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reversing and remanding ALJ's decision because substantial evidence did not support ALJ's finding that treating physician's opinion was inconsistent with other record evidence, despite recognizing that physician's "failure to utilize the portions of the [check-the-box] form that provided a space for additional explanation or clinical findings" bore on the opinion's persuasive value
Summary of this case from Bevis v. Comm'r of Soc. Sec.Opinion
CIVIL ACTION NO. 1:18-cv-4098-AT-JKL
2020-03-09
SONYA E., Plaintiff v. Andrew SAUL, Commissioner, Social Security Administration, Defendant.
Charles Lee Martin, George C. Piemonte, Martin, Jones, & Piemonte, for Plaintiff. Melaine A. Williams, Office of the United States Attorney, Northern District of Georgia, for Defendant.
Charles Lee Martin, George C. Piemonte, Martin, Jones, & Piemonte, for Plaintiff.
Melaine A. Williams, Office of the United States Attorney, Northern District of Georgia, for Defendant.
ORDER
Amy Totenberg, United States District Judge
This matter is before the Court on the Magistrate Judge's Report and Recommendation ("R&R") [Doc. 20]. The R&R recommends that the decision of the Commissioner of the Social Security Administration ("Commissioner") denying Plaintiff–Claimant Sonya E.'s applications be affirmed. Plaintiff filed timely objections to the R&R (Doc. 23, "Objection"). The Commissioner filed a response to the objections (Doc. 24) and Plaintiff filed a reply (Doc. 25).
Under 28 U.S.C. § 636(b)(1), the Court reviews the Magistrate's report and recommendations for clear error if no objections are filed to the report, and it may "accept, reject, or modify" the magistrate's findings and recommendations. 28 U.S.C. § 636(b)(1). On the other hand, if a party files objections, the district court must determine de novo any part of the magistrate judge's disposition that is the subject of a proper objection. Fed. R. Civ. P. 72(b) ; 28 U.S.C. § 636(b). As Plaintiff filed timely objections to portions of the R&R, the Court reviews those portions of the Magistrate Judge's findings and recommendations on a de novo basis. For the reasons that follow, Plaintiff's Objection is SUSTAINED IN PART . Accordingly, the Court DECLINES TO ADOPT the R&R, and instead, REVERSES the decision of the Commissioner and REMANDS to the agency for further proceedings consistent with this Order pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
I. LEGAL STANDARD
A. Scope of Judicial Review
The Court's review of the findings of the Administrative Law Judge ("ALJ"), as adopted by the Commissioner, is limited in scope. Judicial review of the administrative decision addresses three questions: (1) whether the proper legal standards were applied; (2) whether there was substantial evidence to support the findings of fact; and (3) whether the findings of fact resolved the crucial issues. Washington v. Astrue , 558 F. Supp. 2d 1287, 1296 (N.D. Ga. 2008) ; Fields v. Harris , 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Dyer v. Barnhart , 395 F.3d 1206, 1210 (11th Cir. 2005). If substantial evidence supports the Commissioner's factual findings and the Commissioner applies the proper legal standards, the Commissioner's findings are conclusive. Lewis v. Callahan , 125 F.3d 1436, 1439-40 (11th Cir. 1997) ; Barnes v. Sullivan , 932 F.2d 1356, 1358 (11th Cir. 1991) ; Martin v. Sullivan , 894 F.2d 1520, 1529 (11th Cir. 1990) ; Walker v. Bowen , 826 F.2d 996, 999 (11th Cir. 1987) (per curiam); Hillsman v. Bowen , 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth v. Heckler , 703 F.2d 1233, 1239 (11th Cir. 1983).
"Substantial evidence" means "more than a scintilla, but less than a preponderance." Bloodsworth , 703 F.2d at 1239. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it must be enough to justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; Hillsman , 804 F.2d at 1180 ; Bloodsworth , 703 F.2d at 1239. "In determining whether substantial evidence exists, [the Court] must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen , 792 F.2d 129, 131 (11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary of the ALJ's findings, the ALJ decision will not be overturned where "there is substantially supportive evidence" of the ALJ's decision. Barron v. Sullivan , 924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ's application of legal principles is plenary. Foote v. Chater , 67 F.3d 1553, 1558 (11th Cir. 1995) ; Walker , 826 F.2d at 999.
