Pritchett v. Astrue (CONSENT)

Filing 22

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 3/9/2009. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION A R O N IA CONWAY PRITCHETT, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:08cv30-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P lain tiff Aronia Conway Pritchett applied for supplemental security income benefits p u rs u a n t to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (hereinafter "the A c t" ). Her application was denied at the initial administrative level. Plaintiff then requested a n d received a hearing before an Administrative Law Judge (ALJ). Following the hearing, th e ALJ also denied the claims. The Appeals Council rejected a subsequent request for re v ie w . The ALJ's decision consequently became the final decision of the Commissioner o f Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1 9 8 6 ). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 2 8 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry

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.

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o f a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Ju risd iction (Doc. #10); Def.'s Consent to Jurisdiction (Doc. #9). Based on the Court's re v ie w of the record and the briefs of the parties, the Court AFFIRMS the decision of the C o m m i s s io n e r . II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (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 im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (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? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not 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
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d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience.
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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).
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See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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III.

ADMINISTRATIVE PROCEEDINGS P lain tiff was fifty-one years old and had obtained her G.E.D. as well as some post-

sec o n d ary education at the time of the hearing before the ALJ. (Tr. 195).5 Plaintiff's primary p a s t relevant work experience included working as a nurse's aid, cashier checker, home a tte n d a n t, substitute teacher, and deli cook. (Tr. 211). Following the administrative hearing, a n d employing the five-step process, the ALJ found Plaintiff had not engaged in substantial g a in f u l activity since the alleged onset date of August 5, 2005 (Step 1). (Tr. 15). At Step 2, th e ALJ found that Plaintiff suffers from the severe impairment of "major depressive d is o rd e r." (Tr. 15). The ALJ nonetheless found Plaintiff "does not possess an impairment o r combination of impairments that meets or medically equals one of the listed impairments." (T r. 18). Next, the ALJ found that Plaintiff retains the RFC to "perform basic work activities a t all exertional levels," but that, "due to depressive features, she is limited to less than f re q u e n t changes in a routine work setting." (Tr. 19). Specifically, the ALJ found that P la in tif f "has no limitations in her ability to walk, stand, sit, lift, carry, push/pull, reach, see, h e a r, and communicate." (Tr. 19) (Step 3). At Step 4, the ALJ found that Plaintiff could p e rf o rm her past relevant work, namely "the jobs of sitter or nursing assistant." (Tr. 22). At S tep 5, and after obtaining the testimony of a vocational expert, the ALJ determined that, b a se d on her age, education, past work experience, and RFC, Plaintiff could perform jobs

Specifically, Plaintiff testified that she had received a "business degree in business education" after completing an eighteen-month course. (Tr. 195). 5

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th a t exist in significant numbers in the national economy. (Tr. 22). Consequently, the ALJ f o u n d Plaintiff had not been disabled since the alleged onset date. IV. P L A I N T I F F 'S CLAIMS P la in tif f sets forth three claims in challenging the Commissioner's decision: (1) that " th e ALJ failed to evaluate the medical opinions expressed by Ms. Pritchett's treating p h ys i c ia n under the proper legal standard"; (2) that "the ALJ improperly dismissed the lim ita tio n s imposed by Ms. Pritchett's dyshydrosis of the hands and feet and internal h e m o rrh o id s" ; and (3) that "the ALJ failed to provide adequate reasons for his implicit re je c tio n of the medical opinions expressed by the non-examining State agency medical c o n s u lta n t ." Pl.'s Brief in Support of Complaint (Doc. #13) at 11. The Court will address e a c h of Plaintiff's clams in turn. V. DISCUSSION A. T h e ALJ's evaluation of the medical opinion of Plaintiff's treating p sy c h ia trist.

