The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TONY PARKER,
Plaintiff,
v. Case No. 4:22-cv-999-CLM
MARTIN J. O’MALLEY,
Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION
Tony Parker seeks disability and disability insurance benefits from the
Social Security Administration (“SSA”) based on several impairments. The
SSA denied Parker’s application in an opinion written by an Administrative
Law Judge (“ALJ”).
Parker argues that the ALJ erred in: (1) evaluating opinion evidence
from his treating physicians, consultative examiners, and State agency
medical consultants; (2) assessing Parker’s testimony at the ALJ hearing;
and (3) in relying on the vocational expert’s testimony. The court agrees with
Parker that the ALJ erred in evaluating the testimony of State agency
consultant, Dr. Robert Estock. So the court will REVERSE the SSA’s denial
of benefits and REMAND this case to the Commissioner.
I. STATEMENT OF THE CASE
A. Parker’s Disability, as told to the ALJ
Parker was 53 at the time of the ALJ hearing. (R. 61). He went to
technical school to learn how to be an electrician and last worked as a
contractor on the railroad. (Id.).
At the ALJ hearing, Parker testified that he stopped working because
of his shoulder, which he has had five surgeries on. (R. 61–62). Parker also
suffers from back pain, but unlike with his shoulder, he hasn’t had back
surgery or injections in his back. (R. 62). Because of Parker’s shoulder pain,
he can lift very little with his right arm. (Id.).
Parker also suffers from depression and takes venlafaxine, the generic
version of Zoloft, to treat it. (R. 63). This prescription helps lessen Parker’s
depression and his primary care doctor last changed the dosage about three
years before the ALJ hearing. (Id.).
Parker lives by himself but next door to his parents. (R. 64, 686).
Parker has a driver’s license and drives himself to the doctor, which is about
15 to 20 minutes away from his house. (R.64). Parker doesn’t do yard work or
mop. (Id.). But he does do his own laundry, bathes himself, and spends the
day cleaning his house. (R. 64–65).
B. Determining Disability
The SSA has created the following five-step process to determine
whether an individual is disabled and thus entitled to benefits under the
Social Security Act:
The 5-Step Test
Step 1 Is the Claimant engaged in If yes, claim denied.
substantial gainful activity? If no, proceed to Step 2.
Step 2 Does the Claimant suffer from a If no, claim denied.
severe, medically-determinable If yes, proceed to Step 3.
impairment or combination of
impairments?
Step 3 Does the Step 2 impairment meet the If yes, claim granted.
criteria of an impairment listed in 20 If no, proceed to Step 4.
C.F.R. Part 404, Subpart P, Appx. 1?
*Determine Residual Functional Capacity*
Step 4 Does the Claimant possess the If yes, claim denied.
residual functional capacity to If no, proceed to Step 5.
perform the requirements of his past
relevant work?
Step 5 Is the Claimant able to do any other If yes, claim denied.
work considering his residual If no, claim granted.
functional capacity, age, education,
and work experience?
See 20 C.F.R. §§ 404.1520(a), 404.1520(b) (Step 1); 20 C.F.R. § 404.1520(c)
(Step 2); 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 (Step 3); 20 C.F.R. §
404.1520(e-f) (Step 4); 20 C.F.R. § 404.1520(g) (Step 5).
As shown by the gray-shaded box, there is an intermediate step
between Steps 3 and 4 that requires the ALJ to determine a claimant’s
“residual functional capacity,” which is the claimant’s ability to perform
physical and mental work activities on a sustained basis.
C. Parker’s Application and the ALJ’s Decision
The SSA reviews applications for benefits in three stages: (1) initial
determination, including reconsideration; (2) review by an ALJ; and (3)
review by the SSA Appeals Council. See 20 C.F.R. § 404.900(a)(1-4).
Parker applied for disability insurance benefits and a period of
disability in January 2020, claiming that he could not work because of
several ailments, including right shoulder pain, arthritis in his knees, high
blood pressure, anxiety, and depression. After receiving an initial denial in
September 2020, Parker requested a hearing, which the ALJ conducted in
November 2021. The ALJ ultimately issued an opinion denying Parker’s
claims in December 2021.
At Step 1, the ALJ determined that Parker was not engaged in
substantial gainful activity and thus his claims would progress to Step 2.
At Step 2, the ALJ determined Parker suffered from the following
severe impairments: degenerative disc disease; torn right rotator cuff, status
post release on right; trigger finger right long finger with release; and
depression.