B. Standard for Determining Disability
Plaintiff seeks Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The legal standards applied to a determination of disability under a claim for DIB are generally the same as those applied to claims for Supplemental Security Income benefits for the disabled under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. See Bailey v. Astrue , 739 F. Supp. 2d 1365, 1367 n.2 (N.D. Ga. 2010) (Baverman, Mag. J.). Accordingly, case law on determining disability under both Titles are applicable to this case.
An individual is considered disabled for purposes of disability benefits if he is unable to "engage in 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." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The impairment or impairments must result from anatomical, psychological, or physiological abnormalities which are demonstrable by medically accepted clinical or laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the claimant and the Commissioner. The claimant bears the primary burden of establishing the existence of a "disability" and therefore entitlement to disability benefits. See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step sequential process to determine whether the claimant has met the burden of proving disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a) ; Doughty v. Apfel , 245 F.3d 1274, 1278 (11th Cir. 2001) ; Jones v. Apfel , 190 F.3d 1224, 1228 (11th Cir. 1999). The claimant must prove at step one that he is not undertaking substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the claimant must prove that he is suffering from a severe impairment or combination of impairments that significantly limits his ability to perform basic work-related activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, if the impairment meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of Impairments), the claimant will be considered disabled without consideration of age, education, and work experience. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a listed impairment, he must prove that his impairment prevents performance of past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five, the regulations direct the Commissioner to consider the claimant's residual functional capacity, age, education, and past work experience to determine whether the claimant can perform other work besides past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must produce evidence that there is other work available in the national economy that the claimant has the capacity to perform. Doughty , 245 F.3d at 1278 n.2. To be considered disabled, the claimant must prove an inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled, the sequential evaluation ceases and further inquiry ends. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step five, the overall burden rests on the claimant to prove that he is unable to engage in any substantial gainful activity that exists in the national economy. Doughty , 245 F.3d at 1278 n.2 ; Boyd v. Heckler , 704 F.2d 1207, 1209 (11th Cir. 1983), superseded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in Elam v. R.R. Ret. Bd. , 921 F.2d 1210, 1214 (11th Cir. 1991).
II. BACKGROUND
A. Factual Background
Plaintiff was 47 years old at the time of her consultative examination. (Tr. 478, Doc. 11-9.) At the examination, Plaintiff described herself as homeless, sometimes staying with her adult daughter, sometimes with her ex-boyfriend, and sometimes with her mother. (Id. ) Plaintiff stated that she could not recall how long she had been homeless, "indicating only that she had ‘lost track of things.’ " (Id. ) Plaintiff reported that she received Special Education services in elementary school for "behavioral problems" but graduated from high school. (Id. )
At the time of her evaluation, Plaintiff was working at a hotel for six hours a day. (Id. ) However, Plaintiff contends that "notes from Clayton County in November 2013 reveal that [she] was fired from her part-time housekeeping job in July 2013, after her July 1st evaluation ... [meaning] she would have only held that job for few months." (Br. at 10, citing Tr. 368, 503, Doc. 16.) Citing Plaintiff's earnings history, Plaintiff contends that "she averaged at least two jobs per year over thirteen years, and only earned at a substantial gainful level in five of those years." (Reply to Objection at 3 (Doc. 25), citing Tr. 345–50.)
Plaintiff stated that after giving birth to her daughter, she went into a "real deep depression" and began "walking around the streets, not bathing, and doing ‘crazy stuff’ " which led her to her hospitalization in 1991. (Tr. at 479.) She reported hearing voices and suffering from depression, and claimed that she had been diagnosed as "schizophrenic and bipolar." (Id. ) She reported a drug and alcohol history, but claimed she finished a substance abuse treatment program in 2012. (Id. )
The consulting physician noted that Plaintiff's "report of history and function" were "generally credible and consistent with collateral document[s]" but indicated that she was an "unreliable reporter of details" based on her confusion about dates and durations of events. (Tr. 480.)
