Foley v. Colvin
Filing
23
Memorandum Opinion and Order: The hearing decision is reversed and this case is remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 10/2/2015) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JIMMY LYVERA FOLEY,
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Plaintiff,
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V.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security, §
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Defendant.
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No. 3:14-cv-4176-BN
MEMORANDUM OPINION AND ORDER
Plaintiff Jimmy Lyvera Foley seeks judicial review of a final adverse decision
of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
stated herein, the hearing decision is reversed.
Background
Plaintiff alleges that he is disabled as a result of high blood pressure, depression,
muscle spasm, and kidney disease. See Administrative Record [Dkt. No. 15 (“Tr.”)] at
219. After his application for disability insurance benefits was denied initially and on
reconsideration, Plaintiff requested a hearing before an administrative law judge
(“ALJ”). That hearing was held on August 19, 2013. See id. at 54-87. At the time of the
hearing, Plaintiff was 48 years old. See id. at 22, 56. He has a tenth grade education
and has past work experience as a construction laborer. See id. at 22, 82. Plaintiff has
not engaged in substantial gainful activity since September 28, 2009. See id. at 13.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability benefits. See id. at 25. Although the medical evidence established that
Plaintiff suffered from small vessel ischemic disease with migraines, hypertension,
obesity, marijuana abuse, bradycardia, degenerative hip and lower spinal changes, and
major depressive disorder with treatment noncompliance, see id. at 13, the ALJ
concluded that the severity of those impairments did not meet or equal any impairment
listed in the social security regulations, see id. at 18. The ALJ further determined that
Plaintiff had the residual functional capacity to perform a limited range of light work,
but could not return to his past relevant employment. See id. at 20, 22. Relying on a
vocational expert’s testimony, the ALJ found that Plaintiff was capable of working as
a laundry worker, stock clerk/order filler/ticketer, and assembler (sub-assembler) – jobs
that exist in significant numbers in the national economy. See id. at 23.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. Plaintiff challenges the
hearing decision on two general grounds: (1) the assessment of his residual functional
capacity is not supported by substantial evidence and results from reversible legal
error because the ALJ improperly rejected the opinions of the Commission’s examining
psychiatrists; and (2) the finding that Plaintiff can perform other work in the national
economy was based on an improper hypothetical question to the vocational expert.
The Court determines that the hearing decision must be reversed and this case
remanded to the Commissioner of Social Security for further proceedings consistent
with this opinion.
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Legal Standards
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
and whether Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.
“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A disabled worker is entitled to monthly social security benefits if certain conditions
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are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage
in substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or last for a continued
period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985). The Commissioner has promulgated a fivestep sequential evaluation process that must be followed in making a disability
determination:
1.
The hearing officer must ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is working
is not disabled regardless of the medical findings.
2.
The hearing officer must determine whether the claimed
impairment is “severe.” A “severe impairment” must significantly
limit the claimant’s physical or mental ability to do basic work
activities. This determination must be made solely on the basis of
the medical evidence.
3.
The hearing officer must decide if the impairment meets or equals
in severity certain impairments described in Appendix 1 of the
regulations. The hearing officer must make this determination
using only medical evidence.
4.
If the claimant has a “severe impairment” covered by the
regulations, the hearing officer must determine whether the
claimant can perform his or her past work despite any limitations.
5.
If the claimant does not have the residual functional capacity to
perform past work, the hearing officer must decide whether the
claimant can perform any other gainful and substantial work in
the economy. This determination is made on the basis of the
claimant's age, education, work experience, and residual functional
capacity.
See 20 C.F.R. § 404.1520(b)-(f); Copeland, 771 F.3d at 923 (“The Commissioner
typically uses a sequential five-step process to determine whether a claimant is
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disabled within the meaning of the Social Security Act. The analysis is: First, the
claimant must not be presently working. Second, a claimant must establish that he has
an impairment or combination of impairments which significantly limit [her] physical
or mental ability to do basic work activities. Third, to secure a finding of disability
without consideration of age, education, and work experience, a claimant must
establish that his impairment meets or equals an impairment in the appendix to the
regulations. Fourth, a claimant must establish that his impairment prevents him from
doing past relevant work. Finally, the burden shifts to the Secretary to establish that
the claimant can perform the relevant work. If the Secretary meets this burden, the
claimant must then prove that he cannot in fact perform the work suggested.” (internal
quotation marks omitted)); Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007) (“In
evaluating a disability claim, the Commissioner conducts a five-step sequential
analysis to determine whether (1) the claimant is presently working; (2) the claimant
has a severe impairment; (3) the impairment meets or equals an impairment listed in
appendix 1 of the social security regulations; (4) the impairment prevents the claimant
from doing past relevant work; and (5) the impairment prevents the claimant from
doing any other substantial gainful activity.”).
