Bradford v. Social Security Administration, Commissioner

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

CHASE HUNTER BRADFORD, )

)

Plaintiff, )

)

v. ) 7:21-cv-00129-LSC

)

SOCIAL SECURITY )

ADMINISTRATION, )

)

)

Defendant. )

MEMORANDUM OF OPINION

I. Introduction

The Plaintiff, Chase Hunter Bradford (“Bradford” or “Plaintiff”), appeals from

the decision of the Commissioner of the Social Security Administration

(“Commissioner”) denying his application for Supplemental Security Income

(“SSI”). Bradford timely pursued and exhausted his administrative remedies and

the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g),

1383(c)(3).

Bradford was 32 years old at the time of his SSI application, and he attended

school through the eighth grade. (See Tr. 119, 135, 140.) He has never worked. (Tr.

139.) Plaintiff claims that he became disabled on May 10, 2019. (Tr. 135.)

The Social Security Administration has established a five-step sequential

evaluation process for determining whether an individual is disabled and thus eligible

for SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d

1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in order until making

a finding of either disabled or not disabled; if no finding is made, the analysis will

proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first

step requires the evaluator to determine whether the plaintiff is engaged in

substantial gainful activity (“SGA”). Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If

the plaintiff is not engaged in SGA, the evaluator moves on to the next step.

The second step requires the evaluator to consider the combined severity of

the plaintiff’s medically determinable physical and mental impairments. Id. §§

404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of

impairments that is not classified as “severe” and does not satisfy the durational

requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding

of not disabled. Id. The decision depends on the medical evidence contained in the

record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that

“substantial evidence in the record” adequately supported the finding that the

plaintiff was not disabled).

Similarly, the third step requires the evaluator to consider whether the

plaintiff’s impairment or combination of impairments meets or is medically equal to

the criteria of 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 criteria of a listed impairment

and the durational requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 are

satisfied, the evaluator will make a finding of disabled. Id.

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

medically equal a listed impairment, the evaluator must determine the plaintiff’s

residual functional capacity (“RFC”) before proceeding to the fourth step. See id.

§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine

whether the plaintiff has the RFC to perform the requirements of his past relevant

work. See id, §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the plaintiff’s impairment

or combination of impairments does not prevent her from performing his past

relevant work, the evaluator will make a finding of not disabled. Id.

The fifth and final step requires the evaluator to consider the plaintiff’s RFC,

age, education, and work experience in order to determine whether the plaintiff can

make an adjustment to other work. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the

plaintiff can perform other work, the evaluator will find him not disabled. Id.; see

also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff cannot perform other work

the evaluator will find him disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),

416.920(a)(4)(v), 416.920(g).

Applying the sequential evaluation process, the Administrative Law Judge

(“ALJ”) found that Plaintiff has not engaged in SGA since May 10, 2019, the alleged

date of the onset of his disability. (Tr. 17.) According to the ALJ, Plaintiff’s anxiety

with agoraphobia and depression are “severe impairments.” (Tr. 17.) However, the

ALJ found that these impairments neither meet nor medically equal any of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 18.) Furthermore,

Plaintiff’s non-severe impairments of hypertension and obesity did not impose

substantial limitations on the Plaintiff because they did not cause more than minimal

functional limitations and did not significantly aggravate his other impairments. (Id.)

The ALJ determined that Plaintiff has the following RFC:

[T]o perform a full range of work at all exertional levels but with the

following non-exertional limitations: can perform simple goal oriented

tasks; no production rate pace/fast paced daily quotas; can perform

tasks that are more individualized in nature rather than requiring

teamwork/collaborative effort; can understand and follow simple

routine rote instructions; can make simple routine decisions; can have

work related conduct as follows: occasional contact with supervisors

and coworkers, but no contact with the public; and can tolerate

occasional changes to the work place setting.

(Tr. at 19-20) (footnote omitted).

The ALJ determined that Plaintiff had no past relevant work, is a “younger

individual age 18-49” at 32 years old, has a limited education, and is able to speak

English, as those terms are defined by the regulations. (Tr. 22-23.) The ALJ

determined that the “[t]ransferability of job skills is not an issue because the claimant

does not have past relevant work.” (Tr. 23.) Because Plaintiff has non-exertional

limitations, the ALJ enlisted a vocational expert (“VE”) and used Medical-

Vocational Rules as a guideline for finding that there are jobs in the national economy

with a significant number of positions that Plaintiff is capable of performing, such as

a dishwasher, industrial cleaner, and cleaner at a hospital. (Tr. 23-24.) The ALJ

concluded his findings by stating that Plaintiff “has not been under a disability, as

defined in the Social Security Act, since May 10, 2019, the date the application was

filed.” (Tr. 24.)

II. Standard of Review

This 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)). This 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, this 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 this 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)).

However, 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.

Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984) (citing Wiggins v. Schweiker, 679

F.2d 1387, 1389 (11th Cir. 1989)).

