Marshall v. Astrue
MEMORANDUM OPINION AND ORDER directing that the decision of the Commissioner is AFFIRMED. Signed by Honorable Judge Terry F. Moorer on 2/18/14. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NIKKI DANIELLE MARSHALL
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CASE NO. 1:13-CV-00029-TFM
MEMORANDUM OPINION AND ORDER
Nikki Danielle Marshall (“Plaintiff” or “Marshall”) applied for supplemental
security income under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §
1383(c)(3), on January 20, 2010. Tr. 68. After being denied, Marshall timely filed for
and received a hearing before an administrative law judge (“ALJ”) who rendered an
unfavorable decision on April 26, 2011. Tr. 38, 44. Marshall subsequently petitioned for
review to the Appeals Council, which rejected review of Marshall’s case on November
23, 2012. Tr. 1. As a result, the ALJ’s decision became the final decision of the
Commissioner of Social Security (“Commissioner”).
Judicial review proceeds
pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 636(c). After careful scrutiny of the
record and the parties’ briefs, and for the reasons herein explained, the Court AFFIRMS
the Commissioner’s decision.
I. NATURE OF THE CASE
Marshall seeks judicial review of the Commissioner’s decision denying her
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application for supplemental security income benefits. United States District Courts may
conduct limited review of such decisions to determine whether they comply with
applicable law and are supported by substantial evidence. 42 U.S.C. § 405. The court
may affirm, reverse and remand with instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
“The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the
Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla
— i.e., the evidence must do more than merely create a suspicion of the existence of a
fact, and must include such relevant evidence as a reasonable person would accept as
adequate to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d
842 (1971)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
If the Commissioner’s decision is supported by substantial evidence, the district
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court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986)). The Court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986)). The Court “may not decide facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but
rather it “must defer to the Commissioner’s decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth,
703 F.2d at 1239).
The Court will also reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption
that the Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d
1233, 1236 (11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
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provided they are both insured and disabled, regardless of indigence.1 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line.2 Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical language
for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§
404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is
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). A “physical or mental impairment” is one
resulting from anatomical, physiological, or psychological abnormalities which are
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, § 136.1, available at
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general
tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2, 2100,
available at http://www.ssa.gov/OP_Home/handbook/handbook.html
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demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits.
See 20 C.F.R. §§
404.1520, 416.920 (2010).
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(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 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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
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Residual Functional Capacity (“RFC”). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines4 (“grids”) or hear testimony from a vocational expert (“VE”). Id.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Marshall was born on February 9, 1983 and was twenty-six years old, “a younger
individual,” on the date she filed the application, January 20, 2010. 20 C.F.R. 416.963;
Tr. 37, 68. Marshall alleges that she has been disabled since June 1, 2009. Tr. 121.
Marshall has a limited education, attending school but failing to complete the seventh
grade. Tr. 37. Marshall’s past work is light and semi-skilled, as she has worked only in
two jobs as a short order cook. Tr. 37, 62, 140, 144. She has the ability to communicate
See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in SSI
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in English. Tr. 37.
Marshall was initially evaluated by Josue Becerra, M.D., a psychiatrist at
Enterprise Behavioral Health, in October 2008 for her complaints of mood swings. Tr.
216-219. Following this initial evaluation, Plaintiff was seen on occasion at Enterprise
Behavioral Health, generally for prescription refills or changes in medication. Tr. 184191, 210-215, 216-219, 223-224. In May 2009, Dr. Becerra examined Plaintiff again and
found that Plaintiff was “doing very well” and that she exhibited normal behavior; was
fully alert; had good attention span, goal-directed thought processes, and good impulse
control; had an appropriate affect and a happy mood; and had average judgment/insight.
In the same month, Joseph McGinn, M.D., a psychiatrist at Enterprise
Behavioral Health, diagnosed Plaintiff with a mood disorder and attention deficit
hyperactivity disorder (“ADHD”). Tr. 186. During a follow-up examination on January
2010, Shakir Meghani, M.D., a psychiatrist at Enterprise Behavioral Health, found that
Plaintiff continued to exhibit normal behavior; was fully alert; had good attention span,
memory and impulse control; goal-directed thought processes; average judgment/insight
and an “OK” mood. Tr. 184.
In March 2010, Melissa F. Jackson, Ph.D., a non-examining State agency
psychological consultant, reviewed the medical records and completed a psychiatric
review technique form (“PRTF”) and a mental RFC assessment. Tr. 192-205, 206-208.
