McVay v. Colvin(CONSENT)

Filing 15

MEMORANDUM OPINION: The court has carefully and independently reviewed the record and concludes that, for the reasons given above, the decision of the Commissioner is AFFIRMED. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr on 8/25/2015. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RAYMOND HOWARD SMITH MCVAY, )
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.: 2:14-cv-897-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Raymond Howard Smith McVay (“Plaintiff”) filed applications for disability

insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401,
et seq, and for supplemental security income under Title XVI of the Act, 42 U.S.C. §
1381, et seq., on June 21, 2011. His applications were 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 finding Plaintiff not
disabled from the alleged onset date of July 18, 2009, through the date of the decision.
Plaintiff appealed to the Appeals Council, which rejected his 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 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.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to 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?
(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

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.
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.

2

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. 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 may 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

3
McDaniel 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).
4

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

3

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
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).

4

III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff, who was thirty-two years old on the alleged disability onset date, has a

college education. Tr. 31. Following the administrative hearing, and employing the fivestep process, the ALJ found at Step One that Plaintiff “has not engaged in substantial
gainful activity since July 18, 2009, the alleged onset date[.]” Tr. 12. At Step Two, the
ALJ found that Plaintiff suffers from the following severe impairments: “status post
severe diabetic ketoacidosis event, July 2009, with renal failure and anemia, resolved;
obesity; diabetes mellitus type 2, currently uncomplicated; possible headaches; right side
weakness resolved; disturbance/loss of protective sensation, right foot, without weakness,
deformity, callus, pre-ulcer or history of ulceration; obesity; hypertension; history of
edema, resolved; mood disorder; possible major depressive disorder, recurrent moderate;
panic disorder without agoraphobia[.]” Id. At Step Three, the ALJ 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[.]” Tr. 15. Next, the ALJ articulated
Plaintiff’s RFC as follows:
[Plaintiff] has the residual functional capacity to perform medium work as
defined in 20 C.F.R. 404.1567(c) and 416.967(c) except [Plaintiff] can sit,
stand, and walk up to six hours each over the course of an eight-hour
workday. [Plaintiff] does not suffer any manipulative or visual limitations.
[Plaintiff] cannot climb ladders, ropes, or scaffolds. [Plaintiff] can
frequently climb ramps and stairs. [Plaintiff] can frequently balance, stoop,
kneel, crouch, and crawl. [Plaintiff] can frequently work in humidity,
wetness, and extreme temperatures. [Plaintiff] cannot work at unprotected
heights. [Plaintiff] cannot work directly with hazardous machinery.
However, he can work in close proximity of hazardous machinery. He can
also work with non-hazardous machinery. [Plaintiff] can frequently operate
a commercial vehicle.
[Plaintiff] possesses more than sufficient
concentration, persistence, and pace necessary to understand, remember,
5

and carry out simple instructions in the performance of simple work
activity over the course of an eight-hour workday, with all customary rest
breaks. [Plaintiff] does not require intensive or frequent supervision.
However, supervision should be supportive and non-confrontational.
[Plaintiff] is capable of independent judgment regarding simple work
activity. However, changes to his work activity or settings should be
infrequent. Contact with coworkers can be frequent, but should be nonintensive. Contact with the public should be occasional and non-intensive.
Tr. 17. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that
Plaintiff “was unable to perform any past relevant work[.]” Tr. 30. Finally, at Step Five,
and relying upon the testimony of the VE, the ALJ determined that “[c]onsidering the
claimant’s age, education, work experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national economy that the claimant can also
perform[.]” Tr. 31. Accordingly, the ALJ determined that Plaintiff “has not been under a
disability, as defined in the Social Security Act, from July 18, 2009, through the date of
th[e] decision[.]” Tr. 32.
IV.

PLAINTIFF’S CLAIMS
The sole issue Plaintiff presents for this court’s consideration in review of the

ALJ’s decision is whether “[t]he Commissioner’s decision should be reversed because
the substantial evidence of record does not support the ALJ’s [RFC] assessment” “as both
the physical and mental restrictions found by the ALJ are less restrictive than any other
RFC, physical or mental, found in the record[.]” Pl.’s Br. (Doc. 12) at 5, 7. Although
presented as one issue, Plaintiff’s argument appears to be four-fold:5 (1) that the ALJ
erred in discounting the opinion of Plaintiff’s treating psychiatrist, Dr. Thomas Merritt;

5
The court uses the phrase “appears to be four-fold” because Plaintiff’s argument section, although not
separated into distinct arguments, is interwoven with what appear to be four distinct claims.

