Cooke v. Colvin

Filing 29

MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff's application for DIB benefits is REVERSED and REMANDED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 1/8/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ANDREW COOKE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 14-00584-N

MEMORANDUM OPINION AND ORDER
Social Security Claimant/Plaintiff Andrew Cooke has brought this action
under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Defendant
Commissioner of Social Security (“the Commissioner”) denying his protective
application for disability insurance benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. § 401, et seq. By the consent of the parties (see Doc. 25), the
Court has designated the undersigned Magistrate Judge to conduct all proceedings
and order the entry of judgment in this civil action, in accordance with 28 U.S.C. §
636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Doc. 28).
Upon consideration of the parties’ briefs (Docs. 14, 15, 21, 23) and the
administrative record (Doc. 13) (hereinafter cited as “(R. [page number(s)])”),1 the
Court finds that the Commissioner’s decision is due to be REVERSED and
REMANDED.

With the Court’s consent, the parties jointly waived the opportunity for oral argument.
(See Docs. 26, 27).

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I.

Procedural Background

Cooke protectively filed an applications for DIB with the Social Security
Administration (“SSA”) on August 18, 2011, alleging disability beginning December
26, 2008. 2 (R. 169 – 170).

After his application was initially denied, Cooke

requested a hearing, which was held before an Administrative Law Judge (“ALJ”)
for the SSA on December 10, 2012. (R. 35). On March 14, 2013, the ALJ issued an
unfavorable decision on Cooke’s application, finding him “not disabled” under the
Social Security Act. (See R. 33 – 50). Cooke requested review of the ALJ’s decision
by the Appeals Council for the SSA’s Office of Disability Adjudication and Review
and submitted additional evidence in support of his application.

The

Commissioner’s decision on Cooke’s DIB application became final when the Appeals
Council denied Cooke’s request for review on October 20, 2014. (R. 1 – 5). On
December 17, 2014, Cooke filed this action under § 405(g) for judicial review of the
Commissioner’s final decision. (Doc. 1).

See 42 U.S.C. § 405(g) (“Any individual,

after any final decision of the Commissioner of Social Security made after a hearing
to which he was a party, irrespective of the amount in controversy, may obtain a
review of such decision by a civil action commenced within sixty days after the
mailing to him of notice of such decision or within such further time as the

“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).” Sanders v.
Astrue, Civil Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28, 2012). “For
DIB claims, a claimant is eligible for benefits where she demonstrates disability on or
before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005).” Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam). The ALJ determined that
Cooke’s last-insured date was June 30, 2014. (R. 37).

2

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Commissioner of Social Security may allow.”); Ingram v. Comm'r of Soc. Sec.
Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this Circuit is that
a court may review, under sentence four of section 405(g), a denial of review by the
Appeals Council.”).
II.

Standard of Review

“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is

‘ “supported by substantial evidence and based on

proper legal standards. Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d
1436, 1439 (11th Cir. 1997))). However, the Court “ ‘may not decide the facts anew,
reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ”
Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8
(11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the
[Commissioner]'s factual findings, we must affirm if the decision reached is
supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine if the

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decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). “In determining
whether substantial evidence exists, [a court] must…tak[e] into account evidence
favorable as well as unfavorable to the [Commissioner’s] decision.”
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

Chester v.

Moreover, “[t]here is no

presumption…that the Commissioner followed the appropriate legal standards in
deciding a claim for benefits or that the legal conclusions reached were valid.
Instead, [the court] conduct[s] ‘an exacting examination’ of these factors.” Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (citing Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990)) (internal citation omitted). In sum, courts
“review the Commissioner’s factual findings with deference and the Commissioner’s
legal conclusions with close scrutiny.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th
Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per
curiam) (“In Social Security appeals, we review de novo the legal principles upon
which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986). However, we review the resulting decision only to determine
whether it is supported by substantial evidence. Crawford v. Comm'r of Soc. Sec.,
363 F.3d 1155, 1158–59 (11th Cir. 2004).”). “ ‘The [Commissioner]'s failure to apply
the correct law or to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted mandates reversal.’ ”
Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46
(11th Cir. 1991)).

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Eligibility for DIB … requires that the claimant be disabled. 42 U.S.C.
§[] 423(a)(1)(E) … A claimant is disabled if she is unable “to engage in
any substantial gainful activity by reason of a medically determinable
physical or mental impairment ... 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).
Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 (11th Cir. Feb. 11,
2015) (per curiam) (unpublished).3
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).4
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
In this Circuit, “[u]npublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014). See also
Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).

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The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual
steps of this five-step sequential evaluation.

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(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant's age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).

“These factors must be considered both singly and in

combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
claimant is capable—given his or her age, education, and work history—of engaging
in another kind of substantial gainful employment that exists in the national
economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).

Finally, but importantly, although the

“claimant bears the burden of demonstrating the inability to return to [his or] her
past relevant work, the Commissioner of Social Security has an obligation to
develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.

In determining whether a

claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
quotation omitted).
“When no new evidence is presented to the Appeals Council and it denies

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review, then the administrative law judge's decision is necessarily reviewed as the
final decision of the Commissioner, but when a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider whether that new
evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262.
III.

