Beckwith v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

COURTNEY LASHAY BROOKS )

BECKWITH, )

)

Plaintiff )

)

vs. ) Case No. 5:20-cv-01696-HNJ

)

SOCIAL SECURITYADMINISTRATION, )

COMMISSIONER, )

)

Defendant )

MEMORANDUM OPINION

Plaintiff Courtney Beckwith seeks judicial review pursuant to 42 U.S.C. § 405(g)

of an adverse, final decision of the Commissioner of the Social Security Administration

(“Commissioner”), regarding her claim for a period of disability, disability insurance,

and supplemental security income benefits. The undersigned carefully considered the

record, and for the reasons expressed herein, the court REVERSES the

Commissioner’s decision and REMANDS for further consideration of the consultative

medical examiner’s report in light of Beckwith’s March 21, 2019, x-ray results.1

LAW AND STANDARD OF REVIEW

To qualify for benefits, the claimant must be disabled as defined by the Social

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the

parties have voluntarily consented to have a United States Magistrate Judge conduct any and all

proceedings, including the entry of final judgment.

Security Act and the Regulations promulgated thereunder. The Regulations define

disabled” as the “inability to do 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.” 20 C.F.R. §§ 404.1505(a), 416.905(a). To establish an

entitlement to disability benefits, a claimant must provide evidence of a “physical or

mental impairment” which “results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques.” 42 U.S.C. § 423(d)(3).

In determining whether a claimant suffers a disability, the Commissioner,

through an Administrative Law Judge (ALJ), works through a five-step sequential

evaluation process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The burden rests

upon the claimant at the first four steps of this five-step process; the Commissioner

sustains the burden at step five, if the evaluation proceeds that far. Washington v.

Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018).

In the first step, the claimant cannot be currently engaged in substantial gainful

activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, the claimant must prove the

impairment is “severe” in that it “significantly limits [the] physical or mental ability to

do basic work activities . . . .” Id. at §§ 404.1520(c), 416.920(c).

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At step three, the evaluator must conclude the claimant is disabled if the

impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part

404, Subpart P, App. 1, §§ 1.00–114.02. Id. at §§ 404.1520(d), 416.920(d). If a

claimant’s impairment meets the applicable criteria at this step, that claimant’s

impairment would prevent any person from performing substantial gainful activity. 20

C.F.R. §§ 404.1520(a)(4)(iii), 404.1525, 416.920(a)(4)(iii), 416.925. That is, a claimant

who satisfies steps one and two qualifies automatically for disability benefits if the

claimant suffers a listed impairment. See Williams v. Astrue, 416 F. App’x 861, 862 (11th

Cir. 2011) (“If, at the third step, [the claimant] proves that [an] impairment or

combination of impairments meets or equals a listed impairment, [the claimant] is

automatically found disabled regardless of age, education, or work experience.”) (citing

20 C.F.R. § 416.920; Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)).

If the claimant’s impairment or combination of impairments does not meet or

medically equal a listed impairment, the evaluation proceeds to the fourth step, where

the claimant demonstrates an incapacity to meet the physical and mental demands of

past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). At this step, the evaluator

must determine whether the claimant has the residual functional capacity (“RFC”) to

perform the requirements of past relevant work. See id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). If the claimant’s impairment or combination of impairments does

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not prevent performance of past relevant work, the evaluator will determine the

claimant is not disabled. See id.

If the claimant succeeds at the preceding step, the fifth step shifts the burden to

the Commissioner to provide evidence, considering the claimant’s RFC, age, education

and past work experience, that the claimant is capable of performing other work. 20

C.F.R. §§ 404.1512(b)(3), 416.912(b)(3), 404.1520(g), 416.920(g). If the claimant can

perform other work, the evaluator will not find the claimant disabled. See id. §§

404.1520(a)(4)(v), 416.920(a)(4)(v); see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the

claimant cannot perform other work, the evaluator will find the claimant disabled. 20

C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).

The court reviews the ALJ’s “‘decision with deference to the factual findings and

close scrutiny of the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec. Admin.,

783 F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th

Cir. 1991)). The court must determine whether substantial evidence supports the

Commissioner’s decision and whether the Commissioner applied the proper legal

standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

Although the court must “scrutinize the record as a whole . . . to determine if the

decision reached is reasonable . . . and supported by substantial evidence,” Bloodsworth

v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted), the court “may not

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decide the facts anew, reweigh the evidence, or substitute [its] judgment” for that of the

ALJ. Winschel, 631 F.3d at 1178 (citations and internal quotation marks omitted).

“Substantial evidence is more than a scintilla and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” Id. (citations

omitted). Nonetheless, substantial evidence exists even if the evidence preponderates

against the Commissioner’s decision. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.

2005).

FACTUAL AND PROCEDURAL HISTORY

Ms. Beckwith, age 29 at the time of the ALJ hearing, protectively filed

applications for a period of disability, disability insurance, and supplemental income

security benefits on November 29, 2018, alleging disability beginning November 15,

2017. (Tr. 52, 255-64). The Commissioner denied Beckwith’s claims, and Beckwith

timely filed a request for a hearing on April 15, 2019. (Tr. 166-77, 186-90). An

Administrative Law Judge (“ALJ”) held a hearing on November 20, 2019. (Tr. 44-115).

During the hearing, Beckwith amended her alleged onset date to November 15, 2018.