6

(2) that the ALJ did not properly consider the opinion of the consultative examiner, Dr.
Fernell Warren, or the state agency medical consultant, Dr. Robert Estock; (3) that the
ALJ “relied upon his own interpretation of the medical evidence in place of that of a
reviewing physician” when formulating Plaintiff’s RFC; and (4) that “the ALJ may be
seen to have proffered an incomplete hypothetical question to the VE.” Id. at 6-14. The
court will discuss each argument separately below.
V.

DISCUSSION
A.

Whether the ALJ properly considered the opinion of Plaintiff’s
treating physician

Plaintiff first argues that the ALJ’s opinion is less restrictive than the opinion of
Dr. Thomas Merritt, Plaintiff’s treating psychiatrist, which, Plaintiff argues, should have
been given substantial weight. Pl.’s Br. (Doc. 12) at 7. Specifically, Plaintiff points to
Dr. Merritt’s opinion that Plaintiff
would have marked limitations in the areas of (1) his ability to get along
with co-workers or peers, (2) degree of constriction of interests, (3) ability
to understand, remember, [and] carry out complex instructions, (4) ability
to maintain attention and concentration for extended periods, (5) ability to
perform activities within a schedule, maintain regular attendance[,] and be
punctual within customary tolerances, (6) ability to sustain a routine
without special supervision, and (7) the ability to respond appropriately to
supervisor, changes in the work setting, and customary work pressures.
Id. at 8-9. Plaintiff asserts that, contrary to the ALJ’s determination that “the physical
healthcare records are grossly devoid of any objective or medical evidence from which
anyone could assess or guess there was marked limitation in mental functioning” (Tr. 29),
“the record does in fact make reference to impairments in psychological functioning.”
Pl.’s Br. (Doc. 12) at 9. Later in his brief, Plaintiff clarifies that the “most notabl[e]” of
7

the medical evidence of record that references psychological impairments, aside from Dr.
Merritt’s opinion, can be found in the opinion of Dr. Fernelle Warren.6 Id. at 14.
In general, “[a]bsent ‘good cause,’ an ALJ is to give the medical opinions of
treating physicians ‘substantial or considerable weight.’” Winschel v. Comm’r, Soc. Sec.
Admin., 631 F.3d 1176, 1179 (11th Cir. 2011) (quoting Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997)). “Good cause exists ‘when the (1) treating physician
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. (quoting Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir.
2004)). If the ALJ disregards a treating physician’s opinion, or affords it less than
“substantial or considerable weight,” the ALJ must “‘clearly articulate [the] reasons’ for
doing so.” Id. (quoting Phillips, 357 F.3d at 1240-41).
In addressing Dr. Merritt’s opinion, the ALJ explained as follows:
[T]he medical records following [Plaintiff’s] appeal [of the ALJ’s decision]
. . . show no evidence of mental or physical disability and questionable
evidence of severe impairment. [The records of b]oth the mental health
care provider and the physical care provider show routine functioning with
minimal limitation, if any.
Nonetheless, and incredulously, on November 7, 2012, [Plaintiff]’s treating
psychiatrist[, Dr. Merritt,] and therapist [Deena Croley, MS] offered a
medical source opinion indicating [Plaintiff] suffered marked limitation in
his ability for the following activities: getting along with co-workers or
peers; understanding, remembering, and carrying out complex instructions;
maintaining attention and concentration for extended periods; performing
activities within a schedule, maintaining regular attendance and being
punctual within customary tolerances; sustaining a routine without special
supervision; to responding appropriately to supervision; responding

