Lake v. Astrue (CONSENT)
MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Terry F. Moorer on 8/23/2012. (jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
APRIL MICHELLE LAKE,
MICHAEL J. ASTRUE,
Commissioner of Social Security
CASE NO. 3:11-cv-833-TFM
MEMORANDUM OPINION AND ORDER
April M. Lake (“Plaintiff” or “Lake”) 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 under Title XVI §§1381-1383c, on June 9, 2008. Tr. 15.
After being denied on August 27, 2008, Lake timely filed for and received a hearing
before an administrative law judge (“ALJ”) who rendered an unfavorable decision on
June 11, 2010. Tr. 15, 31. Lake subsequently petitioned for review to the Appeals
Council who rejected review of Lake’s case on August 5, 2011. Tr. 1. As a result, the
ALJ’s decision became the final decision of the Commissioner of Social Security
(“Commissioner”). Id. Judicial review proceeds pursuant to 42 U.S.C. § 405(g), and 28
U.S.C. § 636(c). After careful scrutiny of the record and briefs, for reasons herein
explained, the Court AFFIRMS the Commissioner’s decision.
I. NATURE OF THE CASE
Lake seeks judicial review of the Commissioner’s decision denying her application
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for disability insurance benefits and supplemental security income benefits. United States
District Courts may conduct limited review of such decisions to determine whether they
comply with applicable law and are supported by substantial evidence. 42 U.S.C. § 405.
The court may affirm, reverse and remand with instructions, or reverse and render a
II. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
“The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, 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). Substantial evidence is more than a scintilla
— i.e., the evidence must do more than merely create a suspicion of the existence of a
fact, and must include such relevant evidence as a reasonable person would accept as
adequate to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d
842 (1971)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
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If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986)). The Court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but
rather it “must defer to the Commissioner’s decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth,
703 F.2d at 1239).
The Court will also reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption
that the Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d
1233, 1236 (11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
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provided they are both insured and disabled, regardless of indigence.1 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line.2 Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical language
for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§
404.1505(a), 416.905(a). A person is entitled to disability 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), 1382c(a)(3)(A). A “physical or mental impairment” is one
resulting from anatomical, physiological, or psychological abnormalities which are
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, § 136.1, available at
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general
tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2, 2100,
available at http://www.ssa.gov/OP_Home/handbook/handbook.html
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demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits.
See 20 C.F.R. §§
404.1520, 416.920 (2010).
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(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 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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet 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.
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
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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 hear testimony from a vocational expert (VE). Id. at
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. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Lake, age 34 at the time of the hearing, has completed the 10th grade and acquired
a GED. See Doc. 12 at 4-5. Lake performed past relevant work as a certified nursing
assistant (semi-skilled, medium), housekeeper (unskilled, light), cook (semi-skilled,
light), and delivery driver (unskilled, light). Tr. 31, 64-65. Lake has not engaged in
substantial gainful work activity since her alleged disability onset date of May 28, 2008.
See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in SSI
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Tr. 17. Lake meets the insured status requirements of the Social Security Act through
December 31, 2012. Id. Lake claims she is unable to work because of asthma, back pain,
swelling in her feet and hands, and subsequent to filing her application, Lake claims to
suffer from depression and hallucinations. Tr. 21, 162. Lake rates her average daily pain
as a level seven to eight on a ten point scale with ten being the highest level of pain. Tr.
52. It is unknown from the record whether there was a triggering event to cause the
Lake received treatment from various medical practitioners and the ALJ
considered the medical records from these practitioners.
Tr. 21-25. The records from
Alexander City Orthopaedics show that Lake was treated in June 2006 for chronic back
pain. Tr. 21. In May 2007, an MRI scan was “remarkable for facet arthrosis and mild
osteoarthritis with no evidence of disc disease, extrusion/protrusion, fracture or
Also in May 2007, Lake had a function capacity evaluation done by Rehab
Associates, which reveals a validity of 52%; the validity criteria being 81%.