(Tr. 98). The ALJ issued an opinion denying Beckwith’s claim on February 12, 2020.

(Tr. 12-37).

Applying the five-step sequential process, the ALJ found at step one that

Beckwith had not engaged in substantial gainful activity since November 15, 2018. (Tr.

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18). At step two, the ALJ found Beckwith had the severe impairments of spine

disorders, essential hypertension, depressive disorder, bipolar disorder, anxiety

disorder, and post repair fracture of bones. (Id.). At step three, the ALJ found

Beckwith’s impairments, or combination of impairments, did not meet or medically

equal any impairment for presumptive disability listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Id.). Next, the ALJ found that, despite her impairments, Beckwith

exhibited the residual functional capacity (“RFC”) to perform light work with the

following additional limitations:

The claimant can occasionally lift and/or carry, including upward pulling

of twenty pounds, and frequently lift and or carry, including upward

pulling of ten pounds. The claimant can sit for six hours in an eight-hour

workday with normal breaks, and can stand and/or walk with normal

breaks for six hours in an eight-hour workday. The claimant’s ability to

push and/or pull, including operation of hand or foot controls is

unlimited up to the lift and carry restriction of twenty and ten pounds.

The claimant can frequently climb ramps and stairs, balance, sto[o]p,

kneel, crouch, and crawl. The claimant should not work on ladders,

ropes or scaffolds, work at unprotected heights or around dangerous

machinery. The claimant can understand and carry out short simple

instructions, and concentrate and remain on tasks for two-hour periods,

across an eight-hour workday, five-day workweek with all customary work

breaks. Any changes in the work environment should be infrequent.

The claimant can have occasional contact with the general-public,

coworkers, and supervisors.

(Tr. 24). At step four, the ALJ determined that Beckwith could not perform her past

relevant work as a teller. (Tr. 35). However, at step five, the ALJ determined that,

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considering Beckwith’s age, education, work experience, and RFC, she could perform

a significant number of other jobs in the national economy, such as laundry folder, parts

assembler, and electronics worker. (Tr. 36-37). Accordingly, the ALJ found that

Beckwith did not suffer a disability, as defined by the Social Security Act, since

November 15, 2018. (Tr. 37).

Beckwith timely requested review of the ALJ’s decision. (Tr. 249-52). On

September 15, 2020, the Appeals Council denied review, which deems the ALJ’s

decision as the Commissioner’s final decision. (Tr. 1-6). On October 29, 2020,

Beckwith filed her complaint with the court seeking review of the ALJ’s decision.

(Doc. 1).

ANALYSIS

In this appeal, Beckwith argues the ALJ improperly considered the opinions of

the consultative examiners and improperly failed to characterize her migraine headaches

as a severe impairment. For the reasons discussed below, the undersigned concludes

the ALJ properly considered Beckwith’s migraine headaches and the consultative

psychological examiner’s opinion, but he did not properly consider the consultative

medical examiner’s opinion. Consequently, the case warrants remand to the

Commissioner for further consideration of the consultative medical examiner’s opinion

in light of Beckwith’s March 21, 2019, x-ray results.

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I. The ALJ Did Not Err By Failing To Consider Beckwith’s Migraines As A

Severe Impairment, And He Properly Considered The Migraines In

Determining Beckwith’s Residual Functional Capacity

As discussed, at step two of the sequential evaluation process the ALJ found

Beckwith had the severe impairments of spine disorders, essential hypertension,

depressive disorder, bipolar disorder, anxiety disorder, and post repair fracture of

bones. (Tr. 18). Beckwith argues the ALJ should also have considered her migraines

as a severe impairment.

Step two of the sequential evaluation process, during which the ALJ considers

the medical severity of a claimant’s impairments, constitutes a “‘threshold inquiry’ and

‘allows only claims based on the most trivial impairments to be rejected.’” Schink v.

Comm’r of Soc. Sec., 935 F.3d 1245, 1264-65 (11th Cir. 2019) (citing Phillips v. Barnhart, 357

F.3d 1232, 1240 n. 8 (11th Cir. 2004); McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.

1986)).

An impairment or combination of impairments manifests as “non-severe” if it

“does not significantly limit [the claimant’s] physical or mental ability to do basic work

activities.” 20 C.F.R. §§ 404.1522(a), 416.922(a). The term “basic work activities”

refers to “the abilities and aptitudes necessary to do most jobs,” including:

(1) Physical functions such as walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, or handling;

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(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual

work situations; and

(6) Dealing with changes in a routine work setting.

20 C.F.R. §§ 404.1522(b), 416.922(b). Thus, an ALJ should characterize an impairment

as non-severe “only if the abnormality is so slight and its effect so minimal that it would

clearly not be expected to interfere with the individual’s ability to work, irrespective of

age, education or work experience.” Schink, 935 F.3d at 1265 (citing McDaniel, 800

F.2d at 1031).

