Skanes v. Astrue

Filing 14

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 7/27/11. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PATRICIA A. SKANES,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

CIVIL ACTION NO. 2:10cv320-CSC
(WO)

MEMORANDUM OPINION
I. Introduction
The plaintiff applied for disability insurance benefits pursuant to Title II of the Social
Security Act, 42 U.S.C. §§ 401 et seq., and for supplemental security income benefits under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq., alleging that she was
unable to work because of a disability.

Her application was denied at the initial

administrative level. The plaintiff then requested and received a hearing before an
Administrative Law Judge (“ALJ”). Following the hearing, the ALJ concluded that the
plaintiff was not under a “disability” as defined in the Social Security Act. The ALJ,
therefore, denied the plaintiff’s claim for benefits. The Appeals Council rejected a
subsequent request for review. The ALJ’s decision consequently became the final decision
of the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d

1

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

129, 131 (11th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C.
§§ 405 (g) and 1383(c)(3).
The parties have consented to the United States Magistrate Judge conducting all
proceedings in this case and ordering the entry of final judgment, pursuant to 28 U.S.C. §
636(c)(1) and M.D. Ala. LR 73.1. Based on the court’s review of the record in this case and
the briefs of the parties, the court concludes that the decision of the Commissioner should
be affirmed.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months . . .
To make this determination,2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1)
(2)
(3)
(4)
(5)

Is the person presently unemployed?
Is the person’s impairment severe?
Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
Is the person unable to perform his or her former occupation?
Is the person unable to perform any other work within the economy?

An affirmative answer to any of the above questions leads either to the next
2

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.

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question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The standard of review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of
the record which supports the decision of the ALJ but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. Plaintiff Patricia Skanes (“Skanes”) was 49 years old at the time

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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) (Unit A).

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of the hearing before the ALJ. (R. 27). She has a high school education. (Id.). Her past
relevant work experience includes work as a receiving clerk. (R. 19). Following the hearing,
the ALJ concluded that the plaintiff has severe impairments of major depressive disorder and
generalized affective disorder. (R. 15). The ALJ concluded that the plaintiff did not meet
or equal any of the Listings, and concluded that Skanes has the residual functional capacity
to perform work at all exertional levels. (R. 16-17). Thus, the ALJ concluded that Skanes
could perform her past relevant work, and that she was not disabled. (R. 19).
B. The Plaintiff’s Claims. As stated by the plaintiff, the two issues for the Court’s
review are as follows.
1.

The Commissioner’s decision should be reversed because the ALJ
committed reversible error in failing to accord adequate weight to the
opinion of Ms. Skanes’ treating psychiatrist, Dr. Serravezza.

2.

The Commissioner’s decision should be reversed because the ALJ
committed reversible error in relying on the conclusions of a consulting
psychologist who only examined Ms. Skanes once.

