Pritchard v. Astrue
MEMORANDUM OPINION AND ORDER. Signed by Honorable Wallace Capel, Jr on 5/9/11. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
BRIAN LEE PRITCHARD,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CIVIL ACTION NO. 3:10cv321-WC
MEMORANDUM OPINION AND ORDER
Plaintiff Brian Lee Pritchard applied for disability insurance benefits under Title II of
the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq, and supplemental security
income payments under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. 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 in which he found Plaintiff not disabled from the alleged onset date of April 13,
2007, through the date of the decision. Tr. 25. The Appeals Council 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,
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
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. #12); Def.’s Consent to Jurisdiction (Doc. #13).
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 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 (2006).
(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?
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.
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
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 Vocational Guidelines4 (grids) or call a vocational
expert (VE). Id. at 1239-40.
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.
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 statutorilyrequired 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
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was forty-one years old at the time of the hearing before the ALJ. Tr. 30.
Plaintiff completed the twelfth grade. Tr. 30. Plaintiff’s past relevant work experience was
as a “finish lot coordinator,” “URB operator,” and stocker. Tr. 24; Tr. 49.5 Following the
administrative hearing, and employing the five-step process, the ALJ found Plaintiff had
“engaged in substantial gainful activity for a brief period of time after April 13, 2007,” but
that Plaintiff left his job in May of 2007 (Step 1). Tr. 16. At Step 2, the ALJ found that
Plaintiff suffers from the following severe impairments: “facet hypertrophy of the
lumbosacral spine; degenerative disk disease without spinal or foraminal stenosis; obesity;
borderline intellectual functioning; and mood disorder, not otherwise specified, with panic
attacks.” Tr. 16. The ALJ also found that Plaintiff has non-severe impairments, including
“hypertension, diabetes mellitus, enlarged prostate, and diverticulosis.” Tr. 16. The ALJ
then found that “[t]he claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments . . . .” (Step 3) Tr. 16. The ALJ
specifically addressed and rejected in this portion of his opinion Plaintiff’s claim that he
satisfies the listing for a disabling mental impairment. Tr. 17-18. Next, the ALJ found that
While the ALJ lists “URB operator” as one of Plaintiff’s previous occupations,
the vocational expert appears to describe this occupation as a “VRB core operator.” Tr. 49.
has the residual functional capacity to perform light work . . . with the
following limitations: lift/carry 20 pounds occasionally and 10 pounds
frequently; stand/walk 6 hours with the option to sit/stand at will; sit for 6
hours; no balancing; occasional stooping, kneeling, crouching, crawling, and
climbing of ramps and stairs; no climbing of ladders, ropes or scaffolds;
occasional exposure to extreme cold; and avoid all exposure to unprotected
heights. The claimant would need simple, routine tasks involving no more
than simple, short instructions and simple work-related decisions with few
work place changes; casual interaction with the public and with co-workers;
and workplace changes should be introduced gradually.
Tr. 18. The ALJ then found that Plaintiff is unable to perform his past relevant work. (Step
4) Tr. 24. The ALJ next found that, “[c]onsidering the claimant’s age, education, work
experience, and [RFC],” and after consulting with a vocational expert, “there are jobs that
exist in significant numbers in the national economy that the claimant can perform.” Tr. 24.
The ALJ identified the following occupations as examples: “small parts packager,” “wire
cutter,” and “marker, semiconductor wafers.” Tr. 24; see also id. at 50-51. Accordingly, the
ALJ determined that Plaintiff “has not been under a disability . . . from June April 13, 2007,
through the date of this decision.” Tr. 25.
Plaintiff presents the following issues for this Court’s consideration in determining
whether the ALJ’s decision is supported by substantial evidence: (1) whether the ALJ erred
in failing to give greater weight to the opinion of Plaintiff’s treating physician, and (2)
whether the ALJ erred in relying on a consultative examiner’s opinion regarding Plaintiff’s
mental impairment given that the examiner did not have certain school records pertaining to
Plaintiff at the time of the examination.
