[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12415 ELEVENTH CIRCUIT
DECEMBER 4, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00073-CV-LGW-5
GLADYS C. THORNTON,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 4, 2009)
Before BARKETT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Gladys Thornton appeals a decision that affirmed the denial of her
application for disability insurance benefits and supplemental security income from
the Social Security Administration. 42 U.S.C. §§ 405(g), 1383(c)(3). The
administrative law judge decided that Thornton was ineligible for disability
benefits because she failed to prove that she had a severe mental impairment that
lasted twelve months and began on or before December 31, 1997. Because
substantial evidence does not support that decision, we vacate the order affirming
the denial of benefits and remand for further proceedings.
I. BACKGROUND
Thornton testified and submitted evidence at two evidentiary hearings that,
beginning in 1992, she had suffered from mental disorders that affected her ability
to maintain gainful employment. Thornton testified that, in February of 1992, she
resigned from her position as an aid to a guidance counselor because she had
difficulty concentrating, dressing for work, completing chores, or “respond[ing] to
things that were required of [her] anymore.” Thornton tried copying documents as
a teacher’s aid, but she became confused and gave the materials to the wrong
teachers, suffered from delusions and hallucinations, and had personality conflicts
that affected her relationships with members of her family. After Thornton quit
work, she became forgetful, avoided household chores, slept 16 hours a day, and
avoided interaction with the public.
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Medical records provided by Thornton’s treating psychiatrist, Clarence
Johnson, suggested that Thornton suffered from episodic mental instability from
1994 through 2001, even when medicated. Johnson noted that in 1994 Thornton
had delusions that Johnson treated with two antianxiety medications, Zoloft and
Tranxene, and an antidepressant, Pamelor. In May 1995, Thornton had panic
attacks that subsided with the administration of Lithium Carbonate, an antimanic
medication. In October 1995, Johnson opined that Thornton was not “emotionally
able to handle” a major oral surgery. From January through June 1996, Johnson
recorded that Thornton was stable and remained on medication for “chronic bipolar
depression with psychotic features[,]” a panic disorder, and obsessive compulsive
disorder. In December 1996, Johnson reduced Thornton’s medications and noted
that her condition was “the best [Johnson] had seen . . . in several years.” Thornton
remained generally stable throughout 1997, other than a panic attack in May 1997.
According to Johnson’s notes, Thornton deteriorated in December 1997
when she reported paranoid ideations about her husband starting a fire and putting
rats in their house. Johnson prescribed Zyprexa, an antipsychotic medication, for
Thornton’s ideations. Although Thornton improved in January 1998, her husband
called Johnson in late February complaining that Thornton was “really getting a
little out of control.” Johnson opined that Thornton was coping with her bipolar
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depression because she was “not as delusional as she ha[d] been in the past.” In
March 1998, Johnson noted that Thornton was “still somewhat flat,” but she was
“not nearly as depressed” and, for the next several months, Thornton had good
insight and judgment. Thornton deteriorated again in August 1998 and had
difficulty with her thoughts and ideas of reference. In September, Thornton had
hallucinations, and Johnson continued to prescribe Lithium, Zoloft, Tranxene,
Pamelor, and Zyprexa for Thornton. In November, Johnson opined that Thornton
was “doing fair” because even though she was somewhat depressed, she did not
appear to be psychotic.
Johnson recorded that Thornton’s mental health followed a similar cycle
from 1999 through 2001. In January 1999, Thornton had good mental status,
insight, and judgment, but in February, she had obsessive thoughts. By June,
Thornton still had some paranoia and difficulty with ideas of reference, but her
insight and judgment were good. In May of 2000, Thornton’s paranoia had
worsened, but within a few days, she had improved.
In the fall of 2001, Thornton changed doctors and received treatment from
Dr. Barbara Davanzo. In June 2003, Davanzo recorded in her medical notes that
Thornton had mental problems stemming from her daughter’s drug abuse.
Thornton attempted suicide in 2004 and was admitted to the hospital for treatment.
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In August 2004, Davanzo submitted in support of Thornton’s application for
Social Security benefits a statement that Thornton was unable to work because she
had difficulty understanding, recalling, or performing short, simple instructions,
making judgments necessary to complete tasks, interacting appropriately with
coworkers and the public, and responding to pressure. Davanzo stated that, based
on Thornton’s unstable moods, psychosis, and paranoia, Thornton was unable to
behave appropriately in the workplace. In 2006, Davanzo signed a letter on which
she circled yes in response to a question about whether Thornton’s limitations
existed on or before December 31, 1997.
In 2003, two psychiatrists evaluated Thornton’s medical records and
concluded that the evidence was insufficient to find that Thornton was disabled.
Clare Rubin stated, in her one-paragraph conclusion, “Although manic depressive
disorder is one of the diagnoses in [Thornton’s] [Medical Examination Records] . .
. there [are] no [records] covering [patient’s] treatment, functioning or meds.” In
the paragraph that followed, Shelby Bennett stated she had “reviewed” the records
and “confirmed” Rubin’s “assessment.”