The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive
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and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
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that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
Analysis
Among the arguments that Plaintiff makes is a single ground that compels
reversal and remand – the ALJ’s failure to explain the weight that he assigned to the
state agency examining consultants’ opinions.1 Plaintiff argues that the ALJ’s mental
residual functional capacity (“RFC”) determination does not address the full range of
mental impairments identified by two of the Commission’s examining consultants –
Barbara Fletcher, Psy. D., and Deborah Greaves, Ph. D. – and that the ALJ did not
indicate the weight given to their opinions. Plaintiff also argues that the ALJ found
that Plaintiff had moderate limitations to concentrate, persist, or maintain pace but
failed to include those limitations in the RFC.
Dr. Fletcher conducted a psychological consultative examination of Plaintiff on
February 24, 2011. See Tr. at 359-63. Dr. Fletcher observed that Plaintiff appeared
depressed and evidenced pain behavior with frequent shifting and grimacing. Plaintiff
reported that he had been depressed for several years. He reported symptoms of
depression, which included tearfulness, sleep disturbance, decreased energy, decreased
motivation to activity, decreased motivation to maintain hygiene and appearance,
appetite disturbance, loss of interest in pleasurable activities, social withdrawal,
irritability, problems with concentration and memory, and feelings of guilt,
By remanding this case for further administrative proceedings, the Court does
not suggest that Plaintiff is or should be found disabled.
1
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hopelessness and helplessness. He also reported frequent thoughts of suicide, but
denied a plan or intent to commit suicide. And he reported perceptual abnormalities
for the last year and a half. He frequently heard the phone ringing when it was not or
someone knocking on the door when no one was there. He heard noises outside and
around the house when nothing appeared to be there. He heard his name being called
when no one had spoken. He occasionally thought that he saw things in his peripheral
vision, but, when he looked, nothing was there. Dr. Fletcher noted clear and easily
understandable speech; no evidence of thought disorder; no looseness of association,
circumstantiality, or tangentiality; appropriate responses; no delusion or illogical
thinking; and good memory, insight, and judgment. Dr. Fletcher diagnosed major
depressive disorder, recurrent, severe with psychotic features, and a global assessment
of functioning (“GAF”) rating of 48. Her prognosis was guarded.
Dr. Gleaves conducted a psychological consultative examination of Plaintiff on
September 28, 2011 after reviewing medical records. See id. at 400-05. Dr. Gleaves
noted that Plaintiff reported a long history of depression. At the time of the exam, he
reported feeling “overwhelmed by everything.” He had difficulty sleeping, decreased
appetite, and little interest in activities, and he felt hopeless, worthless, and guilty
because he was not working. Plaintiff reported that it was difficult for him to complete
tasks because he couldn’t concentrate, was easily distracted, depressed, and in pain,
and Dr. Gleaves noted that during the evaluation, Plaintiff had some mild difficulty
with tasks that required attention, concentration, and short-term memory. Dr. Gleaves
noted that Plaintiff expressed his thoughts in a coherent and logical manner and there
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were no loose associations, tangents, perseverations, or flight of ideas. Dr. Gleaves
further noted that Plaintiff reported ongoing paranoid, suicidal, and homicidal
ideation, but no intent to act on it. And Dr. Gleaves noted that Plaintiff reported both
auditory and visual hallucinations. Dr. Gleaves diagnosed major depressive disorder,
recurrent, with severe psychosis, and a GAF rating of 50. Her prognosis was guarded
because Plaintiff had not made a positive response to treatment, and she opined that
“[a]t the present time [Plaintiff’s] psychiatric symptomatology would make it difficult
for him to function appropriately in the full time competitive workforce.”
State agency medical or psychological consultants such as Drs. Fletcher and
Gleaves are considered experts in the Social Security disability program, and the
opinions of these examining physicians may be entitled to great weight if they are
supported by the evidence. See Rawls v. Astrue, No. 4:10-cv-71-BJ, 2011 WL 725279,
at *11 (N.D. Tex. Mar. 2, 2011). Although an ALJ is solely responsible for assessing a
claimant’s RFC, he must consider and evaluate any opinion by an examining physician
or state agency medical consultant (“SAMC”) regarding the claimant’s RFC. See SSR
96-6p, 1996 WL 374180 (S.S.A. July 2, 1996). Specifically, “RFC assessments by
[SAMCs] ... are to be considered and addressed in the [ALJ’s] decision as medical
opinions from nonexamining sources about what the individual can still do despite his
or her impairment[s]” and “are to be evaluated considering all the factors ... for
considering opinion evidence” outlined in 20 C.F.R. § 404.1527(c). Id. The ALJ is not
required to expressly discuss each finding by a SAMC or discuss each factor listed in
20 C.F.R. § 404.1527(c), however, because such a detailed analysis applies only to the
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ALJ’s rejection of a treating sources’ uncontradicted opinion. See Newton v. Apfel, 209
F.3d 448, 456-58 (5th Cir. 2000). The ALJ also “must explain the weight given to these
opinions in [his] decision[].” SSR 96-6p, 1996 WL 374180, at *4.
