George v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

KARL GEORGE, )

)

Plaintiff, )

)

v. ) Case No. 6:19-cv-01617-SGC

)

COMMISSIONER, SOCIAL )

SECURITY ADMINISTRATION, )

)

Defendant. )

MEMORANDUM OPINION1

The plaintiff, Karl George, appeals from the decision of the Commissioner of

the Social Security Administration (“Commissioner”) denying his application for a

period of disability and disability insurance benefits. (Doc. 1).2 George timely

pursued and exhausted his administrative remedies, and the decision of the

Commissioner is ripe for review. For the reasons stated below, the Commissioner’s

decision is due to be reversed and remanded.

I. FACTS, FRAMEWORK, AND PROCEDURAL HISTORY

George was forty-two at the time of his alleged disability onset (October 11,

2012), forty-seven on his date last insured (“DLI”) (September 30, 2017), and forty-

1 The parties consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. 6).

2 Citations to the court’s record refer to the document and page numbers assigned by CM/ECF and

appear in the following format: “(Doc. __ at __).” Citations to the administrative record refer to

the page numbers assigned by the Commissioner and appear in the following format: “(R. __).”

nine as of March 13, 2019, the date the Administrative Law Judge (“ALJ”) issued

the unfavorable decision now under review. (R. 48-49, 209, 227).3 George speaks

English and has a high school education. (R. 48). His past employment experience

includes work as an auto salesperson. (R. 48, 209). At the first hearing on July 31,

2014, George testified he could no longer work due to problems with his knee and

his heart. (R. 296). At the first supplemental hearing on May 12, 2015, George

testified he could no longer work because he was unable to walk, had pain and

numbness in his arms and legs, had trouble with his neck and back, and was unable

to sit or stand for long periods of time. (R. 267, 270-72). At the second supplemental

hearing on July 26, 2018, George testified he could no longer work due to pain in

his knees, back, neck, and shoulders, as well as anxiety and depression. (R. 211).

When evaluating the disability of individuals over the age of eighteen, the

regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§

404.1520, 416.920; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The

first step requires a determination whether the claimant is performing substantial

gainful activity (“SGA”). 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged

in SGA, he or she is not disabled, and the evaluation stops. Id. If the claimant is not

3 This was the ALJ’s second decision in this case; the first was dated January 28, 2016. (R. 338-

55). The Appeals Council remanded, and the ALJ conducted a second supplemental hearing on

July 26, 2018. (R. 204-62, 360-64). On March 13, 2019, the ALJ issued a new decision denying

George’s application. (R. 16-49). On September 19, 2019, the Appeals Council denied his request

for review. (R. 1-7). The instant appeal followed.

engaged in SGA, the Commissioner proceeds to consider the combined effects of all

the claimant’s physical and mental impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii),

416.920(a)(4)(ii). These impairments must be severe and must meet durational

requirements before a claimant will be found disabled. Id. The decision depends on

the medical evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir.

1971).4 If the claimant’s impairments are not severe, the analysis stops. 20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step

three, at which the Commissioner determines whether the claimant’s impairments

meet the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix

1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairments fall

within this category, the claimant will be found disabled without further

consideration. Id. If the impairments do not fall within the listings, the

Commissioner determines the claimant’s residual functional capacity (“RFC”). 20

C.F.R. §§ 404.1520(e), 416.920(e).

At step four the Commissioner determines whether the impairments prevent

the claimant from returning to past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, he or

she is not disabled, and the evaluation stops. Id. If the claimant cannot perform past

4 In Bonner v. City of Prichard, 6661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

relevant work, the analysis proceeds to the fifth step, at which the Commissioner

considers the claimant’s RFC, as well as the claimant’s age, education, and past work

experience, to determine whether he or she can perform other work. Id.; 20 C.F.R.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do other work, he or she

is not disabled. Id.

Applying the sequential evaluation process, the ALJ found George had not

engaged in SGA from his alleged onset date of October 11, 2012, through his DLI.

(R. 20). The ALJ determined George had the following severe impairments through

his DLI: obesity, osteoarthritis, degenerative disc disease (“DDD”), status post total

knee replacement of both knees, status post shoulder arthroscopy, and

bradycardia/cardiomegaly status post implantation of pacemaker. (Id.). However,

the ALJ found George did not have an impairment or combination of impairments

that met or medically equaled a listed impairment. (R. 31). At the next step, the

ALJ determined George had the RFC:

to perform sedentary work as defined in 20 C.F.R. 404.1567(a) except

the claimant can occasionally lift and carry ten pounds and frequently

lift and carry less than ten pounds. The claimant can stand/walk for two

hours with a cane and sit for six hours in an eight-hour workday with

normal breaks. The claimant cannot kneel or crawl, but he can

occasionally crouch and stoop. The claimant cannot reach overhead

with his left upper extremity, but he can occasionally reach in all other

directions with his left upper extremity. The claimant should avoid all

exposure to vibration, hazardous machinery, and unprotected heights.

(R. 32).

The ALJ determined George was unable to perform any past relevant work

through his DLI. (R. 47). At the hearing, the Vocational Expert (“VE”) testified

that, considering George’s age, education, work experience, and RFC, there were a

significant number of jobs in the national economy he could perform. (R. 48). The

ALJ concluded by finding George was not under a disability, as defined in the Social

Security Act, at any time through his DLI, September 30, 2017. (R. 49).

II. STANDARD OF REVIEW

A court’s role in reviewing claims brought under the Social Security Act is a

narrow one. The scope of its review is limited to determining (1) whether there is

substantial evidence in the record as a whole to support the findings of the

Commissioner, and (2) whether the correct legal standards were applied. See Stone

v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.

Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). A court gives deference

to the factual findings of the Commissioner, provided those findings are supported

by substantial evidence, but applies close scrutiny to the legal conclusions. See

Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).

Nonetheless, a court may not decide facts, weigh evidence, or substitute its

judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210

(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.

2004)). “The substantial evidence standard permits administrative decision makers

to act with considerable latitude, and ‘the possibility of drawing two inconsistent

conclusions from the evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,

1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar.

Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if a court finds that the proof

preponderates against the Commissioner’s decision, it must affirm if the decision is

supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin v. Sullivan,

894 F.2d 1520, 1529 (11th Cir. 1990)).

No decision is automatic, for “despite th[e] deferential standard [for review of

claims], it is imperative that th[is] Court scrutinize the record in its entirety to

determine the reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d

622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881, 883 (11th Cir.

1984)). Moreover, failure to apply the correct legal standards is grounds for reversal.

See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

III. DISCUSSION

On appeal, George contends the ALJ’s decision should be reversed and

remanded for two reasons: (1) the ALJ failed to properly evaluate the medical

opinions of Lloyd Dyas, M.D., and Keith Morrow, M.D.; and (2) the ALJ showed

bias during the hearing. (Doc. 11 at 25, 37). As explained below, the ALJ erred in

discounting Dr. Dyas’s opinions, warranting reversal and remand to the

Commissioner. Therefore, analysis of Dr. Morrow’s opinions is not required here;

the Commissioner can consider these opinions, together with the other medical

evidence, on remand. Furthermore, while George has not satisfied the standard for

reversal based on bias, the ALJ’s conduct during the hearing, together with errors in

the ALJ’s decision, are sufficient to bring his partiality into question. Accordingly,

the Commissioner will be directed to assign this matter to a different ALJ on remand.

These conclusions are discussed in turn.

A. Evaluation of Medical Opinions

George argues the ALJ failed to properly consider the medical opinions of

record, particularly with regard to his pain, his doctors’ attempts to treat it, and its

limiting effects on his ability to function. (Doc. 11 at 25-37). In support of this

argument, George contends the ALJ selectively cited the record, ignoring medical

evidence which did not support his conclusion. (Id. at 26). George also takes issue

with the ALJ’s assignment of weight to the medical opinions in the record.

Specifically, the ALJ assigned little weight to the opinions of George’s treating

physicians (Drs. Dyas and Morrow) but assigned greater weight to the opinions of

two consultative examiner’s (Easton Norwood, III, M.D., and Laura Lindsey, M.D.)

and the non-examining medical expert (Peter Schosheim, M.D.). (Id. at 26, 30-31;

Doc. 14 at 2-3).

An ALJ must articulate the weight given to different medical opinions in the

record and his supporting reasons. See Winschel v. Comm’r of Soc. Sec., 631 F.3d

1176, 1179 (11th Cir. 2011). The weight afforded to a medical opinion regarding

the nature and severity of a claimant’s impairments depends, among other things,

upon the examining and treating relationship the medical source had with the

claimant, the evidence the medical source presents to support the opinion, how

consistent the opinion is with the record as a whole, and the specialty of the medical

source. See 20 C.F.R. §§ 404.1527(c), 416.927(c).

A treating physician’s testimony is entitled to “substantial or considerable

weight unless ‘good cause’ is shown to the contrary.” Crawford, 363 F.3d at 1159

(quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal

quotations omitted). “Good cause” to discount a treating physician’s opinion exists

where the: “(1) treating physician’s opinion was not bolstered by the evidence; (2)

evidence supported a contrary finding; or (3) treating physician’s opinion was

conclusory or inconsistent with the doctor’s own medical records.” Phillips, 357

F.3d at 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also Edwards v.

Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (“good cause” existed where the

opinion was contradicted by other notes in the physician’s own record). In short, an

ALJ “may reject the opinion of any physician when the evidence supports a contrary

conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983).

Also, opinions such as whether a claimant is disabled, the claimant’s RFC,

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); see also Bell v.

Bowen, 796 F.2d 1350, 1353-54 (11th Cir. 1986) (although a claimant’s physician

may state he is disabled or unable to work, “the agency will nevertheless determine

disability based upon the medical findings and other evidence.”). The court is

interested in the doctors’ evaluations of the claimant’s “condition and the medical

consequences thereof, not their opinions of the legal consequences of his condition.”

Lewis, 125 F.3d at 1440. Such statements by a physician are relevant to the ALJ’s

findings, but they are not determinative, since the ALJ bears the responsibility for

assessing a claimant’s RFC. See, e.g., 20 C.F.R. § 404.1546(c).

1. George’s Treatment with Dr. Dyas

Dr. Dyas is an orthopedist who first treated George in 1987, when he

performed a left knee surgery. (See R. 823). As relevant here, George returned to

Dr. Dyas in early 2009 on a referral driven by complaints of left knee pain and back

pain. (Id.). Over the next nine years, Dr. Dyas treated George neck, back, left

shoulder, and bilateral knee pain. Dr. Dyas ultimately performed five additional

surgeries: two on his left knee, two on his right knee, and one on his left shoulder.

The record reveals Dr. Dyas examined George at least thirty-five times between

January 2009 and August 2017. (R. 823-92, 946, 1013, 1018, 1080, 1085, 1090,

1116, 1372, 1384). This tally does not include visits in which George saw physical

therapists or nurses in Dr. Dyas’s office (see R. 878, 1150, 1157, 1162, 1184, 1381);

nor does it include the surgeries Dr. Dyas performed (e.g. R. 887, 889, 1228). Dr.

