Culp v. Astrue (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 2/13/2012. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CIVIL ACTION NO. 2:11cv138-CSC
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 129, 131 (11th Cir. 1986). The
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.
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
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.
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
question, or, on steps three and five, to a finding of disability. A negative
A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
answer to any question, other than step three, leads to a determination of “not
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); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). 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.”
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004) (quotation marks
omitted). The court “may not decide the facts anew, reweigh the evidence, or substitute . .
. [its] judgment for that of the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240
n. 8 (11th Cir. 2004) (alteration in original) (quotation marks omitted).
[The court must] . . . 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
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. Plaintiff Laura Culp (“Culp”) was 38 years old on the alleged onset
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).
date of disability. (R. 209). She has a high school education with some college. (R. 51).
Her past relevant work experience includes work as an administrative assistant, receptionist,
and nail groomer. (Id.) Following the hearing, the ALJ concluded that the plaintiff has
severe impairments of “cocaine dependence, history of bipolar disorder, not otherwise
specified, and borderline personality disorder.” (R. 14). The ALJ concluded that her “history
of alcohol and marijuana abuse” were not severe impairments. (Id.) The ALJ also concluded
that the plaintiff’s substance use is a contributing factor material to the determination of her
disability. (R. 19). The ALJ further concluded that Culp could return to her past relevant
work as a receptionist/secretary, and that she has the residual functional capacity to perform
other jobs in the national economy. (R. 23). Thus, the ALJ concluded that the plaintiff was
not disabled. (Id.)
B. The Plaintiff’s Claims. As stated by the plaintiff, the two issues for the Court’s
review are as follows.
The Commissioner’s decision should be reversed, because the ALJ
erred in adopting at least a portion of the opinion of Dr. Dobbs, a nonexamining consultant.4
The Commissioner’s decision should be reversed, because the ALJ
erred in failing to specify the weight assigned to many of the medical
opinions of record.
(Doc. # 12 Pl’s Br. at 4) (footnote added).
Dr. Dobbs is a “psychological medical consultant with the state agency.” (R. 16).
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
F.2d 1251 (11th Cir. 1983). 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. Non-examining Consultant’s Opinion. Culp argues that the ALJ improperly
relied on the opinion of Dr. Stephen Dobbs, a non-examining consultant. Culp applied for
disability benefits on October 11, 2007 alleging an onset date of December 31, 2005. (R.
182). She alleged she was disabled due to depression, anxiety, paranoia and mitral-valve
prolapse. (R. 209). On November 8, 2007, she completed a drug and alcohol use
questionnaire in which she indicated she did not use drugs or alcohol on a daily basis, and
while she had “used cocaine for about 6 months,” she had stopped in February 2007. (R.
On September 26, 2007, Culp presented for a psychiatric treatment at Behavioral
Medicine Counseling and Therapies, complaining that she “got [herself] into legal trouble
and [she’s] afraid [she’s] about to lose her husband.” (R. 296-98). She reported a history of
drug use from 2005 until 2007, and had recently been released from the Prattville jail where
she had been incarcerated for writing bad checks.5 (R. 296). She admitted chronic cocaine
use. (Id.) Dr. Hall diagnosed Culp with Bipolar disorder NOS and Cocaine abuse as well
as Borderline Personality Disorder. He prescribed Prozac and psychotherapy. (R. 298). A
blood test at Baptist Hospital on September 28, 2007 was positive for cocaine. (R. 290).
Culp saw Dr. Hall on October 8, 2007. His treatment notes indicates increased insight,
denied drug use and a request for an increase in Prozac. (R. 295). An October 15, 2007
treatment note indicates an increased mood since taking Prozac, and an increased insight into
her condition. (Id.)
On November 21, 2007, Dr. Dobbs completed a psychiatric review technique form
in which he indicated that a residual functional capacity assessment was necessary because
of the presence of bipolar disorder, borderline personality disorder, and alcohol and drug
Culp had previously “stole[n] some checks,” and received a sentence of probation. She served
three months in the Prattville jail and was on probation for the current charges. (R. 297).
abuse. (R. 303, 307, 308). Dr. Dobbs noted that Culp’s functional limitations were
moderate. (R. 310, 314-15). Dr. Dobbs did not consider Culp’s drug use when determining
her functional limitations.6 He assessed her functional capacity as follows.
