Thomas Scott Henry v. Commissioner of Social Security , 802 F.3d 1264 ( 2015 )

Case: 15-11381 Date Filed: 10/05/2015 Page: 1 of 12
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11381
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cv-00237-GKS-KRS
THOMAS SCOTT HENRY,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 5, 2015)
Before MARCUS, WILSON, and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Case: 15-11381 Date Filed: 10/05/2015 Page: 2 of 12
Thomas Scott Henry appeals the district court’s decision affirming the
Social Security Administration’s denial of his application for disability insurance
benefits and supplemental security income.
On appeal, Henry argues that the Administrative Law Judge (ALJ) erred by
(1) refusing to give proper weight to the opinion of Dr. Barber, a consultative
examining physician, and (2) finding Henry’s 2012 testimony not credible and
failing to consider his vision limitations when evaluating his residual functional
capacity (RFC). After reviewing the parties’ briefs, we conclude the ALJ erred in
both respects. Therefore, we reverse the decision of the district court and remand
for further proceedings consistent with this opinion.
I. Background
In October 2011, after two hearings, the ALJ issued a written decision
determining Henry did not suffer from a disability recognized under the Social
Security Act. The Appeals Council vacated the ALJ’s decision and remanded for
more thorough consideration and explanation of Henry’s RFC and the weight
given to certain portions of the medical evidence. The ALJ conducted a third
hearing in November 2012, at which Henry testified to his continued and
increasing back pain, lack of treatment since September 2011, and worsening
vision. In February 2013, the ALJ again determined Henry was not disabled,
finding that Henry’s testimony was not credible as to the severity of his symptoms
2
Case: 15-11381 Date Filed: 10/05/2015 Page: 3 of 12
and giving limited weight to the opinion of Dr. Barber that Henry could not sit for
extended periods of time. After the Appeals Council declined to review the ALJ’s
decision, Henry sought federal judicial review. The magistrate judge prepared a
written report and recommendation (R&R), to which neither Henry nor the
Commissioner objected, recommending reversal. In a brief opinion, the district
court rejected the magistrate judge’s recommendation and affirmed. This appeal
followed.
II. Legal Standards
We review de novo the legal principles upon which the ALJ relied, but we
are limited to assessing whether the ALJ’s resulting decision is supported by
substantial evidence. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)
(per curiam). In social security cases where “the ALJ denies benefits and the
[Appeals Council] denies review, we review the ALJ’s decision as the
Commissioner’s final decision.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). Our review is “the same as that of the district court,” Miles v. Chater, 84
F.3d 1397, 1400 (11th Cir. 1996) (per curiam), meaning we neither defer to nor
consider any errors in the district court’s opinion, see Syed v. Comm’r, 441 Fed.
App’x 632, 632 n.1 (11th Cir. 2011) (per curiam). 1
1
Cases printed in the Federal Appendix are cited as persuasive authority.
3
Case: 15-11381 Date Filed: 10/05/2015 Page: 4 of 12
The ALJ has a basic duty to develop a full and fair record. Brown v.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (per curiam). This is an onerous task,
as the ALJ must “scrupulously and conscientiously probe into, inquire of, and
explore for all relevant facts.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.
1981) (internal quotation marks omitted). In determining whether a claimant is
disabled, the ALJ must consider the evidence as a whole. Spencer ex rel. Spencer
v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985) (per curiam) (internal quotation
marks omitted). Remand for further factual development of the record before the
ALJ is appropriate where “the record reveals evidentiary gaps which result in
unfairness or clear prejudice.” Brown, 44 F.3d at 935 (internal quotation marks
omitted).
Under the substantial evidence standard, this court will affirm the ALJ’s
decision if there exists “such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011) (internal quotation mark omitted). It is not for
this court to “decid[e] the facts anew, mak[e] credibility determinations, or
re-weigh[] the evidence.” Moore, 405 F.3d at 1211. Indeed, “[e]ven if the
evidence preponderates against the Commissioner’s findings, we must affirm if the
decision reached is supported by substantial evidence.” Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004) (per curiam) (emphasis added)
4
Case: 15-11381 Date Filed: 10/05/2015 Page: 5 of 12
(internal quotation marks omitted). Yet, we must “scrutinize the record as a whole
to determine if the decision reached is reasonable and supported by substantial
evidence.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
III. Discussion
A. ALJ’s Rejection of Dr. Barber’s Opinion
The ALJ’s determination that Dr. Barber’s opinion should be given less
weight than other medical opinions on the record is not supported by substantial
evidence. The ALJ inappropriately assessed the credibility of Dr. Barber’s opinion
based on a negative inference from Henry’s failure to seek additional medical
treatment and without regard for Henry’s ability to pay for such treatment.
