JOHNSON v. COLVIN

Filing 15

ORDER remanding Plaintiff's case. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6/23/2017. (efw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
HENRIETTA JOHNSON,
Plaintiff,
v.
NANCY A BERRYHILL,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:16-CV-92-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for disability insurance
benefits, disabled widow’s benefits, and supplemental security income, finding that she is
not disabled within the meaning of the Social Security Act and Regulations. Plaintiff
contends that the Commissioner’s decision 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.
The Plaintiff bears the initial burden of proving that she is unable to perform her
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).2 A Plaintiff

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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).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered
prior to October 1, 1981.
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seeking Social Security disability benefits must demonstrate that she suffers from an
impairment that prevents 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
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.
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ISSUES
I.
Did the ALJ give appropriate weight to Plaintiff’s treating physician’s
records and opinions?
II.
Was it error for the ALJ to omit Plaintiff’s need to use a cane from the
hypothetical question posed to the VE?
III. Did the ALJ provide an adequate explanation for his decision to discount
Plaintiff’s credibility?
Administrative Proceedings
Plaintiff Henrietta Cobbs Johnson filed applications for disability insurance
benefits, disabled widow’s benefits, and supplemental security income on August 8, 2012
alleging disability to work commencing August 31, 2007. Her applications were denied
initially on December 13, 2012 and on reconsideration on March 28, 2013. She filed a
written request for an evidentiary hearing before an administrative law judge on May 28,
2013, and the hearing was conducted on September 9, 2014. Plaintiff appeared at the
hearing with her attorney and gave testimony, as did an impartial vocational expert (VE).
Tr. 12. On October 29, 2014 the ALJ issued an “unfavorable” written decision denying
her claims. Tr. 9-29. She filed a request for review by the Appeals Council on December
15, 2014, but was denied on May 12, 2016.

Tr. 7-8, 1-6.

Having exhausted the

administrative remedies available to her under the Social Security Act, Plaintiff brings
this action seeking judicial review of the final decision by the Commissioner to deny her
claims.

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Statement of Facts and Evidence
On her alleged onset date, Plaintiff was fifty years old. Tr. 9. She has a high
school diploma and two years of college and past relevant work as a nursing assistant,
teacher’s aide, and solderer. Tr. 269, 303, 46. She claims that she is disabled to work as
a result of depression, hypertension, pre-diabetes, acid reflux, low back pain, and heart
valve leakage. Tr. 279.
In conducting the five-step sequential analysis for evaluation of disability claims,
the ALJ found at step two that Plaintiff has severe impairments of obesity, dyspnea,
hypertension, cardiac arrhythmia, lumbar spine bulge, aortic insufficiency, and diabetes
with neuropathy.

Finding No. 5, Tr. 15.

