Slaton v. Berryhill
Filing
15
ORDER and OPINION AFFIRMING IN PART AND REVERSING AND REMANDING IN PART for further consideration of Plaintiff's application. Specifically, the Commissioner's decision is REVERSED AND REMANDED for further consideration of the reasons for Pl aintiff's non-compliance and so that a consultative examination may be conducted concerning the functional limitations posed by Plaintiff's severe impairments. The decision is AFFIRMED in all other respects. The Clerk is DIRECTED to enter judgment in favor of Plaintiff. Signed by Magistrate Judge Alan J. Baverman on 3/11/2019. (btql)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SARAH S.,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER, SOCIAL
:
SECURITY ADMINISTRATION, :
:
Defendant.
:
CIVIL ACTION FILE NO.
1:17-cv-03812-AJB
ORDER AND OPINION
Plaintiff brought this action pursuant to § 1631(c) of the Social Security Act
(“the Act”), 42 U.S.C. § 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 Supplemental Security Income (“SSI”).1 The parties consented to
1
Title XVI of the Act, 42 U.S.C. § 1381, et seq., provides for SSI for the
disabled, whereas Title II of the Social Security Act provides for federal Disability
Insurance Benefits (“DIB”), 42 U.S.C. § 401, et seq. 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)). Title 42 U.S.C. § 1383(c)(3) renders the
judicial provisions of 42 U.S.C. § 405(g) fully applicable to claims for SSI. 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. However, different
statutes and regulations apply to each type of claim. Many times parallel statutes and
AO 72A
(Rev.8/8
2)
magistrate judge jurisdiction. (Dkt. Entry dated 02/12/18). For the reasons set forth
below, the Commissioner’s decision is AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART.
I.
PROCEDURAL HISTORY
On September 16, 2014, Plaintiff filed her application for SSI and DIB alleging
a disability onset date of November 15, 2013. [Record (hereinafter “R”) 175-82].
These claims were denied initially on October 9, 2014, and upon reconsideration on
February 24, 2015. [R93, 97]. Thereafter, Plaintiff filed a written request for hearing.
[R116]. Plaintiff appeared and testified at a hearing before an Administrative Law
Judge (“ALJ”) on August 2, 2016, where she was represented by an attorney and
amended her alleged onset date to May 25, 2015, thus nullifying her DIB claims. [R3352]. A vocational expert (“VE”) also testified. [Id.].
On October 14, 2016, the ALJ denied Plaintiff disability benefits. [R21-27].
Plaintiff then sought review by the Appeals Council, which review was denied
on August 5, 2017, making the ALJ’s decision the final decision of the Commissioner.
[R1-7].
regulations exist for DIB and SSI claims. Therefore, citations herein should be
considered to refer to the appropriate parallel provision as context dictates. The same
applies to citations of statutes or regulations found in quoted court decisions.
2
AO 72A
(Rev.8/8
2)
Plaintiff filed this action on September 29, 2017, seeking review of the
Commissioner’s decision. [Docs. 1-2, 3]. The answer and transcript were filed on
January 19, 2018. [Docs. 6, 7]. On February 19, 2018, Plaintiff filed a brief in support
of her petition for review of the Commissioner’s decision, [Doc. 11], and on March 21,
2018, the Commissioner filed a response in support of the decision, [Doc. 12], to which
Plaintiff replied on March 29, 2018, [Doc. 14]. The matter is now before the Court
upon the administrative record, and the parties’ pleadings and briefs,2 and it is
accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.
PLAINTIFF’S CONTENTIONS
Plaintiff claims that the ALJ made the following errors:
1.
The ALJ’s decision is based upon an error of law in the
evaluation of the opinion of treating physician Goins.
2.
The ALJ’s decision is not supported by substantial evidence
because it contains multiple errors of fact and is based on
incorrect or inappropriate reasons for discounting Plaintiff’s
symptoms and limitations.
[Doc. 11 at 8, 12].
2
Neither party requested oral argument. (See Dkt.).
3
AO 72A
(Rev.8/8
2)
III.
STATEMENT OF FACTS
A.
Background
Plaintiff was born in 1965 and was 50 years old on the alleged onset date.
[R196]. Plaintiff completed the tenth grade and worked in the past as a babysitter,
cafeteria worker, and home health care aide. [R211]. She alleges disability due to due
to diabetes, high blood pressure, back pain, depression, pain in her feet, and arthritis.
[R210].
B.
Lay Testimony
Plaintiff testified before the ALJ that she had “a lot of problems[,]” including
visible knots in her right hand and wrist. [R38]. She also complained of pain in her left
shoulder and right knee, [R42], with her knee pain being a “10” on the pain scale,
[R43]. She testified that she had problems bending and could not stand for long, and
difficulty doing household chores in her apartment because her legs regularly swelled
and that she needed to elevate them. [R40]. She further testified that her medical
providers wanted her to have a cardiac stress test done because they were concerned
that she had congestive heart failure, but she could not afford the test.3 [R41].
3
The ALJ remarked that this was “hearsay, but for medical opinion I need
to get that right from the medical record . . . .” [R41].
4
AO 72A
(Rev.8/8
2)
C.
Medical Records
Plaintiff submits that since she has not worked since 2009, [R210], she did not
have any income, [R37], and, therefore, her medical treatment consisted of various
visits to the emergency room (“ER”) and the limited treatment offered by a charity
clinic, Healing Bridge Clinic. [Doc. 11 at 5].
Plaintiff was seen in the Piedmont Hospital ER on November 12, 2014 for a
cough with nausea, vomiting, and headache. [R338]. She returned on Christmas Eve
2014 for a dry cough that began the night before. [R341]. She had an abnormal ECG,4
with sinus tachycardia,5 and indications that she had previously suffered a heart attack
(“anterior infarction, age undetermined”). [R346]. She returned to the ER in March
and April 2015, showing significantly elevated blood sugars. [R354]. An abnormal
ECG, with indications of a previous anterior infarction, was again noted. [R357].
4
An electrocardiogram (EKG or ECG) is a test that checks for problems
with the electrical activity of your heart. An EKG shows the heart's electrical activity
as line tracings on paper. The spikes and dips in the tracings are called waves. The
heart is a muscular pump made up of four chambers.
http://www.webmd.com/heart-disease/electrocardiogram#1 (last visited 3/6/19)
5
Sinus tachycardia is typically a normal increase in heart rate that happens
with fever, excitement, and exercise. Heart Rhythm Soc’y, Heart Diseases &
Disorders, https://www.hrsonline.org/Patient-Resources/Heart-Diseases-Disorders (last
visited 3/6/19).
5
AO 72A
(Rev.8/8
2)
A visit on May 10, 2015 for cough, chest tightness, and fluid retention revealed
bilateral lower extremity edema.6 [R364]. Her ECG was again abnormal. [R368].
Differential diagnoses included “acute coronary syndrome (“ACS”),7 decompensated
heart failure, pulmonary embolism, pneumonia, chronic obstructive pulmonary disease
(“COPD”), asthma, bronchitis, influenza, anxiety, malignancy[.]” [R366]. She
returned nine days later with complaints of back pain and an x-ray of her thoracic spine
revealed multi-level degenerative disc changes. [R378].
