Bell v. Colvin (CONSENT)

Filing 14

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 4/4/2014. (djy, )

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

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CIVIL ACTION NO.: 2:13cv199-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Eugene Bell, applied for disability insurance benefits and supplemental

security income. His application was denied at the initial administrative level. Plaintiff
then requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ issued a decision in which the ALJ found Plaintiff not
disabled at any time through the date of the decision. Plaintiff appealed that decision to
the Appeals Council. At that point, the ALJ’s decision was remanded back upon an
unopposed motion. Following a second hearing, the ALJ rendered another unfavorable
decision, and the Appeals Counsel rejected Plaintiff’s request for review of the ALJ’s
decision.

The ALJ’s decision consequently became the final decision of the

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Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). The case is now before the court for review under 42 U.S.C. §
405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all
proceedings and entry of a final judgment by the undersigned United States Magistrate
Judge. Pl.’s Consent to Jurisdiction (Doc. 8); Def.’s Consent to Jurisdiction (Doc. 9).
Based on the court’s review of the record and the briefs of the parties, the court
AFFIRMS the decision of the Commissioner.
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.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 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.

2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.

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(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 [the Listing of
Impairments]?
(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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
3

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).

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Vocational Guidelines4 (grids) or call a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s 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); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support 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
4

See 20 C.F.R. pt. 404 subpt. P, app. 2.

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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.

ADMINISTRATIVE PROCEEDINGS
Plaintiff is forty-eight years old and has a GED.

Tr. 285.

Following the

administrative hearing, and employing the five-step process, the ALJ found Plaintiff “has
not engaged in substantial gainful activity since May 31, 2006, the alleged onset date.”
(Step 1) Tr. 282. At Step 2, the ALJ found that Plaintiff suffers from the following
severe impairments: “right ankle crush injury, mild bilateral carpal tunnel syndrome,
polyarthropathy, plantar fasciitis of the left foot, and mild depression.” Tr. 283. The ALJ
then found that Plaintiff “does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments.” (Step 3) Id.
Next, the ALJ found that Plaintiff has
the [RFC] to perform less than the full range of light work . . . .
Specifically, he can stand and walk no longer than 30 minutes at a time and
no more than 2 hours total in an 8-hour day. He has no restriction on
sitting. He cannot operate foot controls; climb ladders, scaffolds, or ropes;
or work around unprotected height and dangerous equipment. He can no
more than occasionally climb stairs or ramps, bend, stoop, kneel, crouch,
and crawl. He can no more than frequently handle and finger. He cannot
perform complex or detailed job instructions. He cannot work in crowds.
He can have no more than occasional contact with the public. He is not
limited to minimal changes in work settings and routines.
Tr. 284-8. The ALJ then concluded that Plaintiff “is unable to perform any past relevant
work.” (Step 4) Tr. 289. At Step 5, the ALJ found that, “[c]onsidering the claimant’s
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age, education, work experience, and residual functional capacity,” and after consulting
with the VE, “there are jobs that exist in significant numbers in the national economy that
the claimant can perform.” Tr. 290. The ALJ identified the following occupations as
examples: “office helper,” “mail clerk nonpostal,” and “packer.” Id. Accordingly, the
ALJ determined that Plaintiff “has not been under a disability, as defined in the Social
Security Act, from May 31, 2006, through the date of this decision.” Id.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents two issues for this court’s consideration in review of the ALJ’s

decision: (1) whether the Commissioner’s decision should be reversed because the ALJ
failed to accord adequate weight to the opinion of Mr. Bell’s treating physician, Dr.
Davis; and (2) whether the Commissioner’s decision should be reversed because the ALJ
failed to specify the weight, if any, assigned to the medical opinions used to support her
RFC. Pl.’s Br. (Doc. 11) at 6. The court will address each argument below.
V.

DISCUSSION
A.

