Jackson v. Colvin
Filing
19
ORDER AND OPINION REVERSING the final decision of the Commissioner and REMANDING the case for further proceedings consistent with this opinion. Signed by Magistrate Judge Alan J. Baverman on 9/23/15. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ANTHONY JACKSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,
Defendant.
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CIVIL ACTION FILE NO.
1:14-cv-01868-AJB
O R D E R A N D O P I N I O N1
Plaintiff Anthony Jackson (“Plaintiff”) brought this action pursuant to
section 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), to obtain judicial
review of the final decision of the Acting Commissioner of the Social Security
Administration (“the Commissioner”) denying his application for Supplemental
Security Income Benefits (“SSI”) under the Social Security Act.2 For the reasons
1
The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. (See Dkt. Entries dated 7/13/14 & 7/15/14). Therefore, this Order
constitutes a final Order of the Court.
2
Title II of the Social Security Act provides for federal Disability Insurance
Benefits (“DIB”). 42 U.S.C. § 401 et seq. Title XVI of the Social Security Act,
42 U.S.C. § 1381, et seq., provides for SSI benefits for the disabled. Unlike Title II
claims, Title XVI claims are not tied to the attainment of a particular period of
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below, the undersigned REVERSES the final decision of the Commissioner AND
REMANDS the case to the Commissioner for further proceedings consistent with this
opinion.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for SSI on March 25, 2011, alleging disability
commencing on August 1, 2006. [Record (hereinafter “R”) 61, 139]. Plaintiff’s
applications were denied initially and on reconsideration. [See R61-62, 65-68, 70-73].
Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”).
[R74-77]. An evidentiary hearing was held on September 25, 2012, wherein Plaintiff’s
attorney amended the alleged onset date to February 1, 2011. [R33-60]. The ALJ
issued a decision on March 20, 2013, denying Plaintiff’s application on the ground that
he had not been under a “disability” at any time through the date of the decision.
insurance disability. Baxter v. Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982).
Otherwise, the relevant law and regulations governing the determination of disability
under a claim for DIB are nearly identical to those governing the determination under
a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n.4 (11th Cir. June 2, 2005)
(citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4 (11th Cir. 1986)). Thus, in
general, the legal standards to be applied are the same regardless of whether a claimant
seeks DIB, to establish a “period of disability,” or to recover SSI, although different
statutes and regulations apply to each type of claim. See 42 U.S.C. § 1383(c)(3)
(establishing that the judicial provisions of 42 U.S.C. § 405(g) are fully applicable to
claims for SSI). Therefore, to the extent that the Court cites to DIB cases, statutes, or
regulations, they are equally applicable to Plaintiff’s SSI claims.
2
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[R12-32]. Plaintiff sought review by the Appeals Council, and the Appeals Council
denied Plaintiff’s request for review on April 24, 2014, making the ALJ’s decision the
final decision of the Commissioner. [R5-10].
Plaintiff then filed the present action in this Court on June 13, 2014, seeking
review of the Commissioner’s decision. [See Doc. 1]. The answer and transcript were
filed on October 29, 2014. [See Docs. 8, 9]. On December 2, 2014, Plaintiff filed a
brief in support of his petition for review of the Commissioner’s decision, [Doc. 12],
and on February 2, 2015, the Commissioner filed a response in support of the decision,
[Doc. 17].3 The matter is now before the Court upon the administrative record, the
parties’ pleadings, and the parties’ briefs, and it is accordingly ripe for review pursuant
to 42 U.S.C. § 1383(c)(3).
3
The response brief was timely filed, pursuant to an Order granting the
Commissioner’s unopposed motion for extension of time. [Doc. 16]. Plaintiff did not
file a reply brief, and neither party requested oral argument. (See Dkt.).
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II.
STATEMENT OF FACTS4
A.
Background
Having a date of birth of November 15, 1969, Plaintiff was forty-one years old
on the filing date of March 25, 2011, and forty-two years old on the date of the hearing
before the ALJ. [R40]. Plaintiff alleges that he is unable to work due to depression,
anxiety, post-traumatic stress disorder (“PTSD”), and paranoia. [R155, 170, 198, 208,
242].
B.
Lay Evidence
1.
Plaintiff’s Testimony
Plaintiff testified that he completed the ninth grade, had been in special-education
classes, and had dropped out because he could not pay attention. [R44]. He also stated
that although the record indicated that he had received a General Educational
Development (“GED”) credential, someone else had taken the test for him, and he
could not have passed on his own. [R41]. He also indicated that he could not read or
write and that he tried to pay for things with dollar bills because he had difficulty
4
The facts stated herein are, in general, limited to those deemed relevant by
the parties and the ALJ. [See Doc. 9-2 at 15-27; Doc. 12; Doc. 17].
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counting change. [R41-42]. He stated that while he was in prison, he also took an
anger-management class. [R44].
Plaintiff stated that he had last worked in 2011, at a chicken plant, and that he
worked only three days because he could not perform. [R43]. He indicated that the
work at the chicken plant took place while he was incarcerated and that while
incarcerated, his work detail was trash collection. [R44]. Plaintiff also reported that
in 2004, between prison sentences, he worked for about one year at a construction job.
[R45]. He indicated that he had not taken drugs since his most recent release in 2011.
[R46].
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Plaintiff reported that he was taking benztropine,5 “perphenavine [sic],”6
sertraline,7 and trazodone8 and that his sister organized the medication so that he could
take it properly. [R50-51]. He stated that his medication calmed him and kept him
from being frustrated, angry, and scared, but that he was unable to work because the
medication also made him drowsy and kept him from being able to function.
[R47-48, 52].
5
Benztropine (brand name, Cogentin) is commonly used to treat symptoms
of Parkinson’s disease or involuntary movements due to the side effects of certain
antipsychotic
drugs.
WebMD,
Benztropine,
http://www.webmd.com/drugs/2/drug-8619/benztropine+oral/details (last visited
9/20/15).
6
This testimony appears to refer to perphenazine (brand name, Trilafon),
a conventional antipsychotic that is typically used to treat the symptoms of
schizophrenia.
MedlinePlus,
Perphenazine,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682165.html (last visited
9/20/15).
7
Sertraline (brand name, Zoloft) is a selective serotonin uptake inhibitor
(“SSRI”) used to treat depression, obsessive-compulsive disorder, panic attacks,
post-traumatic stress disorder, and social-anxiety disorder. MedlinePlus, Sertraline,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697048.html (last visited
9/20/15).
8
Trazodone is a serotonin modulator used to treat depression. MedlinePlus,
Trazodone, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681038.html (last
visited 9/20/15).
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Plaintiff testified that he lived with his mother and spent his days sleeping and
watching television in his room. [R47]. He reported that he did not help with the
housework and that his mother did the cooking and laundry. [R48]. He stated that he
only went places with his sister, who would take him to appointments and show him
where to go. [R48]. He also indicated that he did not know how to type or use the
Internet and that his sister composed e-mail messages for him. [R48-49].
2.
Counseling Notes
On March 17, 2011, Plaintiff was referred to the DeKalb Community Service
Board for treatment of depression and anger issues. [R425]. Notes indicate that he had
recently been released from prison after fifteen years of incarceration for drug
possession and was on parole until August. [R425]. It was also noted that Plaintiff
received his GED in prison. [R425].
