Marlow v. Astrue

Filing 19

MEMORANDUM OF OPINION; Upon its review of the record as a whole, the court concludes that the decision of the Commissioner is supported by substantial evidence and proper application of the law. Accordingly, the decision is due to be affirmed. A separate judgment will be entered. Signed by Honorable Susan Russ Walker on 4/30/2010. (jg, )

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 J O Y C E E. MARLOW, P la in tif f , v. M IC H A E L J. ASTRUE, Commissioner o f Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 2:08-cv-233-SRW (W O )

M E M O R A N D U M OF OPINION P la in tif f Joyce Marlow brings this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social Security (" C o m m is s io n e r" ) denying her application for disability insurance benefits and supplemental s e c u rity income under the Social Security Act. The parties have consented to entry of final ju d g m e n t by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Upon review of the record a n d briefs submitted by the parties, the court concludes that the decision of the Commissioner is due to be affirmed. BACKGROUND O n March 16, 2005, plaintiff filed an application for disability insurance benefits and S u p p le m e n ta l Security Income. On December 20, 2006, after the claim was denied at the in itia l administrative levels, an ALJ conducted an administrative hearing. The ALJ rendered a decision on July 28, 2007. The ALJ concluded that plaintiff suffered from the severe

impairments of "hypertension, insulin dependent diabetes mellitus, history of congestive h e a rt failure, non-cardiac chest pain, uterine fibroids with pelvic pain and major depression, re c u rre n t, moderate severity." (R. 16). He found that plaintiff's impairments, considered in c o m b in a tio n , did not meet or equal the severity of any of the impairments in the "listings" a n d , further, that plaintiff retained the residual functional capacity to perform her past re l e v a n t work. Thus, the ALJ concluded that the plaintiff was not disabled within the m e a n in g of the Social Security Act. On January 25, 2008, the Appeals Council denied p la in tif f 's request for review and, accordingly, the decision of the ALJ became the final d e c is io n of the Commissioner. STANDARD OF REVIEW T h e court's review of the Commissioner's decision is narrowly circumscribed. The c o u rt does not reweigh the evidence or substitute its judgment for that of the Commissioner. Rather, the court examines the administrative decision and scrutinizes the record as a whole to determine whether substantial evidence supports the ALJ's factual findings. Davis v. S h a la la , 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (1 1 th Cir. 1991). Substantial evidence consists of such "relevant evidence as a reasonable p e rs o n would accept as adequate to support a conclusion." Cornelius, 936 F.2d at 1145. Factual findings that are supported by substantial evidence must be upheld by the court. The A L J 's legal conclusions, however, are reviewed de novo because no presumption of validity a tta c h e s to the ALJ's determination of the proper legal standards to be applied. Davis, 985

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F.2d at 531. If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis h a s been conducted, the ALJ's decision must be reversed. Cornelius, 936 F.2d at 1145-46. D IS C U SS IO N P la in tif f alleges disability due to uncontrolled blood pressure; high levels of glucose, w h ic h causes infections; and a fibroid tumor that causes back pain. (R. 86). In a disability re p o rt filed in October 2006, the plaintiff stated that she suffered from new injuries, illnesses, a n d conditions, including a growing fibroid tumor and an abnormal liver. (R. 146). She s ta te d further that her diabetes is growing worse and causes her vision problems; she feels s i c k all the time, is tired, has chest pains, and suffers from shortness of breath. (R. Id.). Plaintiff's alleged onset of disability is January 7, 2005. (R. 96). O n March 2, 2005, plaintiff presented to the Baptist Health South Emergency Room, c o m p la in in g of flu-like symptoms. A CT scan was performed on plaintiff's abdomen and p e lv is, and it was noted that plaintiff has an "extremely large . . . lobulated appearance of the u te ru s likely representing multiple uterine leiomyomata." The diagnostic impression c o n s is te d of bronchitis and a uterine fibroid. (Exhibit 1). Plaintiff followed up with Dr. Jefferson Underwood, III on March 9, complaining of m ild shortness of breath and a dry cough. Plaintiff explained to Dr. Underwood that she was d ia b e tic and she quit taking her blood pressure medication about three years previously; but s h e stated "she has been doing fine since that time." Dr. Underwood assessed diabetes m ellitus, type 2, poorly controlled; hypertensive cardiovascular disease; status post C-section; 3

