Opinion

Rigsby v. Commissioner of Social Security

Court
District Court, M.D. Florida
Filed
Mar 23, 2020
Cited by
0 cases
Authority
More cited than 19.7%

The opinion

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Jacksonville Division

LISA KIMBERLY RIGSBY,

Plaintiff,

v. NO. 3:18-cv-1343-J-PDB

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Order

Lisa Kimberly Rigsby, claiming disability beginning on November 5, 2013,

brings this action under 42 U.S.C. §§ 405(g) and 1383(c) to review a final decision of

the Commissioner of Social Security denying her applications for benefits.1 Under

review is a decision by an Administrative Law Judge (“ALJ”) dated December 27,

2017. Tr. 10–19. Summaries of the law and the administrative record are in the ALJ’s

decision, Tr. 10–19, and the parties’ briefs, Docs. 17, 18, and not fully repeated here.

Rigsby argues the ALJ failed to properly evaluate opinions in a “Mental

Residual Functional Capacity Questionnaire” completed by her treating psychologist,

Natalie Stamey, Psy.D., in December 2015.2 Doc. 17 at 13–22.

1Rigsby filed an application for disability insurance benefits on May 25, 2015. Tr. 49.

The ALJ’s decision states she also filed an application for supplemental security income on

November 6, 2017, Tr. 10, shortly before the hearing before the ALJ (November 28, 2017) and

the ALJ’s decision (December 27, 2017). The supplemental-security-income application does

not appear to be in the record. The omission is immaterial to this decision, and neither side

contends otherwise.

2Rigsby summarily states, “[The ALJ] did not make a finding regarding the opinion of

[ARNP Lisa Cordell].” Doc. 17 at 17. The ALJ cited records from ARNP Cordell and stated,

“Recent primary care records note various complaints but document no significant abnormal

findings on examination.” Tr. 16 (citing Exhibit 16F, Tr. 754–90). Rigsby does not elaborate

and therefore waives any argument concerning ARNP Cordell.

A court reviews the Commissioner’s factual findings for substantial evidence.

42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.

Ct. 1148, 1154 (2019). That standard applies only to factual findings. Brown v.

Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). “The Commissioner’s failure to apply

the correct law or to provide the reviewing court with sufficient reasoning for

determining that the proper legal analysis has been conducted mandates reversal.”

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (quoted

authority and alterations omitted).

An ALJ must evaluate every medical opinion received. 20 C.F.R.

§§ 404.1527(c), 416.927(c).3 A medical opinion is a statement from an acceptable

medical source that reflects judgment about the nature and severity of an

impairment, including symptoms, diagnosis, prognosis, physical restrictions, mental

restrictions, and what someone can do despite the impairment. 20 C.F.R.

§§ 404.1527(a)(1), 416.927(a)(1).

An ALJ must state with particularity the weight she gives a medical opinion

and the reasons for that weight. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179

(11th Cir. 2011). Factors to decide the weight include the examining relationship, the

treatment relationship, supportability, consistency, and specialization. 20 C.F.R.

§§ 404.1527(c), 416.927(c).

An ALJ generally will give more weight to the medical opinions of treating

sources because they “are likely to be the medical professionals most able to provide

a detailed, longitudinal picture of [a claimant’s] medical impairment and may bring

a unique perspective to the medical evidence that cannot be obtained from the

objective medical findings alone or from reports of individual examinations.”

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). But an ALJ need not give more weight to a

3For claims filed before March 27, 2017, the rules in 20 C.F.R. §§ 404.1527 and 416.927

apply. Because Rigsby filed her claims for benefits before March 27, 2017, those rules apply

here.

treating source’s medical opinion if there is good cause to do otherwise and

substantial evidence supports the good cause. Phillips v. Barnhart, 357 F.3d 1232,

1240 (11th Cir. 2004). Good cause exists if the evidence does not bolster the opinion,

the evidence supports a contrary finding, or the opinion is conclusory or inconsistent

with the treating source’s own medical records. Id. at 1240−41.