The ALJ’s treatment of Plaintiff’s treating physician’s opinion.
Plaintiff asserts that the ALJ reversibly erred in failing to give the opinion of
Plaintiff’s treating physician, Dr. Corbin, substantial weight. In his brief, Plaintiff describes
the lengthy treatment relationship he has maintained with Dr. Corbin and the two opinions
Dr. Corbin rendered, in August of 2007 and March of 2009, in which Dr. Corbin opined that
Plaintiff was limited to a “very limited range of sedentary work” and that his capacity for
even that level of work was “for less than an 8 hour workday.” Pl.’s Brief (Doc. #12) at 9.
Thus, Plaintiff claims, “the ALJ erred in giving dispositive weight to the opinion of the
medical expert appearing, on the basis that he found it consistent with the other ‘credible’
evidence. Plaintiff submits that treating physician Dr. Corbin’s opinion should be entitled
to significant, if not controlling weight, as it has been rendered after a considerable period
of time.” Id. Defendant contends that the ALJ’s decisions to give little weight to Dr.
Corbin’s opinion and to instead rely upon the consultative examination of Dr. Slavich and
the testimony of the medical expert are supported by substantial evidence. Def.’s Brief (Doc.
#13) at 6-8.
Dr. Corbin was Plaintiff’s treating physician from at least late 1996 (Tr. 206) through
the period of alleged disability onset. Dr. Corbin rendered two separate opinions to which,
it is asserted, the ALJ improperly failed to give substantial weight. Both opinions are set
forth on a form “Physical Capacities Evaluation” (PCE) which was “drafted and submitted”
by the law firm representing Plaintiff in these proceedings. The first evaluation was
completed on August 31, 2007, Tr. 316-318, while the second was completed on March 19,
2009, Tr. 356-358. In the first evaluation, Dr. Corbin opined that the reasonable lifting
expectation for Plaintiff would only be “5 pounds occasionally or less.” Tr. 316. Dr. Corbin
further opined that Plaintiff could sit for only two hours out of the workday, and stand/walk
for only one hour a day. Tr. 316. Dr. Corbin also stated that Plaintiff could never climb and
balance or bend and stoop. Tr. 316. In assessing Plaintiff’s pain, Dr. Corbin opined the
“[p]ain is present and found to be intractable and virtually incapacitating to the individual[,]”
and that physical activity causes Plaintiff “[g]reatly increased pain and to such a degree as
to cause distraction from tasks or total abandonment of tasks.” Tr. 317. Finally, Dr. Corbin
opined that Plaintiff’s “[d]rug side effects can be expected to be severe and to limit
effectiveness due to distraction, inattention, drowsiness, etc.”
evaluation completed by Dr. Corbin, in March of 2009, largely mirrors his earlier evaluation
except to the extent it suggests some improvement in Plaintiff’s condition. For instance, in
2009, Dr. Corbin opined that Plaintiff could stand and walk for two hours out of the
workday. Tr. 356. Dr. Corbin also opined that, unlike in 2007, Plaintiff could occasionally
climb. Tr. 356.6 In other aspects, Dr. Corbin’s second evaluation appears inherently selfcontradictory. For instance, on the one hand Dr. Corbin appears to indicate that Plaintiff’s
However, Dr. Corbin also indicated that Plaintiff could no longer perform
“gross manipulation,” which he could occasionally do in 2007. Tr. 356.
pain has improved, finding that his “[p]ain is present to such an extent as to be distracting to
adequate performance of daily activities or work,” Tr. 357, rather than “virtually
incapacitating” as in 2007. However, Dr. Corbin also indicates that in 2009 physical activity
would cause Plaintiff an “[i]ncrease of pain to such an extent that bedrest and/or medication
is necessary,” rather than causing only “distraction,” as in 2007. Finally, Dr. Corbin
indicates in 2009 that the expected side effects of Plaintiff’s medications would “totally
restrict” him and render him “unable to function at a productive level of work.” Tr. 358.
