Jenkins v. Colvin
ORDER and OPINION REVERSING 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. Signed by Magistrate Judge Alan J. Baverman on 3/7/2018. (btql)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
NANCY A. BERRYHILL,
Acting Commissioner, Social
CIVIL ACTION FILE NO.
O R D E R A N D O P I N I O N2
Plaintiff Tyrah Jenkins (“Plaintiff”) brought this action pursuant to
sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g),
1383(c)(3), to obtain judicial review of the final decision of the Commissioner of the
Social Security Administration (“the Commissioner”) denying her application for
On January 23, 2017, Nancy A. Berryhill became the Acting
Commissioner of Social Security. Under the Federal Rules of Civil Procedure,
Berryhill “is automatically substituted as a party.” Fed. R. Civ. P. 25(d). The Clerk is
hereby DIRECTED to amend the case style to reflect the substitution.
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 8/11/16). Therefore, this Order constitutes a final
Order of the Court.
Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits
(“SSI”) under the Social Security Act.3 For the reasons below, the undersigned
REVERSES the final decision of the Commissioner AND REMANDS the case to the
Commissioner for further proceedings consistent with this opinion.
Plaintiff filed applications for DIB and SSI on October 30, 2008, alleging
disability commencing on June 1, 2004. [Record (hereinafter “R”) 23, 134-47;
Doc. 10 at 14; Doc. 13 at 1]. Plaintiff’s applications were denied initially and on
Title II of the Social Security Act provides for federal Disability Insurance
Benefits. 42 U.S.C. § 401 et seq. Title XVI of the Social Security Act,
42 U.S.C. § 1381, et seq., provides for Supplemental Security Income Benefits for the
disabled. Title XVI claims are not tied to the attainment of a particular period of
insurance eligibility. 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)). 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 SSI cases, statutes, or regulations, they
are equally applicable to Plaintiff’s DIB claims, and vice versa.
Where Plaintiff’s page numbering conflicts with the numbering assigned
by the Court’s CM/ECF system, the Court’s pinpoint citations to Plaintiff’s brief will
utilize the page numbering assigned by the CM/ECF system.
Plaintiff then requested a hearing before an
Administrative Law Judge (“ALJ”). [R94]. An evidentiary hearing was held on
July 26, 2010. [R40-66]. The ALJ issued a decision on February 22, 2011, denying
Plaintiff’s application on the ground that she had not been under a “disability” at any
time from the alleged onset date through the date of the decision. [R23-34]. Plaintiff
sought review by the Appeals Council, and the Appeals Council denied Plaintiff’s
request for review on June 20, 2012, making the ALJ’s decision the final decision of
Plaintiff then filed an action in this Court in
September 2012, seeking review of the Commissioner’s decision. Jenkins v. Colvin,
Civ. Action No. 1:12-cv-3355-ECS (N.D. Ga.), ECF Nos. 1-3. After Plaintiff filed her
initial brief, the Commissioner filed a consent motion under sentence four of
42 U.S.C. § 405(g) to enter a judgment with a reversal and remand of the cause to the
Commissioner for further proceedings and issuance of a new decision. Id., ECF No. 11
(May 1, 2013). On May 28, 2013, the Court granted the motion and entered an Order
reversing the decision under sentence four, remanding the case to the Commissioner for
further proceedings, and specifying that upon remand, the Commissioner was to
instruct the ALJ to further develop the record and obtain testimony from a vocational
expert. Id., ECF No. 12.
Pursuant to the Order entered by the District Court, the Appeals Council directed
the Commissioner to offer Plaintiff a new hearing, address evidence that was submitted
to the Appeals Council, take any action needed to complete the administrative record,
and issue a new decision. [R514-16]. A second evidentiary hearing was held on
February 19, 2015, before a different ALJ.
The ALJ issued an
unfavorable decision on May 4, 2015, denying Plaintiff’s application on the ground that
she had not been under a “disability” at any time from the onset date through the date
of the decision because she was able to perform past relevant work as it is generally
performed. [R440-59]. Plaintiff sought review by the Appeals Council, and the
Appeals Council denied Plaintiff’s request for review on June 25, 2016, making the
ALJ’s decision the final decision of the Commissioner. [R432-39].