(Doc. # 11, Pl’s Br. at 5).
IV. Discussion
A disability claimant bears the initial burden of demonstrating an inability to return
to her past work. Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990). In determining whether
the claimant has satisfied this burden, the Commissioner is guided by four factors: (1)
objective medical facts or clinical findings, (2) diagnoses of examining physicians, (3)
subjective evidence of pain and disability, e.g., the testimony of the claimant and her family
or friends, and (4) the claimant’s age, education, and work history. Tieniber v. Heckler, 720
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F.2d 1251 (11th Cir. 1983). The court must scrutinize the record in its entirety to determine
the reasonableness of the ALJ’s decision. See Walker, 826 F.2d at 999. The ALJ must also
conscientiously probe into, inquire of and explore all relevant facts to elicit both favorable
and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir.
1981). The Commissioner’s regulations require that a written decision contain several
elements. The ALJ must state, with sufficient specificity, the reasons for his decision
referencing the plaintiff’s impairments.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphasis added).
A. Rejection of Treating Physician’s opinion. Skanes argues that the ALJ
improperly rejected her treating psychiatrist’s opinion about the severity of her limitations.
In essence, the plaintiff argues that if the ALJ accepted Dr. Serravezza’s assessment about
her mental impairments, she would be disabled. On October 30, 2007, Dr. Serravezza
completed a psychiatric evaluation form describing Skanes’ mental limitations. (R. 200200). According to Dr. Serravezza, Skanes had marked or extreme limitations in fifteen
areas dealing with her ability to function in a work environment. (Id.) She had moderate
restrictions in three areas. (Id.) According to Dr. Serravezza, Skanes’ mental impairments
would be expected to last more than 12 months. (R. 201). Dr. Serravezza’s also commented
that “[s]ide effects of meds include sedation, slowed thinking.” (R. 202).
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Of course, the law in this circuit is well-settled that the ALJ must accord “substantial
weight” or “considerable weight” to the opinion, diagnosis, and medical evidence of the
claimant’s treating physician unless good cause exists for not doing so. Jones v. Bowen, 810
F.2d 1001, 1005 (11th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985).
The Commissioner, as reflected in his regulations, also demonstrates a similar preference for
the opinion of treating physicians.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations,
such as consultive examinations or brief hospitalizations.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)).
The ALJ’s failure to give considerable weight to the treating physician’s opinion is reversible
error. Broughton, 776 F.2d at 961-2; Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir. 1982).
However, there are limited circumstances when the ALJ can disregard the treating
physician’s opinion. The requisite “good cause” for discounting a treating physician’s
opinion may exist where the opinion is not supported by the evidence, or where the evidence
supports a contrary finding. See Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987). Good
cause may also exist where a doctor’s opinions are merely conclusory; inconsistent with the
doctor’s medical records; or unsupported by objective medical evidence. See Jones v. Dep’t.
of Health & Human Servs., 941 F.2d 1529, 1532-33 (11th Cir. 1991); Edwards v. Sullivan,
937 F.2d 580, 584-85 (11th Cir. 1991); Johns v. Bowen, 821 F.2d 551, 555 (11th Cir. 1987).

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The weight afforded to a physician’s conclusory statements depends upon the extent to which
they are supported by clinical or laboratory findings and are consistent with other evidence
of the claimant’s impairment. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986).
The ALJ “may reject the opinion of any physician when the evidence supports a contrary
conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). The ALJ must
articulate the weight given to a treating physician’s opinion and must articulate any reasons
for discounting the opinion. Schnorr, 816 F.2d at 581.
After reviewing all the medical records, the ALJ rejected the opinion of Dr.
Serravezza because her treatment records do not support her assessment that Skanes suffers
from marked mental limitations. (R. 18)
While it is credible that the claimant experiences some limitations due to a
mental impairment, it is not credible to the extent that she has alleged. First,
the medical evidence reflects the claimant has no physical or mental
limitations that interfere with activities of daily living, or have resulted in
decompensation; and has only moderate limitations with respect to social
functioning and concentration. The undersigned has considered records from
South Central Alabama Mental Health that document treatment only from May
through October 2007 [Exhibits 3F; 4F]. An assessment from a treating
psychiatrist notes multiple marked deficits however; (sic) the evidence of
record does not support this conclusion at all. In addition, the assessment
notes significant medicines and increased dosages during 2007 treating period
that is also not supported by the medical evidence of record. Therefore, no
weight is given to the treating psychiatrist’s assessment. Claimant testified to
an earlier period of mental health treatment [1990's], however subsequent
records show that family practitioners provided medicines until May 2007.
Again, there is no evidence of any medical treatment prior to May 2007.
(R. 18)
The ALJ’s determination is supported by substantial evidence. In her initial disability

