Peoples v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER entered, Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of theCommissioner be REVERSED and that this action be REMANDED for further administrative proceedings not inconsistent with the Orders of this Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 1/25/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TRICIA PEOPLES,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commission of Social Security,
Defendant.

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CIVIL ACTION 12-0392-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 13-14).1

The parties filed written consent and

this action has been referred to the undersigned Magistrate
Judge to conduct all proceedings and order the entry of judgment
in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see
Doc. 20).

Oral argument was waived in this action (Doc. 19).

Upon consideration of the administrative record and the
memoranda of the parties, it is ORDERED that the decision of the
Commissioner be REVERSED and that this action be REMANDED for

1

Plaintiff originally filed for disability insurance
benefits under 42 U.S.C. § 405(g), but amended her disability
onset date and withdrew her claims for these benefits at the
evidentiary hearing (see Doc. 14, p. 1; cf. Doc. 15, p. 1 n.1).

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further administrative proceedings not inconsistent with the
Orders of this Court.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the administrative hearing, Plaintiff was
forty-eight years old, had completed a high school education
(Tr. 27), and had previous work experience as a fast food cook,
cashier, and sewing machine operator (Tr. 27-29).

In claiming

benefits, Plaintiff alleges disability due to diabetes,
hypertension, and cognitive loss (Doc. 13).
The Plaintiff filed an application for SSI on October 22,
2008 (Tr. 143-45; see also Tr. 9).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that although Peoples could not return to her past
relevant work, there were unskilled, light work jobs in the

2

national economy which she could perform (Tr. 9-22).

Plaintiff

requested review of the hearing decision (Tr. 140-41) by the
Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Peoples

(1) The ALJ erred in rejecting the opinion of the

only examining neuropsychologist; (2) the ALJ erred in
evaluating her noncompliance; (3) the ALJ’s decision is
internally inconsistent; and (4) the ALJ improperly credited the
opinion of the vocational expert (Doc. 14).

Defendant has

responded to—and denies—these claims (Doc. 15).

The relevant2

evidence of record follows.
Dr. Toheed J. Kamal examined Peoples on February 15, 2008
and noted that she had “type 2 diabetes, hypertension,
dyslipidemia, retinopathy, and micro albuminuria.

She has done

self-monitoring twice daily and the control has been suboptimal”
(Tr. 293; see generally Tr. 292-304).

Though Plaintiff had

gained about eight pounds in the previous six weeks, her exam
was normal; Kamal instructed her to limit herself to three-tofour carbohydrates per meal.

On November 18, the doctor noted

that Peoples was “under stress and has often skipped her

2

As referenced in note one, Peoples amended her onset date
to October 22, 2008 at the evidentiary hearing (see Tr. 9), so
the Court finds it unnecessary to review the medical evidence
that precedes that date by a long period of time.

3

insulin, partly related to the cost” (Tr. 292).

Kamal noted a

fifteen-pound weight loss since the previous examination, but
indicated that she had missed her anti-hypertensive medications;
dietary habits were characterized as poor.

The doctor indicated

that her diabetes was in “poor control with poor compliance”
(id.).
On November 18, 2008, Peoples was seen at Sputh Center for
Sight where she was diagnosed to have non-proliferative diabetic
retinopathy, hypertension eye disease, and a cataract, caused by
diabetes and hypertension (Tr. 305-07).

Her prognosis was good

so long as her blood pressure and diabetes were controlled.
On May 8, 2009, Dr. Huey R. Kidd examined Plaintiff for
photophobia and a headache; he noted that her extra-ocular
movements were intact (Tr. 330-31; see generally 322-63).

The

diagnosis was essential hypertension, poorly controlled diabetes
mellitus, and a migraine headache.

On May 22, the doctor

examined Peoples for blurry vision for which a yearly eye exam
was recommended (Tr. 326-29).

On June 5, 2009, Dr. Kidd

continued his diagnosis of essential hypertension and poorly
controlled diabetes mellitus; he recommended a low sodium,
weight loss diet and regular exercise (Tr. 322-25).

Two weeks

later, the doctor noted that Peoples was not exercising
regularly (Tr. 356); this was noted again on June 30 (Tr. 352).
Dr. Kidd’s diagnosis of Peoples remained accelerated essential

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hypertension and poorly controlled diabetes mellitus throughout
his treatment of her on January 20, 2010, although his notes,
after June 30, 2009, stopped referencing her failure to exercise
(Tr. 333-351).
On July 24, 2009, Peoples was admitted to Southwest Alabama
Medical Center, complaining that she was weak, achy, and unable
to walk (Tr. 395-427; see generally Tr. 364-427).