On May 26, 2015, Plaintiff presented to the Healing Bridge Clinic where she was
treated for right shoulder impingement and right knee pain. [R405]. She returned on
August 13, 2015 complaining of a two-year history of pain in her feet, wrist, and
back. [R388]. On November 5, 2015, she was evaluated for right knee pain, bilateral
upper and lower extremity neuropathy, and a ganglion cyst8 on her right wrist. [R382].
6
Edema refers to swelling caused by fluid in the body’s tissues. It usually
occurs in the feet, ankles, and legs, but it can involve the entire body. MedlinePlus,
Edema, https://medlineplus.gov/edema.html (last visited 3/6/19).
7
ACS is a term for a group of conditions that suddenly stop or severely
reduce blood flow to the hear and includes heart attacks and angina. MedlinePlus,
Edema, https://medlineplus.gov/envcy/article/007639.htm (last visited 3/6/19).
8
A Ganglion cyst is a sac filled with a jellylike fluid that originates from
a tendon sheath or joint capsule, most often in the wrist, resulting in a benign softtissue, knot-like mass that forms below the surface of the skin.
6
AO 72A
(Rev.8/8
2)
On May 26, 2016, Maurice Goins, M.D., the orthopedist who treated Plaintiff
at the clinic, completed a pain questionnaire, in which he indicated that he first
examined Plaintiff August 13, 2015 and again on May 26, 2016. [R397-99]. Dr. Goins
noted that Plaintiff had an onset of right knee pain and left shoulder pain three years
ago which caused constant, severe pain. [R397]. He noted painful range of motion on
exam and diffuse intermittent edema. [Id.]. It was his opinion that Plaintiff would need
to lie down for a minimum of two hours during the normal working day; would need
to elevate her feet on a daily basis; and he concluded that she was not physically
capable of performing even sedentary work on a full-time basis. [R399]. There were
no other opinions from examining physicians in the record and no consultative
examinations were ordered.
D.
Vocational-Expert Testimony
The ALJ asked the VE if Plaintiff could perform her past work (as babysitter,
cafeteria worker, and health aid) if she could occasionally lift 20 pounds; frequently lift
10 pounds; stand and sit for six hour in an eight-hour workday; occasionally or
frequently, kneel, crouch, crawl, stoop, balance, and take stairs; never use ladders;
occasionally be exposed to heights and moving parts and reach overhead with her nonhttps://www.foothealthfacts.org/conditions/ganglion-cyst (last visited 3/6/19).
7
AO 72A
(Rev.8/8
2)
dominant arm. [R49]. The VE responded that she could not perform her past work
with those limitations, but that sufficient jobs existed in the national economy that
Plaintiff could perform, such as laundry worker (DOT #361.687-014, 400,000 positions
nationally), housekeeper (DOT #302.685-010, 800,000 positions nationally), or office
helper (DOT #239.567-010, 90,000 positions nationally). [R49-50].
IV.
ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact:
1.
The claimant meets the insured status requirements of the
Social Security Act through December 31, 2014.
2.
The claimant has not engaged in substantial gainful activity
since May 27, 2015, the alleged onset date (20 CFR 416.971
et seq.).
3.
The claimant has the following severe impairments:
degenerative disc disease, right knee, left shoulder pain,
diabetes mellitus, and obesity (5’0”, 267 pounds, BMI of
52.1) ([20 CFR] 416.920(c)).
...
4.
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).
...
8
AO 72A
(Rev.8/8
2)
5.
The claimant has the residual functional capacity to perform
light work as defined in 20 CFR 416.967(b) except she can
occasionally lift 20 pounds, frequently lift 10 pounds, and
stand, sit, and walk for six hours out of an 8-hour day. She
can never climb ladders, occasionally climb stairs, stoop,
balance, kneel, crouch, and crawl, occasionally reach
overhead with the left upper extremity, and tolerate
occasionally exposure to hazards.[ ]
...
6.
The claimant is unable to perform any past relevant work
(20 CFR 416.965).
...
7.
The claimant was born on May 27, 1965 and was 50 years
old, which is defined as an individual approaching advanced
age, on the alleged disability onset date (20 CFR 416.963).
8.
The claimant has a limited education and can communicate
in English (20 CFR 416.964).
9.
Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that the
claimant in “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant
can perform (20 CFR 416.969 and 416.969(a)).
9
AO 72A
(Rev.8/8
2)
...
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from May 27, 2015, through the date of
this decision (20 CFR 416.920(g)).
[R23-27 (footnote omitted)].
In his evaluation of Plaintiff’s claims, the ALJ found that, although Plaintiff was
diagnosed with hypertension, low back pain, right wrist ganglion cyst, and edema,
“there is no evidence that these impairments result in even minimal functional
limitations.” [R23]. He also found that, while she was diagnosed with depression, she
“never pursued mental health treatment, was never prescribed psychotropic
medications, and the evidence demonstrates she maintained an entirely normal mental
functional capacity.” [Id.].
The ALJ found that Plaintiff did not meet Listing 1.02, which involves major
joint dysfunction, because she did not “establish that she is unable to ambulate
effectively, nor establish . . . that she is unable to perform fine and gross movements
effectively.” [R24]. The ALJ also found that, despite her diabetes diagnosis, Plaintiff
had no evidence of end organ damage, nor did she have complications with diabetes as
described in Section 9.00 or meet the criteria of any Listing in other body systems; and
she did not satisfy Listing 9.00 because there was no evidence that she experienced
10
AO 72A
(Rev.8/8
2)
diabetic ketoacidosis, chronic hyperglycemia that produced diabetic neuropathy, or a
poorly healing skin infection. [Id.].
The ALJ accorded “less than great weight” to Plaintiff’s allegations of permanent
disability because they were “not entirely supported by the record evidence and . . .
contrary to her allegations, treatment notes demonstrate that [Plaintiff] retained a
largely normal physical functional capacity.” [Id.]. The ALJ pointed to an x-ray of
claimant’s spine showing “no acute findings, normal vertebral body heights, intact
sacroiliac joints” and treating provider observations that she “had normal
cardiovascular and pulmonary functioning, a normal musculoskeletal range of motion,
normal range of motion in the neck, and intact strength and sensation.” [Id. (citing
[R289, 294, 296, 321, 342, 354, 356, 364, 375])]. The ALJ noted that Plaintiff was
never advised to seek surgery, physical therapy, or referred to pain management, and
“received infrequent treatment overall.” [R25].
The ALJ also noted that Plaintiff was non-compliant with medical advice
because
on November 7, 2013, [Plaintiff] admitted drinking regular Pepsi and
eating fried foods despite her diagnosis of diabetes. . . . On June 3, 2014,
[Plaintiff] reported failing to take her high blood pressure medications for
two months. . . . On September 17, 2014, treating physicians noted that
[Plaintiff] did not attend water aerobics as advised [and] the record is
11
AO 72A
(Rev.8/8
2)
devoid of any evidence to indicate that [Plaintiff] pursued water aerobics
as advised.