Plaintiff presented for counseling at the MH Kirkwood unit of the DeKalb
Community Service Board on March 23, 2011. [R431]. Plaintiff reported auditory
hallucinations and indicated that the conditions of his parole made him feel worthless,
hopeless, and overwhelmed. [R431].
At an appointment on April 1, 2011, Plaintiff reported feeling frustrated and
angry and reported that the sources of his stress were being on probation, living with
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his mother, and being unemployed. [R432]. He indicated that he had an ongoing
conflict with his mother and resented her. [R432]. On April 22, 2011, Plaintiff again
reported feeling frustrated and angry, this time due to his strained relationship with his
daughter. [R433].
On May 6, 2011, Plaintiff reported a reduction in his symptoms of excessive
worry and frustration and reported satisfaction with his prescribed psychotropic
medication, saying, “It keeps me calm and I don’t worry about stuff as much.” [R434].
He also indicated that he was able to refocus, as he reported that he works on his
mother’s house and cuts her grass. [R434]. However, he also reported feeling stressed
about money and his relationship with his kids; feeling paranoid; and sleeping with the
lights on. [R434].
At a session taking place on June 22, 2011, Plaintiff reported feeling irritable and
distrustful, particularly of his family members. [R437]. He indicated that the time he
was incarcerated impacted his relationship with his children. [R437].
On July 7, 2011, Plaintiff reported a decrease in his feelings of anger and
frustration and an increase in feelings of apathy. [R438]. He reported that his ankle
monitor was recently removed but that he had allowed his frustration to result in an
angry outburst toward his parole officer. [R438].
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On July 21, 2011, Plaintiff reported feeling angry and frustrated about an
ongoing conflict with his mother, with whom he still lived. [R439]. He stated that she
did not want him to bathe or wash his clothes because he did not contribute financially
to the household, but that he does “plenty around the house,” including repairs,
cleaning, and mowing the lawn, and he paid for the house. [R439].
Plaintiff continued to take his medications and participate in therapy, and in
October 2011, he was assigned a new counselor, who was then reassigned less than a
month later. [R513-14]. Plaintiff started with another new counselor in February 2012.
[R521]. In the first session, Plaintiff reported that his medication was helping him
relax, stay calm, not get so angry, and get about five hours of sleep. [R521]. He
reported symptoms of anxiety about making child-support payments, not getting along
with the mothers of his children, and not having a job due to his criminal history.
[R521].
At counseling taking place on March 8, 2012, Plaintiff reported feeling used by
his son and feeling overwhelmed about trying to find a job in light of his criminal
history. [R523]. He reported that medication helped him reduce his feelings of
frustration and anger but that he was taking his sleep medication during the daytime,
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would not sleep with the light off, felt paranoid, and would isolate himself when
overwhelmed. [R523].
At a visit on March 22, 2012, Plaintiff reported sleeping only one to two hours
per night. [R524]. After exploring the reasons for the insomnia, the therapist suggested
that he take his medication at 11:00 p.m., and Plaintiff agreed to do so. [R524]. They
also discussed volunteer work that Plaintiff was required to do as part of a fatherhood
program he was attending, and Plaintiff decided on volunteering for Habitat for
Humanity. [R524].
At a counseling session taking place on April 17, 2012, Plaintiff reported feeling
“good” and stated that he had been volunteering at Habitat for Humanity for the past
seven days, completing anywhere from four to seven hours per day. [R525]. He also
reported that his probation officer had allowed him to go to Kentucky to work on a
ranch and earn some money. [R525]. He also reported that he was getting more sleep
and going to bed at 11:00 p.m. five nights out of the week. [R525].
C.
Administrative Records
An adult disability report dated March 25, 2011, indicates that Plaintiff could
read and understand English but that he could not write more than his name in English.
[R154]. It also shows that Plaintiff completed twelfth grade and did not attend
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special-education classes. [R156]. The report further indicates that at the time,
Plaintiff was not taking any medication but was either receiving care or had an
appointment scheduled for treatment of a mental condition. [R158]. The work-history
section was left blank. [R156-58].
An adult disability report dated April 29, 2011, states that Plaintiff can read and
understand English and can write more than his name in English. [R169]. The report
also shows that Plaintiff completed twelfth grade and did not attend special-education
classes. [R171]. The report further indicates that at the time, Plaintiff was not taking
any medication but was either receiving care or had an appointment scheduled for
treatment of a mental condition. [R172-73]. The job-history section was left blank.
[R171-72]. A work-history report from that date was also left blank. [R176-81].
In an adult function report dated May 4, 2011, Plaintiff reported that he lives in
a house with his mother and that he watches television all day. [R190, 194]. He
indicated that he did not have any problems with his personal care and did not need any
reminders to take medicine. [R191-92]. He stated that he did not prepare food because
“it’s poison” and that he never does housework or yardwork. [R192]. He also reported
that his sister and mother did his shopping and his sister paid his bills. [R193]. He
stated that he did not go anywhere or spend time with anyone on a regular basis.
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[R194]. He indicated that he could pay attention “all the time” and was good at
following written and spoken instructions. [R195].
In an adult disability report dated August 19, 2011, Plaintiff reported that his
sister helped him with personal needs such as picking out his clothes and cooking his
food. [R211]. He also stated that he had been struggling with PTSD and paranoia, was
depressed “all the time,” had anxiety attacks, and could not sleep with the light off.
[R211]. He further stated that he was always afraid that someone was watching him
and trying to get him, that he did not go anywhere and instead stayed in the house, and
that the only places he goes are to his therapist and doctor. [R211].
D.
School Records
Notes from a meeting held on or about May 9, 1983, indicate that Plaintiff had
been attending special-education classes and had mastered his goals for the 1982-83
school year. [R545]. It was recommended that Plaintiff be placed in a regular
classroom the following year. [R545].
E.
Medical Records
Notes from an intake mental-health screening and assessment taking place at the
Correctional Medical Service on August 3, 2006, indicate that Plaintiff was of average
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cognitive functioning; had completed the tenth grade; was oriented to person, place, and
time; and did not appear to have any mental-health problems. [R260].
An inmate-worker screening sheet dated September 12, 2006, indicated that
Plaintiff had no behavioral or mental-health problems that might impair performance.
[R261]. He was cleared to work without limitation. [R261].
Notes from an intake mental-health screening and assessment taking place at
MHM Correctional Services on February 26, 2008, indicate that Plaintiff was of
average cognitive functioning; had completed a GED; was oriented to person, place,
and time; and did not appear to have any mental-health problems. [R282].
Notes from an intake mental-health screening and assessment taking place at
MHM Correctional Services on November 4, 2008, indicate that Plaintiff was of
average cognitive functioning; had a twelfth-grade education; was oriented to person,
place, and time; and did not appear to have any mental-health problems. [R297].
Shortly thereafter, Plaintiff was cleared for work without limitations. [R298].
A medical-information transfer form completed by the Georgia Department of
Corrections on July 26, 2009, indicated that Plaintiff was not taking any medication and
had no mental-health problems. [R294]. Notes dated July 27, 2009, indicate that
Plaintiff was oriented to place, person, time, and situation; had no signs of
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hallucinations, delusional thinking, depression, or mania; had adjusted well to previous
incarcerations; had no history of mental-health treatment; had completed the eleventh
grade and received a GED; and did not desire mental-health treatment. [R361-64].
