Carrington v. Colvin
Filing
15
ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING CASE PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g). Signed by Magistrate Judge Tu M. Pham on 2/2/2018. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JERRY G. CARRINGTON,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
No. 15-cv-1264-TMP
ORDER REMANDING CASE PURSUANT TO 42 U.S.C. § 405(g)
Before the court is plaintiff Jerry G. Carrington’s appeal
from a final decision of the Commissioner of Social Security 1
(“Commissioner”)
denying
his
application
for
disability
insurance benefits under Title II of the Social Security Act
(“Act”), 42 U.S.C. §§ 401 et seq.
parties
consented
to
the
On January 1, 2016, the
jurisdiction
of
the
magistrate judge pursuant to 28 U.S.C. § 636(c).
For
the
reasons
set
forth
below,
the
United
States
(ECF No. 9.)
decision
of
the
Commissioner is remanded.
I.
1
PROCEDURAL HISTORY
Carolyn W. Colvin was the Acting Commissioner of Social Security
at the time this case was filed. Therefore, she is named in the
in the caption to this case. As of the date of this order, the
Acting Commissioner of Social Security is Nancy A. Berryhill.
On
January
16,
2013,
under
Title
II
benefits
Carrington
of
the
applied
Act.
for
(R.
at
disability
148,
158.)
Carrington alleged disability beginning on June 12, 2012, due to
neck
and
back
depression,
injuries
anxiety,
from
bipolar
a
motor
disorder,
disorder, and hypertension.
Security
(R. at 158, 162.)
Administration
Carrington’s
request,
a
Carrington’s
(“SSA”)
denied
hearing
was
The
Carrington’s
(R. at 79, 84.)
held
before
Administrative Law Judge (“ALJ”) on October 27, 2014.
25.)
stress
(R. at 10, 150.)
application initially and upon reconsideration.
At
accident,
posttraumatic
last date insured was December 31, 2016.
Social
vehicle
an
(R. at
On December 3, 2014, the ALJ issued a decision denying
Carrington’s request for benefits after finding that Carrington
was
not
under
functional
a
disability
capacity
because
(“RFC”)
to
he
retained
perform
jobs
25,
2015,
the
SSA’s
Carrington’s request for review.
exist
in
On
Appeals
that
residual
(R. at 10–24.)
significant numbers in the national economy.
September
the
Council
(R. at 1.)
denied
Therefore, the
ALJ’s decision became the final decision for the Commissioner.
(Id.)
Subsequently, on November 3, 3015, Carrington filed the
instant action.
ALJ erred
involved
when
in
(ECF No. 1.)
weighing
this
case;
the
(2)
Carrington argues that (1) the
opinions
the
ALJ
of
the
erred
medical
when
sources
finding
that
Carrington’s testimony was not entirely credible; (3) the ALJ
-2-
used
an
medical
incorrect
standard
conditions;
(4)
the
to
assess
ALJ
erred
three
when
of
Carrington’s
making
the
RFC
determination; and (5) on a whole, the ALJ’s decision was not
supported by substantial evidence.
II.
A.
(ECF No. 13 at 11–21.)
CONCLUSIONS OF LAW
Standard of Review
Under 42 U.S.C. § 405(g), a claimant may obtain judicial
review of any final decision made by the Commissioner after a
hearing to which she or he was a party.
“The court shall have
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding
the cause for a rehearing.”
review
there
of
whether
is
the
Commissioner’s
substantial
the
42 U.S.C. § 405(g).
evidence
Commissioner
making the decision.
decision
used
is
limited
to
support
the
the
proper
legal
Judicial
to
whether
decision
criteria
and
in
Id.; Burton v. Comm'r of Soc. Sec., No.
16-4190, 2017 WL 2781570, at *2 (6th Cir. June 27, 2017); Cole
v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Substantial
evidence is more than a scintilla of evidence but less than
preponderance and is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
-3-
Kirk v.
Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.
1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In
determining
whether
substantial
evidence
exists,
the
reviewing court must examine the evidence in the record as a
whole and “must ‘take into account whatever in the record fairly
detracts from its weight.’”
