in the national
economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual
Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still able to do despite
his impairments and is based on all relevant medical and other evidence. Id. It also can contain
both exertional and nonexertional limitations. Id. at 1242–43. At the fifth step, the ALJ considers
the claimant's RFC, age, education, and work experience to determine if there are jobs available
in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use
the Medical Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app. 2 (“grids”),or hear testimony
from a vocational expert (VE). Id. at 1239–40.
Facts2
The ALJ found that both conditions cited by plaintiff—major depression and carpal
tunnel syndrome—were ‘severe’ impairments.3

His gout, hypertension and diabetes were

controlled with medication and were not deemed severe. The ALJ held that plaintiff’s mental
impairments did not meet or equal listing 12.04, and that plaintiff had the residual functional
capacity to perform light work, involving occasional lifting of up 2o 20 pounds, frequent lifting

2

Except where otherwise noted, all facts are drawn from the findings of the Administrative Law
Judge, doc. 14 at pp. 18-28.
3

Pursuant to 20 CFR § 404.1520(c), a severe impairment is one which significantly limits the
claimant’s physical or mental ability to do basis work activities.

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of 10 pounds, no postural limitations on standing, walking or sitting, and with only occasional
contact with the public, simple work-place decisions, and few changes to the work place.
Plaintiff had past relevant work as a carpenter and as a driver of a “handivan”. The ALJ
held that plaintiff could not perform any of his past relevant work. Plaintiff completed the tenth
grade. Plaintiff was 40 years of age at the time of his application and 42 at the time of the
decision, and so is considered a “younger individual.” The ALJ utilized a vocational expert and
determined that plaintiff was not disabled.
The challenged aspect of the ALJ’s decision involves the ALJ’s consideration of
plaintiff’s medical evidence of depression. Plaintiff was diagnosed and treated with depression
by Dr. John R. Cranton, a psychiatrist, and was evaluated in a consultative examination by Dr.
Lucile T. Williams, who saw the plaintiff on October 21, 2010. With regard to plaintiff’s
depression, the ALJ made the following findings:
Office records from Dr. John R. Cranton show treatment from June 25, 2009 to
May 4, 2010. On June 25, 2009, the claimant reported he had been significantly
depressed over the last 8-9 months. He admitted to mood swings and difficulty
coping with stresses. He had had difficulty expressing his anger at times. On
occasion, he reported hearing voices talking to him when no one else was present.
He also reported difficulty with concentration and stated that his memory was not
as good as it once had been. He had been having difficulty working. Trazodone
helps him sleep. His past medical history included hand pain, chronic gastritis,
hypertension and chest pain. He lives with his mother and is separated from his
wife. He attends church on an irregular basis. Dr. Cranton stated that the
claimant revealed psychomotor retardation. He spoke slowly and softly and there
was a paucity of speech. His mood was one of depression. On one occasion, he
started to cry and had difficultly holding back his tears. He admitted to feelings
of mistrust. Intellectual functioning was estimated in the very low average range.
…The impression was major depressive disorder, single episode, with psychotic
features. Dr. Cranton felt that the claimant was severely depressed with a
suggestion of psychosis. He believed he was in need of hospitalization. On
September 28, 2009, the claimant reported that he was doing fairly well and
taking his medicines as prescribed. He was not working. He was attentive. He
did not admit to any suicidal thought and did not appear significantly depressed.
His aspect was blunted. Dr. Cranton stated that since he was not working, he
could utilize this time to be talking with a vocational rehabilitation counsel and