Plaintiff’s

back was noted to be tender though her gait was normal.

A

pelvic ultrasound revealed an enlarged uterus, consistent with
fibroid disease, and endometrial atrophy (Tr. 411); an abdominal
ultrasound demonstrated a large calcified gallstone suggestive
of developing cholecystitis (Tr. 413).

On October 13, Peoples

had x-rays performed that showed mild osteoarthritic changes in
the right shoulder (Tr. 390-94); on December 1, Plaintiff was
treated for chills (Tr. 380-89).

On January 12, 2010, x-rays of

the right wrist were normal (Tr. 375-79).

On January 27,

Plaintiff had a normal chest x-ray (Tr. 365-73).
On April 22, 2010, Neuropsychologist John R. Goff noted
that he had been provided with Peoples medical records to review
along with his examination of her (Tr. 428-36).

Goff found

Plaintiff to have logical and coherent discourse, stating that
she was depressed.

Peoples took the WAIS-IV and obtained a full

scale IQ score of 81; the Neuropsychologist noted that subtest
scores indicated a decline from previous levels of function,

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most likely attributable to her poorly-controlled diabetes and
hypertension.

On the Wechsler Test of Adult Reading, Plaintiff

had a predicted IQ score of 91.

The Central Nervous System

Vital Signs Clinical Report showed above-average scores for
attention and concentration, but a very low score for
psychomotor speed; reaction time was also noted to be slow.
Goff noted that Peoples was “pervasively sad, discouraged and
demoralized” (Tr. 432).

The examiner noted that Plaintiff “was

able to understand, follow and carry out simple and complex
instructions at least of a moderate level;” he went on to note
that she would have difficulty with tasks requiring more than
moderate effort because of a marked tendency to fatigue (Tr.
433).

Goff’s diagnoses were moderate major depressive disorder,

probably continuous, and mild to moderate cognitive disorder
associated with a metabolic disorder.

The Neuropsychologist

completed a Mental Medical Source Opinion form that indicated
that Peoples had many moderate limitations in addition to marked
limitations in her ability to remember detailed or complex
instructions and respond to customary work pressures; he also
found extreme limitation in her ability to maintain attention,
concentration, or pace for periods of at least two hours and in
constriction of interests.
On February 2, 2010, Dr. David Shaw had Plaintiff undergo
an echocardiogram of the left ventricle that was of normal size

6

and good function with mild mitral and tricuspid regurgitation
(Tr. 472-73; see generally Tr. 455-75). Nine days later,
Plaintiff underwent a GXT Cardiolite test that demonstrated fair
exercise capacity; there was no “clear evidence of inducible
myocardial ischemia or previous infarctions” (Tr. 474).

Peoples

also completed a treadmill stress test on February 11, 2010 from
which the conclusion was drawn that she had good exercise
capacity for her age (Tr. 475).
following impression:

On March 30, Dr. Shaw had the

status post shoulder surgery with

manipulation breaking up presumable adhesions; an abnormal EKG;
a negative nuclear study; normal LV function; arthritis, and
obesity (Tr. 455).
On August 12, 2010, Dr. Huey R. Kidd noted that Plaintiff
was not exercising regularly; she had a headache with nausea and
vomiting (Tr. 489-93; see generally Tr. 477-521).
to be in no acute distress.

She appeared

The doctor’s assessment was

accelerated essential hypertension, poorly controlled diabetes
mellitus, and a migraine headache.

A week later, Dr. Kidd noted

that Plaintiff’s blood sugar was much too elevated; in addition
to the usual diagnosis of hypertension and diabetes, Peoples had
otitis externa and otitis media (Tr. 486-89).

Plaintiff’s blood

sugar and ears were better on September 2 (Tr. 485-86).

At the

October 6 and November 8 examinations, Kidd noted that Plaintiff
was not exercising regularly; the diagnosis remained the same

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(Tr. 477-84). On November 23, the record notes that Peoples had
begun to walk regularly; she complained of constant hunger and
some weight gain (Tr. 520-21).

She was noted to be obese;

Plaintiff’s diagnosis included hypertension and poorly
controlled diabetes mellitus.

Dr. Kidd recommended a diabetic

and low fat diet as well as losing ten pounds.

On February 11,

2011, Peoples complained of being tired all of the time (Tr.
514-16).

On March 30, Plaintiff was seen for strep throat; in

addition to her diabetes diagnosis, Kidd noted generalized
osteoarthritis (Tr. 512-14).
fried foods.

Peoples was told to cut back on

On April 8, esophageal reflux was added to the

diagnosis (Tr. 510-12).