P la in tif f contends the ALJ failed to evaluate the medical opinions expressed by Ms. Pritchett's tre a tin g psychiatrist [Dr. Fernando Lopez] under the proper legal standard. M s . Pritchett's treating psychiatrist assessed the functional restrictions im p o s e d by her Major Depressive Disorder with Psychotic Features. As ev id en ce d by vocational expert testimony, the limitations assessed by Dr. L o p e z would prevent the performance of substantial gainful activity. P l.'s Brief in Support of Complaint (Doc. #13) at 11. Plaintiff argues that the ALJ's rejection 6

o f Dr. Lopez's opinion is problematic because 1) part of the ALJ's reasoning for rejecting D r. Lopez's opinion, that the relevant time period is ambiguous, triggered the ALJ's re sp o n s ib ility to further develop the record and 2) the ALJ's finding that Dr. Lopez's opinion is not supported by medical evidence is erroneous. Defendant, on the other hand, maintains that "good cause" supported the ALJ's determination to discount Dr. Lopez's opinion. Def.'s B rie f in Support of the Commissioner's Decision (Doc. #16) at 4. In an undated questionnaire supposedly created as part of a larger "narrative report," D r. Lopez, characterized Plaintiff's "psychiatric/psychological impairment" as "marked" or " e x tre m e " with respect to a number of common workplace, indeed daily living, scenarios and stresso rs. (Tr. 170-72).6 The questionnaire indicates that the impairments noted by Dr.

L o p e z result in limitations that "can be expected to last 12 months or longer" at the given le v e ls of severity. (Tr. 171). In the comments section, Dr. Lopez simply states "Major D e p re ss iv e Disorder with Psychotic Features." (Tr. 172). At the hearing before the ALJ, the v o c a tio n a l expert testified that, crediting Dr. Lopez's assessment of Plaintiff's mental lim ita tio n s as accurate, Plaintiff would not be capable of working. (Tr. 213). In his opinion, the ALJ addressed the questionnaire as follows:

At the hearing, the ALJ expressed his concern that, due to an illegible signature and lack of date, he might not be able to rely upon the questionnaire. (Tr. 213). After the hearing, the ALJ added to the record a letter from Jane Lambert, a nurse for Dr. Lopez, in which she confirmed that Dr. Lopez had signed and completed the questionnaire. (Tr. 177). The letter from Ms. Lambert does not indicate when Dr. Lopez completed the questionnaire or to what time period it is relevant. 7

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T h e undersigned Administrative Law Judge has considered the opinion of Dr. L o p e z that the claimant experiences multiple "marked" and "extreme" lim itatio n s in her functional capacity caused by major depressive disorder with p syc h o tic features. The opinion is rejected and afforded no weight[,] first, b e c au s e it is undated and does not indicate the time period during which the a ss e s sm e n t applies and because it is neither a reasoned nor documented o p in io n accompanied by acceptable medical evidence consisting of symptoms, sign s, laboratory findings (including psychological test findings). (T r. 18). The ALJ went on to find that, contrary to the opinion of Dr. Lopez, the record lac k e d substantial evidence that Plaintiff's mental impairments 1) "caused serious difficulty p e rf o rm in g activities of daily living," 2) "caused impaired social functioning," 3) "caused m a jo r limitations [to Plaintiff's] ability to sustain focused attention and concentration s u f f ic ie n tly long to permit the timely and appropriate completion of tasks commonly found in work settings," or 4) "caused episodes of decompensation." (Tr. 18). When confronted with the opinion of a claimant's treating physician, the ALJ must a f f o rd it substantial and considerable weight unless "good cause" is shown to the contrary. C r a w fo r d v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). See also Bliss v. C o m m 'r of Soc. Sec., 254 Fed. App'x 757, 758 (11th Cir. 2007) ("An ALJ may reject the o p in io n of a treating physician, which ordinarily receives substantial weight, where `good c a u se ' is established."). "`[G]ood cause' exists when the: (1) treating physician's opinion w a s not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating p h ys ic ia n 's opinion was conclusory or inconsistent with the doctor's own medical records." P h i llip s v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). "The ALJ must clearly