A mental-retardation9 screening conducted on August 18, 2009, while Plaintiff
was incarcerated, resulted in a score of 70 on the Wechsler Abbreviated Scale of
Intelligence (“WASI”). [R355]. The score was noted to fall in the “borderline” range,
and it was determined that Plaintiff did not require mental-health or mental-retardation
services based on intellectual functioning. [R355]. The records also indicate a
verbal IQ score of 64 and a performance IQ score of 81 and note that Plaintiff
completed the tenth grade, had a GED, and was in special education in sixth grade
because he was a “slow learner.” [R356]. It was also noted that Plaintiff was persistent
in the testing, “often working well past time limits until successfully completing task”;
9
On August 1, 2013, while Plaintiff’s appeal of the ALJ’s decision was
before the Appeals Council, the Social Security Administration amended Listing 12.05
to replace the words “mental retardation” with “intellectual disability” because of the
negative connotations associated with the term “mental retardation.”
See 78 Fed. Reg. 46,499, 46,501. The change went into effect on September 3, 2013,
and “does not affect the actual medical definition of the disorder or available programs
or services.” Id. at 46,499-46,500. For the sake of accuracy, where the term “mental
retardation” is used in the medical records or by the ALJ, the Court will use that
terminology. Otherwise, the Court will use the term “intellectual disability.” In any
event, the terms are to be read interchangeably.
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was pleasant; had good attention and concentration; had no apparent language deficits;
had “okay” comprehension; was in a euthymic mood with an appropriate affect; and
was future oriented and optimistic. [R360]. Notes also indicate that Plaintiff “stays to
himself” and reads. [R360]. He was observed to have no symptoms of psychosis and
reported no problems. [R360].
On March 17, 2011, Plaintiff presented to the DeKalb Community Service Board
with complaints of moderate anxiety, moderate depression, moderate delusions,
moderate inappropriate expressions of anger; and mild substance abuse, all of which
he reported had been a chronic problem for many years. [R366, 425]. Plaintiff
reported stress about finding employment with his criminal background; he indicated
that he had been dealing with depression most of his life, his mother was an alcoholic,
he was paranoid and felt that people were watching him, and he had problems with
physical aggression; and he stated that he had been charged with cocaine possession.
[R366]. It was noted that Plaintiff had recently been released from prison after serving
fifteen years for drug possession and that his symptoms included depression, headache,
lack of sleep, hearing voices (command), irritability, and agitation. [R425]. The
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medical provider assessed depressive-type psychosis and assigned a Global Assessment
of Functioning (“GAF”) score of 50.10 [R424].
On April 22, 2011, Plaintiff presented to Neha A. Khurana, M.D., of the
MH Kirkwood unit of the DeKalb Community Service Board, for a psychiatric
evaluation. [R429]. Dr. Khurana’s notes indicate that Plaintiff complained that he did
not “feel like being around people no more” and that he reported having no prior
psychiatric history or treatment. [R429]. Plaintiff reported that he had recently been
released from a ten-year prison sentence and was still wearing an ankle monitor and
was under curfew at his mother’s house, all of which frustrated him. [R429]. Plaintiff
also reported that he had been in special-education classes in school and dropped out
after the eighth grade. [R429].
Dr. Khurana opined that Plaintiff’s paranoia could be explained as
hypervigilence and behavior learned on the street and in prison and that he did not need
10
The GAF is a numeric scale (0 through 100) that considers psychological,
social, and occupational functioning on a hypothetical continuum of mental-health
illness.
Diagnostic and Statistical Manual of Mental Disorders 32-34
(4th ed., Text Revision, 2000) (“DSM-IV-TR”). A GAF score between 41 and 50
indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).” Id. at 34.
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antipsychotic medication. [R430]. She also found that Plaintiff was depressed, and she
started him on Zoloft. [R430].
Plaintiff returned to Dr. Khurana on April 26, 2011. [R426]. Plaintiff was
assessed with major depressive disorder, single episode severe, and cocaine
dependence, in remission, and was assigned a GAF score of 45. [R426].
At an appointment taking place on May 20, 2011, Plaintiff reported that his mood
was better and that he was less hypervigilant but still suspicious of his mother and still
having financial and sleeping problems. [R436]. Dr. Khurana assessed major
depressive disorder, single episode severe, and cocaine dependence, in remission;
assigned a GAF score of 5511; continued Plaintiff’s Zoloft; and added trazodone to
target insomnia. [R428, 436].
A consultative examination was administered on July 28, 2011, by Cheryl
Gratton, Ph.D. [R405-09]. During the examination, Plaintiff indicated that he quit
school after the eighth grade and had been enrolled in a special-education curriculum,
which Dr. Gratton noted was in conflict with the educational-history information
11
A GAF score between 51 and 60 indicates “[m]oderate symptoms
(e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate
difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers).” DSM-IV-TR at 34.
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submitted on the state-agency application forms. [R405]. Plaintiff reported inability
to work due to depression and paranoia secondary to having been in prison for fifteen
years. [R405]. He indicated that in the past, he had worked at a dishwashing job and
a construction job each for one year and that he last worked at a chicken-processing
plant for three days while in prison but discontinued the job because it “messed up”
both of his hands. [R406].
Plaintiff reported that he was living with his mother and stated that his sister
“takes care of him.” [R406]. He indicated that he did little more each day than staying
in the house and watching television; he could not so much as make a sandwich for
himself; he could not read; he could bathe and dress himself but did not know how to
comb his hair; he did not know how to pay bills or manage finances; he was no longer
able to drive; he claimed a history of auditory and visual hallucinations since age ten;
and he claimed that he heard voices telling him to hurt himself. [R406]. Dr. Gratton
opined that Plaintiff’s portrayal of his activities of daily living was not realistic and
appeared to be significantly under-reported. [R406].
On mental status examination, Dr. Gratton observed that Plaintiff’s affect was
flat. [R407]. His mentation was “characterized by slowing that appeared to be
feigned.” [R407]. Plaintiff was not able to comprehend abstraction, his memory
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function appeared impaired, and his speed at task performance was deficient, though
Dr. Gratton found his effort to be “questionable in the extreme.” [R407]. Plaintiff’s
attentional capacity appeared impaired during testing, though Dr. Gratton stated it was
normal during the interview portion. [R407]. Dr. Gratton opined that Plaintiff was not
a reliable historian; that he appeared to malinger, embellish symptoms, and minimize
his strengths; and that his test results were not consistent with clinical presentation.
[R407].
On the Wechsler Adult Intelligence Scale – Fourth Edition (“WAIS-IV”),
Plaintiff scored 50 on Verbal Comprehension; 50 in Perceptual Reasoning; 50 on
Working Memory; and 50 on Processing Speed; and his Full Scale IQ was 40.
[R407-08]. On the Wide Range Achievement Test – Third Edition (“WRAT-III”), he
obtained a Standard Score of less than 45 on the Reading subtest and a Standard Score
of less than 45 on the Arithmetic subtest. [R408]. The Rey Malingering Memory Test
and the Test of Memory Malingering showed evidence of extreme malingering.
[R408].
