Collins v. Astrue
Filing
32
MEMORANDUM OPINION: Plaintiff's 27 Motion for Summary Judgment is GRANTED, Defendant's 30 Motion for Summary Judgment is DENIED, the Commissioner's decision is REVERSED, and the case is REMANDED for further proceedings. (Ordered by Magistrate Judge Renee Harris Toliver on 6/21/2012) (mcrd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CLIFTON COLLINS,
§
§
§
§
§
§
§
§
§
§
Plaintiff
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Civil Action No. 3:11-CV-2349-BK
MEMORANDUM OPINION
The parties having consented to proceed before the magistrate judge (Doc. 24), the Court
now considers their cross motions for summary judgment. For the reasons that follow, Plaintiff’s
Motion for Summary Judgment (Doc. 27) is GRANTED, Defendant’s Motion for Summary
Judgment (Doc. 30) is DENIED, the Commissioner’s decision is REVERSED, and the case is
REMANDED for further proceedings.
I. BACKGROUND1
A.
Procedural History
Clifton Collins (“Plaintiff”) seeks judicial review of a final decision by the Commissioner
denying his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under the Social Security Act (Act). Plaintiff protectively filed his applications for DIB
and SSI, alleging that he became disabled in June 2008. (Tr. 135, 142). His applications were
denied at all administrative levels, and he timely appealed to the United States District Court
1
The following background comes from the transcript of the administrative proceedings,
which is designated as “Tr.”
1
pursuant to 42 U.S.C. § 405(g). (Tr. 3-5, 12-25, 79, 88). In the meantime, Plaintiff filed another
application for Social Security benefits which was granted in January 2012. The ALJ in that case
found Plaintiff disabled as of February 24, 2010, one day after the ALJ decision under review
was entered. (Doc. 28, Exh. A; Tr. 12).
B.
Factual History
Plaintiff was 47 years old on his alleged onset date, and he had an 11th grade education
and past work experience as a carpet installer and custodian. (Tr. 65, 174, 178). In June 2008,
he was stabbed in the chest and arm with a screwdriver, which punctured his heart and caused a
one centimeter laceration to the anterior portion of the right ventricle. (Tr. 247-50, 283, 514).
He underwent a median sternotomy (incision through the midline of the sternum) to repair his
wound, and he was discharged from the hospital after eight days.2 (Tr. 283). Plaintiff reported in
July 2008 that his level of pain was greatly improved (three on a ten-point scale, rather than the
nine he felt when he was discharged from the hospital), but he still felt pain even after taking
medication and felt worse when he moved around or tried to get up from a seated position. (Tr.
551).
In September 2008, state agency medical consultant Dr. Patty Rowley opined that
Plaintiff could occasionally lift/carry 50 pounds; frequently lift/carry 25 pounds; stand/walk/sit
for six hours in an 8-hour workday, and had no other physical or communicative limitations. (Tr.
348-55). In a stress test that month, Plaintiff could only exercise for four minutes before he had
2
All medical terms are defined by reference to Stedman’s Medical Dictionary (27th ed.),
available on Westlaw.
2
to stop due to fatigue. (Tr. 519). The administering physician noted that Plaintiff experienced
periodic sharp chest pain two to three times per week, which lasted for a few seconds and
radiated from his front towards the left scapular area, and the physician believed the symptoms
were musculoskeletal, rather than cardiac, in origin. (Tr. 514-15). Plaintiff had mild residual
pain in the region of his scar and complained that he still had too much pain with movement to
be able to work as a custodian, but his physician stated that he was close to being able to return to
full, unrestricted activity from a medical standpoint. (Tr. 564).
Plaintiff had the same complaints of pain in October 2008. (Tr. 510). A CT scan of his
chest performed that month revealed a small amount of soft-tissue fullness within the anterior
mediastinum, which the doctor believed to be related to his surgery.3 (Tr. 492, 510). Plaintiff
continued to have numerous complaints about chest pain despite prescribed pain medication and
therapies. (Tr. 328-334, 339-40, 356-58, 361-66, 492, 509, 513-15, 537-52, 554, 564-66, 792).
