Whitt v. Colvin (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 7/30/2014. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIVIL ACTION NO.: 2:13cv518-WC
Plaintiff, Linda Whitt, applied for disability insurance benefits and supplemental
security income benefits. Her 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, 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 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
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.
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. 9); Def.’s Consent to
Jurisdiction (Doc. 10). Based on the court’s review of the record and the briefs of the
parties, the court AFFIRMS the decision of the Commissioner.
STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person is
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?
(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
(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
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
answer to any question, other than step three, leads to a determination of
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. The RFC is what the claimant is
still able to do despite the claimant’s 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
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
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).
See 20 C.F.R. pt. 404 subpt. P, app. 2.
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
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).
Plaintiff was forty-nine years old at the time of the decision, Tr. 43, and has a
seventh grade education, Tr. 29. Following the administrative hearing and employing the
five-step process, the ALJ found Plaintiff “has not engaged in substantial gainful activity
since December 25, 2009, the alleged onset date.” (Step 1) Tr. 26. At Step 2, the ALJ
found that Plaintiff suffers from severe impairments of “obesity, minor coronary artery
disease, and early mild lumbar spine degenerative disc disease at L3-4,” and “nonsevere
impairments of hypertension and reported history of depression.” Id. 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) Tr. 28.
Next, the ALJ found that Plaintiff has the RFC to perform light work with additional
limitations. Id. After consulting the VE, the ALJ concluded that Plaintiff “is capable of
performing past relevant work” as a desk clerk, bottle line attendant, and inspector. (Step
4) Tr. 34.
Accordingly, the ALJ determined that Plaintiff “has not been under a
disability, as defined in the Social Security Act, from December 25, 2009, through the
date of th[e] decision.” Id.
Plaintiff presents three issues for this court’s consideration in review of the ALJ’s
decision: (1) whether “[t]he Commissioner’s decision should be reversed because the
ALJ committed reversible error by substituting his own opinion in place of opinions by
Dr. Sam Banner and Dr. William Watson”; (2) whether “[t]he Commissioner’s decision
should be reversed because the ALJ’s finding that [Plaintiff] is capable of performing
light work is not supported by substantial evidence”; and (3) whether “[t]he
Commissioner’s decision should be reversed because the ALJ failed to properly consider
[Plaintiff]’s credibility.” Pl.’s Br. (Doc. 12) at 5. The court will address each argument
Whether the ALJ erroneously substituted his own opinion in place of
opinions issued by physicians
Plaintiff first argues that “the ALJ failed to follow the uncontradicted medical
opinions and impermissibly substituted his ‘medical opinion’ for that of the examining
physicians.” Pl.’s Br. (Doc. 12) at 9. In this case, the ALJ reviewed the opinions of no
fewer than four physicians; however, only Dr. Sam Banner and Dr. William Watson
provided RFC assessments for the ALJ’s review. Both Drs. Banner and Watson found
Plaintiff to have a more restrictive RFC than that which the ALJ assigned Plaintiff. Tr.
31. Plaintiff challenges the ALJ’s decision to give “‘little weight’ to the opinions of Dr.
Sam Banner and ‘no weight’ to the opinions of Dr. William Watson” and, instead, to
“assess [Plaintiff] as having the RFC to perform ‘light work’ with certain limitations.”
Id. at 7. After reciting pieces of Drs. Banner and Watson’s opinions, Plaintiff argues that
“the ALJ offer[ed] no facts to support his contention that [Plaintiff] is less limited than
Dr. Banner and Dr. Watson indicated,” and, thus, “the ALJ failed to follow the
uncontradicted medical opinions and impermissibly substituted his ‘medical opinion’ for
that of the examining physicians.” Id. at 9.
In response, Defendant argues that the ALJ did not error as the opinions of Drs.
Banner and Watson “were entitled to little or no weight because they were based almost
exclusively on Plaintiff’s unreliable subjective complaints, were not supported by the
physicians’ examination findings, and were inconsistent with other substantial evidence
in the record.” Def.’s Br. (Doc. 15) at 10.
“[T]he ALJ may reject the opinion of any physician when the evidence supports a
contrary conclusion.” Carson v. Comm’r of Soc. Sec., 373 F. App’x 986, 988 (11th Cir.
2010) (citing Syrock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)). Here, the ALJ
rejected the opinions of Drs. Banner and Watson because the evidence did support a
contrary conclusion. The ALJ found these opinions to be based almost entirely on
subjective complaints of pain. Indeed, the ALJ explicitly stated as much: Dr. Banner’s
opinion was given “little weight” because Dr. Banner relied on “no findings other than
subjective chronic low back pain . . . and [a] subjective report of depression,” and Dr.
Watson’s opinion was given “no weight” because “Dr. Watson reported repeatedly
throughout his assessment that [his opinion] was based on [Plaintiff]’s subjective
complaints with no basis in objective findings.” Tr. 33. The ALJ also expressly noted
that the opinions of Drs. Banner and Watson were not supported by any examination
findings. Id. The ALJ laid out in detail the findings of every medical opinion provided
in this case, evidencing the inconsistencies with the record evidence as a whole and the
opinions of Drs. Banner and Watson. Therefore, the court finds that the ALJ properly
rejected the opinions of Drs. Banner and Watson because the evidence supports a
contrary conclusion. Once the opinions were rejected, “the ALJ was not required to
include findings in the hypothetical that the ALJ had properly rejected as unsupported.”