Dr. Gratton diagnosed malingering and cocaine dependence, declined to make
a mental diagnosis on Axis II, and declined to assess a GAF score. [R409]. Dr. Gratton
found that Plaintiff’s IQ was in the “Defective” range, but that his “frank, flagrant, and
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egregious malingering indicates that this is a significant under-estimate of his actual
level of functioning.” [R409]. Dr. Gratton further opined that based on the results of
her assessment, Plaintiff “finds it easy to comprehend and carry out simple instructions
when he is motivated to do so,” “[h]is attention is sufficient for the execution of tasks
he wishes to perform,” and he “is possibly likely to be challenged by difficulties getting
along with others, especially those in positions of authority.” [R409]. Dr. Gratton also
opined that Plaintiff “would not be likely to decompensate under stressful conditions
unless significant secondary gain were available to him.” [R409].
In a Psychiatric Review Technique (“PRT”) form dated August 9, 2011,
nonexamining state agency physician Anna J. Williams, Ph.D., opined that Plaintiff’s
impairments were not severe. [R410, 422]. She also opined that Plaintiff was only
mildly restricted in activities of daily living; had mild difficulties in maintaining social
functioning; and had mild difficulties in maintaining concentration, persistence, or
pace. [R420].
Plaintiff presented to Shahina Mirza, M.D., at the MH Kirkwood unit of the
DeKalb Community Service Board on August 11, 2011. [R440]. Dr. Mirza’s notes
indicate Plaintiff reported that was afraid to leave the house because he was afraid he
would be hurt and that he was afraid to go to sleep and slept with the lights on because
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he believed someone was watching him all the time. [R440]. Dr. Mirza also noted that
since Plaintiff’s release from prison, he had been treated with antidepressants and had
not received medication for his paranoia. [R440]. Dr. Mirza opined that Plaintiff had
paranoid thoughts that interfered with his daily life routines in that he did not leave the
house, stayed isolated, and slept only with the lights on. [R440]. She continued
Plaintiff’s Zoloft and trazodone and started him on a “small dose” of Trilafon. [R440].
On September 15, 2011, non-examining state agency review physician Cristina
Grand, Psy.D., completed a Mental Residual Functional Capacity (“RFC”) Assessment.
[R445-48]. Dr. Grand opined that Plaintiff was moderately limited in his abilities to:
understand and remember detailed instructions; complete a normal workday and
workweek without interruptions from psychologically based symptoms; perform at a
consistent pace without an unreasonable number and length of rest periods; interact
appropriately with the general public; accept instructions and respond appropriately to
criticism from supervisors; get along with coworkers or peers without distracting them
or exhibiting behavioral extremes; and respond appropriately to changes in the work
setting. [R446]. Dr. Grand further opined that Plaintiff was adjusting to society after
release from prison and that the evidence seemed to indicate that Plaintiff was
exaggerating and malingering mental illness. [R477]. She found that Plaintiff was
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capable of simple tasks, and she recommended limited social contact. [R447]. That
same day, Dr. Grand completed a PRT form in which she opined that Plaintiff had mild
restriction in his activities of daily living; moderate difficulties in maintaining social
functioning; and moderate difficulties in maintaining concentration, persistence, or
pace. [R459].
On September 19, 2011, Dr. Mirza completed a Medical Source Statement.
[R468-70]. In it, Dr. Mirza opined that Plaintiff had poor or no ability to follow rules;
deal with the public; interact with supervisors; deal with work stress; function
independently; maintain attention and concentration; and understand, remember, and
carry out simple job instructions. [R468-69]. Dr. Mirza further opined that Plaintiff
was seriously limited in his abilities to relate to co-workers; use judgment; maintain
personal appearance; behave in an emotionally stable manner; relate predictably in
social situations; and demonstrate reliability. [R468, 470]. Dr. Mirza wrote in
explanation that Plaintiff was paranoid and unable to relate to others; he felt
uncomfortable around others; he took medication for depression; and paranoid thoughts
interfered with his concentration. [R469].
Notes from a visit with Dr. Mirza on December 12, 2011, indicate that Plaintiff
reported that his medications were helping him to stay calm and to interact with others
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without getting agitated. [R520]. He stated that he was still living with his mother and
having money problems and that he had been “working with church people” and was
involved with a fatherhood program. [R520]. Dr. Mirza continued Plaintiff’s Zoloft,
Trilafon, and trazodone; recommended that he continue with supportive therapy; and
told him to make a follow-up appointment after three months. [R520].
Plaintiff returned for follow-up with Dr. Mirza on March 1, 2012. [R522]. He
reported that with the addition of Trilafon, he was feeling less paranoid but was still
afraid of someone assaulting him in his sleep. [R522]. He denied having side effects
from his medication and reported that was able to attend to his activities of daily living.
[R522]. Dr. Mirza increased Plaintiff’s Trilafon dosage and continued him on Zoloft
and trazodone. [R522].
Plaintiff returned to Dr. Mirza on June 4, 2012. [R526]. He reported feeling
paranoid and that someone was watching him all the time, and he indicated that he had
disturbed sleep on some days. [R526]. He stated that he stayed home most of the time
and was involved in volunteer work at Habitat for Humanity. [R526]. Dr. Mirza
increased Plaintiff’s dose of Trilafon and continued his Zoloft and trazodone. [R526].
A DeKalb Community Service Board Physician Therapy Note dated
September 5, 2012, indicates “overt psychotic symptoms with paranoid ideation” and
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side effects from anti-psychotic medication. [R517]. Medications included Trilafon,
Zoloft, trazodone, and Cogentin.
[R517].
Plaintiff was diagnosed with major
depressive disorder, single episode moderate; cocaine dependence, unspecified; and
rule out paranoid psychosis; and assigned a GAF score of 55. [R527].
On October 2, 2012, Maria Johnson, M.D., of Kirkwood Mental Health saw
Plaintiff for the first time and completed the same Medical Source Statement form
Dr. Mirza had completed in September 2011. [R556, 560; compare R468-70 with
R553-55]. She stated that Plaintiff had last been seen on September 5, 2012, “by
another provider.” [R556]. Like Dr. Mirza, Dr. Johnson opined Plaintiff had poor or
no ability to follow rules; deal with the public; interact with supervisors; deal with work
stress; function independently; maintain attention and concentration; or understand,
remember, and carry out simple job instructions. [Compare R468-70 with R553-55].
Dr. Johnson further opined that Plaintiff had poor or no ability to relate to coworkers;
use judgment; behave in an emotionally stable manner; relate predictably in social
situations; or demonstrate reliability. [R554-55]. Dr. Johnson also opined that Plaintiff
was seriously limited in his ability to maintain his personal appearance. [R555].
Dr. Johnson indicated that the limitations resulted from Plaintiff’s social anxiety,
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paranoia, anger, memory problems, and flashbacks, and that the limitations had existed
at the reported level of severity since January 1, 2007. [R554-55].
Dr. Johnson opined that Plaintiff suffered from bipolar syndrome characterized
by, inter alia, moderate restriction of activities of daily living; extreme difficulties in
maintaining social functioning; extreme deficiencies of concentration, persistence, or
pace resulting in failure to complete tasks in a timely manner (in work settings or
elsewhere); and four or more repeated episodes of decompensation, each of extended
duration. [R558]. Dr. Johnson noted that Plaintiff’s functional limitations included low
energy, sadness, crying, low motivation, headaches, negative thoughts, and thoughts
of suicide; that he had poor memory, comprehension, paranoia; and that he appeared
irritable, defensive, tense, and easily angered. [R559]. Dr. Johnson also indicated that
Plaintiff suffered from PTSD and depression, separate and apart from any history of
drug or alcohol use. [R560].