[Id. (citing [R270, 288, 297-304, 312, 330])]. The ALJ opined that “Plaintiff’s noncompliance with treatment likely exacerbated and prolonged the severity of her
symptoms . . . [and] undermines her allegations as a whole.” [Id.].
The ALJ also found that Plaintiff’s activities of daily living are inconsistent with
her allegations of total disability:
For example, in a typical day, [Plaintiff] cleans, sweeps, and lies down to
elevate her legs. She reported no difficulties shaving, feeding herself, or
using the toilet. She prepares meals on a daily basis, cleans for 1-2 hours
per day, drives a car, and shops in stores. She pays bills, counts change,
handles a savings account, uses a checkbook, and occasionally socializes
with others. Plaintiff’s ability to engage in this normal range of daily
activities, contradicts her allegations of permanent disability and
evidences that she retains a greater functional capacity than alleged.
[Id.].
The ALJ accorded no weight to state agency physician William Gore’s opinion
that Plaintiff had mild limitations in social functioning, because Plaintiff received no
mental health treatment and was never prescribed psychotropic medications.
[Id. (citing [R56-57, 294, 364])]. He accorded “some weight” to state agency
physicians Shakoora Omunuwa and A. Medina, who opined that Plaintiff could
occasionally lift 20 pounds and frequently lift 10 pounds; stand, sit, and walk for six
12
AO 72A
(Rev.8/8
2)
hours in an eight-hour day; occasionally climb ladders, ropes, and scaffolds; frequently
climb ramps, stairs, balance, kneel, crouch, and crawl; avoid concentrated exposure to
hazards, because they did “not have the opportunity to review the totality of the
evidence or to consider the claimant’s subjective complaints.” [R25-26 (citing [R5859, 90-91])].
The ALJ accorded “limited weight” to the medical source statement prepared on
May 26, 2016 by Dr. Goins, Plaintiff’s treating physician, who opined that Plaintiff’s
right knee and shoulder pain made it medically reasonable for her to lie down for two
hours in an eight-hour workday, elevate her legs, and incapable of working full time.
[R26 (citing [R397-99])]. The ALJ noted that a finding of disability is reserved
exclusively for the Commissioner and the medical evidence did not support Dr. Goins
because other treating providers observed normal cardiovascular and pulmonary
functioning, normal musculoskeletal range of motion, normal range of motion in the
neck, and intact strength and sensation. [Id. (citing [R294, 342, 354, 356, 364, 375])].
The ALJ concluded that, considering Plaintiff’s age, education, experience, and
RFC, sufficient jobs existed in the national economy that Plaintiff could perform, such
as “substantially all of the requirements of” light and unskilled work. [R26-27].
Specifically, she could be a laundry worker, housekeeper, or office helper. [R27].
13
AO 72A
(Rev.8/8
2)
V.
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
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,
14
AO 72A
(Rev.8/8
2)
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 there is other work
available in the national economy that the claimant has the capacity to perform.
15
AO 72A
(Rev.8/8
2)
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).
VI.
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
16
AO 72A
(Rev.8/8
2)
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
17
AO 72A
(Rev.8/8
2)
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.
VII. CLAIMS OF ERROR
A.
ALJ’s Omission of Plaintiff’s Heart Attack
Plaintiff claims that the ALJ erred by failing to mention “the repeated notations
of an abnormal ECG, with evidence of a previous heart attack.” [Doc. 11 at 8].
Plaintiff argues that, when combined with her extreme-plus morbid obesity, diabetes,
and hypertension, a severe coronary impairment would be expected to further reduce
Plaintiff’s RFC:
When the Plaintiff testified at the hearing that her doctors wanted her to
have a stress test, which she could not afford, because they [ ] considered
she had congestive heart failure, the ALJ summarily dismissed the issue
by calling it “hearsay.” Notwithstanding the fact that the rules of
evidence/procedure are informal in a Social Security hearing, it should
have caused the ALJ to look into the matter further – particularly in light
of the abnormal ECGs and the possible diagnosis of heart failure in the
record.
[Id. at 8-9 (citing [R366])]. Additionally, Plaintiff claims that the ALJ incorrectly
stated that “treating providers observed that the claimant had . . . normal cardiovascular
18
AO 72A
(Rev.8/8
2)
. . . functioning. . .,” [id. at 10 (quoting [R24])], claiming that he missed the evidence
of the abnormal ECGs. Plaintiff also submits that in concluding, with reference to her
diabetes, that there was no evidence of end organ damage, the ALJ erred because a
myocardial infarction, as indicated on the ECG, would certainly be evidence of end
organ damage. [Id. (citing [R24-25])].
First, the Commissioner responds that Plaintiff offers no citation to medical or
legal authority that an abnormal ECG would be expected to reduce her RFC and that
the ALJ was wrong in stating she did not have end organ damage because a heart attack
was end organ damage. [Doc. 12 at 6].
Second, the Commissioner responds that “the medical evidence does not support
a finding that Plaintiff has heart damage or a cardiac or pulmonary condition that
imposes additional functional limitations.” [Id.]. The Commissioner cited Plaintiff’s
June 2014 chest x-ray, which indicated no acute cardiopulmonary abnormalities,
[R293]; her December 2014 ECG which yielded normal results, [R344], and an x-ray
which confirmed no acute cardiopulmonary abnormalities, [id.]; her normal April 2015
cardiopulmonary examination, [R358]; her normal May 2015 chest x-ray and ECG
results, [R366, 370], and no cardiopulmonary abnormalities on examination, [R374,
19
AO 72A
(Rev.8/8
2)
377]; no cardiopulmonary problems on examination in October 2015, [R384, 394, 396,
409]; and no treatment for a cardiopulmonary condition. [Doc. 12 at 6-7].
Third, the Commissioner responds that, while obesity can cause limitations, it
does not mean it will cause them and the ALJ’s statement that he considered Plaintiff’s
impairments in combination is sufficient to satisfy Social Security Ruling (SSR) 02-1p.
[Doc. 12 at 13-15 (citing 67 Fed. Reg. 57,859 (2002); 20 C.F.R. § 416.920; Wilson v.
Barnhart, 284 F.3d, 1219, 1224 (11th Cir. 2002); Jones v. Dep’t of Health and Human
Serv., 941 F.2d 1529, 1533 (11th Cir. 1991); Hutchinson v. Astrue, 408 Fed. Appx. 324,
327 (11th Cir. Jan. 18, 2011))].
Plaintiff replies that although there is little evidence of treatment for heart
conditions, she testified that she did not take the stress test ordered by her doctors
because she could not afford it and avoided going to the doctor for financial reasons.
[Doc. 13 at 1-2 (citing [R43]; Dawkins v. Bowen, 848 F.2d 1211, 1213
(11th Cir. 1988))]. Plaintiff submits that, rather than dismissing Plaintiff’s complaints,
the ALJ should have investigated further. [Id.].