Claims on Judicial Review

1. “The ALJ erred in rejecting the opinion of the examining neuropsychologist,
John R. Goff, Ph.D., without identifying any substantial evidence to support
the rejection.”
2. “The ALJ erred in failing to find Mr. Cooke disabled under Social Security
Ruling 85-15.”
(Doc. 15 at 1).
IV.

Analysis

A.

Claim 1

Cooke alleges disability beginning December 26, 2008, which is the date he
was admitted to a hospital due to suffering a “possible” seizure while engaged in his
former job of driving a school bus. (R. 41). The ALJ found from the record evidence
that Cooke showed “no more seizure activity” after that one reported episode.
Cooke does not challenge this finding on appeal, nor does he challenge any of the
ALJ’s findings regarding his physical impairments, only his mental impairments.
After conducting an examination of Cooke on November 19, 2012, Dr. Goff
diagnosed him with “adjustment disorder with depressed mood,” “moderate to
severe reading disorder,” “disorder of written expression,” and “borderline

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intellectual functioning.” (R. 429). Dr. Goff also commented that Cooke’s “cognitive
deficits are problematic and represent interfering factors in regard to vocational
activity” and that “[h]is depression at this point represents a severe impairment.”
(R. 429). Additionally, Dr. Goff completed a Medical Source Opinion Form (Mental),
dated November 21, 2012, opining that Cooke had “extreme” limitations in his
ability to respond to customary work pressures and to maintain attention,
concentration, or pace for periods of at least two hours in a routine work setting,
and “marked” limitations in his ability to deal with change in a routine work
setting.5 (R. 430). Dr. Goff’s opinion was that the same level of severity existed as
early as 2009 and that the limitations he assigned lasted or could be expected to
last for 12 months or longer. (R. 431).
At Step One, the ALJ determined that Cooke had “not engaged in substantial
gainful activity since December 26, 2008, the alleged onset date.” (R. 37). At Step
Two, the ALJ determined that Cooke had the following severe impairments: mild
coronary artery disease, and one possible seizure episode on December 26, 2008,
without subsequent seizure activity. (R. 37). The ALJ noted at Step Two that Dr.
Goff had suggested “mental impairments of adjustment disorder with some
depressed mood; possible disorder of written expression; and possible borderline
intellectual functioning.” (R. 38). However, the ALJ expressed skepticism of the
severity of Dr. Goff’s assessment, concluding that, while Cooke “might suffer some
mental impairment[,]” “per the totality of the evidence, his mental impairments
The form defined “marked” as: “There is serious limitation in this area. There is a
substantial loss in the ability to effectively function.” It defined “extreme” as: “There is
major limitation in this area. There is not useful ability to function in this area.” (R. 430).

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appear to be slight abnormalities that – if they exist at all – cause little, if any,
limitation in [Cooke’s] ability to perform mental work activity” and “are therefore
nonsevere.” (R. 38). At Step Three, the ALJ found that Cooke did not have an
impairment or combination of impairments that meets or equals the severity of the
specified impairments in the Listing of Impairments. (R. 40).
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R. §
404.1545(a). Moreover, the ALJ will “assess and make a finding about
[the claimant's] residual functional capacity based on all the relevant
medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
Furthermore, the RFC determination is used both to determine
whether the claimant: (1) can return to her past relevant work under
the fourth step; and (2) can adjust to other work under the fifth
step…20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant's RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That
is, the ALJ must determine if the claimant is limited to a particular
work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the
claimant’s RFC and determines that the claimant cannot return to her
prior relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ determined that Cooke had the RFC “to perform the full range of

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medium work as defined in 20 CFR 404.1567(c).”6 (R. 40). In formulating this RFC,
the ALJ found that Dr. Goff’s “assessment of limitations” in the Medical Source
Opinion Form was “so contrary to the subjective, medical, and objective evidence of
record that it does not merit weight.”

(R. 47).

“As to the remainder of the

assessment, the [ALJ] reluctantly allowed for some slight abnormality with slight
limitation in [Cooke’s] ability to perform mental work activity” but determined
“[t]here is no more than nonsevere mental impairment.” (R. 48). The ALJ then
determined that Cooke was able to perform past relevant work as a bus driver, fish
machine feeder, and street cleaner, or, in the alternative, that there are other jobs
that exist in significant numbers in the national economy that Cooke can also
perform, thus determining that Cooke was not disabled. (R. 49 – 50).7

“To determine the physical exertion requirements of different types of employment in the
national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and
very heavy. These terms are all defined in the regulations…Each classification…has its
own set of criteria.” Phillips, 357 F.3d at 1239 n.4. “Medium work” is defined as work that
that “involves lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds. If someone can do medium work, … he or she can also do
sedentary and light work.” 40 C.F.R. § 404.1567(c).