Even so, the Eleventh Circuit maintains that an ALJ’s failure to find a severe

impairment at stage two “could be harmless if the ALJ nevertheless proceeded in the

sequential evaluation, duly considered [the claimant’s] mental impairment when

assessing his RFC, and reached conclusions about [the claimant’s] mental capabilities

supported by substantial evidence.” Schink, 935 F.3d at 1268. The erroneous finding

of non-severity constitutes reversible error only when the ALJ limits the RFC

assessment to the effects of the impairments he characterized as “severe,” and omits

discussion of the non-severe impairments. As the Eleventh Circuit has stated,

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consideration of all impairments, severe and non-severe, is required when

assessing a claimant’s RFC. Bowen v. Heckler, 748 F.2d 629, 634-35 (11th

Cir. 1984). The ALJ must also consider a claimant’s medical condition

taken as a whole. Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782

(11th Cir. 2014); Phillips, 357 F.3d at 1237 (ALJ has a duty to consider

impairments in combination and to determine whether combined

impairments render the claimant disabled); see also 20 C.F.R. § 404.1523(c)

and Social Security Ruling 96-8p. If an ALJ fails to address the degree of

impairment caused by the combination of physical and mental medical

problems, the decision that the claimant is not disabled cannot be

upheld. Bowen, 748 F.2d at 634 (“[I]t is certain that mental and

psychological defects can combine with physical impairments to create

total disability to perform gainful employment.” (quoting Brenem v.

Harris, 621 F.2d 688, 690 (5th Cir. 1980))).

Schink, 935 F.3d at 1268-69 (alteration in original).

Despite finding at step two that Beckwith’s migraines did not present “more than

slight abnormalities and have more than a minimal effect on [Beckwith’s] ability to do

basic physical or mental work activities” (Tr. 18), the ALJ proceeded to discuss the

effects of the migraines when evaluating Beckwith’s residual functional capacity at step

four. The ALJ considered Beckwith’s handwritten migraine “‘log’ book . . . containing

‘x’ marks of complaints, duration, and treatment, side effects, on dates of the months

from July through October 2019 . . . . (Tr. 30). However, he considered the log book

“neither persuasive nor probative,” as Beckwith created the document that served her

interests, and the ALJ could not verify her notations “with any reasonable degree of

certainty.” (Tr. 30-31). The ALJ also stated:

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The claimant testified that she needs to lie down daily from

migraines and stay in bed [at] least 2-3 days. She said she takes naps

during the day; she lives upstairs because there are steps to downstairs.

She wears a mask when going out wears Germ-X. [sic] Claimant’s attorney

argued “per log” for support noting that on August 3, she placed an “x”

mark that she had migraine and so on. However, the record is

inconsistent with any complaints of severe migraines or any extensive

medical treatment. When seen by Dr. Patel on August 22, 2019, just

nineteen days after August 3, she told him that she had “ear discomfort[,]”

neck tenderness[,] and “bumps” in her mouth that improved with

mouthwash. She said, “No hospitalizations in a couple of years,” no UTI

symptoms today, and she frequently uses amoxicillin with increased

temperature. Her physical Examination noted the claimant as alert and

oriented and in no acute distress and her physical examination was entirely

normal. . . . When seen at UAB in May 2019, where she complained of

cognitive problems, she was noted as alert and oriented in no acute

distress, and a normal physical examination with no swelling. A CT of

her head was “normal” . . . . There [is] no objective documentation of

the claimant wearing a mask for any treatment,[2] nor a need to lie down,

nor any confirmation for the self-generated form.

(Tr. 31).

The ALJ adequately considered Beckwith’s migraine headaches at step four

despite failing to list the condition as a severe impairment at step two. Accordingly,

the ALJ did not err at step two of the sequential evaluation process. Even if he did

err, the error was harmless, and his failure to characterize Beckwith’s migraines as a

severe impairment does not provide a basis for overturning the administrative decision.

2 The court notes the ALJ rendered this statement prior to the throes of the global COVID-19

pandemic.

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Beckwith may also argue the ALJ improperly evaluated her migraines under

Social Security Ruling 19-4p, which provides guidance on evaluating cases involving

primary headache disorders.3 SSR 19-4p states that the Social Security Administration

“establish[es] a primary headache disorder as [a medically determinable impairment] by

considering objective medical evidence (signs, laboratory findings, or both) from an

[acceptable medical source].” SSR 19-4p, 2019 WL 4169635, at *5. The

Administration will not rely solely upon a diagnosis or a claimant’s statement of

symptoms to establish the existence of a medically determinable impairment. Rather,

it will consider a combination of medical findings, including: a diagnosis of primary

headache disorder supported by treatment notes and made after physical examination

and exclusion of other potential headache causes; a physician’s observation of a typical

headache event; remarkable or unremarkable findings on laboratory tests; and the

claimant’s response to medications and other treatments. Id. at *6.

The Social Security Administration also will consider a medically determinable

impairment of primary headache disorder in assessing a claimant’s residual functional

capacity. As with any other impairment, the Administration will evaluate whether the

3 Beckwith’s brief does not clearly portray whether she asserts such an argument. Even so, for the

sake of completeness, the court will address it.

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record evidence is consistent with the claimant’s impairment-related symptoms, such as

an inability to sustain attention and concentration due to photophobia. Id. at *7-8.

The Ruling advises that a claimant’s “‘headache journal’ may aid a physician in

diagnosing a headache disorder after reviewing a person’s full medical and headache

history.” Id. at *6 n.22. Though the Social Security Administration does not require

evidence from such a journal, it will consider such evidence “when it is part of the

record, either as part of the treatment notes or as separate evidence, along with all

evidence in the record.” Id. at *6 n.22.