Plaintiff underwent a comprehensive outpatient pain management, physical therapy, and
occupational therapy program in September and October 2008. (Tr. 357-59). Upon completion
of the program, Plaintiff demonstrated a 22% improvement in the distance he could walk, an
80% improvement in lower body strength, and an improvement in the amount of weight he could
lift to between 25 and 45 pounds. (Tr. 358). The tenderness over his chest scar had decreased by
40% to 50%. (Tr. 358). Moreover, Plaintiff’s ability to engage in activities of daily living had
increased from 1.2 to 7.4 out of 10, and the pain management administrator opined that he had no
physical limitations that prevented him from working. (Tr. 358). Finally, Plaintiff’s depression
3
The anterior mediastinum is the narrow region between the pericardium posteriorly and
the sternum anteriorly containing the thymus or its remnants, some lymph nodes and vessels, and
branches of the internal thoracic artery.
3
was reduced by 50% from the moderate range to the mild range, although Plaintiff had an
unfounded fear of cardiac problems and a perception of himself as physically limited in his
ability to work. (Tr. 358-59).
In November 2008, Plaintiff reported that his chest pain was gradually improving, and his
physician stated that he needed no further work-up from a cardiological standpoint. (Tr. 509).
That same month, Plaintiff was diagnosed with a 1.5 centimeter umbilical hernia, as well as a
four centimeter ventral hernia, after he complained of midline abdominal pain along his incision
scar. (Tr. 463, 465, 495). Plaintiff’s treating physician, Dr. Steven Johnson, stated in November
2008 that a CT scan showed that Plaintiff had an incision hernia four centimeters long, and
Plaintiff stated that this ventral hernia caused him midline abdominal pain. (Tr. 495). Dr.
Johnson found that Plaintiff had severe limitations of functional capacity and was incapable of
even sedentary activity. (Tr. 496). By December 2009, the hernia had grown to 5x6 centimeters,
and Plaintiff underwent surgery to repair it. (Tr. 809).
Plaintiff also has a history of depression for which he received treatment from Green
Oaks Hospital, the Holiner Psychiatric Group, and his treating physicians from October 2008
until March 2009. (Tr. 359, 445-448, 456-58, 499, 667-671, 674, 681, 685, 691-693). In
October 2008, he stayed in a psychiatric day hospital for four days due to his severe major
depressive disorder, chronic pain, and homicidal and suicidal ideations during which he twice put
a gun in his mouth. (Tr. 446-49, 453, 738). In the hospital, he was given the antidepressant
Wellbutrin, and his mood was much improved upon discharge. (Tr. 453-54). However, by the
following month he reported loss of appetite, loss of concentration, lack of interest and energy,
and anxiety, so his Wellbutrin dosage was increased. (Tr. 445). He often presented with a
4
depressed affect and at times had suicidal thoughts. (Tr. 359, 445-448, 456, 667-671, 674, 681,
685, 691-693, 1114).
From September 2009 to March 2011, Plaintiff received mental health treatment at Dallas
Metrocare Services, where he was diagnosed with severe, recurrent Major Depressive Disorder.
(Tr. 732-48). Throughout the treatment records, Plaintiff is reporting as suffering from a
depressed affect, chronic pain, suicidal thoughts, and feelings of worthlessness because of his
inability to work and his mother’s death. (Tr. 732-748, 993-94, 1006, 1009, 1112, 1024, 1031,
1033, 1045, 1060, 1062, 1066, 1072-73, 1085, 1091, 1093, 1099, 1105, 1112, 1123). Plaintiff’s
GAF score was consistently 45, and his treatment provider first increased his Wellbutrin and then
combined it with Celexa in an effort to alleviate his increasing symptoms of depression.4 (Tr.
735, 740, 747, 1057, 1099, 1128).
In January 2009, consulting non-examining psychologist Dr. Jim Cox opined that
Plaintiff was markedly limited in his ability to understand and carry out detailed instructions and
was moderately limited in his abilities to: (1) carry out short, simple instructions, (2) maintain
attention and concentration for extended periods of time, (3) perform activities within a schedule
and maintain regular attendance, (4) sustain an ordinary work routine without special
supervision, (5) work with others without being distracted by them, (6) work a normal work
week without interruption due to his psychological symptoms, and (7) interact appropriately with
the public. (Tr. 485-88).
