Blue v. Commissioner of Social Security
Filing
15
MEMORANDUM OPINION. Signed by Magistrate Judge S. Allan Alexander on 04/12/16. (sd)
EcIN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JANICE LAURIE BLUE
PLAINTIFF
V.
CIVIL ACTION NO.: 1:15-CV-129-SAA
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
MEMORANDUM OPINION
Plaintiff Janice Laurie Blue has appealed under 42 U.S.C. § 405(g) the decision of the
Commissioner of Social Security denying her applications for disability insurance benefits (DIB)
under Title II of the Social Security Act and for Supplemental Security Income (SSI) under Title
XVI . Docket 7, p. 202-212. Blue filed her applications on December 5, 2011, asserting an
onset date of July 15, 2010. Docket 7, p. 202, 206. At the hearing in front of the ALJ on July
13, 2013, plaintiff’s counsel moved to amend the onset date to October 30, 2009, and the ALJ
granted the motion. Docket 7, p. 58. The Commissioner denied Blue’s claim initially and on
reconsideration. Docket 7, p. 132, 143. Blue challenged the denial of benefits and filed a
request for a hearing before an Administrative Law Judge (ALJ). Docket 7, p. 149. She was
represented by an attorney at the administrative hearing on July 31, 2013. Docket 7, p. 53-110.
The ALJ issued an unfavorable decision on January 31, 2014. Docket 7, p. 26-52. The Appeals
Council denied her request for review. Docket 7, p. 1-5. Plaintiff timely filed the instant appeal,
and it is now ripe for review. Because both parties have consented to have a magistrate judge
conduct all the proceedings in this case under 28 U.S.C. § 636(c), the undersigned has the
authority to issue this opinion and the accompanying final judgment.
I. FACTS
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Plaintiff was born on April 14, 1959, was 50-years-old on the date of the amended
alleged onset date and was 54-years-old on the date of the hearing before the ALJ, both of which
are classified as “closely approaching advanced age.” Docket 7, p. 93. However, when the ALJ
issued his unfavorable decision on January 31, 2014, plaintiff was eight weeks away from her
55th birthday, at which time her classification would have changed to one of “advanced age”
under the Medical-Vocational Guideline (Grid) Rules. Plaintiff has a college education and was
previously employed as (1) census enumerator – light exertional level, unskilled; (2) security
guard – light exertional job, semiskilled; (3) office clerk – light exertional level, semiskilled; (4)
technical support supervisor – sedentary exertional level, skilled; (5) tax preparer – sedentary
exertional level, semiskilled; and (6) merchandiser – medium exertional level, skilled. Docket 7,
pp. 93-94. Plaintiff contends she became disabled before her application as a result of psoriatic
arthritis, degenerative disc disease, and lumbar and cervical radiculopathy. Docket 7, p. 254.
The ALJ found that the plaintiff had “severe impairments” of back and neck disorders, a
psoriatic disorder, depressive disorders, and polysubstance abuse and dependence, but that the
impairments did not meet or equal a listing impairment in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Docket 7, p. 32. He first found that with her polysubstance abuse the plaintiff
retained the Residual Functional Capacity (RFC) to:
perform a range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b).
She can lift and carry 20 pounds occasionally and 10 pounds frequently. She can
stand and walk for six hours in an eight-hour workday and sit for six hours in an
eight-hour workday. She can occasionally climb, balance, stoop, crouch, kneel,
and crawl. The claimant at present regarding mental issues is unable to maintain
mental attention and concentration for two-hour periods, she is unable to interact
with supervisors or co-workers, and she is unable to deal with work stresses.
Docket 7, p. 34.
The ALJ then went through the five-step sequential process for a second time and issued
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a second RFC, concluding that if plaintiff ceased her polysubstance abuse, she
at present would retain the physical residual functional capacity to perform a
range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). She
could lift and carry 20 pounds occasionally and 10 pounds frequently. She could
stand and walk for six hours in an eight-hour workday. She could occasionally
climb, balance, stoop, crouch, knee, and crawl. The claimant regarding mental
issues if she ceased the substance abuse would retain the ability to understand
and follow directions adequately to complete routine repetitive tasks for at least
simple work for two-hour blocks of time in an eight-hour day. She would be
capable of at least a basic level of interaction with co-workers but would
probably function better in a work environment with limited interaction with the
general public. She could adapt to work changes if gradual, infrequent, and not
major in scope and with these modifications she could complete a workweek
without excessive interference from psychological issues.