Plaintiff then initiated the present action in this Court in August 2016, seeking
review of the Commissioner’s most recent decision. [Docs. 1-3]. The answer and
transcript were filed on December 12, 2016. [See Docs. 6, 7]. On January 10, 2017,
Plaintiff filed a brief in support of her petition for review of the Commissioner’s
decision, [Doc. 10]; on March 10, 2017, the Commissioner filed a response in support
of the decision, [Doc. 13]5; and on March 21, 2017, Plaintiff filed a reply brief in
support of her petition, [Doc. 14]. 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. §§ 405(g) and 1383(c)(3).6
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
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
The response brief was timely filed pursuant to a Consent Order entered
by the Court on February 9, 2017. [Doc. 12].
Neither party requested oral argument. (See Dkt.).
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
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
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must produce
evidence that 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,
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.
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).
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
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.3d 1436, 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
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.
Plaintiff was born on August 21, 1979, and therefore was thirty-five years old at
the time the ALJ issued the second adverse decision. [R156, 453]. She alleges
disability due to schizoaffective disorder, bipolar disorder, severe depression,
In general, the records referenced in this Order are limited to those deemed
by the parties to be relevant to this appeal. [See Docs. 10, 13, 14].
posttraumatic stress disorder (“PTSD”), generalized anxiety disorder, and borderline
intellectual functioning. [R160, 466].
Plaintiff reports that her mental impairments cause her to experience auditory
hallucinations, visual hallucinations, and paranoia, and that she has been seeing doctors
since she was a teenager. [R268, 282, 353, 472]. She indicates that she has been
terminated from multiple jobs due to her hallucinations and fighting with coworkers
and bosses, [R44, 392], and that she had been expelled from school for fighting and
went to an alternative school, [R472]. She indicates that she spends most of her day
alone in her room sleeping due to her medications. [R58, 489, 498]. She also testifies
that she does not cook, vacuum, or do laundry, and she breaks dishes when she washes
them. [R486-89]. She states that she watches the news on television and shops with
her mother but that she does not shop alone because she hears voices and sees things
and it becomes overwhelming. [R490, 491, 494]. She indicates that she drives about
once a month. [R491]. She reports that she sees her mother, stepfather, children, and
boyfriend, but does not have any other friends or socialize with other family members.
[R58, 493, 500-01].
Plaintiff reports that although she takes the medication prescribed by her
psychiatrist, she continues to experience auditory and visual hallucinations, paranoid
thinking, and bizarre perceptual thoughts, like seeing dead people walking around,
thinking someone will kill or hurt her, and constantly thinking in detail about how she,
her mother, and her kids would die. [R497-98]. She continues to be paranoid and to
see things that are not there and to hear voices and sounds on a daily basis.
[R497-98, 501-02]. She testifies that although she takes her medication every day and
night, her condition is still like a roller coaster: she will have a month or two when she
feels better—she still sees and hears things and has panic attacks and paranoia, but it
is not as intense—and then her condition will worsen again. [R496-97, 501-03].
In the decision issued after the second hearing, the ALJ made the following
findings of fact and conclusions of law:
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2007.
The claimant has not engaged in substantial gainful activity since
June 1, 2004, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
The claimant has the following severe impairments: schizoaffective
disorder, cocaine abuse, bipolar disorder, posttraumatic stress
disorder (PTSD), generalized anxiety disorder (GAD) and
borderline intellectual functioning (BIF) (20 CFR 404.1520(c) and
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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity
[(“RFC”)] to perform a full range of work at all exertional levels
but with the following nonexertional limitations: The claimant is
able to perform simple, routine, repetitive tasks and work must be
limited to occasional changes in the work setting and occasional
interaction with the public and coworkers. She is unable to meet
fast-paced, high production demands.
The claimant is capable of performing past relevant work as a
kitchen helper (DOT number 318.687-010, medium, SVP 2). This
work does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity
(20 CFR 404.1565 and 416.965).
The claimant has not been under a disability, as defined in the
Social Security Act, from June 1, 2004, through the date of this
decision (20 CFR 404.1520(f) and 416.920(f)).
CLAIMS OF ERROR
Plaintiff contends that the ALJ committed two reversible errors, which caused
the decision of non-disability not to be supported by substantial evidence:
The ALJ assigned “significant” weight to medical opinions
regarding limitations in Plaintiff’s ability to interact with
supervisors, co-workers, and the public, but did not fully
accommodate them in the RFC or explain why.
The ALJ found that Plaintiff could return to past work without first
determining what job duties were actually required, and despite
conflicting vocational evidence as to whether the work was
“relevant” within the context of the disability determination.