status post recent upper respiratory infection; anemia; and proteinuria. Dr. Underwood tre a te d plaintiff, and referred her to the Lister Hill Clinic because of plaintiff's inability to a f f o rd follow-up care. (R. 173-74). The records show that plaintiff received treatment from D r. Corazon Mulles at the Lister Hill Clinic from March 23, 2005 through October 16, 2007. (S e e Exhibits 5F, 8F; R. 274C-M). On May 26, 2005, Dr. Terrance Hughes performed a consultative examination. Plaintiff's chief complaint was fatigue. Plaintiff stated that her high blood pressure

s ym p to m s include headache and fatigue, and her diabetes mellitus symptoms include d e c re a s e d vision in both eyes. Plaintiff explained that her vision has improved since she s ta rte d administering insulin injections. Dr. Hughes described plaintiff as independent in her a c tiv itie s of daily living, ambulation, and transfers. He stated that plaintiff was able to "get o n and off the exam table with ease," and "able to take her shoes off." A physical e x a m in a tio n revealed 200/120 blood pressure, and 20/30 vision in both eyes, without c o rre c tiv e lenses. Dr. Hughes diagnosed plaintiff with poorly controlled high blood pressure, b u t noted that she was currently asymptomatic; and poorly controlled diabetes mellitus, w h ic h is leading to her fatigue and decreased vision. He suggested a referral to "an o p h th a lm o lo g is t for an evaluation of cataracts versus glaucoma." He explained that plaintiff p re s e n te d herself as "applying for Disability secondary to fatigue and symptoms that correlate w ith high blood pressure and type 2 diabetes, which are poorly controlled." Dr. Hughes' f u n c tio n a l assessment included standing and/or walking 2 hours with breaks that are more f re q u e n t; sitting 6 hours; "lifting and/or carrying occasionally 10 pounds and frequently 10 4

pounds." (Exhibit 3F). On February 6, 2006, plaintiff sought treatment from the Lister Clinic complaining o f fatigue, shortness of breath, and a swollen stomach. Dr. Mulles diagnosed her with a b e n ig n tumor, and administered an EKG to evaluate whether plaintiff suffered from c o n g e s tiv e heart failure.1 (R. 192). Dr. Mulles referred plaintiff to Dr. Iliana Arellano, a c a rd io lo g is t. Dr. Arellano treated plaintiff on February 21, 2006, and noted that plaintiff was b e tte r since Dr. Mulles started her on an ACE inhibitor and Spironolactone ­ she could walk a b o u t 40 feet and sleep lying flat. Dr. Arellano noted a history of congestive heart failure on F e b ru a ry 6, 2006 (R. 192), when plaintiff sought treatment at the Lister Hill Clinic, and noted th a t the plaintiff's ankle swelled during the time she was in heart failure. Plaintiff's blood p re s s u re was 170/100. An echocardiogram was performed, revealing "an eccentric left v e n tric u la r hypertrophy[,] . . . a dilated cardiomyopathy with a severely depressed ejection f ra c tio n at approximately 20%[,] . . . moderate mitral regurgitation, moderate tricuspid re g u rg ita tio n and severe diastolic dysfunction, with evidence of elevated LVEDP." Dr. A re lla n o 's assessment indicated. T h e patient is much better, now that she has been started on Lisinopril and S p iro n o la c to n e . Her echo shows a severe cardiomyopathy with [an ejection fraction] o f approximately 20%. There are some segmental wall motion abnormalities present w ith a thinned akinetic inferior wall and thinned akinetic septum. This could certainly b e secondary to ischemic heart disease.

