JOHNSON v. COLVIN

Filing 16

ORDER re 1 Complaint filed by OUIDA JOHNSON. Plaintiff's application is REMANDED to the Commissioner for further proceedings consistent with this Order. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 5-21-15. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
OUIDA BETHUNE JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:14-CV-94-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, granted Plaintiff’s application for Disability Insurance
Benefits (DIB), finding her disabled within the meaning of the Social Security Act and
Regulations as of January 6, 2011. Plaintiff was thus entitled to collect DIB, including a
back award from that date, but because the ALJ found that the disability onset date was
January 6, 2011, rather than Plaintiff’s alleged disability onset date of January 2, 2009,
she was denied benefits as to that two year period.

Plaintiff contends that the

Commissioner’s decision to deny DIB for this period was in error and seeks review under
the relevant provisions of 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c).

All

administrative remedies have been exhausted. Both parties filed their written consents
for all proceedings to be conducted by the United States Magistrate Judge, including the

entry of a final judgment directly appealable to the Eleventh Circuit Court of Appeals
pursuant to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards
were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).
“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.
3d 1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner.1 Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s
factual findings.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

However, even if the evidence preponderates against the Commissioner’s decision, it
must be affirmed if substantial evidence supports it. Id.
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Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).

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The Plaintiff bears the initial burden of proving that he is unable to perform his
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir.1986). The Plaintiff’s burden is
a heavy one and is so stringent that it has been described as bordering on the unrealistic.
Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). A Plaintiff seeking Social
Security disability benefits must demonstrate that he/she suffers from an impairment that
prevents him/her from engaging in any substantial gainful activity for a twelve-month
period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of these statutes,
in order to be eligible for disability payments, a Plaintiff must meet the requirements of
the Commissioner’s regulations promulgated pursuant to the authority given in the Social
Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working.

Id.

If not, the Commissioner determines whether the Plaintiff has an

impairment which prevents the performance of basic work activities. Id. Second, the
Commissioner determines the severity of the Plaintiff’s impairment or combination of
impairments. Id. Third, the Commissioner determines whether the Plaintiff’s severe
impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (the “Listing”).

Id.

Fourth, the Commissioner determines whether the

Plaintiff’s residual functional capacity can meet the physical and mental demands of past
work. Id. Fifth and finally, the Commissioner determines whether the Plaintiff’s residual
functional capacity, age, education, and past work experience prevent the performance of
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any other work. In arriving at a decision, the Commissioner must consider the combined
effects of all of the alleged impairments, without regard to whether each, if considered
separately, would be disabling. Id. The Commissioner’s failure to apply correct legal
standards to the evidence is grounds for reversal. Id.
ISSUES
I.

Whether the ALJ erred in finding that Plaintiff did not meet Listing 12.05C.

II.

Whether the ALJ erred in failing to weigh the opinions of an examining
psychologist, Dr. Solomon.

III.

Whether the ALJ erred in finding January 6, 2011 as Plaintiff’s disability
onset date.
Administrative Proceedings
Plaintiff filed applications for disability insurance benefits (DIB) and

Supplemental Security Income (SSI) on September 29, 2010 and alleged therein
disability as of January 2, 2009. Tr. 23, ECF No. 12. Plaintiff’s applications were denied
initially and on reconsideration, and Plaintiff timely requested a hearing before an
Administrative Law Judge (“ALJ”). The ALJ conducted a hearing on February 14, 2013.
Id. Following the hearing, the ALJ issued a “partially favorable” decision on March 12,
2013. Tr. 23-35. The Appeals Council ultimately denied Plaintiff’s Request for Review
on August 27, 2014. Tr. 9-11. This appeal followed.
Statement of Facts and Evidence
After consideration of the written evidence and the hearing testimony in this case,
the ALJ determined that Plaintiff met the insured status requirements of the Social
Security Act through March 31, 2013. Tr. 25. The ALJ found that Plaintiff had not
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engaged in substantial gainful activity since her alleged onset date of January 2, 2009. Id.
The ALJ then found that as of January 2, 2009, Plaintiff had the following severe
impairments: left knee cartilage injury and major depressive disorder, recurrent and
severe with psychotic features. Id. As of January 6, 2011, the ALJ added “with likely
emerging schizophrenia” to the major depressive disorder as a severe impairment. Tr. 27.
However, the ALJ determined that none of her impairments, alone or in any combination,
met or medically equaled the Listing of Impairments at 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id.)
The ALJ found that prior to January 6, 2011 Plaintiff had the Residual Functional
Capacity (RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b),
416.967(b), with certain exertional and nonexertional limitations. Tr. 29. Further the
ALJ found that beginning on January 6, 2011, Plaintiff had the same RFC as prior to that
date, but with the added limitation that “psychological symptoms preclude the ability to
complete twenty percent of the workday.” Tr. 31. At step four, the ALJ found Plaintiff
unable to return to her past relevant work. Tr. 32. Plaintiff was a younger individual
prior to the ALJ’s established disability onset date of January 6, 2011. Id. Plaintiff has at
least a high school education and the ability to communicate in English.
The ALJ found that if Plaintiff had the RFC to perform the full range of light
work, the Medical-Vocational Rules (Grids) would direct a finding of “not disabled.” Tr.
33.