In October 2009, examining consultative psychologist Dr. George Mount completed a
4
GAF stands for Global Assessment of Functioning, and is used to determine a patient’s
psychological functioning on a 1 to 100 scale, with 100 being superior functioning. Diagnostic
and Statistical Manual of Mental Disorders IV-TR (4th ed.).
5
medical source statement indicating that Plaintiff had several extreme and serious limitations in
his ability to function independently, appropriately, effectively, and on a sustained basis in terms
of (1) following uninvolved instructions and problems involving even a few concrete variables,
(2) maintaining concentration for two-hour intervals, (3) performing activities within a schedule,
arriving punctually, and maintaining regular attendance, (4) completing a normal work week
without interruption from psychologically-based symptoms, (5) coping with normal work
stresses, and (6) responding appropriately to changes in the workplace. (Tr. 751-52).
C.
Hearing Testimony
At his October 2009 administrative hearing, Plaintiff testified that on his alleged
disability onset date, an acquaintance had stabbed him four times. (Tr. 41-42). He became
depressed and suicidal as soon as he got out of the hospital because he lost his source of income,
and he had to be admitted to a psychiatric hospital. (Tr. 44-45). Plaintiff stated that he continued
to have sharp chest pains two to three times a day near the incision site, and he had a hernia on
the left side of his abdomen that caused him pain of six to seven on a ten-point scale and constant
shortness of breath. (Tr. 48-49).
D.
The ALJ’s Findings
In a decision dated February 2010, the ALJ found Plaintiff’s impairments of incisional
hernia, status post stab wound, and depression to be severe. (Tr. 17, 20-25). The ALJ
determined that none of Plaintiff’s impairments met or equaled a listed impairment, and he had
the residual functional capacity (“RFC”) to (1) lift a maximum of ten pounds, (2) sit for six hours
in an eight-hour day, (3) stand/walk for two hours in an eight-hour day, (4) stand and change
positions for two minutes every 30 minutes, (5) occasionally kneel and climb stairs, and (6) have
6
incidental contact with the public. (Tr. 19). The ALJ also found that Plaintiff could understand
and carry out “detailed, but uninvolved written or oral instructions” involving concrete variables.
(Tr. 19).
The ALJ ruled that Plaintiff’s complaints of pain and physical restrictions were not
credible to the extent alleged because they conflicted with the medical evidence of record, which
included normal chest x-rays, CT scans, and medical exams. (Tr. 20-21). The ALJ gave the
opinion of Plaintiff’s treating physician regarding total disability, Dr. Johnson, limited weight
because it appeared to be based on Plaintiff’s self-report that he could not work rather than the
objective medical evidence in the record, and Dr. Johnson did not provide a function by function
analysis of Plaintiff’s limitations. (Tr. 23). Additionally, the ALJ appears to have given the
opinion of state agency consulting physician Dr. Rowley only “some weight,” noting that the
opinions of the non-examining physicians supported a finding that Plaintiff was not disabled.
(Tr. 23-24).
Next, the ALJ determined that Plaintiff’s depression was not severe because he responded
well to prescription medications after his hospitalization, his thought processes were logical, and
he did not have any hallucinations, delusions, or recent suicidal ideation. (Tr. 22). The ALJ
found that Plaintiff could not return to his past relevant work, but ruled that he could perform
unskilled sedentary work. Plaintiff’s ability to do such work was constrained by certain
exertional and non-exertional limitations, including that he could have only incidental contact
with the public and his reasoning, math and language abilities were limited. (Tr. 24-25). The
ALJ concluded that sufficient jobs existed in the national economy that Plaintiff could perform,
such as clock and watch assembler, fishing reel assembler, and nut sorter. (Tr. 25).
7
E.
Proceedings Before the Appeals Council
On administrative appeal, Plaintiff’s counsel submitted additional records to the Appeals
Council as follows. In March 2010, his hernia scar was healing well. (Tr. 905). However, by
May 2010, Plaintiff had a 3 centimeter bulge along his midline with straining and pain, and he
reported experiencing chest pain with left arm radiation at least two to three times a week. (Tr.
902). An MRI revealed (1) midline epigastric subcutaneous reactive changes, (2) no definitive
evidence of a recurrent hernia, (3) a right inguinal hernia, and (4) a small paraumbilical hernia.
