Johnston v. Social Security Administration

Filing 13

MEMORANDUM RULING re 1 Complaint, filed by Frieda Johnston. IT IS ORDERED that the Commissioners decision is REVERSED pursuant to the fourth sentence of 42 U.S.C. § 405(g), and Supplemental Security Income benefits shall be awarded from 8/12/2006 forward. Signed by Magistrate Judge Patrick J Hanna on 3/18/2016. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
FRIEDA JOHNSTON

CIVIL ACTION NO. 6:15-cv-01244

VERSUS

MAGISTRATE JUDGE HANNA

COMMISSIONER OF THE
BY CONSENT OF THE PARTIES
SOCIAL SECURITY ADMINISTRATION
MEMORANDUM RULING
Before this Court is an appeal of the Commissioner’s finding of non-disability.
In accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the
parties consented to have this matter resolved by the undersigned Magistrate Judge.
(Rec. Doc. 12). Considering the administrative record, the parties’ briefs, and the
applicable law, the Commissioner’s decision is reversed, and benefits are awarded.
ADMINISTRATIVE PROCEEDINGS
The claimant, Frieda Johnston, fully exhausted her administrative remedies
before initiating this action. She filed an application for Supplemental Security
Income benefits (“SSI”) in 2010, alleging disability beginning on August 12, 20061
due to dysautonomia and postural orthostatic tachycardia syndrome.2 After her
application was denied, a hearing was held in April 2011 before Administrative Law

1

Rec. Doc. 5-1 at 104.

2

Rec. Doc. 5-1 at 125.

Judge Lawrence T. Ragona.3 The ALJ issued a decision,4 concluding that the
claimant was not disabled within the meaning of the Social Security Act from the date
of the application through the date of the decision. The claimant requested review of
the decision, but the Appeals Council denied review.5 Therefore, the ALJ’s decision
became the Commissioner’s final decision for the purpose of the Court’s review
under 42 U.S.C. § 405(g).
Following judicial review of the Commissioner’s decision, judgment was
entered remanding the matter back to the Commissioner for further action, with
instructions to permit the claimant to update the record, hold another hearing, give
controlling weight to the treating physician’s opinions or set forth good cause for not
doing so, evaluate the claimant’s residual functional capacity, reconsider whether the
claimant can perform her prior work, and determine whether the claimant is disabled.6

3

The hearing transcript is found at Rec. Doc. 5-1 at 27-56.

4

Rec. Doc. 5-1 at 16-21.

5

Rec. Doc. 5-1 at 5.

6

Rec. Doc. 5-1 at 327-328.
-2-

Additional materials were filed in the record,7 another hearing was held,8 and
the same ALJ again found that the claimant is not disabled.9 Because no exceptions
were filed, the Appeals Council did not assume jurisdiction, and the ALJ’s decision
became the final decision of the Commissioner under 20 C.F.R. § 1484(d). The
claimant then sought judicial review of the ALJ’s second decision.10
FACTUAL BACKGROUND
The claimant, Frieda Johnston, was born on August 8, 1986.11 She completed
high school and a few college courses.12 She testified that she was forced to leave
college because her health caused her to miss too many classes.13 She briefly worked
on a part-time basis as a telemarketer and in retail sales.14 She testified that she was
forced to quit the telemarketing position because the stress of the job caused her to

7

Rec. Doc. 5-1 at 469-548.

8

Rec. Doc. 5-1 at 284-308.

9

Rec. Doc. 5-1 at 269-277.

10

Rec. Doc. 1.

11

Rec. Doc. 5-1 at 104, 286.

12

Rec. Doc. 5-1 at 288.

13

Rec. Doc. 5-1 at 47-48, 288-289.

14

Rec. Doc. 5-1 at 289.
-3-

miss work frequently.15 While working as a telemarketer, she also fainted and had
seizures upon standing up because she was required to sit for a long time without
taking a break.16 While working in sales at a T.J. Maxx store, her hours were cut
because she “kept passing out in the stock room.”17 While working at Brookstone,
she frequently passed out at work, even passing out while on the sales floor.18
The claimant applied for benefits at the age of twenty-three, the first hearing
was held when she was twenty-five, the second hearing was held when she was
twenty-eight, and she will have her thirtieth birthday in a few months.
At the time of the first hearing in 2011, the claimant was living at home with
her parents.19 At the time of the hearing in 2014, she was living at home with her
mother, and her father was an on overseas work assignment.20 When her parents lived
in Alaska for a year between the two hearings, the claimant attempted to live there but
found the environment too harsh.21 She returned to Louisiana but had someone with

15

Rec. Doc. 5-1 at 31.

16

Rec. Doc. 5-1 at 39.