The ALJ found that Plaintiff had the mental RFC to “understand, remember,
and carry out routine and repetitive one-two-three step tasks and instructions and
occasionally interact with the general public.” Tr. at 20. The ALJ explained that the
most recent state agency medical reviewing consultants opined that Plaintiff could
perform the full range of medium exertional work and could understand, remember,
and carry out simple instructions; attend and concentrate for extended periods; interact
appropriately with coworkers and supervisors; and respond appropriately to changes
in a routine work setting. See id. at 21; see also id. at 431. The ALJ gave weight to the
opinions of the state agency medical reviewing consultants to the extent that they were
consistent with his decision. See id. at 21.
The ALJ referenced the opinion of Matthew Turner, Ph. D., who performed a
Mental Residual Functional Capacity Assessment on November 16, 2011. See id. at 429
-31. Dr. Turner found Plaintiff was not significantly limited in the ability to
understand, remember, and carry out very short and simple instructions; the ability
to make simple work-related decisions; the ability to ask simple questions or request
assistance; or the ability to maintain socially appropriate behavior. Dr. Turner then
opined that Plaintiff can maximally understand, remember, and carry out simple
instructions; attend and concentrate for extended periods; interact appropriately with
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co-workers and supervisors; and respond appropriately to changes in a routine work
setting.
The ALJ also stated that he was “cognizant that appropriate consideration”
must be given to the opinions of the state agency medical consultants,” but he did not
state the weight he gave those opinions. See id. at 21. At step two, the ALJ discussed
Plaintiff’s medical history, including the evaluations by Drs. Gleaves and Fletcher. See
id. at 14-18. At step three, the ALJ noted that Drs. Gleaves and Fletcher assessed GAF
scores of 48 and 50 for serious symptoms to borderline moderate symptoms. The ALJ
explained that the GAF is a numeric scale (0 through 100) used by mental health
clinicians and doctors to rate the social, occupational, and psychological functioning of
adults and that a GAF score of 41-50 indicates serious symptoms or any serious
impairment in social, occupational, or school functioning. See id. at 15, 21. The ALJ
also explained that GAF scores are generally for the current level of functioning and
can result in major variations. See id. The GAF scores reflect the clinician’s subjective
judgment about the severity of the claimant’s symptoms and psychological, social, and
occupational functioning. See id. at 21. And, even though the GAF scale has no direct
correlation to the severity requirements in the mental disorder listings, GAF scores are
still opinion evidence to consider. See id. at 22.
The ALJ then concluded that “limiting the claimant to understanding,
remembering, and carrying out routine and repetitive one-two-three step tasks and
instructions, as well as occasionally interacting with the general public accounts for
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his mental impairments, GAF scores, and is generally consistent with the state Agency
reviewing recommendation.” Id. The ALJ later summarized that, “while the claimant
may experience some degree of discomfort and depressive symptomatology at times
that are incompatible with the performance of certain levels of sustained work activity,
neither the objective medical or non-medical evidence, establishes that the claimant’s
ability to function is so severely impaired as to preclude unskilled work at the limited
light level of exertion.” Id.
Even though the ALJ discussed Drs. Gleaves’ and Fletcher’s evaluations at step
two and step three, he did not expressly explain the weight he gave to those opinions
in determining Plaintiff’s mental RFC. See Tr. at 20-22. This was error.
The Court therefore must consider whether the ALJ’s failure to properly weigh
Drs. Gleaves’ and Turner’s opinions is harmless. See Webb v. Astrue, No. 4:08-cv-747-Y,
2010 WL 1644898, at *11 (N.D. Tex. Mar. 2. 2010) (applying harmless error analysis
to the ALJ’s failure to give weight to an SAMC’s opinion). In the Fifth Circuit,
harmless error exists when it is inconceivable that a different administrative
conclusion would have been reached absent the error. See Bornette v. Barnhart, 466 F.
Supp. 2d 811, 816 (E.D. Tex. 2006) (citing Frank v. Barnhart, 326 F.3d 618, 622 (5th
Cir. 2003)). Plaintiff argues that he was harmed because the ALJ found Plaintiff had
moderate difficulties in maintaining concentration, persistence, or pace, as did the
state agency examining consultants, but the ALJ failed to account for those limitations
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in the RFC. The ALJ instead found that Plaintiff could understand, remember, and
carry out routine and repetitive one-two-three step tasks.
The ALJ based his hypothetical to the vocational expert (“VE”) at the hearing
and subsequently his RFC determination on the RFC findings by Dr. Turner. But those
findings do not take “slow persistence and pace” into account, and the ALJ does not
explain how he weighed the contradictory findings of Drs. Gleaves and Fletcher on this
issue. There is no evidence in the record as to whether the jobs identified by the VE
could be performed at “slow persistence and pace,” and Plaintiff suffered prejudice
because the ALJ concluded that Plaintiff could perform those jobs, which led to a
finding of not disabled. See id. at 2426.
Accordingly, because it is conceivable that a different administrative conclusion
would have been reached if the ALJ had properly weighed Drs. Gleaves’s and Fletcher’s
opinions, remand is required. See Webb, 2010 WL 1644989, at *11; Bornette, 466 F.
Supp. 2d at 816.
Conclusion
The hearing decision is reversed and this case is remanded to the Commissioner
of Social Security for further proceedings consistent with this opinion.
SO ORDERED.
DATED: October 2, 2015
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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