In Dr. Stamey’s “Mental Residual Functional Capacity Questionnaire,” she

explained she had performed a psychological evaluation of Rigsby on April 16, 2015,

and Rigsby attended fourteen additional sessions between April and October 2015.

Tr. 750. For a “DSM-IV Multiaxial Evaluation,” she wrote “Axis I: F44.5 Conversion

D/O with Attacks or Seizures”; “Axis II: none”; “Axis III: see medical record”; “Axis

IV: finances, health, housing, conflicting relationship with husband and in[-]laws”;

and “Axis V: Current [Global Assessment of Functioning (‘GAF’) rating]: 45.” Tr. 750.

She wrote that Rigsby’s highest GAF rating in the last year was 50. Tr. 750. She drew

an arrow pointing to “husband and in[-]laws” and wrote, “primary problem.” Tr. 750.

Under “Identify your patient’s signs and symptoms,” Dr. Stamey checked

anhedonia or pervasive loss of interest in almost all activities; decreased energy;

feelings of guilt or worthlessness; impairment in impulse control; mood disturbance;

difficulty thinking or concentrating; recurrent and intrusive recollections of a

traumatic experience, which are a source of marked distress; persistent disturbances

of mood or affect; persistent, nonorganic disturbance of vision, speech, hearing, use

of a limb, movement and its control, or sensation; apprehensive expectation; intense

and unstable interpersonal relationships and impulsive and damaging behavior;

disorientation to time and place; motor tension; emotional lability; flight of ideas;

deeply ingrained, maladaptive patterns of behavior; pressures of speech; easy

distractibility; incoherence (adding, “with attacks only”); emotional withdrawal or

isolation; autonomic hyperactivity; memory impairment—short, intermediate, or

long term; and sleep disturbance. Tr. 750–51.

The form directs the provider to explain the patient’s ability “to do work-

related activities on a day-to-day basis in a regular work setting” on a scale of 1 to 5.

Tr. 751. A rating of 4 means the person can “perform designated task or function, but

has or will have noticeable difficulty (distracted from job activity) more than 20

[percent] of the workday or workweek (i.e. more than one hour and up to two hours

per day or more than one half day to one day per week).” Tr. 751 (emphasis in

original). A rating of 5 means the person cannot “perform the designated task or

function on a regular, reliable and sustained basis.” Tr. 751.

Under “Mental Abilities and Aptitudes Needed to do Unskilled Work,” Dr.

Stamey checked “5” for Rigsby’s ability to remember work-like procedures;

understand and remember very short and simple instructions; carry out very short

and simple instructions; maintain attention for a two-hour segment; maintain

regular attendance and be punctual within customary, usually strict tolerances;

sustain an ordinary routine without special supervision; work in coordination with or

proximity to others without being unduly distracted; make simple work-related

decisions; complete a normal workday and workweek without interruptions from

psychologically based symptoms; perform at a consistent pace without an

unreasonable number and length of rest periods; ask simple questions or request

assistance; accept instructions and respond appropriately to criticism from

supervisors; get along with co-workers or peers without unduly distracting them or

exhibiting behavioral extremes; respond appropriately to changes in a routine work

setting; deal with normal work stress; and be aware of normal hazards and take

appropriate precautions. Tr. 752.

Under “Mental Abilities and Aptitudes Needed to do Semiskilled and Skilled

Work,” Dr. Stamey checked “5” for Rigsby’s ability to understand and remember

detailed instructions, carry out detailed instructions, set realistic goals or make plans

independently of others, and deal with the stress of semiskilled and skilled work. Tr.

752.

Under “Mental Abilities and Aptitude Needed to do Particular Types of Jobs,”

Dr. Stamey checked “4” for Rigsby’s ability to interact appropriately with the general

public, maintain socially appropriate behavior, and adhere to basic standards of

neatness and cleanliness. Tr. 752. Dr. Stamey checked “5” for Rigsby’s ability to travel

in unfamiliar places and use public transportation. Tr. 752.