However, because Plaintiff’s ability to perform all or substantially all of the

requirements of light work has been impeded by additional limitations, the ALJ asked the
VE whether jobs existed in the national economy for an individual with Plaintiff’s age,
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education, work experience, and RFC prior to January 6, 2011. The ALJ found that the
VE’s testimony supported a finding that Plaintiff can perform the requirements of
cafeteria attendant (DOT # 311.677-010), and bottling line attendant (DOT # 920.687042) and that this work exists in significant numbers in the national economy. The ALJ
therefore found that Plaintiff had not been under a disability as defined in the Act prior to
January 6, 2011. Id. However, based on the testimony of a Vocational Expert, the ALJ
found that beginning January 6, 2011, there were no jobs existing in significant numbers
in the national economy that Plaintiff could perform. Tr. 34. Based on those findings,
Plaintiff was awarded DIB from January 6, 2011.
DISCUSSION
I.

Did the ALJ err in finding January 6, 2011 as Plaintiff’s disability onset date?
Ouida Bethune Johnson, Plaintiff herein, is disabled. The Commissioner of Social

Security found her to be unable to work at any jobs available in the national economy as
of January 6, 2011. Plaintiff, however, contends that she became disabled on January 2,
2009. Although Plaintiff raises two additional issues in this action for judicial review, the
Court finds merit in her contention that the ALJ erred in establishing the onset date of
disability. Therefore, only that issue is addressed.
Plaintiff has a history of mental illness dating back to February 2010 based on
medical evidence of record from her treating psychiatrist, Shalzad Hashmi, M.D. Tr.
220-31, 321-37, Exs. 1F & 8F. In March 2010 she was taken by law enforcement for
emergency mental health treatment at Athens Regional Medical Center (ARMC) and in
July 2010 involuntarily committed for psychiatric care based on what the ALJ
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characterized as an “extensive history of major depressive disorder that is accompanied
by auditory and visual hallucination.” Tr. 26, Ex. 7F. The ALJ also gave “great weight”
to the opinions of Dr. Hashmi and the emergency medical providers at ARMC in finding
that Plaintiff was suffering from major depressive disorder, recurrent and severe with
psychotic features.
On January 6, 2011 Plaintiff underwent a consultative psychological examination
by Matt Butryn, Ph.D. Tr. 243-46, Ex. 3F. Dr. Butryn found that Plaintiff was “most
limited from a psychological standpoint by the psychotic component emerging from her
depression.” Tr. 246. Although Dr. Butryn opined that Plaintiff may be displaying
emerging schizophrenia rather than major depressive disorder, he clearly said that she
was most limited by psychosis and related the psychotic component of her illness to
depression. The ALJ took the date of this evaluation as the date of onset of disability
despite his own characterization of her medical history of depression with psychotic
features of visual and auditory hallucination as “extensive” and requiring involuntary
commitment in July 2010.
If, as the Commissioner argues, the ALJ found the onset date of January 6, 2011
from the record evidence, the finding is unsupported. There is greater support for March
2010 or July 2010 than there is for January 6, 2011 since the 2010 diagnoses are from a
treating specialist in psychiatric medicine as opposed to the opinion of a one-time
consultant. What matters is that both medical sources said Plaintiff has major depressive
disorder with psychotic features such as auditory and visual hallucination. While, as Dr.
Butryn says, schizophrenia may be emerging, the depressive disorder has accompanying
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psychoses which have resulted in hospitalization and involuntary commitment prior to
January 2011. Plaintiff is limited by these psychotic episodes resulting from depressive
disorder, not emerging schizophrenia, according to the consultative examiner to whom
the ALJ afforded great weight. Arguably, given the “great weight” the ALJ afforded
Plaintiff’s treating psychiatrist, Dr. Hashmi, there is equally persuasive evidence in
support of February 2010. However, it is the Commissioner’s job to determine the date
of onset, not the Court’s.
Social Security Ruling 83-20 requires that onset of disability be determined from
all the evidence available in the record. The date alleged by the claimant should be used
if it is consistent with the evidence. Here, the date alleged by Plaintiff has no clear
reference point in the record. It is no more supportable than January 6, 2011. Thus, the
ALJ should have followed the directive found in SSR 83-20 and either called on a
medical advisor or recontacted Dr. Hashmi as Plaintiff’s treating medical specialist for
more information. Mallory v. Colvin, slip op., 3:13-cv-74-CAR-MSH (M.D. Ga. May 6,
2014).

Both approaches to the issue of determining date of onset of disability are

permitted in SSR 83-20 and on remand, the Commissioner should follow one of them.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is ORDERED that Plaintiff’s
application for disability insurance benefits be REMANDED to the Commissioner for
further proceedings consistent with this Order.

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SO ORDERED, this 21st day of May, 2015.
/s/ Stephen Hyles
UNTED STATES MAGISTRATE JUDGE

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