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report, Skanes indicated that she stopped working on April 24, 2006 due to disabling
depression. (R. 114). She also indicated that she had not seen a doctor about her mental
impairment, nor was she on any medication to treat her condition. (R. 116-17). Skanes
completed a daily activities questionnaire indicating that she takes no medication to help her
sleep; she is able to care for her personal needs; and she cooks, cleans and shops for herself.
(R. 132-33).
During an consultative psychological evaluation on August 8, 2006, Skanes reported
that she was depressed, nervous and had stress. (R. 158). Dr. Robert DeFrancisco, PhD.,
noted that Skanes was friendly and cooperative, and her speech was intelligible and coherent.
(R. 159). He noted that Skanes was not currently receiving treatment and was not on any
medication. (R. 161). Dr. DeFrancisco opined that Skanes “has the ability to understand,
carry out, and remember instructions. She may be suffering from some emotional concerns,
but they do not seem severe enough to preclude her from working. Restriction of activity and
constriction of interest would be mild to mildly moderate.” (Id.).
In a subsequent disability report, Skanes indicated that she had seen Dr. Wayne
Johnson on November 7, 2006.4 (R. 139). On May 16, 2007, Skanes presented to the South
Central Alabama Mental Health Clinic for treatment of depression. (R. 178-81). She was
seen by W.D. Underwood5 on July 12, 2007. (R. 183-90). Although Skanes endorsed
numerous psychological symptoms, Underwood noted that she was appropriately dressed,
4

Dr. Johnson appears to be Skanes’ family doctor and a general practioneer.

5

The record indicates that W.D. Underwood is a therapist/case manager at the clinic. (R. 192).

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calm, with appropriate speech patterns. (R. 185). Her affect was constricted and she was
easily distracted. (Id.) She complained of “paranoia, tactile hallucinations, impaired
concentration/memory, sleep problems, sad moods, poor daily coping, ... and poor esteem.”
(R. 189). She reported being unable to manage stress. (Id.) Skanes was diagnosed as
suffering from major depressive disorder, recurrent, and scheduled to see a therapist on
August 7, 2007. (R. 189-90). Dr. Serravezza approved Skanes’ treatment plan on July 24,
2007, twelve days after Skanes was seen at the clinic. (R. 190).
On August 7, 2007, Dr. Serravezza conducted an initial evaluation of Skanes. (R.
195). Skanes appeared depressed and tearful. She had fair memory, attention span, and
impulse control. (Id.) She denied hallucinations but had some paranoia. (Id.) Dr.
Serravezza’s interview note, in its entirety, is as follows.
Long hx depression. Poorly responsive to SSRI antidepressants. Currently
severely depressed, anxious & hopeless - was working in Mont. at Big Lots felt ridiculed & persecuted by mgt & co-workers. Family hx - brother has
depression - uncles & aunts alcoholics - med. hx - no current illness - Dx MDD with psy date 84 r/o Bipolar deferred
(R. 195).
Dr. Serravezza prescribed Lexapro6 and Invega.7 (R. 32-33, 147, 195-96). Dr.
Serravezza next saw Skanes on October 30, 2007. According to the treatment note, Skanes

6

Lexapro is used to treat major depressive disorders. PHYSICIANS’ DESK REFERENCE, 1130 (65th

ed. 2011).
7

Invega is used “as an adjunct to mood stabilizers and/or antidepressants” in the “acute treatment
of schizoaffective disorders.” PHYSICIANS’ DESK REFERENCE, 2691 (65th ed. 2011). There is no indication
that Skanes has ever been diagnosed as suffering from schizoaffective disorders or schizophrenia.

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was very anxious and needy as well as agitated and ‘help seeking.’ (R. 196). She also
reported needing new prescriptions. (Id.) Dr. Serravezza made the following note duringher
interview with Skanes.
Not coping - nothing going right - Can’t work. Lost job - Very evasive re
reasons. Had to fuss & fight with people every day . . . was harassed to degree
to being depressed not able to cope being around people. This happens with
all my jobs.
(R 196).
Dr. Serravezza increased the dosage of Skanes’ prescription for Invega but did not
alter the dosage of Lexapro. At this appointment, Dr. Serravezza also completed a form
rating Skanes’ mental impairments. She indicated that Skanes had marked or extreme
limitations in all areas except her ability to answer simple questions, and her ability to
understand and carry out simple instructions. (R. 200-01). Dr. Serravezza’s medical records
do not support her opinion that Skanes suffered from mental impairments of the severity
asserted. Dr. Serravezza saw Skanes twice, in August and October 2007.8 It is clear that her
interview notes reflect Skanes’ complaints as told to her by Skanes.9 At the administrative
hearing, Skanes testified that she saw Dr. Serravezza “every four to six months,” (R. 39), and