Under “Has your patient’s impairment lasted or can it be expected to last at

least twelve months,” Dr. Stamey checked, “Yes.” Tr. 753. Next to “Is your patient a

malingerer,” she checked, “No.” Tr. 753. Next to, “Are your patient’s impairments

reasonably consistent with the symptoms and functional limitations described in this

evaluation,” she checked, “Yes.” Tr. 753. Under, “Please describe any additional

reasons not covered above why your patient would have difficulty working at a

regular job on a sustained basis,” she wrote, “Patient has frequent attacks/episodes

that prevent functioning. See explanation below.” Tr. 753. Under, “Can your patient

manage benefits in his or her own best interest,” she checked, “Yes.” Tr. 753.

At the bottom of the form, Dr. Stamey handwrote:

Lisa Rigsby’s biggest stressor is her husband. Stress is manifested in

Lisa in terms of symptoms which appear to be neurological in nature[]

but are not. They are caused by stress/husband. These episodes present

suddenly [and] incapacitate her. She shakes [and] has convulsions

which are severe in nature. Sometimes she has the episodes all day long,

sometimes more than 10 per day. She is not able to speak during these

episodes or recall what has happened. She is literally terrorized by fear

of him. This fear, anxiety [and] anger all create physical symptoms in

her that she has no control over. The only treatment for this disorder is

reducing the stress (husband), antidepressants, and therapy (which she

cannot afford). Her prognosis is poor without these three components.

She cannot work at all until these episodes go away.

Tr. 753 (emphasis added).

At an administrative hearing, Rigsby’s lawyer asked her whether having been

divorced from her husband for two-and-a-half years has affected her symptoms, and

she responded she has experienced no improvement, with no change in the number

of seizures she is having. Tr. 36. The ALJ asked the vocational expert if breaks taken

at different times and for different durations would be tolerated in the representative

jobs the vocational expert identified, and the vocational expert testified no, explaining

only customary breaks (15 minutes in the morning, a 30-minute lunch, and 15

minutes in the afternoon) and additional 10-percent of “off-task” behavior would be

tolerated. Tr. 45. The ALJ asked the vocational expert, “And absenteeism. Some days

are better than others and you need to leave early, or come in late, or call off

altogether once a week. Is that too much?” Tr. 45. The vocational expert responded,

“That is too much,” explaining, “Many employers allow 10 unscheduled absences per

year.” Tr. 45.

In the decision, the ALJ found Rigsby has severe impairments of

“pseudoseizure disorder; headaches; bipolar disorder; gastrointestinal disorders

diagnosed as history of microscopic colitis, irritable bowel syndrome (‘IBS’), ulcerative

colitis, and gastritis; and degenerative disc disease (‘DDD’) of the cervical spine.” Tr.

12.

The ALJ did not expressly consider Listing 12.07 concerning somatoform

disorders but found Rigsby has only moderate limitations in understanding,

remembering, or applying information; interacting with others; concentrating,

persisting, or maintaining pace; and adapting or managing oneself. Tr. 13. The ALJ

explained:

The claimant is able to read, shop, cook, clean, attend to her personal

needs, handle finances, take her medications, attend appointments,

interact with medical personnel and her family, etc., despite her

allegations of episodes and impaired memory, suggesting no more than

moderate limitations of functioning in th[ese] domain[s].

Tr. 13.

The ALJ found Rigsby has the residual functional capacity (“RFC”) to perform

work at all exertional levels with limitations: no climbing, exposure to hazards, or

exposure to concentrated temperature extremes; only simple, routine tasks that

require no exposure to the public to prevent unknown variables; and a work

environment with only occasional changes. Tr. 14.

The ALJ summarized Rigsby’s allegations:

Tabhdeo cmlaiinmala npta ianll eagneds ddaisilayb ivloitmy idtiuneg t ao sg awsetlrlo ains ttewsteinntayl itsos utheisr ttyh apts ceauudsoe-

seizures per week. She testified that she cannot work because she is not

reliable given her inability to drive, daily vomiting and unpredictable

pseudo-seizures as well as memory loss. She testified that none of her

treating providers have given her lifting restrictions and she is able to

help with household chores, prepare simple meals and frozen dinners,

though she testified that she “basically lives on baby food, Jell-O, and

bananas.” She lives with her mother and stepfather, moving in with

them after her divorce. She no longer drives so she sold her car to pay

for medical expenses. She frequents a psychiatrist and doctors’ offices

for follow-up evaluations and medication refills. She takes anti-

depressants but is no longer able to afford therapy even though she

stated that it helped her.