On May 24, Plaintiff complained of

joint pain for which she was prescribed hydrocodone;3 the
doctor’s assessment was hypertension, poorly controlled Diabetes
mellitus, and arthritis (Tr. 508-10).

On July 20, Plaintiff was

encouraged to get regular exercise; diagnoses remained the same
(Tr. 504-07).
On September 6, 2011, Dr. Gary Kania performed a
colonoscopy and found two different polyps (Tr. 522-29).

There

was no evidence of malignancy, acute inflammation, or
inflammatory bowel disease.
At the evidentiary hearing, Peoples testified of her age,

3Error!
 Main
 Document
 Only.Hydrocodone is used “for the relief

of moderate to moderately severe pain.”
Reference 2926-27 (52nd ed. 1998).

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Physician's Desk

education, and work experience (Tr. 27-29; see generally Tr. 2740).

She had quit working years earlier because high blood

pressure and diabetes medications made her tired all of the time
(Tr. 29).

She could drive locally; mostly, she laid on the

couch and watched TV and slept (Tr. 30).

She testified that she

takes insulin four times a day and checks her blood sugar two or
three times a week (Tr. 31-32).

Her dominant hand, the right

one, goes numb, preventing her from gripping anything tightly or
picking up a gallon of milk (Tr. 32-33).
control her blood pressure (Tr. 33).

Medication does not

Peoples has headaches two

or three times a week; she gets migraine headaches every two to
three months, each lasting twenty minutes or so, which cause
nausea and vomiting (Tr. 33-34).

Because of tiredness,

Plaintiff lies down about four-to-five hours every day; she has
tried to do what her doctors told her to do (Tr. 35).

Peoples

has torn tissues, arthritis and a messed-up rotator cuff in the
right shoulder that causes her pain (Tr. 36-37).
trouble with her memory (Tr. 38).

Plaintiff has

She is unable to work because

of being tired, because she cannot regularly use her right arm,
because she has to go to the bathroom all of the time, and she
is constantly taking shots (Tr. 38-39).

Peoples is going to

have to have surgery on her eyes because of the diabetes (Tr.
39).
Dr. James Anderson testified at the evidentiary hearing as

9

a medical expert (hereinafter ME) (Tr. 40-44).

Anderson stated

that Peoples
has a treating record for diabetes mellitus,
insulin dependent. Poorly controlled, at
least partially due to the medical
noncompliance, due most likely to a
combination of a mental health disorder and
her lack of funding. She has hypertension
without any end-organ damage. She has
visual problems due to a combination of
diabetic retinopathy, stigmatism, and
refractory error which are corrected to
20/20 with glasses. She has chronic
abdominal pain with a history of gallbladder
and a total abdominal hysterectomy for
benign disease, both in the year 2009. And,
she has a diagnosis of shoulder pain with
the diagnosis of rotator cuff strain treated
symptomatically. No hospitalizations or
significant treatment for diabetic
complications.
(Tr. 41).

It was Anderson’s opinion that Peoples did not meet

any of the Listing requirements and that she would be limited to
light work (Tr. 42).

He acknowledged that fatigue could be a

symptom of poorly controlled diabetes and hypertension and that
hypertension can cause headaches (Tr. 44).
A Vocational Expert (hereinafter VE) testified that
Plaintiff, based on hypothetical questions posed by the ALJ, was
not capable of performing her past relevant work but could
perform the following jobs:

factory hand worker, nut sorter,

and production inspector (Tr. 44-50).
After summarizing the medical and vocational evidence of

10

record, the ALJ determined that Peoples was capable of
performing a reduced range of unskilled, light work (Tr. 9-22).
Specifically, he reached the following conclusions:
I find that the claimant has the residual
functional capacity to perform light work as
defined in 20 C.F.R. 416.967(b) except that
she can lift/carry items of 20 pounds weight
occasionally and 10 pounds frequently. She
can sit for 6 hours and stand/walk for 6
hours. She can perform occasional
pushing/pulling with the right (dominant)
upper extremity and unlimited
pushing/pulling with the lower extremities.
She can frequently balance, stoop, kneel,
crouch, crawl, and climb ramps and stairs.
She can occasionally climb ladders, ropes,
or scaffolds. She can perform unlimited
reaching with the left arm. She should
avoid overhead reaching with the right arm,
but she can frequently reach otherwise with
the right arm. She can perform frequent
handling with the right hand and unlimited
handling with the left hand. She can
perform unlimited fingering. She can
tolerate occasional exposure to extreme
cold. She should avoid all exposure to
unprotected heights. She cannot work around
bodies of water or drive commercially. She
can perform simple, routine tasks involving
no more than simple, short instructions and
simple, work-related decisions with few work
place changes. She can tolerate nontransactional and occasional interaction
with the public, and occasional interaction
with supervisors. She is able to sustain
concentration and attention for 2-hour
periods with customary breaks. She must be
reminded of tasks 1 time per day. She can
be expected to have 1 unplanned absence per
month.
(Tr. 14).