Abbott v. Sullivan, 905 F.2d 918,
923 (6th Cir. 1990) (quoting Garner v. Heckler, 745 F.2d 383,
388
(6th
support
Cir.
the
1984)).
If
Commissioner’s
affirm
that
decision
record
could
support
and
a
substantial
decision,
“may
not
decision
the
evidence
however,
even
is
the
to
way.”
court
must
whether
inquire
other
found
the
Barker
v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v.
Sec’y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir.
1989)).
resolve
Similarly, the court may “not try the case de novo,
conflicts
credibility.”
in
the
evidence
or
decide
questions
of
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713
(6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th
Cir. 2007)).
The Commissioner, not the court, is charged with
the duty to weigh the evidence and to resolve material conflicts
in the testimony.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525,
528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th
Cir. 1990); Prater v. Comm'r of Soc. Sec., No. 114CV01221STATMP,
2017 WL 2929479, at *1 (W.D. Tenn. July 10, 2017).
B.
The Five-Step Analysis
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The Act defines disability as 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
42 U.S.C. § 423(d)(1).
period
of
not
less
than
12
months.”
Additionally, section 423(d)(2) of the
Act states that:
An individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
For purposes of the preceding
sentence (with respect to any individual), “work which
exists in the national economy” means work which
exists in significant numbers either in the region
where such individual lives or in several regions of
the country.
Under
the
Act,
the
claimant
bears
the
establishing an entitlement to benefits.
ultimate
burden
of
Oliver v. Comm’r of
Soc. Sec., 415 F. App’x 681, 682 (6th Cir. 2011).
The initial
burden is on the claimants to prove they have a disability as
defined by the Act.
Siebert v. Comm’r of Soc. Sec., 105 F.
App’x 744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d at
529); see also Born v. Sec’y of Health & Human Servs., 923 F.2d
-5-
1168, 1173 (6th Cir. 1990).
If the claimant is able to do so,
the burden then shifts to the Commissioner to demonstrate the
existence of available employment compatible with the claimant’s
disability and background.
Born, 923 F.2d at 1173; see also
Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 559 (6th Cir.
2014).
Entitlement to social security benefits is determined by a
five-step sequential analysis set forth in the Social Security
Regulations.
See 20 C.F.R. § 404.1520.
First, the claimant
must not be engaged in substantial gainful activity.
C.F.R. § 404.1520(b).
claimant
suffers
Second, a finding must be made that the
from
404.1520(a)(4)(ii).
See 20
a
In
severe
the
impairment.
third
step,
the
20
ALJ
C.F.R.
§
determines
whether the impairment meets or equals the severity criteria set
forth
in
the
Listing
Security Regulations.
404.1526.
of
Impairments
contained
in
the
Social
See 20 C.F.R. §§ 404.1520(d), 404.1525,
If the impairment satisfies the criteria for a listed
impairment, the claimant is considered to be disabled.
On the
other hand, if the claimant’s impairment does not meet or equal
a listed impairment, the ALJ must undertake the fourth step in
the analysis and determine whether the claimant has the RFC to
return
to
any
past
relevant
404.1520(a)(4)(iv), 404.1520(e).
work.
See
20
C.F.R.
§§
If the ALJ determines that the
claimant can return to past relevant work, then a finding of not
-6-
disabled
must
be
entered.
Id.
But
if
the
ALJ
finds
the
claimant unable to perform past relevant work, then at the fifth
step the ALJ must determine whether the claimant can perform
other
work
economy.
existing
See
20
in
significant
C.F.R.
§§
numbers
in
the
404.1520(a)(4)(v),
national
404.1520(g).
Further review is not necessary if it is determined that an
individual
analysis.
C.
is
not
disabled
at
any
point
in
this
sequential
20 C.F.R. § 404.1520(a)(4).
Weighing Medical Source Opinions
ALJs
employ
a
“sliding
scale
of
deference”
opinions depending upon the opinion’s source.
for
medical
Norris v. Comm'r
of Soc. Sec., 461 F. App'x 433, 439 (6th Cir. 2012).