Beckwith complains that the ALJ did not fully credit her headache journal, which

documented the need to take medication for migraines lasting 3-24 hours on 19 of the

97 days between July 1 and October 30, 2019. (Tr. 419-22). As Beckwith points out,

such a frequency, if credited, would bear significance in light of the vocational expert’s

testimony that absenteeism in excess of one day each month would preclude gainful

employment. (Tr. 108-09). However, the ALJ properly considered the journal under

the guidance of SSR 19-4p, “along with all evidence in the record.” SSR 19-4p, 2019

WL 4169635, at *6 n.22.

Though Dr. Corliss, Beckwith’s primary care provider, diagnosed her with

chronic migraines as early as January 24, 2017, and treated her with medication (Tr.

1211-13), his records do not indicate he reached that diagnosis after physical

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examination and exclusion of other potential headache causes, as SSR 19-4p specifies.

Moreover, as with any other impairment, the mere fact that Beckwith received a

diagnosis of migraine disorder does not render her disabled, as symptoms alone do not

determine a claimant’s ability to perform work-related activities. Moore, 405 F.3d at

1213 n.6 (citing McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)); see also Bros. v.

Saul, No. CV 1:20-00042-N, 2021 WL 1186136, at *8 (S.D. Ala. Mar. 29, 2021) (mere

fact that a physician treated claimant for migraines was not dispositive of the existence

of a disabling impairment).

When evaluating the limiting effects of Beckwith’s migraine disorder, the ALJ

permissibly considered that the medical record did not support the existence of

disabling limitations, and substantial evidence supports the ALJ’s finding. The court

could locate no mention of Beckwith’s headache journal in her medical records, or any

other corroboration of Beckwith’s self-generated reports. On October 2, 2018, just

over a month prior to her amended alleged onset date, Beckwith reported good overall

health and no headaches to Dr. Corliss. She stated medication effectively controlled

her migraines, and she believed she could return to full-time work. (Tr. 1231).

Indeed, Dr. Corliss signed a note on October 2, 2018, stating that Beckwith could return

to work immediately. (Tr. 1292). Beckwith did mention migraines during her May 9,

2019, visit to Dr. Turner, but both the clinical examination and a CT scan produced

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normal results. (Tr. 1640-46). On May 23, 2019, she complained to Dr. Corliss of a

headache that did not respond to medication as well as in the past, so Dr. Corliss

adjusted her medication. (Tr. 1598-1600). Beckwith did not complain of migraines

during her August 22, 2019, visit to Dr. Patel. (Tr. 1660-62). Moreover, as SSR 19-

4p states, migraine symptoms can cause problems with attention and concentration, yet,

as the ALJ recognized, clinical examinations consistently reflect Beckwith displayed full

alertness and orientation. (Tr. 1230, 1233, 1598-99, 1600-02, 1661). Finally, the ALJ

correctly noted Beckwith did not seek any emergency treatment for migraines.

Thus, although Beckwith’s headache journal and self-reported symptoms

constitute some evidence of the severity of her migraine disorder, substantial evidence

supported the ALJ’s conclusion that the medical record did not support the existence

of disabling limitations resulting from that condition. The ALJ properly considered

Beckwith’s migraine disorder pursuant to SSR 19-4p.

II. The ALJ Properly Considered The Consultative Psychological Opinion of

Jack Bentley, Ph.D, But The ALJ Did Not Properly Consider the

Consultative Medical Opinion of Dr. John Thomas Nelson

The Social Security Administration revised its regulations regarding the

consideration of medical evidence for all claims filed after March 27, 2017. See 82 FR

5844-01, 2017 WL 168819 (Jan. 18, 2017). Because Beckwith filed her claim for

benefits after March 27, 2017, 20 C.F.R. §§ 404.1520c and 416.920c, the revised

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regulations, govern.

Under those provisions, an ALJ must apply the same factors in considering all

medical opinions and administrative medical findings, rather than affording specific

evidentiary weight to any particular provider’s opinion. 20 C.F.R. §§ 404.1520c(a),

416.920c(a). Supportability and consistency constitute the most important factors in

any evaluation, and the ALJ must explain the consideration of those factors. 20 C.F.R.

§§ 404.1520c(b)(2), 416.920c(b)(2). Thus, “[t]he more relevant the objective medical

evidence and supporting explanations presented by a medical source are to support his

or her medical opinion(s) or prior administrative medical finding(s),” and “[t]he more

consistent a medical opinion(s) or prior administrative medical finding(s) is with the

evidence from other medical sources and nonmedical sources in the claims the more

persuasive the medical opinions or prior administrative medical finding(s) will be.” 20

C.F.R. §§ 404.1520c(c)(1)-(2), 416.1520c(c)(1)-(2).

The ALJ also may consider the medical source’s specialty and the relationship

between the claimant and the medical source, including the length, purpose, and extent

of the treatment relationship, and the frequency of examinations. 20 C.F.R. §§

404.1520c(c)(3)(i)-(iv), 416.920c(c)(3)(i)-(iv). The ALJ “may” conclude that an

examining medical source will understand the claimant’s impairments better than a

medical source who only reviews evidence in the claimant’s file. 20 C.F.R. §§

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404.1520c(c)(3)(v), 416.920c(c)(3)(v). The ALJ also “will consider other factors that

tend to support or contradict a medical opinion or prior administrative medical

finding,” including, but not limited to, “evidence showing a medical source has

familiarity with the other evidence in the claim or an understanding of our disability

program’s policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c)(5),

416.920c(c)(5).