B. Procedural History
On February 19, 2013, Plaintiff filed an application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (Transcript of Administrative Record ("Tr.") 10, Doc. 11-2.) Plaintiff alleged that date of onset of her disability was February 19, 2013. (Id. ) After an initial written denial, and a denial of reconsideration, Plaintiff sought an ALJ hearing on December 27, 2013. (Id. ) On December 7, 2016, the ALJ denied Plaintiff's application. (Id. ) Plaintiff sought review before the Appeals Council, which vacated and remanded on the grounds that the ALJ miscalculated the date Plaintiff was last insured under Title II. (Tr. 147.) On remand, the ALJ again denied Plaintiff benefits.
The ALJ determined that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of February 19, 2013 (Tr. 13) and had "severe impairments," including "a history of polysubstance dependence ; bipolar disorder ; schizophrenia ; minimal degenerative osteoarthritis of the bilateral knees, and mild cervical spine degenerative joint disease." (Id. ) However, discounting the opinions of two medical experts and the lay opinions of Plaintiff's adult daughter and a state-agency interviewer, the ALJ found that Plaintiff was not disabled. Specifically, the ALJ found that that Plaintiff possessed a residual functional capacity ("RFC") to perform "medium work," limited to work "requiring no more than simple and routine tasks with short instructions and simple work-related decisions; no contact with the public and occasional superficial contact with coworkers and occasional contact with supervisors; and gradual and infrequent workplace changes." (Tr. 21.) The ALJ found that Plaintiff's impairments did not prevent her from performing her past relevant work as a housekeeper, and other jobs that existed in significant numbers in the national economy such as grocery bagger, laboratory equipment cleaner, and floor waxer. (Tr. 36–37.)
C. Relevant Medical and Opinion Evidence
As noted above, Plaintiff attended a consultative examination upon referral by Disability Adjudication Services, which "is a state agency that makes Social Security disability determinations under an agreement with the Social Security Administration." Disability Adjudication Services , Ga. Vocational Rehab. Agency, https://gvs.georgia.gov/disability-adjudication-services (last visited Mar. 2, 2020); (Tr. 477–478.) The examination was conducted by psychologist Elaine A. Zitomer, Ph.D., on July 1, 2013, and took place over two hours. (Tr. 477–83.) As noted by the Magistrate Judge, the ALJ's summary of Dr. Zitomer's report is set forth below:
[I]n July 2013 Claimant underwent a psychological consultative exam with
Elaine A. Zitomer, Ph.D. and reported ongoing symptoms. She stated she had been receiving treatment at Clayton Behavioral Health Services since 2006 and taking Abilify for "a long time". She also reported taking Trazodone and taking her medications as prescribed. She provided a history of one psychiatric hospitalization in 1991 for depression and a diagnosis of "schizophrenic and bipolar", and reported currently hearing voices, feeling depressed, thinking someone is out to get her and having a decreased appetite. She also reported applying for disability benefits because of problems comprehending, communicating and working with others. Claimant also acknowledged having a history of alcohol, marijuana and crack cocaine abuse/use, but stated her last use of marijuana and alcohol was a month ago and she has not used crack cocaine since last year.
On exam, Claimant was adequately groomed and had no obvious hygiene problems. She had a "somewhat peculiar presentation", "was somewhat loud and had a forced friendliness." Her eye contact was adequate and she was cooperative throughout the evaluation. As well, Claimant was oriented to person, place, time and situation. She displayed a somewhat labile range of affect and indicated that anger is her usual mood but did not behave angrily toward the evaluator. She also reported hearing a voice telling her to "give up" and that she is not worthy, which made her confidence low. However, when asked if she could identify the voice, she stated that it is "little Peter", that she hears it daily, and while waiting for the interview it told her to leave, which she started to do.
Nevertheless, Claimant's thoughts were generally organized, logical and relevant to the situation, but she repeatedly seemed to lose her train of thought. She demonstrated extremely limited capacity for abstract thought and provided a poor response to one of two very simple judgment/decision-making questions. There was no evidence of a frankly delusional belief system or bizarre ideation and she denied current thoughts of harm to herself or others. She was alert and attentive for the duration of this evaluation and her energy level appeared to be within normal limits but mental processing was very slow. She was unable to recall details of her personal history in adequate detail, demonstrated adequate recent memory, but her short term memory was poor. Further, her fund of knowledge was limited and based on her reported educational and occupational history, her capacity for abstract reasoning and vocabulary, and her presentation and performance on the mental status exam, Dr. Zitomer opined "she appeared to be of significantly below average intellectual capacity, although psychiatric factor likely farther impair her cognitive performance".