The Social Security regulations require the ALJ to consider many factors
when evaluating medical opinion evidence. See 20 C.F.R. § 404.1527(d). The
ALJ may consider the level or frequency of treatment when evaluating the severity
of a claimant’s condition, but the regulations specifically prohibit drawing “any
inferences about an individual’s symptoms and their functional effects from a
failure to seek or pursue regular medical treatment without first considering any
explanations that the individual may provide.” Social Security Regulation 96-7p
(SSR 96-7p) at 7. When the ALJ “primarily if not exclusively” relies on a
claimant’s failure to seek treatment, but does not consider any good cause
explanation for this failure, this court will remand for further consideration.
5
Case: 15-11381 Date Filed: 10/05/2015 Page: 6 of 12
Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (per curiam) (internal
quotation marks omitted); accord Beegle v. Soc. Sec. Admin., Comm’r, 482 Fed.
App’x 483, 487 (11th Cir. 2012) (per curiam). However, if the ALJ’s
determination is also based on other factors, such as RFC, age, educational
background, work experience, or ability to work despite the alleged disability, then
no reversible error exists. Ellison, 355 F.3d at 1275.
Here, the ALJ erred by basing the credibility of Dr. Barber’s opinion on a
negative inference, drawn from Henry’s failure to seek additional medical
treatment. The ALJ discredited Dr. Barber’s opinion as inconsistent with Henry’s
“limited and conservative treatment,” specifically citing Henry’s failure to seek
hospitalization, narcotics, or steroidal injections. Despite Henry’s statement that
he is unable to pay for continued medical treatment, including chiropractic care,
the ALJ neither developed the record nor addressed Henry’s financial ability to
pursue a more rigorous course of treatment. As such, the ALJ failed to consider
any good cause explanations for failure to seek medical treatment and dispel any
inconsistencies with Dr. Barber’s assessment. See id. Though the ALJ mentioned
that Henry was “able to work for nearly a decade after his back was injured,” and
over-the-counter medication made the pain tolerable, these clauses appear in the
middle of a paragraph wholly discussing Henry’s “conservative treatment”; the
6
Case: 15-11381 Date Filed: 10/05/2015 Page: 7 of 12
ALJ did not analyze them further. 2 The negative inference therefore impermissibly
served as the ALJ’s “primar[y] if not exclusive[]” reason for rejecting Dr. Barber’s
opinion. See id.; SSR 96-7p at 7. The ALJ’s decision to afford Dr. Barber’s
opinion limited weight is not supported by substantial evidence and, accordingly,
we reverse in this respect.
B. ALJ’s Credibility Assessment of Henry’s Testimony and RFC Determination
Henry also argues that the ALJ erred in assessing the credibility of his 2012
testimony concerning his back symptoms and vision limitations when evaluating
his RFC. As indicated above, we review the ALJ’s decision for substantial
evidence, but neither make credibility determinations of our own nor re-weigh the
evidence. See Moore, 405 F.3d at 1211. Here, the ALJ’s RFC determination is not
supported by substantial evidence because the record is underdeveloped with
respect to both whether financial status prevented Henry from receiving alternate
treatment for his back pain and the extent of his visual impairment.
The government contends that Henry waived these arguments by failing to
raise them in the district court. However, the record reflects that Henry argued in
the district court that the ALJ erred substantively in finding that his testimony was
not credible with respect to the extent of his back pain and the role vision
2
In fact, the record reflects that Henry received Tramadol, a narcotic-like medication used to
treat severe pain, from a free clinic. The magistrate judge emphasized this piece of evidence in
the R&R to indicate that the ALJ’s rejection of Dr. Barber’s opinion was not supported by
substantial evidence. As the magistrate judge wrote, “[u]se of strong pain medication is not
consistent with the finding that Henry’s treatment was conservative.”
7
Case: 15-11381 Date Filed: 10/05/2015 Page: 8 of 12
impairment played in forming the RFC assessment. Though Henry does not
specifically argue that the ALJ failed to develop a full and fair record, this
argument falls within our review of his substantial evidence claim. Our
jurisdiction encompasses not only those issues that a party “expressly referred to”
but also those “impliedly intended for appeal.” Whetstone Candy Co. v. Kraft
Foods, Inc., 351 F.3d 1067, 1080 (11th Cir. 2003) (internal quotation marks
omitted) (discussing scope of jurisdiction in tortious business interference matter);
see also Fed. R. App. P. 3(c)(1)(B); Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct.
678, 681 (1992) (“Courts will liberally construe the requirements of Rule 3.”). It is
impossible to review whether the ALJ’s decision is supported by substantial
evidence if the record is not fully and fairly developed. See Cowart, 662 F.3d at
735. Thus, when Henry challenged whether there was substantial evidence
supporting the ALJ’s determination of the credibility of his 2012 testimony and the
RFC assessment, a challenge to the sufficiency of the record was implied in his
appeal. Accordingly, Henry has not waived this argument.
The ALJ’s determination that Henry’s 2012 testimony is not credible is not
supported by substantial evidence because the ALJ failed to fully and fairly
develop the record with respect to Henry’s ability to pursue a more rigorous course
of treatment. See id. Here, the ALJ discredited Henry’s testimony for the same
reasons that he gave little weight to Dr. Barber’s opinion—that Henry worked after
8
Case: 15-11381 Date Filed: 10/05/2015 Page: 9 of 12
his initial injury, received “conservative treatment,” and did not take narcotics.
