Hogan v. Astrue (CONSENT)

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 8/3/12. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BERNICE HORNE HOGAN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CIVIL ACTION NO. 2:11cv237-CSC
(WO)

MEMORANDUM OPINION
I. Introduction
The plaintiff, Bernice Horne Hogan (“Hogan”), applied for disability insurance
benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and
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 also
denied the claim. 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 case is

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.

now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3). 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 affirmed.2
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,3 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(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
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.”

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Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to the United
States Magistrate Judge conducting all proceedings in this case and ordering the entry of final judgment.
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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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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
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
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. Hogan was 52 years old at the time of the administrative hearing.
(R. 36). She has completed the ninth grade.5 (R. 39). The ALJ concluded that Hogan has

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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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Although Hogan attempted the test to receive her general equivalency diploma (“GED”), she did
not pass. (R. 39)

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severe impairments of “Diabetes Mellitus, Hypertension, Osteoarthritis of the Lumbar Spine
and Left Shoulder, and Affective Depressive Disorder.” (R. 20) Her prior work experience
includes work as a “cleaner/companion and home attendant.” (R. 30, 59). Following the
hearing, the ALJ concluded that the plaintiff could return to her past relevant work, and thus,
she is not disabled. (R. 30-31).
B. Plaintiff’s Claims. Hogan presents two issues for the Court’s review. As stated
by Hogan, they 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. Hogan’s treating psychiatrist, Dr. Lopez.

2.

The Commissioner’s decision should be reversed because the ALJ’s
residual functional capacity finding lacks the support of substantial
evidence.

(Doc. # 12, Pl’s Br. at 6). It is to these two issues that the court now turns.
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
F.2d 1251 (11th Cir. 1983). The ALJ must conscientiously probe into, inquire of and explore
all relevant facts to elicit both favorable and unfavorable facts for review. Cowart v.
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Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981). The ALJ must also 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) (emphases added).
A. Treating Physician’s Opinion. Hogan argues that the ALJ failed to properly
evaluate the opinion of her treating psychiatrist, Dr. Lopez. (Doc. # 12, Pl’s Br. at 6-11).
According to the plaintiff, the ALJ erred by failing to assign “the greatest weight” to Dr.
Lopez’s opinion because he “is clearly a treating physician whose opinion and
recommendations should have been given controlling weight.” (Id. at 7, 10).
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.
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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 961-62.
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).
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.
On December 11, 2008, Dr. Lopez completed a medical source statement assessing
Hogan’s mental impairments. (R. 413-15). According to Dr. Lopez, Hogan has marked
limitations in seven areas dealing with her ability to function in a work environment. (Id.)
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She has moderate restrictions in ten areas, and mild restrictions in one area. (Id.) According
to Dr. Lopez, Hogan’s impairments would be expected to last more than 12 months. (R.
415).
After reviewing the medical evidence, the ALJ gave Dr. Lopez’s opinion “little
evidentiary weight” because “[w]hile Dr. Lopez is a treating physician, his medical opinion
is not persuasive as to an inability to maintain work. His treatment records fail to support his
medical opinion . . . because they show consistently that the claimant has only attended
therapy sessions on an infrequent basis. . . . Dr. Lopez’ medical opinion is neither supported
by his treatment records nor consistent with his treatment of the claimant.” (R. 30). The ALJ
acknowledged that Hogan suffers from depression, but after a thorough review of her
treatment records, discounted Dr. Lopez’s opinion.
The ALJ’s decision to give Dr. Lopez’s opinion little weight is supported by
substantial evidence. Although Hogan testified that her most disabling impairment is her
depression, treatment records from Spectra Care do not support Dr. Lopez’s assessment of
the severity of this impairment. For example, Hogan presented to Spectra Care for an intake
assessment on November 12, 2007. The assessment was completed by Linda Dudewicz, a
licensed social worker. (R. 393-403). Dr. Hammond, a licensed psychologist, also signed
the intake assessment. (R. 403). Although Hogan’s prescription for Celexa was renewed on
December 5, 2007, there is no indication that she attended individual or group therapy on that
date. (R. 384). Hogan did not attend therapy on January 17, 2008, March 20, 2008, May 15,
2008, or June 19, 2008. (R. 386-87, 389, 391). She attended her first group therapy on
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February 21, 2008. (R. 390). Her only other therapy appointment was April 17, 2008, when
she was the only patient at group therapy. (R. 388). At that time, the social worker noted
that Hogan was
keeping herself busy with youngest daughter going to graduate HS in May.
She makes herself do church work, witness for Jehovah. She goes Tues, Sat
and Sunday. Bernice is trying to walk her dog, work in the yard, do
housework but physically doesn’t always feel well.
(R. 388)
Dr. Lopez assessed Hogan with moderate and marked limitations based on two
therapy visits, the last one eight months earlier than his assessment. Moreover, there is no
evidence in the treatment notes to indicate that Dr. Lopez ever evaluated or even saw Hogan.
Consequently, Dr. Lopez’s treatment notes do not support the level of disability he attributes
to Hogan.
The ALJ may disregard the opinion of a physician, provided that he states with
particularity reasons therefor. Sharfarz v. Bowen, 825 F.2d 278 (11th Cir. 1987). The ALJ
examined and evaluated the treatment records for evidence supporting Dr. Lopez’s
assessment of Hogan’s ability to work, and he considered Hogan’s own testimony. Only then
did the ALJ discount Dr. Lopez’s opinion that Hogan was disabled.6 Based upon its review
of the ALJ’s decision and the objective medical evidence of record, the court concludes that
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To the extent that Hogan also argues that the ALJ failed to specify the weight he assigned to the
opinion of Dr. Nuckols, a non-examining psychiatrist, she is entitled to no relief on this basis. See Doc. #
12 at 10. Although the ALJ refers to the evaluation by Dr. Nuckols, he assigned no weight to it because Dr.
Nuckols’ opinion was formulated without the benefit of Hogan’s treatment records from SpectraCare and
Dr. Lopez. (R. 24). The ALJ can hardly be faulted for not considering Dr. Nuckols’ opinion under such
circumstances.