On conclusion, Dr. Zitomer opined Claimant "appears to be capable of understanding simple instructions, but is likely to have moderate impairment in capacity to recall simple instructions" and she is "likely to have marked impairment in ability to understand and recall for detailed instructions". "Her ability to get along with others is markedly impaired. Her capability of sustaining attention for extended periods, persisting and keeping pace appears to be moderately impaired, depending on task." Additionally, "She is likely to be markedly impaired in regard to the capability of adapting to normal work stressors, evidenced by her chaotic work history, history of substance abuse, and psychotic symptoms".
(Tr. 30–31 (citing Tr. 477–83 (internal citations omitted)).) At the evaluation, Plaintiff was "able to recall only one out of three stimulus words after a five-minute interval." (Tr. 481.) On receiving three new words, she was "unable to recall any of the words after a three-minute interval." (Id. )
Plaintiff also received an evaluation from psychiatrist Ramesh Amin, M.D., Clayton County Behavioral Health, whom the ALJ notes she saw four times over a four-year period. (Tr. 33.) The evaluation was a two-page form with circled responses, summarized by the ALJ as follows:
Dr. Amin opined Claimant is able to satisfactorily make occupational adjustments and perform the following functions less than 75% of an 8-hour workday: follow work rules, relate appropriately to coworkers, public and supervisors, handle normal workplace changes, handle ordinary stress, remain on-task without extra supervision, sustain acceptable pace without extra supervision, learn, understand and use new information or instructions and meet attendance standards. Dr. Amin opined Claimant is able to satisfactorily understand, remember and carry out simple job instructions and understand, remember, and carry out more than one or two-step instructions less than 75% of an 8-hour workday. Additionally, Dr. Amin opined Claimant is able to satisfactorily behave in an emotionally stable manner and relate predictably in social situations 80% of an 8-hour workday, and demonstrate reliability less than 75% of an 8-hour workday. Further, Dr. Amin [stated that] the medical/clinical findings that support [his] assessment are [Claimant] hearing voices and [her inability to] focus and concentrate. He stated Claimant would be more limited in a work setting than shown in treatment records and her mental disorder(s) producing the limitations existed for greater than 10 years.
(Tr. 33 (citing Tr. 757–58).)
III. ISSUES ON REVIEW
In Plaintiff's Opening Brief filed before the Magistrate Judge, the issues on review are framed as follows:
Unsupported opinion analyses. In evaluating medical and lay opinions, the ALJ must comply with the Commissioner's rulings and regulations and binding case law. The ALJ here rejects the opinions of both a treating and examining specialist, as well as the claimant's daughter, without considering their support in the record and their consistency with each other and the record as a whole. Does the ALJ commit reversible error when she fails to properly evaluate multiple medical-source and lay opinions?
(Doc. 16 at 1.)
IV. DISCUSSION
A. The ALJ's determinations regarding Plaintiff's supposedly "routine" and "conservative" treatment were not supported by substantial evidence.
The Social Security regulations arm an ALJ with a number of useful tools for sifting through conflicting expert opinion testimony by assigning relative weight based on a number of predicate circumstances. 20 C.F.R. § 404.1527 (applicable to claims filed before March 27, 2017). However, this is not a case where the ALJ gave reduced weight to one physician in favor of another. Here, the ALJ discounted the opinions of both medical experts, views which were in substantial consonance with each other, based in large part on the ALJ's determination that the opinions contradicted Plaintiff's so called "conservative" mental health treatment history. In so doing, the ALJ did the one thing she must not do: substitute her own judgment for those of medical professionals. Wilder , 64 F.3d at 337 ("Health professionals, in particular psychiatrists, not lawyers or judges, are the experts on [mental illness]."). The ALJ's decision to assign reduced weight to the two medical experts based on its view of the Plaintiff's treatment history was in error.