At Step 3, the ALJ found that none of Parker’s impairments,
individually or combined, met or equaled the severity of any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. So the ALJ
next had to determine Parker’s residual functional capacity.
The ALJ determined that Parker had the residual functional capacity
to perform light work with these added limitations:
• Parker can frequently climb ramps and stairs, balance as that is
defined in the SCO, stoop, crouch, and kneel.
• Parker should never climb ladders, ropes, or scaffolds, nor should
he crawl.
• Parker can occasionally reach overhead with his right upper
extremity.
• Parker can occasionally handle and finger with his right upper
extremity.
• Parker can have only occasional exposure to extremes of cold and
full body vibration.
• Parker should have no exposure to hazards such as unprotected
heights or hazardous machinery.
• Parker would be able to understand, remember, and carry out
simple instructions and tasks.
• Parker can tolerate changes in the workplace that are infrequent
and gradually introduced.
• Parker can have occasional work-related interactions with
supervisors, co-workers, and the general public.
At Step 4, the ALJ found that Parker could not perform his past
relevant work. At Step 5, the ALJ determined that Parker could perform jobs,
such as sandwich board carrier, usher, and tanning salon attendant that
exist in significant numbers in the national economy and thus Parker was
not disabled under the Social Security Act.
Parker requested an Appeals Council review of the ALJ’s decision. The
Appeals Council will review an ALJ’s decision for only a few reasons, and the
Appeals Council found no such reason under the rules to review the ALJ’s
decision. As a result, the ALJ’s decision became the final decision of the SSA
Commissioner, and it is the decision subject to this court’s review.
II. STANDARD OF REVIEW
This court’s role in reviewing claims brought under the Social Security
Act is narrow. The scope of the court’s review is limited to (a) whether the
record contains substantial evidence to sustain the ALJ’s decision, see 42
U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and
(b) whether the ALJ applied the correct legal standards, 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)). “Substantial
evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.”
Crawford, 363 F.3d at 1158.
III. LEGAL ANALYSIS
Parker makes three arguments for why the ALJ erred. First, he argues
that the ALJ erred in evaluating opinion evidence from his treating
physician, consultative examiners, and the State agency medical consultants.
Second, he asserts that the ALJ mischaracterized his hearing testimony.
Finally, he contends that the ALJ erred in relying on the testimony of the
vocational expert to find that Parker was not disabled.
The court agrees with Parker that the ALJ reversibly erred in
evaluating Dr. Robert Estock’s opinion evidence. So the court needn’t discuss
Parker’s other arguments for reversal. Before explaining how the ALJ erred,
the court will recap Dr. Estock’s findings.
1. Background: Dr. Estock reviewed the medical evidence related to
Parker’s mental impairments at the initial level of the SSA application
process. Dr. Estock found that Parker could carry out simple instructions and
sustain attention to familiar tasks for extended periods, but not
detailed/complex instructions. (R. 183). Parker would also benefit from a
flexible schedule and would be expected to miss 1-2 days of work per month
because of a depressed or anxious mood. (Id.). And Parker would function
best with his own work areas apart from others to help minimize distraction.
(Id.). Parker could tolerate ordinary work pressures but should avoid
excessive workloads, quick decision making, rapid changes, and multiple
demands. (Id.). According to Dr. Estock, Parker would benefit from regular
rest breaks and a slowed pace but still could maintain a work pace consistent
with the mental demands of competitive level work. (Id.). Dr. Estock also
found that Parker’s contact with the general public should be casual and that
his non-intensive interaction with coworkers would not result in distractions
to others. (R. at 184). Finally, Dr. Estock determined that Parker could be
expected to respond appropriately to mild work pressure. (Id.).
Under the regulations that apply to Parker’s application for benefits,
an ALJ must articulate how persuasive she finds all the medical opinions and
prior administrative findings in the claimant’s record. See 20 C.F.R. §
404.1520c(b). The ALJ should focus on the persuasiveness of the opinion by
looking at the opinion’s supportability and consistency. See 20 C.F.R. §
404.1520c(b)(2). The ALJ may, but need not, consider other factors such as
the medical source’s relationship with the claimant and specialization. See id.
“The more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his . . . prior
administrative medical finding(s), the more persuasive the . . . prior
administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). And
“[t]he more consistent . . . prior medical administrative findings(s) is with the
evidence from other medical sources and nonmedical sources in the claim, the
more persuasive the . . . prior administrative medical findings will be.” 20
C.F.R. § 404.1520c(c)(2).