Inconsistencies were noted regarding maximum voluntary effort, occasional material
handling, and dissimulation profile. Id. The physician noted inconsistent scores in 100%
of the criteria evaluated, because of such the comments noted that “it was not felt that
maximum effort was achieved during this evaluation based on the documented
inconsistencies.” Id. The examiner noted that this indicates malingering behavior and
Dr. Howorth opined that Lake reached maximum medical
improvement, and that there were “no objective findings that would indicate continued
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off work activity or limitations of work activities and can return to her regular work
activity as a nurse assistant” without restriction. Id.
In October 2007, Lake went to Russell Medical Center with complaints of an
injury to her left foot. Tr. 22. The medical center found no acute fracture, her alignment
was within normal limits, and no focal soft tissue swelling was appreciated. Id. Lake
returned in January 2008 with abdominal pain. Id. Cat scans did not present any
evidence of lesions, obstructions, etc., and the final diagnosis was “no acute
intraabdominal abnormality identified.” Id. Lake once again returned in November 2009
with complaints of a tooth ache. Id. Lake was diagnosed as suffering from gingivitis and
generally poor dentition, and was referred to see a dentist. Id.
Lake again presented with back pain in February of 2008, this time to PriCare,
P.A. Id. On February 12, Dr. John James opined that Lake could lift up to 20 pounds and
by February 26, he found Lake could return to work with no limitations. Id. In August of
2008, Dr. Ditch Popov examined Lake for back pain and declared his examination was
close to completely normal and that Lake’s “complaints are out of proportion to the
physical findings and the MRI.” Id.
On January 19, 2009, Dr. Heather Rowe completed a Supplemental Questionnaire.
Tr. 23. Dr. Rowe opined that Lake had extreme limitations in activities of daily living,
maintaining social functioning, responding to customary work pressures, and responding
appropriately to coworkers in a work setting; as well as, marked limitations of
concentration, persistence or pace, responding appropriately to supervision in a work
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setting, performing simple tasks in a work setting, and performing repetitive tasks in a
work setting. Id.
The ALJ declined “to mechanistically and uncritically apply a treating physician
rule in place of the evidence as a whole and common sense.” Id. The ALJ stated that Dr.
Rowe relied quite heavily on the subjective report of symptoms and limitations provided
by Lake and “uncritically accept as true most, if not all,” of what Lake reported. Id. The
ALJ found that although Dr. Rowe does have a treating relationship with Lake, “visits
have been very sparse and treatment notes even more sparse.” The ALJ found Lake
noncompliant in attending treatment and was even terminated by their services as a result.
Lake resumed her treatment relationship only after filing for disability with no evidence
of decompression during the 2 year absence of treatment. Tr. 23, 25. The ALJ, noting
that the claimant worked part time, found it “very difficult to see how she could do even
that in light of Dr. Rowe’s assessment” because if the assessment were taken as true, it is
the ALJ’s opinion that Lake should be involuntarily confined to an institution. Tr. 23.
The ALJ also noted that his own observations and the observations of the experts
at Lake’s hearing influenced his decision. Tr. 19. The ALJ stated that Lake came across
as neither credible nor physically or mentally disabled. Id. The ALJ also stated that after
a face-to-face interview was held, “no difficulties whatsoever, of any sort, were observed
by the examiner.” Id. In addition, in his credibility assessment the ALJ discussed various
factors including that Lake currently works part-time, the disability onset date is the date
she was fired from her previous employment, she currently (at least up to the time of the
hearing) accepts Unemployment Insurance which requires certification that she is “ready,
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willing, and able” to work, the lack of objective evidence that Lake is disabled, among
others. Tr. 25-26. Nonetheless, the ALJ limited Lake’s RFC to performing the full range
of light work with pain up to the moderate level and all of the mental restrictions
established by Dr. Estock. Tr. 19.
Lake raises two issues for judicial review:
(1) Whether the ALJ erred in finding that Lake could perform past relevant work
based on the RFC determination; and
(2) Whether the ALJ’s mental RFC findings are based on substantial evidence.
See Doc. 12 at 4.