Dyas’s treatment of George’s various joint and spinal ailments is summarized below.

a. Knee Problems

When George was first referred to Dr. Dyas in 2009, he reported he had not

recovered from a left knee injury sustained a year earlier; this knee injury also

aggravated his back pain. (R. 823). Dr. Dyas’s examination revealed George’s knee

was “locked” and he could not fully extend it for the last ten to fifteen degrees; he

also had a positive hyperflexion test, exquisite tenderness, a positive grind test, and

a positive McMurray’s signal in the medial compartment. (Id.). X-rays of the left

knee showed calcification of the medial and lateral menisci but good joint space and

alignment. (Id.). Dr. Dyas diagnosed George with internal derangement of the left

knee and chronic back pain; he classified George’s locked knee as an urgent

indication for arthroscopy and arthroscopic debridement. (R. 824). Dr. Dyas

performed an arthroscopy of George’s left knee on February 10, 2009. (R. 885-86).

George continued to see Dr. Dyas regularly, and by September 9, 2011, his left knee

pain had worsened with the joint locking up again; a subsequent round of steroid

injections appears to have been temporarily effective. (R. 842-44).5

On June 10, 2013, George reported he had reinjured his left knee. (R. 870).

Dr. Dyas noted pain medication, including OxyContin, was ineffective; X-rays

revealed end-stage osteoarthritis of the left knee. (R. 872). On June 20, 2013, Dr.

Dyas performed a total arthroplasty of George’s left knee. (R. 887-888). Recovery

from this knee replacement surgery was difficult, and two months later George

reported constant pain; Dr. Dyas noted he could not bend his left knee at all at this

time. (R. 879). Dr. Dyas administered a steroid injection, which appears to have

been effective. (R. 881).

Soon after George’s left knee replacement, be began experiencing pain in his

right knee. On September 18, 2013, George reported this pain to Dr. Dyas, noting

Dr. Morrow suspected he had a torn meniscus based on X-rays. (R. 882). On

December 10, 2013, Dr. Dyas performed a right knee arthroscopy. (R. 1244). By

August 22, 2014, George was experiencing persistent, worsening pain in his right

knee, for which Dr. Dyas administered steroid injections. (R. 1082, 1085). By July

8, 2015, George’s right knee pain was getting much worse, and he had limited range

of motion. (R. 1116). On July 23, 2015, Dr. Dyas performed a total arthroplasty

5 While Dr. Dyas administered the foregoing treatment while George was still working, and prior

to his alleged disability onset, it shows the progression of his condition. Pre-onset records

regarding George’s back problems will be discussed for the same reason.

on George’s right knee. (R. 1129). George continued to experience pain and

swelling in his right knee as of September 30, 2015. (R. 1157). By November 23,

2015, George’s right knee was still weak. (R. 1162).

In January 2017, George was involved in an automobile accident in which his

knees hit the dashboard after he collided with a deer; following the accident, George

complained of popping in his left knee and constant pain in his right knee. (R. 1372).

Although September 30, 2017, was George’s date last insured, Dr. Dyas’s

subsequent treatment notes show his continued complaints of significant knee pain.

By December 4, 2017, George noted painful popping in his left knee, sometimes

causing his knee to give way; Dr. Dyas noted he walked with a cane. (R. 1573).

George continued to complain of chronic, bilateral knee pain on May 21, 2018, and

July 16, 2018. (R. 1588, 1627).

b. Spinal Problems

George’s referral to Dr. Dyas was also motivated by his complaints of back

pain. During the initial January 12, 2009 visit, Dr. Dyas’s examination revealed: (1)

diminished range of motion of the lumbar spine; (2) right paraspinal muscle spasm;

and (3) a positive straight leg test on the right. (R. 823). X-rays of the lumbar spine

were normal. (Id.). On July 20, 2009, George returned, complaining of back pain;

examination revealed limited range of motion in the lumbar spine. (R. 825). On

that visit, George designated Dr. Dyas to oversee his pain management plan; at the

time, George’s pain management consisted of 60 mg of OxyContin three times a

day. (Id.). George continued to complain of lumbar spine pain, and Dr. Dyas

consistently—although not uniformly—noted paraspinal muscle spasm, limited and

painful range of motion, positive straight leg raise on the right, and tenderness of the

sciatic notch. (See, e.g., R. 827-29, 831-37, 841, 843, 846, 849, 852, 855, 858, 861,

865, 868). After X-Rays and an MRI of the lumbar spine revealed DDD at L5-S1

with nerve impingement by a bulging disc, Dr. Dyas diagnosed George with right

sided sciatica and radiculopathy of the L5-S1 nerve root. (R. 829-30). Dr. Dyas

continued to recommend conservative therapy and noted treatment—pain

medication, lumbar epidural steroid injections, lumbar parvertebral facet injections,

and physical therapy—had been effective. (R. 833).6 However, beginning on

December 13, 2010, George consistently rated his back pain, which radiated to his

right thigh, as seven or eight on a ten-point scale. (Id.; e.g. R. 836, 839, 842, 845,

848, 851, 854, 857, 864, 867, 870, 946, 1009, 1013, 1018, 1387, 1568, 1573, 1577,

1581, 1586).7

6 As time passed, Dr. Dyas more frequently noted pain medication had been “somewhat effective.”

(E.g. R. 839, 842, 845, 848, 851, 854, 857, 860, 864, 867).

7 On October 19, 2012, George rated his pain as six out of ten, but he also said the pain was

unchanged during the subsequent visit, when he rated it at seven. (R. 860; see R. 864). In July

and August 2013, George rated his pain as nine out of ten, although it appears this was related to

the left knee replacement. (R. 873, 879).

