DUKES v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

ORDER the Commissioners decision denying Plaintiff S.D.s application for disability benefits is hereby REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). Ordered by US MAGISTRATE JUDGE CHARLES H WEIGLE on 9/7/2021. (tam)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
S. D.,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No. 5:20-cv-00253-CHW
Social Security Appeal

ORDER
This is a review of a final decision of the Commissioner of Social Security denying
Plaintiff’s application for disability insurance benefits. The parties consented to have a United
States Magistrate Judge conduct all proceedings in this case, and as a result, any appeal from this
judgment may be taken directly to the Eleventh Circuit Court of Appeals. As discussed below, this
case must be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g)
for a reevaluation of the evidence relating to Plaintiff’s mental functioning.
BACKGROUND
Plaintiff applied for Title XVI disability benefits in October 2014, alleging disability due
to “mental health, PTSD, anxiety[,] depression and … asthma.” (R. 139, 247). After Plaintiff’s
application was denied initially and on reconsideration at the state-agency level of review, Plaintiff
requested further review before an Administrative Law Judge (ALJ).
Plaintiff appeared for an initial hearing before a first ALJ in March 2018, whereupon
Plaintiff testified that she was unable to work due, primarily, to the problems of “interacting with
other people and comprehensive problem[s] — comprehending and just the memory[, i]t’s just
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hard to remember a lot of things.” (R. 52). Plaintiff testified that she ordinarily treated these
symptoms with the medications Seroquel, Prozac, and Gabapentin, but that she had had some
difficulty affording the medications. (R. 54–55). Plaintiff also testified as to physical symptoms of
grip weakness and radiating pain associated with a back surgery stemming from a 2015 motor
vehicle accident. (R. 57–58).
A first ALJ issued an initial unfavorable opinion in April 2018 (R. 118–127), but the
Appeals Council remanded Plaintiff’s case for a renewed consideration of the evidence relating to
Plaintiff’s mental functioning, particularly a consultative psychological evaluation performed by
Dr. John C. Whitley, Ph.D. (R. 134). On remand, a different ALJ conducted a second hearing in
July 2019 (R. 32–43) and issued another unfavorable opinion in September 2019. (R. 15–26). The
second ALJ assigned “little weight” to Dr. Whitley’s opinion (R. 23) and determined that Plaintiff
could perform simple work with no interaction with the public and no close teamwork with coworkers. (R. 20). In April 2020, the Appeals Council declined to conduct a second round of
administrative review in Plaintiff’s case. (R. 1).
Plaintiff now seeks judicial review on the basis that the second ALJ erred by (1) failing to
find Plaintiff disabled under listing 12.05B, and by (2) providing a deficient evaluation of
Dr. Whitley’s opinion. For the reasons discussed below, a remand is warranted on Plaintiff’s
second ground for relief.
STANDARD OF REVIEW
Judicial review of a decision of the Commissioner of Social Security is limited to a
determination of whether that decision is supported by substantial evidence, as well as whether the
Commissioner applied the correct legal standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011). “Substantial evidence” is defined as “more than a scintilla,” and as “such

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The
Eleventh Circuit has explained that reviewing courts may not decide the facts anew, reweigh the
evidence, or substitute their judgment for that of the Commissioner. Id. Rather, if the
Commissioner’s decision is supported by substantial evidence, the decision must be affirmed even
if the evidence preponderates against it.
EVALUATION OF DISABILITY
Social Security claimants are “disabled” if they are unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death, or 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).
The Social Security Regulations outline a five-step sequential evaluation process for
determining 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 (11th Cir. 2011) (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v)).
MEDICAL RECORD
The available medical record begins in 2009, when Plaintiff sought primary care from
Dr. David L. Turfler for COPD symptoms including a cough and congestion, which Plaintiff

