Spearman v. Colvin
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge S. Allan Alexander on 2/3/15. (mhf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
DORETHIA SPEARMAN
PLAINTIFF
vs.
CIVIL ACTION NO. 3:14-CV-00090-SAA
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
MEMORANDUM OPINION
Dorethia Spearman has filed an appeal under 42 U.S.C. § 405(g) for judicial review of
the Social Security Commissioner’s decision ceasing her entitlement to disability insurance
benefits (DIB) under Section 223(f) of the Social Security Act. In a decision dated January 25,
2006,the Social Security Administration initially determined that plaintiff was disabled by the
medically determinable impairment of depression and entitled to DIB as of January 25, 2003.
Docket 7, p. 250, 252. On June 16, 2011, Commissioner performed a routine continuing
disability review of plaintiff’s disability and determined medical improvement had occurred, and
plaintiff was no longer disabled as of June 1, 2011. Id. at 255. Upon request for reconsideration,
the Administrative Law Judge (“ALJ”) upheld the Commissioner’s decision [Docket 12, p. 3],
and the Appeals Council denied plaintiff’s request for review on February 25, 2014. Docket 7,
p. 7. Plaintiff then timely appealed to this court for review. Docket 1.
Because both parties have consented to having a magistrate judge conduct all the
proceedings in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to
issue this opinion and the accompanying final judgment.
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I. FACTS
Plaintiff was born October 15, 1962. Docket 7, p. 274. The most recent favorable
decision finding plaintiff was disabled [the “Comparison Point Decision”] is the decision dated
January 25, 2006.1 Id. at 312-17. At the time of this Comparison Point Decision, plaintiff, who
was then 43 years old, was granted period of disability (“POD”) and DIB retroactively from
January, 25, 2003. See id. at 250. The impairment which led to her disability status in 2006 was
“major depression, recurrent, severe with psychotic features.” Id. at 316. After plaintiff
received DIB for several years, the Social Security Administration conducted a continuing
disability review to evaluate whether plaintiff continued to suffer from her original disability. Id.
at 324-28. The continuing disability review resulted in a finding that plaintiff was no longer
disabled as of June 1, 2011. Id. On December 13, 2013, the ALJ held that plaintiff’s disability –
and therefore her entitlement to DIB and POD – terminated as of June 1, 2011. Id. at 263.
The ALJ’s review of a decision to terminate DIB requires an eight-step sequential
evaluation process. See 20 C.F.R. § 404.1594. Through the use of this process, the ALJ made
several findings. Docket 7, p. 251-63. At the same time he found that plaintiff had experienced
medical improvement as of June 1, 2011 [Id. at 255], the ALJ also determined plaintiff suffers
from the medically determinable impairments of “disorders of the spine, depression, folliculitis,
dermatitis, mirgraine headache[s], pharyngitis, hypertension, vitamin D deficiency, eczema, and
anxiety disorders,” but that those impairments do not meet or medically equal the severity of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525 and
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The Comparison Point Decision is considered the point from which the Commissioner proceeds to decide
whether a current benefits recipient has experienced medical improvement such that the beneficiary is no longer
disabled.
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404.1526). Docket 7, p. 252-53. Relying upon vocational expert [VE] testimony and the record
as a whole, the ALJ determined plaintiff retains the Residual Functional Capacity (RFC) to
lift, carry, push, or pull 20 lbs. occasionally and 10 lbs. frequently
and to stand, walk, or sit for 6 hours of an 8-hour workday. The
claimant also can never climb ladders, ropes, or scaffolds; can
occasionally stoop; can perform routine and repetitive tasks; and can
perform work that requires occasional decision-making.
Id. at 258. The ALJ went on to find that plaintiff could perform the jobs of a buttoner, a burr
grinder, or a stuffer and consequently “was capable of making a successful adjustment to work
that existed in significant numbers in the national economy.” Id. at 263. In reaching his
decision, the ALJ assigned significance to suspected malingering in the claimant’s medical
records during cognitive function testing by a consultative psychological examiner. Id. at 255261. On February 25, 2014, the Appeals Council denied plaintiff’s request for review of the
ALJ’s decision [id. at 7-11], thus making the ALJ’s decision the final administrative decision for
purposes of judicial review. Id. at 15-33.