Able to understand and remember simple and detailed but not complex
Able to sustain attention/concentration for two hour periods to complete
a regular workday at an acceptable pace and attendance schedule.
Proximity to others shouldn’t be intense. C. Able to interact
appropriately in casual uncrowded settings and respond appropriately
to constructive instructions. D. Able to respond to at least
simple/infrequent changes in routine.
(R. 316). In rendering his opinion on Culp’s limitations, Dr. Dobbs relied on Dr. Hall’s
initial evaluation and his treatment notes as well as Culp’s activities of daily living
questionnaire. (R. 312).
The ALJ included Dr. Dobbs’s functional assessment in his determination of Culp’s
residual functional capacity.
After careful review of the entire record, the undersigned finds that, in the
absence of drug and alcohol abuse, the claimant has the residual functional
capacity to perform nearly the full range of light and sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a). Specifically, the claimant can sit for
6 hours out of 8 hours; stand for 6 hours out of 8 hours; and walk for 6 hours
out of 8 hours, without interruption one hour; and lift, carry, push and pull
frequently up to 10 pounds and occasionally up to 30 pounds. The claimant
could perform simple grasping and fine manipulations with her hands; can use
right and left feet for pushing and pulling of repetitive movements, such as
operating foot controls; she can bend, stoop, crawl, climb, use stairs, ladders,
ropes and scaffolds, crouch, kneel, balance and reach above shoulder level.
The claimant can be around moving and hazardous machinery, drive motorized
vehicles, and be exposed to pulmonary irritants, including dust, odors, fumes,
Dr. Dobbs noted that her drug abuse was “currently in remission.” (R. 312).
extremes in temperature and humidity. Work should be non responsible, with
no regular general public contact, any that occurs must be brief and superficial
(a low social environment) and work should primarily be done alone. Other
mental limitations assessed are at Exhibit 7F, P.3, [Dr. Dobbs’ functional
assessment], incorporated by reference thereto, see above and assessed to the
vocational expert, with the exception that the claimant is not limited to
simple/unskilled work, in view of her work experience and her education, in
the absence of substance abuse.
Culp argues that, as a non-examining physician, Dr. Dobbs’ opinion is entitled to little
weight, and that the ALJ should not have credited Dr. Dobbs’ opinion because he did not
have the benefit of Culp’s testimony at the administrative hearing or additional medical
records submitted after Dr. Dobbs’ review. (Pl’s Br., doc. # 12, at 6).
Social Security regulations provide guidelines for an ALJ to use when evaluating
medical opinion evidence. See 20 C.F.R. § 404.1527. The ALJ considers many factors when
weighing medical opinions, including the examining relationship, the treatment relationship,
how supported an opinion is, whether an opinion is consistent with the record, and a doctor's
specialization. 20 C.F.R. § 404.1527(d)(1)-(6). An ALJ may ask for, and consider, opinions
from medical experts on the nature and severity of a claimant’s impairments. 20 C.F.R.
404.1527(f)(2)(iii). Taken alone, the opinion of a non-examining reviewing physician does
not constitute substantial evidence to support an administrative decision. Swindle v. Sullivan,
914 F.2d 222, 226 n.3 (11th Cir. 1990). However, an ALJ does not err in relying on the
opinion of the non-examining physician when that opinion does not contradict an examining
physician’s opinion. Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991). The
evidence in the record supports the ALJ’s inclusion of Dr. Dobbs’ assessment in his
determination regarding Culp’s functional capacity.