F.
Vocational-Expert Testimony
The vocational expert (“VE”) testified that Plaintiff’s last work was a laborer job
and that it was classified as heavy and unskilled. [R53]. She also testified that a person
of Plaintiff’s age, education, and work experience, who is limited to simple, routine,
repetitive tasks in a work environment free of fast-paced production requirements and
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involving only simple work-related decisions, with few, if any, workplace changes, and
is capable of only occasional, casual interaction with the public, coworkers, and
supervisors, could perform work as a laborer, which was a job Plaintiff had previously
performed, and could alternatively work as a buckle-wire inserter, racker, or box
bender. [R53-55].
Upon further questioning, the VE testified that the alternative jobs of buckle-wire
inserter, racker, and box bender were isolated jobs but that they required more than
casual contact with supervisors. [R55]. She also testified that if the hypothetical
person had psychologically based symptoms that caused him to occasionally exhibit an
inability to maintain concentration, persistence and pace, he would be precluded from
performing those jobs. [R56].
III.
ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant has not engaged in substantial gainful activity since
March 25, 2011, the application date (20 CFR 416.971 et seq.).
...
2.
The claimant has the following severe impairment: depressive
disorder with psychosis (20 CFR 416.920(c)).
...
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3.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926).
...
4.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant is restricted to
work that is limited to simple, routine, and repetitive work tasks or
instructions; that does not require close coordination or interaction
with supervisors, co-workers, or the general public; that is low
stress (only occasional decision-making and changes to work
setting); and that is no[t] production-paced. The work must be
isolated with rare interaction with other people.
...
5.
The claimant may be capable of performing past relevant work as
a laborer. This work does not require the performance of
work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 416.965).
...
6.
The claimant has not been under a disability, as defined in the
Social Security Act, since March 25, 2011, the date the application
was filed (20 CFR 416.920(f)).
[R17-27].
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The ALJ explained that although Dr. Mirza was a treating physician of long
standing and her opinion had some foundation in Plaintiff’s complaints, she assigned
Dr. Mirza’s opinions “little weight” because they were not justified by the medical
evidence of record: no mental impairments were mentioned or treated when Plaintiff
was incarcerated; Plaintiff reported feeling better within two months of starting Zoloft;
and two months after that, he underwent a consultative examination where he
malingered during the testing, showed good concentration and attention both in his
malingering and during the interview, and showed ability to follow instructions;
Plaintiff reported relief from increased Trilafon shortly after Dr. Mirza issued her
opinion, and within the next few months, Plaintiff was able to work with church people
and in a group program, work at a ranch, and volunteer at Habitat for Humanity.
[R23-24].
The ALJ additionally found that Plaintiff’s ability to live with his mother showed
that he could deal with stress and difficult relationships. [R23]. The ALJ also
acknowledged the low GAF scores but noted the Commissioner’s position that GAF
scores have no direct correlation to the severity requirements of the mental-disorder
listings.
[R24].
She also stated that although she found the opinions of the
state-agency reviewing physicians to be “well-reasoned, supported by the medical
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evidence of record as a whole, and substantively consistent with other opinions,” she
did not rely on the opinions but instead independently reviewed the record. [R25].
The ALJ also stated that she had considered whether the record indicated that
Plaintiff was mentally retarded, and she explained that although Plaintiff’s score on the
WAIS-IV administered by Dr. Gratton was indicative of severe mental retardation and
the intelligence testing administered while Plaintiff was in prison could implicate the
mental retardation listing, she found that Plaintiff’s condition did not meet or medically
equal the listing because: Plaintiff’s WAIS-IV score was invalidated by malingering;
the testing done in prison was not a full intelligence test, and the wide scattering of
scores supported a finding that Plaintiff was merely learning disabled; a finding that
Plaintiff was not mentally retarded was consistent with Plaintiff’s individualized
education plan, which allowed for only one resource class in reading each week; and
his activities—such as his proficiency as a “drug salesman” and his ability to obtain a
GED, perform repairs, and maintain intimate relationships—showed that he had
adaptive abilities generally not associated with mental retardation. [R24-25].
Finally, the ALJ qualified her determination that Plaintiff “may” be capable of
performing past relevant work as a laborer, explaining that she was concerned that
Plaintiff was not able to perform his past relevant work because it might require him
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to work around hazards but that he was capable of performing alternative work
including buckle inspector, racker, and box bender. [R25-26].
IV.
STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if he is
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), 1382c(a)(3)(A).
The impairment or
impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
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sequential process to determine whether the claimant has met the burden of proving
disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The claimant must prove at step one that he is not undertaking substantial gainful
activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the
claimant must prove that he is suffering from a severe impairment or combination of
impairments that significantly limits his ability to perform basic work-related activities.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, if the impairment
meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of
Impairments), the claimant will be considered disabled without consideration of age,
education, and work experience.
See 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a
listed impairment, he must prove that his impairment prevents performance of past
relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five,
the regulations direct the Commissioner to consider the claimant’s residual functional
capacity, age, education, and past work experience to determine whether the claimant
can perform other work besides past relevant work.
See 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must produce evidence that
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there is other work available in the national economy that the claimant has the capacity
to perform. Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant
must prove an inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
the
sequential
evaluation
ceases
and
further
inquiry
ends.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step
five, the overall burden rests on the claimant to prove that he is unable to engage in any
substantial gainful activity that exists in the national economy. Doughty, 245 F.3d at
1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983), superseded by statute
on other grounds by 42 U.S.C. § 423(d)(5), as recognized in Elam v. R.R. Ret. Bd.,
921 F.2d 1210, 1214 (11th Cir. 1991).
V.
SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits
by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
32
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may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary
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of the ALJ’s findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ’s decision.
Barron v. Sullivan,
924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ’s application of legal
principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker,
826 F.2d at 999.
VI.
CLAIMS OF ERROR
Plaintiff raises the following allegations of error: (1) that the ALJ erred at step
two of the five-step evaluative process when she did not find that Plaintiff suffered
from a severe cognitive disorder; (2) that Plaintiff should have been found to meet
Listing 12.05 (Intellectual Disability); (3) that the ALJ did not properly evaluate the
medical opinions; (4) that the RFC did not accommodate the ALJ’s determination that
Plaintiff had “moderate” difficulties with regard to concentration, persistence, or pace;
(5) that the ALJ erred when she found Plaintiff capable of past work as a laborer; and
(6) that the Commissioner did not meet her burden of showing that there was other
work Plaintiff could perform. The Court addresses the allegations in their logical order.
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A.
Step-Two Finding
Plaintiff first argues that the ALJ erred when she did not find at step two that a
cognitive disorder was among Plaintiff’s severe impairments. [Doc. 12 at 9-10]. The
Court finds no reversible error in the omission.
“[T]he finding of any severe impairment . . . is enough to satisfy step two,”
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987), and “[n]othing requires that the
ALJ must identify, at step two, all of the impairments that should be considered
severe,” Heatly v. Comm’r of Soc. Sec., 382 Fed. Appx. 823, 825
(11th Cir. June 11, 2010) (per curiam). The ALJ found in Plaintiff’s favor at step two
by determining that he had the severe impairment of depressive disorder with psychosis
and proceeding with the sequential evaluation process. [R17-25]. Thus, to the extent
that the ALJ erred at step two by failing to acknowledge that Plaintiff also suffered
from a severe cognitive disorder, the error is harmless.