A. The ALJ Properly Considered the Opinion of Consultative

Psychological Examiner Jack Bentley, Ph.D

Dr. Jack Bentley, Ph.D., conducted a consultative psychological examination on

February 21, 2019. Dr. Bentley summarized Beckwith’s physical problems, including

cervical fracture, orthopedic injuries, collapsed lungs and splenectomy from a 2009 car

accident; compromised immune system; cardiomyopathy, migraine headaches; gait

limitations due to spinal misalignment; and degenerative joint disease. Beckwith

described herself as moderately to severely depressed due to her chronic pain, loss of

lifestyle, and inability to work. She reported crying spells, mood swings, irritability, and

occasional rages. Her primary medical doctor treated those symptoms with

medication. Beckwith also described mild to moderate anxiety, but her anxiety had

increased due to her health problems. Beckwith had never been hospitalized for

psychiatric reasons, and she never pursued formal psychiatric treatment. She had no

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history of suicidal ideation, hallucinations, or paranoia.

During the clinical evaluation, Beckwith displayed pain-related behaviors, and

Dr. Bentley summarized her psychological symptoms thusly:

There were no limitations in her receptive or expressive

communication skills. Her tertiary and immediate memories were intact.

The patient made fair eye contact. She provided relevant responses to all

questions. Her mood was moderately dysphoric and congruent with her

affect. There was evidence of some memory loss associated with her pain

disorder and inability to sustain her concentration. She exhibited some

anxiety and restlessness associated with her pain disorder secondary to the

obvious discomfort she was experiencing during the interview. The

client did not exhibit any unusual or peculiar behaviors.

The patient was alert and oriented. She failed to recall any of three

objects after a five-minute delay. The claimant did recite five digits

forward and three backwards. The client indicated that there are 52

weeks in a year, the sun rises in the east and Shakespeare’s the author of

Hamlet. She interpreted two Proverbs and provided the analogy in three

of three abstractions. The patient accurately performed serial 7’s and 3’s

from 100. She spelled the word “world” forward and backwards. The

client correctly identified national and state leaders. She was able to

count backwards from 20 to 1.

(Tr. 1584-85).

Dr. Bentley found “evidence of a moderate to severe sleep disturbance,” as

Beckwith suffered initial and middle night insomnia and experienced difficulty relaxing

due to her pain, neuropathy, and racing thoughts. Beckwith reported attending church

occasionally, but she denied having any friends, and she had discontinued many aspects

of her day-to-day lifestyle due to her pain. Thus, most of her social interaction came

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from immediate family. However, Beckwith could complete her activities of daily

living without assistance.

Dr. Bentley assessed depressive disorder with anxiety due to medical reasons,

moderate, recurrent; multiple health problems; and cognitive disorder secondary to a

traumatic brain injury. He characterized Beckwith’s condition as “reasonably stable on

a regimen of Lexapro and Ativan,” and he observed Beckwith had not pursued mental

health services. He did not detect symptom exaggeration, and he opined Beckwith

could manage any funds Social Security awarded. He characterized the prognosis for

her current level of functioning as “favorable.” (Tr. 1585).

Based upon his evaluation, Dr. Bentley assessed marked limitation in Beckwith’s

ability to complete complex or repetitive work-related activities and moderate limitation

in her ability to perform simple tasks. He assessed “similar limitations” for Beckwith’s

ability to communicate effectively with coworkers and supervisors. He opined:

Most of her work related restrictions would stem from her pain

disorder and other health problems as previously described. These

restrictions and limitations would need to be addressed by an

appropriately trained physician. It would appear extremely difficult for

this individual to sustain even simple work related tasks based on the pain

behavior she exhibited during this interview.

(Tr. 1586).

The ALJ found Dr. Bentley’s assessment “not persuasive and inconsistent with

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the other evidence as noted throughout this decision.” (Tr. 30). As an explanation

for that conclusion, the ALJ reasoned:

Dr. Bentley notes in the record of evidence of a moderate to severe

sleep disturbance, however, he is not a medical doctor to be competent to

make such assessment, and it is not supported by the objective medical

evidence. This is based exclusively on the claimant’s subjective

statements that she has middle night insomnia, trouble relaxing at night.

There is no such objective documentation to support this statement. The

claimant reported she has discontinued many aspects of her day-to-day

lifestyle. However, he noted that the claimant without assistance

completes her activities of daily living. The claimant’s social life was

found to be limited to her immediate family. . . . Dr. Bentley then states

that most of the claimant’s work related restrictions would stem from her

pain disorder that would need to be addressed by the appropriate

physician . . . .

(Tr. 30).

The ALJ also considered that

Dr. Bentley examined the claimant one time and had not established a

treating relationship with the claimant. Further, based upon the opinion

in part, the claimant’s physical limitations were considered but he is a

psychologist, and any opinion by him regarding the claimant’s physical

limitations is well outside of his field of expertise. “She’s not been

hospitalized for psychiatric reasons. The client has never pursued formal

psychiatric treatment. There’s been no history of suicidal ideation,

hallucinations or paranoia.” The undersigned finds that the medical

evidence of record does not show that the claimant has any more than

moderate limitations resulting from her mental impairments as referenced.