During an evaluation in April 2005, psychologist David Acker found that
Thornton’s mental problems had been disabling. Acker found that Thornton, when
medicated, could complete simple tasks and interact with others, but she had
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difficulty complying with work rules, dealing with the public, exercising judgment,
and coping with stress. Acker also found that Thornton could relate predictably in
social situations, but she could be unreliable and unstable emotionally. Acker
opined that Thornton’s mental problems would affect “most all work activities”
and it would be difficult for Thornton to find employment to accommodate her
“psychiatric challenges.”
At a hearing in August 2005, a vocational expert gave his opinion about
what work Thornton could perform. When told about Thornton’s education and
work experience, the expert opined that Thornton was qualified to perform “only
one job” as “a teacher’s aid.” The expert also opined that Thornton could serve as
a teacher’s aid even if Thornton had to take “prescribed psychotropic medications,
which are without side effect[s].” The expert’s opinion changed when given a
hypothetical that the person could not comply with simple or detailed instructions,
make simple work-related decisions, interact with coworkers or the public, or
respond appropriately to work pressures. Based on these limitations found by
Acker, the expert affirmed that the “person would not be able to return to the job as
a teacher’s aid” and stated that the limitations would “rule out other jobs that exist
in the national economy.” In response to a hypothetical that the person was
“[s]eriously limited in ability to follow work rules, deal with the public, use
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judgment, deal with work stresses, behave in an emotionally stable manner, [or]
demonstrate reliability,” but could satisfactorily “relat[e] to coworkers,
supervisors, function[] independently, maintain[] attention and concentration,
simple job instructions, personal appearance, and [had] no abilities in complex or
detailed jobs,” the expert affirmed that the person could not return to a job as a
teacher’s aid and “probably [could] not” perform “work that exists in significant
numbers in the national economy.”
The administrative law judge ruled that Thornton was ineligible for
disability insurance benefits. The judge considered Thornton’s medical records
and found that Thornton had proved “precious little, mentally” before December
1997 and Thornton “had no year long [durational] symptoms, or loss shown.” In
his analysis, the judge found relevant that Rubin did not have sufficient evidence to
rate Thornton’s level of disability. The administrative law judge also found
relevant that the vocational expert had opined that Thornton “could do her prior
work or any work on medications without side effects.” The administrative law
judge discounted Davanzo’s opinion that Thornton was disabled by December
1997 on grounds that Davanzo had not been Thornton’s treating psychiatrist and
Davanzo had available, but failed to reference, any medical records that supported
her opinion. The Appeals Council denied Thornton’s request for review.
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A magistrate judge recommended that the district court affirm the decision
to deny benefits. The magistrate judge agreed with the decision to discount
Davanzo’s opinion “because it was conclusory and was not accompanied by
objective medical evidence.” The magistrate judge ruled that the administrative
law judge was not required to use a medical advisor to determine the “onset date”
of Thornton’s mental illness because “there was adequate evidence . . . to
determine” that Thornton “was not disabled for a continuous period of at least 12
months” that began before December 31, 1997. The magistrate judge also ruled
that “[t]here was substantial evidence” to support the conclusion of the
administrative law judge that Thornton’s “only limitation prior to her last date
insured was that she was prescribed psychotropic medications, which were without
side effects.” The magistrate judge found that “[t]he record [did] not contain
evidence that [Thornton] suffered from an impairment sufficiently severe so as to
prevent her from engaging in gainful activity for a continuous period of at least
twelve months.” The district court adopted the recommendation of the magistrate
judge and entered a judgment in favor of the Commissioner.
II. STANDARDS OF REVIEW
We review the findings of fact of the administrative law judge “‘to
determine if [they are] supported by substantial evidence.’” Crawford v. Comm’r
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of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan,
125 F.3d 1436, 1439 (11th Cir. 1997)). Substantial evidence consists of “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. We review de novo the legal conclusions of the administrative
law judge, Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002), and we will
remand if the judge applied incorrectly the law relevant to the claim of disability.
See 42 U.S.C. § 405(g) (“[T]he court shall review only the question of conformity
with such regulations and the validity of such regulations . . . .”).
III. DISCUSSION
Thornton challenges the decision of the administrative law judge. First,
Thornton argues more weight should have been accorded to Dr. Davanzo’s opinion
that Thornton was disabled before December 1997. Second, Thornton argues that
substantial evidence does not support a finding that she was not disabled on or
before December 31, 1997. We address each issue in turn.
A. The Administrative Law Judge Had Good Cause to Discount the Opinion of Dr.
Davanzo.
Thornton argues that the administrative law judge erred by discounting
Davanzo’s opinion, but we disagree. The opinion of a treating physician must be
given substantial or considerable weight unless good cause is shown to discount
that opinion. Phillips v. Barnhart, 357 F.3d 1232, 1240–41 (11th Cir. 2004). Good
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cause exists to reject an opinion that is conclusory. Crawford, 363 F.3d at 1159.