Dr. Mulles' treatment notes concerning the EKG results are illegible. (R. 192). Dr. Arellano interpreted the E K G report, however, and stated that the EKG "show[ed] sinus rhythm at 92 beats per minute with norma axis. She does h a v e left atrial enlargement as well as significant LVH by voltage criteria." (R. 228).

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Dr. Arellano suggested that plaintiff have a heart catheterization performed, and increased h e r prescription of Lisinopril as her blood pressure was still out of control. (Exhibit 6F). D r. Mulles completed a Physician Disability Confirmation on March 10, 2006, in d ic a tin g that it would be more than six months before plaintiff could work due to dilated c a rd io m yo p a th y, congestive heart failure, and hypertension. In an enclosed letter, dated M a rc h 23, 2006, Dr. Mulles explained that plaintiff was "currently being evaluated for heart f a ilu re ," and "[would] not be able to be gainfully employed until the Cardiologist [] d e te rm in e d the extent of the heart failure and discussed her limitations." (R. 185-86). Plaintiff was referred to Dr. James L. Taylor for a cardiac assessment on March 30, 2 0 0 6 . Plaintiff reported that she was experiencing very little chest discomfort as compared to January and February of that year, but was experiencing dysonea on exertion (DOE) with m in im a l exertion. Her blood pressure was 129/76. She stated that her energy level was im p ro v in g and that helping with her twin grandchildren was easier. Dr. Taylor's impression w a s "? coronary disease"; hypertension; diabetes; and "suprapubic mass, ? fibroid." (R. 255). In an enclosed letter to Dr. Mulles, Dr. Taylor explained that plaintiff would forego a c a th e te riz a tio n , and instead obtain a stress test. This decision was due to her doing well and re p o rtin g no cardiopulmonary symptoms. (R. 256). On April 10, 2006, plaintiff spoke with D r. Taylor over the phone and stated that she had not been taking her insulin and her blood s u g a r was over 450. Plaintiff was instructed to proceed with catheterization once her blood s u g a r was acceptable. (R. 252). The catheterization was performed on April 17, 2006, and re v e a le d that plaintiff's left ventricular ejection fraction was 62%, and her left ventricle was 6

normal in size. (R. 248). Dr. Taylor opined that plaintiff had "normal coronary arteriograms, n o rm a l left ventriculogram, and normal renal arteriograms." (R. 249). Dr. Alan Babb performed a consultative examination on May 12, 2006. Plaintiff e x p la in e d that she was unable to work because of "general fatigue and shortness of breath." Plaintiff said that she was told in April 2006 that she had no blockages, but she did have c o n g e s tiv e heart failure. Dr. Babb stated that he did not have the documentation concerning p la in tif f 's heart catheterization, ejection fraction, or elevated liver function tests, and th e re f o re , he could not make any kind of definitive decision about plaintiff's ability to work. The physical examination revealed that plaintiff's blood pressure was 124/80. Dr. Babb's im p re ss io n was hypertensive cardiomyopathy; mild clinical depression; diabetes, unknown c o n tro l; large pelvic mass consistent with uterine leiomyoma; history of anemia; and elevated liv e r function test, unknown etiology. He noted that plaintiff appeared to be "in good shape, e u v o le m ic , and appears not to have any specific reasons that she could not work in her c h o s e n field of education." Dr. Babb completed a Medical Source Opinion that limited p la in tif f 's work related activities to occasional exposure to fumes, noxious odors, dust, mists, g a s e s , or poor ventilation; and carrying and/or lifting 10 pounds constantly, 20 pounds f re q u e n tly, and 30 pounds occasionally. (Exhibit 7F). Dr. James Anderson was called as a medical expert at the administrative hearing held D e c e m b e r 20, 2006. Dr. Anderson testified that plaintiff has a treatment history of h yp e rte n s io n ; diabetes mellitus, insulin dependent; non-cardiac chest pain; pelvic pain due to uterine fibroids; and history of congestive heart failure, treated and solved. Dr. Anderson 7