In the PRTF, Dr. Jackson concluded that Plaintiff was subject to mild restrictions on her
activities of daily living and mild difficulties in maintaining concentration, persistence, or
pace, along with moderate difficulties in maintaining social functioning. Tr. 202. In her
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mental RFC assessment, however, Dr. Jackson opined that Plaintiff was not significantly
limited in understanding and memory, sustaining concentration and persistence, and
adaptation within the work environment. Tr. 206-207. Additionally, regarding social
interaction, Dr. Jackson opined that Plaintiff was no more than moderately limited in her
abilities to interact appropriately with the general public, accept instructions and respond
appropriately to criticism from supervisors, and get along with coworkers or peers
without distracting them or exhibiting behavioral extremes. Tr. 207. Dr. Jackson opined
that Plaintiff was not significantly limited in her ability to ask simple questions or request
assistance, maintain socially appropriate behavior, or to adhere to basic standards of
neatness and cleanliness. Tr. 207. Dr. Jackson also indicated that Plaintiff should have
infrequent contact with the general public and coworkers and should not be in intensive or
prolonged proximity with others. Tr. 208.
Later, in August 2010, Dr. Meghani completed a mental capacity evaluation form
at the request of Plaintiff’s counsel. Tr. 220-222. Dr. Meghani circled “marked” for the
estimated degree of impairment in 18 specific areas with the exception of one area (ability
to understand, remember and carry out simple instructions) for which Dr. Meghani did
not offer an opinion. Tr. 220-222. In September 2010, Dr. Meghani found that Plaintiff
exhibited normal behavior, full alertness, goal-directed thought processes, appropriate
affect, good memory and impulse control, and average judgment/insight despite circling
“marked” on the mental capacity evaluation form the previous month. Tr. 224.
In April 2011, Dr. Meghani assessed Plaintiff and found normal behavior and
normal psycho motor activity. Tr. 223. Dr. Meghani noted that Plaintiff was fully alert
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and had fair attention span, memory and impulse control; goal-directed thought processes
and a labile affect; and that she had made fair progress toward treatment goals. Tr. 223.
At the administrative hearing, Marshall testified that she had not worked at a job
since June 2009, that she quit her two previous jobs, and that she was unable to work
because she panics. Tr. 49-50. Marshall testified that instead of working, she would
“bounce around,” clean her house, and tend to her animals.
Marshall testified that she was currently in a custody battle for her two minor children
(ages six and nine) after losing custody in August 2010 because Marshall was living with
her mother while a sex offender was also living in the same home. Tr. 54-55.
At the conclusion of the administrative hearing, the ALJ asked Barry Murphy, an
impartial vocational expert, to assume a hypothetical individual of Marshall’s age,
education, work experience, and limitations determined by the ALJ to be characteristic of
Marshall, and determine what work was available for the hypothetical individual. Tr. 6364. Mr. Murphy testified that such an individual could not perform Marshall’s past work
as a short order cook, but could perform the work of representative jobs of janitor,
painter, and automobile detailer. Tr. 64-66.
After hearing Marshall’s testimony and reviewing the medical records, the ALJ
determined that Marshall has severe impairments, including mood disorder, bipolar
disorder, and ADHD, which cause more than minimal functional limitations and have
lasted at least twelve months. Tr. 32. However, the ALJ determined that Marshall does
not have an impairment or a combination of impairments that meets or medically equals
one of the Commissioner’s listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
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1 (20 C.F.R. 416.920(d), 416.925 and 416.926). Tr. 32. The ALJ expressly found the
[T]he claimant has the residual functioning capacity to perform a full range
of work at all exertional levels but with the following nonexertional
limitations: Due to medicinal side effects, the claimant should avoid all
moving machinery, exposure of unprotected heights, and driving
equipment. The claimant should also avoid all interactions with the general
public. Moreover, the claimant should be limited to simple, routine, and
repetitive tasks; with a low stress job, defined as having occasionally [sic]
decision making, changes in the work setting, and work judgment. Also,
the claimant would need to be isolated for most of the workday. Due to
panic or psychological factors, the claimant would have mild to moderate
deficits with persistence, pace, and concentration; which is defined as off
task for five percent of the work day.
Tr. 34. The ALJ found that Marshall is unable to perform any past relevant work. Tr. 37.
However, taking into consideration Marshall’s age, education, work experience, and
residual functioning capacity, the ALJ found that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. Tr. 37.
Marshall raises the following issues for judicial review:
(1) Whether the ALJ erred when formulating the RFC in giving more weight to
the opinion of a state agency physician and no weight to the opinion of the treating
(2) Whether the record was insufficient to make a determination regarding
disability such that the ALJ should have recontacted Plaintiff’s treating physician or
ordered a consultative examination.