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Cooke does not specify at which Step(s) he claims the ALJ erroneously rejected Dr. Goff’s
opinions. However, because the ALJ found Cooke to suffer some severe impairments at
Step Two, proceeded with the sequential inquiry, and considered Cooke’s mental
impairments in the later steps, any error at Step Two is harmless. See Delia v. Comm'r of
Soc. Sec., 433 F. App'x 885, 887 (11th Cir. July 14, 2011) (per curiam) (unpublished)
(“Substantial evidence does not support the ALJ's finding, at step two, that Delia’s mental
impairments were not severe because the medical evidence showed that these impairments
did cause restrictions in daily living, social functioning, and maintaining concentration,
persistence, or pace.
However, the ALJ deemed several of Delia’s other medical
impairments to be severe and therefore continued on in the sequential inquiry. The ALJ
considered Delia's mental impairments at steps three, four, and five. Because the ALJ gave
full consideration to the consequences of Delia's mental impairments on his ability to work
at later stages of the analysis, the error at step two was harmless and is not cause for
reversal. See Reeves v. Heckler, 734 F.2d 519, 524 (11th Cir. 1984) (rejecting a challenge to
an ALJ's conclusion as harmless error when the ALJ had considered the relevant evidence

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Cooke asserts that substantial evidence does not support the ALJ’s decision
to give no weight to Dr. Goff’s opinions. “ ‘Medical opinions are statements from
physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [the claimant's] impairment(s),
including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant]
can still do despite impairment(s), and [the claimant's] physical or mental
restrictions.’ ” Winschel, 631 F.3d at 1178-79 (quoting 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2)).
physicians;

(2)

“There are three tiers of medical opinion sources: (1) treating
nontreating,

examining

physicians;

and

(3)

nontreating,

nonexamining physicians.” Himes v. Comm'r of Soc. Sec., 585 F. App'x 758, 762
(11th Cir. Sept. 26, 2014) (per curiam) (unpublished) (citing 20 C.F.R. §§
404.1527(c)(1)-(2), 416.927(c)(1)-(2)). “In assessing medical opinions, the ALJ must
consider a number of factors in determining how much weight to give to each
medical opinion, including (1) whether the physician has examined the claimant; (2)
the length, nature, and extent of a treating physician's relationship with the
claimant; (3) the medical evidence and explanation supporting the physician’s
opinion; (4) how consistent the physician’s opinion is with the record as a whole; and
(5) the physician’s specialization. These factors apply to both examining and nonexamining physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523
(11th Cir. Sept. 30, 2014) (per curiam) (unpublished) (internal citations and
in making the disability determination).”); Hearn v. Comm'r, Soc. Sec. Admin., No. 1415261, 2015 WL 4591811, at *3 (11th Cir. July 31, 2015) (per curiam) (unpublished) (“Any
error at step two was harmless because the ALJ found in Hearn's favor as to impairment,
and the ALJ properly noted that he considered Hearn’s impairments in the later steps.”
(citations omitted)).

11

quotation marks omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)).
“[T]he ALJ must state with particularity the weight given to different medical
opinions and the reasons therefor.” Winschel, 631 F.3d at 1179 (citing Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam)). However, the ALJ “may
reject the opinion of any physician when the evidence supports a contrary
conclusion.” Bloodsworth, 703 F.2d at 1240. Accord, e.g., Anderson v. Comm'r of
Soc. Sec., 427 F. App'x 761, 763 (11th Cir. 2011) (per curiam) (unpublished).8
There is no denying that the ALJ expressed some suspicion of Dr. Goff’s
opinion because he assessed Cooke “at the behest of [Cooke]’s representative…” (R.
38.

See also R. 46 (“Nonetheless, and somewhat incredulously, the claimant’s

representative directed him to a third party consultative psychological evaluation[
by Dr. Goff].”)).

Cooke selectively quotes in support a Ninth Circuit decision,

Reddick v. Chater, for the proposition that “the mere fact that a medical report is
provided at the request of counsel or, more broadly, the purpose for which an
opinion is provided, is not a legitimate basis for evaluating the reliability of the
report.” 157 F.3d 715, 726 (9th Cir. 1998). See also Lester v. Chater, 81 F.3d 821,

The ALJ did not consider Dr. Goff, who examined Cooke only once at the time of the
hearing, to be a “treating” psychologist, and Cooke does not argue here that Dr. Goff should
have been so considered. See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per
curiam) (“[Doctors’] opinions are not entitled to deference because as one-time examiners
they were not treating physicians.”); 20 C.F.R. § 404.1502 (“Treating source means your
own physician, psychologist, or other acceptable medical source who provides you, or has
provided you, with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you … We will not consider an acceptable medical source to be
your treating source if your relationship with the source is not based on your medical need
for treatment or evaluation, but solely on your need to obtain a report in support of your
claim for disability. In such a case, we will consider the acceptable medical source to be a
nontreating source.”).