Indeed, considering the fact that Dr. Zitomer was engaged by Disability Adjudication Services and the fact that the ALJ cited no opinion testimony to the contrary, this case is akin to Davis v. Barnhart, 3 77 F. Supp. 2d 1160, 1163 (N.D. Ala. 2005) (holding ALJ erred in part by improperly rejecting the opinion of a consulting medical examiner appointed by SSA). See also Wilder v. Chater , 64 F.3d 335 (7th Cir. 1995) ("We are led to consider with a degree of suspicion the administrative law judge's decision to go against the only medical evidence in the case, that of a psychiatrist not retained by the applicant but appointed by the administrative law judge himself to advise on Wilder's condition.").
The ALJ gave little weight to the portion of examining physician Dr. Zitomer's opinion which indicated Plaintiff had "marked limitations in understanding and recalling detailed instructions, getting along with others, sustaining attention and persisting, keeping pace and adapting to normal work stressors." (Tr. 32–33 (citing Tr. 477–83).) The ALJ also gave "little, if any weight" to the limitations on working indicated by treating physician Dr. Amin. In both cases, the ALJ held that the limitations opined upon were "inconsistent with [Plaintiff's] conservative treatment history." (Tr. 33; see also id. (describing Plaintiff's treatment history as "essentially routine and conservative."). The Magistrate Judge sustained this holding, noting that although Plaintiff was hospitalized "in 1991 and/or 2000," (R&R at 18 (citing Tr. 68, 479, 565)) "her mental health treatment in the year preceding her assessment by Dr. Zitomer consisted of routine out-patient therapy and medication with Clayton County Behavioral Health Services." (Id. (citing Tr. 391–95, 446–75, 549–45, 502–32).)
In Henry v. Comm'r of Soc. Sec. , 802 F.3d 1264, 1268 (11th Cir. 2015), the Eleventh Circuit held that an "ALJ erred by basing the credibility" of a consultative examining physician "on a negative inference, drawn from [the claimant's] failure to seek additional medical treatment. The court held that the ALJ improperly discredited the physician's opinion as inconsistent with the claimant's "limited and conservative treatment." Id. The Eleventh Circuit took specific issue with the ALJ's consideration of the claimant's "failure to seek hospitalization, narcotics, or steroidal injections" because "the ALJ neither developed the record nor addressed [the claimants] financial ability to pursue a more rigorous course of treatment." Id.
This case is a little different from Henry , because the ALJ did not specifically fault Plaintiff for failing to seek an available treatment, and the Magistrate Judge in fact noted that Plaintiff "underwent appropriate treatment given her diagnoses." (R&R at 17.) However, the Court disagrees with the Magistrate Judge's conclusion that the substantial evidence supports a conclusion that Plaintiff's "mental health treatment was [not] necessarily remarkable or aggressive." (Id. at 17–18.)
Courts in this circuit have written persuasively that an ALJ errs by discounting a claimant's testimony about her pain based on the failure of a claimant's treating physicians to recommend more aggressive treatment without a proper expert foundation. Bennett v. Barnhart , 288 F. Supp. 2d 1246, 1251 (N.D. Ala. 2003) ("The ALJ cites to no medical evidence of record to support his clinical opinion that because no surgery was recommended, the plaintiff could not suffer from disabling pain."). Here, the ALJ is not discounting the claimant's testimony, but the opinion of an expert, based on the absence of a recommendation for more aggressive treatment. Cf. id. ("The ALJ, therefore, ‘succumbed to the [forbidden] temptation to play doctor and make [his] own independent medical findings.’ ") (quoting Rohan v. Chater , 98 F.3d 966, 970 (7th Cir.1996) ) (alteration in original).
This is not to say that an ALJ cannot "consider the level or frequency of treatment when evaluating the severity of a claimant's condition;" plainly one may. Henry , 802 F.3d at 1267. The Eleventh Circuit noted in an unpublished decision (in a footnote) that an ALJ could consider the fact that a treating physician "did not recommend a more frequent or intense treatment plan than monthly [15-minute] medication management appointments" in weighing a treating physician's determinations about limitations. Horowitz v. Comm'r of Soc. Sec. , 688 F. App'x 855, 862 n.3 (11th Cir. 2017) ("The conservative and routine nature of this treatment plan suggests that Horowitz's impairments—while significant—were not so severe that she could not perform any job duties."). However, the Eleventh Circuit did not address the foundation needed to discount a physician's expert opinion based on a so called "conservative" treatment regimen. Compare Wolfe v. Chater , 86 F.3d 1072, 1078 (11th Cir. 1996) (sustaining an ALJ finding that treatment was conservative for the purpose of discrediting the claimant's statements); Suzon Tiffiney W. v. Comm'r, Soc. Sec. Admin. , No. 1:17-CV-04038-AJB, 2019 WL 1417229, at *9 (N.D. Ga. Mar. 29, 2019) (same).