They
consider both the qualifications of the medical source and the
nature
of
Regarding
that
source’s
qualifications,
relationship
opinions
from
with
the
acceptable
claimant.
medical
sources, such as licensed physicians and psychologists, tend to
merit more deference than opinions from other medical sources,
such as therapists.
20 C.F.R. §§ 404.1502; 404.1527.
For the
nature of the relationship with the claimant, ALJs look at the
depth of interaction:
An opinion from a treating physician is “accorded
the most deference by the SSA” because of the “ongoing
treatment relationship” between the patient and the
opining
physician.
A
non-treating
source,
who
physically examines the patient “but does not have, or
did not have an ongoing treatment relationship with”
the patient, falls next along the continuum.
A non-
-7-
examining source, who provides an opinion based solely
on review of the patient's existing medical records,
is afforded the least deference.
Norris, 461 F. App’x at 439 (quoting Smith v. Comm'r of Soc.
Sec., 482 F.3d 873, 875 (6th Cir. 2007)) (internal citations
omitted).
When
considering
what
weight
to
give
an
opinion
from
a
medical source, ALJs apply a set of factors to the opinion.
Those factors include the length and nature of the relationship,
the
frequency
of
exams,
the
evidence
upon
which
the
medical
source bases her or his opinion, the opinion’s consistency with
the record as a whole, whether the source has specialized in her
or his area of practice, and any other relevant factor, like the
source’s familiarity with the claimant’s full medical record.
20 C.F.R. § 404.1527(c)(2)–(6).
1.
Assessment of Dana Williams’s Opinion
Carrington argues that the ALJ erred by giving insufficient
weight to the opinion of his treating therapist, Dana Williams,
M.S.
According
to
Carrington’s
records,
Williams
Carrington from December 4, 2012, to September 5, 2014.
237, 417.)
treated
(R. at
Williams met with Carrington 14 times for sessions
that ranged in length from half an hour to an hour.
347–62, 417–73.)
(R. at 237,
Over the course of the treatment, Carrington
discussed his chronic depression, short temper, struggles with
sleep, struggles with finding effective medication, and fear of
-8-
driving.
(Id.)
In her treatment notes, Williams consistently
described
Carrington
as
having
an
appropriate
actively engaging in the sessions.
(Id.)
appearance
and
However, she also
documented his mood as depressed or anxious and described his
behavior as isolating or impulsive.
(Id.)
Williams assigned
Carrington a global assessment functioning (“GAF”) score of 40.
(R. at 237.)
Later in his treatment, other mental health care
providers assigned him a GAF score of 70.
(R. at 414, 442, 466,
485, 508, 519.)
On October 28, 2014, Williams filled out a Social Security
assessment form in which she evaluated Carrington’s ability to
perform work related activities.
(R. at 544–46.)
On this form,
there were ten questions regarding the claimant’s ability to
understand, remember, and carry out instructions and interact
appropriately
with
others.
(Id.)
In
response
to
all
ten
questions, Williams indicated Carrington was extremely limited
in his ability to function.
“cannot
think
and
(Id.)
concentrate
She further stated that he
for
any
length
of
time,”
“overreacts,” is “extremely nervous and agitated all the time,
“has frequent panic attacks,” “has very poor social skills,”
“does not leave the house,” and has “extreme medical problems.”
(Id.)
The
ALJ
gave
Williams’s
opinion
little
weight
on
the
grounds that Williams was not a medical professional, did not
-9-
appear to be qualified to render the opinion she rendered, and
had
opined
evidence
that
in
Carrington
his
medical
was
far
record
more
limited
indicated.
than
the
at
13.)
(R.
Carrington contests that the ALJ improperly weighed Williams’s
opinion, because the ALJ did not apply all of the factors 20
C.F.R. § 404.1527 requires of ALJs assessing treating sources.