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managed with Klonopin. (R. 381). Contemporary records also record findings of anxiety and
depression, for which Plaintiff treated first with Trazodone and then with Prozac. (R. 382–87).
The next available records show that Plaintiff sought treatment at Meadows Memorial
Hospital in September 2013 for chest or epigastric pain, as well as nausea and vomiting. (R. 456).
An imaging study revealed no signs of cardiopulmonary disease, (R. 464), and Plaintiff was
discharged with instructions to treat with Zantac. Plaintiff returned to Meadows Memorial Hospital
in November 2013 with complaints of right upper extremity pain, numbness, and tingling.
(R. 451). An imaging study revealed nothing of note. (R. 449). When Plaintiff sought follow-up
care for her arm impairment in January 2014, she was instructed to treat with ice applications and
with a tennis elbow band as needed. (R. 448).
In September 2014, Plaintiff sought care at Appling Counseling or the Bulloch Counseling
Center, where her mood, thought content, and emotional state were described as abnormal,
“irrational,” and “a wreck.” (R. 394, 415). Plaintiff was diagnosed with major depressive disorder,
severe in nature, recurrent in type, but without psychotic features. (R. 396, 418). The record
indicates that Plaintiff then had transportation difficulties which impeded her ability to obtain care.
(R. 419) (“Boyfriend refused to bring her, so she quit coming”). The record also memorializes
Plaintiff’s report that “my mom used to beat us,” along with Plaintiff’s concern that her mother,
who now had custody over some of Plaintiff’s children, might similarly abuse them. (R. 419) (“I
fear what she is doing to my younger kids”). In October 2014, Plaintiff reported that she was
“having homicidal thoughts about killing her mother,” and that she “could go over there and blow
her mother’s brains out and spend just a few years in prison due to her having a severe mental
health disorder.” (R. 476). In February 2015, Plaintiff returned to Meadows Memorial Hospital for
treatment associated with a “superficial fish hook impalement” to the left face. (R. 436–37).

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Plaintiff had a consultative psychological evaluation with Dr. John C. Whitley, Ph.D., in
April 2015. (Ex. 4F). Plaintiff was then treating with Effexor, Seroquel, and Gabapentin, and she
reported first “taking medication for mental health issues at the age of 10.” (R. 402). Dr. Whitley
diagnosed Plaintiff with dysthymia, along with borderline intellectual functioning as evidenced by
Plaintiff’s borderline or extremely low IQ scores on testing with the Weschler Scale (WAIS – IV).
(R. 405–06). Dr. Whitley found that Plaintiff’s ability to “sustain effort, focus, pace, and
persistence during an 8-hour workday with simple and routine … task[s] would be moderately
impacted,” that Plaintiff was “precluded from complex work instructions,” that Plaintiff “would
function best with solitary work task[s],” and that Plaintiff was “vulnerable to decompensate under
anything more than simple levels of pressure, stress, change and demands.” (R. 407).
In May 2015, Plaintiff sought care following a motor vehicle accident in which Plaintiff
was an unrestrained passenger. (R. 578, 584). A battery of medical imaging studies revealed soft
tissue swelling, a T-12 vertebral fracture for which Plaintiff underwent a fusion procedure, a rib
fracture, and a C-7 vertebral facture. (R. 555–63). Plaintiff continued to report lingering leg
numbness and lower back pain in February 2016, when she had a consultative physical evaluation
performed by Dr. Christopher S. P. Valentine. (Ex. 6F). Dr. Valentine determined that Plaintiff
would be moderately to severely impaired in her ability to bend, stoop, lift, walk, crawl, or squat,
or to carry, push, or pull heavy objects. (R. 427).
The remaining available medical evidence documents Plaintiff’s treatment at the Oconee
Regional Medical Center in October 2016 for lower back pain, abdominal pain, nausea and
vomiting. (R. 600). Plaintiff’s symptoms were attributed, at least in part, to possible sepsis
associated with a urinary tract infection. (R. 604). Finally, the record indicates Plaintiff received
mental health treatment at the Oconee Medical Center in January and then June of 2017. (Ex. 9F).

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The Oconee records show that Plaintiff reported “two attempts of suicides which [had] caused
hospital admission” in 2004 and 2012 (R. 527, 538), along with a more recent inability to sleep.
(R. 505). The Oconee records further indicate that Plaintiff was discharged from care “due to
noncompliance with treatment” (R. 506), although it is not clear whether this discharge ultimately
resulted from Plaintiff’s transportation or financial difficulties.
DISABILITY EVALUATION IN PLAINTIFF’S CASE
Following the five-step sequential evaluation procedure, the reviewing ALJ made the
following findings in Plaintiff’s case. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since at least October 14, 2014, her application date. (R. 18). At step
two, the ALJ found that Plaintiff had the following severe impairments: “degenerative disc disease
with rods/spinal fusion, bipolar disorder, post-traumatic stress disorder, anxiety, chronic
obstructive pulmonary disease (COPD), a history of alcohol and methamphetamine abuse in
remission, and borderline intellectual function (BIF).” (R. 18).
At step three, the ALJ found that Plaintiff’s impairments did not meet or equal any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18). Therefore, the ALJ
assessed Plaintiff’s RFC and found that Plaintiff could perform light work with exceptions:
[T]he claimant can perform simple work only with no interaction with the general
public and no close team work with co-workers. The claimant should perform no
work with concentrated exposure to extremes of temperature, excessive humidity,
or excessive pulmonary irritants.
(R. 20)
At step four, the ALJ found that Plaintiff had no past relevant work. (R. 25). At step five,
however, the ALJ determined that Plaintiff could perform to the requirements of representative
occupations including photo copy machine operator, mailing clerk, and silver wrapper. (R. 26).
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Accordingly, based on this step five finding, the ALJ determined that Plaintiff was not disabled
within the meaning of the Social Security Act.
ANALYSIS
Before this Court, Plaintiff raises two arguments in support of a remand. First, Plaintiff
contends that the ALJ erred in his assessment of Listing 12.05B (“intellectual disability”). Second,
Plaintiff contends that the ALJ erred in his evaluation of the opinion of Dr. John C. Whitley, Ph.D.
For the reasons discussed below, a remand is warranted as to Plaintiff’s second argument.
(1)