Applying these factors, the ALJ found that Dr. Estock’s opinions were
“vague and do not provide meaningful insight into [Parker’s] ability to
perform basic mental job skills.” (Id.). She also noted that these opinions
“include items related to conditions of the work environment such as
supervisory feedback.” (Id.). But explained “issues such as supervisory style
are idiosyncratic elements of particular jobs, not general occupational
guidelines or requirements.” (Id.). According to the ALJ, “every worker would
prefer a supportive and non-confrontational work environment, but the
personality and management style of a worker’s supervisor is not an aspect of
the circumstances of employment that could realistically be covered by the
ALJ or vocational expert in the context of a disability hearing.” (Id.). The ALJ
also found that “descriptions such as casual, supportive, limited, tactful, and
non-confrontational are vague, open to individual interpretation and provide
no meaningful information as to the claimant’s abilities.” (Id.).
The ALJ then found “the number and proximity of coworkers is another
area that is beyond the control and professional knowledge of a vocational
expert testifying regarding available work.” (Id.). Finally, the ALJ found “no
support for the assessment that [Parker] would miss 1-2 days of work.” (Id.).
According to the ALJ, that was because there was “no evidence in the file to
suggest that [Parker] fails to keep his medical appointments or otherwise
attend to his other responsibilities.” (Id.). So the ALJ was “overall generally
persuaded” by Dr. Estock’s assessments “as to the general tenor suggested”
but “not persuaded by the precise language and limitations suggested as
these are inconsistent with general occupational guidelines.” (R. 47).
2. ALJ’s error: The ALJ’s sole reason for rejecting Dr. Estock’s opinion
that Parker would miss 1-2 days of work a month is that “no evidence in the
file” suggested that Parker has failed to keep his medical appointments or
attend to his other responsibilities. (Id. (emphasis added)). But, as Parker
points out, medical records from Harbin Clinic suggest that Parker did miss a
medical appointment in August 2021 without explanation. (R. 127).
The Commissioner concedes that there may be evidence of a missed
appointment in the record but argues that this doesn’t warrant reversal
because (a) Parker missing one appointment doesn’t mean that he’ll miss
more than one day of work a month, and (b) the record shows that Parker
attended many medical appointments during the relevant period.
The court sees at least two problems with the Commissioner’s
argument. First, while missing one doctor’s appointment doesn’t necessarily
mean that Parker will miss 1-2 days of work a month, Parker’s ability to keep
his doctor’s appointments is what the ALJ relied on to discount Dr. Estock’s
determination that Parker would miss 1-2 days of work per month. So
substantial evidence must support the ALJ’s finding that no evidence
suggested that Parker failed to keep his medical appointments for the ALJ’s
rejection of this opinion to be valid.
Second, though the record suggests that Parker attended many
scheduled doctor’s appointments during the relevant period, the ALJ’s
rationale for rejecting Dr. Estock’s opinion wasn’t that Parker made most of
his appointments. It was that there was no evidence that Parker failed to
keep his medical appointments. The records from Harbin Clinic contradict
this finding because they provide evidence that Parker missed an
appointment without rescheduling it or providing notice that he wouldn’t be
able to attend the appointment. So the ALJ erred in stating that there was no
evidence that Parker failed to keep his medical appointments.
The ALJ’s factual error may have made a difference in how persuasive
the ALJ found Dr. Estock’s opinion. To be sure, the ALJ may have considered
one missed appointment insignificant. But the ALJ may have also viewed the
missed appointment as supporting Dr. Estock’s statement that Parker would
miss 1-2 days of work per month. The court cannot speculate how evidence of
the missed appointment would affect the ALJ’s evaluation of Dr. Estock’s
opinion without re-weighing the evidence, which “would invade[ ] the
province of the ALJ.” Mills v. Astrue, 226 F. App’x 926, 931 (11th Cir. 2007).
Plus, how persuasive the ALJ found Dr. Estock’s opinion that Parker will
miss 1-2 days of work a month was important because the vocational expert
testified that Parker couldn’t maintain employment if he were to miss more
than one day of work per month. (R. 80–81). So if the ALJ had found Dr.
Estock’s opinion persuasive, she very well may have found Parker disabled.
The court will thus remand this case to the Commissioner for the ALJ to
reconsider Dr. Estock’s opinion in light of the evidence of Parker’s missed
medical appointment.
IV. CONCLUSION
For the reasons stated above, the court will REVERSE the SSA’s
denial of benefits and REMAND this case to the Commissioner for the ALJ
to reassess Dr. Estock’s opinion. The court will enter a separate final order
that closes this case.
Done on February 1, 2024.
at MAZE :
UNITED STATES DISTRICT JUDGE