B.
Concentration, Persistence, or Pace
Plaintiff also contends that the ALJ failed to follow precedent established in
Winschel v. Commissioner of Social Security, 631 F.3d 1176 (11th Cir. 2011), when she
found Plaintiff to have “moderate” difficulties with regard to concentration, persistence,
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or pace, [R18], yet found him capable of understanding, remembering, and carrying out
simple, routine, repetitive tasks, [R19]. [Doc. 12 at 13].
Plaintiff does not elaborate on his assertion, and having reviewed the RFC in
light of Winschel, the Court finds that the argument is inapposite here. Winschel’s
holding makes clear that an RFC finding and hypothetical question must account for
the claimant’s moderate limitations in concentration, persistence, and pace, and
establishes that simply restricting the RFC and hypothetical question to simple, routine
tasks or unskilled work does not sufficiently account for limitations in concentration,
persistence, and pace. See Winschel, 631 F.3d at 1080-81. Here, however, the ALJ not
only limited Plaintiff to simple, routine, and repetitive work, but also accounted for his
limitations in concentration, persistence, and pace by further limiting him to work that
is low stress and that is not production paced. [R19; see also R53 (limiting work to
“simple, routine, repetitive tasks in a work environment free of fast-pace production
requirements, involving only simple work-related decisions, with few, if any,
workplace changes”)].
Accordingly, the undersigned concludes that Plaintiff’s
argument that the RFC finding does not comply with Winschel is without merit.
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C.
Opinion Evidence
The Court next turns to Plaintiff’s contention that the ALJ erred when she gave
“little weight” to the opinion of Dr. Mirza and did not discuss Dr. Johnson’s opinion.
[See Doc. 12 at 13-16]. Plaintiff refers to both of the opinions as opinions of treating
physicians and argues that the ALJ was required to give the opinions substantial weight
or show good cause for declining to do so but that she instead impermissibly took on
the role of physician. [Id. at 13-16]. Defendant, in turn, argues that the ALJ showed
good cause for giving little weight to Dr. Mirza’s opinion; that Dr. Johnson was merely
a one-time examiner and her opinion therefore was not entitled to deference; and that
the Court can determine that the ALJ’s conclusions are rational and supported by
substantial evidence even lacking any discussion of Dr. Johnson’s opinion.
[Doc. 17 at 13-21 & n.2].
The Commissioner must evaluate every medical opinion the agency receives,
regardless
of
the
source.
20
C.F.R.
§§
404.1527(c),
416.927(c);
cf. 20 C.F.R. §§ 404.1527(b), 404.927(b) (“In determining whether you are disabled,
we will always consider the medical opinions in your case record together with the rest
of the relevant evidence we receive.”); Social Security Ruling (“SSR”) 06-03p,
2006 WL 2329939 at *4 (“[T]he [Social Security] Act requires us to consider all of the
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available evidence in the individual’s case record in every case.”). Thus, treating,
non-treating, and even non-examining sources provide opinion evidence for the ALJ
to consider in rendering a decision. 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). In
determining the weight of medical opinions, the ALJ must consider: (1) the examining
relationship; (2) the treatment relationship; (3) the degree to which the medical source
presented evidence supporting the conclusions; (4) the consistency of the opinion with
the record as a whole; (5) the medical expert’s area of specialty; and (6) other factors,
including the amount of understanding of disability programs and the familiarity of the
medical
source
with
information
in
the
claimant’s
case
record.
20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).
The opinion of a treating physician must be given substantial or considerable
weight unless “good cause” is shown to the contrary. Winschel, 631 F.3d at 1178-79;
Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). Good cause exists when:
(1) the treating physician’s opinion was not bolstered by the evidence; (2) the evidence
supported a contrary finding; or (3) the treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records. Phillips, 357 F.3d at 1241. When
electing to disregard the opinion of a treating physician, the ALJ must clearly articulate
legitimate reasons for doing so. Id.
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In contrast, a one-time examining physician’s opinion is not entitled to great
weight. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004)
(per curiam). Nevertheless, in rejecting a one-time examining physician’s opinion, the
ALJ is required to “state with particularity” the weight given to the opinion “and the
reasons why.”
McCloud v. Barnhart, 166 Fed. Appx. 410, 418-19
(11th Cir. Jan. 25, 2006) (per curiam). Additionally, where an ALJ does not give
controlling weight to a treating source, she must explain the weight given to the
opinions of the reviewing physicians. Id. at 419.
Having carefully reviewed the ALJ’s decision, the undersigned finds reversible
error not only in the ALJ’s handling of Dr. Mirza’s and Dr. Johnson’s opinions but also
in her treatment of myriad other portions of the medical evidence.
To be sure, Plaintiff has not shown evidence that would allow the Court to
conclude that Dr. Johnson is a treating source. A treating source is an individual who
provides the claimant with medical treatment or evaluation and who has an ongoing
treatment relationship with the claimant. 20 C.F.R. § 404.1502. The record does not
establish that Dr. Johnson had any sort of an ongoing treatment relationship with
Plaintiff. As far as the undersigned can determine, the only references to Dr. Johnson
are in the medical records dated October 2, 2012. [See R553-60]. This apparent lack
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of a treating relationship forecloses a finding that Dr. Johnson served as a treating
physician. See Misuraca v. Sec’y of Health and Human Servs., 562 F. Supp. 243, 246
(E.D.N.Y. 1983).
The Court also recognizes that other courts have held that a doctor who is
member of a medical treatment team may be a treating doctor when she transmits her
own knowledge and opinion and those of the medical treatment team under her
supervision. See, e.g., Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1039
(9th Cir. 2003). Here, there is also no evidence upon which to base a determination that
Dr. Johnson was part of Plaintiff’s treatment team. As stated above, there is no medical
record evidence that Dr. Johnson examined or treated Plaintiff on any day prior to the
day she rendered her medical opinion. Also, there is no evidence that Dr. Johnson was
associated with or had any contact with Plaintiff’s treatment team or those doctors who
oversaw Plaintiff’s treatment. Nor is there even any evidence that Dr. Johnson
reviewed Plaintiff’s treatment record. As a result, the undersigned concludes that there
is insufficient evidence to determine that Dr. Johnson is part of a treatment team. Cf.
Kittleson v. Astrue, 533 F. Supp. 2d 1100, 1116-17 (D. Or. 2007) (finding doctor was
treating doctor where he treated plaintiff briefly, was responsible for plaintiff’s
continuing care, and had direct contact with members of plaintiff’s treatment team);
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Moser v. Barnhart, No. Civ. 01-279(JRT/AJB), 2002 WL 459052, at *3 (D. Minn.
Mar. 18, 2002) (finding no treating relationship because, although plaintiff went to
doctor’s clinic for twenty-five years, there was no evidence that the doctor reviewed
plaintiff’s record or was involved in claimant’s treatment). Accordingly, Plaintiff has
failed to show that Dr. Johnson’s opinion is entitled to the deference due a treating
source.