On April 16, 2012, George complained of worsening back pain following a

fall. (R. 851). X-rays revealed DDD at multiple levels. (Id.). Subsequent exams

revealed “right sided paraspinal board like muscle spasm” and “markedly positive”

straight leg raising at forty-five degrees. (R. 853, 856). Dr. Dyas increased George’s

pain medication, recommended physical therapy and steroid injections, and referred

him to a spinal specialist. (Id.). At a follow-up visit on May 11, 2012, Dr. Dyas

interpreted a recent MRI as showing “L1-2 through L4-5 disc

desiccation/degeneration but no focal disc protrusion, L5-S1 disc with asymmetrical

spurring, right greater than left, contributing to right lateral recess stenosis.” (R.

854; see R. 894). Around this time, George was prescribed 20 mg oxycodone tablets

three times a day, in addition to his OxyContin prescription. (See, e.g., R. 874).

On September 18, 2013, after George had improved following his left knee

replacement surgery, he complained of “terrible back pain,” starting at the back of

his neck and traveling all the way down to his buttocks. (R. 882). Two rounds of

epidural steroid injections had not improved his pain, although he was scheduled for

a third. (Id.). George rated his pain as nine out of ten, and stated he was unable to

sleep or get comfortable. (Id.). In addition to paraspinal muscle tenderness and

reduced, painful range of motion—noted in every examination since September

2009—this examination revealed positive straight leg tests bilaterally, worse on the

left. (R. 883). Dr. Dyas diagnosed George with low back pain, lumbar paraspinal

muscle spasm, degenerative lumbar disc disease, sacrollitis, lumbar radiculitis,

lumbar spinal stenosis, and right sciatica. (R. 884).

By January 15, 2014, while recovering from his right knee arthroscopy, Dr.

Dyas noted George experienced impairment from chronic lower back pain and

DDD; he opined George was unable to crouch, crawl, kneel, lift, bend, stoop, or

climb. (R. 947). On May 23, 2014, Dr. Dyas noted George was “showing signs of

pain behavior,” his gait was “somewhat antalgic,” and he suffered from “well

documented pain generators with chronic low back pain with degenerative disc

disease and osteoarthritis of both knees.” (R. 1018-20).

On September 20, 2015, while recovering from his right knee replacement

surgery, George complained of worsening neck pain; the pain had been present for

years following a whiplash injury but had increased significantly over the previous

three to six months. (R. 1157). George described his neck pain, which he rated as

eight out of ten, as radiating down his left arm with intermittent finger numbness.

(Id.). In addition to paraspinous muscle tenderness, Dr. Dyas noted limited and

painful range of motion with mild crepitus, and muscle spasm. (R. 1158-59). At

this point, George was prescribed a fentanyl patch, in addition to his oxycodone and

OxyContin prescriptions. (R. 1159). Physical therapy was ineffective, and he

continued to experience neck pain as of November 23, 2015, when cervical spine X-

rays showed multiple level DDD. (R. 1162-64). A January 14, 2016 MRI showed

cervical DDD and chronic superior endplate compression at C6. (R. 1176). George

continued to complain of neck pain as of February 17, 2016. (R. 1184). By this

point, Dr. Dyas began weening George off some of his pain medication; his opiate

prescriptions included a fentanyl patch and 30 mg oxycodone tablets every four

hours. (R. 1186-87).

Following his shoulder arthroscopy, described below, George reported

significant back pain on May 17, 2017; he rated his pain as 8 out of 10. (R. 1387).

He requested and received injections to both sacroiliac (“SI”) joints. (R. 1390).

Although September 30, 2017, was George’s date last insured, he continued to

complain of back and neck pain through May 2018; in addition to opiate pain

medication, he received additional SI injections. (See R. 1568, 1571, 1573, 1577,

1584). Dr. Dyas’s examinations revealed globally diminished range of motion in

the lumbar and cervical spine, tenderness of both SI joints, paraspinal muscle spasm,

and mild crepitus. (R. 1390, 1571, 1575, 1579). December 4, 2017 X-rays revealed

severe DDD at C5-6 and C6-7. (R. 1575). May 21, 2018 X-rays showed cervical

radiculitis. (R. 1588)

c. Shoulder Problems

On January 30, 2017, George reported sharp pain in his left shoulder blade

which radiated to his left shoulder; he also complained of numbness and tingling in

his left arm and hand, as well as pain when using or raising his left arm. (R. 1372).

George noted he had injured his left shoulder more than twenty years earlier.

Physical examination revealed tenderness to palpation and painful range of motion

above shoulder height. (R. 1374). Dr. Dyas performed a Speed’s test, an A/C joint

compression test, a cross chest adduction test, a Neer test, a Hawkins test, an

O’Brien’s test, and a drop arm test; all were positive. (Id.). X-rays revealed a

narrowing of the AC joint with spur formation, and Dr. Dyas diagnosed George with

a rotator cuff tear and osteoarthritis of the left shoulder. (R. 1374-75). On February

9, 2017, Dr. Dyas performed a left shoulder arthroscopy. (R. 1315). This was

George’s fifth orthopedic surgery since 2009 and his sixth overall.

2. Dr. Dyas’s Opinions

On July 25, 2014, Dr. Dyas completed a functional capacity assessment form,

noting George’s diagnoses of osteoarthritis in the right knee and lumbar spine,

lumbar spine DDD, and status post-knee replacement. (R. 1041).8 Dr. Dyas circled

or filled-in answers indicating his opinions that George could: (1) sit continuously

for two to three hours; (2) stand or walk continuously for only a “few minutes”; (3)

sit for a total of three hours in an eight-hour day; (4) walk for one hour in an eight-

hour day; and (5) occasionally lift and carry up to ten pounds. (R. 1042). On the

same day Dr. Dyas completed the functional capacity assessment form, George’s

8 This was after three of George’s knee surgeries but before his right total knee replacement.

counsel conducted a sworn recorded examination of him (collectively, the “July

2014 Opinion”). Dr. Dyas explained George:

. . . has a much more severe form of degenerative disc disease in that

it’s not just one level, but of multiple levels, and much more severe than

one would expect for his age. It is my professional opinion that this

accounts for his chronic muscle spasm and chronic pain and impairment

. . .