[Doc. 10 at 9-26]. The Court shall address each argument in turn.
Medical Opinions of Social Limitations
Plaintiff presented to Steven Snook, Ph. D., for a consultative psychological
evaluation on March 4, 2010. [R352-56]. Dr. Snook noted that Plaintiff had been
under the care of a psychiatrist for outpatient treatment of bipolar disorder,
schizophrenia, and depression since 2004; was seen every one month to three months;
was, at the time, prescribed divalproex,8 Zyprexa,9 and Paroxetine HCL10; and still
reported persistent depression, anxiety, and hallucinations, such as hearing voices that
talk to her about harming people and seeing people who are “on fire.” [R352-55]. He
also noted a history of cocaine and marijuana use and a history of multiple past arrests
for theft. [R353]. He further noted that Plaintiff had worked for one or two months at
Winn-Dixie in or around 2001 but left due to hallucinations; she had held a similar
position at Publix but was terminated for falling asleep in the bathroom; in 2003,
Plaintiff had worked at Longhorn Steakhouse as a hostess but quit due to her
hallucinations; she was employed for about ten months at Budget Car Rental Company
giving receipts to customers but was fired after wrecking a car; and she was last
Divalproex sodium is used by the body as valproic acid. Valproic acid is
an anticonvulsant medication used to treat certain types of seizures, to prevent migraine
headaches, and to treat mania in people with bipolar disorder. MedlinePlus, Valproic
Acid, https://medlineplus.gov/druginfo/meds/a682412.html (last visited 3/7/18).
Zyprexa (olanzapine) is used to treat schizophrenia and bipolar disorder.
It is in a class of medications called atypical antipsychotics. MedlinePlus, Olanzapine,
https://medlineplus.gov/druginfo/meds/a601213.html (last visited 3/7/18).
Paroxetine, commonly sold under the brand name Paxil, is a selective
serotonin uptake inhibitor (“SSRI”) used to treat depression, panic disorder, and
https://medlineplus.gov/druginfo/meds/a698032.html (last visited 3/7/18).
employed for one month in 2008 by a temporary staffing company putting together
Plaintiff reported that she had repeated the first grade; was diagnosed with
dyslexia; received special education services from the first grade through the sixth
grade; and completed a vocational high-school diploma. [R354]. She reported that she
got into fights and was sometimes sent to an alternative school. [R354]. She indicated
that she would typically stay to herself but that she once punched the principal. [R354].
Dr. Snook interviewed both Plaintiff and her mother about Plaintiff’s activities
of daily living. [R354]. Plaintiff stated that on a typical day, her mother would wake
her up, Plaintiff would then help get her son ready for school, and Plaintiff would then
go back to bed. [R354]. She would then get up again, help get her daughter ready, and
drop her off at daycare. [R354]. During the day, she would mostly watch television
or sit in her room; her mother and stepfather do all of the housework, and her mother
cooks, does all of the shopping, pays the bills, and assists Plaintiff with her laundry.
[R354]. Plaintiff does not use public transportation independently. [R354]. She has
a driver’s license, but no automobile, and although she may occasionally drive her
mother’s car, her mother usually drives her. [R354]. Plaintiff can make sandwiches
and count change correctly, is involved in the care of her dependent children, and will
play with them, feed them, bathe them, and assists her son with his homework. [R354].
She does not listen to the radio or read, but she will watch television programs on the
History Channel and Sci-Fi Network, which she is able to understand and follow.
[R354]. She sees her boyfriend once or twice a week and sees her mother and
stepfather daily but reports having no other friends or interaction with other family
members. [R354]. She does not attend religious activities, go out to movies, or out to
eat. [R354]. She is able to dress herself and manages her own personal hygiene, but
her mother reports that she needs prompting around her hygiene. [R354]. Plaintiff’s
mother reported her activities of daily living as “nothing, she mostly sleeps.” [R354].