The Court agrees that the ALJ did not mention Plaintiff’s abnormal ECG in 2014.
However, Plaintiff’s alleged onset date was May 27, 2015, and, as the Commissioner
points out, the ALJ mentioned medical records from April through May, 2015 that
20
AO 72A
(Rev.8/8
2)
documented normal cardiovascular functioning. [Doc. 12 at 6-7]. Therefore, rather
than relying on the absence of any cardiovascular findings, the ALJ relied on normal
cardiovascular findings. [R25-26].
Plaintiff also claims that the ALJ incorrectly stated that “treating providers
observed . . . normal cardiovascular . . . functioning.” [Doc. 11 at 8-10 (citing [R24)]].
However, Plaintiff offers no citations showing that the ALJ’s statements were incorrect.
Rather, she claims that the treating providers to which the ALJ referred were not, in
fact, treating physicians per 20 CFR § 416.927(a)(2) or Eleventh Circuit jurisprudence
because they merely “treated” Plaintiff in the ER. [Id. at 10 n.6 (citing Nyberg v.
Comm’r of Soc. Sec., 179 Fed. Appx. 589, 591 n.3 (11th Cir. May 2, 2006))]. However,
nothing in the ALJ’s decision indicates that he relied on these providers as “treating
physicians”; he mentioned their treatment notes, but did not accord them any specific
weight in the way he did with physicians (such as Dr. Goins) who had an ongoing
relationship with Plaintiff. [R25]. As a result, Plaintiff has not shown that the ALJ
omitted records from the relevant time period (given the amended alleged onset date),
misconstrued records, or improperly weighed them based on a non-existent “treating
physician” relationship.
21
AO 72A
(Rev.8/8
2)
Plaintiff also opines that the fact that she had an abnormal ECG result in the past
should have reduced her RFC. [Doc. 11 at 9]. However, as the Commissioner points
out, Plaintiff provides no legal or factual support for the contention that a past heart
attack prior to the alleged onset date is enough, on its own, to reduce or adversely affect
Plaintiff’s RFC. [Doc. 12 at 6]. While Plaintiff seems to posit that the ECG in
conjunction with her obesity should reduce her RFC, as the Commissioner points out,
the ALJ’s decision indicates that he sufficiently considered the combination of her
impairments. [Id. at 13-15]. As a result, even if the ALJ’s omission of Plaintiff’s heart
attack prior to her alleged onset date was an error, it was harmless, as the decision
reflects that the ALJ did consider her cardiovascular records during the relevant time
period, did not misconstrue them, and considered them in conjunction with Plaintiff’s
obesity.
Accordingly, Plaintiff has not shown error on this claim.
B.
ALJ’s Analysis of Plaintiff’s Other Medical Records
1.
Records Concerning Ambulation
First, Plaintiff claims that the ALJ erred by finding that she could ambulate
effectively when the record “is devoid of any observation or evaluation of Plaintiff’s
ability to ambulate.” [Doc. 11 at 9]. The Commissioner responds that no medical
22
AO 72A
(Rev.8/8
2)
source indicated Plaintiff has mobility issues with respect to walking or that she needs
the use of an assistive device, such as a cane, to ambulate effectively, and, in fact, she
demonstrated normal range of motion on examination and x-rays of the spine have
demonstrated no acute findings. [Doc. 12 at 7 (citing [R289, 294, 295, 296, 312, 342,
364, 377])]. Although the Commissioner concedes that Plaintiff had right knee pain in
October and November 2015 for which she was treated with injections and medication,
these records did not document ambulatory issues. [Id. (citing [R382, 407, 408])].
Plaintiff replies that swelling in her legs and pain in her knee “could reasonably be
expected to cause limitations upon the walking and standing necessary to perform light
work, particularly in combination with extreme obesity.” [Doc. 13 at 2].
Plaintiff does not refute the records relied upon by the Commissioner to support
the contention that Plaintiff’s musculoskeletal system functioned normally. Once
again, Plaintiff posits without citing any legal or factual basis that, in conjunction with
her obesity, her right knee pain should reduce her RFC. [Id.]. However, as previously
explained, the ALJ’s decision indicates that he sufficiently considered the combination
of her impairments. [R24-25]. No error has been shown on this point.
23
AO 72A
(Rev.8/8
2)
2.
X-ray evidence
Second, Plaintiff claims that the ALJ only cited to normal thoracic spinal x-ray
findings in 2014–prior to her alleged onset date–while ignoring abnormal May 2015
findings. [Doc. 11 at 10 (citing [R24, 378])]. The Commissioner responds that, if this
was error, it was harmless because the ALJ was clearly aware of Plaintiff’s x-ray, as he
found that she had the severe impairment of degenerative disc disease. [Doc. 12 at 8
(citing [R23])]. Plaintiff did not reply to this argument. [Doc. 13]. Therefore, the
Court deems this claim abandoned.
Hudson v. Norfolk S. Ry. Co.,
209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (Carnes, J.) (“When a party fails to
respond to an argument or otherwise address a claim, the Court deems such argument
or claim abandoned.”); Kramer v. Gwinnett Cnty., Ga., 306 F. Supp. 2d 1219, 1221
(N.D. Ga. 2004) (Evans, J.) (“[A] party’s failure to respond to any portion or claim in
a motion indicates such portion, claim or defense is unopposed.”); Outlaw v. Barnhart,
197 Fed. Appx. 825, 827 n.3 (11th Cir. Aug. 10, 2006) (per curiam) (finding that the
plaintiff waived an issue by failing to elaborate on the argument or provide a citation
to authority regarding the argument).
As a result, Plaintiff has not shown error on this point.
24
AO 72A
(Rev.8/8
2)
3.
Plaintiff’s Compliance with Medical Advice
Third, Plaintiff claims that the ALJ recited evidence prior to Plaintiff’s alleged
onset date, such as her diet and exercise habits and adherence to medication, “to
diminish her credibility,” when such evidence was not unequivocal in establishing noncompliance with prescribed treatment and, in fact, suggested she could not afford
medications. [Doc. 11 at 9-10 (citing [R25, 270])].
With regard to Plaintiff’s diet and exercise habits, the Commissioner argues that
Plaintiff can be denied benefits for failing to follow prescribed treatment without good
reason under the regulations and she offered none of the “good reasons” afforded by
the regulations. [Doc. 12 at 10-11 (citing 20 C.F.R. § 416.930; Crawford v. Comm’r
of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); Ellison v. Barnhart, 355 F.3d 1272,
1275 (11th Cir. 2003))].
With regards to her failure to take medications, the
Commissioner responds that “an ALJ does not have to consider evidence regarding a
claimant’s ability to afford his medication, where the ALJ did not rely significantly on
her alleged failure to take her medication” and, because the “ALJ provided other cogent
reasons for not accepting Plaintiff’s subjective statements,” including her spinal x-rays
and treatment provider notes, he did not err.