17

Rec. Doc. 5-1 at 38.

18

Rec. Doc. 5-1 at 39.

19

Rec. Doc. 5-1 at 29.

20

Rec. Doc. 5-1 at 286, 301.

21

Rec. Doc. 5-1 at 287.
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her at all times.22 At the time of the first hearing, she was not attending school or
working,23 and no evidence was presented suggesting that this had changed by the
time of the second hearing.
The claimant’s medical condition causes her to pass out frequently and have
mild seizures.24 In April 2011, she was fainting about twice a week.25 In the month
preceding the second hearing, she passed out approximately five times.26 She also is
chronically fatigued, requiring a B12 injection every other week.27 She is usually too
tired to leave the house.28 In 2011, she was visiting with friends about once a
month,29 but by 2014, she had lost contact with most of her friends although she
occasionally spent time on Facebook30 and had a fiancé.31 She testified that she had

22

Rec. Doc. 5-1 at 287.

23

Rec. Doc. 5-1 at 29, 32.

24

Rec. Doc. 5-1 at 33.

25

Rec. Doc. 5-1 at 41.

26

Rec. Doc. 5-1 at 302.

27

Rec. Doc. 5-1 at 33, 40, 290.

28

Rec. Doc. 5-1 at 35.

29

Rec. Doc. 5-1 at 36.

30

Rec. Doc. 5-1 at 299.

31

Rec. Doc. 5-1 at 299.
-5-

not been out with friends in a long time.32 She enjoys reading but gets headaches and
has trouble concentrating.33 She experiences painful heart palpitations, joint pain,
sleep problems, and shortness of breath.34 In 2014, she was having dizzy spells about
three times per week, lasting from one to three hours at a time.35 She complained
about having trouble eating and experiencing frequent nausea.36 She cries frequently,
and became emotional during the second hearing.37 Her physician is attempting to
find an antidepressant that is compatible with her other medications.38 She often
wakes up with headaches and also gets them sporadically, requiring prescription
medication.39 She stopped driving, finding it too stressful because she could not
concentrate.40 She does not own a computer but occasionally borrows her mother’s

32

Rec. Doc. 5-1 at 300.

33

Rec. Doc. 5-1 at 36.

34

Rec. Doc. 33, 43.

35

Rec. Doc. 5-1 at 292.

36

Rec. Doc. 5-1 at 33, 293.

37

Rec. Doc. 5-1 at 294-295.

38

Rec. Doc. 5-1 at 295.

39

Rec. Doc. 5-1 at 302-303.

40

Rec. Doc. 5-1 at 288, 301.
-6-

laptop.41 Being on the computer for more than about an hour causes headaches.42 She
also complained about memory problems43 and anxiety.44 Stress makes her condition
worse.45 She does not do housework or laundry, cook, or shop for groceries.46 At the
time of the 2014 hearing, she had not been shopping for over a month.47 In her
mother’s opinion, the claimant’s condition was worsening in 2011.48

In the

claimant’s opinion, it was further worsening in 2014.49
On April 28, 2011, Ms. Johnston testified that, in the recent past, she had been
fainting approximately twice a week and had passed out the day before.50 Although
she passes out more when she spends more time on her feet,51 she has passed out

41

Rec. Doc. 5-1 at 293-294.

42

Rec. Doc. 5-1 at 294.

43

Rec. Doc. 5-1 at 37, 300.

44

Rec. Doc. 5-1 at 303.

45

Rec. Doc. 5-1 at 36.

46

Rec. Doc. 5-1 at 34, 293.

47

Rec. Doc. 5-1 at 298.

48

Rec. Doc. 5-1 at 52.

49

Rec. Doc. 5-1 at 303.

50

Rec. Doc. 5-1 at 40.

51

Rec. Doc. 5-1 at 41.
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while lying down.52 She described her condition as “scary”53 and described her
existence as boring for a person her age.54 She expressed concern about being a
burden on her parents.55 In 2011, the claimant testified that she would like to be able
to complete her education and pursue employment in a counseling field.56 In 2014,
however, she stated that she had no plans for future employment.57
In September 2014, the claimant was taking twelve prescription medications:
Clonazepam, Savella, Clonidine, Florinef, Meclinzine, Mag-oxide, Butalbital,
Phernergan, Temazepam, Hydroxyzinepam, Trazadone, Tramadol, plus bi-weekly
vitamin B12 injections.58
The claimant treats with Dr. Charles Thompson, an internist who specializes
in the treatment of autonomic diseases and has the same condition that the claimant
does. The claimant also treats with a general practitioner, Dr. Sunshine Little. At the
time of the hearing, Dr. Thompson was on medical leave, and approximately six

52

Rec. Doc. 5-1 at 42.