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Although Skanes submitted a “Recent Treatment” form to the Commissioner on April 15, 2008,
indicating that she had been seen by Dr. Serravezza and Dr. Johnson in November 2007, and by W.D.
Underwood on March 14, 2008 and April 16, 2008, there are no medical records indicating treatment on
those dates. (R. 146). Additionally, on May 27, 2008, Skanes submitted a handwritten medication list that
indicated she was prescribed Cogentin and Trazadone on May 13, 2008. (R. 150). However, there is no
medical record demonstrating treatment or new prescriptions issued on that date.
9

The plaintiff asserts that she “continuously” complained of insomnia and chronic sad moods. (Pl’s
Br. at 9). Skanes was seen only twice and neither treatment record indicates she complained of insomnia.
The plaintiff’s distortion of the evidence is disingenuous, and not helpful to busy trial courts.

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the records do not indicate that Dr. Serravezza recommended more frequent therapy for
Skanes.10
Additionally, the only comment by Dr. Serravezza on the evaluation form refers to
side effects caused by Skanes’ medication. (R. 202). However, at the administrative hearing,
Skanes testified that she suffers no side effects from the medication. (R. 33). The ALJ may
disregard the opinion of a physician or psychologist, provided that he state with particularity
reasons therefor. Sharfarz v. Bowen, 825 F.2d 278 (11th Cir. 1987). The ALJ examined and
evaluated the medical records for evidence supporting Dr. Serravezza’s assessment of the
severity of Skanes’ mental impairments. The record contains no evidence, other than the
plaintiff’s own self-reports, to support Dr. Serravezza’s assessment. Based upon its review
of the ALJ’s decision and the objective medical evidence of record, the court concludes that
the ALJ properly rejected Dr. Serravezza’s opinion that Skanes suffers from disabling mental
impairments.
B. Reliance on Consultative Psychologist’s opinion. The plaintiff also argues that
the ALJ erred in relying on the opinion of the consultative psychologist, Dr. DeFrancisco,
because he only saw the plaintiff once. Although Dr. DeFrancisco only saw Skanes once,
his opinion was supported by Skanes’s own testimony about her daily activities and by her
lack of treatment. Fries v. Commissioner of Soc. Sec., 196 Fed. Appx. 827, 833 (11th Cir.
2006). In this case, the medical evidence or lack of it is obvious from the record. “Because
10

According to documents from the South Central Mental Health Clinic, appointments with patients
are scheduled based on risk level. If a patient is a low risk, the patient is seen within 60 days. If the patient
is a very low risk, an appointment could be scheduled within three months. (R. 189).

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the ALJ articulated good cause for discounting the treating physician’s opinion, the ALJ did
not err in giving more weight to the consulting, examining physician’s opinion.” Kelly v.
Commissioner of Social Sec., 401 F.ed Appx. 403, 408 (11th Cir. 2010).
To the extent that the plaintiff is arguing that the ALJ should have accepted Dr.
Serravezza’s opinion over Dr. DeFrancisco’s, as the court explained, the ALJ had good cause
to discount Dr. Serravezza’s opinion, and the record supports Dr. DeFrancisco’s opinion.
This court must accept the factual findings of the Commissioner if they are supported by
substantial evidence and based upon the proper legal standards. Bridges v. Bowen, 815 F.2d
622 (11th Cir. 1987).
V. Conclusion
The court has carefully and independently reviewed the record and concludes that
substantial evidence supports the ALJ’s conclusion that plaintiff is not disabled. Thus, the
court concludes that the decision of the Commissioner is supported by substantial evidence
and is due to be affirmed.
A separate order will be entered.
Done this 27th day of July 2011.

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

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