[Id. at 11-12 (citing Ellison,
355 F.3d at 1275; [R289, 294-96, 342, 356, 364, 375])].
25
AO 72A
(Rev.8/8
2)
“A medical condition that can reasonably be remedied either by surgery,
treatment, or medication is not disabling.” Dawkins, 848 F.2d at 1213 (quoting
Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987)). The language of the regulations
sets forth four requirements before a claimant’s disability benefits can be denied or
terminated for the willful failure to follow prescribed treatment: (1) the impairment
must have been amenable to treatment to restore the claimant’s ability to work, (2) the
treatment must have been prescribed, (3) the treatment must have been refused, and
(4) the refusal must have been willful with no justifiable excuse.” Jones v. Heckler,
702 F.2d 950, 953 (11th Cir. 1983). “In order to deny benefits on the ground of failure
to follow prescribed treatment, the ALJ must find that had the claimant followed the
prescribed treatment, the claimant’s ability to work would have been restored. This
finding must be supported by substantial evidence.” Dawkins, 848 F.2d at 1213.
Unless an ALJ’s finding that a claimant is not disabled is based significantly on a
claimant’s noncompliance with treatment, the ALJ’s decision will not constitute
reversible error. Ellison, 355 F.3d at 1275 (finding that an ALJ’s failure to consider
why a claimant did not follow suggested treatment was not reversible error because the
ALJ’s determination “was not significantly based on a finding of noncompliance” and
was based primarily on other evidence); see also Beegle v. Soc. Sec. Admin., Comm’r,
26
AO 72A
(Rev.8/8
2)
482 Fed. Appx. 483, 487 (11th Cir. July 23, 2012) (“Nonetheless, reversible error does
not appear where the ALJ primarily based her decision on factors other than
non-compliance, and where the claimant’s non-compliance was not a significant basis
for the ALJ’s denial of disability insurance benefits.”); Brown v. Comm’r of Soc. Sec.,
425 Fed. Appx. 813, 817 (11th Cir. Apr. 27, 2011) (“[I]f the claimant’s failure to follow
medical treatment is not one of the principal factors in the ALJ’s decision, then the
ALJ’s failure to consider the claimant’s ability to pay [for treatment] will not constitute
reversible error.”).
The Court agrees that the ALJ incorrectly relied on Plaintiff’s diet and exercise
habits because the records do not indicate that she failed to adhere to prescribed
treatment. Specifically, on November 7, 2013, the provider explained that Plaintiff
was:
provided [ ] with verbal and written information on foods to avoid- she
had been drinking Regular Pepsi and eating fried foods because that is
what her boyfriend demanded she cook. Discussed appropriate food
preparation techniques, food portion sizes and what foods count as carb
with how to read labels.
[R270]. The provider also stated that Plaintiff
does not work and she can not afford her medications and she has not had
a blood glucose monitor in about 2-3 years. . . . The patient is asked to
make an attempt to improve diet and exercise patterns to aid in medical
management of this problem.
27
AO 72A
(Rev.8/8
2)
[Id.]. If anything, these records indicate that Plaintiff was only advised regarding her
diet after she described it and highlighted her lack of access to regular blood glucose
screenings and medications; they do not indicate that Plaintiff was previously advised
to follow a certain diet and admitted unexcused noncompliance.
The Court also finds that the ALJ made unfounded assumptions regarding
Plaintiff’s exercise habits. [R25]. Although part of her treatment plan on June 25, 2014
was “get water aerobic[s] started,” [R317], and the last note reflects that she “has not
gotten into water aerobics,” [R330], there is a followup note on August 6, 2014 that
appears to say that she was “unable to get to water aerobics,” [R314], followed by a
note on September 17, 2014, that she “has not gone to water aerobics (no ride).”
[R312]. A Social Security claimant’s refusal to follow prescribed medical treatment
without a good reason will preclude a finding of disability. 20 C.F.R. § 416.930(b);
Bellew v. Acting Comm’r of Soc. Sec., 605 Fed. Appx. 917, 921 (11th Cir. May 6, 2015).
However, “poverty excuses noncompliance,” such that noncompliance does not prevent
a claimant from receiving benefits where the noncompliance is a result of the claimant’s
inability to afford treatment. Dawkins, 848 F.2d at 1212-14 (reversing and remanding
ALJ’s denial of benefits where ALJ relied “primarily if not exclusively” on evidence
concerning the claimant’s noncompliance with prescribed treatment, without regard to
28
AO 72A
(Rev.8/8
2)
the claimant’s ability to afford the treatment). Accordingly, “when an ALJ relies on
noncompliance as the sole ground for the denial of disability benefits, and the record
contains evidence showing that the claimant is financially unable to comply with
prescribed treatment, the ALJ is required to determine whether the claimant was able
to afford the prescribed treatment.” Ellison, 355 F.3d at 1275.
While the ALJ also found Plaintiff’s complaints inconsistent with her activities
of daily living, the Court concludes that the ALJ’s opinion that Plaintiff failed to follow
prescribed treatment was a significant basis to his ultimate conclusion of nondisability, [R25]. In doing so, the ALJ did not comply with the Commissioner’s own
policies. The relevant Social Security Ruling instructs that
if the frequency or extent of the treatment sought by an individual is not
comparable with the degree of the individual’s subjective complaints, or
if the individual fails to follow prescribed treatment that might improve
symptoms, we may find the alleged intensity and persistence of an
individual’s symptoms are inconsistent with the overall evidence of
record. We will not find an individual’s symptoms inconsistent with the
evidence in the record on this basis without considering possible reasons
he or she may not comply with treatment or seek treatment consistent with
the degree of his or her complaints.
29
AO 72A
(Rev.8/8
2)
Soc. Sec. Ruling (SSR) 16-3p, 2016 WL 1119029, at *8 (SSA Mar. 16, 2016)
(emphasis added).9 SSR 16-3p also points out that the individual may be unable to
afford treatment and may not have access to free or low-cost medical services. Id. The
ALJ’s decision does not discuss the reasons why Plaintiff did not attend water aerobics
as required by SSR 16-3p.10
9
Effective March 28, 2016, SSR 16-3p superseded SSR 96-7p. Social
Security Ruling 16-3p; Titles II and Titles XVI: Evaluation of Symptoms in Disability
Claims, 81 Fed. Reg. 14,166 (Mar. 16, 2016); 81 Fed. Reg. 15, 776 (Mar. 24, 2016).
SSR 16-3p did not alter the methodology for evaluating a claimant’s symptoms under
the regulations. SSR 16-3p explains that the Commissioner eliminated the use of the
term “credibility,” which does not appear in the regulations, because “subjective
symptom evaluation is not an examination of an individual’s character.” SSR 16-3p.
Otherwise, the methodology outlined in SSR 16-3p is essentially the same as in
SSR 96-7p.