(Tr. 912). In July 2010, Plaintiff reported chest pains in the lower sternum region with fatigue
upon exertion and with walking less than a block. (Tr. 951).
In November 2010, Plaintiff stated that he had occasional chest pain, which got better
when he took Advil, and he requested a chest brace. (Tr. 933). A CT scan of his abdomen
showed that his hernia had not recurred, but he was diagnosed with chest pain, which he had
when getting out of bed, and gastroesophageal reflux disease, for which he was prescribed
medication. (Tr. 934). In a November 2010 exam for disability assistance services, the evaluator
reported that Plaintiff’s abdominal region was large with a visible herniation occurring with
increased pressure during certain mobility tasks. (Tr. 847). The evaluator noted that the “hernia
is palpable when the client exerts intra-abdominal force,” which was likely the result of a failed
hernia repair. (Tr. 847-49). The evaluator determined that Plaintiff’s pain was significantly
limiting his transitional capabilities and functional mobility. (Tr. 849). A December 2010
treatment note remarked that Plaintiff’s chest pain symptoms seemed consistent with reflux and
post-surgical pain. (Tr. 866). An April 2011 treatment note suggested that the persistent chest
pain could be due to the mesh placed for his ventral hernia repair. (Tr. 922). Plaintiff was
8
diagnosed with chest pain, reflux, and shortness of breath and continued on pain medication.
(Tr. 921, 923).
In December 2010, during his continuing mental health treatment at Dallas Metrocare,
Plaintiff stated that he would like to go back to work, but did not feel that he could because of his
physical problems. (Tr. 1016-17). His counselor noted that he had a core belief that “if you
work you are valuable, if you don’t you aren’t.” (Tr. 1116). By March 2011, Plaintiff had seen a
“huge decrease” in his mental health problems and was preparing for his last therapy session.
(Tr. 1001-02).
In December 2010, psychiatrist Dr. Evan Knapp administered to Plaintiff a series of
intelligence tests. During the testing, Plaintiff informed Dr. Knapp that he felt depressed all the
time and had insomnia, and Dr. Knapp diagnosed him with Major Depressive Disorder, moderate
and recurrent. (Tr. 857). In January 2011, Dr. Knapp completed a medical source statement
indicating that Plaintiff had several extreme and serious limitations in his ability to function
independently, appropriately, effectively, and on a sustained basis in terms of (1) following
uninvolved instructions and problems involving even a few concrete variables, (2) maintaining
concentration for two-hour intervals, (3) performing activities within a schedule, arriving
punctually, and maintaining regular attendance, (4) completing a normal work week without
interruption from psychologically based symptoms, (5) coping with normal work stresses, and (6)
responding appropriately to changes in the workplace. (Tr. 915-16). In April 2011, Dr. Kristen
Gable, Plaintiff’s treating psychiatrist at Dallas Metrocare Services, completed a medical source
statement, making similar findings in those abilities. (Tr. 1127-29). The Appeals Council
summarily denied Plaintiff’s appeal. (Tr. 3).
9
II. APPLICABLE LAW
An individual is disabled under the Act if, inter alia, he is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment” which has lasted or can be expected to last for at least 12 months. 42 U.S.C.
§ 423(d)(1)(A). The Commissioner uses the following sequential five-step inquiry to determine
whether a claimant is disabled: (1) an individual who is working and engaging in substantial
gainful activity is not disabled; (2) an individual who does not have a “severe impairment” is not
disabled; (3) an individual who “meets or equals a listed impairment in Appendix 1” of the
regulations will be considered disabled without consideration of vocational factors; (4) if an
individual is capable of performing his past work, a finding of “not disabled” must be made; (5)
if an individual’s impairment precludes him from performing his past work, other factors
including age, education, past work experience, and residual functional capacity must be
considered to determine if any other work can be performed. Wren v. Sullivan, 925 F.2d 123,
125 (5th Cir. 1991); 20 C.F.R. §§ 404.1520(a)(4), 416.920 (a)(4).
Under the first four steps of the analysis, the burden of proof lies with the claimant.