Listing 12.05B
Regarding Listing 12.05B 1 and Plaintiff’s first ground for relief, the parties agree both that

Plaintiff needed to satisfy three criteria to meet the listing and that Plaintiff satisfied the first such
criterion by showing an IQ score of less than 70. See (R. 405) (“Full Scale IQ … 64 … Extremely
Low”). The parties disagree on whether Plaintiff satisfied the listing’s third criterion, whether
Plaintiff’s intellectual and adaptive impairments—as evidenced by her low IQ score—began prior
to the age of twenty-two. Neither party has provided pertinent legal analysis. The parties simply
assert, without authority, that Plaintiff’s self-reporting as to her educational history either did or
did not satisfy the requirement. Case law in the Eleventh Circuit suggests that Plaintiff’s low adult
IQ score creates the presumption, not yet rebutted, of a low adolescent IQ score. See Hodges v.

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20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05B required, in part:
1. Significantly subaverage general intellectual functioning evidenced by … a. a full scale (or comparable IQ
score) of 90 or below ….
2. Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked
limitation of two, of the following areas of mental functioning:
a. Understand, remember, or apply information;
b. Interact with others;
c. Concentrate, persist, or maintain pace;
d. Adapt or manage oneself; and
3. The evidence about your current intellectual and adaptive functioning and about the history of your disorder
demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22.

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Barnhart, 276 F.3d 1265, 1268–69 (11th Cir. 2001) (“a person’s IQ is presumed to remain stable
over time in the absence of any evidence of a change in a claimant’s intellectual functioning”).
Based on this presumption, the Court also presumes that Plaintiff satisfied the listing’s third
criteria.
There is currently no indication that Plaintiff satisfied the second criterion for disability
under Listing 12.05B, which requires a finding of either one extreme or two marked limitations in
four domains of mental functioning. Plaintiff claims she had a marked limitation in the domain of
understanding, remembering, and applying information, but the evidence Plaintiff cites in support,
Dr. Whitley’s opinion, appears instead to support the ALJ’s finding that Plaintiff suffered from
only a moderate limitation due to borderline intellectual functioning. (R. 19, 406). Cf. Williams v.
Comm’r, 2019 WL 4280055 at *13 (N.D. Fla. Sept. 9, 2019). Similarly, Plaintiff claims she had a
marked limitation in the domain of concentration, persistence, and pace, but Dr. Whitley expressly
found that Plaintiff was only “moderately impacted” in her ability to “sustain effort, focus, pace,
and persistence during an 8-hour workday with simple and routine types of task[s].” (R. 407). Cf.
Winschel v. Comm’r, 631 F. 3d 1176, 1180–81 (11th Cir. 2011).
Dr. Whitley’s opinion does not appear, therefore, to support a finding of disability under
Listing 12.05B. Nevertheless, for reasons discussed below, a remand is warranted so that the
Commissioner may reevaluate Dr. Whitley’s opinion. That reevaluation may, in turn, bear upon
Plaintiff’s eligibility under Listing 12.05B. Accordingly, the Commissioner should also revisit the
issue of Listing 12.05B on remand.
(2)

Dr. Whitley’s Opinion
The record supports Plaintiff’s second argument, that the ALJ’s treatment of Dr. Whitley’s