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832 (9th Cir. 1995) (“The purpose for which medical reports are obtained does not
provide a legitimate basis for rejecting them. An examining doctor’s findings are
entitled to no less weight when the examination is procured by the claimant than
when it is obtained by the Commissioner … The Secretary may not assume that
doctors routinely lie in order to help their patients collect disability benefits.”
(quotation marks omitted)); Moss v. Astrue, 555 F.3d 556, 560-61 (7th Cir. 2009)
(per curiam).
However, the very next sentence in Reddick states that “[e]vidence of the
circumstances under which the report was obtained and its consistency with other
records, reports, or findings could … form a legitimate basis for evaluating the
reliability of the report.” 157 F.3d at 726. Reddick thus held that, “in the absence
of other evidence to undermine the credibility of a medical report, the
purpose for which the report was obtained does not provide a legitimate basis for
rejecting it.” Id. at 726 (emphasis added). Accord Coheley v. Colvin, No. 2:13-CV1810-VEH, 2014 WL 6748991, at *4 (N.D. Ala. Dec. 1, 2014); Tavarez v. Comm'r of
Soc. Sec., No. 15-11860, at 12-13 (11th Cir. Jan. 7, 2016) (per curiam) (unpublished)
(citing Reddick, 157 F.3d at 726)). See also Hinton v. Massanari, 13 F. App'x 819,
824 (10th Cir. July 31, 2001) (unpublished) (“An ALJ may certainly question a
doctor’s credibility when the opinion, as here, was solicited by counsel. See, e.g.,
Saelee v. Chater, 94 F.3d 520, 522–23 (9th Cir. 1996) (ALJ justified in finding
treating physician’s ‘report untrustworthy because it was obtained solely for the
purposes of the administrative hearing, varied from [physician]’s own treatment

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notes, and was worded ambiguously in an apparent attempt to assist [plaintiff] in
obtaining social security benefits’). The ALJ may not automatically reject the
opinion for that reason alone, however.”); Gonzalez Perez v. Sec'y of Health &
Human Servs., 812 F.2d 747, 749 (1st Cir. 1987) (per curiam) (“[T]he ALJ in this
case discounted both reports for the additional reason that they had been obtained
after the claim had been filed and on advice and referral of counsel. In our review of
social security disability cases, it appears to be a quite common procedure to obtain
further medical reports, after a claim is filed, in support of such a claim. Something
more substantive than just the timing and impetus of medical reports obtained after
a claim is filed must support an ALJ's decision to discredit them.”). This holding is
consistent with Eleventh Circuit law. See Bloodsworth, 703 F.2d at 1240 (an ALJ
“may reject the opinion of any physician when the evidence supports a contrary
conclusion”); Hickel v. Comm'r of Soc. Sec., 539 F. App'x 980, 987 (11th Cir. Oct. 28,
2013) (per curiam) (unpublished) (“[G]enerating evidence is the purpose of obtaining
opinions from medical sources, whether paid for by the Commissioner or by the
claimant … The fact that Dr. Eastridge was a one-time consultative examiner
retained by the claimant rather than the Commissioner is not, standing alone, a
valid basis for rejecting his medical opinion.”).
The ALJ did not reject Dr. Goff’s assessment solely because it was obtained at
the behest of Cooke’s representative. The ALJ clearly considered other
circumstances under which the report was obtained, Reddick, 157 F.3d at 726,
noting that Dr. Goff’s examination occurred “shortly before the [administrative

14

]hearing”9 and that it was “not the result of a treating physician’s referral or the
claimant’s pursuit of mental healthcare.” (R. 38). The ALJ was also clear to state
his determination that “the medical and objective evidence of record strongly
contradicts Dr. Goff’s opinion” and that Dr. Goff’s “assessment of limitations … is so
contrary to the subjective, medical, and objective evidence of record that it does not
merit weight.”

(R. 38, 47).

As he was required to do, the ALJ “state[d] with

particularity the weight given to [Dr. Goff’s] medical opinions and the reasons
therefor.” Winschel, 631 F.3d at 1179. The Court must now determine whether
substantial evidence supports those reasons. The answer is “no.”
The ALJ determined that “the medical and objective evidence of record
strongly contradicts Dr. Goff’s opinion” and “contains little evidence of depression
let alone indication that the claimant is ‘very depressed’ …” (R. 38). However, Dr.
Goff’s Medical Source Opinion Form (R. 430 – 431) was accompanied by five-page
evaluation report detailing the objective evidence Dr. Goff considered in formulating
his opinions. (R. 425 – 429). This report, which is itself medical evidence, stated
that Dr. Goff had interviewed Cooke about his history and had considered a number
of Cooke’s medical, school, and other records. The report also provided scores and
results from a number of psychological tests that Dr. Goff administered (the
Wechsler Adult Intelligence Scale, which produced an IQ score of 73 for Cooke; the
Reitan-Indiana Aphasia Screening Test; informal clock drawing tasks; the Wide
Range Achievement Test, fourth edition; and the Personality Assessment

Dr. Goff’s examination occurred November 19, 2012 (see R. 425), three weeks before
Cooke’s administrative hearing on December 10, 2012.

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Inventory).

