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Stone v. Berryhill

United States District Court, N.D. Alabama, Middle Division

September 19, 2017

ALISHA STONE, CLAIMANT,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, RESPONDENT.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On June 4, 2014, the claimant, Alisha Stone, protectively applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. She alleged disability beginning December 3, 2012, because of Chronic Obstructive Pulmonary Disease, asthma, rheumatoid arthritis, seizures, memory loss, manic depression, Post Traumatic Stress Disorder (PTSD), anxiety, muscle spasms, migraines, Latent Positive TB (not active), restless leg syndrome, fibromyalgia, problems with her left side neck vertebrae, and herniated discs. The Commissioner denied the claimant's applications on September 14, 2014. The claimant filed a timely request for a hearing before an Administrative Law Judge, and the ALJ held a video hearing on November 5, 2015. (R. 83-84, 19).

         In a decision dated January 11, 2016, the ALJ found that the claimant was not disabled as defined by the Social Security Act and was, therefore, ineligible for social security benefits. On March 10, 2016, the Appeals Council denied the claimant's request for review. Consequently, the ALJ's decision became the final decision of the Social Security Administration. The claimant has exhausted her administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court will reverse and remand the decision of the Commissioner. (R. 16-35, 1-6).

         II. ISSUE PRESENTED[1]

         Whether the ALJ's decision to give the opinion of the claimant's treating psychiatrist Dr. Grant little weight lacks substantial evidence.

         III. STANDARD OF REVIEW

         The standard for reviewing the Commissioner's decision is limited. This court must affirm the ALJ's decision if he applied the correct legal standards and if substantial evidence supports his factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

         “No ... presumption of validity attaches to the [Commissioner's] legal conclusions, including determination of the proper standards to be applied in evaluating claims.” Walker, 826 F.2d at 999. This court does not review the Commissioner's factual determinations de novo. The court will affirm those factual determinations that are supported by substantial evidence. “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, 402 (1971).

         The court must keep in mind that opinions, such as whether a claimant is disabled, the nature and extent of a claimant's residual functional capacity, and the application of vocational factors, “are not medical opinions, ... but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the claimant meets a Listing and is qualified for Social Security disability benefits is a question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the significance of certain facts, the court has no power to reverse that finding as long as substantial evidence in the record supports it.

         The court must “scrutinize the record in its entirety to determine the reasonableness of the [Commissioner]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only look to those parts of the record that support the decision of the ALJ, but also must view the record in its entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).

         IV. LEGAL STANDARD

         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....” 42 U.S.C. § 423(d)(1)(A). To make this determination the Commissioner employs a five-step, sequential evaluation process:

(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); 20 C.F.R. §§ 404.1520, 416.920.

         Absent a showing of good cause to the contrary, the ALJ must accord substantial or considerable weight to the opinions of treating physicians. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). The ALJ must credit the opinions of treating physicians over those of consulting physicians unless good cause exists for treating the opinions differently. Lewis v. Callahan, 125 F.3d 1436, 1440-41 (11th Cir. 1997). The ALJ may discount a treating physician's report when it is not accompanied by objective medical evidence or is wholly conclusory. Crawford v. Commissioner, 363 F.3d at 1159. Where substantial evidence does not support the ALJ articulated specific reasons for failing to give the opinion of a treating physician controlling weight, the ALJ commits reversible error. See Perez v. Comm'r of Soc. Sec., 625 F. App'x 408, 417-18 (11th Cir. 2015); see also Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).

         V. FACTS

         The claimant was thirty-seven years old at the time of the ALJ's final decision. She had an eighth-grade education and had not completed her GED. She has past relevant work as a certified nursing assistant (CNA), a cook, and a shift manager at a fast food restaurant. She alleges disability based on COPD, asthma, rheumatoid arthritis, seizures, memory loss, manic depression, PTSD, anxiety, muscle spasms, migraines, Latent Positive TB (not active), restless leg syndrome, fibromyalgia, problems with her left side neck vertebrae, and herniated discs. (R. 221).

         Physical and Mental Impairments

         Between April 28, 2011, and November 14, 2013, the claimant sought treatment with Dr. Danny Salisbury, D.O. with Holistic Pain Management, about once every month for anxiety and constant sharp aches and pains all over her body, but typically centered in her lower back. Each visit, she reported limited activity and range of motion because of her pain and usually ranked her pain between a 3/10 and a 6/10. Activity reportedly worsened her symptoms, while medications and rest diminished her symptoms. Dr. Salisbury treated her pain with Roxicodone and Lortab, and her anxiety with Xanax, which the claimant reported were usually effective to manage her pain. (R. 381-420).