The ALJ considered Dr. Corbin’s opinions and exhaustively recounted Dr. Corbin’s
findings in his opinion. Tr. 21. The ALJ also referenced a May 2007 treatment note (Tr.
198) of Dr. Corbin’s in which he opined that Plaintiff was prevented from doing his “labor
job” but that he “could do a sedentary job.” Tr. 23. The ALJ ultimately found that “[i]n
light of [Dr. Corbin’s] opinion, in the course of treatment, that the claimant could perform
sedentary work and the indication that, between the first and second PCE’s, the claimant
improved, I find Dr. Corbin’s PCE’s to lack substantial credibility.” Tr. 23. Thus, the ALJ
did not lend Dr. Corbin’s opinions substantial weight.
When confronted with the opinion of a claimant’s treating physician, the ALJ must
afford it substantial and considerable weight unless “good cause” is shown to the contrary.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); see also Bliss v.
Comm’r of Soc. Sec., 254 F. App’x 757, 758 (11th Cir. 2007) (“An ALJ may reject the
opinion of a treating physician, which ordinarily receives substantial weight, where ‘good
cause’ is established.”). “‘[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.”
Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). “Where the ALJ articulated
specific reasons for failing to give the opinion of a treating physician controlling weight, and
those reasons are supported by substantial evidence,” a reviewing court may not “disturb the
ALJ’s refusal to give the opinion controlling weight.” Carson v. Comm’r of Soc. Sec., 2008
WL 4962696 at *1 (11th Cir. Nov. 21, 2008). “The 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
In this case, there was “good cause” for the ALJ’s decision to discredit Plaintiff’s
treating physician’s opinion, the ALJ clearly articulated the reasons for his decision to
discredit such opinion, and those reasons are supported by substantial evidence. The ALJ
determined that Dr. Corbin’s opinions, as rendered on the PCEs, were not consistent with Dr.
Corbin’s own records. Indeed, Dr. Corbin’s remark - at the last visit reflected in the record
prior to Dr. Corbin’s completion of the first PCE - that Plaintiff “could do a sedentary job”
in May of 2007 (Tr. 198), conflicts with Dr. Corbin’s subsequent opinion that Plaintiff could
only sit and stand or walk for a combined 3 hours out of the day, and that his pain is
“intractable and virtually incapacitating.” Tr. 316-17. There is no record of an intervening
visit or examination by Dr. Corbin that supports the greatly enhanced limitations reflected
in Dr. Corbin’s first PCE. Likewise, the ALJ correctly noted that the subsequent PCE, as
discussed above, suggests improvement in Plaintiff’s condition and ability to work, yet also
curiously indicates that physical activity would cause Plaintiff pain such that “bedrest and/or
medication is necessary.” Tr. 357. It is unclear how Plaintiff’s overall experience of pain
might improve from one PCE to the next, yet physical activity might cause greater pain
despite such improvement. Unfortunately, neither the PCEs nor Dr. Corbin’s treatment notes
address this anomaly. It is for these reasons - conflicting assessments, anomalous findings,
and lack of support in the record - that the ALJ ultimately found Dr. Corbin’s PCEs to lack
substantial credibility. Tr. 23.
The ALJ also discredited Dr. Corbin’s opinion because it conflicted with other
medical evidence of record, including the testimony of the medical expert that there are no
objective medical records supporting Dr. Corbin’s highly restrictive opinions and that
Plaintiff may perform a limited range of light activity, Tr. 46-47, and the consultative
examination of Dr. Slavich, which indicated that Plaintiff does not have “any significant
impairments to preclude him from doing work related activities such as sitting, standing,
walking, lifting, carrying, handling objects, hearing, speaking, and traveling.” Tr. 289. The
ALJ found the opinions of the medical expert and Dr. Slavich consistent with the overall
objective medical evidence and worthy of significant weight. Tr. 22-23. The ALJ also found
it relevant that Plaintiff “stopped working for reasons not related to the allegedly disabling
impairments” in that he was “laid off” from his job and “he received 10 weeks of
unemployment compensation.” Tr. 24.