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the ALJ properly rejected Dr. Lopez’s opinion regarding the limitations caused by Hogan’s
depression.
B. Residual Functional Capacity Assessment. Hogan also complains that the
“ALJ’s residual functional capacity finding lacks the support of substantial evidence” (Doc.
# 12, Pl’s Br. at 11-12). In determining her residual functional capacity, the ALJ considered
Hogan’s impairments in that assessment.
After careful review of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except the claimant needs to change positions
from sitting/standing and walking throughout the day; she can only have casual
contact with the public; She can only have one or two step job instructions; she
can not reach overhead with the non-dominant left arm; she can not push/pull
with the non-dominant left arm; and she can not perform repetitive movements
with the non-dominant left arm.
(R. 27).
Hogan argues that the ALJ erred when he improperly rejected Dr. Lopez’s assessment
and then gave more weight to the opinion of a non-examining physician, Dr. Carmichael, a
state agency medical consultant who reviewed Hogan’s medical records. (Doc. # 12, Pl’s Br.
at 11-12). 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). The Commissioner's regulations also require
that “more weight [be given] to the opinion of a source who has examined [the claimant] than
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to the opinion of a source who has not examined [the claimant].” 20 C.F.R. § 404.1527(d)(1);
accord Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985); Swindle v. Sullivan, 914
F.2d 222, 226 n. 3 (11th Cir. 1990). Moreover, “[t]he opinions of nonexamining, reviewing
physicians, ... when contrary to those of the examining physicians, are entitled to little
weight, and standing alone do not constitute substantial evidence.” Lamb v. Bowen, 847 F.2d
698 (11th Cir. 1988); Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987); accord Spencer
on Behalf of Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) (“‘[t]o attempt to
evaluate disability without personal examination of the individual and without evaluation of
the disability as it relates to the particular person is medical sophistry at best’”). In Edwards
v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991), the court found that the ALJ did not err
in relying on the opinion of a non-examining physician where the physician’s opinion was
consistent with the opinions of examining physicians.
One of the interpretive difficulties with this seemingly straightforward principle of
law arises from cases such as Swindle v. Sullivan, 914 F.2d 222, 226 n. 3 (11th Cir. 1990), in
which the court stated, albeit in a footnote, that the opinion of a non-examining physician “is
entitled to little weight and taken alone does not constitute substantial evidence to support
an administrative decision.” In isolation, Swindle seems to suggest that the opinion of a nonexamining physician cannot be substantial evidence under any circumstances. Swindle cites
Broughton as authority, but that case “held that the opinion of a nonexamining physician is
entitled to little weight if it is contrary to the opinion of the claimant's treating physician.”
Broughton, 776 F.2d at 962 (emphasis added). That formulation of the law is consistent with
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Lamb and Sharfarz. Thus, the court concludes that the opinion of a non-examining physician
who has reviewed medical records may be substantial evidence if it is consistent with the
well-supported opinions of examining physicians or other medical evidence in the record.
According to Hogan, “the ALJ should have adopted the limitations assessed by Dr.
Lopez and Dr. King as to determine the actual workplace limitations imposed as a result of
Ms Hogan’s medically determinable impairments. As a treating and examining physician,
their opinions should have been afforded more weight than that of Dr. Carmichael, a nonexamining physician, and Dr. Oakley, a physician who provided treatment to Ms. Hogan
during a two day hospital stay.” (Doc. # 12, Pl’s Br. at 13).
In essence, Hogan complains that the ALJ did not properly consider Dr. Lopez’s
opinion in determining her residual functional capacity. For the reasons already stated, the
ALJ properly discounted the opinion of Dr. Lopez. The ALJ gave the opinion of Dr. King
“some weight” but gave his “indefinite statements” “lesser weight.” (R. 30). Dr. Carmichael
opined that Hogan “is capable of light work with safety precautions and occasional postural
restrictions.” (R. 22, 318). Dr. Oakley treated Hogan for chest pain on September 10, 2007.7
(R. 341-48). After a careful review of all the medical records, the court concludes that the
ALJ’s residual functional capacity is consistent with the medical evidence as a whole as well
as Hogan’s testimony about her abilities. Hogan did not seek mental health treatment when

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The court is unable to determine from her brief what the plaintiff contends with regards to Dr.
Oakley. His records merely reflect Hogan’s treatment for chest pain. She was instructed to follow up with
her physician, to continue her medications, and to follow a low fat diet. (R. 342).

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she could have done so. She attended only 2 therapy sessions over a 6 month period. None
of SpectraCare’s treatment records indicate that Hogan’s depression was debilitating.
Hogan’s own description of her activities does not support a conclusion that she is unable to
function in a work setting to the degree determined by Dr. Lopez. In short, after a careful
examination of the administrative record, the court concludes that substantial evidence
supports the conclusion of the ALJ concerning Hogan’s mental impairments and her residual
functional capacity to perform light work.
V. Conclusion
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). The court has carefully and independently reviewed the record and
concludes that substantial evidence supports the ALJ’s conclusion that plaintiff is not
disabled, and is due to be affirmed.
A separate order will be entered.
Done this 3rd day of August 2012.

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

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