6
The ALJ’s treatment of Dr. Warren’s opinion is discussed in-depth below.

8

appropriately to changes in the work setting; and responding to customary
work pressures. They further advised that [Plaintiff] suffers extreme
limitation in his ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms and his ability
to perform at a consistent pace without an unreasonable number and length
of rest periods.
As suggested immediately above, the undersigned f[i]nds this report
nothing less than incredible. The undersigned carefully chronicled and
detailed [Plaintiff]’s physical and mental healthcare. That evidence
includes this provider’s records. The physical healthcare records are
grossly void of any objective or medical evidence from which anyone could
assess or guess there was marked limitation in mental functioning. In fact,
[Plaintiff]’s subjective reports to physical providers—subsequent to his
recovery from the event in 2009—are void of any indication of even
moderate limitation in mentation.
The reader is reminded that during the period that he purportedly suffered
marked and extreme limitation, [Plaintiff] was managing a household and
homeschooling three children. As noted above, his own parents suggested
that he return to work.
The evidence is all very clear. However, the treatment notes are more
instructive. The notes do not contain diagnoses, treatment, or restrictions
consistent with such an alarming assessment. A month earlier, the same
provider completed a mental status evaluation that failed to reveal any
indication of deficit in functioning. The notes show that they were aware
that he stayed home with his children; nonetheless, no restrictions were
offered in light of his purportedly severely limited mentation. The
undersigned finds that managing a home and three children, including
home schooling, is no less daunting than performing eight hours of simple
work activity. In fact, common sense dictates that there is a plausible
argument that such a routine would be more daunting per his precarious
state per the medical source statement.
Nothing is more telling than the first visit after that statement, November
28, 2012. The mental status evaluation was literally void of deficit. This is
crucial in that the provider noted that [Plaintiff] had a date for his hearing
before the undersigned.
The undersigned carefully considered all evidence of record, including
[Plaintiff]’s testimony. The undersigned firmly concludes that the mental
healthcare provider’s mental source statement is not consistent with or
9

supported by the medical or objective evidence of record, including their
own treatment records. The medical source statement [by Dr. Merritt]
warranted and received no weight.
Tr. 29-30 (internal citations omitted). Thus, the ALJ thoroughly articulated no less than
four distinct bases for his rejection of Dr. Merritt’s opinion, including that it is
inconsistent with (1) the overall evidence in the record, (2) his own treatment records, (3)
Plaintiff’s daily activities, and (4) the objective medical findings. Id. It is abundantly
clear that the ALJ’s rejection of Dr. Merritt’s opinion was not “a broad rejection” that
would leave the court to wonder whether the opinion had been considered as a whole. In
sum, Plaintiff has not shown that the ALJ lacked good cause in discounting the opinion of
Dr. Merritt, and the ALJ’s decision is supported by substantial evidence.
B.

Whether the ALJ properly considered the opinion of the consultative
examiner and state agency medical consultant

Next, Plaintiff argues that “the ALJ’s RFC finding is less restrictive than that of
Dr. Fernelle Warren” and “even less restrictive than that of State Agency medical
consultant Dr. Robert Estock.” Pl.’s Br. (Doc. 12) at 9-10. Thus, it appears Plaintiff is
challenging the weight the ALJ afforded to the opinions of Drs. Warren and Estock.
Additionally, Plaintiff asserts that “the ALJ failed to address Dr. Estock’s medical
opinion as to the limitations regarding work environment and absenteeism.” Id. at 12.
First, Drs. Warren and Estock were not treating physicians. Consequently, their
opinions were not entitled to controlling weight. See 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). In addition, the ALJ clearly set forth his reasons for rejecting specific
portions of their opinions. With respect to the opinion of Dr. Warren, a consultative
10

examiner, the ALJ pointed out that Plaintiff’s subjective reports to Dr. Warren, on which
Dr. Warren heavily relied, “range[d] from exaggeration to misstatement,” and “severely
lacked consistency.” Tr. 25. The ALJ also noted that Plaintiff failed to report his full
work and education history to Dr. Warren. Plaintiff stated that he last worked as a waiter,
making no mention of his role as an assistant manager, and altogether failed to mention
his college degree in emergency medicine. Id. Taking issue with Dr. Warren’s statement
that “[t]here were no discrepancies between [Plaintiff’s] report [to Dr. Warren] and the
content of historical documents reviewed by [Dr. Warren],” the ALJ stated that “if [Dr.
Warren] saw no[ discrepancies], the [ALJ] questions how thoroughly the doctor reviewed
the historical documents.” Tr. 26.
For similar reasons, the ALJ doubted the opinion of Dr. Estock, a state agency
medical consultant, specifically stating that “Dr. Estock clearly relied on the results of the
evaluation [completed by Dr. Warren].” Tr. 26. The ALJ concluded the discussion of
Dr. Warren and Dr. Estock’s opinions by stating that “their reports warranted some
weight,” but that, beyond the limitations included in the RFC, “their opinions are not
consistent with the medical and objective evidence of record or even the written report of
activities as opposed to reports of [Plaintiff’s] limitation.” Id.
Plaintiff’s argument that the ALJ failed to address Dr. Estock’s opinion that
Plaintiff had limitations regarding work environment and absenteeism has no merit. As
just discussed, the ALJ explained why Dr. Estock’s opinion was given only “some
weight,” and thus, to the extent portions of his opinion were not consistent with the RFC,
the ALJ implicitly rejected those portions of the opinion.
11