The ALJ had an obligation to “scrupulously and conscientiously probe” into the
reasons underlying Henry’s course of treatment, yet there is nothing in the record
indicating the ALJ inquired into or considered Henry’s financial ability to seek an
alternate treatment plan. Instead, the ALJ focused on the absence of aggressive
treatment as a proxy for establishing disability. Absent proper factual
development, we cannot say there is “such relevant evidence as a reasonable
person would accept as adequate to support [the] conclusion” that Henry’s
testimony is not credible. See Winschel, 631 F.3d at 1178 (internal quotation
marks omitted). Furthermore, in the absence of additional information regarding
Henry’s financial ability to seek alternate treatment, the ALJ could not fairly assess
the severity of Henry’s back pain and potential disability. See Brown, 44 F.3d at
934.
Similarly, the ALJ’s RFC determination is not supported by substantial
evidence because the ALJ failed to develop the record regarding Henry’s vision
limitations. A vocational expert’s (VE) testimony is not substantial evidence in
support of the ALJ’s determination if the hypothetical questions posed to the VE
fail to include all the claimant’s impairments. Wilson v. Barnhart, 284 F.3d 1219,
1227 (11th Cir. 2002) (per curiam). However, questions that “implicitly account[]
for the claimant’s limitations” are sufficient to meet this requirement. See
9
Case: 15-11381 Date Filed: 10/05/2015 Page: 10 of 12
Winschel, 631 F.3d at 1180–81. The facts on the record indicate that the ALJ
neither explicitly nor implicitly alluded to Henry’s vision limitations. As the
magistrate judge noted in the R&R, the RFC assessment accepts Henry’s inability
to perform “fine detail work,” but it is not clear from the record that “fine detail
work” was included to address or did address Henry’s vision impairment. The
questions posed to the VE focused on the hypothetical person’s ability to move
around (e.g., balance, stoop, crouch), the level of task on which he could focus and
execute, and his ability to respond to supervisors or engage with the public. The
VE neither directly nor indirectly addressed the extent to which the hypothetical
person could function if blind in his right eye and nearly blind in his left eye.
Consequently, the record is insufficient to determine (1) whether Henry could
perform the work specified in the RFC—route clerk, collator operator, or blade
balancer—with his vision limitations, and if not, (2) whether there was any work
available in the national economy that Henry could perform in light of his
combined physical limitations.
More importantly, it is unclear from the record whether Henry’s vision
limitations continue. The ALJ explicitly noted Henry’s cataracts diagnosis and
impending surgery on his right eye, but it is unclear whether Henry had the
surgery, given his asserted financial constraints, and if he did not, whether the
vision limitation from which he now suffers meets the criteria for a listing level
10
Case: 15-11381 Date Filed: 10/05/2015 Page: 11 of 12
impairment. Even if Henry had the surgery, the record does not reflect to what
extent his left eye continues to limit him, despite indicating that the left eye should
eventually undergo surgery, as well. These evidentiary gaps prevented the ALJ
from making a full, fair, and impartial assessment of Henry’s RFC and what jobs
he may reasonably pursue. See Brown, 44 F.3d at 935–36.
We hold that the ALJ’s RFC assessment is not supported by substantial
evidence. The ALJ did not fulfill the duty to investigate all the facts related to
Henry’s vision limitations and consider the evidence as a whole in forming the
RFC assessment. See Cowart, 662 F.3d at 735; Spencer, 765 F.2d at 1093. The
underdeveloped record presents evidentiary gaps that make assessment of Henry’s
physical limitations unfair and clearly prejudicial. See Brown, 44 F.3d at 935–36.
IV. Conclusion
Upon review of the record and consideration of the parties’ briefs, we
reverse the opinion of the district court and remand the case for further proceedings
before the Commissioner consistent with this opinion. The evidentiary gaps in the
record make clear the ALJ did not satisfy his duty to develop a full and fair record,
see id., and correlatively, did not consider the evidence as a whole, see Spencer,
765 F.2d at 1093. The ALJ’s decision to give limited weight to Dr. Barber’s
opinion is not supported by substantial evidence because the ALJ based the
credibility of Dr. Barber’s opinion primarily on a negative inference from Henry’s
11
Case: 15-11381 Date Filed: 10/05/2015 Page: 12 of 12
failure to seek additional medical treatment, without regard for Henry’s ability to
pay for such treatment. See SSR 96-7p at 7. The ALJ’s failure to develop the
record with respect to whether financial status prevented Henry from receiving
alternate treatment for his back pain and the extent of his visual impairment
resulted in an unfair and clearly prejudicial judgment regarding Henry’s testimony
and the RFC assessment. See Brown, 44 F.3d at 935–36. Accordingly, we remand
for further factual development before the ALJ.
REVERSED and REMANDED for further proceedings.
12