Hunter v. Astrue(CONSENT)

Filing 16

MEMORANDUM OPINION: The court concludes that the decision of the Commissioner denying benefits to Hunter should be affirmed. The Court will enter a separate judgment. Signed by Honorable Judge Charles S. Coody on 6/24/2013. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ERNEST HUNTER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.

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CIVIL ACTION NO. 2:12-cv-431-CSC
(WO)

MEMORANDUM OPINION
I. Introduction
On August 27, 2008 the plaintiff, Ernest Hunter, filed a Title II application for a
period of disability and disability benefits and a title XVI application for supplemental
security income. (R. 10; 133; 135). Hunter alleges disability beginning March 13, 2008. (R.
11; 133; 135). After the claims were initially denied, Hunter requested and, on March 24,
2010, received a hearing before an administrative law judge (“ALJ”). (R. 28). Following
the hearing, ALJ Stephen Carnes denied the claim on May 19, 2010. (R. 23). On March 30,
2012, the Appeals Council rejected a subsequent request for review. (R. 1). The ALJ’s
decision consequently became the final decision of the Commissioner of Social Security
(“Commissioner”).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.

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.

is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3). Pursuant
to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United
States Magistrate Judge. 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 determination3 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’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 claimant unable to perform his or her former occupation?
(5) Is the claimant 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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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.
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); 42 U.S.C. § 405(g). “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. Hunter was born on February 9, 1964. (R. 133). He was 46 years
old on the date the ALJ issued an opinion in this case. (R. 23, 133). He has a high school
education. (R. 36). His past employment history includes work as loading and unloading

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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. See Sullivan v. Zebley, 493 U.S. 521, 525 n.3
(1990). Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Sullivan,
493 U.S. at 525 n.3; Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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trucks for an apparel company, assembling signs, assembling automotive seatbelts, and
bagging potatoes.

(R. 39, 59).

Hunter alleges that he is disabled due to epilepsy,

hypertension, and chronic sinus infections. (R. 31, 41).
B.

The Findings of the ALJ
The ALJ found that Hunter’s epilepsy and hypertension were severe impairments. (R.

12). Due to a lack of medical evidence, the ALJ also found that the Hunter’s sinus infections
were not a severe impairment. (R. 13).
The ALJ concluded that Hunter does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. (R. 13).
The ALJ determined that Hunter
has the residual functional capacity to perform a full range of work at all
exertional levels as he has no exertional impairments but with the following
nonexertional limitations: The claimant should never work around unprotected
heights, moving machinery, or drive automotive equipment. [Hunter]
experiences a mild to moderate degree of pain lasting for a minute or so and
occurring two to three times a week.
(R. 13).
The ALJ found that Hunter “is capable of performing past relevant work as a Shipping
and Receiving Clerk, Assembler, Potato Bagger and Seat Belt Assembler.” (R. 20).
Alternatively, the ALJ found that “other jobs exist[] in the national economy that he is also
able to perform.” (R. 22). Therefore, the ALJ concluded that Hunter is not disabled. (R.
23).
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C.

Issues.
Hunter presents the following issue for review:
Whether the ALJ failed to fully develop the record when the ALJ did not
contact Hunter’s treating physician to clarify an inconsistency between the
physician’s conclusory seizure evaluation report and the medical record.

(Doc. 11 p. 4).
IV. Discussion
On April 7, 2009, Hunter’s treating physician, Dr. Roland Yearwood, completed a
seizure disorder evaluation form.

(R. 241-42).