III. Discussion

Plaintiff argues that the ALJ’s decision should be reversed and remanded for

three reasons: (1) the ALJ committed error by improperly substituting his own lay

opinion for that of the treating physician, (2) the ALJ committed error by failing to

develop the record fully and fairly, and (3) the ALJ committed error by improperly

rejecting the plaintiff’s testimony concerning his subjective symptoms. (Doc. 12 at

8.) For the reasons set forth below, the Court finds that the ALJ failed to fully and

fairly develop the record, and Plaintiff’s claim is due to be remanded.

New regulations, which govern this case, came into effect in 2017 and provide

revised instructions to the ALJ for evaluating medical opinions. For claims filed after

March 27, 2017, 20 C.F.R. §§ 404.1520c and 416.920c declare that the ALJ “will

not defer or give any specific evidentiary weight, including controlling weight, to any

medical opinion(s) or prior administrative medical finding(s).” Instead, the ALJ will

consider supportability, consistency, relationship with the claimant, length of the

treatment relationship, frequency of examinations, purpose of the treatment

relationship, extent of the treatment relationship, examining relationship

specialization, and other factors in evaluating medical opinions and prior

administrative medical findings, with the most important factors being supportability

and consistency. 20 C.F.R. §§ 404.1520c, 416.920c. While the ALJ must explain the

role of the supportability and consistency factors1 in evaluating the opinion of a

medical source or administrative medical finding, he is not required to do the same

for the other factors. Id. In responding to comments to these changes when

proposed, the Social Security Administration explained,

The supportability and consistency factors provide a more balanced and

objective framework for considering medical opinions than focusing

upon the factors of consistency and the medical source's relationship

with the individual. A medical opinion without supporting evidence, or

one that is inconsistent with evidence from other sources, will not be

persuasive regardless of who made the medical opinion.

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01

(Jan. 18, 2017).

In contrast, 20 C.F.R. §§ 404.1527 and 416.927, the regulations that govern

for claims filed before March 27, 2017, prioritize the treatment relationship, giving

more weight to a treating source’s medical opinion. Indeed, if the ALJ “find[s] that

1 In reference to the “supportability” factor, 20 C.F.R. §§ 404.1520c, 416.920c state, “The 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), the more

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

regulations also explain the “consistency” factor: “The 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 claim, the more persuasive the medical opinion(s) or prior

administrative medical finding(s) will be.” Id.

a treating source’s medical opinion on the issue(s) of the nature and severity of

[Plaintiff’s] impairment(s) is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial

evidence in [the] case record, [the ALJ] will give it controlling weight.” 20 C.F.R.

§§ 404.1527, 416.927.

Plaintiff argues that the old rules apply to this case because the new rules do

not supersede Eleventh Circuit precedent to give more weight to the opinions of

treating physicians absent good cause not to do so. (Doc. 16 at 2.) Plaintiff cites

Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) for the proposition that the

“good cause” requirement stems from the courts and not the Commissioner as the

courts implemented this rule several years before the Commissioner adopted the

earlier regulations. (Doc. 16 at 2.) The Eleventh Circuit, however, has rejected that

approach by explaining that the new regulation fell with the express authority that

Congress delegated to the Commissioner. Harner v. Soc. Sec. Admin., Comm'r, 38

F.4th 892, 898 (11th Cir. 2022). “That our precedents came before the

Commissioner's regulations does not change our analysis.” Id. Ultimately, the court

concluded, “A court’s prior judicial construction of a statute trumps an agency

construction otherwise entitled to Chevron deference only if the prior court decision

holds that its construction follows from the unambiguous terms of the statute and

thus leaves no room for agency discretion.” Id. (quoting Nat'l Cable &

Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)).

Because the Court determined that the treating-physician rule was not

unambiguously required by the terms of the statute, the Commissioner’s regulations

superseded prior precedent. Id. at 897-98.

The only medical opinion the ALJ considered was offered by Stuart Tieszen,

M.D. (Tr. 21.) The ALJ’s explanation for rejecting Dr. Tieszen’s opinion states that

the severe symptoms described are not supported by the doctor’s

records, which only date back to August 2017, nor is the doctor’s

opinion supported by the sparse treatment notes and mental

examination findings which confirm the claimant to be cooperative,

engaging, well groomed, alert and oriented, with intact memory, poor

to good concentration, good insight and judgment, and mood congruent

affect.

(Tr. 22.) With this explanation, the ALJ evaluated the supportability of Dr.

Tieszen’s opinion as required by 20 C.F.R. §§ 404.1520c, 416.920c. However, as

the Commissioner concedes, “[t]he ALJ could not make a ‘consistency’ finding

because the record contains no evidence from other medical sources or nonmedical

sources.” (Doc. 15 at 15 n.14.)

Plaintiff cites Carril v. Barnhart, 201 F. Supp. 2d 1190, 1192 (N.D. Ala. 2002),

for the proposition that “[i]f the Administrative Law Judge was in doubt as to the

validity of [Plaintiff’s impairments], he should have sought clarification of the test

results or ordered additional testing.”. (Doc. 12 at 15.) However, an ALJ does not

have to order a consultative examination as long as the record contains sufficient

evidence to make an informed decision. Doughty v. Apfel, 245 F.3d 1274, 1281 (11th

Cir. 2001) (“The regulations ‘normally require’ a consultative examination only

when necessary information is not in the record and cannot be obtained from the

claimant’s treating medical sources or other medical sources.”) (citing 20 C.F.R. §

404.1519a(b)).