Plaintiff claims the ALJ erred by substituting his own judgment for that of medical
experts and by drawing improper inferences from plaintiff’s lack of mental health treatment
without properly investigating the circumstances. Docket 12, p. 3-4.
II. STANDARD OF REVIEW
It is well settled that this court’s review of the Commissioner’s decision is limited to two
inquiries: “(1) whether the decision is supported by substantial evidence on the record as a
whole, and (2) whether the Commissioner applied the proper legal standard.” Perez v. Barnhart,
417 F.3d 457, 461 (5th Cir. 2005); see also 42 U.S.C. 405(g); Ransom v. Heckler, 715 F.2d 989,
992 (5th Cir. 1983). Substantial evidence is “more than a scintilla, less than a preponderance, and
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is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999); see also Richardson v.
Perales, 402 U.S. 389, 401 (1971).
The Fifth Circuit has further stated that substantial evidence, “must do more than create a
suspicion of the existence of the fact to be established, but ‘no substantial evidence’ will be
found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical
evidence.’” Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988), quoting Hames v. Heckler, 707
F.2d 162, 164 (5th Cir. 1983). Thus, this court may not overturn the Commissioner’s decision if
it is supported by substantial evidence – “more than a mere scintilla” – and correctly applies the
law. Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2001); see also Anthony v. Sullivan, 954 F.2d
289, 292 (5th Cir. 1992).
Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence
is found to support the decision, the decision must be affirmed even if there is evidence on the
other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not re-weigh
the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner,
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence
preponderates against the Commissioner’s decision, Bowling v. Shalala, 36 F.3d 431, 434 (5th
Cir. 1994); Harrell, 862 F.2d at 475. If the Commissioner’s decision is supported by the
evidence, then it is conclusive and must be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.
1994).
The Fifth Circuit has explicitly addressed the scope of this court’s review of the
termination of a person’s benefits. See Taylor v. Heckler, 742 F.2d 253, 256 (5th Cir. 1984),
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citing Buckley v. Heckler, 739 F.2d 1047, 1048-49 (5th Cir. 1984). As noted in Buckley, even
though the burden of proving disability is on a Social Security claimant, “once evidence has been
presented which supports a finding that a given condition exists it is presumed in the absence of
proof to the contrary that the condition has remain unchanged.” 739 F. 2d at 1049, quoting
Weinberger v. Rivas, 475 F.2d 255, 258 (5th Cir. 1973). In other words, once benefits have been
awarded, the claimant is afforded a “presumption of continuing disability that requires the
Secretary to provide evidence” that the claimant’s condition has improved. Taylor, 742 F.2d at
255. In addition, the Commissioner must weigh the facts which formed the basis for the prior
determination of disability with “the [Commissioner]’s new evidence and any additional
evidence submitted by the claimant.” Id. Absent exceptions not relevant here, “a claimant’s
benefits may be terminated only if substantial evidence demonstrates both that ‘there has been
any medical improvement’ and that ‘the individual is now able to engage in substantial gainful
activity.’” Hallaron v. Colvin, 578 Fed. Appx. 350, 353 (5th Cir. 2014), citing 42 U.S.C.A. §
1382c(a)(4)(A). “Agency regulations define ‘medical improvement’ as ‘any decrease in the
medical severity of [a recipient’s] impairment(s) which was present at the time of the most recent
favorable medical decision that [ she was] disabled or continued to be disabled.’” Id. at 351-52,
quoting 20 C.F.R. § 404.1594(b)(1).