Dr. Yearwood indicated that, for

approximately 2-3 hours during and after a seizure, Hunter’s activities were affected due to
loss of consciousness and a postictal period characterized by loss of cognitive function. (R.
242). The final question on the form was as follows:
If drug and/or alcohol use were to stop, would there be any change in the
above stated limitations?
Yes

No

Not Applicable

(R. 242).
The court notes that, if, in Dr. Yearwood’s opinion, Hunter was engaged in alcohol
use that was not aggravating his seizure disorder, then Dr. Yearwood would have circled
“No” rather than “Not Applicable” in response to the question. Instead, Dr. Yearwood
circled “Not Applicable,” thus indicating that, to his knowledge, at the time of his response,
Hunter was not engaged in drug and/or alcohol use. However, Hunter admits that, “as is
evident throughout the record, . . . Hunter’s medical records indicate periods of . . . alcohol
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use.” (Doc. 11 p. 7).
Despite this admission, which is inconsistent with Dr. Yearwood’s conclusory
response to the question regarding alcohol use, Hunter argues that the ALJ erred as a matter
of law by “fail[ing] to recontact Dr. Yearwood regarding any inconsistencies between the
evaluation completed by Dr. Yearwood and his [later] treatment notes” indicating that Hunter
was using alcohol against Dr. Yearwood’s advice. (Doc. 11 p. 5; R. 247; R. 265; R. 322-23).
In support of this argument, Hunter relies on Johnson v. Barnhardt, 138 Fed. Appx. 266
(11th Cir. 2005), an unpublished panel decision in which the court stated:
In making disability determinations, the Commissioner considers whether the
evidence is consistent and sufficient to make a determination. If it is not
consistent, the Commissioner weighs the evidence to reach her decision. If,
after weighing the evidence, the Commissioner cannot reach a determination,
then she will seek additional information or recontact the physicians.
138 Fed. Appx. at 270 (citing 20 C.F.R. § 404.1512(e) (repealed eff. March 26, 2012, 77 F.R.
10655, 10656)); see also 20 C.F.R. § 404.1520b(c) (eff. March 26, 2012, see 77 FR
10651-01) (providing that where a disability determination cannot be reached due to an
inconsistency in an underdeveloped administrative record, the Commissioner has the
discretion to determine how to resolve such an inconsistency and “may” choose to do so by
recontacting a treating physician).
Under Johnson, an ALJ is only required to “seek additional information or recontact”
the treating physician if, “after weighing the evidence, the Commissioner cannot reach a
determination” because the evidence contains unresolvable conflicts or inconsistencies due

