Rezaci v. Astrue

Filing 20

Order that this case be REMANDED to the Commissioner for further proceedings consistent with this opinion. Signed by Magistrate Judge Katherine P. Nelson on 7/19/2012. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHOHREH REZAEI,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
Of Social Security,
Defendant.

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CIVIL ACTION NO. 11-0467-N

ORDER
In this action, plaintiff appeals the final decision of the Commissioner denying her claim
for Social Security Income benefits. The parties have consented to the exercise of jurisdiction by
the undersigned Magistrate Judge (doc. 17) and this action has been referred (doc. 18) to the
undersigned to conduct all proceedings and order the entry of judgment. Oral argument was held
before the undersigned on June 27, 2012, at which Attorney Colin Kemmerly appeared on behalf
of the plaintiff and Assistant United States Attorney Patricia Beyer represented the
Commissioner. After careful consideration of the record, including the briefs of the parties and
the arguments of counsel, it is ORDERED that the decision of the Commissioner be
REMANDED for further proceedings consistent with this opinion.
Procedural History
Plaintiff filed her application for SSI benefits on June 5, 2008, claiming a disability onset
date of June 7, 1997. After her claim was initially denied on July 31, 2008, plaintiff requested a
hearing which was conducted before an Administrative Law Judge (“ALJ”) on November 2,
2009. Following an unfavorable decision, plaintiff timely sought review from the Appeals
Council, submitting additional medical records from the Stanton Road Clinic, AltaPointe, and

USA Department of Pathology and LabCorp (exhibits 20F, 21F, and 22F). The Appeals Council
denied review on June 17, 2011, rendering the ALJ’s denial the final decision of the
Commissioner. This appeal timely followed.
Issues
Plaintiff raises the following claims in this appeal:
1. That the ALJ erred by rejecting the opinions of Dr. Blaine Britt and Dr. Marieanne
Saitz on the basis, in part, on supposition that the doctors may have given their
opinions based on sympathy for plaintiff or to avoid friction with their patient,
without acceptable medical evidence to support the ALJ’s findings concerning
plaintiff’s limitations; citing 20 C.F.R. § 416.1453. 1
2. That the ALJ erred in rejecting plaintiff’s claim that she could only obtain 9 Imitrex
pills per month on the basis under her insurance based, in part, of his finding that
there were community clinics in Mobile, Alabama, where plaintiff lived, which
offered reduced cost or free medical treatment for indigent persons, without evidence
in the record regarding the availability of such reduced-cost care in that locale; citing
20 C.F.R. § 416.1453.
Scope of Judicial Review
A limited scope of judicial review applies to a denial of Social Security benefits by the
Commissioner. Judicial review of the administrative decision addresses three questions: (1)
whether the proper legal standards were applied; (2) whether there was substantial evidence to
support the findings of fact; and (3) whether the findings of fact resolved the crucial issues.
1

The pertinent provision of that section provides “[t]he administrative law judge must base the
decision on the preponderance of the evidence offered at the hearing or otherwise included in the record.”
20 C.F.R. § 416.1453(a).

2

Washington v. Astrue, 558 F.Supp.2d 1287, 1296 (N.D.Ga. 2008); Fields v. Harris, 498 F.Supp.
478, 488 (N.D.Ga. 1980). This Court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. If substantial evidence supports the
Commissioner's factual findings and the Commissioner applies the proper legal standards, the
Commissioner's findings are conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir.
1997); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987); Hillsman v.
Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986); Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). ASubstantial evidence@ means more than a scintilla, but less than a
preponderance. In other words, Asubstantial evidence@ means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion and it must be enough to
justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales, 402 U.S.
389 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth, 703 F.2d at 1239. AIn determining
whether substantial evidence exists, [the 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). Even where there is substantial evidence to the
contrary of the ALJ's findings, the ALJ decision will not be overturned where Athere is
substantially supportive evidence@ of the ALJ's decision. Barron v. Sullivan, 924 F.2d 227, 230
(11th Cir. 1991). In contrast, review of the ALJ's application of legal principles is plenary. Foote
v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker, 826 F.2d at 999.
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

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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),
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 resulting 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).
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?