The report set forth specific diagnoses of mental impairments:

“adjustment disorder with depressed mood,” “moderate to severe reading disorder,”
“disorder of written expression,” and “borderline intellectual functioning.” (R. 429)
Finally, the report noted that Dr. Goff had administered Cooke the Victoria
Symptom Validity Test, “a test for dissimulation of cognitive deficits,” which gave
“no indications for malingering or dissimulation concerning the cognitive aspects of
the examination.” (R. 427).
Here, then, the ALJ was presented with a medical opinion regarding Cooke’s
mental impairments, given by an examining mental health specialist,10 that was
supported by specific diagnoses of mental disorders, psychological test results, 11
and an explanation of the evidence considered.12 Dr. Goff considered a number of
medical records from Cooke’s case file and, as Cooke notes, regularly provides
psychological evaluations in disability matters.13 14 The ALJ did not find that Dr.

See 20 C.F.R. § 404.1527(c)(1) & (5) (“Generally, we give more weight to the opinion of a
source who has examined you than to the opinion of a source who has not examined you …
We generally give more weight to the opinion of a specialist about medical issues related to
his or her area of specialty than to the opinion of a source who is not a specialist.”).

10

While the ALJ noted that Dr. Goff “did not provide the actual test materials” with his
report (R. 47), there is no indication that this was a significant factor in rejecting Dr. Goff’s
opinions, and the ALJ gave offered no reason to believe that Dr. Goff was misrepresenting
the test results.

11

See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant evidence to
support an opinion, particularly medical signs and laboratory findings, the more weight we
will give that opinion. The better an explanation a source provides for an opinion, the more
weight we will give that opinion.”).

12

See, e.g., Hubbard v. Colvin, No. 7:14-CV-1718-CLS, 2015 WL 1958874 (N.D. Ala. May 1,
2015); Snow v. Colvin, 8 F. Supp. 3d 1345 (N.D. Ala. 2014); Smith v. Astrue, No. CA 090244-C, 2009 WL 4058998 (S.D. Ala. Nov. 20, 2009); Yaw v. Shalala, No. 94-C-1116-W,
1994 WL 846979, at *1 (N.D. Ala. Nov. 30, 1994).

13

16

Goff’s assessment or opinion were inconsistent either internally or with each other.
The medical evidence of record noted by the ALJ as “strongly contradicting”
Dr. Goff’s opinion regarding Cooke’s mental impairments consists of cursory
statements made by other physicians in the course of primarily assessing physical
impairments, seemingly made in passing and based on little more than the
physicians’ observations of Cooke’s demeanor at the time. Two of these physicians,
a general practitioner and a cardiologist, cannot reasonably be considered mental
health specialists.15 While neurologist Dr. Brian Hogan could conceivably possess
some mental health specialization akin to Dr. Goff’s, Dr. Hogan’s examinations
were primarily focused on assessing Cooke for signs of seizure.16

Moreover, as

See 20 C.F.R. § 404.1527(c)(6) (“When we consider how much weight to give to a medical
opinion, we will also consider any factors you or others bring to our attention, or of which
we are aware, which tend to support or contradict the opinion. For example, the amount of
understanding of our disability programs and their evidentiary requirements that an
acceptable medical source has, regardless of the source of that understanding, and the
extent to which an acceptable medical source is familiar with the other information in your
case record are relevant factors that we will consider in deciding the weight to give to a
medical opinion.”).

14

The ALJ noted that Dr. Aksut Seydi, a cardiac specialist, “specifically reported no deficit
in mental functioning” for Cooke at an August 29, 2011 follow-up examination. (R. 44).
The ALJ also noted that, at an October 19, 2012 visit with his general care provider, Dr.
Edgar Brown “due to his chronic conditions and acute sinus symptoms,” Cooke “was found
to be fully oriented. Insight and judgment were normal. Mood and affect was
appropriate.” (R. 46 (emphasis in original)).

15

A January 28, 2009 assessment of Cooke by Dr. Hogan, at which Cooke “presented with a
complaint of seizure,” noted (“contrary to Dr. Goff’s report,” per the ALJ), that Cook had “
‘normal attention span and ability to concentrate, alert and oriented x3 with no impairment
of recent or remote memory and able to name object and repeat phrases.’ ” Dr. Hogan also
noted: “ ‘Neuropsychiatric … patient’s mood and affect are described as – normal.’ ”
Dr. Hogan assessed several physical impairments and “was silent as to any other
impairment, including the results of laboratory screening.” (R. 42, 302 – 303 (emphasis
added by ALJ)). Cooke revisited Dr. Hogan on April 28, 2009, with “psychiatric evaluation
remain[ing] unremarkable…” (R. 43). A third visit with Dr. Hogan on October 28, 2009,
produced an “unremarkable” examination, with Cooke reporting “no new medical issues