53

Rec. Doc. 5-1 at 42.

54

Rec. Doc. 5-1 at 41.

55

Rec. Doc. 5-1 at 36.

56

Rec. Doc. 5-1 at 36-37.

57

Rec. Doc. 5-1 at 294.

58

Rec. Doc. 5-1 at 469.
-8-

appointments with him were canceled in the prior two years.59 The claimant was
attempting to locate another specialist to take over her care.60
The claimant’s mother testified that she has witnessed the claimant passing out,
having seizures, and having memory loss.61 She reported that the seizures can be as
often as once or twice a week.62 The first time she observed the claimant passing out,
she was about nine years old.63 The claimant reported to Dr. Thompson that she first
began having symptoms of dysautonomia at age fifteen. At some point before March
7, 2007, she was diagnosed with this disorder and the associated disorder called
postural orthostatic tachycardia syndrome by a neurologist who performed a
diagnostic tilt table test.64 When the claimant first saw Dr. Thompson on March 7,
2007,65 he reviewed her medical records, reviewed the results of the tilt table test,
obtained a complete medical history, and examined Ms. Johnston. His impression
was that she had dysautonomia, tachycardia, and fatigue.

59

Rec. Doc. 5-1 at 290-291.

60

Rec. Doc. 5-1 at 297, 302.

61

Rec. Doc. 5-1 at 50.

62

Rec. Doc. 5-1 at 51.

63

Rec. Doc. 5-1 at 54.

64

Rec. Doc. 5-1 at 44.

65

Rec. Doc. 5-1 at 216-218.
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Ms. Johnston saw Dr. Thompson again on May 14, 2007,66 August 13, 2007,67
September 24, 2007,68 March 17, 2008,69 October 7, 2009,70 May 4, 2011,71 March 29,
2012,72 and May 29, 2012.73 In his treatment notes, Dr. Thompson recorded that Ms.
Johnston was experiencing marked and extreme fatigue, marked exercise intolerance,
syncope (fainting), dizziness, lightheadedness, nausea, tachycardia (rapid heartbeat),
palpitations, visual changes (including graying out and tunnel vision), tremulousness,
proximal muscle weakness, chest discomfort, shortness of breath, gastrointestinal
problems, difficulty concentrating, joint pain, stiffness, arthritis, and muscle pain. In
October 2009, he noted that she had a very unsteady gait.
On June 18, 2007, Dr. Thompson wrote a letter74 explaining Ms. Johnston’s
diagnosis, as follows:

66

Rec. Doc. 5-1 at 213-215.

67

Rec. Doc. 5-1 at 210-212.

68

Rec. Doc. 5-1 at 198-200.

69

Rec. Doc. 5-1 at 194-196.

70

Rec. Doc. 5-1 at 189-191.

71

Rec. Doc. 5-1 at 46; Rec. Doc. 5-1 at 263-265.

72

Rec. Doc. 5-1 at 480-483.

73

Rec. Doc. 5-1 at 477-479.

74

Rec. Doc. 5-1 at 192.
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Ms. Johnston has been diagnosed with dysautonomia. This
is an episodic disorder that causes dizziness, nausea,
dramatic spikes and drops in blood pressure, tachycardia,
palpitation, weakness, intolerance to extremes in heat or
cold weather, exercise intolerance, and many other related
problems. Virtually all of these patients experience periods
of remission, then suddenly find themselves unable to
function due to a severe exacerbation of their symptoms.
There is no cure to this benign, but disabling, condition.
Eventually, after months or usually many years, it could
resolve itself. There is simply no way to predict what will
happen, or when.
On March 17, 2008, Dr. Thompson opined that Ms. Johnston was unable to
hold even a part-time job due to exercise intolerance, pre-syncope,
dizziness/lightheadedness, tachycardia, palpitations, nausea, visual disturbances,
tremulousness, muscle weakness, chest discomfort, shortness of breath, severe
headaches, and sporadic gastrointestinal disturbances.75 On February 17, 2009, Dr.
Thompson again expressed his opinion that Ms. Johnston was not able to sustain any
significant employment due to her symptoms.76
On April 16, 2010, Dr. Thompson completed an attending physician’s
statement for Ms. Johnston’s health insurance provider,77 noting that she had been
diagnosed with dysautonomia and postural orthostatic hypotension since at least
75

Rec. Doc. 5-1 at 486.

76

Rec. Doc. 5-1 at 193.