(R. 1034-35). Regarding George’s right knee, Dr. Dyas explained:

It is rapidly progressing to the indication for a knee replacement on that

side also. He’s just about exhausted all the conservative treatment and

continues to suffer with severe pain and impairment of the right knee.

The right knee replacement is already indicated on the right knee based

on x-rays and his orthoscopic examination, which revealed bone-on-

bone arthritis of the right knee joint.

(R. 1035-36).

George’s counsel conducted a second sworn recorded examination of Dr.

Dyas on August 28, 2017 (the “August 2017 Opinion”). (R. 1406-21). At one point,

counsel asked Dr. Dyas to estimate how many times he had seen George over the

previous eight years, inquiring, “would it be in the 30-50 range?” (R. 1411). Dr.

Dyas responded affirmatively, saying “it would be more than 30.” (Id.). Dr. Dyas

also recounted George’s numerous impairments. Regarding George’s cervical

spine, Dr. Dyas noted MRIs showed “severe degenerative disc disease with facet

arthritis” and “foraminal encroachment with chronic stiff neck, chronic muscle

spasm, and chronic pain with occasional neuropathic pain [] that goes down his

arms.” (R. 1413). Regarding George’s lumbar spine, Dr. Dyas stated he had DDD

at multiple levels, causing chronic stiffness, muscle spasms, and neuropathic nerve

pain in his legs. (R. 1413-14).

Dr. Dyas also noted George’s bilateral knee replacements had not restored

him to normal function:

. . . He still has stiffness and weakness and difficulty getting out of a

chair. He has difficulty going up and down stairs. He has difficulty

walking beyond activities of daily living and occasionally has to use

walking aids.

When he gets out of a chair, it’s not like someone with normal

knees that can simply stand up out of a chair. He has to get his weight

over his knees to enable him to stand up, and in order for him to do that,

he has to push up with his arms. This causes a strain on his neck and

aggravates his neck condition. He has to flex his spine forward to get

his weight over his knees, which causes strain and aggravation and

muscle spasm and pain in his lower back, not to mention the fact that

his knees hurt if he has to do any sort of repetitive getting—even getting

in and out of a chair, even with activities of daily living. This gentleman

cannot walk beyond the activities of daily living.

(R. 1414-15).

3. The ALJ’s Decision

The ALJ gave little weight to Dr. Dyas’s opinions. (R. 22, 35). As to the July

2014 Opinion and the August 2017 Opinion, the ALJ gave several reasons for

assigning little weight to both: (1) they were ex parte depositions taken at the behest

of George’s counsel; (2) Dr. Dyas’s “testimony”9 consisted of answering

9 The ALJ employed scare quotes when referring to Dr. Dyas’s testimony in both sworn

examinations. (E.g. R. 23-24, 35).

affirmatively to leading questions posed by George’s counsel; and (3) Dr. Dyas’s

treatment notes “never mentioned” significant restrictions caused by George’s

ailments. (R. 23-24, 35-36). The rationale the ALJ employed to discount both

opinions is addressed below.

That George’s counsel secured Dr. Dyas’s opinions does not provide good

cause to reject them. See Mulholland v. Astrue, 06-2913, 2008 WL 687326, at *13

(N.D. Ga. Mar. 11, 2008). Next, the specific opinions that are the focus of this appeal

are not the one-word affirmative answers to leading questions described by the ALJ.

Indeed, the opinions at issue here describe George’s conditions and their impact on

him. Dr. Dyas’s statements shed light on the crucial question of George’s “condition

and the medical consequences thereof.” Lewis, 125 F.3d at 1440.

Next, contrary to the ALJ’s conclusion, Dr. Dyas’s treatment notes are replete

with references to George’s pain, objective testing revealing conditions likely to

cause pain, and objective indicia of pain. This includes at least one occasion on

which Dr. Dyas opined George could not crouch, crawl, kneel, lift, bend, stoop, or

climb. (R. 947).10 Additionally, the ALJ found both of Dr. Dyas’s opinions were

undermined by treatment records from George’s cardiologist, Ram Sapkota, M.D.

(R. 24, 38-39). Specifically, the ALJ noted Dr. Sapkota’s examination notes often

10 Of course, Dr. Dyas was sufficiently convinced of the severity of George’s pain that he for years

prescribed opiates to treat it.

did not mention musculoskeletal complaints or abnormalities. (Id.). Dr. Sapkota

treated George for cardiovascular complaints and, on March 17, 2016, implanted a

pacemaker. (R. 1304). That George’s cardiologist did not note his musculoskeletal

issues does not constitute good cause to discount the opinions of Dr. Dyas, his long-

time treating orthopedist who performed five surgeries over an eight-year span.

“More weight is given to the opinion of a specialist about medical issues related to

his or her area of specialty than to the opinion of a source who is not a specialist.”

King v. Barnhart, 320 F. Supp. 2d 1227, 1231–32 (N.D. Ala. 2004) (quotation marks

omitted); see Gholston v. Barnhart, 347 F. Supp. 2d 1108, 1114-15 (M.D. Ala. 2003)

(ALJ provided good cause for favoring non-treating psychologist’s opinion over

treating internist’s opinion regarding claimant’s psychological state).