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maybe working on his GED. He was referred to vocational rehabilitation. On
November 2, 2009, his affect was somewhat blunted but he was not agitated. He
denied suicidal thought, intent or plan and there was no evidence of adverse
medication effect. Dr. Cranton was attempting to help him set up an appointment
with a vocational rehabilitation counselor, at least to help give him some guidance
with regards to potential employment. His medication regimen was continued.
On December 7, 2009, he did not appear morbidly depressed. He stated that
Geodon was sapping his energy, so they were going to try a lower dosage. On
January 13 2010, he mentioned no adverse effects with his medications. He was
alert, attentive and cooperative. On March 12, 29010, he was alert, attentive and
cooperative. He did not appear agitated. He did not appear withdrawn and did
not exhibit any signs of adverse medication effect. His Geodon was changed to
Seroquel. On May 4, 2010, Dr. Cranton stated that the claimant was not able to
return to his work on scaffolds because of the medication, [sic] he was taking and
that he should not work around heights. On May 4. 2010, he reported that
Seroquel had been of help and Lexapro continued to help his mood. On
September 15, 2010, Dr. Cranton completed a Mental Residual Functional
Capacity Questionnaire. Dr. Cranton opined that the claimant has mild restriction
of activities of daily living, moderate difficulties in maintaining social
functioning, often has difficulties in maintaining concentration, persistence or
pace and one or two repeated episodes of decompensation. Dr. Cranton was of
the further opinion that the claimant’s ability to understand, carry out and
remember instructions, respond appropriately to supervision, co-workers or to
customary work pressures; perform simple or repetitive tasks or complete work
related activities in a normal workday or workweek was only mildly impaired.
He also noted that the claimant has complications of gastrointestinal reflux
disease and carpal tunnel syndrome. … He further noted that a side effect from
the claimant’s medications is drowsiness. …
On October 21, 2010, Dr. Lucile T. Williams[] evaluated the claimant at the
request of the Social Security Administration. The claimant reported insomnia
with only 4 hours sleep a night. He reported his mood as depressed and his selfesteem as “not good.” He stated that he has “very little energy.” He waited until
eh exam was concluded to add that he was experiencing hallucinations. Although
he reported hearing voices telling him what to do and seeing things, he was
unable to remember when he last hallucinated and give significant details
regarding these alleged hallucinations. Dr. Williams noted that office records
from Dr. Cranton reflected that the claimant only reported experiencing
hallucinations in June 2009 and did not report any further history of auditory
hallucinations from July 2009 to March 2010. In addition, there were no records
to indicate that the claimant every [sic] reported experiencing visual
hallucinations. The impression was major depressive disorder, recurrent. Dr.
Williams noted that the claimant was seen as only being somewhat motivated to
do his best during the evaluation. Some of his statements appeared questionable.
Dr. Williams completed a Medical Source Statement of Ability to Do WorkRelated Activities (Mental) Dr. Williams was of the opinion that his ability to
understand, remember and carry out simple instructions, make judgments on
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simple work-related decisions and understand and remember complex instructions
and make judgments on complex work-related decisions was only mildly
impaired. His ability to carry out complex instructions was moderately impaired.
His ability to interact appropriately with supervisors and co-workers, respond
appropriately to usual work situations and to changes in a routine work setting
was mildly impaired. He had no problems interacting appropriately with the
public.
As for the opinion evidence, more weight is given to Dr. Williams’ opinions.
With the exception of carrying out complex instructions, Dr. Williams’ opinions
are supported by the claimant’s treatment notes, which indicated that he was
improving with medications. Dr. Williams’ opinions are consistent with the
opinions of Dr. Cranton with the exception that Dr. Cranton marked often in
estimated deficiencies of concentration, persistence and pace. Dr. Cranton’s own
treatment notes do not support this limitation. His treatment notes from Exhibit
16F indicate that on more than one occasion Dr. Cranton was attempting to help
the claimant set up an appointment with a vocational rehabilitation counsel, at
least to help give him some guidance with regards to potential employment. This
indicates that Dr. Cranton is of the opinion that the claimant is capable of
working. On the Medical Source Statement of Ability to Do Work-Related
Activities (Mental), Dr. Cranton stated only that the claimant could not return to
work on scaffolds or work around heights. While[] Dr. Cranton’s initial visit
indicated significant depression, a mere two months later the claimant reported
that he was doing fairly well and taking his medicines as prescribed. At that time,
Dr. Cranton also noted that the claimant was attentive, did not admit to any
suicidal thought and did not appear significantly depressed. His office notes
indicated the claimant had improved significantly. Therefore, Dr. Cranton’s
opinions are given some weight but not determinative weight to the opinion
regarding concentration. The determinative weight is given to Dr. Williams.
Doc. 14, at pp 24-26.
Discussion
The plaintiff argues that the ALJ erred both in rejecting the opinion of the plaintiff’s
treating physician in favor of that of a consultive examiner and the ALJ’s own opinions, as well
as in interpreting a statement by the treating physician as undermining plaintiff’s claim without
asking the doctor if that interpretation was correct.
The primary depression-related impairment relevant to this appeal is the frequency and/or
severity of plaintiff’s deficiency in concentration, persistence and pace. Dr. Cranton opined that
plaintiff suffered such deficiency “often.” Doc. 14 at 339. At the hearing, the vocational expert
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(“VE”) called by the ALJ stated his opinion that such an impairment would preclude plaintiff
from maintaining employment. Doc. 14 at 42. Thus, the dispute over the ALJ’s decision to
discount that opinion is potentially dispositive of this appeal.4
The ALJ gave preference to the opinion of the consultive examiner, Dr. Williams, who
performed two examinations on plaintiff, only one of which occurred prior to her opinion on
concentration, persistence and pace. After the first examination on July 20, 2009, Dr. Williams
completed a Mental Residual Functional Capacity form which stated, inter alia, that plaintiff had
a mild limitation in concentration.5 The ALJ found the opinion of Dr. Williams, the consultive
examiner, a psychologist6, more persuasive than those of Dr. Cranton, plaintiff’s treating
psychiatrist. Plaintiff questions the ALJ’s basis for that determination.
There is no dispute that plaintiff continued to suffer some level of impairment from his
depression—both doctors agree that plaintiff suffered from major depressive disorder, and the
ALJ so found. The ALJ specifically said that the opinions of Dr. Cranton and Dr. Williams were
consistent except for Dr. Williams’ opinion that plaintiff “often suffered deficiencies in
concentration. The ALJ concluded that Dr. Cranton’s treatment notes showed that plaintiff’s
condition had improved. Plaintiff challenges that conclusion as not supported by the record.
The regulations provide that, if a treating source opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
4