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The ALJ did not err in giving more weight to the opinion of a state agency
physician and no weight to the opinion of the treating physician.
Pursuant to the Eleventh Circuit’s holding in Vuxta v. Comm’r of Soc. Sec., the
ALJ is required to explain the weight accorded to Dr. Jackson, a non-examining state
psychologist, because he did not give controlling weight to Dr. Meghani, Plaintiff’s
treating physician. 194 Fed. Appx. 874 (11th Cir. 2006). Plaintiff argues that the ALJ
failed to mention and did not explain the weight she gave to Dr. Jackson, and as a result,
remand is required in order for the ALJ to explain its consideration of its opinion. Id.; see
Doc. 10 at 5.
The court recognizes that the ALJ did not specify how much weight she accorded
to Dr. Jackson’s opinion; however, it is clear from review of her administrative decision
that she implicitly assigned more weight to Dr. Jackson’s opinion than to Dr. Meghani’s
opinion. Tr. 35-36 (“I accord no weight to the mental activity form [completed by Dr.
Meghani].”). Failure to explicitly delineate the extent to which an ALJ relies upon one
opinion over another does not in and of itself warrant reversal or remand. See Kemp v.
Astrue, 308 F. Appx. 423, 426 (11th Cir. 2009) (unpublished) (holding that an ALJ may
make implicit findings); Henry ex rel. Henry v. Barnhart, 156 Fed. Appx. 171 (11th Cir.
2005) (holding that the ALJ did not err in the weight he gave a doctor’s opinion despite
not explicitly stating what that weight was, noting that implicitly giving weight is
sufficient to survive review).
The opinion of an examining physician, such as Dr. Meghani, is generally entitled
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to more weight than the opinion of a non-examining physician, such as Dr. Jackson;
however, an ALJ is not absolutely required to accord substantial or considerable weight to
the examining physician if the evidence supports the non-examining physician’s opinion
and good cause is shown to the contrary of the examining physician’s opinion. See
Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (finding
that good cause exists to discount the weight of a treating physician’s opinion when it is
not bolstered by the evidence, evidence supported a contrary finding, or the treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records) (citing Philips, 357 F.3d at 1240-41; see also Syrock v. Heckler, 764 F.2d 834,
835 (11th Cir. 1985). Specifically, a treating physician’s opinion is entitled to controlling
weight only if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence.
Patterson, 983 F. Supp. at 1414 (citing 20 C.F.R. § 404.1527(e); see also Creech v. Apfel,
12 F. Supp.2d 1293, 1298 (M.D. Fla. 1998) (finding that the ALJ correctly noted that the
treating source’s medical findings were inconsistent with his own examination reports as
well as with other medical findings, which were based, in part, on objective testing). The
ALJ must provide the reasons why good cause exists to discount the weight of the
treating physician’s opinion; failure to do so constitutes reversible error. See Markell v.
Astrue, Case No. 8:06-cv-1720-T-TBM, 2007 WL 4482245 (M.D. Fla. Dec. 19, 2007)
(where the court agreed with the claimant that in assessing the claimant’s residual
functioning capacity, the ALJ erred in not expressly addressing the conclusions of a nontreating, examining doctor, noting the lack of any express statement by the ALJ as to why
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the doctor’s opinion was not adopted, saying that “pursuant to the regulations, the ALJ
was at least obliged to explain why he ignored this doctor’s opinion.”); Lewis, 125 F.3d at
1440. Here, the ALJ’s decision to discount the weight afforded to Dr. Meghani’s opinion
is supported by substantial evidence.
First, while Dr. Meghani completed a mental capacity evaluation in August 2010
that would, by itself, perhaps lend support to a finding of disability, virtually every report
of examination at Enterprise Behavior Health from Plaintiff’s initial October 2008
evaluation through April 2011, including Dr. Meghani’s own September 2010 and April
2011 assessments, reflect that Plaintiff exhibited a normal current mental status. Tr. 184.
Dr. Meghani noted that Plaintiff was fully alert, had fair to good attention span, and
exhibited goal-directed thought processes and appropriate affect, and normal behavior
and psycho motor activity. Tr. 184-191, 210-215, 216-219, 223-224. Dr. Meghani’s
August 2010 opinion is not only inconsistent with every other opinion presented in the
record, but is also inconsistent with her own previous and later opinions; such
inconsistency illustrates that Dr. Meghani’s opinions should not be afforded substantial
weight, if any, in disability proceedings. Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155 (11th Cir. 2004) (holding that the ALJ’s decision to discount a treating physician’s
opinion that the claimant was totally and permanently disabled was supported by
substantial evidence as this opinion was inconsistent with the physician’s treatment notes
in which he noted that the claimant was “improved” and “doing well” only three weeks
after concluding that the claimant was unable to work); see Fuller v. Massanari, Case No.