Tr. 15.

The ALJ then stated:

The claimant’s testimony and allegations are similar to those reported

in function and pain reports, though she also alleges chronic headaches

and diarrhea in those reports. She also reported a higher functioning

level as well, including an ability to care for her dogs, attend to

household chores, shop for groceries, handle finances, read, get her hair

done monthly, go to appointments, etc. She reported that her seizures

cause unconsciousness for 15-20 minutes and an inability to talk, that

she does not know where she is for 30 minutes and that her equilibrium

is off for 1-2 days after a seizure. (Exhibits 4E–6E, 10E–11E)[.]

After careful consideration of the evidence, the undersigned finds that

the claimant’s medically determinable impairments could reasonably be

expected to produce some of the above alleged symptoms; however, the

claimant’s statements concerning the intensity, persistence and limiting

effects of these symptoms are not entirely consistent with the medical

evidence and other evidence in the record for the reasons explained in

this decision. Accordingly, these statements have been found to affect

the claimant’s ability to work only to the extent they can reasonably be

accepted as consistent with the objective medical and other evidence.

Tr. 15.

The ALJ summarized some of the medical evidence. Tr. 15–17. Concerning

medical evidence of Rigsby’s pseudoseizures and other mental impairments, the ALJ

stated:

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episode that occurred during a hospital visit. (Exhibit 2F)[.] Records

note that she had no postictal state. (Exhibit 4F)[.] Testing confirmed

her seizures were not epileptic in nature. (Exhibits 4F, 6F, 7F)[.] She

was advised to avoid driving, avoid heights, and avoid swimming alone.

(Exhibit 8F)[.]

Recent primary care records note various complaints but document no

significant abnormal findings on examination. (Exhibit 16F)[.]

The claimant has also treated for bipolar disorder since at least 2004

and did well with medications. Her symptoms have waxed and waned,

but her GAF scores have been consistently high, even during periods of

increased situational/familial/mar[it]al stress. She has been treated

with medications and counseling and has had no significant mental

status abnormalities. Of note, these records indicate the claimant

stopped working because her husband worked and took care of the

finances, not because of any limitations from her impairments. These

records note that her pseudoseizures or conversion disorder is caused by

stress and can be controlled. (Exhibits 3F, 7F, 9F, 14F, 18F)[.]

Tr. 16.

The ALJ did not discuss a report of EEG monitoring done at Mayo Clinic from

March 16 to March 18, 2015.4 See generally Tr. 15–17. The report explains Rigsby

had “[t]hree clinical episodes of unresponsiveness, nonstereotyped motoric shaking,

and amnesia which were not associated with any electrographic seizure correlate.”

Tr. 639. The report provides:

Over the course of monitoring, the patient had 3 of her habitual events.

The patient reported that these events felt like her usual events that

she has at home. The clinical characteristics of these events consist of

asymmetric and asynchronous limb movements which are

nonstereotyped from event to event. There is stop and start movement

of the limbs. A couple of these events also had associated head shaking

movements from side to side. Back arching was a feature of one of the

4The ALJ did cite some language from the discharge plan, which included directions

to avoid driving, heights, and swimming. Tr. 16 (citing Exhibit 8F [Tr. 631]). Notes from the

discharge plan also stated, “Patient is stable for discharge home”; “Medications as per

discharge medication summary”; “Resume regular diet”; “Activities as tolerated”; “Follow up

with outpatient neuropsychology and psychiatry.” Tr. 631.

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Blood pressure and heart rate tend to increase slightly[.] Concomitant

EEG during these episodes does not reveal any electrographic seizure

activity. When eyes are temporarily closed, her usual background beta

activity can be seen. Review of inerictal data and spike detection files

did not reveal any pathologic epileptiform discharges.

Tr. 638–39.