Weight Accorded to the Treating Physician’s Opinion

Plaintiff argues that the ALJ failed to accord adequate weight to the opinion of Dr.
Stephen Davis. Dr. Davis was Plaintiff’s treating physician, and Plaintiff argues that his
opinion should have been given substantial weight. Specifically, Plaintiff asserts that the
ALJ failed to “apply the rules outlined by the regulations or Eleventh Circuit case law in
evaluating the opinion of a treating physician.” Pl.’s Br. (Doc. 11) at 9. Plaintiff
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properly cites to the applicable standard, that a treating physician’s opinion should
receive controlling weight “unless there is good cause.” Pl.’s Br. (Doc 11) at 7 (citing
Sabo v. Chater, 955 F. Supp. 1456, 1462 (M.D. Fla. 1996)). Indeed, the ALJ did not give
Dr. Davis’s opinions controlling weight based on the inconsistency of the doctor’s
records and inconsistency with objective medical evidence in the record. See Tr. 288-89.
Normally an ALJ must give the opinion of a treating physician “substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” See Phillips, 357
F.3d at 1240. “‘[G]ood cause’ exists when 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.” Id. at 1240-41. Further, “[t]he ALJ must clearly articulate the reasons for
giving less weight to the opinion of a treating physician, and the failure to do so is
reversible error.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (holding the ALJ “must
specify what weight is given to a treating physician’s opinion and any reason for giving it
no weight”).
Here, the ALJ articulated “good cause” for the rejection of Dr. Davis’s opinion—
that the opinion was inconsistent with his own medical records and that the evidence
supports a contrary finding. In fact, the decision explicitly states, “I have accorded Dr.
Davis’ opinion little weight because it is inconsistent with his own medical records and
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the evidence supports a contrary finding.” Tr. 288. The ALJ then went on to highlight
the inconsistencies. The ALJ noted that “Dr. Davis’s opinion that claimant could not
stand and walk even one hour during an 8-hour day” was belied by Dr. Davis’s treatment
notes that Plaintiff “stood at least three days a week at work in July 2007,” and
“remain[ed] on his feet ‘all day’ in September of 2007.” Tr. 289. The ALJ also
expressed that “Dr. Davis did not prescribe an assistive device for ambulation, which is
not consistent with a standing/walking limitation of the severity [Dr. Davis] assessed.”
Id. The ALJ also found Dr. Davis’s opinion that “physical activity, including standing
and walking, would exacerbate [Plaintiff]’s pain to the point bed rest would be
necessary,” to be inconsistent with Plaintiff’s work activity. Id. Additionally, the ALJ
pointed to the inconsistent opinion of Dr. Davis that Plaintiff “has substantial limitations
of his gross and fine manipulation; however, his office treatment notes do not reflect
treatment for or complaints of symptoms related to [Plaintiff]’s upper extremities.” Id.
Lastly, the ALJ stated, “I also note that the internal inconsistencies in Dr. Davis’ report
regarding [Plaintiff]’s maximum ability to lift and carry [50 pounds frequently and 100
pounds occasionally] and his limitations in fine manipulation indicate that Dr. Davis did
not carefully consider his opinion.” Id.
Plaintiff asserts that “[t]he statement by the ALJ that Dr. Davis’s assessment is
inconsistent with his own medical records is clearly inaccurate.” Pl.’s Br. (Doc. 11) at
11. Additionally, Plaintiff argues that “[b]ased upon the extensive history of complaints
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of chronic foot pain, as well as Dr. Davis’ professional opinion that [Plaintiff]’s foot
condition is not expected to improve, it would not be unreasonable for Dr. Davis to
completely restrict Plaintiff from standing on his feet.” Id. Based on the inconsistencies
discussed above, the court disagrees. The ALJ articulated good cause and the court finds
that the determination is supported by substantial evidence.
Plaintiff also argues that it was “error for the ALJ to dismiss the treating
physician’s opinion . . . without specifically considering and discussing the factors listed
in 20 C.F.R. § 404.1527(d).” Pl.’s Br. (Doc. 11) at 12. Specifically, Plaintiff alleges that,
“[g]iven the extensive history of treatment between Dr. Davis and [Plaintiff],” the ALJ
was required to “properly consider[] the factors” prior to assigning little weight to Dr.
Davis’s opinion. Id. The court notes that § 404.1527(d), entitled “Medical source
opinions on issues reserved to the Commissioner,” does not list factors that must be
considered when an ALJ does not accord a treating physician’s opinion controlling
weight. Rather, it appears Plaintiff intended to cite to § 404.1527(c), which does include
such factors, which include the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, supportability of the
opinion, consistency of the opinion with the record as a whole, and the specialization of
the treating source. 20 C.F.R. § 404.1527(c).
Plaintiff has not presented any law that requires the ALJ to expressly discuss each
of these factors individually. Further, the ALJ did expressly discuss the inconsistencies
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of the opinion with the record as a whole, as discussed above. Tr. 288-289. It is also
clear from the decision that the ALJ did consider, at least to some extent, the length of the
treatment relationship, frequency of examination, and nature and extent of the treatment
relationship, as the ALJ’s decision summarized multiple occasions on which Plaintiff
presented to Dr. Davis for examination or treatment.