The ALJ properly found that Lake could perform past relevant work based
on the RFC determination.
Lake contends that the ALJ erred in finding that she could perform past relevant
work based upon the ALJ’s RFC determination. The ALJ found:
[Lake] has the residual functional capacity to perform the full range of light
work as defined in 20 CFR 404.1567(b) and 416.967(b) with pain up to the
moderate level and all of the mental restrictions dated August 26, 2008 as
are fully set forth in the entire RFC Exhibit 7F and the PRTF Exhibit 8F pg.
(sic) of Dr. Estock (without the necessity of verbatim recitation or
repetition) with the additional restriction of a moderate to marked restriction
of the ability to perform detailed and complex tasks, as set forth by the
psychological expert, Dr. McKeown.
Tr. 19. The ALJ later found that Lake is capable of performing past relevant work as a
“certified nursing assistant, housekeeper, cook, delivery driver, as well as many other jobs
existing in significant numbers in the national economy.” Tr. 31. The issue that Lake
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wishes to be resolved is that the position of certified nursing assistant is a skill level of
semi-skilled and a medium physical demands. Tr. 22, 65.
During the examination of the vocational expert, Dr. Robert Beadles, the ALJ told
Dr. Beadles to assess Lake’s past relevant work in terms of physical demands and skill
level. Tr. 64. Dr. Beadles said that Lake’s past relevant work includes: certified nursing
assistant (semi-skilled, medium), housekeeper (unskilled, light), cook (semi-skilled,
light), and delivery driver (unskilled, light). Tr. 64-65. The ALJ adopted Dr. Beadles’
assessment of Lake’s past relevant work and incorporated it into his opinion. Tr. 31. The
ALJ found that Lake could perform all of her past relevant work as well as other jobs that
exist in significant numbers in the national economy. Tr. 31. However, Lake correctly
points to one minor inconsistency in the ALJ’s conclusions. Lake argues that the ALJ’s
conclusion that she maintains the RFC to perform the full range of light work with some
mental restrictions is inconsistent with his findings that she could return to her past
relevant work as a certified nursing assistant, which the ALJ adopted as semi-skilled,
medium level work. See Doc. 12 at 7-8; Tr. 19. According to the ALJ’s conclusion, Lake
would not be able to return to her past relevant work as a certified nursing assistant. See
Doc. 12 at 7-8.
The ALJ made it apparent in his opinion why he chose to include Lake’s past
relevant work as a certified nursing assistant. Tr. 22. After reviewing the medical
records of May 2007 provided by Dr. Howorth in which Lake was found to have “reached
maximum medical improvement,” the ALJ noted that there were “no objective findings
that would indicate continued off work activity or limitations of work activities.” Id.
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Additionally, the ALJ found that according to Dr. Howorth’s records, Lake “can return to
her regular work activity as a nurse assistant (which is actually medium work requiring a
greater functional capacity that we now find) without restriction.” Id. The ALJ found
that although Lake is limited to the full range of light work with some mental limitations,
objective medical records provide evidence that Lake could also perform her past relevant
work as a certified nursing assistant despite its physical demand level of medium. Id.
The ALJ’s finding of Lake’s ability to perform past relevant work above the
physical demand set forth in the RFC assessment is proper in certain circumstances that
are set forth in Social Security Ruling 82-61. One such circumstance involves:
Whether the claimant retains the capacity to perform the particular
functional demands and job duties peculiar to an individual job as he or she
actually performed it. Under this test, where the evidence shows that a
claimant retains the RFC to perform the functional demands and job duties
of a particular past relevant job as he or she actually performed it, the
claimant should be found to be "not disabled."
SSR 82-61. Dr. Howorth knew of the demands of Lake’s job as a nursing assistant, and
opined that she has reached maximum medical improvement and can return to her
position as a nursing assistant without any further restrictions. Tr. 22. The ALJ took this
finding into consideration when despite the fact that the position of nursing assistant is a
“greater functional capacity” than he found, the objective medical evidence reported that
Lake could perform this particular position without restrictions/limitations. Id.