77

Rec. Doc. 5-1 at 261.
-11-

2007. He stated that she had a positive tilt table test and exhibits all symptoms of
dysautonomia. He described her symptoms as including near syncope within the first
ten minutes of an autonomic function test, fatigue, heat intolerance, nausea,
palpitation, and chest pain. He stated that she cannot use her arms above her head,
cannot be exposed to heat or cold, and cannot lift more than twenty-five pounds.
On May 4, 2011, Dr. Thompson completed a medical source statement of
ability to do work-related activities.78 He stated that, based upon his medical
knowledge, clinical findings, and the claimant’s medical records, the claimant can sit
for only thirty minutes at a time without interruption, can stand or walk for only five
to ten minutes at a time without interruption, can sit only two hours out of an eighthour day, and can stand or walk for only one hour out of an eight-hour day. He noted
that she requires the use of a cane to ambulate, needs to elevate her legs intermittently
to relieve her symptoms, would need to take hourly breaks during the work day
because of pain, fatigue, tremors enhanced by stress, passing out, near-passing out,
palpitations, tachycardia, headaches, and nausea. He also opined that she would
likely miss work or need to leave work early at least once a week because of her
symptoms. Dr. Thompson also prescribed a wheelchair.79

78

Rec. Doc. 5-1 at 263-264.

79

Rec. Doc. 5-1 at 265.
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On July 26, 2010, the claimant was examined by Dr. Scott C. Chapman at the
request of Disability Determination Services.80

Dr. Chapman’s impression is

consistent with that of Dr. Thompson. He found that the claimant has dysautonomia,
which he stated “is a fairly poorly understood disease which causes recurring
symptoms such as loss of consciousness and extreme fatigue.” He noted that the
claimant takes “multiple medications which have reduced the severity of her
symptoms.” He also said that because she experiences sudden and recurring loss of
consciousness, the claimant needs to follow precautions similar to those followed by
seizure patients by avoiding any type of high risk environments.
On June 25, 2011, the claimant was seen in the emergency room at Opelousas
General Hospital for complaints of weakness and dizziness with vomiting and
headache.81 She had trouble walking and “clear cut positional vertigo.” Resting
tachycardia was noted.

She was given IV medications and diagnosed with

fibromyalgia, moderate tachycardia, migraine headache, benign positional vertigo,
dehydration, vomiting, and urinary tract infection.

She was discharged with

prescriptions for Antivert (for vertigo), Fioricet (for headache), Phenergan (for
nausea), and Macrobid (for urinary tract infection). Dr. Thompson mentioned this

80

Rec. Doc. 5-1 at 224-227.

81

Rec. Doc. 5-1 at 488-506.
-13-

hospital visit in his treatment notes of March 19, 2012. At that time, Dr. Thompson
also discussed the claimant’s inability to tolerate some of the medications he
prescribed and the difficulty of finding medications that might improve her
symptoms. He opined that attempting to work would markedly exacerbate her
symptoms. He stated a similar opinion in his treatment note of May 29, 2012.
The claimant saw Dr. Little, her family physician, on August 11, 2014.82 At
that time, she was experiencing generalized body aches and she had swollen lymph
nodes. She was diagnosed acute lymphadenitis, malaise, B12 deficiency, and pyuria.
The claimant returned to see Dr. Little on September 11, 2014.83 At that time,
she requested follow-up care for her dysautonomia in light of Dr. Thompson’s
medical leave. Although she denied any specific complaints, she was tachycardic and
requested medication management until a new specialist could be found.
ANALYSIS
A.

STANDARD

OF

REVIEW

Judicial review of the Commissioner's denial of disability benefits is limited
to determining whether substantial evidence supports the decision and whether the

82

Rec. Doc. 5-1 at 517-537.

83

Rec. Doc. 5-1 at 508-516.
-14-

proper legal standards were used in evaluating the evidence.84 “Substantial evidence
is more than a scintilla, less than a preponderance, and is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”85 Substantial
evidence “must do more than create a suspicion of the existence of the fact to be
established, but ‘no substantial evidence’ will only be found when there is a
‘conspicuous absence of credible choices' or ‘no contrary medical evidence.’”86
If the Commissioner's findings are supported by substantial evidence, then they
are conclusive and must be affirmed.87 In reviewing the Commissioner's findings, a
court must carefully examine the entire record, but refrain from reweighing the
evidence or substituting its judgment for that of the Commissioner.88 Conflicts in the
evidence and credibility assessments are for the Commissioner to resolve, not the

84

Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Martinez v. Chater, 64 F.3d
172, 173 (5 Cir. 1995).
th

85

Villa v. Sullivan, 895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164
(5 Cir. 1983)).
th

86

Hames v. Heckler, 707 F.2d at 164 (quoting Hemphill v. Weinberger, 483 F.2d 1137.
1139 (5 Cir. 1973), and Payne v. Weinberger, 480 F.2d 1006, 1007 (5th Cir. 1973)).
th