There is some question, as well, whether Dr. Williams’ opinion that plaintiff’s deficiencies in
concentration and persistence are “mild” is truly at odds with the opinion of plaintiff’s treating
psychiatrist that plaintiff suffered deficits in concentration “often”; one relates to severity and the other to
frequency. The VE testified based on frequency of problems in this area.
5
Dr. Williams also conducted a second examination on October 21, 2010, and completed a form
addressing plaintiff’s ability to perform work-related activities. This second evaluation does not address
limitations previously considered, including those in concentration, persistence and pace.
6

See doc. 14 at 159.

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substantial evidence in the claimant’s case record, the ALJ will give it controlling weight. If not,
it nonetheless will be given substantial or considerable weight unless “good cause” is shown to
the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). “‘Good cause’ exists when the (1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Id. (citing Lewis, 125 F.3d at 1440).
In general, the Commissioner will generally “give more weight to opinions from ... a
source who has examined [the claimant] … [and] treating sources,” 20 C.F.R. §404.1527(c)(1) –
(2), and “will always give good reasons in our notice of determination or decision for the weight
we give your treating source’s opinion.” 20 C.F.R. §404.1527(d)(2), 416.927(d)(2). The
Commissioner will give greater weight to a doctor “the longer that source has treated [the
claimant and] the more times [the claimant has] been seen.” 20 C.F.R. §404.1527(c)(2)(i) – (ii).
The reasons for this rule involve the opportunity for a treating physician to form an opinion of a
patient over time. See 20 CFR §404.1527(c)(2).
“[A]lthough [the Court] generally considers a psychiatrist to be a ‘better informed’ source
of information regarding a patient's condition than a psychologist, a licensed or certified
psychologist is considered to be an acceptable medical source under the social security
regulations ... The Court acknowledges, however, that often-times, the psychologist works more
closely with the patient than the psychiatrist. So, it comes down to a case-by-case decision.”
Fuller v. Massanari, No. Civ.A. 00–0763–RV–M, 2001 WL 530425, *3 n. 3 (S.D.Ala. May 11,
2001); see also 20 C.F.R. §404.1527(c)(5). Where, as here, the psychiatrist had a long-term