Plaintiff’s mother also reported that she had to “escape” to a shelter along with Plaintiff
when Plaintiff was about fourteen years old, that Plaintiff’s father was sent to prison
for molesting Plaintiff, and that there was a positive family history of psychiatric
Dr. Snook noted that although Plaintiff made poor eye contact, gave up on
intelligence testing when faced with any challenges, and moved about frequently in her
chair, she was compliant, cooperative with the assessment, and appeared to be a reliable
informant. [R352, 354-55]. He diagnosed schizoaffective disorder, bipolar type;
cocaine abuse (by history); and borderline intellectual functioning; and he assessed a
global assessment of functioning (“GAF”) score of 40.11 [R356]. Dr. Snook further
opined that Plaintiff’s insight and judgment were poor, [R355]; she could adequately
maintain attention and sustain concentration to perform simple, but not complex, tasks,
[R356]; she could comprehend and carry out simple instructions adequately, but would
have difficulty comprehending or recalling more complex directives, [R356]; she
“would have difficulty interacting with peers, supervisors, or the general public due to
her hallucinations and paranoia,” [R356]; she may be able to adhere to work schedules
and meet appropriate production norms in unskilled work, [R356]; her functioning
would continue along the lines previously described, [R356]; and if awarded benefits,
Plaintiff would not be capable of managing her funds effectively. [R356].
On March 31, 2010, state agency psychological consultant John Petzelt, Ph. D.,
reviewed the record, assigning “great weight” to Dr. Snook’s evaluation. [R373].
Dr. Petzelt opined, among other things, that Plaintiff had a marked limitation in her
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). A GAF score between 31 and 40 indicates “[s]ome impairment
in reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant) OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects
family, and is unable to work; child frequently beats up younger children, is defiant at
home, and is failing at school).” Id. at 34.
ability to interact appropriately with the general public, [R358]; “could benefit from
supportive supervision,” [R359]; and could relate socially in a satisfactory manner but
may have occasional or episodic difficulty with social relations with coworkers and
would do better on tasks not requiring any contact with the general public, with neither
limitation being “substantial,” [R359].
The ALJ acknowledged that Dr. Snook found that Plaintiff would have difficulty
interacting with peers, supervisors, and the general public because of her hallucinations
and paranoia, [R450]; stated that he gave Dr. Snook’s opinions “significant weight
because they are consistent with the evidence of record,” [R450-51]; and stated that
Dr. Snook’s opinions support the RFC determination, [R451]. The ALJ also assigned
significant weight to the opinion of Dr. Petzelt. [R452].
In her first allegation of error, Plaintiff contends that the limitations contained
in the RFC—limitation to simple, routine, repetitive tasks, occasional changes in the
work setting, occasional interaction with the public and coworkers, and no fast-paced,
high-production demands—do not encompass all of the credited social limitations and
that the ALJ did not meet his obligation to explain the inconsistency. [Doc. 10 at 9-17].
The Commissioner, in response, argues that the ALJ properly evaluated the
opinion evidence in determining Plaintiff’s RFC. [Doc. 13 at 4-12]. First, the
Commissioner asserts that the ALJ did not err in declining to adopt Dr. Snook’s opinion
wholesale because the regulations and case law do not require that the opinion be
adopted in its entirety, [id. at 7-8], and the ALJ did not state that he was adopting the
opinion or affording it controlling weight, [id. at 7]. Second, the Commissioner
contends that it was not error for the ALJ to fail to expressly discuss Dr. Snook’s
opinion regarding interactions with supervisors because “there is no rigid requirement
that the ALJ specifically refer to every piece of evidence in his decision, so long as the
ALJ’s decision enables to court to conclude that the ALJ considered the claimant’s
medical condition as a whole.”
[Id. at 8 (punctuation omitted)].
Commissioner argues that the ALJ reasonably interpreted Dr. Snook’s opinion in
conjunction with the other evidence of record to find that Plaintiff could have
occasional interactions with the public and coworkers and that Plaintiff fails to show
that Dr. Snook’s opinion that Plaintiff “would have difficulty interacting with
peers . . . or the general public” necessitated additional limitations not already included
in the ALJ’s RFC assessment. [Doc. 13 at 9 (comparing [R449-52] with [R356])].