III. DISCUSSION
A. The Eight-Step Evaluation Process
The Social Security Administration may terminate benefits if the agency concludes, after
reviewing a claimant’s case, that the claimant’s impairment “has ceased, does not exist, or is not
disabling . . . .” 42 U.S.C.A. 423(f). In a typical social security case, where the issue is whether
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a claimant is disabled and should therefore be granted Social Security benefits in the first place,
the Commissioner (through an ALJ) applies a five-step sequential evaluation process. See 20
C.F.R. §§ 404.1520, 416.920 (2010). In cases such as this, however, where the Commissioner is
deciding whether to terminate existing benefits due to an alleged medical improvement, 20
C.F.R. § 404.1594(f) prescribes an eight-step evaluation process to determine
(1) whether claimant is engaging in substantial gainful activity;
(2) if not gainfully employed, whether the claimant has an impairment or combination of
impairments which meets or equals a listing;
(3) if impairments do not meet a listing, whether there has been medical improvement;
(4) if there has been medical improvement, whether the improvement is related to the
claimant’s ability to do work;
(5) if there is improvement related to claimant’s ability to do work, whether an exception
to medical improvement applies;
(6) if medical improvement is related to the claimant’s ability to do work or if one of the
first groups of exceptions to medical improvement applies, whether the claimant has a
severe impairment;
(7) if the claimant has a severe impairment, whether the claimant can perform past
relevant work; and
(8) if the claimant cannot perform past relevant work, whether the claimant can perform
other work.
The ALJ applied the eight-step analysis to plaintiff’s case. At step one, he determined
plaintiff had not engaged in any substantial work activity since the Comparison Point Decision.
Docket 7, p. 252. At step two, he found plaintiff had medically determinable impairments of
“disorders of the spine, depression, folliculitis, dermatitis, migraine headache[s], pharyngitis,
hypertension, vitamin D deficiency, eczema, and anxiety disorders,” but that these impairments
did not meet or medically equal a listing. Id. at 252-253. (emphasis added by the court).
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Proceeding to step three, the ALJ concluded that there had been a medical improvement,
demonstrated by “a decrease in medical severity of the impairment present at the time of the
[Comparison Point Decision]” and that “the evidence of record indicates that the claimant’s
depression now causes no more than mild or moderate limitations in several areas of mental
functioning.” Id. at 255.
At step four, the ALJ found plaintiff’s medical improvement was related to her ability to
work [id. at 257], a finding which dictated that the analysis skip to step six. See 20 C.F.R. §
404.1594(f)(4). At step six, the ALJ categorized plaintiff’s mental impairments and spinal
disorders qualified as severe, but found those impairments in combination did not significantly
limit claimant’s ability to perform a limited range of light work. Id. at 257-58. The ALJ also
concluded that plaintiff had the residual functional capacity (“RFC”) “to lift, carry, push, or pull
20 lbs. occasionally and 10 lbs. frequently and to stand, walk, or sit for 6 hours of an 8-hour
workday [to] never climb, ladders, ropes, or scaffolds; [to] occasionally stoop; [to] perform
routine and repetitive tasks; and [to] perform work that requires occasional decision-making.”
Id. at 258. At step seven, he found that plaintiff was unable to perform her past relevant work as
a sewing machine operator. Id. at 262. At the eighth and final step the ALJ found in light of
testimony from the VE that plaintiff was able to perform jobs as a buttoner, a burr grinder, or a
stuffer, of which there are reportedly 10,370 jobs in Mississippi and exponentially more in the
national economy. Id. at 263, 300-01.
B. Medical Improvement
Plaintiff claims the ALJ erred in substantiating the medical improvement claim by
substituting his own judgment for that of examining psychologists Dr. Whelan and Dr. Small and
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by failing to apply the proper legal standards. Docket 12, p. 3-4, 6. Making a determination of
medical improvement that terminates benefits requires an ALJ to provide “expert medical
evidence substantiating such a conclusion.” Groskreutz v. Barnhart, 108 Fed. Appx. 412, 417
(7th Cir. 2004); see also Loza v. Apfel, 219 F.3d 378, 393, 395 (5th Cir. 2000); 20 C.F.R. §
404.1594(c)(1) (“Medical improvement . . . is determined by a comparison of prior and current
medical evidence which must show that there have been changes (improvement) in the
symptoms, signs or laboratory findings associated with that impairment(s).”).
The ALJ assigned Dr. Whelan’s opinion “some weight,” but ultimately declined to adopt
it because he felt it was “an assessment of the impact of the claimant’s physical conditions,
which [were] outside Dr. Whelan’s area of expertise.” Docket 7, p. 261. Similarly, the ALJ
gave Dr. Small’s opinion little weight because he found it “inconsistent with the preponderance
of the evidence of record.” Id.