In addition to the foregoing general reasons the ALJ gave for discounting both

of Dr. Dyas’s opinions, he also gave additional reasons specific to each individual

opinion. These reasons are addressed in turn.

a. The 2014 Opinion

Specific to the 2014 Opinion, the ALJ cited portions of Dr. Dyas’s

contemporaneous treatment notes as inconsistent with the limitations imposed. (R.

24). The ALJ also cited Dr. Norwood’s consultative examination. (Id.). As

explained below, neither effort provides a sufficient basis on which to reject the 2014

Opinion.

First, the ALJ cited treatment notes from the three examinations Dr. Dyas

performed following the July 2014 Opinion; these visits occurred after George’s left

knee replacement and right knee arthroscopy but before his right knee replacement.

(R. 24). During these visits, George’s primary complaints concerned his right knee.

(R. 1080, 1085, 1090). While the ALJ accurately reported Dr. Dyas’s examination

notes tended to show George’s right knee condition was not worsening at that time,

the ALJ ignored other aspects of these medical records. In particular, while Dr. Dyas

noted George was “coping well” with his current pain management, that plan

consisted of 30 mg doses of oxycodone and 80 mg doses of OxyContin, each

administered orally three times per day. (R. 1082, 1087, 1092). Even with this

aggressive opiate pain management, George reported his pain as a seven or eight out

of ten. (R. 1080, 1085, 1090). Additionally, George requested and received right

knee steroid injections during each visit, and Dr. Dyas noted George had not

benefitted from conservative treatment. (R. 1083, 1088, 1093). Moreover, the

ALJ’s citations to these medical records did not mention George’s complaints

concerning chronic low back pain or Dr. Dyas’s observation of paraspinal muscle

spasm. (R. 1080-81, 1085-86, 1090-91; see R. 1083, 1088, 1093) (noting “well

documented pain generators with chronic low back pain” and DDD).

Here, the ALJ erred in concluding the July 2014 Opinion was inconsistent

with Dr. Dyas’s treatment records. The ALJ’s selective citation to portions of Dr.

Dyas’s treatment notes do not support his conclusion. See Ellington v. Astrue, No.

07-0789, 2008 WL 1805435, at *10 (M.D. Ala. Apr. 18, 2008) (remanding to the

Commissioner where the ALJ’s citation to the medical record ignored portions “that

did not support his conclusions”). Additionally, the relevance of the portions of Dr.

Dyas’s treatment notes cited by the ALJ is questionable at best. As previously noted,

George’s primary complaint during these visits concerned his right knee. While the

ALJ cited these reports for the proposition that George’s right knee was not

significantly limiting his abilities, his condition worsened, and he underwent a total

right knee replacement approximately one year after the July 2014 Opinion.11 This

subsequent treatment history essentially confirmed Dr. Dyas’s opinion that his right

knee was “rapidly progressing to the indication for a knee replacement.” (R. 1035).

Thus, Dr. Dyas’s treatment records do not contradict the July 2014 Opinion.

Finally, the ALJ relied on Dr. Norwood’s December 14, 2017 neurological

consultative examination. (R. 24). Specifically, the ALJ cited portions of Dr.

Norwood’s report noting George had full range of motion and normal strength in his

11 Any reliance on the report of Boyde J. Harrison, M.D., to discount Dr. Dyas’s July 2014 Opinion

would suffer from similar flaws. Dr. Harrison did not examine George; instead, he interpreted

September 11, 2014 X-rays of his knees. In rejecting Dr. Morrow’s opinions, the ALJ assigned

substantial weight to Dr. Harrison’s interpretation showing mild degenerative changes in George’s

right knee. (R. 27). To the extent the ALJ may have relied on Dr. Harrison’s interpretation to

discount Dr. Dyas’s opinion, George’s subsequent right knee replacement undermines any opinion

that he suffered from mild degeneration.

limbs. (Id.).12 While the ALJ noted Dr. Norwood’s finding that muscle spasms were

not present, he did not mention Dr. Norwood’s observation that George exhibited

only 20% of normal lumbar extension, rotation, and leaning. (Id.; R. 1543). That

Dr. Norwood did not observe muscle spasms during his single examination of

George in December 2017 does not provide substantial evidence to discount the

consistent, contrary findings from his long-term treating orthopedist. In conjunction

with the ALJ’s failure to mention Dr. Norwood’s observation of significantly

diminished range of motion in George’s lumbar spine, this renders inappropriate the

ALJ’s reliance on Dr. Norwood’s report.

b. The August 2017 Opinion

In discounting the August 2017 Opinion, the ALJ also relied on grounds not

already discussed. Specifically, the ALJ questioned the accuracy of Dr. Dyas’s

statements regarding the extent of his treatment history with George. (R. 35). Next,

the ALJ cited Dr. Dyas’s contemporaneous treatment notes as being inconsistent

with the August 2017 Opinion. The ALJ also relied on the consultative examination

reports of Drs. Norwood and Lindsey. (R. 38-39). Specifically, the ALJ assigned

significant weight to Dr. Lindsey’s opinion; he also found Dr. Norwood’s objective

findings to be “very persuasive and supported by the evidence.” (Id.; R. 46). Finally,

12 To the extent the ALJ relied on this finding to contradict the July 2014 Opinion regarding

George’s right knee, it is irrelevant. Dr. Norwood generated his report more than three years after

the July 2014 Opinion and more than two years after George’s total right knee replacement.

while the ALJ did not specify the weight assigned to the opinion of Dr. Schosheim—

the medical expert who testified at the hearing—he found the opinion to be “very

persuasive and probative.” (R. 46). These reasons cited by the ALJ for discounting

the August 2017 Opinion are addressed in turn.

