LOGUE v. ASTRUE
Filing
17
ORDER re 1 Complaint filed by CAROLE A LOGUE: Decision of the Commissioner is REVERSED AND REMANDED under sentence four of 42 U.S.C.§405(g) to the Commissioner to conduct further proceedings consistent with this Order. Clerk directed to enter final judgment in favor of Plaintiff and close the file. Signed by MAGISTRATE JUDGE GARY R JONES on 7/15/2013. (jws)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
CAROL A. LOGUE,
Plaintiff,
v.
CASE NO. 1:12-cv-125-GRJ
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.
________________________________/
ORDER
Plaintiff appeals to this Court from a final decision of the Commissioner of Social
Security (the “Commissioner”) denying Plaintiff’s application for supplemental security
income pursuant to Title XVI of the Social Security Act (the Act). (Doc. 1.) The
Commissioner has answered, and both parties have filed briefs outlining their
respective positions. (Docs. 8, 15, 16.) The parties have consented to have the
undersigned U.S. Magistrate Judge conduct all proceedings in this case. (Docs. 10, 12.)
For the reasons discussed below, the Commissioner's decision is REVERSED AND
REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further
proceedings.
I. PROCEDURAL HISTORY
Plaintiff filed an application for disability insurance benefits under Title II of the
1
Carolyn W . Colvin becam e the Acting Com m issioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W . Colvin should be substituted
for Michael J. Astrue as the defendant in this case.
Page 2 of 11
Social Security Act in July 2007, alleging disability since February 23, 2007, due to
fibromyalgia, back and neck pain, arthritis, nad migraines. (R. 20, 153.) Plaintiff’s
application was denied initially and upon reconsideration. (R. 20, 66-70.) An
administrative hearing was held before an Administrative Law Judge (“ALJ”) on May 28,
2010. On June 15, 2010, the ALJ issued a written decision finding that Plaintiff was not
disabled. (R. 20-27.) The Appeals Council denied Plaintiff’s request for review (R. 1-7)
and she filed this Complaint on June 12, 2012. (Doc. 1.)
II. STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial
evidence.2 Substantial evidence is more than a scintilla, i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion.3
Where the Commissioner's decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result as
finder of fact, and even if the reviewer finds that the evidence preponderates against
the Commissioner's decision.4 The district court must view the evidence as a whole,
2
See 42 U.S.C. § 405(g) (2000).
3
Foote v. Chater, 67 F.3d 1553, 1560 (11 th Cir. 1995) (citing W alden v. Schweiker, 672 F.2d 835,
838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 th Cir. 1991).
th
4
Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 th Cir. 1991).
Case No. 1:12-cv-125-GRJ
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taking into account evidence favorable as well as unfavorable to the decision.5
However, the district court will reverse the Commissioner's decision on plenary review if
the decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law.6
The law defines disability as the inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death, or has lasted or can be expected to last for a continuous
period of not less than twelve months.7 The impairment must be severe, making
Plaintiff unable to do his previous work, or any other substantial gainful activity which
exists in the national economy.8
The ALJ must follow five steps in evaluating a claim of disability.9 First, if a
claimant is working at a substantial gainful activity, he is not disabled.10 Second, if a
claimant does not have any impairment or combination of impairments which
significantly limit his physical or mental ability to do basic work activities, then he does
5
Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 th Cir. 1992) (holding
that the court m ust scrutinize the entire record to determ ine reasonableness of factual findings); Parker v.
Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court also m ust consider evidence detracting from
evidence on which the Com m issioner relied).
6
Keeton v. Dep’t Health and Hum an Servs., 21 F.3d 1064, 1066 (11 th Cir. 1994).
7
42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005) (All further references to 20 C.F.R.
will be to the 2005 version unless otherwise specified.).
8
42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
9
20 C.F.R. §§ 404.1520, 416.920. The claim ant has the burden of proving the existence of a
disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 th Cir. 1991).