         On September 28, 2012, while driving, the claimant briefly lost consciousness, possibly because of a seizure, drove off an embankment, and collided with a tree head-on. She was emergency airlifted to the Huntsville Hospital emergency room and was “in and out of responsiveness” during the transport to the hospital. Dr. Daniel Spangler indicated that the claimant was “nearly unintelligible”; that her right pupil was dilated; and that she suffered from tenderness in her head, a scalp contusion, a neck strain, chest wall contusion, and a lip laceration. Dr. Spangler also noted the claimant has a “known seizure disorder.” He prescribed Dilaudid for pain, Phenergan for nausea, and Cilaucid for breakthrough pain. After her CT scans of her head and back showed no significant abnormalities, Dr. Spangler discharged the claimant the next day. He instructed her not to drive until she was cleared by another doctor because of her seizure risk and to continue taking her current pain medications. (R. 433-506).

         On October 25, 2012, the claimant followed-up with Nurse Practitioner Mary Kathryn Lauderdale with Quality of Life Health Services, Inc. NP Lauderdale diagnosed the claimant with chronic seizures/convulsions, chronic low back pain, chronic fibromyalgia/myositis, chronic anthropathy, and chronic asthma. She specifically noted under the “Neuro/Psychiatric” section that the claimant's seizures caused an “altered level of consciousness”; drooling; focal neurological deficit; memory impairment; headaches; poor insight; poor judgment; poor attention span and concentration, characterized as “concentration disjointed”; and tongue biting and unresponsiveness. Nurse Practitioner Lauderdale prescribed Fioricet, Lortab, and oxycodone for pain; Soma as a muscle relaxer; Symbicort for asthma and COPD; Tegretol for seizures; and Xanax for anxiety. (R. 601-603).

         On December 14, 2012, the claimant sought treatment with CED Mental Health Center. Licensed Professional Counselor Brooke Bowen initially examined the claimant during intake. The claimant complained of depression (no appetite, no energy, lack of sleep, crying spells), anxiety, panic attacks, mood swings, and seizures. The claimant noted impairments in daily living and reported that, when she was 15 years old, her step-father raped and abused her. Ms. Bowen assessed the claimant with a 31 on the Global Assessment of Functioning (GAF) Scale, indicating major impairment in work or school, family relations, judgment, thinking, and mood. Ms. Bowen noted that the claimant had difficulty with acknowledging problems and blamed them on others or on circumstances. Ms. Bowen recommended individual therapy and a physician's medical assessment.

         Dr. Richard Grant, a psychiatrist, assessed the claimant that same day and diagnosed her with major depression, severe without psychosis; post-traumatic stress disorder; seizures; and bulging/herniated discs. (R. 540-47).

         On January 4, 2013, the claimant returned to CED for individual therapy with Ms. Brooks and reported an increase in her depression symptoms. The claimant's GAF Score remained at 31. Ms. Bowen worked with the claimant to establish goals to decrease depression, learn coping strategies, and reduce her dependence on prescription medications. Ms. Bowen recommended that the claimant undergo a medical assessment by a psychiatrist every six months and have individual therapy every six weeks. Dr. Grant concurred with Ms. Bowen's recommendation. (R. 536-39).

         Between December 14, 2012 and June 24, 2015, the claimant visited CED ten times for therapy and three times for consultations with Dr. Grant.[2] Several therapists with different qualifications counseled the patient during this time in addition to Ms. Bowen. During these sessions, the claimant presented mostly for major depression, PTSD, seizure disorder, panic attacks, anxiety, and diminished memory. The severity of the claimant's symptoms fluctuated during this period. By March 8, 2013, the claimant reported that her depression and seizures had worsened tremendously and that she had made no progress toward her treatment goals. The record reflects that the claimant missed several therapy appointments because “seizures messed up [her] memory.” (R. 5 28-30, 534-36, 540-47, 570-78, 629-33, 639-45).

         On April 19, 2013, Dr. Salisbury examined the claimant for depression and chronic pain. Dr. Salisbury noted that the claimant's mood was dysphoric and that she was tearful. Dr. Salisbury prescribed Zoloft for depression and anxiety. (R. 531-33). On July 8, 2013, Dr. Grant refilled the claimant's Zoloft prescription. (R. 530).

         On November 14, 2013, Dr. Salisbury sent a letter to the claimant, informing her that as of that day, Holistic Pain Management could no longer treat her. Dr. Salisbury gave the claimant thirty days to find a new pain management doctor, during which time the claimant could rely on Holistic Pain Management for emergency care only. The letter did not specify a reason for refusing to treat the claimant further; however, the claimant ...


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