Tr. 285-89.

Regardless, as

discussed above, the ALJ’s rejection was in accord with the requirements articulated by
this circuit.
The court has reviewed Dr. Davis’s opinion and agrees with the ALJ’s
determination to accord it little weight. The opinion appears to be unsupported by the
other medical record of evidence and inconsistent with the doctor’s treatment notes.
Accordingly, the court finds no error.
B.

Weight Accorded to the Opinions of Other Physicians

Plaintiff argues that “[t]he ALJ failed to state with specificity what weight, if any,
was assigned to the opinions she relied upon in support of her RFC.” Pl.’s Br. (Doc. 11)
at 12. Specifically, Plaintiff asserts that the ALJ only discredited the opinion of Dr.
Davis and neglected to discuss the weight she assigned to the opinions of State Agency
Consultant Susan Davis, Dr. David Alford, Dr. J.W. Johnson, Dr. In Young Soh, Dr.
Stacy Goode, and Dr. Vijay Vyas. Id. at 13.
“There is no requirement in the Social Security regulations or rulings that the ALJ
assign any weight to non-medical sources, only that the evidence be considered.” Reed v.
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Astrue, 2009 WL 3571699 at *3 (S.D. Ala. Oct. 26, 2009) (unpublished). State Agency
Consultant Susan Davis was not a physician; she was a state agency reviewing staff
member, so there is no requirement that the ALJ explain any weight assigned to her
opinion. All that is necessary is that the ALJ’s decision be clear enough to allow a
reviewing court to determine whether the decision was supported by substantial evidence.
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (“there is no rigid requirement
that the ALJ specifically refer to every piece of evidence in his decision, so long as the
ALJ’s decision” enables the reviewing court to determine the ALJ considered the
evidence). Ms. Davis’s opinion was based on a review of Plaintiff’s records, which
included Plaintiff’s statements regarding his own symptoms. The ALJ considered and
discussed Plaintiff’s statements of his symptoms and found them to be not credible. See
Tr. 286.