CIV. A. 00-0763-RV-M, 2001 WL 530425 at *3 (S.D. Ala. May 11, 2001) (where the
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court, in affirming the ALJ’s reliance on the opinion of a psychologist, who testified at
the hearing over the opinion of two psychiatrists and finding that the opinion of the two
psychiatrists was not supported by “other objective evidence of record,” noted that the
opinion of one psychiatrist was not consistent with his own observations). Dr. Meghani’s
opinion is contrary to the objective evidence in the record, and for that reason, the ALJ
was permitted to reject his opinion. See Wainwright v. Comm’r of Soc. Sec., No 0615638, 2007 WL 708971 (11th Cir. Mar. 9, 2007) (unpublished opinion) (holding that an
ALJ was entitled to reject the examining psychologist’s opinion because his “opinion was
contrary to the opinions and assessments of the other state agency psychologists who
found that Wainwright was only moderately limited in her ability to perform work-related
activities” and that “his opinion was not entitled to any special weight, particularly since
it was contrasted by the other medical evidence”); see also Davison v. Astrue, 370 Fed.
Appx. 995, 997 (11th Cir. 2010) (holding that the ALJ’s reliance on a non-examining
physician’s assessment was not error as it was generally consistent with that of the
Second, the ALJ determined that Dr. Meghani did not explain what evidence
supported his opinions on the check-the-box style form used in his August 2010
evaluation. In fact, as the ALJ found, the form, as well as Dr. Meghani’s own reports, did
not disclose any significant clinical or diagnostic findings that would support the
“marked” listings on the check-the-box form to support Plaintiff’s complaints of disabling
symptoms. Tr. 35. Dr. Meghani’s conclusory opinion did not include any supporting
medically acceptable clinical or laboratory diagnostic techniques. See Burgin v. Cmm’r,
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420 Fed. Appx. 901, 904 (11th Cir. 2011) (holding that a doctor’s checkmarks on a
questionnaire, with no supporting explanation, did not undermine substantial evidence
supporting the ALJ’s decision) (citing Lewis, 125 F.3d at 1440); Osborn v. Barnhart, 194
Fed. Appx. 654 (11th Cir. 2006) (holding that substantial evidence supported the ALJ’s
decision to give more weight to the state agency’s evaluation and given only minimal
weight to the opinion of the claimant’s treating physician because it was “nothing more
than a conclusory statement unaccompanied by objective medical evidence” and did not
indicate the limitations that the diagnoses placed on the claimant’s ability to work); Johns
v. Bowen, 821 F.2d 551, 555 (11th Cir. 1987) (holding that a brief and conclusory
statement that is not supported by medical findings is not persuasive evidence of
disability); Daughtry v. Barnhart, 347 F. Supp.2d 1135, 1140 (M.D. Ala. 2004) (holding
that the ALJ’s reasons for rejecting the opinion of the claimant’s treating physician met
the “good cause” requirement as the record was devoid of clinical findings which
supported the conclusion that the claimant suffered from fibromyalgia).
Based on the foregoing, the court concludes that the ALJ’s decision to discount Dr.
Meghani’s August 2010 opinion is supported by substantial evidence. Consequently,
Marshall is entitled to no relief on this basis.
The record was sufficient to make a determination regarding disability and
the ALJ was not required to recontact Plaintiff’s treating physician or order a
The United States Supreme Court stated in Sims v. Apfel, 530 U.S. 103, 103-104
(2000) (citing Richardson, 402 U.S. at 400-01), that “Social Security proceedings . . . are
inquisitorial rather than adversarial” and that the ALJ has the duty “to investigate the facts
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and develop the arguments both for and against granting benefits.” Thus, the ALJ is
charged with developing a full and fair record. Todd v. Heckler, 736 F.2d 641, 642 (11th
Cir. 1984). This obligation to fully and fairly develop the record is a basic duty of the
ALJ. Welch v. Bowen, 854 F.2d 436, 438 (11th Cir. 1988); Nelms v. Bowen, 803 F.2d
1164, 1165 (11th Cir. 1986); Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir. 1982);
Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981).