(Id.). In particular, the ALJ considered that Beckwith

was treated at the Internal Medicine and Pediatrics of Cullman on

February 11, 2019, ten days prior to the consultative examination with Dr.

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Bentley, with a “Chief Complaint,” ear and lymph node pain on left side,

yeast infection, back pain and back popping up back to neck. She

complained of chronic neck pain and stiffness, but this sensation is new.

She was noted as alert and oriented x 4 with no confusion. Specifically,

there is no mention from the claimant’s treating source of moderate to

severe sleep disturbance, and suffering initial and middle night insomnia.

On May 23, 2019, she was seen for a recheck and “accompanied by no

one.” She said she had no recurrent fevers, and was alert and oriented x

4 with no confusion. She was in no acute distress, her neck was noted as

supple, lungs were clear, respiration were [sic] non-labored. Her heart

showed a normal rate, regular rhythm, no murmur, no gallop, with normal

peripheral perfusion and no edema. She was examined and found with

no tenderness, no swelling, no deformity, and neurologically, she was

observed as alert, oriented, and no facial deficits. . . .

(Id.) (emphasis in original).

The court finds the ALJ appropriately considered Dr. Bentley’s opinion in

accordance with the revised regulations, and substantial evidence supported the ALJ’s

decision. Beckwith’s arguments to the contrary do not persuade the court.

First, Beckwith asserts the ALJ improperly considered findings that she appeared

alert and oriented during treatment visits for isolated physical problems. The court

agrees that passing notations of the lack of psychological or neurological symptoms

during an examination for a specific condition do not warrant the highest level of

evidentiary weight, as the examiner likely did not focus upon the patient’s emotional

state when making the notations. See, e.g., Cash v. Comm’r of Soc. Sec., No. 4:19-CV-

01789-JHE, 2021 WL 1117754, at *7 (N.D. Ala. Mar. 24, 2021). However, there exists

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no authority holding an ALJ must entirely avoid considering such notations, and here,

the ALJ did not rely solely upon the notations to reject Dr. Bentley’s assessment. As

discussed, he also considered Dr. Bentley’s specialization, Beckwith’s daily activities,

the lack of medical records describing mental health symptoms, and Beckwith’s failure

to seek specialized mental health treatment.

Second, Beckwith argues the ALJ impermissibly considered Dr. Bentley’s

specialty as a psychologist when assessing Dr. Bentley’s comments about Beckwith’s

physical symptoms. This argument cannot succeed because the revised regulations

specifically state an assessor should consider a physician’s specialty when determining

the amount of weight to assign that physician’s opinions. 20 C.F.R. §§ 404.1520c(c)(4),

416.920c(c)(4) (“The medical opinion or prior administrative medical finding of a

medical source who has received advanced education and training to become a specialist

may be more persuasive about medical issues related to his or her area of specialty than

the medical opinion or prior administrative medical finding of a medical source who is

not a specialist in the relevant area of specialty.”).

Third, Beckwith argues the ALJ impermissibly considered Dr. Bentley’s status as

a one-time examiner. Again, this argument cannot succeed because the revised

regulations specifically state an assessor should consider the nature and length of the

relationship between the claimant and the medical source when determining the amount

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of weight to assign that source’s opinions. 20 C.F.R. §§ 404.1520c(c)(3)(i)-(v),

416.920c(c)(3)(i)-(v).

Fourth, Beckwith argues the ALJ erred by rejecting Dr. Bentley’s assessment, as

Dr. Bentley constituted “the only mental health professional to treat or examine Ms.

Beckwith.” (Doc. 15, at 28). Beckwith relies upon Carril v. Barnhart, 201 F. Supp. 2d

1190 (N.D. Ala. 2002), where the ALJ rejected a psychologist’s consultative report that

constituted “the only evidence provided by a mental health professional relating to the

impairment and/or its resulting limitations — and found that Plaintiff did not suffer a

mental impairment and that he did not have any restriction due to depression.” Id. at

1191. The court found the ALJ erred because “rejection of the only medical evidence

of a mental health impairment is not substantial evidence to support the Administrative

Law Judge’s finding that Plaintiff did not suffer a mental impairment.” Id.

As an initial matter, the Carrill decision was based upon the Seventh Circuit’s

decision in Wilder v. Chater, 64 F.3d 335, 337 (7th Cir. 1995), which the Eleventh Circuit

has repeatedly declined to follow. See Hand v. Social Security Administration, 786 F. App’x

220, 226 (11th Cir. 2020); Jackson v. Social Security Administration, Comm’r, 779 F. App’x.

681, 685 (11th Cir. 2019); Arnold v. Social Security Administration, 724 F. App’x. 772, 79

(11th Cir, 2018). Moreover, even if Carrill did represent Eleventh Circuit law, the

decision does not require an ALJ to fully credit a consultative examiner’s opinion any

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time the record lacks another examiner’s opinion. To the contrary, the revised

regulations state an assessor may reject any physician’s opinion when the record does

not support it. Moreover, Carrill is distinguishable because the ALJ in this case found

that Beckwith suffered a mental impairment, and the record contains another medical

assessment of Beckwith’s psychological condition – that of state agency psychologist

Robert Bare, Ph.D. (Tr. 160-62).