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a r t ic u l ate the reasons for giving less weight to the opinion of a treating physician, and the f a ilu re to do so is reversible error." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1 9 9 7 ). See also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (holding the A L J "must specify what weight is given to a treating physician's opinion and any reason for g iv in g it no weight"). "Where the ALJ articulated specific reasons for failing to give the o p i n i o n of a treating physician controlling weight, and those reasons are supported by s u b s ta n tia l evidence," a reviewing court may not "disturb the ALJ's refusal to give the o p in io n controlling weight." Carson v. Comm'r of Soc. Sec., 2008 WL 4962696 at *1 (11th C ir. Nov. 21, 2008). In this instance, the ALJ rejected the opinion of Plaintiff's treating psychiatrist b e c au s e , in the ALJ's view, 1) the lack of a date or other indication of the temporal relevance o f Dr. Lopez's opinion rendered the opinion of little value in assessing Plaintiff's im p a irm e n ts and, more importantly, 2) the ALJ found the opinion was "neither a reasoned n o r documented opinion accompanied by acceptable medical evidence consisting of s ym p to m s , signs, and laboratory findings." (Tr. 18). The ALJ's decision is supported by the req u isite substantial evidence. For the most part, the drastic impairments to Plaintiff's f u n c tio n a l capacities "estimated" by Dr. Lopez bear little relation to the objective evidence i n the record, the treatment notes from Dr. Lopez and others associated with East Central M e n tal Health, and, in some instances, Plaintiff's own testimony. Indeed, due to the fairly u n if o rm severe impairment findings of Dr. Lopez and the lack of any elaboration on such

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f in d in g s , the ALJ was justified in considering Dr. Lopez's opinion "neither . . . reasoned or d o c u m e n te d " and, thus, conclusory. Good cause supports the ALJ's rejection of a treating p h ys ic ia n ' s opinion which is conclusory and unsupported by the physician's own records. P h illip s , 357 F.3d at 1241. P la in tif f claims that objective support for Dr. Lopez's opinion can be found in "the o b jectiv e mental status examination from East Central Mental Health, . . . Dr. O'Hearn's d iag n o stic impression of severe depression . . . and by the medications [Dr. Lopez] chose to a d m i n i s te r " to Plaintiff. Pl.'s Brief in Support of the Complaint (Doc. #13) at 13-14. H o w e v e r a review of the records cited by Plaintiff does not permit the conclusion that the A L J 's finding to the contrary is unsupported by substantial evidence. The only conclusion to be drawn from Dr. Lopez's responses to the questionnaire is that, in all aspects of f u n c tio n in g , Plaintiff is "marked[ly]" 7 or "extreme[ly]" 8 impaired. Other than the question lef t blank 9 by Dr. Lopez, he failed to find any of Plaintiff's functional abilities only

The questionnaire defines "marked" as an "impairment which seriously affects ability to function." (Tr. 170). The questionnaire circuitously defines "extreme" as "[e]xtreme impairment of ability to function." (Tr. 170). For some reason, Dr. Lopez gave no answer to the request that he "[e]stimate[] the degree of impairment of the claimant's ability to get along with co-workers or peers." (Tr. 170). This, of course, is an important query in assessing Plaintiff's ability to function in an employment capacity. 10
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"m ild [ly]" 1 0 or even "moderate[ly]" 1 1 impaired. Given the definitions given to guide Dr. L o p e z 's responses to the questionnaire, it appears that an impairment greater than "moderate" p re c lu d e s functioning of the type identified in the question. Accordingly, Dr. Lopez e ss e n tia lly deemed Plaintiff impaired, to a preclusive degree, in all functional aspects. The re c o rd evidence, however, does not support this conclusion. Plaintiff's mood is reported as euthymic, meaning essentially normal or appropriate, s h e does not exhibit "psychotic symptoms," or there are no "problems" or "complaints" noted o n many occasions in the record. (Tr. 159, 154, 153, 152, 150). More importantly, certain m e d ica l records, including some from Dr. Lopez's own facility, appear to conflict, in discrete in s ta n c es , with his opinion about the severity of Plaintiff's impairments. For instance, in a " M e n ta l Status Exam" completed at East Central Mental Health on August 30, 2005, P lain tiff 's concentration is deemed "Normal and Focused," her thought and speech pattern are coherent, rational, and logical, her insight is adequate, and her judgment is average. (Tr. 1 6 5 ) . Likewise, at Dr. O'Hearn's consultative psychological examination in November, 2 0 0 5 , Plaintiff was fully oriented, her attention and concentration were intact, and she was a b le to perform mental exercises testing her concentration and focus. (Tr. 122). In another " M e n t a l Status Exam" completed by East Central Mental Health in September, 2006,