Finally, the Commissioner contends that other record evidence constitutes “substantial
evidence” to support the ALJ’s conclusion regarding the social limitations included in
the RFC: reviewer Dr. Petzelt’s March 2010 opinion that Plaintiff could relate socially
in a satisfactory manner but may have occasional or episodic difficulty with social
relations with coworkers and would do better on tasks not requiring any contact with
the general public and that neither limitation is “substantial,” [R359, 373]; treatment
notes from the period of time between April 2013 and December 2014 stating that
Plaintiff was alert, cooperative, and/or communicative, [R633-34, 638, 640, 642-44,
646, 648, 652]; treatment notes from an October 2014 examination during which
Plaintiff reported improvement in her condition since Loxitane12 was added to her
treatment regimen, including “much better” social functioning and improved attention
skills; she stated that the treatment was effective with no significant side effects; and
Plaintiff’s psychiatrist observed that Plaintiff was dressed appropriately, made good eye
contact, displayed intact speech and language skills, and was less anxious, [R635-36];
and treatment notes from an December 2014 examination during which Plaintiff
reported that her mood and psychotic problems were improved and that she was doing
better in all settings, that her attention skills were improved, and that her mood swings
were less frequent, and Plaintiff’s psychiatrist observed that Plaintiff was “very
cooperative,” communicative, and neatly dressed, and that she displayed an appropriate
Loxitane (loxapine) is used to treat the symptoms of schizophrenia. It is
in a group of medications called conventional antipsychotics. MedlinePlus, Loxapine,
https://medlineplus.gov/druginfo/meds/a682311.html (last visited 3/7/18).
affect, a less anxious and depressed mood, soft but coherent speech, and fewer
indicators of psychotic process, [R633-34]. [Doc. 13 at 9-11].
After careful consideration of the arguments, the ALJ’s decision, and the
evidence of record, the Court is persuaded that the ALJ reversibly erred in his
consideration of Dr. Snook’s opinion. The Commissioner does correctly contend that
the ALJ did not state that he was adopting Dr. Snook’s opinion wholesale, [R450-51],
and that the ALJ was not required by law to adopt the opinion, see Beegle v. Soc. Sec.
Admin., 482 Fed. Appx. 483, 486 (11th Cir. July 23, 2012) (explaining that an ALJ
“does not have to defer to the opinion of a physician who conducted a single
examination, and who was not a treating physician”) (citing McSwain v. Bowen,
814 F.2d 617, 619 (11th Cir. 1987)). These arguments are, however, beside the point:
the ALJ did specifically acknowledge Dr. Snook’s opinion that Plaintiff “would have
difficulty interacting with peers, supervisors, or the general public due to her
hallucinations and paranoia” and went on to give “Dr. Snook’s opinions significant
weight because they are consistent with the evidence of record,” [R356, 450-51], yet
the only social limitations the ALJ included in the RFC were limitations to occasional
interaction with the public and coworkers, [R448-49]. It is therefore patently obvious
that the ALJ credited Dr. Snook’s opinion regarding difficulty interacting with
supervisors but did not accommodate the opinion in the RFC. [Compare R450-51 with
The Court also is not persuaded by the Commissioner’s argument that
Dr. Petzelt’s opinion and other record evidence post-dating Dr. Snook’s opinion supply
substantial evidence to support the ALJ’s treatment of Dr. Snook’s opinion. While
Dr. Snook was a consultative examiner, [R352-56], Dr. Petzelt, in contrast, rendered
a consultative opinion upon review of the record, [R357-74]. “[T]he opinion of a
non-examining physician who has reviewed medical records may be substantial
evidence if it is consistent with the well-supported opinions of examining physicians
or other medical evidence in the record.” Hogan v. Astrue, Civ. Action No. 2:11cv237CSC, 2012 WL 3155570, at *5 (M.D. Ala. Aug. 3, 2012) (harmonizing Eleventh
Circuit cases). However, “the report of a non-examining doctor is accorded little
weight if it contradicts an examining doctor’s report; such a report, standing alone,
cannot constitute substantial evidence.” Edwards v. Sullivan, 937 F.2d 580, 584
(11th Cir. 1991); see also Kemp v. Astrue, 308 Fed. Appx. 423, 427
(11th Cir. Jan. 26, 2009) (per curiam). Here, Dr. Petzelt rendered his reviewing opinion
a mere twenty-seven days after Dr. Snook rendered his examining opinion, [compare
R359, 361 with R352], and Dr. Petzelt not only stated without caveat that he gave
Dr. Snook’s opinion “great weight,” including his opinion that Plaintiff “would have
difficulty interacting with peers, supervisors, or the general public,” [R373], but
Dr. Petzelt also opined that Plaintiff “could benefit from supportive supervision,”
suggesting that Plaintiff would require greater-than-average supervisory involvement,
[R359]. Nevertheless, Dr. Petzelt’s functional capacity assessment did not include any
reference to limitations regarding Plaintiff’s ability to interact with supervisors.