Notes of Jerry Shih, M.D., in a related “Epilepsy Monitoring Unit Discharge

Summary” explain:

This study captures 3 of this patient’s habitual events. The diagnosis is

nonepileptic events (NEE; also termed pseudoseizure, psychogenic

seizure, nonepileptic seizure, psychogenic nonepileptic attacks) …. We

discussed the common risk factors …, including chronic pain,

nonrestorative sleep, intercurrent medical comorbidities, as well as

untreated or undertreated mood or anxiety issues. I emphasized the fact

that NEE is oftentimes an involuntary physical manifestation of

overwhelming underlying physical, emotional, and psychological stress.

We discussed the treatment plan is directed at optimizing treatment of

any of the risk factors, as well as the institution of cognitive behavioral

therapy (CBT).

Tr. 631.

Addressing Dr. Stamey’s opinions, the ALJ stated:

The claimant’s psychologist, Natalie Stamey, completed a mental [RFC]

questionnaire noting the claimant has conversion disorder with attacks

or seizures. She notes a plethora of symptoms (see pages 1 and 2) and

opined that the claimant does not have the mental abilities and

aptitudes needed to do even unskilled work. She notes the claimant

cannot work until her episodes cease. (Exhibit 15F)[.]

Because the claimant has consistent complaints of seizure[-]like

activity/episodes and complaints of memory loss, she has been limited to

simple, routine tasks with no exposure to the public so there are no

unknown variables in her day and no more than occasional changes in

the work environment. This, along with the hazard precautions due to

her episodes [no climbing or exposure to hazards or concentrated

temperature extremes], account for her mental impairments. Though

Psychologist Stamey opined the claimant is unable to work because of

her symptoms, this is not supported by the totality of the evidence noting

gcoonodsi astbeinlittlyy t oh fiughn ctGioAnF, gsocoodr eress. pTohnesere tfoo rmee, dDicra. tiSotna amnedy c’so uonpsineliionngs, aanrde

given no weight in favor of the totality of the objective evidence, which

notes essentially no abnormal mental status findings.

Tr. 16 (emphasis added).

Rigsby shows reversible error. The ALJ failed to adequately explain why she

was giving “no weight” to Dr. Stamey’s opinions while at the same time accepting

that Rigsby has pseudoseizure disorder and resulting seizure-like episodes and

memory loss. Dr. Stamey opined Rigsby is not a malingerer; her episodes present

suddenly; her episodes incapacitate her; and fear, anxiety, and anger combine to

create the physical symptoms over which she has no control. Tr. 753. And both Dr.

Stamey and Dr. Shih opined treatment for the disorder includes not only addressing

stress factors but also undergoing therapy. Tr. 631, 753. The ALJ appears to have

rejected none of those opinions yet also appears to have determined Rigsby’s RFC

based on an unexplained assumption that minimizing only workplace stress will

minimize or eliminate the episodes. See Tr. 14 (finding RFC that includes limitations

to simple, routine tasks that require no exposure to the public to prevent unknown

variables and a work environment with only occasional changes). The reasons for

rejecting Dr. Stamey’s opinions appear to relate only to Rigsby’s bipolar disorder and

mental impairments generally. The error is not harmless considering testimony of

the vocational expert that breaks taken at different times and for different

durations—presumably what the episodes would require—would not be tolerated in

the representative jobs the vocational expert identified. Tr. 45.

Thus, the Court:

(1) vacates the Commissioner’s decision;

(2) remands for further consideration of the medical opinions,

including those in the “Mental Residual Functional Capacity

Questionnaire” completed by treating psychologist Natalie

Stamey, Psy.D., in December 2015, and to take any further

necessary action; and

(3) directs the clerk to enter judgment under sentence four of 42

U.S.C. §§ 405(g) and 1383(c) Gncorporating § 405(g)) in favor of

Lisa Kimberly Rigsby and against the Commissioner of Social

Security and close the file.

Ordered in Jacksonville, Florida, on March 23, 2020.

PATRICIA D. BARKSDALE

United States Magistrate Judge

Cc: Counsel of record

11

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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