10
20 C.F.R. § 404.1520(b).
Case No. 1:12-cv-125-GRJ
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not have a severe impairment and is not disabled.11 Third, if a claimant's impairments
meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is
disabled.12 Fourth, if a claimant's impairments do not prevent him from doing past
relevant work, he is not disabled.13 Fifth, if a claimant's impairments (considering his
residual functional capacity (“RFC”), age, education, and past work) prevent him from
doing other work that exists in the national economy, then he is disabled.14
The burden of proof regarding the plaintiff’s inability to perform past relevant
work initially lies with the plaintiff.15 The burden then temporarily shifts to the
Commissioner to demonstrate that “other work” which the claimant can perform
currently exists in the national economy.16 The Commissioner may satisfy this burden
by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive
11
20 C.F.R. § 404.1520(c).
12
20 C.F.R. § 404.1520(d).
13
20 C.F.R. § 404.1520(e).
14
20 C.F.R. § 404.1520(f).
15
W alker v. Bowen, 826 F.2d 996, 1002 (11th Cir. 1987); see also Doughty v. Apfel, 245 F.
3d 1274, 1278 (11 th Cir. 2001).
16
Doughty, 245 F.3d at 1278 n.2. In Doughty the court explained this burden shifting as follows:
In practice, the burden tem porarily shifts at step five to the Com m issioner. The
Com m issioner m ust produce evidence that there is other work available in significant
num bers in the national econom y that the claim ant has the capacity to perform . In order
to be considered disabled, the claim ant m ust then prove that he is unable to perform the
jobs that the Com m issioner lists. The tem porary shifting of the burden to the Com m issioner
was initiated by the courts, and is not specifically provided for in the statutes or
regulations.) (Internal citations om itted).
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determination that a claimant is disabled or not disabled.17
However, the ALJ should not exclusively rely on the Grids when “the claimant
has a non-exertional impairment which significantly limits his or her basic work skills or
when the claimant cannot perform a full range of employment at the appropriate level of
exertion.”18 In a situation where both exertional and non-exertional impairments are
found, the ALJ is obligated to make specific findings as to whether they preclude a wide
range of employment.19
The ALJ may use the Grids as a framework to evaluate vocational factors so
long as he introduces independent evidence of the existence of jobs in the national
economy that the claimant can perform.20 Such independent evidence may be
introduced by a Vocational Expert’s (“VE”) testimony, but this is not the exclusive
means of introducing such evidence.21 Only after the Commissioner meets this burden
does the burden shift back to the claimant to show that he or she is not capable of
performing the “other work” as set forth by the Commissioner.
17
W alker, 826 F.2d at 1002 (“[T]he grids m ay com e into play once the burden has shifted to the
Com m issioner to show that the claim ant can perform other work.”).
18
W olfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229
(11 Cir. 1999); W alker, 826 F.2d at 1003 (“The grids m ay be used only when each variable on the
appropriate grid accurately describes the claim ant’s situation.”).
th
19
W alker, 826 F.2d at 1003.
20
W olfe, 86 F.3d at 1077-78.
21
See id.
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III. SUMMARY OF THE RECORD
A.
Medical History - Mental Impairments
Plaintiff saw Dr. Larry Rooks of the Shands Clinic in 2007. At her first visit on
July 5, 2007, he diagnosed her with chronic pain and depression/anxiety, and
recommended treatment for pain management and that she follow up with her
psychiatrist. (R. 310.) On August 2, 2007, Dr. Rooks diagnosed chronic depression,
anxiety with somatization, chronic pain secondary to fibromyalgia and degenerative disk
disease. He prescribed Prozac and limited her Xanax prescription. (R. 311.)
