Williams v. Social Security Administration, Commissioner of

Filing 12

REPORT AND RECOMMENDATION re 8 MOTION for Summary Judgment filed by Ronald T Williams, 10 MOTION for Summary Judgment filed by Social Security Administration, Commissioner of. It is respectfully recommended that the plaintiff� 39;s Motion for Summary Judgment 8 be GRANTED insofar as it suggests a remand. It is further recommended that the defendant Commissioner's Motion 10 also be GRANTED to the extent it suggests that a remand is the proper course of action at this point, but otherwise DENIED.Signed by Magistrate Judge Dennis H Inman on 1/4/11. (KDO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
GREENEVILLE
RONALD T. WILLIAMS
V.
MICHAEL J. ASTRUE,
Commissioner of Social Security

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NO. 2:09-CV-283

REPORT AND RECOMMENDATION
This is an action for judicial review of the Commissioner’s final decision denying the
plaintiff’s application for Supplemental Security Income under the Social Security Act. The
matter is before the United States Magistrate Judge, under the standing orders of the Court
and 28 U.S.C. § 636 for a report and recommendation. Both the plaintiff and the defendant
Commissioner have filed dispositive Motions [Docs. 8 and 10].
The sole function of this Court in making this review is to determine whether the
findings of the Secretary are supported by substantial evidence in the record. McCormick
v. Secretary of Health & Human Services, 861 F.2d 998, 1001 (6th Cir. 1988). "Substantial
evidence" is defined as evidence that a reasonable mind might accept as adequate to support
the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough
to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought
to be drawn is one of fact for the jury. Consolo v. Federal Maritime Comm., 383 U.S. 607
(1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor
decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even
if the reviewing court were to resolve the factual issues differently, the Secretary's decision
must stand if supported by substantial evidence. Listenbee v. Secretary of Health and Human

Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence,

“a decision of the Commissioner will not be upheld where the SSA fails to follow its own
regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).
Plaintiff filed his application alleging that he is disabled due to HIV, hepatitis C, and
panic attacks. He was 47 years of age at the time of the hearing decision, a person “closely
approaching advanced age.” He has a 10th Grade or “limited” education, but is able to
communicate in English. He has past relevant work experience as a construction worker,
which was classified as “heavy” exertion. Plaintiff alleges that he previously received SSI
benefits for some period of time which were terminated when he was sent to prison in 2005.
Plaintiff apparently has a long history of drug and alcohol abuse. The medical record
is summarized by plaintiff’s counsel in his brief as follows:
Plaintiff received treatment at Piedmont Medical Center on October 27, 2003,
due to a several week history of lesions on the scalp. The diagnosis was shingles (Tr. 76186).
Plaintiff was admitted to Piedmont Medical Center from October 30, 2003
through November 12, 2003, secondary to altered mental state after being found
unconscious. HIV testing was done on admission and came back positive. MRI scan of
the brain showed abnormal signal in the left medial aspect of the left temporal lobe and
the right caudate nucleus, with questionable involvement of the tip of the right temporal
lobe and subinsular cortex. EEG showed generalized slowing compatible with toxic or
metabolic encephalopathy and cerebrospinal fluid from lumbar puncture came back
positive for cryptococcal antigen. The discharge diagnoses were cryptococcal meningitis,
herpes zoster, advanced HIV, history of ethanol abuse, and history of IV drug use (Tr.
187-245).
Dr. John Narro treated Plaintiff from April 18, 2005 through November 1, 2006,
for regular follow-up of HIV positive disease and hepatitis C co-infection. During this
time, Plaintiff’s viral load remained elevated and his weight decrease from 137 pounds
to 134.5 pounds. Additional problems noted include difficulty sleeping and reactive
hepatitis A antibody (Tr. 246-275).
On January 3, 2007 and April 16, 2007, two separate non-examining state agency
physicians opined Plaintiff’s physical impairment(s) are not severe (Tr. 276-283).
Plaintiff received treatment at Family Practice Associates from April 1, 2005