The questionnaire defines "mild" as "[s]uspected impairment of slight importance which does not affect ability to function." (Tr. 170). The questionnaire defines "moderate" as an "impairment which affects but does not preclude ability to function." 11
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P la in tif f 's concentration was again deemed normal and focused, her orientation normal, her in sig h t adequate, and her judgment average.1 2 (Tr. 146). All of these findings appear to o p e n ly conflict with Dr. Lopez's opinion that Plaintiff is essentially precluded from, inter a lia , being able to "ask simple questions or request assistance," "understand, remember and c a rr y out simple instructions," "understand, remember and carry out repetitive tasks," " m a in ta in attention and concentration for extended periods," or "make simple work-related d e c isio n s." (Tr. 170-71). In addition, Plaintiff's own testimony and reports that she regularly a tten d s church (Tr. 202), maintains friendships (Tr. 208), lives by herself (Tr. 207), and is a b le to perform most of her daily living activities - like cooking, cleaning, shopping, g roo m ing and hygiene - unassisted (Tr. 83-84, 123, 207-08) appear to undermine Dr. Lopez's u ltim a te conclusion that Plaintiff is essentially precluded from being able to "interact a p p ro p ria te ly with the general public," perform "daily activities, e.g., ability to attend m e e tin g s (church, school, lodge, etc.) work around the house, socialize with friends and n e i g h b o r s, etc.," or that her "interests" are extremely constricted and her "personal habits" a re extremely deteriorated. (Tr. 170). Plaintiff's claim that Dr. Lopez's opinion is supported by Dr. O'Hearn's diagnosis of " M a jo r Depressive Disorder, Severe with Psychotic Features" (Tr. 123) and the fact that

Indeed, the results of the second "Mental Status Exam," taken more than a year after the first one at East Central Health, indicates that Plaintiff's condition was improving. Plaintiff's appetite, sleeping, and mood were all graded better during the later "Mental Status Exam." (Tr. 146). 12

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P la in tif f was prescribed certain drugs is also unavailing. Dr. Lopez's opinion related to the f u n c tio n a l capacities of Plaintiff, an issue within the purview of the ALJ. The facts that she h a s been independently diagnosed as depressed and that she has been prescribed certain m e d ic a tio n s are not conclusive of her functional capacities. In sum, there is ample evidence in the record - both medical and testimonial - to support the ALJ's finding that Dr. Lopez's d r a s tic and sweeping opinion is not "bolstered by the evidence," that the "evidence support[s] a contrary finding," and that Dr. Lopez's opinion is "conclusory or inconsistent with the d o c to r's own medical records." Phillips, 357 F.3d at 1240-41. W h ile there is also evidence in the record - including evidence of Plaintiff's often d ep resse d mood, lethargy, anxieties, hallucinations, and insomnia - that might support Dr. L o p e z 's opinion that Plaintiff's impairments are "marked" or "extreme" in certain functional asp ec ts, this Court's inquiry is not whether the evidence preponderates one way or the other. T h is Court must simply determine whether "substantial evidence," i.e., "less than a p rep o n d era n ce , but more than a scintilla," supports the ALJ's determination that Dr. Lopez's o p i n i o n is "neither . . . reasoned nor documented." As demonstrated above, the ALJ's f in d in g is supported by substantial evidence.13 T h e ALJ clearly enunciated his reasons for rejecting the opinion of Plaintiff's treating