Fifth, Beckwith argues the ALJ erred by rejecting Dr. Bentley’s comments about

her moderate to severe sleep disturbance as within the province of a medical doctor,

rather than a psychologist. The court agrees that a sleep disturbance could cause or

result from psychological symptoms, not just physical symptoms. Even so, the ALJ

appropriately considered that Dr. Bentley based his assessment of a sleep disorder

primarily upon Beckwith’s subjective complaints, not upon any medical evidence.

In her reply brief, Beckwith argues that the ALJ inaccurately characterized Dr.

Bentley’s opinion as follows: “The claimant reported she has discontinued many

aspects of her day-to-day lifestyle. However, [Dr. Bentley] noted that the claimant

without assistance completes her activities of daily living.” (Doc. 17, at 8 (quoting Tr.

30)). As Beckwith asserts, Dr. Bentley actually stated: “Due to the obvious pain being

experienced by this individual, she has discontinued many aspects of her day-to-day

lifestyle. She completes her ADL’s without assistance.” (Doc. 17, at 8 (quoting Tr.

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1585)). The court can discern no meaningful distinction between the two statements,

and therefore it finds no error in the ALJ’s decision.

In summary, the ALJ properly considered the opinion of consultative

psychological examiner Dr. Bentley.

B. The ALJ Failed to Properly Consider the Results from Beckwith’s

March 21, 2019, X-Rays When Evaluating the Report of Medical

Consultative Examiner Dr. John Thomas Nelson

Dr. Nelson conducted a consultative medical examination on February 16, 2019.

During the consultation, Beckwith complained of: (1) constant neck pain since a 2009

motor vehicle accident at a level six out of ten that worsens with activity and weather

changes, occasionally radiates into her thoracic spine, and limits her ability to hold up

and move her head; (2) constant, achy, non-radiating, bilateral low back pain at an

average level of six out of ten, which improves with prescription medications and rest,

increases with activity, and limits her abilities to bend, stoop, and lift; (3) a trauma with

fractures, splenectomy, and subdural hematoma from the 2009 motor vehicle accident;

(4) cardiomyopathy and heart failure beginning in 2018, and resulting in limitations of

walking a few hundred feet at a time and standing two to three hours a day; (5)

cholecystectomy (gall bladder removal) in 2012 with no other biliary issues since the

surgery; (6) myopathy, weakness, and muscle spasm beginning in 2016, and resulting in

difficulty arising from chairs, but helped by physical therapy; (7) short term memory

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loss since the 2009 motor vehicle accident; (8) depression and anxiety since the 2009

motor vehicle accident, which she has intermittently treated with medication; (9)

arthritis in the hips, neck, and back secondary to trauma; and (10) a compromised

immune system since the 2009 splenectomy, resulting in frequent infections. (Tr.

1575-76).

Beckwith reported “[s]he was terminated following extended leave after the last

bought [sic] of sepsis in 2018. Last worked in 2017 as an IT technologist before she

was dismissed following prolonged leave after battling sepsis in 2018.” (Tr. 1576).

She declared she did not use an assistive device to ambulate. She could walk very short

distances on level ground, and she could feed and dress herself. She experienced

difficulty standing for five to fifteen minutes and lifting more than five pounds with

each arm. She could not drive, sweep, mop, vacuum, cook, do dishes, shop for

groceries, care for the yard, mow the grass, or balance a checkbook. She could climb

no more than two or three steps, and she experienced difficulty turning a doorknob

with both hands. She could write her own name. (Tr. 1577).

During the physical examination, Beckwith could arise up and out of a chair with

mild difficulty, and she could sit on and arise from the examination table with difficulty.

She ambulated with difficulty, but without an assistive device. She displayed abnormal,

antalgic gait. The cardiovascular examination revealed tachycardic pulse; no edema,

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ulcerations, or varicosities; regular rhythm; no gallop or abnormal heart murmur; and

no displaced PMI (point of maximal impulse). From the spine and extremities

examination, Dr. Nelson detected

no evidence of scoliosis. There was no spasm of the paraspinous muscles

noted. There was no evidence of kyphosis. Feet with intact sensation

and no focal lesion. Sitting straight leg raising: left leg was 60 degrees

and was negative without pain. Right leg was 60 degrees and was negative

without pain. Supine straight leg raising: left leg was 50 degrees and

straight leg raising was positive radiating down left leg. Right leg was 50

degrees and was positive radiating down right leg. The claimant was not

able to walk on the toes. The claimant was not able to walk on the heels.

The claimant could squat on the floor and recover. The claimant can

perform tandem heel walking. The claimant had difficulty bending over

and touching [her] toes.

(Tr. 1579).

Beckwith displayed 4/5 grip strength in the right hand, indicating active

movement against moderate resistance. She displayed 4/5 grip strength in the left

hand, indicating active movement against slight resistance. She displayed full fine and

gross manipulation ability in both hands. (Tr. 1579-80). She exhibited normal

mentation, 4/5 motor strength, intact sensation, no cerebellar abnormalities, intact

cranial nerves, and intact reflexes. She exhibited limited cervical and lumbar range of

motion, but normal range of motion in other joints. Psychiatrically, she presented as

euthymic, without suicidal ideation. (Tr. 1580).