16

17

Cooke correctly notes in his reply brief, Dr. Hogan’s examinations were of short
duration, each lasting only a few minutes, and there is no indication in his
treatment notes that he performed any specialized testing of Cooke’s psychological
impairments, as Dr. Goff did. (R. 295 – 315).
Indeed, the ALJ appears to have been more swayed by Cooke’s failure to
report medical symptoms to his health care providers, repeatedly citing to portions
of the record where he believes Cooke should have mentioned them but did not.17
The ALJ also found significant that Cooke’s DIB application “did not allege …
depression, emotional distress, or learning disability[,] … did not report a
psychotropic medication[,]” and “[i]n fact … specifically denied the existence of a
mental impairment or medication.” (R. 41. See also R. 47 (Cooke “did not report
any memory problems in his functional report” submitted September 28, 2011), 45
(Cooke “did not report any new physical or mental limitations” in his January 20,
2012 of the initial denial of his DIB application)). While Cooke “may have failed to
seek psychiatric treatment for his mental condition, []it is a questionable practice to
chastise one with a mental impairment for the exercise of poor judgment in seeking
since his last visit.” (R. 43).
(See R. 42 – 43 (noting that Cooke “did not complain of any deficit in mental functioning”
at a March 25, 2009 Department of Transportation physical with a certified nurse
practitioner at his primary healthcare provider); 47 (“The claimant never reported
depression to any of his treating physicians … When seen one month prior to this exam at
Uniontown Health Center he did not report any symptoms of depression ...); 48 (noting that
Cooke visited his general healthcare provide Dr. Brown “shortly after [Dr. Goff’s]
evaluation” complaining of “back pain and chronic conditions[,]” but with “no subjective
reports of deficit in mentation” at this examination; noting that Dr. Brown had “treated
[Cooke] for well over a decade” and that his “treatment records, including the visits one
month before and one after Dr. Goff evaluated [Cooke], simply do not suggest limitation
remotely consistent with Dr. Goff’s opinion.”)).

17

18

rehabilitation.

The [ALJ] found [Cooke’]s complaints less than credible given a

perceived paucity of medical proof. However, this should not be a determinative
factor in a credibility assessment.” Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th
Cir. 1989) (per curiam). See also Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir.
1996) (“[I]t is common knowledge that depression is one of the most underreported
illnesses in the country because those afflicted often do not recognize that their
condition reflects a potentially serious mental illness … Thus, the fact that claimant
may be one of millions of people who did not seek treatment for a mental disorder
until late in the day is not a substantial basis on which to conclude that Dr. Brown’s
assessment of claimant's condition is inaccurate.”); Beasich v. Comm'r of Soc. Sec.,
66 F. App'x 419, 429 (3d Cir. 2003) (unpublished) (“It is true that there was a lack of
medical treatment for mental impairment during this period. However, several
courts have questioned the relevance of infrequent medical visits in determining
when or whether a claimant is disabled.” (citing Blankenship and Nguyen)).18
Though disability claimants frequently accuse ALJs of “succumb[ing] to the
temptation to play doctor and make their own independent medical findings”

Indeed, “[r]etrospective diagnosis of a mental impairments like depression and post
traumatic stress disorder, even if uncorroborated by contemporaneous medical records, but
corroborated by lay evidence relating back to the claimed period of disability, can support a
finding of past impairment.” Beasich, 66 F. App'x at 429. As the ALJ noted, in his
testimony before the ALJ, Cooke “attempted to promote Dr. Goff’s findings with samplings
from his past that he believed supported finding that his mental deficits severely limited or
precluded his ability for mental work activity…” (R. 48). The ALJ “was not persuaded by
his testimony” but cited primarily to evidence predating Cooke’s alleged disability onset
date in making this determination. (R. 48).

18

19

whenever they reject medical opinions favoring claimants’ assertions of disability, 19
Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996), this case presents a rare instance
in which the undersigned concurs, further undercutting the ALJ’s determination.
As noted above, Dr. Goff’s report accompanying his opinion expressly ruled out
malingering and dissembling by Cooke, citing the results of objective testing in
support. Without even acknowledging Dr. Goff’s determination that Cooke was not
malingering, much less articulating reasons to discredit it, the ALJ, making his own
use of the Diagnostic and Statistical Manual of Mental Disorders (4th Ed.), a
medical text, independently determined that malingering “should be strongly
suspected”

as

conclusions…”20

to

Cooke’s

“performance

before

Dr.

Goff

and

Dr.

Goff’s

(R. 46). “Although Social Security disability benefits must be

reserved only for those who qualify to receive them, an ALJ may not arrogate the
power to act as both judge and physician[;]” “[a]n ALJ sitting as a hearing officer
abuses his discretion when he substitutes his own uninformed medical evaluations
for those of” medical professionals. Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th
Cir. 1992) (Johnson, J., concurring). See also Freeman v. Schweiker, 681 F.2d 727,
See, e.g., Snow v. Colvin, 8 F. Supp. 3d 1345, 1353 (N.D. Ala. 2014) (Kallon, J.) (“[W]ere
courts to find that ALJs impermissibly substitute their own opinions for those of medical
experts any time ALJs reject the opinions of those medical experts, the ALJ’s role in Social
Security proceedings would be essentially meaningless.”).

19

Specifically, the ALJ stated: “The guidance Dr. Goff used in assessing the claimant,
warns the reader that assessments procured in this fashion are or [sic] questionable value
and in fact suggest malingering (American Psychiatric Association: Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC,
American Psychiatric Association (DSM-IV-TR), pg 739, Section V65.2) … ‘Malingering
should be strongly suspected if any combination of the following is noted … medicolegal
context of presentation (e.g., the person is referred by an attorney to the clinician for
examination) … marked discrepancy between the person’s claimed stress or disability and
the objective findings …’ (DSM-IV-TR, pg. 739).” (R. 38, 46).