The law is clear that an ALJ “is not at liberty to make a medical judgment regarding the
ability or disability of a claimant to engage in gainful activity, where such inference is not
warranted by clinical findings.” Loza v. Apfel, 219 F.3d 378, 395 (5th Cir. 2000), citing Spencer
v. Schweiker, 678 F.2d 42, 45 (5th Cir. 1982). An ALJ may not “play doctor,” Chase v. Astrue,
458 Fed. Appx. 553, 556-57, or reach a medical conclusion without expert medical evidence
substantiating such a conclusion, Groskreutz v. Barnhart, 108 Fed. Appx. 412, 417 (7th Cir.
2004); see also Loza, 219 F.3d at 395; 20 C.F.R. § 404.1594(c)(1). Although the court is
sympathetic to the difficulties involved in performing a proper continuing disability review,
particularly when suspicions of a claimant’s malingering arise, an ALJ’s inability to make
medical conclusions without expert medical evidence remains the same.
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In this case, the ALJ referenced the plaintiff’s apparent lack of seeking dedicated mental
health treatment as evidence that her depression had improved and as detracting from her
credibility. Docket 7, p. 256. There is no question, however, that plaintiff has continually been
prescribed antidepressants by her treating physicians since her original diagnosis. See, e.g., id. at
p. 495-526, 668-79, 688-90, 716, 718. In addition, the ALJ relied on entries in her treatment
records from her medical doctor to find that a preponderance of the evidence of record
substantiated finding medical improvement of her depression. Docket 7, p. 261. He cited
claimant’s historical treatment records and “normal psychological statuses during many of her
treatment episodes,” to infer that “the limitations that the claimant reported are due to her alleged
physical problems rather than her depression.” Id.
On the surface, these findings seem to preclude a decision that claimant’s disability
continues. However, further review reveals that the records in question failed to provide
substantial justification for finding medical improvement or for terminating claimant’s disability.
First, there was no expert medical or psychological evidence to demonstrate that there has been
medical improvement of claimant’s initial listed disability – her depression. The law is clear: an
ALJ may not “play doctor,” (Chase v. Astrue, 458 Fed. Appx. 553, 556-57) or reach a medical
conclusion without expert medical evidence substantiating that conclusion. Groskreutz v.
Barnhart, 108 Fed. Appx. 412, 417 (7th Cir. 2004); see also Loza, 219 F.3d at 395; 20 C.F.R. §
404.1594(c)(1).
Although the ALJ claimed to rely on “a preponderance of the record” as evidence to
reach his finding that there has been medical improvement [Docket 7, p. 255-57], the treatment
records the ALJ cites as evidence that claimant’s condition has improved were created by health
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professionals during visits to them by plaintiff for treatment of illnesses or conditions other than
her depression. Many, many of these visits were based on plaintiff’s complaints of chronic pain,
which the doctors attempted to treat in various ways. Plaintiff has consistently sought relief
from her treating physician for her pain over many years. Her treating physicians were general
practitioners, urologists or neurologists, none of whom specialized in mental health, and the
purpose of plaintiff’s visits to them was not for treatment or assessment of her mental health or
depression at the time of treatment.2 The court has carefully combed the medical records in this
case. The doctor’s “normal psychological statuses during many of her treatment episodes”
which the ALJ found so significant – indeed determinative – are at least equally met either with
lack of such notations or with references to anxiety, depression or nervousness during visits, and
the plaintiff’s treating physician consistently noted her history of depression and anxiety. See,
e.g., id. at p. 495-526, 668-79, 688-90, 718-22, 727-34.
This case presents circumstances not unlike those in Taylor v. Heckler, supra. There,
the ALJ relied on his own lay opinion and an unrelated medical opinion to determine that
claimant’s disability had ceased. 742 F.2d at 254-55. Addressing the appropriate question to be
addressed, the Fifth Circuit clarified,
the issue before us is whether, according a presumption to the prior
determination of disability, substantial evidence supports the
[Commissioner’s] determination (a) that new evidence shows a
change in the claimant’s condition sufficient that (b) weighed with
the facts upon which the initial disability determination was made
and also with the additional evidence of continuing disability
submitted by the claimant, the claimant’s initial disability has now
2
The ALJ’s specific citations were to medical records he claimed evidenced “normal psychological
findings” but which were not assessing mental health assessments or treating claimant’s mental health at the time of
treatment. See Docket 7, p. 254 (citing Exhibit C3F on p. 495-527, Exhibit C22F on p. 718-22, Exhibit C24F on p.