Docket 7, p. 39.
In light of testimony by a vocational expert at the hearing, the ALJ found plaintiff
capable of performing jobs that exist in significant numbers in the national economy, including a
laundry folder, warehouse checker and production inspector if the claimant stopped her polysubstance abuse. Docket 7, p. 45. Thus, he concluded, the plaintiff was not disabled.
Plaintiff alleges the ALJ erred in (1) finding that alcohol or drugs were a material factor
in the plaintiff’s disability; (2) effectively rejecting the treating physician opinion of Dr. Parsons;
(3) evaluating of the materiality of plaintiff’s alleged poly-substance abuse; and (4) failing to
recognize that even under his RFC the plaintiff would have met the medical vocational
guidelines for disability shortly after his decision. Docket 13, pp. 7, 11, 16, 17.
Although plaintiff raises these four issues as grounds for appeal, the undersigned is of the
opinion that the ALJ improperly relied upon the opinion of a non-examining reviewing physician
instead of affording proper weight to the opinions of the treating and examining physicians, and
also “played doctor” in order to reach his second RFC. The court finds that the decision of the
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ALJ is not supported by substantial evidence and did not uphold proper legal standards. This
case is remanded for the sole purpose of determining the amount of benefits to be awarded to the
plaintiff under the Act.
II.
EVALUATION PROCESS
In determining disability, the Commissioner, through the ALJ, is charged with working
through a five-step sequential evaluation process.1 The burden to prove disability rests upon
plaintiff through the first four steps of the process, and if plaintiff is successful in sustaining her
burden at each of the first four levels, the burden then shifts to the Commissioner at step five.2
First, the plaintiff must prove she is not currently engaged in substantial gainful activity.3
Second, the plaintiff must prove her impairment(s) are “severe” in that they “significantly limit []
[her] physical or mental ability to do basic work activities...”4 At step three the ALJ must
conclude that the plaintiff is disabled if she proves that her impairments meet or are medically
equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00114.09 (2010).5 Finally, at step five, the burden shifts to the Commissioner to prove that,
considering plaintiff’s residual functional capacity, age, education and past work experience, she
is capable of performing other work.6 If the Commissioner proves other work exists which
1
See 20 C.F.R. § 404.1520; 426.920.
2
Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).
3
20 C.F.R. § 404.1520(b); 416.920(b).
4
20 C.F.R. § 404.1520(c); 416.920(c).
5
20 C.F.R. § 404.1520(d); 416.920(e).
6
20 C.F.R. § 404.1520(g); 416.920(g).
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plaintiff can perform, plaintiff is then given the chance to prove that she cannot, in fact, perform
that work.7
III. STANDARD OF REVIEW
The court’s scope of review is limited. On appeal the court must consider whether the
Commissioner’s final decision is supported by substantial evidence and whether the correct legal
standards were applied.8 In making that determination, the court has the responsibility to
scrutinize the entire record.9 The court has limited power of review and may not reweigh the
evidence or substitute its judgment for that of the Commissioner,10 even if it finds the evidence
leans against the Commissioner’s decision.11 The Fifth Circuit has held that 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.”12 Conflicts in the evidence are for the
Commissioner to decide, and if there is substantial evidence to support the decision, it must be
affirmed even if there is evidence on the other side.13 The court’s inquiry is whether the record,
as a whole, provides sufficient evidence that would allow a reasonable mind to accept the ALJ’s
7
Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).
8
Crowley, 197 F.3d at 196, citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993); Villa v.
Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
9
Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983).
10
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988)
11
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); see also Harrell v. Bowen, 862
F.2d 471, 475 (5th Cir. 1988).
12
Crowley, 197 F.3d at 197 (citation omitted).
