Davis v. Astrue
Order that plaintiff's Social Security claim is REMANDED to the Commissioner for further proceedings consistent with this opinion. Signed by Magistrate Judge Katherine P. Nelson on 1/30/2013. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
TONYA HILL DAVIS,
) CIVIL ACTION NO. 12-0071-N
MICHAEL J. ASTRUE, Commissioner of )
This matter is before the court on plaintiff’s appeal of the final decision of the
Commissioner of Social Security denying hers claim for benefits. The parties have
waived oral argument in this case (docs. 17, 20); the parties also have consented to the
exercise of jurisdiction by a magistrate judge (doc. 18) and the action has been referred to
the undersigned for all purposes (doc. 19). Upon review of the briefs of the parties (docs.
12, 15) and the administrative record (doc. 11), it is the opinion of the undersigned that
this matter is due to be REMANDED.
Plaintiff filed her claims for a period of disability and disability insurance benefits
(“DIB”) and for supplemental security income (“SSI”) on August 23, 2007, alleging that
she became disabled as of June 27, 2007. Doc. 11, at 131-137. The applications were
initially denied (id. at 75-88) on March 10, 2008. Plaintiff timely filed a request for
hearing; a hearing was held before an administrative law judge (“ALJ”) on August 6,
2009, at which plaintiff was represented by counsel. The ALJ issued an unfavorable
decision on November 2, 2009 (id. at 24-38).
Thereafter, plaintiff sought review of that decision from the Appeals Council. Id.
at 21. The Appeals Counsel denied review on December 14, 2011, (id. at 5), which
rendered the ALJ’s decision the final decision of the Commissioner. Plaintiff timely filed
the instant appeal (doc. 1).
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 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), 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
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).
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
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.
Plaintiff raises the following three issues on appeal:
That the ALJ failed to address the opinion of Dr. Huey Kidd, one of
plaintiff’s treating physicians;
That the ALJ failed to consider plaintiff’s seizures under Listing 11.03;
That the ALJ failed to include a “function-by-function” assessment in
determining plaintiff’s residual functional capacity (“RFC”).
Plaintiff claimed disability, alleging that she suffered from seizures, anemia,
obesity and bulging lumbar disc. She last worked in June 2007. Doc. 11 at 149. She
was 35 years of age at the time she filed her claim, and 37 at the time of the ALJ’s
decision. Doc. 12.
At the hearing, the ALJ left the record open to allow plaintiff’s attorney to submit
additional medical records from Dr. Huey Kidd. Doc. 11 at 38. Indeed, the ALJ stated
that he was “very interested in getting the updated records regarding the seizures, and
quite frankly it could make or break the case” and that he was expecting additional
information on the frequency of her sizures. Id. at 73. The ALJ also asked counsel to
submit his analysis of whether plaintiff met the listing on seizures. Id. Her attorney
agreed to do so, but responded that “[t]he only problem I think with the seizure listing is,
I believe the seizure listing is going to require some, some medical studies that we
currently won’t have.” Id. at 73-4.
After the hearing on August 6, 2009, plaintiff’s counsel submitted a short cover
letter and a one-page form completed by Dr. Kidd on September 5, 2009, entitled
“Medical Statement Regarding Seizures for Social Security Disability Claim.” Id. at 40506. In that form, Dr. Kidd checked the boxes for both Generalized and Absence seizures;
checked the box indicating that plaintiff suffered convulsive seizures about once a week,
but wrote that “[h]as been 1 month since a generalized seizure. Prior to a dosing change
of her Dilantin she was having them twice weekly;” and checked boxes indicating that
plaintiff suffered non-convulsive seizures several times per week and that plaintiff
showed ‘excellent’ compliance with treatment. Id.