Dr. Rooks referred Plaintiff to Dr. Wilda Murphy at Southeastern Rehabilitation
Medicine, and she treated with her from 2007 to 2009. On August 24, 2007, Plaintiff
had her initial office visit with Dr. Murphy, where she complained of whole body pain
with associated numbness, burning, and tingling sensations as well as arthritis-related
pain in her joints. Dr. Murphy diagnosed chronic pain syndrome, generalized myalgias,
chronic neck and low back pain, knee pain, history of migraine headaches, rule out IBS,
and a history of depression, currently noncompliant with Prozac. With regard to
depression, Dr. Murphy encouraged Plaintiff to comply with treatment with Prozac by
filling her prescription. (R. 285-88.) At her October 10, 2007 follow up visit, Dr. Murphy
again noted that Plaintiff was non-compliant with her anti-depressant prescriptions, and
encouraged Plaintiff to follow up with mental health treatment. (R. 360.)
At her February 19, 2008 follow up with Dr. Murphy, Plaintiff complained of
severe pain. She was instructed to follow up at Meridian and fill her prescription for the
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anti-depressant Lexapro. Dr. Murphy noted that Plaintiff was instructed to keep her
appointments at Meridian as she missed her last one. (R. 352.) In July 2009, Dr.
Murphy, noted noncompliance with mental health treatment at Meridian. (R. 415.) In
November 2008, Plaintiff reported that medication was not helping her pain. Dr.
Murphy again noted noncompliance with mental health treatment. (R. 411-13.)
At her final visit with Dr. Murphy on January 23, 2009, Dr. Murphy recommended
discontinuing all medications (Ultram, Daypro, and Neurontin) because multiple
medication trials were ineffective. Dr. Murphy encouraged Plaintiff to follow up with her
primary care provider, walk regularly, and use massage therapy. Dr. Murphy also noted
that Plaintiff was noncompliant with her mental health treatment at Meridian. (R. 411.)
The record contains two treatment notes from Meridian Behavorial Healthcare,
one dated August 16, 2007, and one dated August 21, 2007. At the first visit, she
refused medical services but was amenable to therapy. At her second visit, her GAF
had improved from 40 to 45 and it was noted that she would follow up with therapy. (R.
272-84.)
Dr. Alejandro Vergara completed a psychiatric review technique form on
November 5, 2007, wherein he opined that Plaintiff did not have a severe mental
impairment and that her main limitations appeared to be physical in nature. He did,
however, recommend continuing with outpatient counseling at Meridian. Dr. Vergara
determined that Plaintiff had mild limitations in activities of daily living, maintaining
social functioning, and maintaining concentration, persistence, and pace. (R. 316-29.)
Gary Buffone, Ph.D., completed a psychiatric review technique form on April 11, 2008
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and came to the same conclusions as Dr. Vergara; that Plaintiff did not have a severe
mental impairment, had only mild functional limitations; and that her limitations were
primary physical in nature. (R. 363-75.)
B.
Relevant Hearing Testimony
Plaintiff testified that she suffered from anxiety and panic attacks, and that she
was on Xanax for these conditions but had not returned to the doctor to refill her
prescription. (R. 38.) She testified that of all her conditions, her depression and the
pain in her neck and her shoulder caused her the most difficulty. Plaintiff testified that
she is unable to do typical household chores and spends the day in bed or on the
couch. (R. 39.)
C.
Findings of the ALJ
The ALJ found that the Plaintiff had the severe impairments of chronic pain
syndrome and generalized myalgias. He concluded that she had the residual functional
capacity to perform light work, with additional postural and environmental limitations.
The ALJ found that Plaintiff could perform her past relevant work as a secretary, which
was at the sedentary level and therefore consistent with her residual functional
capacity. (R. 20-27..)
IV. DISCUSSION
Plaintiff raises two issues on appeal: (1) whether the ALJ erred at step two by not
finding that Plaintiff suffered from the severe impairments of depression and
fibromyalgia; and (2) whether the ALJ erred by failing to consider Plaintiff’s impairments
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in combination. The Court is unable to properly analyze these arguments because the
ALJ failed to evaluate the Plaintiff’s documented mental impairments in accord with the
Commissioner’s regulations and caselaw in the Eleventh Circuit. Therefore, the
decision of the ALJ is due to be reversed and remanded.