13
Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
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conclusions.14 “If supported by substantial evidence, the decision of the [Commissioner] is
conclusive and must be affirmed.”15
VI. DISCUSSION
The ALJ evaluated the claim using the Social Security Administration’s five-step
evaluation process. 20 C.F.R. 404.1520(a); 20 C.F.R. 416.920(a); see also Docket 7, pp. 31-35.
There, the ALJ determined that plaintiff met the insured status requirements of the Social
Security act through December 31, 2013 and had not engaged in substantial gainful activity since
her alleged onset date. Docket 7, pp. 31-32. He also found that plaintiff suffered from “severe”
impairments of back and neck disorders, psoriasis, depressive disorders, and polysubstance
abuse and dependence. Docket 7, 32. At step three, the ALJ concluded that claimant’s
impairments did not meet or medically equal the severity of a listed impairment. Docket 7, p.
32. At step four he found plaintiff had the residual functional capacity to perform a range of
light work but was unable to perform any of her past relevant work. Docket 7, pp. 34-36. At
step five, the ALJ initially determined that no jobs existed in significant numbers in the national
economy that the plaintiff could perform. Docket 7, p. 41.
As required by the applicable regulations, 20 C.F.R. §§ 404.1535, 416.935, the ALJ then
went through the five-step process for a second time, evaluating what RFC plaintiff would be
assigned if she stopped her polysubstance abuse. He found that if she did so, the remaining
limitations would still qualify plaintiff has having a “severe” impairment or combination of
14
Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crowley, 197 F.3d at 197.
15
Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994), citing Richardson, 402 U.S. at 390.
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impairments, but at step three he concluded that if the plaintiff stopped the polysubstance abuse,
her impairments would not meet or medically equal the severity of a listed impairment. Docket
7, p. 42. At step four he found that without her polysubstance abuse plaintiff would have the
RFC to perform a range of light work and was mentally capable of following directions and
performing routine repetitive tasks, though she was still unable to perform any of her past
relevant work. Docket 7, p. 43, 49. At step five, the ALJ determined that if plaintiff stopped her
polysubstance abuse, a significant number of jobs exists in the national economy that she could
perform, and she therefore was not disabled. Docket 7, p. 50.
Plaintiff argues on appeal that the ALJ improperly discounted the opinion of her treating
physician, Morris Parsons, M.D., in violation of 20 C.F.R. § 404.1527. Docket 13, p. 11. Dr.
Parsons submitted a medical source statement on July 19, 2013, assessing the plaintiff with the
ability to stand and walk for only two hours in an 8-hour work day and to sit for only two hours
in an 8-hour work day. Docket 7, p. 793. Dr. Parsons later expressed his opinion that plaintiff
would experience the same diagnoses and limitations contained in his medical source statement
even in the absence of drug and alcohol abuse. Docket 7, p. 800.
Plaintiff claims the ALJ failed to apply proper legal standards when he elected to assign
her treating physician’s opinion little weight, instead giving significant weight to Dr. Glenda
Scallorn’s mental residual functional capacity assessment. Docket 7, p. 447. Dr. Scallorn is a
state agency reviewing physician who concluded on January 5, 2010 (three and a half years
before Dr. Parsons’ medical source statement and without examining the plaintiff) that plaintiff
had some moderate mental limitations but retained the ability to understand and follow
directions adequately to complete routine repetitive tasks for at least simple work for two-hour
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blocks in an eight-hour day. Docket 7, p. 449. The Commissioner responds that the ALJ’s
decisions regarding the relative weights given to these opinions were substantially justified
because Dr. Parsons’s opinion was not supported by his own medical records, and the dramatic
discrepancies between his July 19, 2013, medical source statement and the objective medical
evidence provided good cause for the ALJ’s decision to discount it. Docket 14, p. 14.