Crawford v. Comm’r Of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
Since the ALJ properly rejected the assessments of Drs. Banner and Watson based
on the evidence that supported a contrary conclusion, the court finds that the ALJ did not
erroneously substitute his own opinion for that of a physician.
Whether the ALJ’s finding that Plaintiff is capable of performing light
work is supported by substantial evidence
Plaintiff argues that the ALJ’s RFC assessment is not comprehensive “because it
was not supported by an assessment made by an examining or treating physician,” and,
thus, “the ALJ’s RFC assessment is not supported by substantial evidence.” Pl.’s Br.
(Doc. 12) at 13. In essence, Plaintiff’s argues that Drs. Banner and Watson provided the
only physical RFC assessments of Plaintiff, and that because the ALJ did not rely on
these, the ALJ’s RFC was not supported by substantial evidence.
The court finds no merit to this argument. Simply because Drs. Banner and
Watson were the only opinions on file regarding Plaintiff’s work limitations does not
entitle these opinions to any specific amount of weight. The record before the ALJ
regarding Plaintiff’s condition included records from (1) Dr. Todd B. Pearlstein covering
the period between 2008 and 2010; (2) Crenshaw Community Hospital from 2010; and
(3) Dr. N. George from 2010; as well as those from Drs. Banners and Watson from 2011.
The ALJ had before him sufficient medical evidence from which he could make a
reasoned determination of Plaintiff’s RFC. Thus, he was not required to secure from a
medical source an RFC evaluation. Moseley v. Colvin, 2:13CV328-TFM, 2014 WL
1320238, *15 (M.D. Ala. Mar. 31, 2014) (finding no mandatory requirement that an ALJ
“secure a residual functional capacity assessment from a medical source.”); see also
Holden v. Colvin, 3:12-CV-899-CSC, 2014 WL 896988, *4 (M.D. Ala. Mar. 6, 2014);
Packer v. Astrue, 2013 WL 593497, *3 (S.D. Ala. Feb. 14, 2013). Accordingly, the court
finds no error.
Whether the ALJ failed to properly consider Plaintiff’s credibility
Plaintiff argues that “the ALJ failed to properly consider [Plaintiff]’s credibility”
because the ALJ impermissibly noted Plaintiff’s alleged lack of treatment. Pl.’s Br.
(Doc. 12) at 14. Plaintiff asserts that SSR 96-7p requires that “an ALJ must ‘not draw
any inferences about an individual’s symptoms and their functional effects from a failure
to seek or pursue regular medical treatment’ without first considering evidence of record
which may explain ‘infrequent or irregular medical visits or failure to seek medical
treatment.’” Id. (quoting SSR 96-7). Plaintiff argues that she had “valid reasons for an
alleged lack of treatment,” namely a lack of medical insurance, and thus the ALJ erred by
failing to determine whether these reasons excuse Plaintiff from failing to pursue
treatment in a consistent manner. Id. Defendant responds that the ALJ did not error
because the determination that Plaintiff’s complaints were not entirely credible was based
on inconsistencies in Plaintiff’s own statements, the effectiveness of Plaintiff’s treatment,
and objective evidence. Def.’s Br. (Doc. 15) at 14-15.
The ALJ has the discretion to assess a claimant’s credibility, so long as the ALJ
“clearly articulate[s] explicit and adequate reasons” for the credibility determination.
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (internal quotation marks
Here, the ALJ articulated explicit and adequate reasons for finding
“[Plaintiff]’s statements concerning the intensity, persistence and limiting effects of [her]
symptoms [to be] not credible to the extent they are inconsistent with the [RFC].” Tr. 32.
Aside from the medical evidence that supported the ALJ’s findings that Plaintiff can
perform light work activity with additional restrictions, Plaintiff’s own contradictions led
to the ALJ’s credibility finding. Specifically, the ALJ highlighted that although Plaintiff
complained of obesity, Plaintiff’s strength and activities showed that the obesity was not
disabling. The ALJ pointed out that although Plaintiff complained of coronary artery
disease, all medical evidence and Plaintiff’s own testimony show that the heart condition
from which Plaintiff previously suffered no longer requires treatment or medication and,
thus, is not disabling. The ALJ explained that, although Plaintiff’s “main complaint, and
the reason she testified that she left her last job, was due to back pain[,] . . . her records
reveal only mild lumbar spine degenerative disc disease at L3-4.” Tr. 33. Additionally,
the ALJ noted that Plaintiff alleged an onset date of December 2009, yet Plaintiff
continued work in 2010 and 2011.
Plaintiff testified that she was receiving
unemployment, which requires a person “to report they are ready, willing, and able to
take a job if one is found for them.” Id. The medical evidence summarized in the
decision and the contradictions within Plaintiff’s statements highlighted by the ALJ are
sufficient to show that the ALJ clearly articulated explicit and adequate reasons for the
credibility determination. The ALJ did state that “[t]he [RFC] assessment is supported by
the records of evidence and the lack of records of evidence. [Plaintiff] has minimal
However, even without this statement, the ALJ provided
sufficient reason for his assessment. Thus, any error based on the failure to consider
Plaintiff’s excuses for failing to pursue treatment in a consistent manner would be
harmless. The court finds that the ALJ properly articulated the reasons for his assessment
of Plaintiff’s credibility with respect to Plaintiff’s subjective complaints, and no
reversible error occurred.
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 30th day of July, 2014.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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