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to an underdeveloped record. Johnson, 138 Fed. Appx. at 270; see also 20 C.F.R. §
404.1520b(c); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.1997) (“[T]he ALJ has a
basic obligation to develop a full and fair record.”). However, when, as here, the record is
already sufficiently developed for the ALJ to resolve conflicting or inconsistent evidence,
the ALJ is entitled to weigh the evidence “and reach [a] decision.” Johnson, 138 Fed. Appx.
at 270; 20 C.F.R. § 404.1520b.
In this case, as Hunter readily admits, there is an inconsistency between Dr.
Yearwood’s conclusory response to the question regarding alcohol use and the record as a
whole. An ALJ is entitled to disregard the opinion of a treating physician when the record
substantially supports the conclusion that “the (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.”
Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). After reviewing the medical
record and the evidence as a whole, the ALJ assigned little weight to Dr. Yearwood’s opinion
that the question about the effects of ceasing alcohol use was “Not Applicable.” The ALJ
explained:
I give little weight to Dr. Yearwood’s seizure disorder evaluation as it appears
to contain inconsistencies, it contrasts sharply with the doctor’s own treatment
notes, and it is without substantial support from the other evidence of record.
Dr. Yearwood indicated that the claimant had seizures > 1/week. This is in
direct contrast to Dr. Yearwood’s own treatment notes which show that the
claimant’s epilepsy was described as stable on March 5, 2009. He was seizure
free during the period March 5, 2009 to May 7, 2009; in fact on April 7, 2009,
the same day Dr. Yearwood completed the above evaluation, he wrote in his
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treatment notes that the claimant had been seizure free since his last visit. On
July 28, 2009, the claimant had a seizure after drinking beer, but thereafter, Dr.
Yearwood wrote that the claimant continued to remain seizure free on August
25, 2009 and his epilepsy was described as stable on January 14, 2010.
Dr. Yearwood indicated in the seizure evaluation that the claimant had been
compliant with prescribed treatment/medication. This is also in direct contrast
to Dr. Yearwood’s own treatment notes which show that the claimant was
non-compliant with treatment/medication on January 7, 2008; September 10,
2008; January 13, 2009; February 14, 2010, and March 8, 2010. When asked
if drug and/or alcohol use were to stop, would there be any change in the
above stated limitations, Dr. Yearwood responded by saying not applicable. It
is reasonable to assume that if alcohol use were to stop, there would certainly
be a change in the above stated limitations. There have been significant
periods of time since the alleged onset date during which the claimant has
consumed alcohol and admitted it on several occasions as evidenced in the
medical records dated January 3, 2008, December 29, 2008; January 13, 2009;
March 5, 2009; July 28, 2009; December 11, 2009; January 14, 2010 and
March 8, 2010. On several of these dates, it was believed that the claimant’s
seizure activity was caused by the claimant’s alcohol abuse, and at several
points in the record the doctor counseled the claimant against consuming
alcohol with a seizure disorder.
(R. 19).
The court has reviewed the evidence cited by the ALJ, and the record as a whole, and
concludes that the adequately developed record substantially supports the ALJ’s explicitly
stated reasons for rejecting Dr. Yearwood’s April 7, 2009, response to the question about
alcohol use. Further, the record supports the ALJ’s conclusion that Hunter’s seizures were
aggravated by noncompliance with Dr. Yearwood’s advice to stop drinking. See, e.g., Dr.
Yearwood’s treatment notes. (R. 247 (dated March 5, 2009, stating “Patient presents for
follow up with a history of epilepsy – stable but will need to revaluate his dilantin level. . .
. He is still drinking.” (emphasis added)); R. 265 (dated July 28, 2009, stating“Patient also
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with a history of epilepsy - states that he had a seizure after having a couple of beers; he was
counseled regarding the importance of consuming alcohol with a history of epilepsy.”); R.
323 (dated January 14, 2010, stating “Patient present for follow-up with a history of epilepsy
- noted to be controlled. He is still drinking however and was counseled accordingly.”); R.
322 (dated March 8, 2010, stating, “Patient also with a history of epilepsy - noted to have a
subtherapeutic dilantin level. He was noted to have an elevated liver function test - most
likely secondary to alcohol use and he was counseled regarding the consumption of alcohol
in light of his elevated liver function test and his history of epilepsy”)).
Moreover, contacting Dr. Yearwood to further develop an already-adequate record
would have been a particularly fruitless exercise in this case. The ALJ found that Hunter was
also noncompliant with his seizure and hypertension medications that would restore ability
to work. (R. 15, 18). “‘[R]efusal to follow prescribed medical treatment without a good
reason will preclude a finding of disability.’” Ellison v. Barnhart, 355 F.3d 1272, 1275
(quoting Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)). Hunter has not
challenged the ALJ’s determination that a finding of disability is precluded by his
noncompliance with prescribed medications without good cause. (R. 18). The record
substantially supports that finding.

Neither uncritical acceptance of Dr. Yearwood’s

questionnaire response about the effects of alcohol nor further development of the record
would have altered the ALJ’s ultimate conclusion that noncompliance with treatment
precludes a finding of disability in this case. Therefore, reversible error cannot be predicated

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on the ALJ’s decision not to contact Dr. Yearwood for further explanation about the effects
of alcohol on Hunter’s epilepsy. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)
(applying the harmless error standard in a social security case).
V. Conclusion
For the reasons as stated, the court concludes that the decision of the Commissioner
denying benefits to Hunter should be affirmed. See Landry v. Heckler, 782 F.2d 1551,
1551-52 (11th Cir. 1986) (“Because the factual findings made by the [ALJ] . . . are supported
by substantial evidence in the record and because these findings do not entitle [the claimant]
to disability benefits under the appropriate legal standard, we affirm.”).
The Court will enter a separate final judgment.
Done this 24th day of June, 2013.

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

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