20

20

731 (11th Cir. 1982) (per curiam) (finding that “the ALJ improperly substituted his
judgment of the claimant’s condition for that of the medical and vocational
experts”); Hillsman v. Bowen, 804 F.2d 1179, 1182 (11th Cir. 1986) (per curiam)
(“Here, … the ALJ has rejected the opinions of the treating physician not even on
the basis of a differing opinion expressed by another doctor, but rather because ALJ
himself reached a different conclusion after viewing the medical records.

Such

circumstantial evidence cannot alone support a finding of a nonsevere disability in
the face of an opposing conclusion by the treating physician.”); Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2000) (“In choosing to reject the treating physician's
assessment, an ALJ may not make speculative inferences from medical reports and
may reject a treating physician’s opinion outright only on the basis of contradictory
medical evidence and not due to his or her own credibility judgments, speculation or
lay opinion.” (quotation marks omitted)).
The ALJ also discounted Dr. Goff’s opinions based on his conclusion that they
were not consistent with Cooke’s ability to engage in certain activities.

For

instance, the ALJ determined that Cooke’s “maintain[ing] a commercial driver’s
license,” his having “recently renewed that license,” and his past work as a school
bus driver, furniture assembler, and collection and repossession agent were “not
consistent with borderline intellectual functioning, or a reading disorder.” (R. 38,
47 (“He also did collections and repossession of furniture again which would require
the ability to read and write reports.”)).

The ALJ further determined that Cooke’s

21

self-reported daily activities,21 and his continuing to drive a school bus for a short
time after his alleged disability onset date, were “not consistent” with Cooke’s
allegations of impairment, particularly Cooke’s “driving and caring for an autistic
son.” (R. 45).22
The Seventh Circuit Court of Appeals addressed a strikingly similar situation
where, “[w]ithout expressly relying on any medical evidence or authority, the ALJ
determined that [the claimant]’s efforts at engaging in a small machine
repair/resale business were incompatible with a diagnosis of major depression and
[the treating psychiatrist’s] conclusions regarding [the claimant]’s functional
abilities.” Rohan, 98 F.3d at 970. The Seventh Circuit held that the ALJ had erred
in doing so, stating:
This is precisely the same scenario we confronted in Wilder[ v. Chater,
64 F.3d 335 (7th Cir. 1995)], where the ALJ believed that the
claimant’s ability to do certain things (e.g. work as a security guard
and carry a gun) was inconsistent with a diagnosis of depression. This
is not a permissible ground upon which the ALJ may rely. As a panel
of this Court explained in Wilder:
Severe depression is not the blues. It is a mental illness; and
health professionals, in particular psychiatrists, not lawyers or
“With daily activities, he gets up and gets cleaned up, fixes breakfast, picks wife up from
work, watches television, takes wife to work at 2:00 p.m., checks on mother, goes home, eats
dinner, watches television, takes medicine and goes to bed. He takes care of his autistic
son, and prepares his meals. He also cares for pets … With house and yard work, he does a
little laundry and vacuum about ten minutes twice a week … He gets outside daily. He
walks, drives a car, or rides in a car. He can go out alone and he drives. He shops in stores.
He can pay bills, count change and handle a savings account.” (R. 45).

21

The ALJ also appears to have placed much emphasis on evidence relating to periods
before Cooke’s alleged disability onset date in December 2008. For instance, the ALJ cited
a certificate in household appliance repair Cooke earned in 1981 which “states that the
claimant is duly qualified for employment in positions under the DOT…” (R. 47
(emphasis by ALJ)). The ALJ also considered Cooke’s ability to engage in prior work that
predated his alleged disability onset date.

22

22

judges, are the experts on it. [Wilder] is entitled to a decision
based on the record rather than a hunch. The salient fact of
record is the testimony of the psychiatrist, a disinterested as
well as expert witness. Everything else is rank conjecture.
64 F.3d at 337–338. As far as discernible from this record, the ALJ
simply indulged his own lay view of depression for that of [the treating
psychiatrist].
Id. at 970-71. Accord Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.
2003) (“[T]he ALJ seems to have succumbed to the temptation to play doctor when
she concluded that a good prognosis for speech and language difficulties was
inconsistent with a diagnosis of mental retardation because no expert offered
evidence to that effect here. See Rohan v. Chater, 98 F.3d 966, 970–71 (7th Cir.
1996) (ALJ’s may not make independent medical findings regarding
whether certain activities are inconsistent with a particular medical
diagnosis). Under the circumstances, the ALJ should have summoned an expert to
provide an informed basis for determining whether Lamanuel is disabled.”
(emphasis added)). The Seventh Circuit’s admonitions in Rohan and Wilder apply
equally to the ALJ’s decision here.
In sum, “there is no medical testimony to rebut Dr. [Goff]’s opinion, nor is
there overwhelmingly compelling non-medical evidence to the contrary … in the
absence of competing medical opinions.” Rivera v. Sullivan, 923 F.2d 964, 969 (2d
Cir. 1991).