Therapists
are
not
acceptable
medical
sources,
opinions are not entitled to controlling weight.
so
their
See 20 C.F.R.
§§ 404.1502(a), 404.1513(a); SSR 06-03P, 2006 WL 2329939, at *2
(Aug.
9,
2006).
When
considering
what
weight
to
give
a
therapist’s opinion, the ALJ employs the same factors used for
analyzing an acceptable treating source’s opinion and applies
whatever
factors
404.1527(f)(1).
are
relevant
to
the
opinion.
20
C.F.R.
§
After considering all the pertinent factors, if
the ALJ determines that the opinion might impact the outcome of
the case, then the ALJ must explain the weight given to the
treating
therapist’s
claimant
or
reasoning.”
opinion
subsequent
in
reviewer
a
to
fashion
follow
that
the
“allows
a
adjudicator’s
20 C.F.R. § 404.1527(f)(2).
The court agrees with the ALJ’s conclusion that, due to the
“evidence
[of]
only
intermittent
symptoms”
and
“mild
limitations,” the extreme limitations Williams tendered are not
consistent with the medical evidence on the record.
(R. at 13.)
As the ALJ noted further on, proof of Carrington’s functionality
-10-
appears in his testimony and medical records, which indicated
that he performed household tasks, spent time with others on the
phone
and
in
person,
attended
“conservative
medications.”
contradicting
Williams’s
church,
(R.
at
assessment,
and
14,
benefited
18.)
Carrington
from
Further
consistently
received a GAF score of 70 — a score that demonstrates his
symptoms were mild at worst.
(R. at 14, 215, 222, 285, 325,
337, 414, 442, 466, 485, 508, 519.)
Thus, the court affirms the
ALJ’s decision to give Williams’s opinion little weight.
2.
Assessment of the State Reviewers’ Opinions Versus the
Independent Medical Examiner’s Opinion
Among Carrington’s arguments about the ALJ’s evaluation of
the various medical source opinions in his records, Carrington
propounds that the ALJ should not have given more weight to the
opinions
of
the
non-examining
state
reviewers
than
to
Carrington’s independent medical examiner, John B. Woods, M.D.
(ECF No. 13 at 14.)
Four
different
non-examining
state
reviewers
opined
on
Carrington’s condition: George Livingston, Ph.D., on April 2,
2013; Jacito DeBorja, M.D., on April 30, 2013; James Gregory,
M.D., on July 27, 2013; and Jenaan Khaleeli on August, 7, 2013.
(R. at 61–62, 71, 73.)
Dr. DeBorja gave great weight to the
opinion of examiner Jennifer Johnson, M.D., from March 18, 2013,
and concluded that Carrington had less severe neck and back pain
-11-
than
he
claimed.
Carrington’s
(R.
mental
at
60.)
condition
Dr.
mildly
Livingston
opined
restricted
living, social functioning, and concentration.
his
that
daily
(R. at 62.)
Dr.
Gregory also gave great weight to Dr. Johnson’s opinion, and
concluded that Carrington had less severe neck and back pain
than he claimed.
(R. at 71.)
Dr. Livingston’s.
Dr. Khaleeli’s opinion mirrored
(R. at 73.)
Dr. Woods met with Carrington on October 15, 2014.
533.)
(R. at
He noted that Carrington was alert and cooperative.
at 534.)
HEENT,
(R.
Dr. Woods found no irregularities with Carrington’s
lungs,
neck,
cardiovascular
extremities, or neurological system.
system,
(Id.)
skin,
abdomen,
However, during the
musculoskeletal exam, Dr. Woods observed “moderately decreased
range of motion” in Carrington’s left shoulder.
(R. at 535.)
He further noted that Carrington had a hard time raising his
left arm above his head, had “motor strength [of] 4+/5 in the
left upper extremity,” had a reduced left grip, and had “mildly
decreased
cervical
flexion.”
(Id.)
“unremarkable.”
Dr.