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(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?2
(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).
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.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light
work, inability to speak English, educational deficiencies, and lack of job experience. Each

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

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factor can independently limit the number of jobs realistically available to an individual. Id. at
1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not
Disabled.” Id.
Findings of Fact3
Plaintiff was born in February, 1960, and was 49 years of age at the time of the hearing
before the ALJ. She was born and raised in the Islamic Republic of Iran, where she lived until
moving to the United States in 1995. She has the Iranian equivalent of a high school diploma.
She has no prior employment history.
The ALJ found that plaintiff suffers from ‘severe’ impairments of migraines and major
depressive disorder. The ALJ found that these impairments, individually or in combination, did
not meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R.§§ 416.920(d), 416.925 and 416.926). The ALJ found that, if plaintiff had rheumatoid
arthritis4, it did not give rise to significant limitations to her ability to work.
Analysis
Administrative Notice
The court considers plaintiff’s second assignment of error first. Plaintiff was diagnosed
as having migraine headaches at Infirmary West in Mobile, Alabama on December 30, 2007,
after seeking treatment for a headache. She improved with medication and was released.
Thereafter, plaintiff received treatment, consisting of prescriptions for Imitrex and Zanaflex, for
3

Factual findings are drawn from the Administrative Record (doc. 10), particularly, where
uncontested, from the final decision of the ALJ (doc. 10 at 15-24). Page references are to the
Administrative Record unless otherwise stated.
4

Plaintiff mentioned the condition to the consultive examiner and one of plaintiff’s primary care
physicians mentioned that diagnosis in an opinion letter. Plaintiff does not challenge the ALJ’s finding
that, if she suffers from rheumatoid arthritis, that condition does not give rise to a ‘severe’ impairment.

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her migraines at the Stanton Road Clinic in Mobile, Alabama. Plaintiff testified that, under her
insurance plan, she could get no more than nine Imitrex pills per month,5 but that she had
migraines ‘daily’. She stated that sometimes she had to take 3-4 Imitrex per week, and that when
she ran out, she used Advil and relied on the second medication, presumably Zanaflex, which she
takes every night.6 The ALJ found that
the medications have been relatively effective in controlling the claimant’s
symptoms. On July 3, 2008, the claimant reported that she feels better on
medication and reported a decrease in frequency of her headaches. On January
22, 2009, the treatment record notes that the claimant’s headaches had greatly
improved while on medication. (Exhibit 10F). Additionally, the July 2, 2009,
treatment note shows that the claimant’s headaches worsened when she ran out of
her medication. …[T]he medical evidence of record notes the claimant’s
continued complaints of migraines….The claimant testified that her medications
relieve her headaches, and that she is able to care for her children when taking the
prescription medication.7
5

She testified that her doctor prescribed more, but that she could only receive nine pills.

6

Perhaps because plaintiff is not a native speaker of English, the transcript refers to Isonofrex.
The court has been unable to find any available migraine drug with that name and presumes that she
refers to the second medication the medical records show to have been prescribed to her, Zanaflex.
Zanaflex [generic name tizanidine] is a skeletal muscle relaxant rather than a selective serotonin receptor
agonist like Imitrex, www.nih.gov/pubmedhealth, though it may sometimes be prescribed for off-label use
in treating migraines. Plaintiff testified that, when she ran out of Imitrex, she would use Aleve and
Isonfrex [Zanaflex] nightly. She testified that they worked the same as Imitrex. Doc. 10 at 40.
7

Plaintiff’s testimony was slightly different from the summary by the ALJ. Plaintiff testified that
she continues to care for her children regardless of the pain. Her testimony concerning her activities of
daily living do not so clearly demonstrate a significant reduction in migraine symptoms as a result of her
medication as the ALJ appears to find. After the ALJ asked about her activities with medication, such as
cooking for her children and picking them up, the following exchange occurred.
Q: How often is it that you have one where you can’t do that, where you can’t help your kids,
say, cook dinner?
A: No. I do it with headache, working for kids. Making food and take care of them.
Q: Okay. So you, even with the headaches –
A: Yes.
Q: you still do that? Okay.

(Continued)
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Doc. 10 at 20.
With regard to plaintiff’s testimony that she could only get nine Imitrex pills per month8,
the ALJ found, sua sponte, that there were medical service providers in Mobile, Alabama, which
provide reduced-cost medical care for those who lack sufficient funds or insurance. On that
basis, the ALJ rejected plaintiff’s testimony concerning limited availability of Imitrex. The
plaintiff objects to the ALJ’s finding concerning the existence of medical clinics in the absence
of supporting evidence in the administrative record.
It is well-established that “poverty excuses noncompliance.” Dawkins v. Bowen, 848
F.2d 1211, 1213 (11th Cir. 1988)(noting every circuit that has considered the issue has come to
this conclusion and citing cases). It has been held that the Commissioner bears the burden to
produce evidence of unjustified noncompliance. See Preston v. Heckler, 769 F.2d 988, 990-91
(4th Cir. 1985).
Other courts have addressed the propriety of an ALJ making such a “finding” by judicial
[administrative] notice.9 The Middle District of Alabama had one such case. In Traylor v.