Even factoring in the “circumstances under which the report was

obtained[,]” Reddick,157 F.3d at 726 – namely, the mere fact that it was obtained
three weeks prior to Cooke’s hearing before the ALJ and was not the result of a
physician referral – the ALJ’s decision to reject Dr. Goff’s opinions is not supported

23

by substantial evidence. While the ALJ was entitled to cast some suspicion on such
an eleventh-hour diagnosis, the ALJ was not entitled to disregard it absent
substantial contrary evidence. To the extent the ALJ believed Dr. Goff’s assessment
was inconsistent with Cooke’s overall history, he had other tools at his disposal to
resolve the inconsistency, including ordering a consultative examination. See 20
C.F.R. § 404.1520b(c); Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988)
(“[B]ecause of the Secretary's duty to develop the medical record fully and fairly,
this court has held that 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.” (quotation omitted) (emphasis added)).
Accordingly, the Court SUSTAINS Cooke’s assertion of error in Claim 1.
B.

Claim 2

Though styled as a separate claim of error, Claim 2 is merely an extension of
Claim 1, being based on the premise that, because the ALJ improperly rejected Dr.
Goff’s opinion, “that opinion must be accepted as true.”

(Doc. 15 at 7).

Cooke

appears to invite the Court to itself apply Social Security Ruling 85-15 and, after
considering Dr. Goff’s opinions in conjunction with other evidence in the
administrative record, remand with instructions that Cooke be found disabled.
Cooke cites no authority for his proposition that Dr. Goff’s opinions must be
accepted as true. As the Commissioner correctly notes (see Doc. 21 at 10 n.2), at
most, there is authority in this Circuit indicating that when the Commissioner “has
ignored or failed properly to refute a treating physician’s testimony, … he has

24

accepted it as true.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)
(emphasis added). As noted previously, Dr. Goff is not a treating medical source.
Regardless, MacGregor’s holding conflicts with earlier Circuit precedent that
remand is the appropriate action where an ALJ’s credibility determination was
found to be inadequate, and this Court is bound to follow the earlier precedent. See
Lawton v. Comm'r of Soc. Sec., 431 F. App'x 830, 835 (11th Cir. June 22, 2011) (per
curiam) (unpublished) (“There is language in MacGregor v. Bowen, 786 F.2d 1050
(11th Cir. 1986), for the proposition that, if an ALJ fails clearly to articulate reasons
for discounting the opinion of a treating physician, that evidence must be accepted
as true as a matter of law. However, our earlier decisions had remanded cases to
the agency when there was a failure to provide an adequate credibility
determination. See, e.g., Owens[ v. Heckler], 748 F.2d [1511,] 1516[ (11th Cir. 1984)];
Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th Cir. 1982). Pursuant to the prior
precedent rule, we are bound by the holding of the first panel to address an issue of
law, unless and until it is overruled by this Court sitting en banc or the Supreme
Court. United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc).
Accordingly, rather than broadly accept the doctors’ opinions as true, we will
remand to the agency so that it can make a determination in the first instance of
the proper weight to be afforded to those opinions.”); Davis v. Comm'r of Soc. Sec.,
449 F. App'x 828, 833 n.1 (11th Cir. Dec. 19, 2011) (per curiam) (unpublished)
(similar).

Cf. Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991) (“The

credibility of witnesses is for the Secretary to determine, not the courts…”). Thus,

25

the Court OVERRULES Claim 2.
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued October 20, 2014, denying Cooke’s application
for DIB benefits is REVERSED and REMANDED under sentence four of 42
U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for further
proceedings consistent with this decision. This remand under sentence four of §
405(g) makes Cooke a prevailing party for purposes of the Equal Access to Justice
Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates
this Court’s jurisdiction over this matter.
Under Federal Rule of Civil Procedure 54(d)(2)(B), the Court hereby grants
Cooke’s counsel an extension of time in which to file a petition for authorization of
attorney’s fees under 42 U.S.C. § 406(b) until thirty days after receipt of a notice of
award of benefits from the Social Security Administration. See Bergen v. Comm'r of
Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam) (“Fed. R. Civ. P. 54(d)(2)
applies to a § 406(b) attorney's fee claim.”); Blitch v. Astrue, 261 F. App'x 241, 242
n.1 (11th Cir. 2008) (per curiam) (unpublished) (“In Bergen v. Comm'r of Soc. Sec.,
454 F.3d 1273 (11th Cir. 2006), we suggested the best practice for avoiding
confusion about the integration of Fed. R. Civ. P. 54(d)(2)(B) into the procedural
framework of a fee award under 42 U.S.C. § 406 is for a plaintiff to request and the
district court to include in the remand judgment a statement that attorneys fees
may be applied for within a specified time after the determination of the plaintiff's

26

past due benefits by the Commission. 454 F.3d at 1278 n.2.”).
Final judgment shall issue separately in accordance with this Order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 8th day of January 2016.

/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

27