Be that as it may, Plaintiff raises other valid concerns about the ALJ’s handling
of the medical evidence. First, while it is true, as Defendant points out, that the
Commissioner has declined to endorse the GAF scale for use in the Social Security and
SSI disability programs, see Revised Med. Criteria for Evaluating Mental Disorders
& Traumatic Brain Injury, 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000) (noting that
the scale “does not have a direct correlation to the severity requirement in our mental
disorders listings”), and that Plaintiff failed to supply any legal authority showing that
GAF scores are entitled to deference, [see Doc. 12 at 15], the Court finds no basis for
a determination that the GAF scores are wholly irrelevant, as the ALJ in effect found,
[see R24 (describing GAF scores as of “dubious applicability to the claimant’s social
and occupational functioning” and giving them no further consideration)]. Indeed, the
Eleventh Circuit has held—albeit in an unpublished opinion—that failure to consider
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GAF scores in the range assigned to Plaintiff is not harmless error. McCloud v.
Barnhart, 166 Fed. Appx. 410, 418 (11th Cir. Jan. 25, 2006) (holding that the ALJ’s
misinterpretation of a GAF score of 45 as reflective of moderate symptoms and his
failure to consider a GAF score of 48 was not harmless error because these scores
reflected severe impairments, requiring the ALJ to determine what weight to give to the
GAF scores). Thus, this circuit’s authority suggests that an ALJ is not bound by GAF
scores in determining a claimant’s RFC but that the ALJ’s decision must indicate that
the ALJ considered any GAF scores, show what weight the ALJ assigned to the scores,
and provide a substantive reason why such weight was given. Accordingly, the
undersigned finds that the matter is due to be reversed and remanded for further
consideration and weighting of Plaintiff’s GAF scores and the impact of that
consideration on the ALJ’s weighting of all of the opinion evidence.
Second, the ALJ’s analysis is permeated by the ALJ’s impermissible
presumption of the role of a medical expert. As Plaintiff points out, an ALJ may not
assume the authority to act as both judge and physician because, as a layperson, an ALJ
is not qualified to interpret the medical reports and findings. [Doc. 12 at 16 (citing
Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir. 1991) (per curiam)
(Johnson,
J.,
concurring);
Cole-Smith
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v.
Astrue,
2:11-CV-2857-VEH,
2012 WL 1946766, at *6 (N.D. Ala. May 29, 2012))]. See also Hillsman v. Bowen,
804 F.2d 1179, 1182 (11th Cir. 1986) (holding that the Commissioner may not reject the
opinion of a treating physician simply because the ALJ “reached a different conclusion
after reviewing the medical records”). Nevertheless, in this case, the ALJ makes
numerous determinations that require medical expertise without citing any basis for her
conclusions, such as determining that the IQ scores obtained from testing in prison were
unreliable because “the testing was only a brief test, and not the full intelligence test”
and because “[t]he wide scattering of scores also supports a learning disability, rather
than mental retardation,” [R24]; stating generally that abilities to make repairs and
maintain intimate relationships “are generally not associated with mental retardation,”
[R25]; and most curiously, stating that “[e]ven though the opinions of the State Agency
non-examining medical consultants are well-reasoned, supported by the medical
evidence of record as a whole, and substantively consistent with the other opinions,”
the ALJ “does not rely on these opinions, but independently evaluates the record.”
[R25]. As a layperson, the ALJ—like this Court—is not qualified to render an opinion
on whether the WAIS methodology is sufficient to produce valid IQ scores; whether
the range of IQ test results has any significance as to whether Plaintiff has borderline
intelligence or is intellectually disabled; or whether a person may have an intellectual
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disability yet still be able to make repairs and maintain intimate relationships; and it is
entirely unclear why the ALJ would be more competent to evaluate the medical record
than the state-agency reviewing physicians. Rather, these are issues requiring input
from a medical expert. Moreover, as the WAIS testing resulted in IQ scores in the
intellectual-disability range and reviewing physician Dr. Grand opined that Plaintiff
was moderately limited in his abilities to complete a normal workday and workweek
without interruptions from psychologically based symptoms and perform at a consistent
pace without an unreasonable number and length of rest periods, [R446], it appears that
the ALJ’s mishandling of the evidence may not have been harmless.
Third, the ALJ’s explanation that Plaintiff’s activities are in conflict with
Dr. Mirza’s opinion appears to significantly overstate the evidence actually in the
record. As Plaintiff points out, the ALJ found that Plaintiff does not have mental
retardation based, in part, on his ability to “maintain[] intimate relationships,” yet the
ALJ did not cite any record evidence showing that Plaintiff maintained intimate
relationships. [Doc. 12 at 15 [citing R25]]. The Court finds no such evidence in the
record, and the Commissioner does not point to any, and indeed, does not acknowledge
or try to explain the omission. [See Doc. 17, passim]. Somewhat similarly, the ALJ
points to a psychotherapy record as evidence that Plaintiff’s condition was improving,
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as he was “working with people from church and involved in a group program,” but
does not acknowledge that, in context, the involvement with the groups appears to stem
from Plaintiff’s adaptive issues: “[H]e lives with his mother and is worried about his
child support problem as he has no source of income . . . . He has been working with
church people and at present he is involved with [a] fatherhood program.” [R520]. As
previously noted, in order to determine that the ALJ’s decision was supported by
substantial evidence, it must be clear the that ALJ took into account evidence both
favorable and unfavorable to her opinion.
See McCruter v. Bowen,
791 F.2d 1544, 1548 (11th Cir. 1986) (holding that an administrative decision is not
supported by “substantial evidence” where the ALJ acknowledges only the evidence
favorable to the decision and disregards contrary evidence). Thus, upon remand, the
ALJ should also reconsider whether there are evidentiary grounds for these findings.
Finally, the ALJ’s disregard of Dr. Johnson’s opinion may have been considered
harmless error had the ALJ properly evaluated Dr. Mirza’s opinion and the other
medical evidence, as the ALJ had given little weight even to Dr. Mirza’s less-restrictive
opinion; there is no evidence that Dr. Johnson had a treating relationship with Plaintiff;
and Dr. Johnson’s opinion does not include any description of the examination or
medical-record review Dr. Johnson may (or may not) have conducted. Nevertheless,
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upon remand, the ALJ should consider Dr. Johnson’s opinion along with all of the other
relevant medical evidence, and, should she find that the opinion is due to be discounted
or rejected, fulfill her obligation to “state with particularity” the weight given to the
opinion “and the reasons why.” McCloud, 166 Fed. Appx. at 418-19.
D.
Listing 12.05 (Intellectual Disability)
Plaintiff also takes issue with the ALJ’s determination that he did not meet
Listing 12.05C. [Doc. 12 at 10-11]. The Listing of Impairments in Appendix 1 of
Subpart P describes for each of the major body systems impairments that are considered
to be severe enough to render an individual disabled. 20 C.F.R. § 404.1525(a). As
noted above, at the third step of the five-step disability evaluation process, the ALJ
must determine whether a claimant’s impairments meet or equal one of the Listings and
meet the duration requirement.12 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant meets
or equals a Listing, then he is disabled. Id.
A claimant meets a Listing if he has a diagnosis included in the Listings and
provides medical reports documenting that his conditions meet the specific criteria in
the Listings. Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam)
12
An impairment “must have lasted or must be expected to last for a
continuous period of at least 12 months” to meet the duration requirement.
See 20 C.F.R. § 404.1509.
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(citing 20 C.F.R. § 404.1525(a)-(d)). A claimant equals a Listing if the medical
findings show an impairment at least equal in severity and duration to the criteria set
out in the Listing. Wilson, 284 F.3d at 1224. Where a claimant alleges that he has an
impairment that meets or equals a Listing, he bears the burden of presenting evidence
showing how his impairment meets or equals the Listing. Wilbon v. Comm’r of Soc.