A: I do it with headache.
Doc. 10 at 38-39.
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The ALJ did not ask plaintiff whether she was aware of or had tried obtaining
medication from any such clinic. Nonetheless, the ALJ found that “there is no evidence that the
claimant has sought treatment from any of these facilities, or that she has even inquired about the
availability of such treatment.” (p. 22) The court notes that “there is a ‘basic obligation’ on the
ALJ in these nonadversarial proceedings to develop a full and fair record, which obligation rises
to a “ ‘special duty ... to scrupulously and conscientiously explore for all relevant facts' ” where
an unrepresented claimant has not waived counsel.” Broz v. Schweiker, 677 F.2d 1351, 1364
(11th Cir. 1982); see Heckler v. Campbell, 461 U.S. 458, 471 n.1 (1983) (Brennan, J.,
concurring).
9

Plaintiff’s difficulty was obtaining the medication, not obtaining the prescription or
other treatment. The ALJ’s judicial notice involved the availability of medical care, not
(Continued)
8

Astrue, 2010 WL 920114 (M.D.Ala. 2010), that court remanded an adverse benefits
determination to the Commissioner for further proceedings in part because the ALJ had made a
similar finding. As the court stated,
It may be true that there are community clinics near New Brockton, where
plaintiff lives, which offer free or low-cost medical care for patients who lack
financial means to otherwise obtain such care. However, the ALJ may not
consider this “fact” unless there is some evidentiary basis in the record to
support it, or it is an appropriate matter for judicial notice. That free or lowcost medical services were available to the plaintiff in his area is not a matter of
such common knowledge that the court may judicially notice it, and there is
nothing in the administrative record which provides evidentiary support for this
conclusion. See Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997) (“[T]aking
of judicial notice of facts is, as a matter of evidence law, a highly limited
process.”).
Traylor, at *4 (emphasis added).
Additionally, in Heckford v. Astrue, 2011 WL 7092593 at *6, n. 11 (W.D.La. 2011), the
district court rejected the ALJ’s taking of “judicial notice that indigent care is available for the
asking ...” That case involved an ALJ’s holding that failure to take prescribed medication
precluded relief under Social Security Ruling 82-59. The Heckford court noted that “[i]f ... the
claimant cannot afford the prescribed treatment and can find no way to obtain it, the condition
that is disabling in fact continues to be disabling in law.” Quoting Taylor v. Bowen, 782 F.2d
1294, 1298 (5th Cir. 1986). The court stated that
the ALJ first should ascertain that the claimant was aware of these sources and, if
so, why he did not take advantage of them. See Social Security Ruling 82–59 (the

specifically the availability of free or reduced-cost medication, and did not provide adequate
detail to support the availability of free medication of the kind and amount needed by plaintiff.
Given that the ALJ in the instant case and in the two other cases cited above addressed the
existence of free medical care in relation to a claim that plaintiff could not afford medication, it
seems likely that the ALJ took judicial notice of the existence of clinics which provided not only
free medical care but free pharmacy services as well; however, that inference is not clearly stated
in the ALJ’s ruling.

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claimant “will be afforded an opportunity to undergo the prescribed treatment or
to show justifiable cause for failing to do so.” Id. (emphasis added); see also 20
C.F.C. § 416.930 (“If you do not follow the prescribed treatment without a good
reason, we will not find you disabled ...”)
Id. In the instant case, not only did the ALJ not identify any clinic in Mobile which would have
solved plaintiff’s problem, she did not make her finding at the hearing and did not give notice or
otherwise allow plaintiff a chance to test or challenge the basis for her judicial notice, and did not
determine whether plaintiff was aware of such purported alternatives.
The court finds that plaintiff’s second assignment of error is well-taken; the ALJ
improperly took judicial notice of facts not in evidence. The existence of clinics in Mobile
Alabama which provide free or reduced cost Imitrex for people in plaintiff’s position is not a
matter of such common knowledge that this reviewing court may accept his finding without any
supporting detail. Further, it appears from a review of the ALJ’s decision that this finding was
material to the determination that plaintiff’s migraine headaches were not disabling.
Accordingly, this case should be remanded to the Commissioner for further development.
Assuming doctors’ motivation
In light of the court’s determination that plaintiff’s second assignment of error, the court
does not reach a final conclusion on plaintiff’s first issue: that the ALJ erred by purportedly
imputing particular motives to the plaintiff’s treating physicians without support in the record.
Nonetheless, plaintiff’s challenge to the ALJ’s manner of dismissing the opinions of plaintiff’s
treating physicians should be addressed by the ALJ on remand.
Plaintiff has had two primary treating physicians relevant to her claim: Dr. Blaine Britt at
the Stanton Road Clinic treated her for migraines and Dr. Marianne Saitz at Altapointe Health
Systems treated her for depression. Dr. Britt provided a hand-written opinion letter (p. 353)
dated October 28, 2009 in which he stated that plaintiff
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has severe migraine headaches that are persistent despite medical management.
They require her to ly [sic] down for 2-4 hours when they occur and they occur
daily. 10 For this reason primarily it is difficult for her to maintain a job. This is
further complicated by her depression and rheumatoid arthritis.
Similarly, Dr. Saitz provided an opinion letter dated July 29, 2008, stating “[d]ue to her
diagnosis of Major Depression Shorah Rezaei is unable to work in any capacity. I do not
anticipate her ever being able to work in any capacity.”
The record also contains the report of a consultive examiner, Jack Carney Ph.D, a
licensed psychologist who examined plaintiff on August 11, 2009.

