Whipple v. Berryhill (S.D. Ga. Nov. 14, 2017) (Magistrate Judge Brian K. Epps)

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Included: Plaintiff’s Brief, Plaintiff’s Reply Brief, Report and Recommendation, and Order


1) The ALJ reversibly erred in affording little evidentiary value to the opinion of treating physician, K. Scott Malone, M.D.

2). The ALJ reversibly erred by failing to properly assess Mr. Whipple’s subjective complaints and credibility

3) The ALJ’s finding that Mr. Whipple has the residual functional capacity to return to his past relevant work as a math instructor, special education assistant and in-school suspension supervisor is not based on substantial evidence.

In Whipple, the court concluded that the case should be remanded as the ALJ discredited the opinion of Dr. Malone, a treating physician, who opined that the claimant was limited to sedentary work, by relying on a functional capacity evaluation (“FCE”) “without adequate explanation, and relied, in part, on that determination in evaluating Plaintiff’s subjective complaints . . . .” R&R at 5. While the FCE at issue, signed by Dr. Malone and an evaluator, “concluded Plaintiff’s abilities fell within a medium exertional level,” the “ALJ did not address whether the medium exertional work level as defined in the FCE comported with the Commissioner’s definition” of medium work. Id. at 9 (citing SSR 96-5p).

As the court noted, “Plaintiff provides an example of just such a discrepancy arising in this case regarding the medium work conclusion in the FCE,” as the FCE found that the claimant could occasionally (defined as “6%-33% of the time in an eight-hour day”) stand or walk and needed to frequently (defined as “34% to 66% of an eight-hour day”) alternate between sitting, standing, and walking. Id. at 9. As the court elaborated:

If plaintiff is only able to “occasionally” stand or walk 33% of an eight-hour day, or 2.6 hours, that would not meet the six hour requirement for medium work per the Commissioner’s regulations. Moreover, despite characterizing the FCE as valid and deserving of “significant weight,” the ALJ’s RFC stated Plaintiff could stand/walk for four hours in each work day.

In support of the RFC, the ALJ stated he gave significant weight to the opinion of treating physician Jeremy Richter, M.D., who “could not find an objective cause for claimant’s pain” on October 20, 2014. Yet, there is no explanation how the ALJ extrapolated this statement into support for the conclusion Plaintiff could perform light work. Moreover, although the ALJ afforded significant weight to the FCE, there is no explanation for leaving out of the RFC a need to alternate between sitting, standing, and walking as stated in the RFC.

Thus, it appears the ALJ discounted the opinion of Dr. Malone regarding sedentary work in favor of an FCE, which also bears Dr. Malone’s name, concluding plaintiff could perform past relevant light work. As Plaintiff succinctly summarizes, the ALJ mischaracterized the FCE, never rejected its findings, but then misread it to formulate an RFC for Plaintiff.

Id. at 9-10 (record citations omitted). The ALJ also discredited the claimant’s “subjective complaints, in part, based on the improper characterization in the FCE of an ability to do medium work” and “if the ALJ did not properly interpret and use the FCE to create Plaintiff’s RFC, then any resultant conclusions about discrediting Plaintiff’s claimed limitation based on that interpretation was also improper.” Id. at 10-11.

The court also commented on the mental health evidence of record, noting that the ALJ gave “significant weight “ to the opinion of a consultative examiner and claimed that the opinions of the “State Agency Psychologists support the RFC containing no mental restrictions.” Id. at 11. However, while the consultative examiner found that the claimant’s depressive symptoms were insufficient to meet the criteria for major depressive disorder, the “report also states Plaintiff tested for moderate depression within two weeks of the test date, and his prognosis was fair.” Id. Moreover, the ALJ “misstated” the findings of two State Agency psychologists who both found that the claimant had mild difficulties in maintaining concentration, persistence, or pace, while the ALJ found no limitations in this area. Furthermore, when the VE was asked a hypothetical from the claimant’s counsel which “included limitations to simple, routine, repetitive tasks, or unskilled work,” the VE testified that the claimant’s past skilled work as a math instructor was “not an option.” Id. Yet, the past work finding was the basis for the ALJ’s finding that the claimant was not disabled.

Thus, the court concluded that remand was warranted “[g]iven the ambiguity in the record concerning the ALJ’s reliance on an FCE for medium work and misstatements of the other medical opinions given significant weight in evaluating Plaintiff’s alleged disabling symptoms . . . .” Id. at 12.