Woods
flexion
and
extension
and
left
lateral
The remainder of the musculoskeletal exam was
(Id.)
then
opined
that
Carrington
could
carry
ten
pounds occasionally and less than ten pounds frequently, could
stand or walk for six hours out of an eight-hour work day, could
sit without impairment, had limitations pushing or pulling, had
-12-
occasional postural limitations for actions like climbing and
stooping,
had
occasional
environmental limitations.
these
limitations
during
a
full
would
work
limitations,
(R. at 536–39.)
impede
day
“gainful employment.”
manipulative
and
had
He concluded that
Carrington’s
“permanently
and
ability
impair”
to
focus
him
from
(R. at 532, 539.)
In the ALJ’s opinion, the ALJ mentioned that Dr. Livingston
and Dr. Khaleeli found that Carrington’s mental condition caused
him mild limitations, but the ALJ did not assign a weight to
either of these opinions.
(R. at 13.)
The ALJ made no mention
of Dr. DeBorja’s or Dr. Gregory’s opinions.
However the ALJ did
find that the opinion upon which the two state reviewers relied
— Dr. Johnson’s opinion — merited little weight because it was
inconsistent
with
the
results
of
performed on December 11, 2013.
a
later
radiological
(R. at 17, 399–400.)
test
The ALJ
gave little weight to Dr. Woods’s opinion on the grounds that
Dr. Woods was not a treating source, did not have access to
Carrington’s full medical records, did not quantify several of
the
restrictions,
and
provided
an
inconsistent with his own examination.
assessment
that
was
(R. at 17.)
An ALJ “may not ignore” the opinion of non-treating or nonexamining
weight
acceptable
given”
to
medical
these
treating source opinion.
sources
opinions
if
and
there
must
is
“explain
no
the
controlling
SSR 96–6P, 1996 WL 374180, at *2 (July
-13-
2,
1996);
20
C.F.R.
§
404.1527(e).
Unlike
with
treating
sources, ALJs may state that they are discounting the opinion of
a non-treating or non-examining medical source without giving a
good
reason
as
to
why.
See
Norris,
461
F.
App’x
at
439.
However, the Sixth Circuit has carved out an exception to this
exemption for instances when an ALJ gives more weight to the
opinion of a non-examining source than to later opinions from
other sources who typically merit more deference.
Miller v.
Comm'r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016).
In the
event that a “non-examining source did not review a complete
case
record,
that
the
ALJ
‘[the
at
Sixth
least
Circuit]
considered
require[s]
these
some
facts
indication
before
giving
greater weight to an opinion’ from the non-examining source”
than to the opinion of a treating or examining source.
Id.
(quoting Blakley v. Comm'r Of Soc. Sec., 581 F.3d 399, 409 (6th
Cir. 2009)).
In this case, the ALJ did not specify what weight the ALJ
gave the state reviewer’s opinions.
As a result, it is not
apparent to what extent the ALJ relied upon these opinions, much
less whether the ALJ complied with Miller by considering that
these reviewers did not have access to later medical records
that
other
opining
sources
had. 2
2
The
need
for
the
ALJ
to
The court also notes that there is nothing in the record
demonstrating that Dr. Woods had limited access to Carrington’s
-14-
identify the weight given to these opinions is especially great
when dealing with the opinions of Dr. DeBorja and Dr. Gregory.
If the ALJ did rely on the opinions of these two reviewers, then
that would create an apparent contradiction in the ALJ’s opinion
because the ALJ would have relied on opinions built upon Dr.
Johnson’s opinion — an opinion that the ALJ found merited little
weight.
In light of the ambiguity in the ALJ’s opinion, the
court will remand the case so that the ALJ may clarify the
weight given to the state examiners’ opinions and demonstrate
whether
the
ALJ
has
taken
the
date
of
these
opinions
into
account.
III. CONCLUSION
For the foregoing reasons, the court reverses the ALJ’s
decision and remands the case pursuant to sentence four of 42
U.S.C. § 405(g) for proceedings consistent with this opinion.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
February 2, 2018
Date
medical records.
Indeed, Dr. Woods specified that he reviewed
Carrington’s records. (R. at 532–33.)
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