Dr. Carney diagnosed

plaintiff as having major depression, but concluded that the condition was likely to respond
favorably to treatment within six to twelve months. Doc 10 at 328. He did not identify
plaintiff’s symptoms or gauge their severity, did not address her limitations resulting from those
symptoms, and did not provide a medical basis for his opinion that she was likely to respond to
treatment in that 6-12 month timetable.
In addition, a state agency psychologist, Ellen Eno, Ph.D., reviewed the records
concerning plaintiff’s depression which had been filed with the agency at that time and
concluded that plaintiff could understand, remember and carry out short, simple, one- and twostep instructions; attend and concentrate for at least two-hour intervals, and that plaintiff should
have infrequent contact with the public and infrequent workplace changes.
In addressing the opinions of Dr. Britt, the ALJ stated that she

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Though the ALJ posed a hypothetical to the VE about an individual whose health
interfered with attendance on a regular basis, she placed no limitation on plaintiff’s ability
regularly to attend work and satisfy its production requirements on a forty-hour-per-week basis.
The ALJ notes that medication “helps with her headaches;” it appears that the ALJ took this
statement to mean that, if plaintiff had enough Imitrex, she would have no significant regular
headache pain. Such a conclusion was not expressly made and, if the ALJ drew such an implicit
conclusion, support in the record is questionable.

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does not give significant weight to the portion of Dr. Britt’s opinion in which she
states that the claimant is permanently disabled. Social Security Rulings 96-2p
and 96-5p indicate that treating physician opinion on issues reserved to the
Commissioner of Social Security are never entitled to controlling weight or
special significance. Since Dr. Britt’s opinion in Exhibit 14F concerns an issue
(whether the claimant is disabled) reserved to the Commissioner, it cannot be
given controlling weight. The possibility always exists that a doctor may express
an opinion in an effort to assist a patient with whom he or she sympathizes for one
reason or another. Another reality which should be mentioned is that patients can
be quite insistent and demanding in seeking supportive notes or reports from their
physicians, who might provide such a note in order to satisfy their patients’
requests and avoid unnecessary doctor/patient tension. While it is difficult to
confirm the presence of such motives, they are more likely in situations where the
opinion in question departs substantially from the rest of the evidence of record,
as in the current case.
There was no consultive examination of the plaintiff which considered her migraine
headache pain.

The ALJ held that the medical evidence concerning plaintiff’s depression

showed that she suffered mild to moderate symptoms of depression, based primarily on the
report of Dr. Carney’s consultive examination. While the ALJ’s references to the likelihood that
both of plaintiff’s treating physicians gave their opinions due to a bias for the plaintiff might
charitably be read as nothing more than idle supposition seeking to explain the underlying
finding that those opinions were not credible, such assertions also may more reasonably be seen
as an attempt to explain the ALJ’s thought process in rejecting those opinions in favor of
opinions from non-treating sources. The argument is unrelated to any specific fact in this case,
and appears to describe a general prejudice against the opinions of treating physicians which
would be at odds with the regulations and rulings of the Commissioner. In Horlick v. Astrue,
2012 WL 1410109 at *5-6 (W.D.Wash), the district court criticized a similar argument by the
ALJ in that case.
The language implicitly assumes that physicians who actually examined and
treated the plaintiff would have a bias either for or against the plaintiff, which is
why the ALJ gave extra weight to the non-examining, non-physician report of the
SDM. This implicit assumption introduces two fundamental errors. First, there is
no basis to suggest (implicitly or explicitly) that any of the examining or non12

examining physicians demonstrated any bias in favor or against the plaintiff.
Compare, e.g., Nguyen v. Chater, 100 F.3d 1462, 64–5 (9th Cir. 1996). Second,
taken to its logical extreme, the ALJ's reasoning would mean that a nonexamining
non-physician report was entitled to more weight than the report of an examining
physician, contrary to well-established Ninth Circuit law. See Orn v. Astrue, 495
F.3d 625, 631 (9th Cir. 2007).
As the Horlick case was to be remanded on other grounds, the court simply recommended that
the Commissioner assure that his determination of the credibility of the treating sources opinion
was based on the hierarchy of medical evidence. The court finds it appropriate in this case to
take as similar approach.
Conclusion
For the reasons set forth above, it is hereby ORDERED that this case be REMANDED to
the Commissioner for further proceedings consistent with this opinion.
DONE this the 19th day of July, 2012.

/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE

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