This finding obviates the need for the Court to consider Plaintiff's related argument that, due to the ALJ's reliance on the lack of a date or other indication of temporal relevance of the questionnaire, the ALJ was required to further develop the record to resolve this ambiguity. Because the ALJ was justified in affording the questionnaire no weight based on the evidence in the record, the questionnaire's lack of date is irrelevant. 13

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p s yc h ia tris t and those reasons are supported by substantial evidence. Thus, the ALJ had " g o o d cause" for rejecting the treating psychiatrist's opinion. Plaintiff's argument to the c o n tra ry is without merit. B. T h e ALJ's treatment of evidence of the limitations imposed by Plaintiff's d y s h y d r o s is of the hands and feet and internal hemorrhoids.

P la in tif f contends the ALJ inappropriately acted as both judge and physician when he summarily d is m is s e d [Plaintiff's] symptomatology related to her dsyhydrosis of the hands a n d feet and internal hemorrhoids. Specifically, the ALJ implied in his d e c is io n that the examination of Dr. King in some way undermined [P la in tiff 's] allegations. The ALJ's opinion even failed to mention Dr. King's o p in io n that when [Plaintiff's] hands and feet were broken out in a rash, "it w o u ld be quite painful and very difficult to work under those circumstances." P l.'s Brief in Support of Complaint (Doc. #13) at 14-15 (internal citations omitted).1 4 D e f en d a n t maintains that the ALJ did properly consider these impairments, but that he n o n e th e le ss found they are not severe, and that decision is supported by substantial evidence. D e f .'s Brief in Support of the Commissioner's Dec. (Doc. #16) at 8-9. A t the hearing before the ALJ, Plaintiff testified that she suffers from a "chronic ra sh " 1 5 which periodically affects her hands and feet and has previously been so debilitating

Despite his assertion that the ALJ erred in his treatment of evidence of Plaintiff's internal hemorrhoids, Plaintiff presents no specific argument related to the ALJ's findings respecting her hemorrhoids. Instead, Plaintiff only discusses evidence, and the ALJ's findings, concerning her skin condition.
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Plaintiff also refers to the condition as a "chronic psoriasis." (Tr. 198). 14

th a t she could not walk and was forced to crawl because "every time I put my feet on the f lo o r skin would come off." (Tr. 197). She testified that the blisters caused by the condition "n ev er goes away" (Tr. 197), but that there are times when it worse than others. (Tr. 199). P lain tiff testified that she treats the condition with a topical cream or lotion. (Tr. 198). In h is decision, the ALJ found that Plaintiff's skin condition does not amount to a severe im p a irm e n t. In support, the ALJ relied upon the paucity in the record of evidence that P lain tiff sought medical treatment for the condition after the alleged onset date, the report o f the consultative medical examiner, Dr. King, and that there is only one mention of s ym p to m s possibly related to the condition in the counseling notes from Plaintiff's thirteen m o n th relationship with East Central Mental Health. (Tr. 17). The crux of the parties' arguments on this issue appears to be whether or not the re su lts of the consultative exam performed by Dr. King lend substantial evidence to the A L J 's finding that Plaintiff's skin condition is not a severe impairment. Both parties rely on p o rtio n s of the report in advancing their positions. Compare Pl.'s Brief in Support of the C o m p la in t (Doc. #13) at 15 and Pl.'s Reply Brief (Doc. #21) at 7-8 with Def.'s Brief in S u p p o r t of the Commissioner's Dec. (Doc. #16) at 9. Dr. King examined Plaintiff on N o v e m b e r 15, 2005.1 6 Dr. King first notes Plaintiff's subjective complaints about the c o n d i ti o n and its symptoms, as well as her reports of that she has previously visited