opined that plaintiff's impairments do not meet or equal the Secretary's listing for disability, b u t instead, the combination of physical impairments demonstrated would allow for the full ra n g e of light work activity. According to Dr. Anderson, this was compatible with Dr. H u g h e s ' (Exhibit 3F) and Dr. Babb's opinions (Exhibit 7F), and the cardiac catheterization (E x h ib it 9F), which was normal and revealed a 62% ejection fraction. The ALJ pressed Dr. A n d e rso n on his assessment of Dr. Hughes' opinion, which leaned more towards the range o f sedentary activity. Dr. Anderson agreed, but thought this assessment was due to Dr. H u g h e s ' opinion that plaintiff's "poorly controlled medical diseases were affecting [plaintiff] a little more than normal." Dr. Anderson noted that plaintiff's "treating record . . . show[ed] s h e most recently began her treatment for her diabetes and hypertension, and they [were] still n o t adequately controlled." Dr. Anderson stated that, with plaintiff's hypertension and d ia b e te s , the further episodes of congestive heart failure were likely. (R. 289-94). Dr. Randal McDaniel testified at the administrative hearing as a vocational expert. He listed plaintiff's past relevant work as a preschool teacher, retail sales clerk, clerical aid, te a c h e r's aid, and sewing machine operator. Dr. McDaniel characterized all jobs as "semis k ille d and light occupation," with the exception of preschool teacher, which he identified a s a "skilled and light occupation." The ALJ posed hypothetical questions to the VE, in c o rp o ra tin g medical opinions and subjective complaints contained in the record. The VE o p in e d that, with the limitations imposed by Dr. Anderson (R. 289-94) or Dr. Babb (Exhibit 7 F ), plaintiff would be able to return to all of her past relevant work. (R. 296). With the lim ita tio n s imposed by Dr. Hughes (Exhibit 3F), plaintiff would be restricted to sedentary 8

work and could not perform any of her past relevant work. Plaintiff could, however, perform o th e r jobs in the national economy. (R. 297). Lastly, he determined that, based on the p la in tif f 's own testimony, she would not be able to perform any work in the national e c o n o m y. (R. 298). At the hearing, the ALJ ordered a psychological evaluation of the plaintiff (R. 300), a n d she was referred to Dr. Guy J. Renfro on February 27, 2007. Dr. Renfro reported that p la in tif f had a depressed affect, and she was tearful at times. She did not display any signs o f anxiety, but she did tend to have a depressive theme to her thoughts. "[Plaintiff] was o rie n te d as to time, place, person and situation. Her concentration skills were significantly im p a ire d [ ;] [i]t seemed difficult for her to maintain concentration for an extended period of tim e ." WAIS-III testing revealed that plaintiff was functioning at the lower end of the a v e ra g e range of intelligence. Dr. Renfro's impression was that plaintiff was depressed, and th a t "[t]his depression was manifested in increased sensitivity to bodily function and physical c o m p la in ts , depressed mood, slow speech and movement, and significant problems in c o n c e n tra tio n ." Dr. Renfro diagnosed plaintiff with major depression, recurrent, moderate s e v e rity in Axis I, and with diabetes and congestive heart failure in Axis III. Dr. Renfro c o m p l e t e d a Medical Source Opinion. He assessed plaintiff with moderate limitations in re s p o n d in g appropriately to supervisors, co-workers, and customers or other members of the g e n e ra l public; understanding, remembering, and carrying out detailed or complex in s tru c tio n s ; maintaining attention, concentration, or pace for periods of at least two hours; a n d maintaining social functioning. He noted that plaintiff was mildly limited in using 9