At step three, he determined that these

impairments considered both alone and in combination neither meet nor medically equal
a listed impairment set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Finding No.
6, Tr. 15-16. Between steps three and four, the ALJ formulated a residual functional
capacity assessment (RFC) which permits Plaintiff to engage in medium work with added
exertional, postural, and environmental restrictions. Finding No. 7, Tr. 16-20. In his
step-four analysis, the ALJ found that this RFC assessment permits Plaintiff to return to
her past relevant work as a teacher’s aide and therefore she is not disabled. Finding Nos.
8 and 9, Tr. 21-23.
DISCUSSION
In her brief before the Court, Plaintiff asserts three errors by the ALJ. First, she
claims the ALJ erred by giving her treating physician’s records and opinions only limited
weight. Next, she contends the ALJ omitted her need to use a cane from the hypothetical
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question posed to the VE at the evidentiary hearing. Last, she argues that the ALJ did not
provide an adequate explanation for his decision to discount her credibility. Pl.’s Br. 1-2.
In her brief in response, the Commissioner claims that the medical opinion evidence was
properly evaluated, subjective complaints properly considered and addressed, and that
Plaintiff has failed to show that she is unable to resume her past relevant work as a
teacher’s aide. Comm’r’s Br. 1. Because it is recommended that this case be remanded
as explained below, the Court does not address Plaintiff’s first and third asserted errors.
The opinion of a claimant’s treating physician must be afforded substantial weight
unless the ALJ finds good cause for discounting it. “Good cause” exists if the opinion is
not supported by the evidence, the evidence supports a contrary finding or the doctor’s
opinion is merely conclusory or inconsistent with his or her own records of treatment.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986); Phillips, 357 F.3d at 1241.
Plaintiff began treating with Zaigham Butt, M.D., on March 13, 2010. Ex. 6F, Tr.
455. Medical evidence shows that she continued seeing Dr. Butt until July 28, 2014,
when his record of Plaintiff’s care closed. Ex. 17F, Tr. 667. Included in that record is a
report entitled “Medical Opinion Re: Ability To Do Work-Related Activities (Physical)”
completed by Dr. Butt on June 6, 2013. Ex. 15F, Tr. 622-625. Handwritten in the
margin are the words “(a)ll based on FCE results by Doug Imig, PT, OCS, CE.” Ex. 15F,
Tr. 623. Dr. Butt based the limitations he set forth in the report on what Imig found in
conducting a functional capacity evaluation (FCE) on May 27, 2013. Imig is a physical
therapist and not within the Commissioner’s definition of “acceptable medical source” set
forth in the regulations. 20 C.F.R. §§ 404.1513(a), 416.913(a); SSR-06-03p. However,
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the regulations do provide that evidence from a physical therapist can be used “to show
the severity of impairment(s) and how it affects ability to work.”

20 C.F.R. §§

404.1513(d), 416.913(d).
The ALJ specifically afforded weight to Imig’s findings and further expressly
gave them “greater weight” than Dr. Butt’s findings. (Tr. 18, 19). A review of the record
however shows two things. First, what Dr. Butt’s June 6, 2013 report setting forth
Plaintiff’s specific work-related limitations was based on what Imig found in his May 27,
2013 FCE. The report and the FCE are thus inseparable. Second, both Dr. Butt and Imig
stated plainly that Plaintiff needed and relied on assistive devices to ambulate. Dr. Butt
found her to need a cane and, more importantly (given the ALJ’s explicit reliance on his
opinion), Imig found under the FCE “Major Areas of Dysfunction” that Plaintiff needed
and used a walker. Ex. 9D, 15F; Tr. 672. Common sense tells the Court that a walker is
a more restrictive assistive device than a simple cane in a work setting.
The ALJ summarily concludes that “the objective evidence is not consistent with
the use of a cane” without support in the record. Tr. 20. Imig conducted an exhaustive
and well-documented FCE with objective clinical testing including analysis of both
strength and mobility. Ex. 18F, Tr. 668-76. Since both the treating physician and the
physical therapist to whom the ALJ afforded weight concur that Plaintiff relies to some
extent on assistive devices to ambulate, the ALJ erred in not developing the record
further on this point or including the need for assistive devices in his RFC assessment and
hypotheticals posed to the VE. Plaintiff’s second asserted error has merit sufficient to
require remand.
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On remand, the Commissioner should further develop the record as to Plaintiff’s
need for a cane, walker or other assistive device. If the Commissioner finds that such
device is, in fact, medically necessary and the use of such device renders Plaintiff unable
to engage in substantial gainful activity, she should also determine when the use of such
device became medically necessary. The Court notes that there is no record evidence of
the need for a cane prior to June 6, 2013—well after the alleged date of onset of
disability. Whether an assistive device is necessary and when it became necessary, as
well as whether use of such a device renders Plaintiff disabled to work, is for the
Commissioner to further develop and decide. The Court having found that remand is
required on Plaintiff’s second asserted error, the other issues need not be addressed.
CONCLUSION
For the reasons stated above, it is ordered that Plaintiff’s case be remanded to the
Social Security Commissioner, under sentence four of Section 205(g) of the Social
Security Act, for further proceedings consistent with this opinion.
SO ORDERED, this 23rd day of June, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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