87

42 U.S.C. § 405(g); Martinez v. Chater, 64 F.3d at 173; Carey v. Apfel, 230 F.3d 131,
135 (5 Cir. 2000).
th

88

Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Villa v. Sullivan, 895 F.2d at
1021; Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Carey v. Apfel, 230 F.3d at 135; Boyd v.
Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
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courts.89 Four elements of proof are weighed by the courts in determining if
substantial evidence supports the Commissioner's determination: (1) objective
medical facts, (2) diagnoses and opinions of treating and examining physicians, (3)
the claimant's subjective evidence of pain and disability, and (4) the claimant's age,
education, and work experience.90
B.

ENTITLEMENT

TO

BENEFITS

Every individual who meets certain income and resource requirements, has
filed an application for benefits, and is determined to be disabled is eligible to receive
Supplemental Security Income (“SSI”) benefits.91
The term “disabled” or “disability” means the inability 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 twelve months.”92 A
claimant is determined to be disabled only if his physical or mental impairments are
so severe that he is unable to not only do his previous work, but cannot, considering

89

Martinez v. Chater, 64 F.3d at 174.

90

Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991); Martinez v. Chater, 64 F.3d at

91

42 U.S.C. § 1382(a)(1) & (2).

92

42 U.S.C. § 1382c(a)(3)(A).

174.

-16-

his age, education, and work experience, participate in any other kind of substantial
gainful work which exists in significant numbers in the national economy, regardless
of whether such work exists in the area in which the claimant lives, whether a specific
job vacancy exists, or whether the claimant would be hired if he applied for work.93
C.

EVALUATION PROCESS

AND

BURDEN

OF

PROOF

The Commissioner uses a sequential five-step inquiry to determine whether a
claimant is disabled. At step one, a claimant who is working and engaging in
substantial gainful activity will not be found disabled regardless of medical findings.
At step two, a claimant without a severe impairment will not be found disabled. At
step three, an individual who meets or equals an impairment listed in the regulations
at 20 C.F.R. Part 404, Subpart P, Appendix 1 will be considered disabled without
consideration of vocational factors. At step four, an individual who is capable of
performing the work he has done in the past will not be found disabled. Finally, at
step five, if an individual's impairment precludes him from performing his past work,
other factors including age, education, past work experience, and residual functional
capacity will be considered to determine if he can perform any other work.94

93

42 U.S.C. § 1382c(a)(3)(B).

94

20 C.F.R. § 404.1520; see, e.g., Wren v. Sullivan, 925 F.2d at 125; Perez v. Barnhart,
415 F.3d 457, 461 (5th Cir. 2005); Masterson v. Barnhart, 309 F.3d 267, 271-72 (5th Cir. 2002);
Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).
-17-

Before going from step three to step four, the Commissioner assesses the
claimant's residual functional capacity95 by determining the most the claimant can still
do despite his physical and mental limitations based on all relevant evidence in the
record.96 The claimant's residual functional capacity is used at the fourth step to
determine if he can still do his past relevant work and at the fifth step to determine
whether he can adjust to any other type of work.97
The claimant bears the burden of proof on the first four steps.98 At the fifth
step, however, the Commissioner bears the burden of showing that the claimant can
perform other substantial work in the national economy.99 This burden may be
satisfied by reference to the Medical-Vocational Guidelines of the regulations, by
expert vocational testimony, or by other similar evidence.100 If the Commissioner
makes the necessary showing at step five, the burden shifts back to the claimant to

95

20 C.F.R. § 404.1520(a)(4).

96

20 C.F.R. § 404.1545(a)(1).

97

20 C.F.R. § 404.1520(e).

98

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
99

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
100

Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
-18-

rebut this finding.101 If the Commissioner determines that the claimant is disabled or
not disabled at any step, the analysis ends.102
D.

THE ALJ’S FINDINGS

AND

CONCLUSIONS

In this case, the ALJ determined, at step one, that the claimant has not engaged
in substantial gainful activity since May 13, 2010, the application date.103 This
finding is supported by the evidence in the record.
At step two, the ALJ found that the claimant has the following severe
impairments: dysautonomia and anxiety/somatoform disorder.104 This finding is
supported by evidence in the record.
At step three, the ALJ found that the claimant has no impairment or
combination of impairments that meets or medically equals the severity of a listed
impairment.105 The claimant does not challenge this finding.
The ALJ found that the claimant has the residual functional capacity to perform
a full range of work at all exertional levels except that the claimant is unable to work
101

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
102

Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992), citing Johnson v. Bowen, 851
F.2d 748, 751 (5th Cir. 1988). See, also, 20 C.F.R. § 404.1520(a)(4).
103

Rec. Doc. 5-1 at 271.