judgment in detailed or complex work-related decisions; dealing with changes in a routine w o rk setting; and maintaining activities of daily living. (Exhibit 11 F). T h e ALJ submitted written interrogatories to Dr. McDaniel, the VE, posing h yp o th e tic a l questions similar to those asked at the hearing, but incorporating Dr. Renfro's m e n ta l limitations. Dr. Renfro's mental limitations did not change Dr. McDaniel's opinion. Based on the limitations found in Dr. Anderson's and Dr. Babb's opinions, together with Dr. R e n f ro 's limitations, plaintiff could return to all of her past relevant work. Dr. Hughes' lim ita tio n s coupled with Dr. Renfro's evaluation would place plaintiff in the range of s e d e n ta ry work, but there were still jobs available to her in the national economy. (R. 1611 6 1 A ). The ALJ concluded that plaintiff suffers from the following severe impairments: h yp e rte n s io n ; insulin dependent diabetes mellitus; history of congestive heart failure; nonc a rd ia c chest pain; uterine fibroids with pelvic pain; and major depression, recurrent, m o d e r a te severity. He found plaintiff's "slightly lower range of average IQ to be a nons e v e re impairment as the medical evidence reflects it imposes no limitations." (R. 16). The A L J assigned "very substantial weight" to Dr. Babb's opinion, which was consistent with the o p in io n of Dr. Anderson. He assigned "great weight" to Dr. Anderson's opinion, and gave " f u ll credence" to Dr. Renfro's opinion. The ALJ did not give any weight to Dr. Hughes' o p in io n because it "was a one-time only examination and [] the restrictions stated did not last a full year."2 Based on the evidence, the ALJ concluded that plaintiff has the RFC to perform
The ALJ also noted that even if he "were to give full credence to [Dr. Hughes'] restrictions, the vocational e x p e r t testified that they would allow for work." (R. 17).
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"the full range of light work with the mental restrictions as noted by Dr. Renfro." (R. 21). The ALJ adopted the expert opinion of Dr. McDaniel, and concluded that plaintiff could p e rf o rm all of her past relevant work as it is actually performed and generally performed in th e national economy. (R. 23). Plaintiff challenges the Commissioner's decision, arguing that the ALJ erred by (1 ) failing to develop the evidence fully regarding the physical and mental demands of p la in tif f 's past relevant work; and (2) by failing to provide a detailed analysis and e x p la n a tio n of the physical and mental requirements of plaintiff's past work in his decision. (Plaintiff's brief, p. 4). Plaintiff contends that the ALJ's inadequate development of the e v id e n c e regarding the physical and mental requirements of her past relevant work made it im p o s sib le for him to make a fully detailed analysis of her past work in his decision, which is required to make proper determination at step four of the sequential evaluation process. (Id.). If the ALJ cannot make a disability determination at the first three steps of the s e q u e n tia l evaluation process, he must continue to step four. 20 C.F.R. §§ 404.1520(e)-(f), 4 1 6 .9 2 0 (e )-(f ). At step four, the ALJ evaluates the claimant's RFC and compares it to the p h ys ic a l and mental demands of the claimant's past work to determine if the claimant can p e rf o rm her past relevant work. Id. Where there is no evidence of the physical and mental re q u ire m e n ts of the claimant's past work, and the ALJ does not solicit or proffer a d e s c rip tio n of the required duties, the ALJ cannot properly determine whether the claimant h a s the RFC to perform her past relevant work. Schnorr v. Bowen, 816 F.2d 578, 581 (11th 11