727-34, and Exhibit C25F on p. 735-37).
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ceased.
Id. at 256. In this instance the ALJ neither detailed the facts underlying the previous finding of
disability3 nor compared those facts with any new evidence of a change in claimant’s condition.
Instead, like in Taylor, the ALJ relied on his own lay deductions from various medical records
that were devoid of any evaluation of claimant’s depression.
In fact, similar to the Taylor and Buckley cases, the ALJ made lay deductions while
simultaneously rejecting qualified medical opinions. The record shows Drs. Whelan and Small
were the only mental health professionals to address claimant’s initial listed disability – her
depression – at all. Dr. Whelan, a clinical psychologist, noted in treatment records that he
certainly thought claimants claims of anxiety and depression were genuine despite the fact that
he suspected malingering when he attempted to assess claimant’s intellectual and academic
abilities. Docket 7, p. 619. Dr. Whelan reviewed medical reports from plaintiff’s physicians
dating from approximately eight months before his examination. Id. at 617. Although he was
“not inclined to give her a severe diagnosis for her depression,” Dr. Whelan did conclude that
plaintiff “probably has borderline intelligence,” and “her depressive disorder, not otherwise
specified, and anxiety disorder, not otherwise specified, would be predicted as a result of her
chronic pain syndrome. Since that [her chronic pain] is documented, I certainly think her
symptoms of anxiety and depression are genuine.” Id. at 619. Dr. Whelan expected plaintiff’s
depression and anxiety to continue as long as she continues to have physical pain. Id.
Similarly, Dr. Small, another clinical psychologist, noted that claimant suffered from
“major depression - recurrent” and that she appeared to “have a combination of age, chronic
3
See Buckley v. Heckler, 739 F.2d 1047, 1049 (“The facts upon which the prior determination of disability
was made must be weighed by the trier of fact along with new evidence submitted by both parties.”).
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pain, subnormal intelligence, anxiety and depression.” Id. at 744. Neither Dr. Small nor Dr.
Whelan was asked to compare plaintiff’s current mental health status to her condition at the time
of her original benefits award, and neither was asked to express an opinion regarding whether
plaintiff’s depression is such that she has experienced “medical improvement” which might lead
the Commissioner to determine that she was no longer disabled.
Despite the above noted statements by Drs. Whelan and Small, the ALJ elected not to
adopt the opinions of either mental health professional. Id. at p. 261. Rather, the ALJ chose to
make a determination based on treatment records, which, as discussed previously, were provided
by (i) non-mental health professionals, (ii) who were not actively attempting to assess whether
claimant’s depression had improved or was continuing, and (iii) who, despite all this, still did not
report any medically conclusive evidence that there had been medical improvement or that
claimant no longer suffered from depression. See Docket 7, p. 254 , citing pp. 495-527, 718-22,
727-34 & 735-37. Thus, in making a determination that medical improvement had occurred, the
ALJ reached a medical conclusion he was not qualified to make nor substantially justified in
making.
The court holds that the ALJ’s decision that plaintiff has experienced medical
improvement was not based on substantial evidence. Just as in Buckley, the ALJ here looked to
other medical proof rather than proof which would have allowed him to weigh the Comparison
Point Decision against plaintiff’s actual current mental condition. Also as in Buckley, because
there was no new evidence to prove either that the plaintiff had experienced medical
improvement or that she no longer suffered from her initial disability, “the prior determination of
disability stands.” Buckley, 739 F. 2d. at 1050.
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IV. CONCLUSION
For the foregoing reasons, the court finds substantial evidence did not demonstrate that
there had been evidence of medical improvement of claimant’s disability, as required to support
the ALJ’s termination of claimant’s benefits under the Social Security Act. The decision is
reversed. Furthermore, because the law in this Circuit has been clear on this point for decades,
the court finds that the Commissioner’s position was not substantially justified, and plaintiff’s
counsel is entitled to an award of attorney’s fees. A final judgment in accordance with this
memorandum opinion will issue this day.
SO ORDERED, this, the 3rd day of February, 2015.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
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