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). The analysis terminates if the
Commissioner determines at any point during the first four steps that the claimant is disabled or
is not disabled. Id. If the claimant satisfies his burden under the first four steps, the burden shifts
to the Commissioner at step five to show that there is other gainful employment available in the
national economy that the claimant can perform. Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994). This burden may be satisfied either by reference to the Medical-Vocational
Guidelines of the regulations or by expert vocational testimony or other similar evidence. Fraga
10
v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
Judicial review of the Commissioner’s denial of benefits is limited to whether the
Commissioner’s position is supported by substantial evidence and whether the Commissioner
applied proper legal standards in evaluating the evidence. Greenspan, 38 F.3d at 236; 42 U.S.C.
§§ 405(g), 1383(C)(3). Substantial evidence is more than a scintilla, less than a preponderance,
and is such relevant and sufficient evidence as a reasonable mind might accept as adequate to
support a conclusion. Leggett, 67 F.3d at 564. Under this standard, the reviewing court does not
reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the
record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236.
III. ARGUMENTS AND ANALYSIS
A. Whether the ALJ’s Physical RFC Finding is Supported by Substantial Evidence
Plaintiff argues that it is unclear what evidence, other than her own lay opinion, the ALJ
relied on in determining Plaintiff’s physical RFC, and thus substantial evidence does not support
the RFC finding. (Doc. 28 at 21). Plaintiff contends that the ALJ ignored the only two opinions
given concerning his physical capabilities from (1) state agency consultant Dr. Rowley and (2)
Plaintiff’s treating source Dr. Johnson, and instead arrived at an RFC that was essentially a
compromise of those two opinions. Id. at 22-23. By finding Dr. Rowley’s opinion entitled to
“some weight” and Dr. Johnson’s opinion entitled to “limited weight,” Plaintiff argues that the
ALJ never specified what evidence supported her decision to reject the limitations contained in
the doctors’ assessments or what evidence supported her own RFC finding. In particular,
Plaintiff maintains that the ALJ did not explain why she rejected Dr. Rowley’s opinion that
Plaintiff could perform medium work or why she came close to adopting the significant
11
limitations described by Dr. Johnson, but then settled at essentially a sedentary RFC based on her
own lay opinion. Therefore, Plaintiff concludes that the ALJ failed to abide by the weighing
scheme set forth in 20 C.F.R. § 404.1527 in adjudicating the medical opinion evidence. Id. at 24.
Defendant responds that the ALJ’s physical RFC finding is supported by substantial
evidence because Plaintiff healed well from his heart surgery, his chest pain steadily decreased
thereafter, and despite his reports of fatigue and occasional shortness of breath through the fall of
2008, his cardiovascular and respiratory tests were normal, and his doctors felt that he was
almost able to return to unrestricted activity. (Doc. 30 at 5-7). After his hernia diagnosis,
Plaintiff’s complaints of pain still were infrequent until he had elective surgery a year later, and
there is no record of further complaints after that. Id. at 7-8. Defendant contends that the ALJ
did not improperly reject Dr. Johnson’s finding that Plaintiff was disabled because he had only
seen Plaintiff twice, and Dr. Johnson’s statement speaks to a legal conclusion that is reserved to
the Commissioner. Id. at 8-9.
Plaintiff replies that the Commissioner cannot fix the ALJ’s failure to include a narrative
discussion describing how the medical opinion evidence supports her physical RFC finding by
regurgitating the medical evidence and making post hoc rationalizations on the ALJ’s behalf.
(Doc. 31 at 2-3).
The RFC is an assessment, based on all of the relevant evidence, of a claimant’s ability to
do work on a sustained basis in an ordinary work setting despite his impairments. 20 C.F.R.
§§ 404.1545(a), 416.945(a); Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001). The RFC refers
to the most that a claimant can do despite his physical and mental limitations. 20 C.F.R.
§§ 404.1545(a), 416.945(a). The ALJ is responsible for assessing the medical evidence and
12
determining a claimant’s RFC. 20 C.F.R. §§ 404.1546(c), 416.946(c). The ALJ must consider
all medical evidence as well as other evidence provided by the claimant. 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The ALJ is permitted to draw reasonable inferences from the
evidence in making her decision, but is not required to incorporate limitations in the RFC that
she does not find to be supported in the record. See Morris v. Bowen, 864 F.2d 333, 336 (5th
Cir. 1988) (holding that the ALJ could rely on portions of a vocational expert’s answer without
endorsing all of the expert’s conclusions). In assessing RFC, the ALJ must consider limitations
and restrictions imposed by all of an individual’s impairments, even those that are not severe.