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treating relationship with plaintiff and the psychologist saw plaintiff once before giving the
relevant opinion, that determination is simplified.
In rejecting the treating physician’s opinion on this issue, the ALJ relied on a
questionable construction of Dr. Cranton’s attempts to arrange for plaintiff to consult with a
vocational rehabilitation counselor. Specifically, the ALJ determined that Dr. Cranton’s express
finding that plaintiff suffered “often” from deficiencies in concentration, persistence and pace
was somehow contradicted by an inference the ALJ made from the entries in plaintiff’s treatment
notes that Dr. Cranton had tried to arrange for plaintiff to obtain evaluation and counseling by
the vocational expert. The ALJ determined those efforts that “Dr. Cranton is of the opinion that
the clamant is capable of working.” Doc. 14 at 26.
Dr. Cranton’s efforts to set up an appointment for plaintiff with a vocational
rehabilitation counsel are at least as consistent with a referral to a specialist in that area, an
admission that the doctor was not expert in such matters, or with unanswered questions
concerning the existence of any jobs which someone like plaintiff could perform as they are with
Dr. Cranton’s purported, but unexpressed, certainty that plaintiff could work. The ALJ’s
determination is even less reasonable in light of the fact that the Commissioner, not the doctor, is
deemed the appropriate person to determine whether a claimant can work. In regulations and in
case law, the Commissioner has consistently asserted that such an opinion on the ultimate issue
is reserved to the Commissioner and that the opinion of the doctor is not within his area of
expertise and is irrelevant. See e.g. 20 C.F.R. §§ 404.1527(e), 416.927(e) (explaining that an
opinion on a dispositive issue reserved for the Commissioner, such as whether the claimant is
disabled or unable to work, is not considered a medical opinion and is not given any special
significance, even if offered by a treating source, but will be taken into consideration); Flowers

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v. Comm’r of Social Sec., 441 Fed.Appx. 735, 742 n.5 (11th Cir. 2011); Lawton v. Comm’r of
Social Sec., 431 Fed.Appx. 830, 834 (11th Cir. 2011); Gainous v. Astrue, 402 Fed.Appx. 472,
475 (11th Cir. 2010). If the ALJ believes that Dr. Cranton’s attempts to arrange for vocational
evaluation or counseling for plaintiff are contrary to his expressly-stated medical opinions on
plaintiff’s limitations, the ALJ has the option of seeking clarification from Dr. Cranton on
remand. The ALJ’s conclusion is not supported by substantial evidence and does not constitute
“good cause” necessary to justify discounting the opinion of plaintiff’s treating physician.
Dr. Williams stated in her first evaluation that “no hospital records or records from Dr.
Cranton were available.” Doc. 14 at 302. Dr. Williams’ second evaluation did not address
plaintiff’s difficulties in concentration, and thus did not supplement or adopt her prior opinion on
that issue in light of a review of Dr. Cranton’s treatment notes. The lack of such notes relating to
the treatment of plaintiff for depression diminishes the weight which the Commissioner is
allowed to give Dr. Williams’ opinion on the issue of plaintiff’s limitations in concentration. See
20 C.F.R. 404.1527(c)(6) (Commissioner will give greater weight based on “the extent to which
[the source] is familiar with the other information is [the claimant’s] case record.”). Further, the
court has trouble accepting the ALJ’s conclusion that the plaintiff’s treating physician is wrong
in opining that plaintiff “often” has concentration problems based on evidence gleaned from a
single examination. At most, the consultive examiner’s observation that she saw no evidence of
such limitation during that first visit can support a conclusion only that “often” does not mean
“always”; a single hour’s concentration is not inconsistent with an opinion that plaintiff “often”
suffered such limitation.
Based on the factors set forth by the Commissioner for evaluating the opinions of
acceptable medical sources, the undersigned concludes that the ALJ’s rejection of the opinion of

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Dr. Cranton and the adoption of the opinion of Dr. Williams on the issue of the frequency of
plaintiff’s deficiencies in concentration resulting from his depression is not supported by
substantial evidence in the record presented.
Conclusion
For the foregoing reasons, it is hereby ORDERED that the final decision of the
Commissioner be REVERSED and this case REMANDED to the Commissioner for further
proceedings consistent with this opinion.
DONE this the 28th day of August, 2012.
/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE

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