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through April 29, 2008. Conditions and complaints addressed during this time include
HIV/AIDS, hepatitis C, acute bronchitis, nasal bone fracture, right knee pain, dizzy
spells resulting in falls, left knee injury, and chronic insomnia. During this time,
Plaintiff’s weight dropped from 144 to 133 (Tr. 284-293, 346-358). On May 29, 2007,
right knee x-rays revealed fairly severe narrowing of the medial joint space compartment
and also narrowing of the patellofemoral joint space compartment with some mild
spurring (Tr. 284).
Plaintiff received treatment at The Christopher Clinic from November 10, 2003
through December 2, 2004, due to advanced HIV, history of cryptococcal meningitis,
hepatitis C, and rashes (Tr. 294-322).
Plaintiff has received treatment at Sweetwater Hospital. On May 3, 2005,
treatment was rendered for right rib and left eye pain. Plaintiff returned on December 20,
2005, with complaints of low back pain. Lumbar spine x-rays showed early degenerative
changes involving the L4 and L5 levels with small marginal anterior osteophyte
formation (spondylosis deformans). The diagnosis was acute lumbar strain (323-343).
Plaintiff continued treatment by Dr. Narro from November 2, 2006 through
December 12, 2008, during which time he was suffering HIV positive disease, hepatitis
C, worsening insomnia, persistent weight loss, and falling episodes (Tr. 359-379). By
May 14, 2008, Plaintiff’s weight was down to 124 pounds (Tr. 363).
Plaintiff underwent assessment at Volunteer Behavioral Health Care System on
February 12, 2009, upon referral by Family Practice. Plaintiff reported that he got
depressed in 2003 when he found out he had HIV; that he does not sleep and has panic
attacks; that he wants to tear things up and kill things; that he does not like people and
has lived alone in the mountains; that he gets irritated when he is in pain; that he gets
more mad at himself than anything; that if he does not do evil, he thinks evil; and that
he has problems keeping a line of thought when trying to focus. On mental status exam,
Plaintiff’s speech was soft; his behavior was anxious and agitated; his mood was
anxious; and his concentration, insight, judgment, and impulse ratings were fair. The
diagnosis was generalized anxiety disorder, with a current global assessment of
functioning [hereinafter “GAF”] of 49. In summary, it was noted Plaintiff is now living
in the mountains away from everyone as “I just don’t like people very much,” he
discusses significant anxiety symptoms and avoids public/social altogether, he states he
gets lonely talking to the trees, he discusses being HIV positive and issues related to that,
and he states he has never been the same since 2004 when his wife was killed. A
functional assessment notes Plaintiff is mildly limited in activities of daily living;
markedly limited in interpersonal functioning; moderately limited in concentration, task
performance, and pace; and moderately limited in adaptation to change (Tr. 380-386).
Plaintiff underwent consultative exam by Dr. Emelito Pinga on March 30, 2009.
Dr. Pinga noted Plaintiff’s history of extensive herpes zoster infection on October 30,
2003, with positive blood test for human immunodeficiency virus infection. On exam,
Plaintiff’s was slightly built and weighed 126 pounds. The diagnosis was human
immunodeficiency virus infection in remission, on therapy with Norvir, Truvada, and
Reyataz tablets. In the body of his report, Dr. Pinga opined Plaintiff could sit six hours
in an eight-hour workday; could stand and walk five hours in an eight-hour workday; and
would be limited to occasional lifting up weights of ten pounds within an eight-hour
workday cumulative, with rest period of 15 minutes within one-hour interval (Tr. 387-

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390).
In the attached physical assessment, Dr. Pinga opined Plaintiff can occasionally
lift/carry up to ten pounds; can sit for a total of six hours in an eight-hour workday, one
hour without interruption; can stand for a total of five hours in an eight-hour workday,
one hour without interruption; can walk for a total of five hours in an eight-hour
workday, one hour without interruption; can frequently (1/3 to 2/3) reach, handle, finger,
feel, push/pull, and operate foot controls; can never climb ladders or scaffolds; can
occasionally (up to 1/3) climb stairs and ramps, balance, stoop, kneel, crouch, and crawl;
can never tolerate exposure to unprotected heights; and can occasionally tolerate
exposure to moving mechanical parts, operating a motor vehicle, humidity and wetness,
extreme cold, extreme heat, vibrations, and dusts, odors, fumes, and pulmonary irritants
(Tr. 391-397).