SSR 96-8p; 20 C.F.R. §§ 404.1523, 416.923.
Plaintiff argues at length that the ALJ was obligated to either accept wholesale Dr.
Johnson’s or Dr. Rowley’s opinion or to explain in detail why she rejected those opinions and
formulated her own physical RFC assessment. This assertion, however, is incorrect. First,
neither Dr. Rowley nor Dr. Johnson had the responsibility for assessing Plaintiff’s RFC because
the determination of a claimant’s RFC is reserved for the ALJ. See 20 C.F.R. §§ 404.1546(c),
416.946(c). The ALJ must consider statements by a physician about what a claimant can still do
despite his impairments because those opinions are an important consideration in assessing a
claimant’s RFC, but they are not determinative. See 20 C.F.R. §§ 404.1513, 416.913 (stating
that although the Commissioner will request a medical source statement about what a claimant
can still do despite his impairment, the lack of such a statement will not render the medical
record incomplete); 20 C.F.R. §§ 404.1527, 416.927 (describing how the Commissioner
considers and weighs physician opinions). Accordingly, there is no requirement that the ALJ’s
RFC finding mirror the opinion of either Dr. Rowley or Dr. Johnson. Morris, 864 F.2d at 336.
13
Thus, the only remaining question is whether the ALJ’s physical RFC finding was
supported by substantial evidence, and the undersigned concludes that it was. Leggett, 67 F.3d at
564. The ALJ’s determination (and Appeals Council’s affirmance) that Plaintiff could (1) lift up
to ten pounds, (2) sit for six hours in a work day, (3) stand/walk for two hours in a work day, and
(4) occasionally kneel and climb stairs, is supported by the fact that within four months of his
injury, Plaintiff had made dramatic improvements in his ability to walk, his physical strength,
and in his ability to engage in daily activities of life. (Tr. 19, 357-59). Indeed, Plaintiff’s pain
management administrator opined that he had no physical limitations that would prevent him
from working, and he sought virtually no treatment for his subsequent hernia for over a year until
he underwent surgery. (Tr. 357-59, 495, 809).
Thereafter, while Plaintiff was diagnosed with another hernia, he had only occasional
chest pain which most of his doctors believed was caused by reflux and was treated with
medication. (Tr. 866, 912, 921, 923). The ALJ noted many of these underlying facts in
explaining the basis for her RFC determination. (Tr. 19-21). This case is thus unlike Ripley v.
Chater, 67 F.3d 552, 557-58 (5th Cir. 1995) on which Plaintiff relies, because in Ripley the
appellate court held that an ALJ may not – without opinions from medical experts – derive a
claimant’s RFC solely from a claimant’s medical records. The Commissioner’s decision
regarding Plaintiff’s physical RFC is supported by substantial evidence. Leggett, 67 F.3d at 564.
B. Whether the ALJ’s Mental RFC Finding is Supported by Substantial Evidence
Plaintiff next argues that the ALJ, in formulating Plaintiff’s mental RFC, erroneously
rejected the opinions of state agency consulting psychologist Dr. Cox and examining consultative
psychologist Dr. Mount. (Doc. 28 at 25). In particular, Plaintiff notes that the ALJ ruled that he
14
could do detailed work even though Dr. Cox found that he was markedly limited in that regard.
Id. at 26. Additionally, Plaintiff maintains that Dr. Mount found he had a substantial loss in his
ability to respond appropriately to changes in a routine work setting, which is one of the
requirements for performing competitive, remunerative, unskilled work. Id. at 26-27 (citing SSR
85-15). Similarly, Plaintiff maintains, the Appeals Council erred in rejecting the opinions of
consultative examiner Dr. Knapp and Plaintiff’s treating psychiatrist Dr. Grable, who both found
that Plaintiff was limited in various ways that render him unable to perform even unskilled work.
Id. at 30-31.
Defendant responds that the ALJ’s extensive mental RFC assessment fully
accommodated any possible limitations stemming from Plaintiff’s alleged mental impairments,
and the ALJ had good reason to reject Dr. Mount’s opinion that Plaintiff’s mental limitations
prevented him from working. (Doc. 29 at 11-13). Moreover, he adds, the new evidence
submitted to the Appeals Council was irrelevant because it pertained to Plaintiff’s medical
condition after the ALJ had rendered her decision. Id. at 14.