[R359]. Given the unreconciled conflict between Dr. Snook’s examining opinion and
Dr. Petzelt’s reviewing opinion, the Court finds no basis for crediting Dr. Petzelt’s
opinion over Dr. Snook’s.
The treatment notes the Commissioner cites are similarly unhelpful. It is true
that the record contains treatment notes from the time period spanning from April 2013
through December 2014 wherein Plaintiff’s psychiatrists observed that Plaintiff was
alert, cooperative, and/or communicative, [R633-34, 638, 640, 642-44, 646, 648, 652],
and that notes from October and December 2014 indicate that changes in Plaintiff’s
medication reduced her psychotic symptoms, [R633-36]. [Doc. 13 at 10-11]. The
Commissioner does not, however, point to any portion of the ALJ’s decision where he
relied on the notes, [see id.], and the Court’s own review has revealed none,
[see R443-53]. A court cannot draw post hoc conclusions from the evidence but
instead must determine whether the ALJ properly applied the law and supported the
decision with substantial evidence.
See Baker v. Comm’r of Soc. Sec.,
384 Fed. Appx. 893, 896 (11th Cir. June 23, 2010) (“If an action is to be upheld it must
be upheld on the . . . bases articulated in the agency’s order.”) (citing FPC v. Texaco,
Inc., 417 U.S. 380, 397 (1974)); Patterson v. Chater, 983 F. Supp. 1410, 1413
(M.D. Fla. 1997) (holding that it is the duty of the ALJ—and not the court—to draw
inferences from the evidence and resolve conflicts in the evidence); see also Hendrix
ex rel. S.F.H. v. Astrue,
2013 WL 4718223,
(N.D. Ga. Sept. 3, 2013) (Duffey, J., adopting Scofield, M.J.) (“An ALJ may not
arbitrarily pick and choose facts from the evidence to support his conclusions without
articulating specific, well supported reasons for crediting some evidence while
discrediting other evidence.”) (citing Marbury v. Sullivan, 957 F.2d 837, 839-41
(11th Cir. 1992) (per curiam)). Here, there is no indication that the ALJ rejected any
portion of Dr. Snook’s opinion, much less the opinions regarding Plaintiff’s social
limitations: he assigned Dr. Snook’s opinion “significant weight,” without caveat, and
went so far as to quote the portion discussing Plaintiff’s social limitations. [R450-51].
Thus, the examination notes the Commissioner cites supply the Court no basis for
affirming the ALJ’s decision to omit from the RFC any limitation in Plaintiff’s ability
to interact with supervisors.
It further bears remark that in addition to showing that there were occasions
between April 2013 and December 2014 when Plaintiff was observed to be alert,
cooperative, and/or communicative, [R633-34, 638, 640, 642-44, 646, 648, 652], and
that notes from October and December 2014 indicate that changes in Plaintiff’s
medication at least temporarily reduced her psychotic symptoms, [R633-36], the cited
treatment notes suggest that the severity of Plaintiff’s mental impairments and resulting
social limitations fluctuated and remained significant well after Dr. Petzelt rendered his
reviewing opinion in March 2010. On April 9, 2013, Plaintiff’s psychiatrist noted that
Plaintiff was doing well on her current medications, was cooperative, did not report
symptoms of depression or anxiety, stated that the voices were quiet and that she was
less paranoid, and reported improvement in family and social functioning, [R652];
however, on October 4, 2013, Plaintiff’s psychiatrist noted that although Plaintiff
remained compliant with medication, her anxiety symptoms had worsened, she had
more auditory hallucinations and paranoia, and she was doing poorly in social settings,
and he increased her Zyprexa dosage, [R648]; on November 12, 2013, it was noted that
Plaintiff’s depressive symptoms and racing thoughts were worse, Plaintiff was not
doing well, her response to treatment was not as effective, she was hearing voices more
frequently, her psychomotor activity was reduced, she presented with an anxious mood
and affect, she had persistent paranoia and suspiciousness, her sleep was poor, her
social functioning was poor, she thought about death daily, with nighttimes worse, and
she had presented to the emergency room for anxiety, [R646]; on March 13, 2014,
Plaintiff’s psychiatrist noted that despite consistent compliance, Plaintiff’s mood
swings were worse and affecting her overall functioning, she had been very irritable,
anxious, frustrated, and edgy, the voices were persistent, her sleep was poor due to
persistent racing thoughts, Plaintiff appeared to be tense, her mood was irritable,
psychotic signs were noted, Plaintiff’s impulse control and social judgment were
observed to be poor, and there was no improvement in social and family functioning,
and he explained that because Plaintiff’s medication was not working, he would
discontinue Plaintiff’s Depakote13 and begin treatment with Tegretol,14 [R642-43]; on
Depakote is a brand name under which valproic acid is sold. MedlinePlus,
Valproic Acid, https://medlineplus.gov/druginfo/meds/a682412.html (last visited
Tegretol (carbamazepine) is an anticonvulsant medication used to control
seizures, treat nerve pain, and treat episodes of mania or mixed episodes in patients
with bipolar I disorder.
https://medlineplus.gov/druginfo/meds/a682237.html (last visited 3/7/18).
