Starnes v. Astrue (CONSENT)

Filing 17

MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Charles S. Coody on 7/6/12. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
CAROL L. STARNES,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CIVIL ACTION NO. 1:11CV124-CSC
(WO)

MEMORANDUM OPINION AND ORDER
I. Introduction.
The plaintiff applied for disability insurance benefits pursuant to Title II of the
Social Security Act, 42 U.S.C. § 401 et seq. and for supplemental security income
benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., alleging
that she was unable to work because of a disability. Her application was denied at the
initial administrative level. The plaintiff then requested and received a hearing before an
Administrative Law Judge ("ALJ"). Following the hearing, the ALJ also denied the
claim. The Appeals Council rejected a subsequent request for review. The ALJ's
decision consequently became the final decision of the Commissioner of Social Security
(Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L.
No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to
Social Security matters were transferred to the Commissioner of Social Security.

now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3).2 Based
on the court's review of the record in this case and the briefs of the parties, the court
concludes that the decision of the Commissioner should be affirmed.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person 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...
To make this determination3 the Commissioner employs a five step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
"not disabled."

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Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the
United States Magistrate Judge.
3

A "physical or mental impairment" is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.

2

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The standard of review of the Commissioner's decision is a limited one. This court
must find the Commissioner's decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260
(11th Cir. 2007). "Substantial evidence is more than a scintilla, but less than a
preponderance. It is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971);
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004). A
reviewing court may not look only to those parts of the record which supports the
decision of the ALJ but instead must view the record in its entirety and take account of
evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804
F.2d 1179, 1180 (11th Cir. 1986). The court "may not decide the facts anew, reweigh the
evidence, or substitute . . . [its] judgment for that of the [Commissioner]." Phillips v.
Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration in original) (quotation
marks omitted).
[The court must, however,] . . . scrutinize the record in its entirety to
determine the reasonableness of the [Commissioner's] . . . factual findings .
. . No similar presumption of validity attaches to the [Commissioner's] . . .
legal conclusions, including determination of the proper standards to be
applied in evaluating claims.
4

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case
(SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are
appropriately cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir.
1981) (Unit A).

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Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. The plaintiff was 48 years old at the time of the hearing before
the ALJ and has a 12th grade education. The plaintiff’s prior work experience includes
work as a caretaker/house cleaner, cashier, stocker, ticket clerk, and a shipper. Following
the administrative hearing, the ALJ concluded that the plaintiff has severe impairments of
lumbar hypertrophic facet joints, lumbar degenerative disc disease, obesity, hypertension,
diabetes mellitus, asthma, mononeuritis multiplex, sleep apnea, adjustment disorder, and
dysthymic disorder. Nonetheless, the ALJ concluded that the plaintiff was not disabled
because the plaintiff has the residual functional capacity to perform light work and can
return to her past relevant work as a caregiver.
B. The Plaintiff's Claims. As stated by the plaintiff her claims are (1) the ALJ
failed to properly assess Starnes’ past relevant work, (2) the ALJ’s finding of Starnes’
mental impairments at step two and beyond is not based on substantial evidence and (3)
the Commissioner erred as a matter of law in failing to properly evaluate Starnes’
cataracts. The court will discuss each of these claims.
IV. Discussion
A. The Past Relevant Work Claim. The ALJ found that Ms. Starnes ‘is capable
of performing past relevant work as a caregiver.” (R. 21). At the hearing before the ALJ,
Starnes’ counsel told the ALJ that she previously had worked as a “caretaker, cashier,
stocker, ticket clerk, and a shipper.” (R. at 30) The plaintiff contends that the ALJ

improperly separated the duties of Ms. Starnes’ past work as a “Caretaker/House Cleaner”
into two separate jobs: “caregiver” and “housekeeper”. (R. 21, 188).
During the hearing before the ALJ, the plaintiff testified that she worked for a
health care business. In response to the ALJ’s question about what she did, she said, “I
took care of a patient. I had to lift her, bathe her, light housekeeping, and that sort of
thing.” (R. at 35) In his decision the ALJ found that Starnes
has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except that the claimant can sit for a total
of 4 hours in an 8-hour day and can stand/walk for a total of 8 hours in an
8-hour day. The claimant cannot climb, balance, stoop, kneel, crouch or
crawl. The claimant can tolerate only occasional exposure to temperature
extremes, dust fumes, gases, and vibrations. The claimant cannot tolerate
exposure to dangerous machinery or heights. The claimant cannot tolerate
exposure to loud noises such as heavy traffic. The claimant has no visual or
auditory limitations. The claimant can frequently understand, remember,
and carry out simple one and two-step instructions. The claimant can
understand, remember, and carry out detailed instructions no more than
occasionally.
(R. at 18)
The plaintiff does not challenge this residual functional capacity determination.
As the Commissioner correctly points out, housekeeping is also light work. See DOT
323.687-014. Thus, the court agrees with the Commissioner that even if the ALJ erred in
bifurcating the plaintiff’s past relevant work of caretaker/housekeeper, any error was
harmless because the plaintiff had the residual functional capacity to perform both types
of work as they generally are performed within the national economy.
B. The Mental Impairment. The plaintiff contends that the ALJ improperly
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evaluated her mental impairment. Dr. Ghostley, a psychologist, performed a consultative
examination of the plaintiff. He concluded that “Ms. Starnes' ability to function
independently and manage finances is unimpaired. Presently, her ability to understand,
remember, and carry out instructions is moderately impaired, while her ability to respond
appropriately to supervisors, co-workers, and work pressures in a work setting is
markedly impaired.” (R. at 353)