The medical records to which Dr. Dobbs did not have access are as follows. On
November 26, 2007, Culp presented to Behavioral Medicine. She reported that she had used
cocaine twice and stolen her neighbor’s checks. Although no legal charges were pending,
she was referred for treatment for substance abuse. (R. 318). On December 12, 2007, she
reported attendance at Narcotics Anonymous meetings and increased anxiety. (Id.) She did
not keep her appointment on January 7, 2008, or May 13, 2008. (R. 337)
On July 29, 2008, Culp had a psychological evaluation by Dr. Renfro, a clinical
psychologist. (R. 319-24). Dr. Renfro opined that Culp suffered from Major Depressive
Disorder but he cautioned that she may surreptitiously be using alcohol, marijuana and
cocaine. (R. 322). He encouraged hair analysis drug testing to ensure that she was not using
On October 8, 2008, Culp had a physical evaluation by Dr. Combs. (R. 327-334). Dr.
Combs opined that Culp had “no significant limitation in doing work-related activity such
as sitting, standing, walking or lifting or carrying or handling objects.” (R. 328).
Thereafter, Culp’s medical records are from her incarceration at Julia Tutweiler Prison
for Women where she was serving time for forging checks “to support [her] cocaine
addiction.” (R. 32-33).
An administrative hearing was held on April 23, 2009 at which, Dr. Garner, a medical
expert, testified. (R. 41-50). Dr. Garner testified that while Culp suffers primarily from a
mood disorder, her substance abuse is a contributing material factor with respect to mental
limitations. (R. 42). Dr. Garner opined that if Culp received mental health and substance
abuse treatment and maintained her sobriety, her mental limitations would be alleviated to
the extent that she would be able to function. (R. 45, 49).
The ALJ evaluated all the evidence before him, and determined that, in addition to Dr.
Dobbs, the opinions of Dr. Renfro, Dr. Garner, and Dr. Combs all led him to conclude that
the plaintiff is not disabled. Culp’s reliance on Johnson v. Barnhart, 138 Fed. Appx. 266
(11th Cir. 2005) and Shinn ex rel. Shinn v. Comm’r of Soc. Sec., 391 F.3d 1276 (11th Cir.
2004) is misplaced. This is not a case in which the ALJ discounted or rejected the opinion
of a treating physician in favor of a non-examining consultative examiner or ignored other
evidence in the record. And, it is not the province of this court to reweigh evidence, make
credibility determinations, or substitute its judgment for that of the ALJ. Instead the court
reviews the record to determine if the decision reached is supported by substantial evidence.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial evidence “is less than
a preponderance, but rather such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. After a careful review of the medical records as a
whole, the court concludes that substantial evidence supports the ALJ’s decision that Culp
has the residual functional capacity to perform work in the national economy, and is not
B. Weight assigned to medical opinions. Culp next argues that the ALJ erred by
failing to properly designate the weight to which he assigned each medical opinion. After
reviewing all the medical evidence and Culp’s testimony, the ALJ determined that Culp was
not disabled because her substance use is a contributing factor material to the determination
of her disability. The ALJ considered the opinion of Dr. Renfro and Dr. Garner, discussing
Culp’s substance use.
I also note that Dr. Renfro stated that if drug and/or alcohol use were to stop
there would be a positive change in the above stated limitations. Dr. Garner
testified that, with a period of 10 months of no substance abuse and sobriety
for mental health improvement, the claimant would have restored functions
and capabilities, and could perform work activity.
(R. 21). The ALJ then opined that the opinion of “Dr. Dobbs more accurately reflects the
claimant’s capabilities.” (Id.) The ALJ also found Dr. Garner’s testimony to be “credible
and  consistent with the medical record.” (R. 22). Finally, the ALJ gave “great weight” to
the opinion of Dr. Combs who opined that Culp had no significant limitations in her ability
to perform work activities. (R. 23). Even thought the ALJ did not specifically state the
specific weight assigned to each piece of evidence, the ALJ recited all the applicable law and
detailed all the medical evidence. Thus, the ALJ’s general comments about the evidence are
sufficient to show that he considered all the evidence.
Moreover, even if it was error, it is harmless. The opinion of the ALJ shows that he
carefully considered the evidence in this case and was extremely familiar with it. A remand
is not required.
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 13th day of February 2012.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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