July 22, 2014, Plaintiff’s psychiatrist noted that despite compliance, Plaintiff reported
no improvement in her clinical condition, Plaintiff was “all over the place,” with a
depressed, frustrated, and edgy mood, Plaintiff’s family and social function were
affected, Plaintiff was unable to control her mood swings, Plaintiff was unable to quiet
her thoughts for sleep, her thoughts were racing and persistent all day, psychotic
symptoms were present, eye contact was fair, psychomotor activity was reduced and
not spontaneous, Plaintiff appeared unhappy and tense, and her affect was constricted
and moderately depressed and anxious, and he added Latuda15 to her treatment plan,
[R640-41]. Thus, even if the decision indicated that the ALJ considered the cited
treatment notes, the notes offer scant support for the Commissioner’s suggestion that
Plaintiff’s social limitations had eased.
The Court certainly recognizes that an ALJ need not explicitly assign weight to
every aspect of a medical opinion or refer to every piece of evidence in his decision so
long as it is clear that the ALJ considered the claimant’s medical condition as a whole.
Latuda (lurasidone) is used to treat the symptoms of schizophrenia and to
treat depression in people with bipolar disorder. It is in a class of medications called
https://medlineplus.gov/druginfo/meds/a611016.html (last visited 3/6/18).
(11th Cir. July 14, 2014); Dyer, 395 F.3d at 1211. Here, however, given the ALJ’s
unqualified assignment of “significant weight” to Dr. Snook’s opinion that Plaintiff
would have difficulty interacting with supervisors, [R356, 450-51], particularly in light
of the ALJ’s assignment of “significant weight” to Dr. Petzelt’s opinion, which further
noted that Plaintiff “could benefit from supportive supervision,” [R359, 452], and
evidence that even with continued compliance, Plaintiff’s social capabilities fluctuated,
[R638, 640, 642-44, 646, 648, 652], it is not clear that an RFC containing no
restrictions pertaining to limited ability to interact with supervisors reflects
consideration of Plaintiff’s medical condition as a whole.
undersigned concludes that the decision of the Commissioner is due to be REVERSED
and REMANDED for further consideration of the opinion evidence regarding
Plaintiff’s social capabilities.16
Because the frank omission from the RFC of any limitation regarding
Plaintiff’s ability to interact with supervisors makes clear that the ALJ erred in his
consideration of Dr. Snook’s opinion regarding Plaintiff’s social limitation, the Court
need not—and does not—reach the question of whether the RFC’s limitation to
“occasional interaction with the public and coworkers” was sufficient to accommodate
his assignment of significant weight to Dr. Snook’s opinion that Plaintiff would have
difficulty interacting with peers and the general public, [compare R356, 450-51 with
R448-49], or his assignment of significant weight to the opinion of Dr. Petzelt, who
opined that Plaintiff was “markedly limited” in her ability to interact appropriately with
the general public, [compare R358, 452 with R448-49]. Nevertheless, the whole of
Dr. Snook’s and Dr. Petzelt’s opinions regarding Plaintiff’s social limitations should
Past Relevant Work
The ALJ found that Plaintiff had past relevant work as a kitchen helper.
[R452, 483-84, 506]. At the second ALJ hearing, a vocational expert (“VE”) testified
that if Plaintiff had the residual functional capacity to perform work with no exertional
limits, but would be limited to simple, routine, repetitive tasks, be limited to occasional
changes in the work setting, and occasional interaction with the public and coworkers,
and would not be able to meet fast-paced, high-production-demand work—the
limitations appearing in the RFC—she would be able to perform the work of a kitchen
helper. [R507]. Based on the VE testimony, the ALJ found that Plaintiff could perform
her past work as a kitchen helper. [R452-53]. Plaintiff takes issue with the ALJ’s
determination that she is capable of performing past work as a kitchen helper.