The Commissioner’s regulations require the ALJ to evaluate mental impairments
using the procedure set forth in 20 C.F.R. § 404.1520a. The ALJ must either complete
a Psychiatric Review Technique Form (PRTF) and append it to his decision or
otherwise incorporate the analysis into the decision. The analysis considers how the
claimant’s mental impairment impacts four functional areas: “activities of daily living;
social functioning; concentration, persistence, or pace; and episodes of
decompensation.” 20 C.F.R. § 404.1520a-(c)(3-4). The Eleventh Circuit has held that:
[T]he social security regulations require the ALJ to complete a PRTF and
append it to the decision, or incorporate its mode of analysis in to his
findings and conclusions. Failure to do so requires remand.
Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005) (internal citations omitted).
See also Huddleston v. Astrue, 2008 WL 2225697 (S.D. Ala. 2008) (reversing and
remanding where ALJ failed to evaluate claimant’s mental impairments in accord with
20 C.F.R. § 404.1520a by attaching a PTRF or otherwise incorporating his functional
analysis); Doss v. Astrue, 2007 WL 4570551 (S.D. Ala. 2007) (id.); Johnson v. Comm’r
of Soc. Sec., 2008 WL 623218 (M.D. Ga. 2008) (id.); Curry v. Astrue, 2008 WL 161925
(S.D. Ala. 2008) (id.).
In this instant case, the medical records reflect that Plaintiff has been diagnosed
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with mental impairments (depression, anxiety, post-traumatic stress disorder) by
multiple healthcare providers and (though often non-compliant) has been prescribed
anti-depressant and anti-anxiety medications for these disorders. Furthermore, at her
hearing, Plaintiff testified that her depression was one of her most significant medical
conditions. (R. 39.) As such, she presented at least a colorable claim of mental
impairment. While the ALJ was not required to find that Plaintiff’s mental impairments
were severe, he was required to analyze her mental impairments in accord with the
Commissioner’s regulations and the holding of Moore v. Barnhart.
The ALJ failed to append conduct the appropriate analysis in his decision.
Rather, the only mention of the PRTF factors are the ALJ’s references to the analyses
of state agency consultants Dr. Vergara and Dr. Buffone, who each completed PRTFs
in 2008 and came to virtually identical conclusions: that Plaintiff had only mild functional
limitations and did not have a severe mental impairment. (R. 26-27, 316-29, 363-76.)
While the ALJ gave each of these opinions significant weight, his decision is devoid of
any analysis of the required factors and thus does not satisfy the requirements of 20
C.F.R. § 404.1520a. Volley v. Astrue, 2008 WL 822192, at *19-20 (N.D. Ga. 2008)
(rejecting Commissioner’s argument that mere reference to state agency evaluations
was sufficient).
Even assuming, arguendo, that the references to the state agency consultants’
PRTFs somehow fulfilled the requirements of 20 C.F.R. § 404.1520a, these PRTFs
were completed on April 11, 2008, more than two years prior to Plaintiff’s administrative
hearing on May 28, 2010. Therefore, “reliance on the PRTFs to establish Plaintiff’s
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mental limitations during [the two years prior to the hearing] would not be supported by
substantial evidence.” Id. at *20.
V. CONCLUSION
In view of the foregoing, the decision of the Commissioner is REVERSED AND
REMANDED under sentence four of 42 U.S.C. § 405(g) to the Commissioner so that
the Administrative Law Judge may conduct further proceedings consistent with this
Order, and to apply the special technique set forth in 20 C.F.R. § 404.1520a. The Clerk
is directed to enter final judgment in favor of the Plaintiff consistent with this Order and
to close the file.
DONE AND ORDERED this 15th day of July 2013.
s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge
Case No. 1:12-cv-125-GRJ
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