10
Social Security Rulings are published under the authority of the
Commissioner of Social Security and are binding on all components of the
administrative process. See Sullivan v. Zebley, 493 U.S. 521, 530 n.9 (1990); see also
Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1377 n.6 (N.D. Ga. 2006) (Story, J.) (citing
20 C.F.R. § 402.35(b)(1)). Although SSRs do not have the force of law, they are
entitled to deference so long as they are consistent with the Social Security Act and
regulations. Massachi v. Astrue, 486 F.3d 1149, 1152 n.6 (9th Cir. 2007); see also
Salamalekis v. Comm’r of Soc. Sec., 221 F.3d 828, 832 (6th Cir. 2000) (“If a Social
Security Ruling presents a reasonable construction of an ambiguous provision of the
Act or the agency’s regulations, we usually defer to the SSR.”); Minnesota v. Apfel,
151 F.3d 742, 748 (8th Cir. 1998) (“Social Security Rulings, although entitled to
deference, are not binding or conclusive.”); Pass v. Chater, 65 F.3d 1200, 1204 n.3
(4th Cir. 1995); Gordon v. Shalala, 55 F.3d 101, 105 (2d Cir. 1995); Andrade v. Sec’y
of Health and Human Servs., 985 F.2d 1045, 1051 (10th Cir. 1993).
30
AO 72A
(Rev.8/8
2)
Likewise, the record does not reflect that the ALJ properly considered Plaintiff’s
reasons for her noncompliance with other medical advice. The ALJ noted two other
instances of non-compliance in addition to not attending water aerobics, all preceding
her amended alleged onset date. [R25]. The first was in November 2013, when
Plaintiff suffered serious hyperglycemia due to drinking Pepsi and eating fried foods,
[R297-304], that the Court previously discussed; and the second occurred in June 2014
when she reported hypertension, but the records associated with that incident indicate
that she had “been out of medication since April 2014 and she needs a new prescription.
She notes that she does not have any insurance, but she does have an appointment with
an income based clinic on 6/25/14.” [R288]. The ALJ’s consideration of these events
even though they occurred prior to Plaintiff’s amended alleged onset date is not
erroneous, because the ALJ was obligated to develop the medical history record
complete medical history “for at least the 12 months preceding the month in which” the
application for benefits was filed.” 20 C.F.R. § 404.1512 (emphasis added).
At the same time, the ALJ’s reliance on Plaintiff’s noncompliance with her
hypertension medication suffers, perhaps more so, from the same failing as did
consideration of Plaintiff’s failure to attend water aerobics. In concluding that
Plaintiff’s noncompliance with treatment “likely exacerbated and prolonged the
31
AO 72A
(Rev.8/8
2)
severity of” Plaintiff’s symptoms, thereby “undermin[ing] her allegations as a whole,”
[R25], without, as required by SSR 16-3p, “considering possible reasons . . . she may
not comply with treatment or seek treatment consistent with the degree of . . . her
complaints,” the ALJ committed reversible error that the Court does not find was
harmless.
“A clearly articulated credibility finding with substantial supporting evidence
in the record will not be disturbed by a reviewing court” even if some of the reasons for
questioning the claimant’s credibility stated by the ALJ are suspect. Davis v. Astrue,
346 Fed. Appx. 439, 440, 441 (11th Cir. Sept. 23, 2009) (reversing district court’s
reversal of ALJ’s decision denying benefits because it found that inconsistencies
between objective medical findings and claimant’s subjective complaints of pain, which
were pointed out in ALJ’s decision, constituted substantial evidence supporting the
ALJ’s determination, and quoting Foote, 67 F.3d at 1562). Said another way, an
adverse credibility determination by the ALJ is subject to harmless-error
analysis. Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983); see also Wilson v.
Comm’r of Soc. Sec., 500 Fed. Appx. 857, 859-60 (11th Cir. Dec. 7, 2012) (concluding
that ALJ’s credibility determination based upon plaintiff’s failure to apply for worker’s
compensation was harmless error where record showed sufficient evidence to support
32
AO 72A
(Rev.8/8
2)
an adverse credibility determination independent of failure to apply for worker’s
compensation).11 In this case, while the ALJ referenced various treatment notes that
reflected “a largely normal physical functional capacity,” including a finding that she
was “well and stable,” [R24 (quoting [R352])], that same note, however, reflected that
she had been taken off of insulin the previous fall and her Metformin12 dose was halved,
and she came to the Piedmont ER hyperglycemic with a blood sugar level of 700,
which was reduced to 290 by two liters of normal saline and insulin. The attending
physician recommended that her Metformin dose be doubled again and to see her
primary care physician “asap for recheck and consider insulin.” [R352-54]. Similarly,
the ALJ concluded that “the normal observations in combination with the conservative
11
The Court recognizes that the phrase “credibility determination” in Social
Security cases has fallen out of favor and the preferred terminology, as reflected in
SSR 16-3p, is that a plaintiff’s subjective complaints are “inconsistent with the overall
evidence of record.” SSR 16-3p, 2016 WL 1119029 at *8. To the extent that the
Court uses the disused term, it is merely a shorthand reference to the current regulatory
standard.
12
Metformin is used alone or with other medications, including insulin, to
treat type 2 diabetes. Metformin helps to control the amount of glucose (sugar) in your
blood. It decreases the amount of glucose you absorb from your food and the amount
of glucose made by your liver. Metformin also increases your body's response to
insulin, a natural substance that controls the amount of glucose in the blood. U.S. Nat’l
Library of Medicine, https://medlineplus.gov/druginfo/meds/a696005.html (last visited
3/8/19)
33
AO 72A
(Rev.8/8
2)
and infrequent treatment, undermines the persuasiveness of the claimant’s allegations
and evidences that her impairments do not rise to a disabling level.” [R25]. However,
the same medical records also demonstrate that she experienced bilateral lower
extremity edema beginning in April 2015, [R364].
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 his 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). Here, the ALJ impermissibly cherry-picked evidence
favorable to his opinion while ignoring significant evidence favorable to Plaintiff’s
claim.
Tankersley
v.
Comm’r,
Soc.
Sec.
Admin., Civil Action File
No. 1:17-cv-00140-AJB, 2018 WL 1466278, at *23 (N.D. Ga. Mar. 26, 2018).
Therefore, in combination with the improper reasoning as to Plaintiff’s compliance, the
Court concludes that the Commissioner must reexamine Plaintiff’s claims.
As a result, the Court REMANDS Plaintiff’s application to the Commissioner
for further consideration of Plaintiff’s claims consistent with the discussion herein.
34
AO 72A
(Rev.8/8
2)
C.
The ALJ’s Weighing of Dr. Goins’ Opinion
Plaintiff contends that the ALJ erred in giving limited weight to Dr. Goins’
opinion and finding that her edema did not cause any functional limitations.
[Doc. 11 at 12-13]. Plaintiff claims that Dr. Goins indicated that she needed to lie down
and elevate her feet during the day, which are functional limitations. [Id. at 11-12
(citing [R23, R399])].