Cir. 1987). Evidence of the physical and mental requirements of the claimant's past work m a y be obtained through the claimant's own testimony, vocational reports completed by the c la im a n t, or through the elicited opinion of a vocational expert. SSR 82-61 ("A properly c o m p le te d SSA-3369-F6, Vocational Report, may be sufficient to furnish information about p a s t work."); SSR 82-62 ("The claimant is the primary source for vocation documentation, a n d statements by the claimant regarding past work are generally sufficient for determining th e skill level; exertional demands and nonexertional demands of such work."); Savor v. S h a la la , 868 F. Supp. 1363, 1365 (M.D. Fla. 1994) (concluding that it was clear that the ALJ d e te rm in e d the physical demands of the plaintiff's past work because the ALJ elicited the o p in io n of a VE). "While the claimant bears the burden . . . of demonstrating an inability to re tu rn to his past relevant work, the ALJ has a concomitant duty to develop a full record in th is regard." Childs v. Astrue, 2008 WL 686160, at *3 (M.D. Fla. Mar. 10, 2008); see Nelms v . Bowen, 803 F.2d 1164, 1165 (11th Cir. 1986). In this case, the plaintiff completed a Vocational Report (R. 108-16) and a Work H is to ry Report (R. 117-30) detailing the required duties and the physical and mental demands o f her past jobs as a preschool teacher, teacher's aide, and sewing machine operator.3 The p la in tif f also testified to the requirements and demands of her past work as a preschool te a c h e r at the administrative hearing. (R. 285-86). The ALJ elicited the opinion of a v o c a tio n a l expert during the administrative hearing concerning the plaintiff's ability to
W h ile there is no description of the plaintiff's past work as a retail sales clerk or clerical aide, there is ample e v id e n c e concerning the physical and mental requirements of the plaintiff's past jobs as a preschool teacher (R. 87, 94, 1 2 3 , 285-86), teacher's aide (R. 114), and sewing machine operator (R. 112-13). If the plaintiff can perform one of her p a s t relevant jobs, she is not disabled. See 20 C.F.R. §§ 404.1520(f), 416.920(f).
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perform her past relevant work. The VE categorized her past relevant work by exertional and s k ill level, and described them all as either "skilled and light" or "semi-skilled and light." (R. 295-96). The ALJ posed hypothetical questions to the vocational expert explicitly in c o rp o ra tin g the functional limitations found in the different medical opinions contained in th e record, as well as the plaintiff's subjective complaints. (R. 295-98). The ALJ then s u b m itte d written interrogatories to the VE posing the same hypothetical questions asked d u rin g the administrative hearing, but asking the VE to consider the mental limitations c o n ta in e d in Dr. Renfro's evaluation (R. 269-74) together with the plaintiff's physical lim ita tio n s . (R. 160). It is clear from the record that the ALJ adequately developed the e v id e n c e regarding the demands of plaintiff's past work. Further, the ALJ adequately analyzed and explained his decision that plaintiff could re tu rn to her past relevant work. The ALJ reached a conclusion concerning whether plaintiff c o u ld return to her past relevant work only after he explained his findings regarding p la in tif f 's credibility and RFC. The ALJ assigned exertional and skill levels to each past job w h ic h are consistent with the VE's opinion and the Dictionary of Occupational Titles (DOT). The ALJ then explained that he was accepting the opinion of the VE, Dr. McDaniel, whose te s tim o n y and written interrogatories relating to plaintiff's past relevant work are contained i n the record. It was proper for the ALJ to rely on the expert opinion of the VE when d e c id in g whether plaintiff could return to her past relevant work. "Indeed, although VE te s tim o n y is not required in determining whether a claimant can perform her past relevant w o rk , see Lucas v. Sullivan, 918 F.2d 1567, 1573 n. 2 (11th Cir. 1990), [vocational experts 13