During the August 2017 sworn examination, George’s counsel inquired how

many times Dr. Dyas had seen George over the preceding eight years, and whether

it would be in the “30-50 range.” (R. 1411). Dr. Dyas responded affirmatively,

stating “it would be more than 30.” (Id.). The ALJ, who misquoted George’s

counsel’s question and Dr. Dyas’s response, concluded this number of visits was not

confirmed by the record. (R. 35). Contrary to the ALJ’s conclusion, the voluminous

record in this case reveals Dr. Dyas saw George at least 35 times between 2009 and

August 2017. (R. 823-92, 946, 1013, 1018, 1080, 1085, 1090, 1116, 1372, 1384).

Accordingly, the ALJ erred to the extent he afforded less weight to Dr. Dyas’s

August 2017 Opinion on this faulty premise.

Instead, the ALJ assigned significant weight to the opinion of Dr. Lindsay, a

family practitioner who performed a consultative examination on December 30,

2013—before George’s right knee replacement. (R. 38; R. 939-44). The ALJ found

Dr. Lindsay’s opinion was consistent with Dr. Dyas’s contemporaneous

examinations, which found “only mild swelling and tenderness” in George’s right

knee. (R. 38). The fact that George subsequently underwent a right total knee

replacement renders Dr. Lindsay’s opinion regarding his right knee irrelevant.

Moreover, the ALJ did not mention Dr. Lindsay’s examination findings that George

had significantly limited range of motion in his cervical spine and diminished flexion

in his lumbar spine. (R. 943).

As to Dr. Norwood’s December 14, 2017 consultative examination, the ALJ

found it supported portions of Dr. Dyas’s treatment notes, which the ALJ

summarized as showing George’s treatment regimen had reduced his pain and

improved his quality of life. (R. 39). Importantly, Dr. Norwood is a neurologist,

and his consultative examination consisted of a neurology evaluation. (R. 1543).

As previously mentioned, Dr. Norwood examined George, reporting largely normal

findings, aside from significantly reduced lumbar range of motion; George told Dr.

Norwood during the examination that further movement of his lumbar spine was

prohibitively painful. (Id.). Dr. Norwood ordered a nerve conduction study, which

was largely normal. (R. 1539). Dr. Norwood opined George suffered from “back

and neck pain worse with activity. He may be limited by pain, but I do not find

neurologic deficit or evidence of physical neurologic impairment to do work related

activities . . . .” (R. 1543). While Dr. Norwood clearly opined that George did not

suffer from neurologic deficiencies which would impair his functional abilities, his

statements regarding George’s limitations due to pain are ambiguous. Additionally,

the ALJ discounted Dr. Norwood’s findings regarding diminished range of motion

in the lumbar spine, as well as his opinion that George was unable to sit, stand, or

walk for more than ten minutes at a time; as grounds, the ALJ only noted these

limitations were based on George’s subjective complaints. (R. 46). Moreover, Dr.

Norwood’s conclusions do not contradict Dr. Dyas’s statements regarding

limitations based on non-neurologic impairments.

The ALJ also cited a contemporaneous treatment note from Dr. Dyas

generated during a September 11, 2017 office visit. (R. 36-37). Contrary to the

ALJ’s summary of some of Dr. Dyas’s more benign findings, the examination note

reveals George: (1) reported back pain, estimated at eight out of ten; (2) requested

and received bilateral SI injections; (3) exhibited limited range of motion in the

cervical and lumbar spine; (4) exhibited moderate paraspinal muscle spasm and

moderate SI joint tenderness; (5) and required a cane to ambulate. (R. 1568-1571).

Additionally, the ALJ mischaracterized portions of Dr. Dyas’s treatment notes as

showing George’s “symptoms were well controlled with medication.” (R. 46). It is

true that some of Dr. Dyas’s treatment notes cited by the ALJ state George “had

improved quality of life and diminished pain” (R. 1568, 1571, 1576) or “continues

to benefit on his current pain management” (R. 1344, 1390). However, the medical

records from these same examinations reveal George consistently estimated his pain

as eight out of ten and exhibited paraspinal muscle spasm. (R. 1342, 1387, 1568,

1571, 1573).13 Also contradicting the ALJ’s rosy pronouncement are Dr. Dyas’s

records showing George struggled with worsening pain when attempting to lower

his opiate prescription dosages. (R. 1576, 1583, 1589).

Finally, while he did not explicitly assign any particular weight to it, the ALJ

concurred with Dr. Schosheim’s opinion. (R. 46). Dr. Schosheim testified as a

medical expert at the hearing but never treated George. The opinion of a reviewing,

non-examining physician cannot provide good cause to contradict a treating

physician’s opinion. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). Moreover,

because the ALJ’s decision to discount the August 2017 Opinion is not otherwise

supported by substantial evidence, the ALJ erred by eschewing Dr. Dyas’s opinion

in favor of Dr. Schosheim’s.

For all of the foregoing reasons, the ALJ’s decision to discount the opinions

of Dr. Dyas is not supported by substantial evidence. Accordingly, this matter will

be reversed and remanded to the Commissioner for further consideration.

B. ALJ Bias

George also contends the ALJ’s decision should be reversed due to bias.

(Doc. 11 at 37-41). George submitted this claim to the Appeals Council in his

13 The vast majority of Dr. Dyas’s notes the ALJ cites to show George’s pain was well-controlled

or diminished with medication simply do not support the proposition. (See R. 46). Because the

ALJ cites to entire exhibits rather than specific pages, the undersigned has reviewed the more than

250 pages of medical records cited. (Id.). Other than the records quoted above, the remaining

pages do not support that George’s pain was controlled or improved with medication. Indeed, the

overwhelming majority of these treatment notes support the opposite conclusion.

request for review, citing the ALJ’s conduct during the July 26, 2018 hearing and

requesting the Appeals Council listen to the recording of the proceedings. (R. 807-

09). This is sufficient to present the claim of ALJ bias at the administrative level.