104

Rec. Doc. 5-1 at 271.

105

Rec. Doc. 5-1 at 271.
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around hazards such as dangerous machinery or unprotect heights and is unable to
perform complex work.106 The claimant challenges this finding.
At step four, the ALJ found that the claimant has no relevant past work.107 This
finding is supported by the evidence in the record.
At step five, the ALJ found that the claimant was not disabled from May 13,
2010, the date on which she filed her application for benefits, through January 9,
2015, the date of the decision, because there are jobs in the national economy that she
can perform.108 The claimant challenges this finding.
E.

THE ALLEGATIONS

OF

ERROR

The claimant contends that the Commissioner erred in finding her not disabled.
More particularly, she contends that the ALJ erred in failing to give controlling
weight to her treating physician’s medical opinions and in evaluating her residual
functional capacity.
F.

THE ALJ ERRED IN FAILING
THOMPSON’S OPINIONS

TO

GIVE CONTROLLING WEIGHT

TO

DR.

In the ALJ’s first ruling, he discounted Dr. Thompson’s opinions on the basis
that the claimant did not see Dr. Thompson more frequently and on the basis that Dr.
106

Rec. Doc. 5-1 at 272.

107

Rec. Doc. 5-1 at 275.

108

Rec. Doc. 5-1 at 276.
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Thompson’s opinions were not supported by objective medical evidence. The Court
held that the ALJ’s findings were erroneous and remanded the matter to the
Commissioner with instructions to either give Dr. Thompson’s opinions controlling
weight or set forth good cause for not doing so. In his more recent ruling, the ALJ
considered the opinions that Dr. Thompson set out in a Medical Source Statement
dated May 4, 2011 and in a letter dated March 17, 2008. The ALJ gave no weight to
the 2011 Medical Source Statement because “this opinion of Dr. Thompson is not
accompanied by progress notes or examinations to support these limitations.”109 The
ALJ gave little weight to Dr. Thompson’s letter of March 2008 because “there are no
progress notes or examination results accompanying that support this degree of
limitation.”110 The ALJ also noted that Dr. Thompson’s opinions were based on the
claimant’s allegations and reports of symptoms, which the ALJ found not to be
credible.111 Additionally, the ALJ criticized the claimant for not seeking more
frequent medical treatment.112

109

Rec. Doc. 5-1 at 274.

110

Rec. Doc. 5-1 at 275.

111

Rec. Doc. 5-1 at 274, 275.

112

Rec. Doc. 5-1 at 274.
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The claimant again argues that the ALJ erred in failing to give Dr. Thompson’s
medical opinions controlling weight, and this Court agrees. The ALJ has sole
responsibility for determining the claimant's disability status.113 While a treating
physician’s opinions are not determinative of disability, the opinion of a treating
physician who is familiar with the claimant's impairments, treatments, and responses
should be accorded great weight by the ALJ in determining disability.114 In fact,
when a treating physician's opinion regarding the nature and severity of an
impairment is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
the record, the ALJ must give that opinion controlling weight.115 If an ALJ declines
to give controlling weight to a treating doctor’s opinion, he may give the opinion little
or no weight, but only after showing good cause for doing so.116 Good cause may be
shown if the treating physician’s opinion is conclusory, unsupported by medically
acceptable clinical laboratory diagnostic techniques, or is otherwise unsupported by

113

Newton v. Apfel, 209 F.3d at 455.

114

Pineda v. Astrue, 289 Fed. App’x 710, 712-713 (5th Cir. 2008), citing Newton v.
Apfel, 209 F.3d at 455.
115

20 C.F.R. § 404.1527(c)(2). See, also, Loza v. Apfel, 219 F.3d at 393.

116

Thibodeaux v. Astrue, 324 Fed. App’x 440, 443-44 (5th Cir. 2009).
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the evidence.117 Before declining to give any weight to the opinions of a treating
doctor, an ALJ must also consider the length of treatment by the physician, the
frequency of his examination of the claimant, the nature and extent of the doctorpatient relationship, the support provided by other evidence, the consistency of the
treating physician’s opinion with the record, and the treating doctor’s area of
specialization, if any.118
Dr. Thompson has treated Ms. Johnston since March 2007, and saw her at least
nine times between March 2007 and May 2012, a period of five years. A physician
qualifies as a treating source if the claimant sees the physician with a frequency
consistent with accepted medical practice for the type of treatment and/or evaluation
required for the claimant’s medical conditions.119 No evidence was presented to
establish how frequently a patient with dysautonomia should be seen by her
physician. In this case, the claimant saw Dr. Thompson, who is located in Pensacola,
Florida, more frequently when she lived in Alabama and less frequently after she
moved to Louisiana. The claimant also had difficulty scheduling appointments with
Dr. Thompson because, like the claimant, Dr. Thompson suffers with dysautonomia,

117

Thibodeaux v. Astrue, 324 Fed. App’x at 443-44.