opinion was inadequate and warrants a remand. The ALJ’s opinion suggests that he entirely
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discounted Dr. Whitley’s opinion by assigning it “little weight.” In relevant part, the ALJ’s opinion
reads as follows:
After consultatively examining the claimant, Dr. Whitley opined that the claimant
could understand, follow, and process simple and routine types of directions
(Exhibit 4F). She would function best with solitary work task[s] versus working
directly with the public or [a] large number of coworkers. She appeared vulnerable
to decompensate under anything more than simple levels of pressure, stress, change
and demands during a typical eight-hour workday. She was able to communicate
with others adequately. Her ability to sustain effort, focus, pace, and persistence
with simple and routine types of task[s] would be moderately impacted. I give this
opinion little weight because it was not entirely supported by Dr. Whitley’s own
exam finding and the severe limitations are inconsistent with the record as a whole.
For example, the majority of the claimant’s mental status exams showed that while
she had a depressed mood and affect, she was also calm and cooperative, which
supports that Dr. Whitley’s findings regarding solitary work and decompensation
are not consistent.
(R. 23)
The ALJ’s treatment of Dr. Whitley’s opinion is deficient for three overlapping reasons.
First, the ALJ failed to satisfy the standard of clear articulation when discussing the import of
Dr. Whitley’s opinion. See Winschel v. Comm’r, 631 F.3d 1176, 1179 (“the ALJ must state with
particularity the weight given to different medical opinions and the reasons therefore”). Based on
the ALJ’s failure, the Commissioner now offers, in briefs to the Court, a revised assessment.
According to the Commissioner, “[t]he ALJ essentially adopted the other portions of
[Dr. Whitley’s] opinion,” while opting to discount only one, small finding by Dr. Whitley: that
Plaintiff might decompensate under stress. (Comm’r Br., Doc. 11, p. 8). The Court may not accept
the Commissioner’s post-hoc rationales. Dempsey v. Comm’r, 454 F. App’x 729, 733 (11th Cir.
2011). If the ALJ in fact intended to credit all or most of Dr. Whitley’s opinion, then the ALJ
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should have clearly articulated that ruling, noting with particularity which of Dr. Whitley’s
findings, if any, were discounted and why.
Second, the ALJ’s deficient treatment of Dr. Whitley’s opinion is compounded by the
ALJ’s deficient treatment of the other available medical evidence bearing upon Plaintiff’s mental
status. Although the ALJ recounted some of the objective findings contained in notes from
Plaintiff’s treatment at Appling Counseling and from the Bulloch Counseling Center in late 2014
and early 2015, the ALJ did not assign weight to these records or otherwise interpret or explain
their significance. Some of the findings suggest that Plaintiff suffered from significant mental
impairments. For example, Plaintiff was diagnosed with a severe major depressive disorder,
recurrent type (R. 396, 418), and Plaintiff’s mood, thought content and emotional state all were
found to be “abnormal,” “irrational,” or “a wreck.” (R. 394, 415). The ALJ appears to have
mischaracterized these records, which bolster rather than undermine Dr. Whitley’s opinion, as
showing only that Plaintiff’s mental condition was “essentially normal.” (R. 22). Cf. Storey v.
Berryhill, 776 F. App’x 628, 636 (11th Cir. 2019) (“Despite having all of Storey’s medical records,
the ALJ mischaracterized the records as showing a history of ‘routine and conservative’
treatment”).
Similarly, regarding later medical evidence documenting Plaintiff’s treatment at the
Oconee Medical Center in January and then June of 2017, the ALJ gave no clear articulation of
the weight or significance of this evidence, while it is clear that the ALJ placed great emphasis on
the fact that Plaintiff was “discharged from treatment … due to noncompliance.” (R. 24). As to
this latter point, both Plaintiff’s hearing testimony and the medical record indicate that financial
constraints impeded Plaintiff’s ability to afford medication. See, e.g., (R. 55) (“they started
charging me and I didn’t have the money to pay for it”). In general, “poverty excuses

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noncompliance.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). Given the ALJ’s
failure both to address the issue of poverty and to explain the import of Plaintiff’s Oconee Medical
Center treatment records, these records also fail to provide substantial evidence supporting the
ALJ’s decision to discount Dr. Whitley’s opinion.
Third and finally, the ALJ assigned “significant weight” (R. 25) to the opinions of state
agency physicians, but those physicians’ opinions cannot, alone, meet the standard of substantial
evidence. Storey, 776 F. App’x at 635 (“The opinions of nonexamining, reviewing physicians …
standing alone do not constitute substantial evidence”). The state agency physicians’ opinions also
fail, therefore, to provide adequate support either for the ALJ’s decision to discount Dr. Whitley’s
opinion, or for the ALJ’s mental RFC finding in general. Accordingly, because the ALJ provided
a deficient evaluation of the medical evidence relating to Plaintiff mental functioning, Plaintiff’s
case must be remanded to the Commissioner for a reevaluation of that evidence.
CONCLUSION
For the reasons discussed herein, the Commissioner’s decision denying Plaintiff S.D.’s
application for disability benefits is hereby REMANDED to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner should reevaluate the evidence
relating to Plaintiff’s mental functioning, providing a clear articulation of the weight assigned to
that evidence, and the reasons therefore.
SO ORDERED, this 7th day of September, 2021.
s/ Charles H. Weigle_________
Charles H. Weigle
United States Magistrate Judge

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