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Bulger v. Colvin

United States District Court, Middle District of Alabama, Southern Division

September 12, 2014

TIMOTHY RACINE BULGER, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION AND ORDER

CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE

I. Introduction.

The plaintiff applied for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq., alleging that he was unable to work because of a disability. His application was denied at the initial administrative level. The plaintiff then requested and received a hearing before Administrative Law Judge (“ALJ”) Tracy S. Guice. Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent request for review. The ALJ’s decision consequently became the final decision of the Commissioner of Social Security (Commissioner).[1] See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3).[2] Based on the court’s review of the record in this case and the briefs of the parties, the court concludes that the decision of the Commissioner should be reversed.

II. Standard of Review

Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable 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 period of not less than 12 months.

To make this determination[3] the Commissioner employs a five step, sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.

(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).[4]

The standard of review of the Commissioner’s decision is a limited one. This court must find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007). “Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). A reviewing court may not look only to those parts of the record which supports the decision of the ALJ but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986). The court “may not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quotation marks omitted).

[The court must, however, ] . . . scrutinize the record in its entirety to determine the reasonableness of the [Commissioner’s] . . . factual findings . . . No similar presumption of validity attaches to the [Commissioner’s] . . . legal conclusions, including determination of the proper standards to be applied in evaluating claims.

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

III. The Issues

A. Introduction.

Bulger was 38 years old at the time of the hearing before the ALJ and has an 11th grade education. (R. 70). His prior work experience includes work as an orderly and a lumber stacker. (R. 22). Following the administrative hearing, the ALJ concluded that Bulger has severe impairments of borderline intellectual functioning, depression, lumbar radiculopathy, left groin sprain and hypertension. (R. 15). The ALJ also found that Bulger had a severe impairment of “headaches, ” but immediately contradicted this finding by also concluding that Bulger’s headaches were a “non-severe impairment.” (R. 15). The ALJ concluded that Bulger was unable to perform his past relevant work. (R. 22). Nonetheless, the ALJ concluded that Bulger was not disabled because the plaintiff has the residual functional capacity to perform other work that is available in the national economy.

B. The Plaintiff’s Claims. As stated by the plaintiff, his claims are

1. Whether the Commissioner’s decision should be reversed because the ALJ failed to give great weight to the opinions of Bulger’s treating physician, Dr. Richard Bendinger.
2. Whether the Commissioner’s decision should be reversed because the ALJ’s finding that Bulger is capable of performing light work is not supported by substantial evidence.
3. Whether the Commissioner’s decision should be reversed because, prior to relying on the VE’s testimony, the ALJ failed to explain an inconsistency between the VE’s testimony and the Dictionary of Occupational Titles.

In this case, the ALJ’s opinion is so comprehensively infected with legal error and misstatements of the record that it is not possible to consider the first two issues raised by the plaintiff separately from many of the other glaringly-obvious fatal deficiencies in the ALJ’s determination of Bulger’s residual functional capacity. Accordingly, by necessity, the court will address the first two issues raised by the plaintiff within the context of its consideration of the ALJ’s opinion and the record as a whole. See Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985) (holding that the presumption of deference to the Commissioner’s factual findings “does not permit [the court] to close [its] eyes when presented with clear error in the application of the governing statute, or with evidence insubstantial on its face”); see also Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (citations omitted) (holding that, although the court’s review of the Commissioner’s findings of fact is limited to determining whether those findings are supported by substantial evidence, the reviewing court has the duty to “scrutinize the record in its entirety to determine the reasonableness of the [Commissioner’s] factual findings”); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) (“In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the Secretary’s decision.”).

Further, because the court’s consideration of the first two issues lead to the conclusion that this case must be reversed, the court pretermits consideration of the third issue raised by the plaintiff.

IV. Discussion

A disability claimant bears the initial burden of demonstrating an inability to return to his past work. Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990). In determining whether the claimant has satisfied this burden, the Commissioner is guided by four factors: (1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability, e.g., the testimony of the claimant and his family or friends; and (4) the claimant’s age, education, and work history. Tieniber v. Heckler, 720 F.2d 1251 (11th Cir. 1983). The ALJ must conscientiously probe into, inquire of and explore all relevant facts to elicit both favorable and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981). The ALJ must also state, with sufficient specificity, the reasons for his decision referencing the plaintiff’s impairments.

Any such decision by the Commissioner of Social Security which involves a determination of disability and which is in whole or in part unfavorable to such individual shall contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner’s determination and the reason or reasons upon which it is based.

42 U.S.C. § 405(b)(1) (emphases added). Within this analytical framework, the court will address the plaintiff’s claims.

A. Failure to Consider All Impairments When Determining Residual Functional Capacity

At the outset, the court notes that, at step two of the sequential evaluation process, the the ALJ found that Bulger’s headaches were a severe impairment, but then the ALJ proceeded to state that she found Bulger’s headaches were not a severe impairment. (R. 15) These findings are erroneous because, as a matter of law, a single impairment cannot simultaneously be both severe and non-severe. See 20 C.F.R. 416.920(c) (providing that “an impairment or combination of impairments” is a “severe impairment” if it “significantly limits your physical or mental ability to do basic work activities”); 20 C.F.R. § 416.921(a) (“An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.”).

Further, the record does not support the reasons given by the ALJ for finding that Bulger’s headaches were a non-severe impairment. The ALJ’s explanation for this finding was as follows:

With regard to the claimant’s alleged headaches, the Administrative Law Judge notes that there is only one treatment record with regard to that allegation. The Administrative Law Judge notes that that [sic] record indicated the claimant was in no acute or respiratory distress. The diagnosis on that date was tension headache. The Administrative Law Judge does note that a subsequent office note on January 23, 2011 stated “no refill” and there is no indication that the claimant presented for any further follow up with regard to his headaches (Exhibit 6-F). Therefore, the claimant's allegation of headaches is determined to be a non-severe impairment because follow up treatment is not noted in the record.

(R. 15).

The record reflects that, on September 18, 2010, Dr. Kelley treated Bulger for a headache. (R. 281). As observed by the ALJ, Dr. Kelley noted that Bulger was in “no acute distress or respiratory distress” (R. 281). However, nothing else in the ALJ’s explanation correctly represents the record regarding Bulger’s headaches. Although Bulger was not in acute or respiratory distress, Dr. Kelley noted that Bulger reported that he hurt all over, that the headache had caused “nausea and vomiting over the past couple of days” and that Bulger had a history of migraine headaches. (R. 281). Treatment notes also indicated that Bulger reported fatigue and dizziness with the headache. (R. 281). ...


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