The Magistrate Judge found that that the ALJ "specifically identified other, more aggressive forms of treatment which would support a finding that Plaintiff's treatment was more than conservative." (R&R at 19 n.9 (citing Tr. 28–29).) The referenced portion of the ALJ's ruling indicated that Plaintiff "did not require any emergency room nor inpatient treatment for any mental health related concerns." (Tr. 28.) However, in context, the ALJ is discrediting the claimant's own complaints. (Id. ). In any case, the ALJ failed to support its "conservative treatment" ruling with medical evidence.
An example of a proper evidentiary foundation would be evidence showing that claimant had met with her treating physician, and the treating physician outlined two courses of treatment, one more aggressive than the other. In such a circumstance, the decision to opt for a more "conservative" regimen may be probative of the severity of the condition. Or, an examining or non-examining physician could provide an opinion, subject to the normal rules of weighing medical source evidence, that the course of treatment indicated a low severity of the condition.
However, where all of the experts in the case substantially agreed in their conclusions about the severity of Plaintiff's limitations, the ALJ lacked a foundation for a "conservative treatment finding" other than her own views regarding what constitutes an aggressive form of treatment. But the ALJ is not a psychologist, and has no basis to conclude that a mental health diagnosis with severe limitations would necessarily include hospitalization or inpatient treatment.
That Plaintiff was hospitalized outside the relevant period does not provide this foundation, absent evidence that hospitalization or inpatient treatment is currently the medically preferred or recommended mode of treatment for severe cases of mental illness.
Likewise, the ALJ's determination that marked limitations are inconsistent with Plaintiff's "repeated[ ] acknowledgement [of] improvement in her symptoms with medication therapy" is an expert conclusion in search of expert evidence, as "improvement is a relative concept and, by itself, does not convey whether or not a patient has recovered sufficiently to no longer be deemed unable to perform particular work on a sustained basis." Martz v. Comm'r, Soc. Sec. Admin. , 649 F. App'x 948, 960 (11th Cir. 2016).
The ALJ's conclusory statement that Zitomer's marked limitations were "without substantial support from the outpatient treatment records, which fail to document to ongoing clinical abnormalities or functional limitations" is not supported by substantial evidence as the record does contain substantial support for the conclusion. (See, eg. , Tr. 468 (Feb. 13, 2013, hearing voices, depression with crying spells, anxiety), 520–21 (Jan. 5, 2015, anxious mood and auditory hallucinations), 593–94 (June 30, 2014, depressed mood and auditory hallucinations). Further examples are catalogued in Plaintiff's Opening Brief (Doc. 16 at 11–13).
B. The ALJ did not properly evaluate Plaintiff's work history.
As a final basis for discounting Dr. Zitomer's opinion, the ALJ noted that at the time of Dr. Zitomer's exam, Plaintiff "was working at Studio 6 Hotel, in housekeeping for six hours a day." (Tr. 33.) Although the ALJ did not hold that this constituted disqualifying substantial gainful activity, the ALJ did hold that this work indicated that "her daily activities were greater than that [which] would be expected in light of the alleged symptoms and limitations, which is inconsistent with what [one] would expect from an individual with marked limitations." (Id. )
An ALJ may properly consider work done during a period of alleged disability, even if the work is less than substantial gainful activity. See 20 C.F.R. § 404.1571 ("Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did."). However, "[a] finding that a claimant is able to engage in substantial gainful activity requires more than a simple determination that the claimant can find employment and that he can physically perform certain jobs; it also requires a determination that the claimant can hold whatever job he finds for a significant period of time." Williams v. Apfel , 73 F. Supp. 2d 1325, 1341 (M.D. Fla. 1999) (quoting Singletary v. Bowen , 798 F.2d 818, 822 (5th Cir. 1986) ) (internal quotations omitted).