According to her testimony, by this time Plaintiff had been afflicted with the skin condition for ten years. (Tr. 197). 15

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"n u m ero u s family practitioners and . . . a dermatologist" about the condition.1 7 (Tr. 124). D r . King's report assessed the condition of Plaintiff's skin as follows: S h o w s what looks like a dyshidrosis of her palms and her feet very mild in n a tu re at this time. The hands are almost completely normal. Although I can s e e where there has been some peeling of the skin. Lower extremities the feet s h o w some skin break down and healing. As mentioned already with no blister f o rm a tio n at this time, but evidence of prior blister formation with some p e e lin g of the epithilium. There is not skin break down at this time and no b r e a k down past the dermis. (T r. 126). Dr. King next gave his "Impression" of the skin condition as "DYSHYDROSIS O F THE HANDS AND FEET MOST LIKELY SECONDARY TO ECZEMA THAT ARE Q U IT E SEVERE IN NATURE AT TIMES, ALTHOUGH NOT PRESENTLY." (Tr. 126). D r. King then gave his opinion of Plaintiff's functional capacities in light of her asserted im p a irm e n ts: Based on these medical findings despite the above mentioned impairments, her a b ility to do work related activity such as sitting is not impaired. Standing, w a lk in g , lifting, carrying, handling objects, hearing and speaking and tra v e llin g [sic] are not impaired at this time. However if her feet are broken o u t and her hands are broken out with rash as she described, it would be quite p a i n f u l and very difficult to work under those circumstances. (T r. 126). A simple reading of Dr. King's report reveals that, while there were indications of p re v io u s peeling and blistering on Plaintiff's hands and feet, they were essentially normal and

It does not appear that records of these visits or any treatments rendered are c o n ta in e d in the record. 16

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h ea led at the time of the examination. Dr. King's assessment certainly undercuts Plaintiff's tes tim o n y about the severity and near-ubiquity of her condition. More importantly, his o p in io n that the condition, as presented to him, causes no impairment to Plaintiff's ability to d o "work related activity" was entitled to great deference. To the extent Dr. King considered th e condition symptomatic, "as described," and then surmised it "would be quite painful and v e ry difficult to work," Dr. King was only crediting Plaintiff's subjective description of the co n d ition , not rendering an opinion based on the objective evidence before him. Because Dr. K in g ' s observations appear to conflict with Plaintiff's testimony at the hearing, and because th e ALJ found Plaintiff generally less than wholly credible (Tr. 15), the ALJ was justified in not relying upon portions of Dr. King's opinion which constituted speculation based e n tir e ly on Plaintiff's subjective reports of her symptoms. Given Dr. King's findings as to the severity of Plaintiff's condition at the time of e x a m in a tio n and the lack of other objective medical evidence in the record pertaining to P lain tiff 's skin condition, the ALJ's finding that Plaintiff's skin condition is not a severe im p a irm e n t is supported by substantial evidence. Plaintiff's argument to the contrary is w ith o u t merit. C. T h e ALJ's treatment of the opinion expressed by the non-examining state a g e n c y medical consultant.

P lain tiff contends "the ALJ failed to provide adequate reasons for his implicit re je c tio n of the medical opinions expressed by the non-examining State agency medical