In response, the Commissioner argues that the ALJ properly considered the
medical source opinions, together with the other evidence, in assessing Plaintiff’s
RFC. [Doc. 12 at 15 (citing 20 C.F.R. § 416.945(a)(3))]. The Commissioner points out
that the ALJ “noted an x-ray of Plaintiff’s lumbar spine demonstrated no acute findings,
normal vertebral body heights, intact sacroiliac joints, and small anterior osteophytes
at L2-3 and L4-5,” was “well and stable,” and had an entirely normal physical
examination on April 7, 2015. [Doc. 12 at 11 (citing [R294, 354, 356])]. Moreover,
an x-ray of her cervical and thoracic spine demonstrated normal findings, [R295, 296];
treating providers observed Plaintiff had normal cardiovascular and pulmonary
functioning, normal musculoskeletal range of motion, normal range of motion in the
neck, and intact strength and sensation, [R289, 342, 354, 356, 364, 375]; and Plaintiff’s
treatment was “entirely conservative in nature’ with no treating or examining source
35
AO 72A
(Rev.8/8
2)
advising her to undergo surgery or see a pain specialist or physical therapist. [Doc. 12
at 11-12 (citing Brown, 425 Fed. Appx. at 815, 817-18; Sheldon v. Astrue,
268 Fed. Appx. 871, 872 (11th Cir. Mar. 10, 2008))].
The Commissioner also responds that “the ALJ provided good reasons, supported
by substantial evidence, for giving little weight to Dr. Goins’ opinion[,]” noting that
“other medical providers reported Plaintiff had normal cardiovascular and pulmonary
functioning, a normal musculoskeletal range of motion, normal range of motion in the
neck, and intact strength and sensation.” [Doc. 12 at 17].13
13
The Commissioner responded to an argument that Plaintiff did not make
in this specification, that is, that Dr. Goins opined that Plaintiff was disabled, an issue
reserved to the Commissioner, [Doc. 12 at 16-17]; as a result, the Court will not further
address it.
The Commissioner also makes an argument that the ALJ did not make with
regard to Dr. Goins’ opinion, that it was just boxes checked on a form. [Id. at 18]. A
court may not accept appellate counsel’s post hoc rationalizations for agency actions.
Baker v. Comm’r of Soc. Sec., 384 Fed. Appx. 893, 896 (11th Cir. June 23, 2010)
(citing FPC v. Texaco Inc., 417 U.S. 380, 397 (1974) (citation omitted)). If an action
is to be upheld, it must be upheld on the same bases articulated in the agency’s order.
Id. (citation omitted); see also Burlington Truck Lines, Inc. v. United States, 371 U.S.
156, 168 (1962) (same); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A]
reviewing court, in dealing with a determination or judgment which an administrative
agency alone is authorized to make, must judge the propriety of such action solely by
the grounds invoked by the agency. If those grounds are inadequate or improper, the
court is powerless to affirm the administrative action by substituting what it considers
to be a more adequate or proper basis.”); Owens v. Heckler, 748 F.2d 1511, 1516 (11th
Cir.1984). As a result, the Commissioner’s argument in briefing about Dr. Goins’
36
AO 72A
(Rev.8/8
2)
In her reply, Plaintiff does not discuss this argument except by claiming that if
the ALJ did not want to accept Dr. Goins’ opinions, he should have sent Plaintiff for
a comprehensive consultative examination. [Doc. 13 at 2].
The decision not to give a treating-source medical opinion controlling weight
does not mean that the opinion should be rejected, SSR 96-2p, but neither does it mean
that it cannot be rejected. Eleventh Circuit precedent contemplates such a rejection.
See Pritchett v. Comm’r, Soc. Sec. Admin., 315 Fed. Appx. 806, 810
(11th Cir. Feb. 24, 2009) (finding the ALJ did not err in assigning no weight to the
treating physician’s conclusion that Plaintiff probably was medically disabled, because
the ALJ clearly articulated its decision and because the doctor’s opinion was
inconsistent with his own records); MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986) (“The Secretary must specify what weight is given to a treating
physician’s opinion and any reason for giving it no weight, and failure to do so is
reversible error.”); see also Davis v. Astrue, 287 Fed. Appx. 748, 753
(11th Cir. July 9, 2008) (where court, instead of stating that assigning no weight to a
opinion being just boxes checked on a form is a post hoc rationalization, which the
Court cannot consider.
37
AO 72A
(Rev.8/8
2)
treating physician’s opinion is impermissible, identified reasons why the ALJ’s
decision to do so was unsupported by the record).
In determining the weight of medical opinions, the ALJ must consider: (1) the
examining relationship; (2) the treatment relationship; (3) 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). However, the regulations do not require the ALJ to explicitly
identify these factors. See 20 C.F.R. § 404.1527(d) (stating only that the Commissioner
“consider[s] all of the following factors in deciding the weight [he] gives to any
medical opinion”); see also Amilpas v. Astrue, No. 09-cv-0389, 2010 WL 2303302, *6
(W.D. Tex. May 17, 2010) (“I cannot conclude that the ALJ made a legal error []
because the regulations do not require the ALJ to explicitly address each 404.1527(d)
factor.”) (R&R adopted by 2010 WL 2756552 at *5 & n.38 (W.D. Tex. July 12, 2010)).
Nor does the Social Security Ruling that interprets § 404.1527(d) state that the ALJ is
required to explicitly identify these six factors in his opinion, only that the treating
source medical opinions “must be weighed using all of the factors provided” by
38
AO 72A
(Rev.8/8
2)
§ 404.1527. SSR 96-2p. Lastly, courts have concluded that an ALJ does not err by
failing to expressly address each of the factors outlined in 20 C.F.R. § 404.1527(d). See
Armijo v. Astrue, 385 Fed. Appx. 789, 795 (10th Cir. June 16, 2010) (citing Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)).
Here, the ALJ explained that he accorded weight to Dr. Goins according to these
factors by finding, among other things, that Dr. Goins offered an ultimate opinion on
Plaintiff’s disability (that he could not fully accept) and that Dr. Goins’ opinion was
unsupported by other medical providers’ examinations, including those pertaining to
Plaintiff’s cardiovascular, pulmonary, and musculoskeletal systems. [R26]. Therefore,
the ALJ did not err because he applied the proper legal standards. Washington,
558 F. Supp. 2d at 1296; Fields, 498 F. Supp. 488. While Plaintiff may take issue with
the eventual weight that the ALJ accorded to these opinions, it is not the Court’s role
to decide the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Dyer, 395 F.3d at 1210. As a result, Plaintiff’s claim of error as
articulated does not mandate reversal of the Commissioner’s decision.
D.
Not Ordering Consultative Examinations
Plaintiff argues that the ALJ erred by not developing the record because he failed
to order that she receive a consultative examination that “would have tested her ability
39
AO 72A
(Rev.8/8
2)
to ambulate . . . the range of motion of her wrists, and grip and pinch strength of her
hands.”
[Doc. 11 at 11 (citing Thornton v. Astrue, 356 Fed. Appx. 243, 249
(11th Cir. Dec. 4, 2009); Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984)
(citing Ford v. Secretary of Health & Human Servs., 659 F.2d 66, 69 (5th Cir. 1981)
(Unit B); 20 C.F.R. § 404.1519a(b))]. Plaintiff also suggests that “the ALJ should have
investigated [whether Plaintiff had congestive heart failure] further in light of the
abnormal ECG and the swelling in her legs.” [Doc. 13 at 2]. Therefore, Plaintiff has
complied with the scheduling order and the question is the extent of the ALJ’s duty to
order a consultative exam. [See Doc. 9 at 2-3].