The ALJ considered but rejected Dr. Ghostley’s

opinion.
Although David C. Ghostley, a licensed clinical psychologist who evaluated
the claimant on a consultative basis in September 2009, reported that the
claimant's ability to respond appropriately to supervisors, co-workers and
work pressures is markedly impaired (Exhibit 7F), Dr. Ghostley's
assessment is inconsistent with the claimant's own statements that she gets
along with others with no reported problems. Dr. Ghostley's assessment is
also inconsistent with Dr. Donald E. Hinton's persuasive assessment in
which he opined that the claimant was not significantly limited with respect
to social interaction and adaptation (Exhibit 10F).
(R. at 17)
The ALJ did consider the plaintiff’s mental impairments making these findings:
With respect to the claimant's subjective complaints of depression and
anxiety, there is no evidence in the record that the claimant sought treatment
from a mental health specialist. Rather, the claimant has sought treatment
only from her treating physicians, primarily Dr. Mancuso, who specializes
in family medicine, not mental health issues. Dr. Mancuso simply
prescribed various medications, including Zoloft and Paxil. Dr. Mancuso
did not report any functional limitations relating to any mental impairment
or refer the claimant to a mental health specialist. Although Dr. Ghostley
reported that the claimant's mental prognosis was guarded but was expected
to improve with psychotherapy (Exhibit 7F), there is no evidence in the
record that the claimant sought treatment from a psychologist or other
mental health expert. Finally, although the record shows frequent trips to
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the emergency room in 2008 and 2009 for physical complaints, hospital
treatment notes specifically indicate that the claimant's mental status was
normal (Exhibits 2F,4F, SF).
(R. at 20-21)
The plaintiff is correct when she observes that the ALJ is not fully correct in
saying that she did not seek mental health treatment. Her treating physician is Dr.
Mancuso, and his notes from July 28, 2009, reflect that
“She did go out the Spectra Care on 07/16. Because her husband at that
time was still working and his income was such that it was above their level
for free care and they told her that the visit would be $71.00. She could not
afford that. He apparently is going to be laid off at the end of the month
and she will have to wait until he is laid off and retry to get into Spectra
Care.”
(R. at 385)
Dr. Mancuso diagnosed depression, stating “She is tearful but in no acute distress
otherwise.” Id. On July 22, 2010, Starnes saw Dr. Mancuso who again diagnosed her
with “depression of longstanding duration” which was made worse by her mother’s recent
death and also disagreement with a family member. (R. at 435) Dr. Mancuso stated, “1
advised her to check with Spectra Care again. Apparently, she checked with them
previously and based on her husband's income at that time it was too expensive for them
to go. However, now they have no income for the moment and she probably could be
seen for free or at very minimal charge. She promised me that she would do this.” Id.
The evidence shows that she did not keep this promise. Thus, the court is unable
to fault the ALJ for saying she did not seek out mental health treatment. Coupled with
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her statements that she has no difficulty getting along with people,5 these facts militate
strongly against a conclusion that Starnes' depression is disabling. More to the point, the
court concludes that substantial evidence supports the ALJ's conclusion about Starnes’
mental abilities. To the extent that her mental condition affects her ability to work, the
ALJ adequately accounted for it by noting her limitations in understanding and carrying
out instructions.
Starnes also contends that the ALJ erred in giving more weight to the opinion of a
non-examining physician, Dr. Hinton, a state agency psychologist who reviewed Starnes’
medical records. As noted above, Dr. Hinton concluded that Starnes was not
significantly limited with respect to social interaction and adaptation. (R. at 372) This, of
course, is not consistent with Dr. Ghostley’s conclusions.
Social Security regulations provide guidelines for an ALJ to use when evaluating
medical opinion evidence. See 20 C.F.R. § 404.1527. The ALJ considers many factors
when weighing medical opinions, including the examining relationship, the treatment
relationship, how supported an opinion is, whether an opinion is consistent with the
record, and a doctor's specialization. 20 C.F.R. § 404.1527(d)(1)-(6). The
Commissioner's regulations also require that "more weight [be given] to the opinion of a
source who has examined [the claimant] than to the opinion of a source who has not
5