[Doc. 9, pgs. 2-5].
At the administrative hearing, the Administrative Law Judge (“ALJ”) called Rebecca
Williams, a vocational expert. The ALJ asked Ms. Williams to assume the plaintiff had a
10th grade education and was capable of sedentary work, “with no public work and no food
work either, because of the HIV and the Hepatitis.” When asked if there were jobs the
plaintiff could perform, she opined that in Tennessee there were 4,000 assembly jobs, such
as a “buckle wire inserter;” 700 inspecting jobs such as a “film touch up inspector;” and
1,000 jobs as a “cuff folder.” When asked to assume the plaintiff had the same RFC except
at the light work level, she identified 400 jobs as a bottling line attendant and 13,000 “general
laborer” types of jobs. [Tr. 38-39].
Also during the hearing, the ALJ noted that there had not been a physical consultative
examination. He stated “I’ll go ahead with the CE. I don’t know why DDS didn’t know
that.” Also, the ALJ stated he was “going to try to find the old file” from where plaintiff was
awarded SSI benefits to “get a picture as to why they awarded it at that time.” [Tr. 36].
Following that hearing, the ALJ had the plaintiff examined by Dr. Pinga, with the
resulting assessment set forth hereinabove. Plaintiff’s counsel subsequently retained Donna
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J. Bardsley, also a vocational expert, to opine whether any jobs would be available to the
plaintiff if he had the limitations found by Dr. Pinga. Ms. Bardsley opined there would not.
[Tr. 171-72].
In his hearing decision, the ALJ found that the plaintiff suffered from severe
impairments of HIV seropositivity, in remission; and hepatitis C, quiescent. The ALJ also
found that the plaintiff retained the residual functional capacity to perform light work, except
for work involving working with food and work requiring contact with the general public.
[Tr. 13]. He specifically rejected the medical assessment of Dr. Pinga as being unsupported
by Dr. Pinga’s examination or by any findings of Dr. Narro, the treating physician. [Tr. 1718]. He found that the plaintiff did not have a severe mental impairment and that “the record
does not support the alleged mental impairments or any attempt at mental health treatment.”
[Tr. 18]. He found that the plaintiff could perform the sedentary and light jobs to which VE
Williams testified at the hearing. Accordingly, he found that the plaintiff was “not disabled.”
[Tr. 19-20].
Plaintiff raises a number of concise, well-stated objections to the Commissioner’s
decision. The first, and most determinative in the opinion of this Court, is the fact that the
ALJ, after rejecting the limitations found by Dr. Pinga to whom plaintiff was sent by the
ALJ, held that the plaintiff was capable of performing light work. Plaintiff also asserts that
the ALJ erred in not finding a severe mental impairment. Finally, plaintiff argues that the
ALJ erred by not finding out the particulars of the alleged award of SSI benefits to plaintiff
which were terminated when he went to prison.
Dr. Pinga’s opinion obviously troubled the ALJ to a great degree. The ALJ deemed
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a consultative examination important to a just resolution of the plaintiff’s claim. He was
correct in ordering that examination to take place. However, that correctness is not
diminished by the fact that the ALJ disagreed with Dr. Pinga’s findings. He is not bound by
a medical assessment which he finds lacks objective clinical backing, but the ALJ cannot
then just “find” a physical RFC out of whole cloth. Dr. Pinga’s allegedly unsupported
opinion is by definition, more of a “medical” opinion than one arrived at by the ALJ, or this
Court, or any other layperson. The ALJ is not “stuck” with an unsupported opinion, but the
remedy is to have the plaintiff consultatively evaluated again. In order to have “substantial
evidence” to support his decision, the ALJ must have “evidence.” The fact that two state
agency non-examining physicians found no impairment from the very scanty record available
to them at the time those assessments were made is of no consequence. The ALJ does not
appear to mention them or rely upon them, and even if he did, the fact that an examining
physician found physical limitations is paramount in this situation.
Contrary to the ALJ’s statement that the plaintiff had not made “any attempt at mental
health treatment,” he quite simply did. He was referred to Volunteer Behavioral Health Care
System by Dr. Narro. A GAF of 49 indicates the existence of a severe mental impairment,
as does a “marked” limitation in interpersonal functioning. [Tr. 380-84]. The Commissioner
argues that an ALJ is not obligated to obtain a consultative examination when the record is
“sufficient” to support a decision. However, the Court is uncertain what part of the “record”
supports the ALJ’s decision in the face of the mental assessment by Volunteer other than the
ALJ’s own opinion. There was no evaluation by DDS psychologists and none by a
consultative examiner. The ALJ may be exactly right regarding his hunch that the plaintiff
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does not have a mental impairment, or that if he does it does not preclude substantial gainful
activity. But some competent evidence is necessary for him, as finder of fact, to rely upon.
Finally, plaintiff asserts that the Commissioner should find out the particulars of
plaintiff’s alleged award of SSI benefits in the past. It may very well be easier for the
Commissioner to determine whether plaintiff ever was awarded benefits and what findings
were made, but plaintiff’s counsel is certainly also capable of ferreting this out. The Court
is simply in the dark, as is the ALJ and the plaintiff.
The ALJ and the Commissioner’s brief both point out the fact that the plaintiff is not
credible or consistent in his statements. All of that may be true. In fact, it appears to be true.
However, the issues upon which this case turns in this appeal have nothing to do with his
credibility. The credibility of Dr. Pinga and Volunteer may be in question, but plaintiff’s
does not matter regarding these issues. If the ALJ were considering the weight to give an
opinion from another health care professional finding less restrictions than one of them, then
plaintiff’s credibility could factor into that decision. But plaintiff’s lack of veracity does not
change the present analysis.
As suggested by the defendant, this is certainly not a case for a judicial award of
benefits. There are evidentiary deficiencies in the record, and a remand is the only proper
vehicle to correct them. As argued by the Commissioner, the case should be remanded in
order for the ALJ to obtain further medical proof regarding the plaintiff’s physical
capabilities and his alleged mental limitations.

Someone, and not necessarily the

Commissioner, should determine whether the plaintiff previously received benefits and on
what basis were they awarded. To these ends, it is respectfully recommended that the
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plaintiff’s Motion for Summary Judgment [Doc. 8] be GRANTED insofar as it suggests a
remand. It is further recommended that the defendant Commissioner’s Motion [Doc. 10] also
be GRANTED to the extent it suggests that a remand is the proper course of action at this
point, but otherwise DENIED.1

Respectfully submitted:

s/ Dennis H. Inman
United States Magistrate Judge

1

Any objections to this report and recommendation must be filed within fourteen (l4)
days of its service or further appeal will be waived. 28 U.S.C. 636(b)(1).
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