Sec., 181 Fed. Appx. 826, 828 (11th Cir. May 18, 2006) (per curiam) (citing Wilkinson
v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (per curiam)).
Listing 12.05 (Intellectual Disability) refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during
the developmental period—that is, the evidence demonstrates or supports onset of the
impairment before age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. The required
level of severity for subsection C is met when the claimant has “[a] valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of function.”
Id. Thus, a claimant meets Listing 12.05C if he shows: (1) significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially manifested
before age 22 (“adaptive-deficit requirement”); (2) a valid IQ score between 60 and 70
(“IQ-score requirement”); and (3) other physical or mental impairments that impose
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significant work-related limitations (“other-impairment requirement”). See 20 C.F.R.
Pt. 404, Subpt. P, App. 1 §§ 12.00A, 12.05C; Gibson v. Astrue, No. 1:09-cv-677-AJB,
2010 WL 3655857, at *9 (N.D. Ga. Sept. 3, 2010) (Baverman, M.J.); see also Pettus
v. Astrue, 226 Fed. Appx. 946, 948 (11th Cir. Apr. 5, 2007) (per curiam) (citing Crayton
v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)). “An impairment that manifests
only some of those criteria, no matter how severely, does not qualify.” Sullivan v.
Zebley, 493 U.S. 521, 530 (1990). Additionally, “a valid IQ score need not be
conclusive of [intellectual disability] where the score is inconsistent with other
evidence in the record on the claimant’s daily activities and behavior.” Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); accord Outlaw v. Barnhart,
197 Fed. Appx. 825, 827 (11th Cir. Aug. 10, 2006).
As discussed in the section immediately above, the ALJ’s rejection of IQ scores
in the intellectual-disability range and her evaluation of the medical opinions giving rise
to her conclusions about Plaintiff’s adaptive functioning and limitations in his ability
to work appear to be based at least in part on impermissible lay interpretations of the
medical evidence and unsupported presumptions about Plaintiff’s activities. See supra
Part VI.C. Thus, upon remand, the ALJ should also reexamine whether Plaintiff’s
impairments meet Listing 12.05C.
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E.
Available Work
Plaintiff argues that the ALJ erred in determining that there was work available
to Plaintiff other than his past work as a laborer, as the ALJ’s determination relied on
VE testimony given in response to a hypothetical question that was less restrictive than
the ALJ’s RFC finding. [Doc. 12 at 17-19]. Plaintiff also contends that to the extent
the ALJ’s decision may be read to have concluded that he is capable of returning to his
past work as a laborer, that conclusion is not supported by substantial evidence because
the VE testimony upon which the ALJ relied did not take into account Plaintiff’s need
to be limited to no more than casual contact with a supervisor.13 [Id. at 16-17].
The Commissioner concedes that the VE’s testimony revealed that the three jobs
identified
for
step-five
purposes—buckle-wire inserter, racker, and box
bender—require more than casual contact with a supervisor; that the jobs therefore fall
outside the scope of the RFC; and thus that the Commissioner cannot dispute Plaintiff’s
allegation that the ALJ did not identify sufficient examples of “other work” that is
13
Plaintiff also again argues that the VE testimony is unreliable because the
RFC and hypothetical question posed to the VE did not accommodate Plaintiff’s
limitations in concentration, persistence, and pace. [Doc. 12 at 17]. As discussed
above, the RFC and the hypothetical question posed to the VE both included limitations
to simple, routine, repetitive work tasks; low-stress work; and work that is not fastpaced production work. See supra Part VI.B. Accordingly, the undersigned finds no
such error in the ALJ’s determination that Plaintiff was capable of working as a laborer.
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available in significant numbers in the national economy. [Doc. 17 at 24 n.9].
Consequently, even if the Court had found the RFC to be the result of the application
of proper legal principles and supported by substantial evidence, the ALJ’s decision
could be upheld only on the basis that the ALJ properly found that Plaintiff was capable
of returning to his past work as a laborer as he performed it or that he was capable of
working as a laborer, as that occupation is defined in the Dictionary of Occupational
Titles (“DOT”). See Jackson v. Bowen, 801 F.2d 1291, 1293-94 (11th Cir. 1986).
The Commissioner contends that the ALJ properly relied on the testimony of the
VE to find that Plaintiff was capable of returning to work as a laborer, as that
occupation is defined in the DOT.
[Doc. 17 at 21-24].
The Court finds the
Commissioner’s arguments unavailing for two reasons.
First, it does not appear that the ALJ in fact determined that Plaintiff was capable
of returning to work as a laborer. Although the ALJ’s decision included a finding that
Plaintiff “may be capable of performing past relevant work as a laborer,” the ALJ also
expressed concern that Plaintiff’s past relevant work might require work around
hazards and that it might therefore be precluded by the residual functional capacity, and
ultimately, she concluded that Plaintiff was “unable to perform his past relevant work.”
[R25-26 (emphasis added)]. While it is true, as the Commissioner argues, that the RFC
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did not include a limitation from working around hazards, [R19], Plaintiff’s testimony
that he had been prescribed benztropine—a drug typically prescribed to calm muscle
spasms—suggests that the ALJ may have intended to include such a restriction in the
RFC but neglected to do so, see supra n.5.14
Second, even presuming that the RFC is correct, the finding as to Plaintiff’s
ability to return to work as a laborer is unsupported by substantial evidence and
therefore separately provides grounds for remand.
During the hearing before the ALJ,
the VE identified Plaintiff’s past work as falling within the DOT’s definition of
“laborer” and testified that a person of Plaintiff’s age, education, and work experience,
who is limited to simple, routine, repetitive tasks in a work environment free of
fast-paced production requirements and involving only simple work-related decisions,
with few, if any, workplace changes, and is capable of only occasional, casual
interaction with the public, coworkers, and supervisors, could perform work as a
laborer, or alternatively, as a buckle-wire inserter, racker, or box bender. [R53-55].
14
Even if there were no evidence to support an allegation that Plaintiff
should be restricted from work around hazards, and any error arising from discussion
of hazards would therefore arguably be harmless, the inclusion of an apparently
irrelevant and baseless discussion calls into question whether the ALJ properly
considered Plaintiff’s limitations when crafting the RFC or considering his ability to
perform his past work.
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The ALJ then posed a second hypothetical in which she further limited Plaintiff’s
interaction with supervisors to “rare interaction”—the degree appearing in the
RFC—and asked the VE whether the three alternative jobs fell within the new
hypothetical, but did not ask the VE whether the laborer occupation fell within the new
hypothetical. [R55; see also R19 (RFC)]. It thus does not appear that there is
substantial evidence to support a determination that the job of “laborer” requires only
“rare interaction” with supervisors and that Plaintiff is therefore capable of working as
a laborer. Accordingly, regardless of whether the ALJ’s review of the evidence results
in an amended RFC, it will be necessary for the ALJ to solicit further vocational
evidence upon remand.
VII. CONCLUSION
For the reasons above, the Court REVERSES the final decision of the
Commissioner and REMANDS the case for further proceedings consistent with this
opinion. The Clerk is DIRECTED to enter final judgment in Plaintiff’s favor.
IT IS SO ORDERED and DIRECTED, this the 23rd day of September, 2015.
AO 72A
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