[Doc. 10 at 18-26].
Were this the only allegation of error before the Court, it is unlikely that an order
reversing and remanding the case would have issued. First, the allegation of error is
confusingly stated. Plaintiff’s brief does not clearly set forth a statement of the legal
standard the ALJ purportedly failed to meet, instead diving straight into her arguments
without setting forth any framework. [Doc. 10 at 18-26]. Plaintiff’s allegations are
be reexamined and addressed upon remand.
also internally inconsistent: she argues, in part, that the ALJ did not properly develop
the evidence in determining that Plaintiff worked as a kitchen helper, that she
performed the work for any meaningful amount of time, or that the work was
substantial gainful activity, and thus appears to contend that the ALJ’s determination
that she had past relevant work as a kitchen helper is not supported by substantial
evidence. [Id.]. However, Plaintiff herself refers to having “past relevant work
as . . . a kitchen helper,” [id. at 6], and in her reply brief, she avers that “[t]he
Commissioner misstates [her] argument as asserting that she did not have past relevant
work as a kitchen helper,” [Doc. 14 at 8]. Second, in alleging that ALJ erred by finding
that Plaintiff could return to past work without first determining what job duties were
actually required in her past work, Plaintiff appears to disregard the fact that the ALJ
did not base his determination on Plaintiff’s ability to work as a kitchen helper as she
performed the work, but that he instead solicited VE testimony as to whether a person
of Plaintiff’s RFC could perform the work of a kitchen helper as it is generally
performed and determined that Plaintiff could work as a kitchen helper on that basis.17
Be that as it may, upon remand, the Commissioner will need to reevaluate
whether Plaintiff can perform her past relevant work because he erred by granting
significant weight to certain medical opinions but failing to craft the RFC to
accommodate the social limitations stated in those opinions. See supra Part V.A. In
other words, it will be necessary to determine whether, taking into account all of the
social limitations credited by the ALJ, a person with the resulting RFC will be capable
of working as a kitchen helper, any other past relevant work Plaintiff may have
performed, or other work available in significant numbers in the national economy.18
To determine whether a claimant retains the capacity to perform her past
relevant work, the Commissioner examines whether (1) the claimant has the capacity
to perform the actual demands and job duties of a specific past job; or (2) the claimant
has the capacity to perform the demands and job duties of the occupation as generally
required by employers in the national economy. 20 C.F.R. §§ 404.1560(b)(2),
416.960(b)(2). “A vocational expert or specialist may offer relevant evidence within
his or her expertise or knowledge concerning the physical and mental demands of a
claimant’s past relevant work, either as the claimant actually performed it or as
generally performed in the national economy.” Id.
Moreover, even lacking a coherent argument from Plaintiff, the Court is
troubled by the scant nature of the evidence that Plaintiff has past relevant work as a
kitchen helper. Past relevant work “is work that [a claimant] has done within the
past 15 years that was substantial gainful activity and that lasted long enough for [the
claimant] to learn to do it.” 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1). While it may
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 7th day of March, 2018.
be possible to piece together record evidence supporting the finding that Plaintiff has
past relevant work as a kitchen helper, [R153-54, 483-84], it is also true that the
testimony supporting the conclusion was at least somewhat equivocal: Plaintiff testified
that Rare Hospitality International, the company her earnings report shows she worked
for in 2003, is a temporary placement agency; that it assigned her to work at the
Western hotel, where she worked in the kitchen and washed dishes; that she could not
remember how long she worked there or whether it was full time; and that “they would
send us to different people like weekly, so I was always somewhere new,” [R483-84,
506]. The ALJ’s finding that Plaintiff was working as a kitchen helper also conflicts
with other record evidence that during the time period referenced by the ALJ, Plaintiff
worked not as a kitchen helper but as a cashier, hostess, or waitress, [R52, 161, 166,
189, 211, 241, 353]. It also bears noting that the ALJ’s decision itself contains no
explanation or rationale for determining that Plaintiff had past relevant work as a
kitchen helper, [R452; see also R506], nor does there appear to be any basis in the
record for a finding that even if Plaintiff did not have past relevant work as a kitchen
helper but had the RFC to perform the work as it is generally performed, the work is
available in the national economy in sufficient numbers to allow for a finding of nondisability at step five. For all of these reasons, even in the absence of an amended RFC,
the vocational findings merit further review upon remand.
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