Starnes’ responses on a questionnaire concerning "social activities," states that she spends time
with others in person and on the phone. The sole activity described by her is "go[ing] out to lunch." She
says she does this once a week. She also states that she has no difficulty getting along with "family,
friends, neighbors or others." (R. at 165)

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examined [the claimant]." 20 C.F.R. § 404.1527(d)(1); accord Broughton v. Heckler,
776 F.2d 960, 962 (11th Cir.1985); Swindle v. Sullivan, 914 F.2d 222, 226 n. 3 (11th
Cir.1990). Moreover, "[t]he opinions of nonexamining, reviewing physicians, ... when
contrary to those of the examining physicians, are entitled to little weight, and standing
alone do not constitute substantial evidence." Lamb v. Bowen, 847 F.2d 698 (11th Cir.
1988); Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir.1987); accord Spencer on Behalf
of Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir.1985) (" '[t]o attempt to evaluate
disability without personal examination of the individual and without evaluation of the
disability as it relates to the particular person is medical sophistry at best' "). In Edwards
v. Sullivan, 937 F.2d 580, 584-85 (11th Cir.1991), the court found that the ALJ did not err
in relying on the opinion of a nonexamining physician where the physician's opinion was
consistent with the opinions of examining physicians.
One of the interpretive difficulties with this seemingly straightforward principle of
law arises from cases such as Swindle v. Sullivan, 914 F.2d 222, 226 n. 3 (11th Cir. 1990),
in which the court stated, albeit in a footnote, that the opinion of a nonexamining
physician “is entitled to little weight and taken alone does not constitute substantial
evidence to support an administrative decision.” In isolation, Swindle seems to suggest
that the opinion of a nonexamining physician cannot be substantial evidence under any
circumstances. Swindle cites Broughton as authority, but that case “held that the opinion
of a nonexamining physician is entitled to little weight if it is contrary to the opinion of

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the claimant's treating physician.” Broughton, 776 F.2d at 962 (emphasis added). That
formulation of the law is consistent with Lamb and Sharfarz. Thus, the court concludes
that the opinion of a nonexamining physician who has reviewed medical records may be
substantial evidence if it is consistent with the well-supported opinions of examining
physicians or other medical evidence in the record.
Here, Dr. Hinton did review the records of the consultant psychologist. Even
though his opinion is not consistent with Dr. Ghostley’s opinion that Starnes’ ability to
respond appropriately to supervisors, co-workers, and work pressures is markedly
impaired, the ALJ’s opinion nonetheless is consistent with the medical evidence as a
whole6 as well as Starnes’ testimony about her abilities. Starnes did not seek mental
health treatment when she could have done so. While Dr. Mancuso suggested she seek
treatment for her depression, he never indicated that it was debilitating. Starnes’
description of her activities does not support a conclusion that she is unable to function in
a work setting to the degree determined by Dr. Ghostley during the single examination by
him of Starnes. In short, after a careful examination of the administrative record, the
court concludes that substantial evidence supports the conclusion of the ALJ concerning
Starnes’ mental impairments.
C. Cataracts. Starnes complains that even though she presented evidence of

6

For example, Dr. William G. Watson, a neurologist, evaluated Starnes on October 4, 2010,
concerning her back pain. In commenting about her, he stated, "She communicates well." (R. at 416)

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cataracts to the ALJ he failed to mention this impairment in his consideration of the
medical evidence. Starnes argues in brief that this failure warrants remand because "the
job he found that Ms. Starnes could return to requires frequent near acuity. (R. 18, 21)."
This claim is wholly lacking in merit. First, as the Commissioner points out,
Starnes did not allege in her application or at the hearing that cataracts was an
impairment. Secondly, while the medical records at page 375 of the administrative record
has the cataract box marked "yes," the same form on page 376 of the record is marked
"no." Thirdly, other than these stray indications, no medical records indicate the presence
of any limitations associated with cataracts. The record before the court simply does not
support a finding that cataracts impose any limitation on Starnes' ability to work.
IV. Conclusion
For the reasons as stated, the court concludes that the decision of the
Commissioner denying benefits to Starnes should be affirmed. The Court will enter a
separate final judgment.
Done this 6th day of July, 2012.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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