Plaintiff replies that Defendant cannot cure the ALJ’s failure to connect her RFC findings
to the opinions of the medical sources who averred that Plaintiff was depressed. (Doc. 31 at 4).
Moreover, Plaintiff argues, the ALJ’s mental RFC impermissibly conflicted with Dr. Cox’s and
Dr. Mount’s assessments of Plaintiff’s limitations. Id. at 4-6. As for the new evidence that he
presented to the Appeals Council, Plaintiff urges that it does relate to the time period during
which his case was before the ALJ because Dr. Grable stated that Plaintiff had been limited to
approximately the same extent since he began treatment at her facility, which was in September
2009. Id. at 7.
15
1. Dr. Grable’s and Dr. Knapp’s Opinions
As an initial matter, and for the reasons stated by Plaintiff, Dr. Grable’s April 2011
medical source statement expressly relates to the time period during which Plaintiff’s case was
before the ALJ, and the Court will thus consider it in ruling in this case. (Tr. 1129); 20 C.F.R. §
404.970(b) (stating that the Appeals Council must consider new and material evidence submitted
to it if it relates to the period on or before the date of the ALJ’s decision); Higginbotham v.
Barnhart, 405 F.3d 332, 337-38 (5th Cir. 2005) (stating that evidence submitted for the first time
to the Appeals Council is considered part of the record upon which the Commissioner’s final
decision is based, and such evidence should be considered by the district court). On the other
hand, Dr. Knapp stated that he based his January 2011 opinion on his December 2010
examination of Plaintiff, which is after the ALJ’s decision, so the Court will not consider Dr.
Knapp’s opinion in issuing a decision. (Tr. 916); Higginbotham, 405 F.3d at 337-38.
2. Plaintiff’s Ability to do Detailed Work
Turning to the substance of Plaintiff’s arguments, the Court finds merit in his claim that
the ALJ erroneously ruled (and the Appeals Council erred in affirming) that he could understand
and carry out “detailed, but uninvolved written or oral instructions.” That determination is
directly contrary to Dr. Cox’s, Dr. Mount’s, and Dr. Grable’s medical opinions and is utterly
unsupported by any medical opinion. (Tr. 485, 751, 1128-29); Ripley, 67 F.3d at 557-58.
Nevertheless, Social Security Ruling 85-15, upon which Plaintiff relies, states that “[t]he basic
mental demands of . . . unskilled work include the abilities . . . to understand, carry out, and
remember simple instructions.” See also 20 C.F.R. § 404.1521(b) (stating that basic work
activities include “understanding, carrying out, and remembering simple instructions”). In this
16
case, the ALJ’s and Appeals Council’s error in finding that Plaintiff could understand and carry
out detailed written or oral instructions is harmless because Plaintiff was limited to unskilled
work, which does not require that ability. Accordingly, Plaintiff’s substantial rights were not
affected, and reversal is not warranted on this claim of error. Mays v. Bowen, 837 F.2d 1362,
1364 (5th Cir. 1988) (holding that “[p]rocedural perfection in administrative proceedings is not
required” as long as “the substantial rights of a party have not been affected.”).
3. Plaintiff’s Ability to Respond Appropriately To Changes in a Work Setting
The Court next considers Plaintiff’s argument that the ALJ erred in rejecting Dr. Mount’s
finding that Plaintiff had a substantial loss in his ability to respond appropriately to changes in a
routine work setting, which would preclude him from performing unskilled work. Social
Security Ruling 85-15 states that “[t]he basic mental demands of competitive, remunerative,
unskilled work include the abilit[y] . . . to deal with changes in a routine work setting.” While
the ALJ may have acted within her discretion in discounting Dr. Mount’s finding that Plaintiff
could not comply with this requirement, 20 C.F.R. § 404.1527(c), Plaintiff’s treating psychiatrist
Dr. Grable made the same finding, yet there is no explanation in the record for the Appeals
Council’s rejection of her opinion. (Tr. 1128). The only other medical evidence on point is the
assessment by non-examining psychologist, Dr. Cox, who opined that Plaintiff had moderate
limitations in this regard. (Tr. 486).