118

Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001); Newton v. Apfel, 209 F.3d at 456.

119

Huet v. Astrue, 375 Fed. App’x 373, 376 (5th Cir. 2010), citing 20 C.F.R. § 404.1502.
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has had other health problems, and was on medical leave at times. Dr. Thompson
noted, however, that he has been in touch with the claimant by telephone during times
when he has been unable to schedule appointments.120 The claimant has been looking
for another treating physician but dysautonomia is such an uncommon disorder that
she has had difficulty finding another doctor. In fact, she testified that even the
neurologist who originally diagnosed her condition declined to treat her because he
was not sufficiently familiar with the disorder.121
This Court finds that the length of the claimant’s treatment with Dr. Thompson,
the frequency of Dr. Thompson’s examination of the claimant, and the nature and
extent of the doctor-patient relationship are sufficient to entitle his opinions to the
weight customarily given to a treating physician.
The ALJ gave great weight to the opinions of Dr. Chapman. It is undisputed
that Dr. Thompson is a specialist in treating dysautonomia, and the record contains
no evidence that Dr. Chapman has any such expertise. A specialist’s opinion is
generally accorded greater weight than that of a nonspecialist.122 Therefore, if Dr.
Thompson’s opinions differed from Dr. Chapman’s, Dr. Thompson’s would be

120

Rec. Doc. 5-1 at 480.

121

Rec. Doc. 5-1 at 36.

122

Newton v. Apfel, 209 F.3d at 455.
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entitled to greater weight. In this case, however, Dr. Chapman’s opinions are not
significantly different from Dr. Thompson’s. He too found that the claimant has
dysautonomia, and he opined that she should observe precautions similar to those for
seizure patients, including avoiding any high risk environments due to the possibility
of sudden and recurring loss of consciousness. He expressed no opinion as to
whether the claimant can or cannot work. He did attach an orthopedic range of
motion analysis to his report, but there is no indication that it is helpful to
determining the claimant’s functionality. In summary, Dr. Chapman offered no
opinions that refuted any of Dr. Thompson’s opinions. Dr. Thompson’s opinions
should, therefore, be given greater weight than Dr. Chapman’s.
Dr. Thompson’s opinions have been consistent across the entire time period
that he has treated the claimant. The ALJ discounted Dr. Thompson’s opinions from
March 2008 and May 2011 but failed to mention Dr. Thompson’s consistent
assessment of the claimant’s functional impairments in April 16, 2010 and May 29,
2012. Thus, the ALJ failed to note that Dr. Thompson has, throughout the time that
he has been treating the claimant, consistently assessed her functionality.
Finally, the ALJ discounted Dr. Thompson’s opinions because they were not
supported by contemporaneous progress notes or examinations. This ignores the fact
that the claimant’s condition was diagnosed with the use of a tilt table test that
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objectively determines whether the condition exists. It also ignores the fact that Dr.
Thompson examined the claimant on nine occasions between March 2007 and May
2012 and prescribed various medications to treat her symptoms on each of those
occasions. Tachycardia, one of the symptoms of the claimant’s condition, was
present upon examination by Dr. Thompson on March 7, 2007, September 24, 2007,
March 17, 2008, October 7, 2009, and March 29, 2012. It was also present when the
claimant was examined in the emergency room of Opelousas General Hospital in June
2011 and when the claimant was examined by Dr. Little in September 2014.
Most important, there is no evidence in the record that contradicts Dr.
Thompson’s findings or his opinions. Like Dr. Thompson, Dr. Chapman found that
Ms. Johnston suffers with dysautonomia. Unlike Dr. Thompson, however, Dr.
Chapman did not evaluate Ms. Johnston’s functional capacity except to advise that
she avoid any type of high risk environment due to the sudden and recurring loss of
consciousness. Although an orthopedic range of motion analysis is attached to Dr.
Chapman’s report, it is unclear what significance such an evaluation has with regard
to a patient with Ms. Johnston’s disorder. Dr. Thompson’s opinions are not
conclusory, they are not unsupported by medically acceptable clinical laboratory
diagnostic techniques, and they are not otherwise unsupported by the evidence.
Accordingly, this Court finds that the ALJ failed to show good cause for discounting
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Dr. Thompson’s opinions and, for that reason, failed to apply the proper legal
standard when deciding to reject the opinions of the claimant’s treating physician.
G.