See Cooper v. Barnhart, 345 F. Supp. 2d 1309, 1310 (S.D. Ala. 2004).

The ALJ conducted an initial hearing on July 31, 2014 (R. 292-320), and a

supplemental hearing on May 12, 2015 (R. 263-89); he issued an unfavorable

decision on January 28, 2016 (R. 338-355). George sought review with the Appeals

Council, attaching new evidence postdating the decision and/or the hearings,

including records from: (1) his July 23, 2015 total right knee replacement; and (2)

his March 17, 2017 pacemaker surgery. (R. 362). The Appeals Council remanded

the case to the ALJ with instructions to consider this new evidence. (Id.).

On remand, the July 26, 2018 hearing started with the ALJ stating there was

“no explanation as to why this evidence was submitted late, but they remanded it

anyway, so we’re here.” (R. 207). The ALJ returned to this complaint later in the

hearing, noting George’s counsel “filed records that should’ve been filed before the

last hearing.” (R. 246). Notably, all of the new evidence about which the ALJ

complained concerned medical records generated and medical care performed after

the original and first supplemental hearings.

When George’s counsel began discussing Dr. Dyas’s sworn examination

testimony, the ALJ interrupted him, saying it was entitled to “[n]o weight at all” and

that he wouldn’t “pay attention” to it because it consisted of ex parte statements in

response to counsel’s “leading questions.” (R. 237-38). When George’s counsel

noted the statements were given under oath, the ALJ responded:

It’s like that circle form that’s used all the time. They’re never

supported. They—that’s like, circle this form, and you send it in with

no support . . . and then you take the deposition and lead the doctor

down the road.

(R. 238). None of these reasons justify ignoring Dr. Dyas’s opinions.

The ALJ also demonstrated confusion regarding George’s physical problems.

When George’s counsel discussed Dr. Dyas’s repeated findings of paraspinal muscle

spasms and markedly positive straight leg tests, the ALJ interrupted to point out

these findings were prior to George’s surgery. (R. 243). George’s counsel explained

these tests related to spinal—not knee—problems, and the ALJ responded, “I don’t

think it’s this gentleman’s back that’s bothering him. I think it’s his knees and his

legs.” (R. 244). Similarly, when counsel discussed Dr. Dyas’s diagnoses of

George’s cervical spine issues, the ALJ interrupted by saying, “He’s not

complaining that he can’t work because of his neck.” (R. 244). These conclusions

ignore the testimony George had given minutes earlier, as well as nine years of Dr.

Dyas’s treatment records. (See R. 211).

Finally, in dismissing George’s subjective complaints of pain, the ALJ

misstated the law regarding subjective testimony. (R. 244-45). Specifically, the

ALJ stated he wasn’t “allowed to do credibility anymore. We’re not able—we can’t

even touch it.” (R. 245). The ALJ returned to this misinterpretation shortly

thereafter, stating “we no longer can even do credibility determinations.” (R. 246).

However, SSR 16-3p explicitly allows an ALJ to consider a claimant’s subjective

statements concerning their symptoms and attendant effects.

A Social Security claimant is entitled to a “full and fair” hearing. Miles, 84

F.3d at 1400. The ALJ plays a “crucial role in the disability review process” and

has a duty to “develop a full and fair record” and to “carefully weigh the evidence,

giving individualized consideration to each claim.” Id. at 1401. Because the ALJ's

decision will typically be the final word given our standard of review, the ALJ's

impartiality is “integral to the integrity of the system.” Id. The ALJ thus must “not

conduct a hearing if he or she is prejudiced or partial with respect to any party or has

any interest in the matter pending for decision.” Id. at 1400 (quoting 20 C.F.R. §

404.940).

At the July 26, 2018 hearing, the ALJ: (1) attributed error to George’s counsel

for failing to submit yet-to-be generated medical records at the prior hearings; (2)

mischaracterized Dr. Dyas’s sworn examinations as consisting of cursory answers

to leading questions; (3) declared he would not afford any weight to Dr. Dyas’s

sworn examinations; (4) mistakenly stated George did not claim disability due to

neck and back and neck problems, despite George’s testimony earlier in the hearing

and years of medical records documenting those very problems; and (5) misstated

the standard for evaluating George’s subjective complaints, implying that he could

not consider them at all.

To be fair, the ALJ corrected some of these deficiencies in his decision. The

decision addressed George’s complaints of neck and back problems. However, the

ALJ’s decision added other problems, including unnecessarily questioning Dr.

Dyas’s credibility by erroneously stating the record did not support his sworn

statement regarding the number of times he examined George. Additionally, while

the ALJ’s decision did address Dr. Dyas’s opinions, it ultimately gave them little

weight—as promised during the hearing.

The foregoing circumstances are insufficient to establish ALJ bias. They are,

however, sufficient to call his partiality into question. Mastison v. Astrue, No. 07-

0129, 2008 WL 2038250, at *9 (N.D. Fla. May 12, 2008) (reversing and remanding

for consideration by a different ALJ where the original ALJ failed “to make a fair

review of all medical information without pre-judging the impact of any particular

physician's work”). Under the facts of this case and considering this matter has

already necessitated three hearings and two ALJ decisions totaling nearly sixty

single-spaced pages, the Commissioner will be ordered to assign this matter to a new

ALJ on remand.

IV. CONCLUSION

For all of the foregoing reasons, the ALJ’s decision is not supported by

substantial evidence. Accordingly, this matter will be reversed and remanded to the

Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. §

405(g). The Commissioner will be ordered to assign this matter to a different ALJ

on remand.

DONE this 14th day of July, 2021.

lac’ J. Chepslaine)

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

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