The law regarding treatment of an opinion from a treating source or treating physician is
clear. Unless there is contrary medical evidence, an ALJ must afford a treating physician’s
opinion significant weight in making his determination of disability. Loza v. Apfel, 219 F.3d
378, 393 (5th Cir. 2000). Although a treating physician’s opinion is entitled to great weight, an
ALJ can discount the weight of that opinion for good cause. Leggett v. Chater, 67 F.3d 558, 566
(5th Cir. 1995), citing Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994); Greenspan v. Shalala, 38
F.3d 232, 237 (5th Cir. 1994). “[A]n ALJ may reject the opinion of the treating physician only if
the ALJ performs a detailed analysis of the treating physician’s views under the criteria set forth
in 20 C.F.R. § 404.1527(d)(2).” Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). Before
declining to give a treating physician’s opinion controlling weight there are several factors an
ALJ must consider:
(1) the physicians length of treatment of the claimant;
(2) the physician’s frequency of examination;
(3) the nature and extent of the treatment relationship;
(4) the support of the physician’s opinion afforded by the medical evidence of record;
(5) the consistency of the opinion with the record as a whole;
(6) the specialization of the treating physician.
Newton, 209 F.3d at 456; see also 20 C.F.R. § 404.1527(d)(2). When an ALJ elects not to grant
a treating physician’s opinion controlling weight he must provide appropriate explanations. See
Newton, 209 F.3d 448; see also 20 C.F.R. § 404.1527(d)(2); see also SSR 96-5p. Furthermore,
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the ALJ must evaluate the medical opinions with specific consideration of both the examining
relationship and the treatment relationship between the medical professional and the patient. 20
C.F.R. § 404.1527(c).16
In this case, the ALJ reviewed Dr. Parsons’s records and medical source statement from
July 19, 2013 and declared his reasons for not following his opinion. Docket 7, pp. 43-44.
However, the ALJ did not follow the criteria laid out in Newton or 20 C.F.R. § 404.1527(c).
Instead, he considered Dr. Parsons’s opinion and discussed the records but ultimately made
conclusory determinations that the doctor’s opinion was not supported by the objective medical
evidence or by the doctor’s “own medical records.” Docket 7, pp. 43-44.
16
20 C.F.R. § 404.1527(c). More specifically, the regulations provide the following explanation for how
those factors must be evaluated:
(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined
you than to the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations. If we find that a treating source’s opinion . . . is
well-supported . . . we will give it controlling weight. When we do not give the treating source’s opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(I) and (c)(2)(ii) of this section . . . in
determining the weight to give the opinion. We will always give good reasons in our notice of
determination or decision for the weight we give your treating source’s opinion.
(i) Length of the treatment relationship and the frequency of examination. Generally, the longer a treating
source has treated you and the more times you have been seen by a treating source, the more weight we will
give to the source’s medical opinions. When the treating source has seen you a number of times and long
enough to have obtained a longitudinal picture of your impairment, we will give the source’s opinion more
weight than we would give it if it were from a nontreating source.
(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has
about your impairment(s) the more weight we will give to the source’s medical opinion. We will look at
the
treatment the source has provided and at the kinds and extent of examinations and testing the source has
performed or ordered from specialists and independent laboratories . . . When the treating source has
reasonable knowledge of your impairment(s), we will give the source’s opinion more weight than we would
give it if it were from a nontreating source.
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The ALJ did not apply the proper legal standards, and his decision is therefore not
substantially justified. In declining to give the plaintiff’s treating physician controlling weight or
even significant weight without performing the required analysis under Newton, the ALJ
committed reversible error which requires remand. Newton, 209 F.3d at 456.
Having found that the ALJ improperly considered and weighed the opinion of Dr.
Parsons, the court now turns to the issue of whether the ALJ “played doctor” for purposes of
formulating his second RFC. Even though plaintiff did put on medical proof that she would be
disabled in the absence of her polysubstance abuse, the ALJ relied upon his own lay
interpretation of the medical records to reach his second RFC. No medical opinion in the record
provides the limitations that the ALJ established in his second RFC determination. Even though
the ALJ’s opinion did not have a basis in any medical finding which supports his conclusions
regarding plaintiff’s capabilities, and even though the plaintiff raised this important detail in her
memorandum brief, the Commissioner continues to do the same thing in this court that the ALJ
did – take on the role of a physician and try to reach a conclusion as to plaintiff’s capabilities
from the raw medical data.
Certainly, the responsibility of determining the plaintiff’s residual functional capacity
belongs to the ALJ, Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995); in making this
determination he must consider all the evidence in the record and determine the plaintiff’s ability
despite her physical and mental limitations. Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995).