Based on its internal procedures, the Appeals Council generally does not need to provide
a detailed discussion about all new evidence submitted to it. Higginbotham, 405 F.3d at 335 n.1
(referring to a memorandum from the Commissioner’s Executive Director of Appellate
Operations dated July 1995). Nevertheless, where new medical opinion evidence is so
17
inconsistent with the ALJ’s findings that it undermines the ultimate disability determination, the
case should be remanded so that the Appeals Council can fully evaluate the treating source
statement as required by law. Stewart v. Astrue, 2008 WL 4290917, *4 (N.D. Tex. 2008); see
also Jones v. Astrue, 2008 WL 3004514, *4-5 (S.D. Tex. 2008) (remand required where the
summary denial of a request for review provided no indication that the Appeals Council
evaluated the treating source statement as required by SSR 96-5); Green v. Astrue, 2008 WL
3152990, * 7-9 (N.D. Tex. 2008) (remand required where the summary denial of a request for
review provided no indication that the Appeals Council evaluated the treating source statement
pursuant to 20 C.F.R. § 404.1527); Stevenson v. Astrue, 2008 WL 1776504, *3-4 (N.D. Tex.
2008) (same); cf. SSR 96-5 (providing that adjudicators must weigh medical source statements
and RFC assessments and “provide appropriate explanations for accepting or rejecting such
opinions”). This caselaw also finds support in 20 C.F.R. § 404.1527(e)(3), which requires that
when the Appeals Council makes a decision, it must follow the same rules for considering
medical opinion evidence that ALJs follow.
In the case at bar, Dr. Grable’s opinion that Plaintiff is substantially limited in his ability
to respond appropriately to changes in a routine work setting conflicts with the Appeals
Council’s finding on summary affirmance that Plaintiff is capable of performing a range of
unskilled, sedentary work, which requires that ability. SSR 85-15 (1985). Moreover, there is no
other medical opinion of record to support the ALJ’s decision or the Appeals Council’s
affirmance that Plaintiff has that particular ability. Ripley, 67 F.3d at 557-58. Accordingly,
remand is required on this ground. Stewart, 2008 WL 4290917 at *4.
4. Dr. Grable’s Opinion About Plaintiff’s Other Limitations
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The undersigned also finds merit in Plaintiff’s final argument that he is incapable of even
unskilled work based on Dr. Grable’s determination that he is substantially limited in his abilities
to (1) carry out simple instructions; (2) maintain attention and concentration for extended
periods; (3) accept instructions and respond appropriately to criticism from supervisors; and (4)
get along with co-workers without distracting them. The definition of basic work activities
requires that a claimant be able to understand and carry out simple instructions and respond
appropriately to supervision, and Dr. Grable opined that Plaintiff is substantially limited in these
areas. (Tr. 1127-28); 20 C.F.R. §§ 404.1521(b)(3), (5), 416.921(b)(3), (5). Further, the basic
mental demands of competitive, unskilled work include the additional abilities to respond
appropriately to coworkers and to typical work situations. SSR 85-15 (1985). Dr. Grable felt
that Plaintiff suffered from substantial limitations in these areas as well. A substantial loss in a
claimant’s ability to meet any of these basic work-related activities severely limits the potential
occupational base. Id. Moreover, the Appeals Council pointed to no contradictory medical
evidence in the record to refute Dr. Grable’s opinion. Ripley, 67 F.3d at 557-58; Stewart, 2008
WL 4290917 at *4. Indeed, Dr. Grable’s assessment finds some support in Dr. Cox’s opinion
that Plaintiff has moderate limitations in all of those areas. (Tr. 485-86, 1128). Accordingly, this
case must be remanded for further consideration in light of Dr. Grable’s treating source opinion.
Stewart, 2008 WL 4290917 at *4.
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IV. CONCLUSION
For the reasons discussed herein, Plaintiff’s Motion for Summary Judgment (Doc. 27) is
GRANTED, Defendant’s Motion for Summary Judgment (Doc. 30) is DENIED, the
Commissioner’s decision is REVERSED, and this case is REMANDED for further proceedings
consistent with this opinion.
SO ORDERED on June 21, 2012.
________________________________________
RENÉE HARRIS TOLIVER
UNITED STATES MAGISTRATE JUDGE
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