The ALJ determined that information provided by

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Peoples was not entirely reliable (Tr. 18-19).

He discredited

the opinions of Dr. Goff while giving substantial weight to the
testimony of the ME, Dr. Anderson (Tr. 19-20).

Based on the

VE’s testimony, the ALJ found that there were specific jobs that
Peoples could perform.
In bringing this action, Peoples claims that the ALJ erred
in rejecting the opinion of the only examining neuropsychologist
(Doc. 14, pp. 6-8).

Plaintiff cites several reasons for this

claim, all of which will be discussed.

It should be noted that

"although the opinion of an examining physician is generally
entitled to more weight than the opinion of a non-examining
physician, the ALJ is free to reject the opinion of any
physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);4 see
also 20 C.F.R. § 404.1527 (2012).
In bringing this claim, Peoples points out that the ALJ
adopted Goff’s diagnosis of cognitive loss as a severe
impairment even though no other medical source offers the same
diagnosis.

Plaintiff goes on to argue, apparently, that because

the diagnosis was adopted, the ALJ had accepted Goff as a
specialist and could not then reject his opinions (Doc. 14, p.

4The Eleventh Circuit, in the en banc decision Bonner v.

City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted
as precedent decisions of the former Fifth Circuit rendered prior
to October 1, 1981.

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6).

The Court finds no merit in this argument, noting that the

ALJ can reject any opinion not supported by the evidence.
Peoples also takes umbrage in the ALJ’s rejection of the
Goff’s opinion as having been bought by her attorney (Doc. 14,
p. 6).

The Court notes that the ALJ stated as follows:
It is emphasized that the claimant underwent
the examination that formed the basis of the
opinion in question not in an attempt to
seek treatment for symptoms, but rather,
through attorney referral and in connection
with an effort to generate evidence for
current appeal. Further, the doctor was
presumably paid for the report. Although
such evidence is certainly legitimate and
deserves due consideration, the context in
which it was produced cannot be entirely
ignored.

(Tr. 19-20).

The Court agrees that the ALJ’s remarks are

offensive as they impugn the integrity of the medical opinion
and the doctor giving it.

However, the Court will not reject

the ALJ’s conclusion on this basis as he gave one other reason
for rejecting Goff’s opinion.
The ALJ’s other proffered reason for rejecting the
Neuropsychologist’s opinion is “because it is not consistent
with the objective evidence of record and the residual
functional capacity of the claimant” (Tr. 20).

The Court notes,

however, that the ALJ did not state what the evidence was that

13

he was using as the basis for rejecting Goff’s conclusions.5

The

Court notes that there is no other evidence of record regarding
People’s mental impairments and that the only evidence given any
weight by the ALJ came from ME Anderson who testified that she
had a mental health disorder; the ME also acknowledged that a
person experiencing both high blood pressure and diabetes could
suffer cognitive loss (Tr. 41, 43).
In this record, Neuropsychologist Goff is the only expert n
who provided an evaluation of Peoples’ mental abilities and
limitations; that was done after an examination and
administering a battery of tests.

The ALJ points to no evidence

to dispute Goff’s conclusions, choosing only to find that that
the opinion was paid for and unsupported by unspecified,
objective evidence (Tr. 20).

Without more, the Court cannot say

that the ALJ’s conclusion is supported by substantial evidence.
The Court does not find that Plaintiff is disabled or is
even likely disabled.

The Court’s holding is limited to the

finding that the ALJ’s conclusion, that Dr. Goff’s opinion
should be rejected, is not supported by substantial evidence.

5

The Court finds it of no moment that the Government is more than
willing to offer evidence it considers contrary to Dr. Goff’s opinion
(see Doc. 15, pp. 8-10), noting that Plaintiff is equally willing to
point out why he got it right (see Doc. 14, p. 7). The Court’s duty
is not to determine whether persuasive arguments have been made as to
what the ALJ might have meant, but to determine whether the ALJ’s
conclusions are supported by substantial evidence.

14

Therefore, it is ORDERED that the action be REVERSED and
REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a consultative psychological evaluation
as to Plaintiff’s mental abilities and limitations.

Judgment

will be entered by separate Order.
DONE this 25th day of January, 2013.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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