Therefore, the court is able to determine that, although the ALJ did not

explicitly discuss Ms. Davis’s opinion, the ALJ adequately considered the information
contained within it.
As to doctors Alford, Johnson, Soh, Goode, and Vyas, Defendant argues that
“Plaintiff does not show any of the above physicians actually gave ‘medical opinions’
concerning [Plaintiff’s] condition” and, therefore, do not need to be addressed by the
ALJ. Def.’s Br. (Doc. 12) at 8. The court finds this argument to be unpersuasive.
In Winschel v. Commissioner of Social Security, 631 F.3d 1176 (11th Cir.
2011), the Eleventh Circuit held that whenever a physician offers a
statement reflecting judgments about the nature and severity of a claimant’s
impairments, including symptoms, diagnosis, and prognosis, what the
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claimant can still do despite his or her impairments, and the claimant’s
physical and mental restrictions, the statement is an opinion requiring the
ALJ to state with particularity the weight given to it and the reasons
therefor. Id. at 1179 (citing 20 C.F.R. §§ 404.1527(a) (2), 416.927(a)(2);
Sharfarz, 825 F.2d at 279).
Thompson v. Colvin, 3:11-CV-1048-J-TEM, 2013 WL 1278083, *3 (M.D. Fla. Mar. 28,
2013) (emphasis added). As further discussed below, it is clear from a review of the
record that these doctors did offer statements reflecting judgments about Plaintiff’s
symptoms and diagnosis.
“An ALJ’s failure to state with particularity the weight given different medical
opinions is reversible error.” Caldwell v. Barnhart, 261 F. App’x 188, 190 (11th Cir.
2008) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam)).
“[H]owever, [when] an incorrect application of the regulations results in harmless error
because the correct application would not contradict the ALJ’s ultimate findings, the
ALJ’s decision will stand.” Caldwell, 261 F. App’x at 190. Courts have generally found
that an ALJ’s failure to state what weight is accorded a particular piece of medical
opinion evidence is harmless when the ALJ has relied upon other opinion evidence that is
consistent with the omitted evidence or the omitted opinion is consistent with the ALJ’s
ultimate findings. See, e.g., id. at 191; Wright v. Barnhart, 153 F. App’x 678, 684 (11th
Cir. 2005).
A review of the medical evidence in this case demonstrates that any limitations
placed by the doctors are consistent with the ALJ’s findings that Plaintiff can perform a
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limited range of light work with some limitations. As to the medical opinions of Dr.
Alford, Plaintiff states that “[t]reatment notes from Dr. [] Alford in 2006 diagnose
[Plaintiff] with highly comminuted displaced calcaneus fracture of the right ankle, with
fracture blisters.” Pl.’s Br. (Doc. 11) at 13 (citing Tr. 222). The fact that Plaintiff had a
badly broken ankle was discussed throughout the ALJ’s decision. Indeed, the ALJ
referred to the broken ankle as a “right ankle crush injury” and discussed the progress and
effects of Plaintiff’s ankle injury no less than ten times throughout the decision, even
finding Plaintiff’s right ankle crush injury to be a severe impairment. (Tr. 283-89). As to
the medical opinions of Dr. Johnson, Plaintiff states that “Dr. [] Johnson opined
[Plaintiff] has a marked limitation of motion in his right ankle and also suffers from
chronic pain syndrome.” Pl.’s Br. (Doc. 11) at 13 (citing Tr. 484, 486, 488, 490). The
ALJ repeatedly discussed that Plaintiff had varying limitations in his right ankle’s range
of motion and that Plaintiff’s ankle causes him pain. In fact, the ALJ explicitly stated
Plaintiff “exhibited marked limitation of motion in his right ankle.” (Tr. 287).5 As to the
medical opinions of Dr. Soh, Plaintiff states that Dr. Soh “assessed [Plaintiff] as having
osteoarthritis of the finger and knee joints, as well as demineralization of the right tarsal
bones secondary to disuse of the right foot.” Pl.’s Br. (Doc. 11) at 13 (citing Tr. 497).
The ALJ discussed Plaintiff’s arthritis throughout the opinion, finding it to be a severe

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Plaintiff also states that “Dr. Johnson also noted [Plaintiff] complained of weakness of both legs and
thighs, present for years, and [Plaintiff] was concerned something was wrong with the muscles in his
legs.” Pl.’s Br. (Doc. 11) at 13 (citing Tr. 492). Plaintiff’s concern that something may be wrong with
himself is not a medical opinion. Therefore, the ALJ was not required to discuss this assertion, and the

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impairment. (Tr. 283). Additionally, the ALJ explicitly stated “an X-ray of [Plaintiff’s]
foot showed demineralization of the tarsal and metatarsal bones.” (Tr. 287). The court
also notes that the RFC limited Plaintiff’s standing and walking because of his ankle
injury and limited Plaintiff’s handling and fingering. Therefore, because the ALJ relied
upon other opinion evidence that was consistent with the opinions of doctors Alford,
Johnson, and Soh, and all of the opinions are consistent with the ALJ’s ultimate findings,
any error is harmless. Caldwell, 261 F. App’x at 191.
Plaintiff also argues error for the ALJ’s alleged failure to give weight to the
opinions of doctors Goode and Vyas. The court notes three issues with this argument.
First, Plaintiff fails to point the court to a single medical opinion by either of these
physicians that would contradict the ALJ’s findings. Second, a review of doctors Goode
and Vyas medical opinions contained in the administrative record reflect opinions
consistent with the other opinion evidence discussed by the ALJ and consistent with the
ALJ’s ultimate findings. Third, the ALJ, at least to some extent, clearly did consider the
opinions of doctors Goode and Vyas, as evidenced by the ALJ’s statement that “the
treatment notes of [Dr.] Goode[ ] and [Dr.] Vyas[ ] are not completely legible,” but
neither doctor found Plaintiff to be in need of a referral to treatment from a mental health
specialist. Tr. 285-86.

failure to do so was not error. Reed, 2009 WL 3571699 at *3.

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Plaintiff fails to point to any medical opinion that contradicts the ALJ’s findings as
to the ALJ’s RFC determination. Accordingly, to the extent the ALJ’s failure to state
what weight she gave to the medical opinions was error, it was harmless.
VI.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is AFFIRMED.
separate judgment will issue.
Done this 4th day of April, 2014.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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A