In sum, given the objective medical evidence before the ALJ, the well-supported
opinions of the medical expert and Dr. Slavich, and the inherent inconsistencies affecting Dr.
Corbin’s assessments on the PCEs, the ALJ did not err in affording Dr. Corbin’s opinions
less than controlling weight.
The ALJ’s reliance on the consultative psychological evaluation.
Plaintiff appears to claim the ALJ’s reliance on the consultative examination of Dr.
Kline was erroneous because Dr. Kline did not have Plaintiff’s school records.
conjunction with this argument, Plaintiff relies on Dr. Corbin’s remark in a treatment note
that Plaintiff “really doesn’t read at a high school level due to a learning disability.” Tr. 198.
Plaintiff asserts that, in light of Dr. Kline’s failure to review Plaintiff’s school records and
Dr. Corbin’s assessment of Plaintiff’s ability to read, “the ALJ should have scheduled either
a second consultative evaluation or a medical examiner with expertise in psychology. The
ALJ failed to report the school records in his decision beyond reported grades and made no
reference to Dr. Corbin’s comment.” Pl.’s Brief (Doc. #12) at 11. Defendant maintains that
even though Dr. Kline had not reviewed Plaintiff’s school records, he was aware of
Plaintiff’s history of learning problems from their interview and that Dr. Kline had sufficient
medical records to render an opinion about Plaintiff’s effort on the intelligence testing
administered by Dr. Kline. Hence, Defendant asserts, the ALJ rightly afforded some
credibility to Dr. Kline’s assessment. Def.’s Brief (Doc. #13) at 10. Defendant also argues
that Plaintiff does not indicate how the ALJ’s failure to address Dr. Corbin’s remark about
Plaintiff’s learning disability “resulted in any prejudice to the determination of his case.” Id.
It is clear from the record that the ALJ at least reviewed and considered the treatment
note in which Dr. Corbin mentions Plaintiff’s learning disability. Dr. Corbin’s remark about
the learning disability comes in the very same sentence in which he opined that Plaintiff can
perform “a sedentary job.” Tr. 198. The ALJ cited and discussed this note in his opinion.
Tr. 23. While the ALJ did not specifically refer to the portion of the sentence dealing with
Plaintiff’s learning disability, Defendant correctly points out that Plaintiff has failed to
demonstrate how such omission prejudiced the ALJ’s decision. It is also clear that the ALJ
at least reviewed Plaintiff’s school records (Tr. 21), knew that Plaintiff was enrolled in
special education classes during school (Tr. 31-32), and also knew that Plaintiff is able to
read and write to some extent (Tr. 34). In short, Plaintiff does not demonstrate how Dr.
Corbin’s opinion that Plaintiff has a learning disability, a fact at least suggested in the
evaluation of Dr. Kline, is not accounted for in the ALJ’s decision to partially rely on Dr.
Kline’s opinion and in his ultimate determination that Plaintiff needs “simple, routine tasks
involving no more than simple, short instructions and simple work-related decisions with few
work place changes; casual interactions with the public and with co-workers; and workplace
changes should be introduced gradually.” Tr. 18. Accordingly, Plaintiff’s claim that the ALJ
erred in failing to schedule a second consultative examination in light of Plaintiff’s school
records and Dr. Corbin’s note is without merit.
The Court has carefully and independently reviewed the record and concludes that,
for the reasons given above, the decision of the Commissioner is supported by substantial
evidence and is AFFIRMED. A separate judgment will issue.
DONE this 9th day of May, 2011.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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