In all Social Security Disability cases, the plaintiff bears the ultimate burden

of proving disability and is responsible for furnishing or identifying medical and other

evidence regarding his impairments. Doughty, 245 F.3d. at 1280; 42 U.S.C. §

423(d)(5)(A). Furthermore, “[i]t is not unreasonable to require the claimant, who is

in a better position to provide information about his own medical condition, to do

so.” See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). However, the ALJ is “tasked

not only with the obligation to consider the reasons offered by both sides, but also

with actively developing the record in the case.” Washington v. Comm’r of Social Sec.,

906 F.3d 1353, 1356 (11th Cir. 2018).

Plaintiff states that the ALJ “did nothing to ascertain the truth of the severity

of Mr. Bradford’s agoraphobia” but instead “simply determined that he did not

believe the claimant and did not believe the unrefuted statement from Mr.

Bradford’s psychiatrist, and made up Mr. Bradford’s RFC out of whole cloth.”

(Doc. 12 at 16.)

Before remanding for further development of the record, a reviewing court

must consider “whether the record reveals evidentiary gaps which result in

unfairness or ‘clear prejudice.’” Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir.

1982) (quoting Ware v. Schweiker, 651 F.2d 408, 413 (5th Cir. 1981)). “[A]lthough

the ALJ has a duty to develop a full and fair record, there must be a showing of

prejudice before [a reviewing court] will remand for further development of the

record.” Robinson v. Astrue, 365 Fed. App’x 993, 995 (11th Cir. 2010) (citing Brown

v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)). Plaintiff has provided evidence in the

form of Dr. Tieszen’s opinion describing his condition as “catastrophic” and

indicating that SSRIs are not effective in treating him. (Tr. 195, 207.) Furthermore,

Dr. Tieszen assessed Plaintiff’s symptoms as “so severe that he is unable to finish

school, provide for himself, [or] live independently.” (Id.)

The ALJ rejected Dr. Tieszen’s opinion as unpersuasive without being able to

consider the required “consistency” factor. See 20 C.F.R. §§ 404.1520c(b)(2),

416.920c(b)(2). (Tr. 22.) The Commissioner argues that this issue was one of

Plaintiff’s own creation for failing to cooperate with the state agency’s request for

documents. (Doc. 15 at 18-19.) The Commissioner cites the court’s reasoning in

Brown v. Colvin, No. 4:14-CV-1916-VEH, 2015 WL 2381077, at *7 (N.D. Ala. May

19, 2015), “[O]nce a plaintiff[] fails to cooperate in obtaining evidence, the

Commissioner may make a decision based on the evidence in the record.” The

Commission also points to Karr v. Astrue, No. 7:12-CV-00899-KOB, 2013 WL

5350688, at *11 (N.D. Ala. Sept. 23, 2013) and the court’s explanation that “failure

to cooperate at some point in the determination process is grounds for denial.”

Plaintiff counters that this argument fails for two reasons. (Doc. 16 at 7-8.)

First because the ALJ did not list it as a reason for his decision, such a post hoc

justification cannot be considered by this Court. (Id.) “It is a ‘foundational principle

of administrative law’ that judicial review of agency action is limited to ‘the grounds

that the agency invoked when it took the action.’” Dep't of Homeland Sec. v. Regents

of the Univ. of California, 140 S. Ct. 1891, 1907 (2020) (quoting Michigan v. EPA,

576 U.S. 743, 750 (2015)). Second, Plaintiff argues that the ALJ’s duty to fully and

fairly develop the record required him to investigate issues not earlier addressed in

the initial stages once Plaintiff’s claim reached the hearing stage. (Doc. 16 at 8-9.)

Plaintiff highlights the “independent, affirmative obligation on the part of the ALJ

to undertake a meaningful investigatory effort.” Washington v. Comm'r of Soc. Sec.,

906 F.3d 1353, 1364 (11th Cir. 2018).

The Court agrees with the Plaintiff. Mr. Bradford presented evidence in the

form of the opinion of Dr. Tieszen. The ALJ rejected that opinion without fully and

fairly investigating Plaintiff’s claim by seeking further evidence to analyze the

“consistency” factor as required by 20 C.F.R. §§ 404.1527 and 416.927. The ALJ

committed error by failing to fully and fairly develop the record, and Plaintiff’s claim

is due to be remanded. Because the AL] failed in this respect, the Court need not

decide whether the ALJ improperly substituted his opinion for that of Dr. Tieszen’s

or committed error by rejecting Plaintiff’s testimony about his subjective symptoms.

IV. Conclusion

For the reasons set forth herein, and upon careful consideration of the

administrative record and briefs of the parties, the decision of the Commissioner of

Social Security denying Plaintiff’s claims for SSI is REVERSED and REMANDED

for further administrative proceedings consistent with this opinion. A separate

closing order will be entered.

DONE AND ORDERED ON AuGUST 1, 2022.

Xho OL

Scott CopfLeR

UNITED STATES DIS¥RICT JUDGE

206728

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