The Commissioner argues that Plaintiff “fails to cite to any evidence sufficient
to trigger the requirement for a consultative psychological evaluation.” [Doc. 12 at 1213 (citing Smith v. Bowen, 792 F.2d 1547 (11th Cir. 1986); Doughty, 245 F.3d at 1281;
20 C.F.R. § 426.919; McCall v. Bowen, 846 F.2d 1317 (11th Cir. 1988))].
As a preliminary matter, the ALJ had no special duty to develop the record unless
the claimant is unrepresented.
Cowart v. Schweiker, 662 F.2d 731, 734-35
(11th Cir. 1981) (quoting Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir.
40
AO 72A
(Rev.8/8
2)
Unit B July 17, 1981)14). In the absence of the special duty, a plaintiff must make a
more specific showing of prejudice of the failure to develop the record. Kelley v.
Heckler, 761 F.2d 1538, 1540 n.2 (11th Cir. 1985); see also Brown v. Shalala,
44 F.3d 931, 935 (11th Cir. 1995). However, because a hearing before an ALJ is nonadversarial, the ALJ has a basic duty to fully and fairly develop the record, even when
the claimant is represented by counsel. Graham v. Apfel, 129 F.3d 1420, 1422
(11th Cir. 1997); Todd v. Heckler, 736 F.2d 641, 641 (11th Cir. 1984).
While an ALJ has discretion in determining whether to procure additional
medical evidence, he still has an obligation to develop a full and fair record, and where
review of the record reveals evidentiary gaps demonstrating unfairness, remand may
be warranted.
Gallina v. Comm’r of Soc. Sec., 202 Fed. Appx. 387, 388-89
(11th Cir. Oct. 25, 2006); cf. Castle v. Colvin, 557 Fed. Appx. 849, 854
(11th Cir. Feb. 18, 2014) (holding that “[w]here medical evidence shows relatively little
physical impairment, an ALJ permissibly can render a commonsense judgment about
functional capacity even without a physician’s assessment”) (punctuation omitted).
14
Decisions issued by a Unit B panel of the former Fifth Circuit constitute
binding precedent in the Eleventh Circuit. See Stein v. Reynolds Secs., Inc.,
667 F.2d 33, 34 (11th Cir. 1982).
41
AO 72A
(Rev.8/8
2)
The Commissioner’s duty to develop the record includes ordering a consultative
examination if one is needed to make an informed decision. Reeves, 734 F.2d at n.1.
It is true that the parties have pointed to no part of the record that specifically
tested Plaintiff’s ability to ambulate. However, it is also true that the ALJ found
Plaintiff’s shoulder and knee pain and diabetes to be severe based on treating providers
observations of reduced range of motion and her receipt of a knee injection. [R23].
Although both Plaintiff and Dr. Goins opined that these impairments imposed
limitations, such as the need to elevate her legs for two hours a day, the ALJ did not
fully credit these limitations, and instead, crafted a far less restrictive RFC, [R24-26],
based upon reports describing normal range of motion, conservative treatment, and
unremarkable musculoskeletal system examinations. [R25].
The ALJ found that Plaintiff had severe impairments based upon limited range
of motion and treatment for musculoskeletal issues, but then cited Plaintiff’s
conservative treatment and other records noting normal musculoskeletal findings as the
basis for finding these impairments less limiting than Plaintiff or Dr. Goins alleged.
[Compare R23 with R24-26]. There was little in the way of objective medical records
that explained Plaintiff’s bilateral lower edema after May 2015, when she reported it
42
AO 72A
(Rev.8/8
2)
at Piedmont ER, [R363, 364], although an EKG reflected occasional PVCs,15 [R368],
and she was assessed with unspecified essential hypertension. [Id.]. This suggests an
evidentiary conflict that the ALJ cannot resolve as a layperson who is not qualified to
interpret the medical records and findings. Marbury v. Sullivan, 957 F.2d 837, 840-41
(11th Cir. 1992) (Johnson, J., concurring); Jackson v. Colvin, Civ. Action File No. 1:14cv-01868-AJB, 2015 WL 5601876, at *16 (N.D. Ga. Sept. 23, 2015) (Baverman, M.J.).
A consultative examination may be necessary for the ALJ to make a decision due
to some conflict, ambiguity, or other insufficiency in the medical evidence.
20 C.F.R. § 404.1519a(a)(2) (“When we purchase a consultative examination, we will
use the report from the consultative examination to try to resolve a conflict or
ambiguity if one exists. We will also use a consultative examination to secure needed
medical evidence the file does not contain such as clinical findings, laboratory tests, a
diagnosis or prognosis necessary for decision.”); 20 C.F.R. § 404.1519a(b) (“A
consultative examination may be purchased when the evidence as a whole, both
15
Premature ventricular contractions (PVCs) are extra heartbeats that begin
in one of the heart’s two lower pumping chambers (ventricles). These extra beats
disrupt regular heart rhythm, sometimes causing a person to feel a fluttering or a
skipped beat in the chest. Mayo Clinic Patient Care & Health Information,
https://www.mayoclinic.org/diseases-conditions/premature-ventricular-contractions/
symptoms-causes/syc-20376757 (last visited 3/11/19).
43
AO 72A
(Rev.8/8
2)
medical and nonmedical, is not sufficient to support a decision on your claim.”); see
also Thomas v. Berryhill, No. 2:16-00581-N, 2017 WL 3996411 at *4
(N.D. Ala. Sept. 11, 2017) (citing River v Astrue, 901 F. Supp. 2d 1317, 1328
(S.D. Ala. 2012)). Consequently, the Court finds that the lack of a medical opinion as
to Plaintiff’s physical limitations presents a gap in the record that could reasonably
affect the outcome of the case at step three and that the ALJ therefore should have made
reasonable attempts to fill with a consultative examination and opinion.
Accordingly, the Court REMANDS the case for the Commissioner to order a
consultative physical examination to resolve any conflict regarding the functional
limitations posed by Plaintiff’s severe impairments.
VIII. CONCLUSION
In conclusion, the Commissioner’s decision is AFFIRMED IN PART AND
REVERSED AND REMANDED IN PART for further consideration of Plaintiff’s
application.
Specifically, the Commissioner’s decision is REVERSED AND
REMANDED for further consideration of the reasons for Plaintiff’s non-compliance
and so that a consultative examination may be conducted concerning the functional
limitations posed by Plaintiff’s severe impairments. The decision is AFFIRMED in
all other respects.
44
AO 72A
(Rev.8/8
2)
The Clerk is DIRECTED to enter judgment in favor of Plaintiff.
IT IS SO ORDERED and DIRECTED, this the 11th
45
AO 72A
(Rev.8/8
2)
day of March, 2019.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?