THE ALJ ERRED IN EVALUATING THE CLAIMANT’S RESIDUAL FUNCTIONAL
CAPACITY
The claimant argues that the ALJ erred in evaluating her residual functional

capacity by failing to address her nonexertional impairments. Dr. Chapman stated
that dysautonomia is characterized by “extreme fatigue.”123 In his most recent
treatment note, Dr. Thompson stated that the claimant has marked fatigue. In March
2008, he described dysautonomia as “ very fatiguing condition” and stated that the
claimant’s fatigue interferes with activities of daily living.124 In April 2016, Dr.
Thompson included fatigue among the factors indicative of the claimant’s
dysautonomia.125 In May 2011, Dr. Thompson identified fatigue as one of the factors
relevant to the claimant’s employability.126 The claimant testified at both hearings
with regard to her chronic fatigue. The ALJ mentioned fatigue in evaluating the
claimant’s residual functional capacity, but failed to address how chronic fatigue, a
nonexertional impairment, impacts the claimant’s residual functional capacity.

123

Rec. Doc. 5-1 at 227.

124

Rec. Doc. 5-1 at 486.

125

Rec. Doc. 5-1 at 261.

126

Rec. Doc. 5-1 at 264.
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Dr. Thompson opined that Ms. Johnston can sit for only thirty minutes at a
time, can stand or walk for only five to ten minutes at a time, can sit for only two
hours out of an entire work day, and can stand or walk for only one hour out of an
entire work day.127 But the ALJ found that Ms. Johnston has the residual functional
capacity to perform a full range of work at all exertional levels with the exception that
she is precluded from working at unprotected heights and around hazardous
machinery. This finding is incompatible with Dr. Thompson’s opinions and fails to
take into account the claimant’s nonexertional impairments. The ALJ further found
that Ms. Johnston is not capable of returning to her prior work as a sales clerk but is
capable of performing other jobs that exist in the national economy.128 This
conclusion is inconsistent with the vocational expert’s testimony that dizzy spells or
fatigue as described by the claimant would preclude her from being employable as
would passing out, nearly passing out, palpitation, or tachycardia if they necessitated
unscheduled breaks during the work day.129

127

Rec. Doc. 5-1 at 262.

128

Rec. Doc. 5-1 at 19-20.

129

Rec. Doc. 5-1 at 306-307.
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An ALJ is required to make credibility determinations,130 and the ALJ's
credibility determinations are entitled to great deference.131 But it is improper for an
ALJ to rely upon his own unsupported opinion as to the limitations presented by the
applicant's medical conditions.132 Further, an ALJ is obligated to consider subjective
evidence of nonexertional ailments.133 The claimant’s testimony concerning the
extent of her fatigue was not disputed, and Dr. Chapman’s analysis of the claimant’s
functionality failed to address the effect that chronic fatigue has on the claimant. The
ALJ also either failed to fully consider the effect that the claimant’s nonexertional
impairments have on her ability to sustain employment or improperly evaluated her
credibility by discounting the effect of her nonexertional impairments without
justification. Accordingly, this Court concludes that the ALJ’s residual functional
capacity evaluation is not supported by substantial evidence in the record.

130

Stanridge-Salazar v. Massanari, 254 F.3d 70, at *2 (5th Cir. 2001).

131

Broadnax v. Barnhart, 54 F. App'x 406, at *1 (5th Cir. 2002); Newton v. Apfel, 209

F.3d at 459.
132

Williams v. Astrue, 355 Fed. App’x 828, 832 n. 6 (5th Cir. 2009); Ripley v. Chater,
67 F.3d at 557.
133

Beck v. Barnhart, 205 Fed. App'x 207, 212 (5th Cir. 2006), citing James v. Bowen,
793 F.2d 702, 706 (5th Cir. 1986).
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CONCLUSION

AND

RECOMMENDATION

For the reasons explained above, this Court finds that the Commissioner’s
ruling that Ms. Johnston is not disabled is not supported by substantial evidence and
was reached by the application of improper legal standards. This Court has the
power, under 42 U.S.C. § 405(g), to reverse a decision of the Commissioner of Social
Security with or without remanding the matter for rehearing. This matter was
previously remanded, and the Commissioner has again issued a ruling that was
reached by the applying improper legal standards and is not supported by substantial
evidence in the record. Accordingly,
IT IS ORDERED that the Commissioner’s decision is REVERSED pursuant
to the fourth sentence of 42 U.S.C. § 405(g), and Supplemental Security Income
benefits shall be awarded from August 12, 2006 forward.
Signed in Lafayette, Louisiana, this 18th day of March 2016.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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