Commissioner has a duty to develop the record if existing evidence, both medical and
non-medical, is inadequate to make a disability determination or is insufficient to support
a decision on a claim; this can be achieved by recontacting the plaintiff’s treating
physician. See 20 C.F.R. § 416.912(e) (2011) (“Recontacting medical sources. When the
evidence we receive from your treating physician or psychologist or other medical source
is inadequate for us to determine whether you are disabled, we will need additional
information to reach a determination or a decision.”); Reeves v. Heckler, 734 F.2d 519,
522 n. 1 (11th Cir. 1984) (citing Ford v. Secretary of Health and Human Servs., 659 F.2d
66, 69 (5th Cir. 1981) (Unit B). An ALJ can also order a consultative examination,
though this is not required. See C.F.R. § 416.919a(2)(b) (2011); see also Holladay v.
Bowen, 848 F.2d 1206, 1210 (11th Cir. 1988) (recognizing that an ALJ has the discretion
not to order a consultative examination).
Plaintiff asserts that the statements and facts relied upon by Dr. Jackson in making
her determination were no longer true by the time of the hearing, which creates an
inconsistency between Dr. Jackson’s determination, which she made without having the
opportunity to review any psychiatric records after January 13, 2010 (Tr. 192-209) and
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Dr. Meghani’s August 2010 opinion (Tr. 220-222). See Doc. 10 at 7. As a result,
Plaintiff asserts, the ALJ’s decision was based on an insufficient record which prevented
her from making an informed decision regarding disability, which in turn created the duty
to fully and fairly develop the record either by recontacting Dr. Meghani or by referring
Plaintiff to a consultative examination. See Doc. 10 at 7-8.
However, the record before the ALJ was fully and fairly developed, which
precludes any need to recontact a treating physician or order a consultative exam. Osborn
v. Barnhart, 194 Fed. Appx. 654, 668-69 (11th Cir. 2006) (where the court found that the
ALJ did not have to recontact the treating physician because there was no need for
additional information or clarification – substantial evidence supported the ALJ’s
determination that the claimant was not disabled). As more clearly discussed above, Dr.
Meghani’s August 2010 opinion was properly discounted and not afforded any significant
weight. Tr. 35-36. Additionally, the medical records from Enterprise Behavior Health
between Plaintiff’s initial October 2008 evaluation and April 2011, including Dr.
Meghani’s September 2011 and April 2011 assessments, consistently show that Plaintiff
exhibited a normal current mental status and that she was fully alert, had fair to good
attention span, and exhibited goal-directed thought processes and appropriate affect, and
normal behavior and psycho motor activity. Tr. 184-191, 210-215, 216-219, 223-224.
Further, Dr. Meghani’s August 2010 opinion does not include any supporting clinical or
diagnostic reasoning. Tr. 220-222. Based on the medical records, most notably in the
form of opinions by other physicians and Dr. Meghani himself, this Court concludes that
the ALJ’s decision is supported by substantial evidence.
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Furthermore, Plaintiff appears to confuse the lack of record support for an opinion
with a lack of clarity in the opinion that might require recontacting a treating physician or
ordering a consultative exam.
The record, including Dr. Meghani’s August 2010
assessment, is not so ambiguous as to warrant further development by the ALJ. The
entire record, including Dr. Meghani’s August 2010 assessment, clearly provides the ALJ
with the necessary information to determine Plaintiff’s impairments, residual functioning
capacity, ability to work, and ultimately, whether Plaintiff is disabled. See Robinson v.
Astrue, 365 F. Appx. 993, 999 (11th Cir. 2010) (where an ALJ did not err by not
requesting an additional consultative examination or by failing to recontact treating or
examining physicians where the ALJ had all of the information necessary to properly
determine the plaintiff’s impairments, residual functional capacity, and ability to work);
compare 20 C.F.R. § 416.912(e)(1) (2011) (“We will seek additional evidence or
clarification from your medical source when the report does not contain all the necessary
information, or does not appear to be based on medically acceptable clinical and
laboratory techniques) with § 416.927 (addressing factors to be considered when
weighing opinion evidence, including consistency and supportability of the opinion).
This court concludes that the evidence as it stands is not so ambiguous as to
require the ALJ to recontact the examining physician or order a consultative examination.
The ALJ’s finding that Plaintiff is not disabled is supported by substantial evidence,
illustrated by the consistent findings of multiple physicians, including Dr. Meghani.
Pursuant to the findings and conclusions detailed in this Memorandum Opinion,
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the Court concludes that the ALJ’s non-disability determination is supported by
substantial evidence and proper application of the law. It is, therefore, ORDERED that
the decision of the Commissioner is AFFIRMED. A separate judgment is entered
DONE this 18th day of February, 2014.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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