Here, the evidence shows that Plaintiff "was fired from her part-time housekeeping job in July 2013, after her July 1st evaluation ... [meaning] she would have only held that job for few months." (Pl.'s Op. Br. at 10, citing Tr. 368, 503, Doc. 16.) Furthermore, the evidence appears to show that Plaintiff "averaged at least two jobs per year over thirteen years," and for many of those years she only worked part time: "[she] only earned at a substantial gainful level in five of those years." (Reply to Objection at 3 (Doc. 25), citing Tr. 345–50.) In the portion of the decision assigning reduced weight to Dr. Zitomer's opinion, the ALJ did not address the fact that Plaintiff was fired at all, let alone whether her difficulties maintaining work or working more than part time arose from her impairments. The failure to consider this evidence in assigning reduced weight to Dr. Zitomer's opinion was not supported by substantial evidence. See Williams , 73 F. Supp. 2d at 1341 (M.D. Fla. 1999) (holding that a "pattern of sporadic employment is consistent with other reported cases of sporadic work by individuals suffering from chronic schizophrenia.") (citing Leidler v. Sullivan , 885 F.2d 291 (5th Cir.1989) ; Poulin v. Bowen , 817 F.2d 865 (D.C.Cir.1987) ; Powell v. Heckler , 773 F.2d 1572 (11th Cir.1985) ). On remand, the ALJ is free to consider Plaintiff's part-time job during the relevant period, but must do so in the broader context of Plaintiff's work history.
C. The ALJ did not give proper weight to Plaintiff's treating physician.
A treating physician's opinion "must be given substantial or considerable weight unless ‘good cause’ is shown to the contrary." Lewis v. Callahan , 125 F.3d 1436, 1440 (11th Cir. 1997). "The ALJ must clearly articulate the reasons for giving less weight to the opinion of a treating physician, and the failure to do so is reversible error." Id. For example, "good cause" may exist where the evidence either does not support the doctor's opinion or supports a contrary finding, or where the opinion is inconsistent with the doctor's own medical records. Id. "Good cause" is not present where the treating physician's opinion is contradicted by the report of a nonexamining, reviewing physician. Lamb v. Bowen , 847 F.2d 698, 703 (11th Cir. 1988).
While the ALJ cast some aspersions on Plaintiff's relationship with Dr. Amin, noting that "he only saw [her] on four occasions over a four-year period" and that his opinion was provided "two years and eight months after the date last insured," the ALJ ultimately accepted that Dr. Amin was a treating physician. (Tr. 33.) However, the ALJ rejected Dr. Amin's opinion for several reasons.
The ALJ also improperly held that Dr. Amin's opinion was inconsistent with Plaintiff's "conservative" treatment history, which is addressed above.
Plaintiff notes in her opening brief that she "received therapy at Clayton County [Behavioral Health Services] beginning in June 2012, more than two years prior to her date last insured, through March 2017 on average of every two to three months." (Br. at 15–16, citing Tr. 446–76, 502–32, 549–645, 727–56.) It is not remarkable that a patient at a busy community behavioral health center would not be able to see the same doctor at every visit.
First, the ALJ held that Dr. Amin's opinion was "inconsistent with his own clinical findings documented contemporaneous[ly] with outpatient treatment" during the relevant period (date of onset of disability through date last insured under Title II), as well as after the relevant period. (Tr. 33.) The Commissioner defends this ruling in response to Plaintiff's Objections as follows:
That Dr. Amin's opinion was provided more than two years after the relevant period "does not render his medical opinion incompetent or irrelevant to the decision in this case. Because the burden of proving disability is so great, the claimant must be allowed to introduce the testimony of her treating physician even though that relationship was not established until after the relevant period." Boyd v. Heckler , 704 F.2d 1207, 1211 (11th Cir. 1983), superseded by statute on other grounds , Hand v. Heckler , 761 F.2d 1545, 1547 (11th Cir. 1985) (subsequent history omitted). Furthermore, unlike the treating physician in Boyd , Dr. Amin had an existing treatment relationship with Plaintiff before her date last insured. (Tr. 33.)