may offer expert opinions which] "may be used in making this determination because such a n expert `may offer relevant evidence within his or her expertise or knowledge concerning th e physical and mental demands of a claimant's past relevant work, either as the claimant a c tu a lly performed it or as generally performed in the national economy[.]'" Hennes v. C o m m 'r of Soc. Sec. Admin., 130 Fed. Appx. 343, 346 (11th Cir. 2005)(unpublished o p in io n )(q u o tin g 20 C.F.R. § 404.1560(b)(2)); see Phillips v. Barnhart, 357 F.3d 1232, 1240 n . 7 (11th Cir. 2004)(explaining that a VE's testimony constitutes substantial evidence when th e ALJ poses hypothetical questions that comprise all of the claimant's impairments); see a ls o 20 C.F.R. § 416.960(b)(2). Therefore, the ALJ did not err in his step four determination c o n c e rn in g plaintiff's ability to return to her past relevant work.4 P la in tif f further argues that the ALJ erred by according "very substantial weight" (R. 1 8 ) to Dr. Babb's opinion, and by failing to state adequately the particular reasons for a s s ig n in g this weight to the medical opinion. (Plaintiff's brief, p. 5). Plaintiff takes issue w ith the weight accorded to the opinion because Dr. Babb indicated that he lacked inf o rm a tio n pertaining to the plaintiff's ejection fraction and elevated liver function tests, and th a t this lack of information made it difficult for him to make any kind of definitive decision. (R . 232-39). "Generally, the more consistent a physician's opinion is with the record as a w h o le , the more weight an ALJ will place on that opinion." Poellnitz v. Astrue, 349 Fed. A p p x . 500, 502 (11th Cir. 2009)(unpublished opinion)(citing 20 C.F.R. § 404.1527(d)(4));
P la in tiff makes a blanket assertion that the ALJ failed to develop and explain his decision properly. She does not, however, point to any evidence that supports the assertion that she cannot perform any of her past work; nor does s h e allege any error in the ALJ's RFC determination. (Plaintiff's brief, p. 3-4).
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see also 20 C.F.R. § 416.927(d)(4). Thus, where an examining consulting physician's opinion d o e s not contradict the record as a whole, the ALJ does not err by relying on that opinion. See Poellnitz, 349 Fed. Appx. at 502; see also SSR 96-6p. Although plaintiff contends that the ALJ did not mention Dr. Babb's statements c o n c e r n i n g the lack of information (Plaintiff's brief, p. 5), the ALJ explicitly noted Dr. B a b b ' s concern in his decision. (R. 18). The ALJ thoroughly addressed the issue of p la in tif f 's ejection fraction and her brief history of congestive heart failure both during the a d m in is tra tiv e hearing (R. 292-94), and in his decision. (R. 17, 21). He further remarked that " [ p la in tif f ] has an abnormal liver function test, yet there is no objective evidence that reflects t h i s is a severe problem and [plaintiff] has not been referred by her treating physicians for a d d itio n a l treatment or other measures." (R. 22). Dr. Babb's opinion, though he lacked

c e rta in evidence pertaining to plaintiff's ejection fraction, is consistent with the medical e v id e n c e and other medical opinions. The ALJ noted, "Dr. Renfro, Dr. Babb, and Dr. A n d e rs o n all opined, despite claimant's impairments, both physical and mental, that [ p la in tif f ] was able to perform work activity." (R. 22). Furthermore, although the ALJ did n o t state particular reasons for assigning "very substantial weight" to Dr. Anderson's o p in io n , it is clear from his decision that he credited this opinion because it was consistent w it h Dr. Anderson's and Dr. Renfro's opinions, and the record as a whole. See Wind v. B a rn h a rt, 133 Fed. Appx. 684, 692 (11th Cir. 2005)(unpublished opinion)("Although the A L J did not explicitly state that he was finding credible [the physician's] assessment, this d e te rm in a tio n was implicit from his reliance on [the physician's] opinion."). Thus, because 15

Dr. Babb's opinion is consistent with the record as a whole, the ALJ did not err by assigning it "very substantial weight."

CONCLUSION U p o n its review of the record as a whole, the court concludes that the decision of the C o m m is s io n e r is supported by substantial evidence and proper application of the law. Accordingly, the decision is due to be affirmed. A separate judgment will be entered. Done, this 30th day of April, 2010.

/s / Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE

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