The ALJ has considerable discretion in reviewing facts and evidence but, as a layman, he is not
qualified to interpret raw medical data in functional terms. Perez v. Secretary of Health and
Human Services, 958 F.2d 445, 446 (1st Cir. 1991) (citations omitted); see Richardson v. Perales,
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402 U.S. 389, 408 (1971) (upholding the use of testimony from vocational expert because the
ALJ is a layman). The ALJ may not establish physical limitations or lack of those limitations
without medical proof to support that conclusion. Patterson v. Astrue, 2008 WL 5104746, *4
(N.D. Miss. 2008), citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). “The ALJ’s
findings of fact are conclusive when supported by substantial evidence, 42 U.S.C. 405(g), but are
not conclusive when derived by ignoring evidence, misapplying the law or judging matters
entrusted to experts.” Nguyen v. Chater, 172. F.3d at 35.
The court has examined the record and, despite the ALJ’s inclusion of these findings in
his RFC, cannot locate evidence that any treating or examining physician ever stated plaintiff
was able to lift 20 pounds occasionally and 10 pounds frequently, stand and walk for six hours in
an 8-hour workday, occasionally climb, balance, stoop, crouch, knee, and crawl, and retain the
ability to understand and follow directions adequately to complete routine repetitive tasks for at
least simple work for 2-hour blocks of time in an 8-hour day. The ALJ clearly has meticulously
“cherry-picked” parts of several doctors’ assessments to create his own RFC, ignoring large
swaths of medical opinions and findings that did not suit his own opinion. The ALJ’s RFC is
tantamount to the ALJ “playing doctor,” a practice forbidden by law. See, e.g. Rohan v. Chater,
97 F.3d 966 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and make
their own independent medical findings.”).
As indicated by the Fifth Circuit, “an ALJ may not rely on [his] own unsupported
opinion as to the limitations presented by the applicant’s medical conditions.” Ripley v. Chater,
67 F.3d 552, 557-58 (5th Cir. 1995). This appears to be exactly what the ALJ did in this case. In
direct contradiction to the applicable case law, the ALJ established limitations without any
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medical proof to support those limitations, then, using those unsupported limitations, reached an
RFC based upon his own extrapolation of the medical records as to plaintiff’s ability to work, in
the process contradicting medical opinions of multiple medical experts. This process produced
an improper RFC and ultimately an improper evaluation of plaintiff’s ability to perform various
jobs by the VE, not to mention further delay and expense to all involved in this action.
IV. DETERMINATION OF BENEFITS
In determining whether to reverse the Commissioner’s final decision and remand for
further consideration or to grant benefits without further administrative review, the court must
look to the completeness of the record, the weight of the evidence in favor of the plaintiff, the
harm to the plaintiff that further delay might cause, and the effect of a remand delaying the
ultimate receipt of benefits by a deserving plaintiff. Social Security Law & Practice, §55.77, p.
129. In this case, the plaintiff has been very patient. She has been seeking benefits through the
administrative process for nearly seven years. The evidence in this case is clear. The plaintiff’s
treating physician concluded that, even in the absence of polysubstance abuse, the plaintiff
would still be disabled. Docket 7, p. 800. The court holds that because the evidence is
conclusive, an
award of benefits at this stage would be in the best interests of the plaintiff’s health and welfare
and will avoid further undue delay which would result upon remand for additional review. This
case is remanded for the sole purpose of determining the amount of benefits to be awarded to the
plaintiff under the Act.
V. PLAINTIFF’S REMAINING ARGUMENTS
Because the court has determined that the plaintiff is disabled under the Social Security
Act, and this action is being remanded for the sole purpose of determining the amount of benefits
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to be awarded to the plaintiff under the Act, the court need not address the merits of the
plaintiff’s remaining arguments at this time.
VI. CONCLUSION
For the foregoing reasons, the court finds that the decision of the ALJ is not supported
by substantial evidence and did not uphold proper legal standards. This case is remanded for the
sole purpose of determining the amount of benefits to be awarded to the plaintiff under the Act.
A final judgment in accordance with this memorandum opinion will issue this day.
Respectfully submitted, this the 12th day of April, 2016.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
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