Davanzo concluded that Thornton had been disabled by December 31, 1997, but
Davanzo cited no medical evidence to support her conclusion. See id. Substantial
evidence supports the decision to discount Davanzo’s opinion.
B. The District Court Applied An Incorrect Standard to Determine the Duration of
Thornton’s Impairment.
To qualify for benefits from the Social Security Administration, Thornton
had to prove she was disabled. See 20 C.F.R. § 404.1512(a); Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001). To qualify as disabled, Thornton had to
prove that she had an “inability to engage in any substantial gainful activity by
reason of any medically determinable . . . 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). Her
impairment had to be severe and “significantly limit [her] physical or mental
ability to do basic work activities,” 20 C.F.R. § 404.1521(a), such as
“[u]nderstanding, carrying out, and remembering simple instructions”; exercising
judgment; “[r]esponding appropriately to supervision, co-workers, and usual work
situations”; and “[d]ealing with changes in a routine work setting,” 20 C.F.R. §
404.1521(b). The severity of Thornton’s disability had to be “measured in terms of
its effect upon [her] ability to work, and not simply in terms of deviation from
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purely medical standards of . . . normality.” McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir. 1986).
Although a disability is defined as a “continuous” impairment, the
regulations governing mental disorders take into account that symptoms may vary
in severity and in response to medication. See 20 C.F.R. pt. 404(P) app. 1, at §§
12.00, 12.03, 12.04. The regulations acknowledge that the “level of functioning”
by a claimant “may vary considerably over time” and “[p]roper evaluation of [the]
impairment must take into account any variations in [that] level of . . .
functioning,” id. § 12.00(D)(2), including the effect of medication on “all
functional limitations,” id. § 12.00(G). The level of functioning is evaluated by
reviewing medical documents and personal chronicles of symptoms, id. §
12.00(B), and can be “inferred from medical records showing significant alteration
in medication,” id. § 12.00(C)(4).
Psychotic and affective disorders like those recorded in Thornton’s case are
considered disabling when “[m]edically documented” evidence establishes the
claimant suffers “either continuous or intermittent” symptoms of her particular
illness or “[r]epeated episodes of decompensation, each of extended duration.” Id.
§§ 12.03(A), 12.03(C), 12.04(A), 12.04(C). To constitute repeated episodes of
extended duration, a claimant must prove that she has suffered “three episodes
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within 1 year, or an average of once every 4 months, each lasting for at least 2
weeks.” Id. § 12.00(C)(4). The disorder may be considered severe even if
symptoms are “currently attenuated by medication or psychosocial support.” Id.
§§ 12.03(C), 12.04(C).
In the light of these regulations, the administrative law judge erred in
rejecting Thornton’s claim of disability on the ground she failed to meet the
“continuous” duration requirement. Thornton had to prove that she had a disability
that began on or before the last date for which she was insured, which was
December 31, 1997. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)
(citing 42 U.S.C. § 423(a)(1)(A)). Thornton testified that she began in 1992 to
suffer symptoms consistent with disorders diagnosed by her treating physician,
Johnson. In his medical notes spanning from 1994 to 2001, Johnson recorded
Thornton’s episodes with at least three mental disorders and the use of medication
to attempt to regulate the symptoms of those disorders. On December 16, 1997,
while Thornton was still covered for disability benefits, Johnson recorded that
Thornton was “definitely in psychosis.” Two months later, Thornton’s husband
reported that she was out of control and, during the following year, Johnson
recorded that Thornton exhibited at times a flat affect, difficulty with her ideas of
reference, hallucinations, and delusions. Although the administrative law judge
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recites much of Thornton’s medical history, the judge failed to consider whether
Thornton’s repeated episodes might qualify as an impairment sufficiently severe to
constitute a disability.
The administrative law judge also erred by basing his decision on Rubin’s
inconclusive opinion. Rubin found that the evidence was insufficient to find
Thornton disabled because “there [were] no [records] covering [patient’s]
treatment, functioning or meds.” Rubin’s opinion might have been different had
she reviewed those records. The burden rests with the administrative law judge “to
develop a full and fair record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003) (citing 20 C.F.R. § 416.912(d)).
Substantial evidence did not support the finding of the district court that
Thornton could perform her past work if medicated properly. Although the
vocational expert testified that Thornton could work as a teacher’s aid if she took
psychotropic medication, the expert also testified that Thorton could not work if
she suffered the functional limitations recorded by Acker. Acker’s findings are
supported by Johnson’s medical records, which establish that Thornton manifested
symptoms of her mental disorders, even when medicated.
We vacate the order of the district court and remand with directions to
remand to the administrative law judge. On remand, the administrative law judge
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must determine whether Thornton suffered, as a result of her mental disorders,
“either continuous or intermittent” symptoms or “[r]epeated episodes of
decompensation, each of extended duration.” Id. §§ 12.03(A), 12.03(C), 12.04(A),
12.04(C).
IV. CONCLUSION
We VACATE the opinion of the district court that affirmed the decision of
the administrative law judge, and we REMAND for further proceedings.
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