Because the court does not reweigh the evidence anew, and the ALJ articulated
specific reasons for discounting the opinions of Drs. Warren and Estock, which are
supported by substantial evidence, there was no reversible error in the weight given to the
doctors’ opinions.
C.

Whether the ALJ erred in formulating Plaintiff’s RFC by relying on
his own interpretation of the medical evidence in place of that of a
reviewing physician

Plaintiff also argues that “the ALJ’s RFC findings are not supported by substantial
evidence as both the physical and mental restrictions found by the ALJ are less restrictive
than any other RFC, physical or mental, found in the record.” Pl.’s Br. (Doc. 12) at 7.
Plaintiff continues, “[T]he ALJ synthesized his own RFC while rejecting portions of
every RFC found in the record.” Id. Thus, Plaintiff contends that, in formulating
Plaintiff’s RFC, “the ALJ relied upon his own interpretation of the medical evidence in
place of that of a reviewing physician,” which Plaintiff argues is error because “an ALJ
cannot substitute his judgment for that of the medical and vocational experts.” Id. at 13.
Specifically, Plaintiff asserts that “no examining or reviewing source ever opined that
[Plaintiff] would be capable of performing the demands of medium work,” and that “Dr.
[Robert] Heilpern found [Plaintiff] capable of limitations consistent with light work.” Id.
at 12, 13.
At the administrative hearing level, the ALJ is responsible for assessing a
claimant’s RFC.

20 C.F.R. §§ 404.1546(c), 416.946(c).

The ALJ must assess a

claimant’s RFC “based on all of the relevant medical and other evidence[,]” and, in
general, the claimant will be responsible for providing the evidence used to make a
12

finding about the RFC. § 404.1545(a)(3), § 416.945(a)(3). An ALJ’s RFC assessment
may be supported by substantial evidence, even in the absence of any examining medical
source opinion addressing Plaintiff’s functional capacity. See, e.g., Green v. Soc. Sec.
Admin., 223 F. App’x 915, 923 (11th Cir. 2007) (unpublished opinion) (finding the ALJ’s
RFC assessment supported by substantial evidence where he rejected treating physician’s
opinion properly and formulated the plaintiff’s RFC based on treatment records, without
a physical capacities evaluation by any physician); see also Dailey v. Astrue, 2012 WL
3206482, at *9 (S.D. Ala. July 18, 2012) (“an ALJ may reach an RFC determination in
appropriate circumstances on a record that does not include an RFC opinion from a
treating or examining medical source.”).
The ALJ had before him sufficient medical evidence from which he could make a
reasoned determination of Plaintiff’s RFC. To the extent that Plaintiff challenged the
ALJ’s treatment of medical opinions of record, those arguments have been rejected
above.

Because the regulations make clear that it is the ALJ, not a physician, who is

responsible for assessing a claimant’s RFC, the ALJ did not err by doing so.
D.

Whether a complete hypothetical question was posed to the VE

Finally, Plaintiff argues that, based on the ALJ’s treatment of [the opinions of Drs.
Warren and Estock], the ALJ may be seen to have proffered an incomplete hypothetical
question to the VE.” Pl.’s Br. (Doc. 12) at 11. Plaintiff continues, “[T]he ALJ clearly
failed to include specific limitations[,] which he failed to properly reject, calling into
question the completeness of his hypothetical question to the VE.” Id. at 12.

13

The court has reviewed the ALJ’s determination to reject portions of the opinions
of Drs. Merritt, Warren, and Estock and finds that the decision is supported by substantial
evidence. Once those portions of the opinion 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). Accordingly,
the ALJ did not err by relying on the testimony of the VE.
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.
A separate judgment will issue.
Done this 25th day of August, 2015.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

14