[R]elevant period and post-relevant period examination notes from Dr. Amin reveal Plaintiff was alert, fully oriented, cooperative, and calm, with normal speech, above average intellect, grossly intact memory, coherent thought process, and normal thought content, and she denied hallucinations on occasion.
(Resp. to Obj. (citing Tr. 33, 511-12, 520-21, 593-94, 602-03, 611-12).)
In Martinez v. Acting Comm'r of Soc. Sec. , 660 F. App'x 787, 792 (11th Cir. 2016), the Eleventh Circuit found that an ALJ did not have good cause to discount the opinion of a treating physician. In that case the "ALJ found that other clinical evaluations contradicted" a treating physician's findings because they showed that the claimant "had good or fair short-term and long-term memory, was alert, was oriented to person, time, place, and situation, and was well-groomed." Id. The court held that none of those facts conflicted with the finding that the claimant "had intrusive delusional thoughts that interfered with his intellectual abilities and prevented him from behaving in a predictable manner or having social relationships, which interfered with his ability to potentially adjust to a job." ( Id. ) Rather, the treating physician accounted for the evaluations by ranking the claimant's abilities in the relevant categories as "fair" instead of "poor."
This case has some similarities to Martinez. That Plaintiff appeared "alert, fully oriented, cooperative, and calm, with normal speech" is not inconsistent with the portion of Dr. Amin's opinion that stated that Plaintiff could behave in an emotionally stable manner and relate predictably in social situations 80% of an 8-hour workday. Furthermore, Dr. Amin's findings that Plaintiff could understand, remember, or carry out simple job instructions less than 75% of an 8-hour workday — while arguably in tension with the portions of the medical records indicating "above average intellect, grossly intact memory, coherent thought process, and normal thought content," — are consistent with the portion of Dr. Zitomer's opinion that Plaintiff was "likely to have moderate impairment in recalling simple instructions," to which the ALJ gave weight. And because the Court has held that the ALJ must reweigh the opinion of Dr. Zitomer, that opinion would potentially further support Dr. Amin's.
It is perhaps a bit disingenuous that the Commissioner on appeal criticized the "check the box" nature of Dr. Amin's opinion while simultaneously attempting to discredit Dr. Amin's opinions based on medical records that consisted of standard Clayton County BHS "check the box" forms. (Def.'s Resp. Br. at 14, 15.)
Lastly, the ALJ faulted Dr. Amin's opinion for citing Plaintiff's "subjective complaints of hearing voices and difficulty focusing and concentrating." (Tr. 34.) However, the Court agrees with Plaintiffs that "there is no blood test for psychiatric disorders" and that psychiatric physicians must interpret "quintessentially subjective information with respect to which they must exercise professional, interpretive judgment." Matthews v. Barnhart , 347 F. Supp. 2d 1093, 1101 (M.D. Ala. 2003).
Still, the Court recognizes the shortcomings of Dr. Amin's report. While the "check the box" nature of the report does not itself constitute good cause to discount the controlling weight of a treating physician's opinion, Dr. Amin's failure to utilize the portions of the form that provided a space for additional explanation or clinical findings bears on its persuasive value as against other opinion evidence. Accordingly, the Court does not necessarily require the ALJ to give Dr. Amin's opinion controlling weight on remand, though Plaintiff is free to argue that the ALJ should. However, in light of the foregoing, the ALJ erred by assigning the opinion "little, if any weight."
D. The Court does not address the lay evidence.
Having found sufficient grounds to vacate and remand the ALJ's decision, the Court need not address Plaintiff's arguments regarding lay testimony at this time. However, the Court notes that part of the reason for excluding the testimony was that it conflicted with the ALJ's determination that Plaintiff's treatment was "conservative," which the Court found lacked appropriate evidentiary foundation. Accordingly, the ALJ must reevaluate the weight assigned to the lay testimony in light of this holding.
V. CONCLUSION
For the forgoing reasons, Plaintiff's Objection [Doc. 23] is SUSTAINED IN PART . Accordingly, the Court DECLINES TO ADOPT the R&R [Doc. 20], and instead, the Court REVERSES the final decision of the Commissioner and REMANDS the case for further proceedings consistent with this opinion. The Clerk is DIRECTED to enter final judgment in Plaintiff's favor.
It is so ORDERED this 9th day of March, 2020.