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c o n s u l ta n t [and] . . . failed to incorporate the specific limitations as assessed by the none x a m in in g State agency medical consultant into his RFC finding or provide rationale th e re to ." Pl.'s Brief in Support of the Complaint (Doc. #13) at 15. Plaintiff also contends that the ALJ acted in violation of Social Security regulations in reaching his decision. In s u p p o rt of the latter contention, Plaintiff argues that the ALJ acted in violation of SSR 96-6p, w h ic h provides that, while the ALJ is not "bound by findings made by State agency or other p r o g r a m physicians and psychologists, . . . they may not ignore these opinions and must e x p la in the weight given to the opinions in their decisions." Pl.'s Reply Brief (Doc. #21) at 9 . Defendant maintains that the ALJ's findings are supported by substantial evidence. A p p lyin g the "special technique" for evaluating mental impairments as set forth in 20 C .F .R . § 416.920a, the ALJ assessed Plaintiff's functional limitations as follows: "moderate r e str ic tio n of activities of daily living because of disturbed sleep and depressive symptoms; m ild difficulties maintaining social functioning; mild difficulties maintaining concentration, p e r s is te n c e or pace; and . . . no repeated episodes of decompensation." (Tr. 18). These f in d in g s differ slightly from those of the State agency psychological consultant, who, in c o m p le tin g the Psychiatric Review Technique, found that Plaintiff has "mild" restriction of d aily living activities but "moderate" difficulties maintaining social functioning. (Tr. 141).1 8 P la in tif f contends this discrepancy in the ALJ's findings constitutes reversible error.

With respect to Plaintiff's difficulties in maintaining concentration, persistence, or pace and episodes of decompensation, the ALJ's findings are identical to those of the State agency consultant. Compare Tr. 18 with Tr. 141. 18

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P la in tif f deems the fact that the ALJ found Plaintiff's difficulties in maintaining social f u n c tio n in g "mild" rather than "moderate" "highly prejudicial considering the none x a m in in g consultant expressed that Ms. Pritchett's `working environment should limit c o n tin u o u s and prolonged contact with others . . . .'" Pl.'s Reply Brief (Doc. 321) at 9. H o w e v e r, the same consultant, Dr. Susan Kotler, also found no significant limitations to P lain tiff 's ability to ask simple questions or request assistance and her ability to maintain so cially appropriate behavior and adhere to basic standards of neatness and cleanliness. (Tr. 1 2 8 ). Dr. Kotler's ultimate assessment of Plaintiff's functional capacity was that Plaintiff h a s no significant limitations and that she "is able to interact appropriately in brief, casual e n c o u n te rs with the public and with co-workers, and to respond appropriately to simplye x p la in e d , constructive, supportive, and nonconfrontational feedback." (Tr. 129). In light o f Dr. Kotler's qualification of her "moderate" assessment of Plaintiff's social functioning im p a irm e n t, as well as other evidence about Plaintiff's social functioning - including her c h u rc h attendance, shopping, maintaining friendships, etc., and the lack of evidence in the re c o rd of "a history of altercations, evictions, firings, fear of strangers, avoidance of in ter p e rso n a l relationships, social isolation, inability to get along with others, highly an tago n istic, hostile, or uncooperative behavior" (Tr. 18) - the ALJ's finding that Plaintiff's s o c ia l functioning is only mildly impaired is supported by substantial evidence. Plaintiff has not demonstrated that the ALJ's finding of a "mild" rather than " m o d e r a te " difficulty in maintaining social functioning is a difference of any significance.

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It does not follow that, had the ALJ found Plaintiff's impairment "moderate" rather than " m i ld ," he would have revised her RFC in a manner benefitting Plaintiff. Moreover, the s lig h t variation in seriousness entailed by the two terms certainly does not permit the c o n c lu s io n , indulged by Plaintiff, that the ALJ ignored, or even rejected, the State agency c o n su lta n t's opinion. In essence, the ALJ agreed with Dr. Kotler with respect to two of her f u n c t io n a l limitation findings and disagreed as to two others. While the ALJ did find P lain tiff 's social functioning difficulties less limited than did Dr. Kotler, he found Plaintiff's re stric tio n s on activities of daily living to be even more limited than did Dr. Kotler. In any e v e n t, the ALJ carefully scrutinized the record and relied upon all of the evidence before him in making his findings. The decision to slightly vary from the State agency medical c o n s u lta n t's findings does not, alone, warrant reversal. See Sryock v. Heckler, 764 F.2d 834, 8 3 5 (11th Cir. 1985) ("The ALJ is free to reject the opinion of any physician when the ev iden ce supports a contrary conclusion."). V I. CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 9th day of March, 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 20