In the order, the ALJ erroneously stated that “[t]he record does not contain any
opinions from treating or examining physicians indicating that the claimant is disabled or
even has limitations greater than those determined in this decision. … At the hearing the
claimant and her attorney were given the opportunity to update the medical records from
Dr. Kidd; however, they did not.” Id. at 36. As noted above, and as admitted by the
Commissioner in his brief (doc. 15 at 5-6), plaintiff’s counsel did indeed provide updated
records from Dr. Kidd. See doc. 11 at 405-06. It is thus apparent that the ALJ did not
consider the updated records submitted prior to entering his order.
The ALJ found that plaintiff met the insured status requirement for DIB benefits
through September 30, 2009; that she had not engaged in substantial gainful activity since
June 27, 2007, the alleged onset date of her disability; and that she had the following
severe impairments: depression, iron deficiency anemia, obesity, L3-4 disc bulges, and
seizures. Id. at 29. The ALJ further found that plaintiff suffered from a deviated nasal
septum but that it was not a severe impairment. Id. Plaintiff had past work at Carolyn’s
Recycling for approximately one month until she was “too sick”2 and at Pine Hill Supply
and Old School Truck Stop as a cashier for 10 months prior to that. Id. at 34-35.
As discussed above, at the end of the hearing the ALJ indicated that he was
particularly interested in additional medical records addressing the frequency of
plaintiff’s seizures. Plaintiff submitted evidence that addressed that particular issue: her
treating physician provided a statement that, prior to a change in the dosage of one of her
medications for seizure, she had suffered seizures multiple times per week. Though the
government correctly points out that plaintiff’s claim is weakened by the lack of
corroborating objective evidence in her medical records and might have been based on
Mr. Glenn Pendergrass, the general manager of plaintiff’s last employer,
Carolyn’s Recycling, testified at the hearing that plaintiff had two seizures while she
worked there; that plaintiff hit her head during one of those seizures and he took her to
the emergency room; and that plaintiff recovered from her other seizure after drinking a
soda. Id. at 63-64.
plaintiff’s subjective statements to the doctor, the evidence did directly address the
particular point the ALJ found lacking in the case record. The government argues that
the additional evidence does not so significantly alter the evidence as to render the ALJ’s
decision unsupported by substantial evidence.
An “ALJ has a basic obligation to develop a full and fair record. This obligation
exists even if the claimant is represented by counsel.” Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir. 1981); see also Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir.
1984) (“It is reversible error for an ALJ not to order a consultative examination when
such an evaluation is necessary for him to make an informed decision.”). “Remanding for
further proceedings is thus appropriate when the ALJ's decision is not supported by
substantial evidence, as when an ALJ fails to consider important evidence in the record or
fails to sufficiently develop the record.” See McGruder ex rel. D.J. v. Astrue, 2012 WL
5817938 (N.D.Ga. November 16, 2012)(citing Durham v. Apfel, 34 F.Supp.2d 1373,
1382 (N.D.Ga.1998) (remanding when the ALJ failed to consider evidence of the severity
of an impairment, failed to consider all impairments in combination, omitted an
impairment in a hypothetical question posed to a vocational expert, and failed to fully
develop the record).
In this case, the unreviewed evidence was of the sort requested by the ALJ, was
relevant to the precise issue identified by the ALJ as central to his decision, was present
in the record at the time the ALJ made his decision, but was ignored in forming that
decision. If the ALJ had considered the additional evidence and nonetheless found that
plaintiff was not disabled, the court would properly apply the substantial evidence
standard under its limited standard of factual review; however, the evidence presented
may have led the ALJ to a different conclusion which could itself have been supported by
substantial evidence. The ALJ’s failure to consider this opinion evidence from plaintiff’s
treating physician, properly and timely submitted, which he himself identified as of
particular relevance to his decision, leads the undersigned to remand the decision to allow
the ALJ the opportunity to review the full record.
In light of this determination, the court does not address the plaintiff’s remaining
assignments of error.
For the reasons set forth above, it is hereby ORDERED that plaintiff’s Social
Security claim is REMANDED to the Commissioner for further proceedings consistent
with this opinion. A separate judgment shall enter.
DONE this 30th day of January, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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