Dr. Nelson described Beckwith as a “28 year-old right-handed woman with

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allegations of limitation related to neck and back pain, post traumatic arthritis,

cardiomyopathy, myopathy, mental illness, and compromised immune system post-

splenectomy.” (Id.). He opined that Beckwith could stand, sit, walk, bend, stoop, lift,

and carry occasionally (very little up to 1/3 total of an 8-hour work day). Her radicular

low back pain and reduced cervical range of motion would limit her more than any

other impairments, but her frequent infections post-splenectomy would further limit

“her ability to reliably maintain a job.” (Tr. 1581). Due to her reduced grip strength,

she could grasp and handle objects frequently (1/3 to 2/3 total of an 8-hour work day)

to continuously (more than 2/3 of an 8-hour work day). Dr. Nelson discerned “no

objective evidence of limitation with regards to the claimant’s ability to see, hear, reach,

or with understanding or memory.” (Id.). He observed Beckwith experienced

difficulty ambulating, but she did not require an assistive device. (Id.).

The vocational expert testified that a person of Beckwith’s age, education, and

past relevant work experience, but who could lift no more than five pounds and sit,

stand, and walk occasionally (defined as up to one-third of an eight-hour day), could not

perform any jobs in the national economy, as the abilities to sit, stand, and walk would

not necessarily add up to a full eight-hour work day. (Tr. 109). Thus, if the ALJ

credited Dr. Nelson’s limitations on sitting, standing, and walking, he would have found

Beckwith disabled.

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However, the ALJ found Dr. Nelson’s opinions “probative, but not entirely

persuasive.” (Tr. 28). He reasoned:

Firstly, this opinion is not consistent with the treatment records that does

not show [sic] a series of infections during the relevant period. There was

no clear evidence of infection in August 2019 and the current UTI (urinary

tract infection) was mostly likely viral . . . . It appears [Dr. Nelson’s]

limitations are based upon the claimant’s complaints and exhibiting

limitations in walking. Her treating physicians do not note such

exhibition of limitations. There are no imagining [sic] studies noted by

Dr. Nelson for any confirmation of the claimant’s complaints.

Moreover, Dr. Nelson was a one-time consultative examiner and his own

examination is inconsistent with the medical records from the claimant’s

treating physician as noted throughout this decision. Exhibiting a loss or

restrictive range of motion is a subjective finding that is one that is under

the control of a person to report/display or not report/display irrespective

of actual symptoms. An individual’s symptoms are considered along with

pertinent signs and laboratory findings shown in the record. Specifically

a person’s statements alone are not enough to establish disability. A

finding of disability will not be based on symptoms. There must be

medical signs or laboratory findings showing the presence of a medical

condition that could be reasonably expected to produce the symptoms

alleged.

(Id.).

Beckwith challenges the ALJ’s finding that “[t]here are no [imaging] studies

noted by Dr. Nelson for any confirmation of the claimant’s complaints.” (Tr. 28).

The ALJ’s statement technically is correct: Dr. Nelson did not conduct any diagnostic

imaging, and he did not mention any objective diagnostic imaging results.

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Even so, the record contains x-ray results dated March 21, 2019, after Dr.

Nelson’s examination and report. The x-ray report stated:

(1) T11 compression fx[ fracture], chronic

(2) T12 with ? central superior endplate compression fx, chronic

(3) L-spine w/o f/x or DDD

(4) L5 vert. body with probable hypoplasia [?] is old chronic compression

fx; that contributes to asymmetric [increased?] of L4-L5 disc space

anteriorly.

(Tr. 1588). Beckwith argues both that the ALJ did not mention the March 21, 2019,

x-ray report, and that the ALJ failed to properly develop the record because the “x-ray

report is inadequate and unreadable.” (Doc. 17, at 5).

The ALJ retains a basic duty to develop a full and fair record. Pennington v. Comm’r

of Soc. Sec., 652 F. App’x 862, 871 (11th Cir. 2016). In determining whether to remand

a case for further development of the record, a court considers “‘whether the record

reveals evidentiary gaps which result in unfairness or clear prejudice.’” Vangile v.

Comm’r, Soc. Sec. Admin., 695 F. App’x 510, 512 (11th Cir. 2017) (quoting Brown v. Shalala,

44 F.3d 931, 935 (11th Cir. 1995) (per curiam)). As the March 21, 2019, x-ray report

contains three unreadable terms, it could present a troubling evidentiary gap.

However, even without considering the unreadable terms, the x-ray report

presents objective evidence of severe spinal injuries that could reasonably produce

significant functional limitations. Even though the ALJ conducted an extensive review

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of the evidence, he did not discuss the March 21, 2019, x-ray report. As the AL] based

his criticism of Dr. Nelson’s report largely on the lack of supporting objective evidence

in the record, the AL]’s failure to discuss the x-ray report bears significance. The court

cannot conclude that the AL}’s decision enjoyed substantial evidentiary support absent

any consideration of the x-ray report.

Accordingly, the court will remand the case for further consideration of Dr.

Nelson’s consultative report in light of Beckwith’s March 21, 2019, x-ray results.

CONCLUSION

For the foregoing reasons, the court REVERSES the Commissionet’s decision

and REMANDS the case for further consideration of Dr. Nelson’s consultative report

in light of Beckwith’s March 21, 2019, x-ray results. The court will enter a separate

Final Judgment.

DONE this 23" day of March, 2022.

4 N. fay (et

UNITED STATES MAGISTRATE JUDGE

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