In addition, the ALJ noted other past relevant work that Lake could perform,
including housekeeper, cook, and delivery driver. Tr. 31. Each of these three positions
have a functional capacity in the light range. Tr. 64-65. Lake contends that because of
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her positions at Jamison Inn (housekeeper) and Sneaky Pete’s (cook) occurred after her
alleged onset date and were not classified as substantial gainful activity, the ALJ erred in
considering them past relevant work. See Doc. 12 at 9. However, Lake fails to take into
consideration that the vocational expert identified other companies prior to the alleged
onset date that Lake has performed as a cook, including Allen Foods and Bowden Oil.
Tr. 65-66. Regarding Lake’s position at Jamison Inn, the Court agrees with the ALJ’s
perception that it would be difficult to accept an argument that Lake is unable to perform
past relevant work as a housekeeper since she was still performing the job at the time of
the hearing. Tr. 17-18. If the Court accepts Lake’s argument with regard to Jamison Inn
and Sneaky Pete’s due to the ALJ concluding them to not be substantially gainful activity,
that still leaves the ability to perform past relevant work as a cook (with multiple past
employers other than Sneaky Pete’s) and as a delivery driver (which was not disputed by
A claimant “bears the initial burden of proving that she is unable to perform her
previous work.” Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990); (citing Cannon
v. Bowen, 858 F.2d 1541, 1544 (11th Cir.1988); Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir.1986)). Here, Lake has failed to make any argument as to why she is unable to
perform her past relevant work as delivery driver or as a cook (other than her employment
with Sneaky Pete’s). Despite the ALJ’s justified reasoning for listing housekeeper as past
relevant work, even if the Court accepts Lake’s argument, Lake has failed to prove she is
unable to perform the remaining past relevant work that the ALJ listed with the assistance
of a vocational expert. Since Lake has failed to meet her burden of proving that she is
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unable to perform her previous work, the Court finds that the ALJ properly found that
Lake could perform past relevant work based on the RFC determination.
The ALJ properly based his mental functional capacity findings on
Lake argues that the ALJ failed to base his mental functional capacity findings on
substantial evidence. See Doc. 12 at 10. First, Lake claims that the ALJ improperly
relied upon the State Agency medical and psychological consultant’s/Medical Expert’s
(non-examining physician) opinion despite the fact that Lake submitted records from a
“An administrative law judge must accord ‘substantial’ or
‘considerable’ weight to the opinion of a claimant's treating physician unless “good
cause” is shown to the contrary.” Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir.
1985) (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982). However, the
Eleventh Circuit has also held “[t]he law is clear that, although the opinion of an
examining physician is generally entitled to more weight than the opinion of a nonexamining physician, the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion.” Sryock v. Heckler, 764 F.2d 834, 835 (11th
Cir. 1985). In rejecting a treating physician’s opinion, 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.” MacGregor, 786 F.2d at 1053.
It appears to the Court that Lake may have been confused with regards to the ALJ’s discussion of the Medical
Expert, as the Medical Expert and State Agency medical consultant are one in the same. Tr. 20-21. It appears that
Lake mistakes the title of Medical Expert to be that of a primary care physician. See Doc. 12 at 10. However, the
ALJ used “State Agency medical and psychological consultants” and “Medical Expert” interchangeably based upon
his review of Social Security Rulings as well as the Code of Federal Regulations where both titles are used. Tr. 2021. Although Lake’s argument is based on a misunderstanding, the Court interprets her issue to revolve around the
ALJ’s adoption of the Medical Expert’s opinion over that of Lake’s primary care physician.
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Here, Lake submitted a Supplemental Questionnaire completed by her treating
psychiatrist, Dr. Heather Rowe, and therapist, Dr. Lucy Lawrence. Tr. 23, 355-359. Dr.
Rowe opined that Lake has:
extreme limitations in the area of activities of daily living, extreme
limitations in the area of maintaining social functioning, marked limitations
in the area of concentration, persistence or pace, extreme limitations to
respond to customary work pressures, marked limitations to respond
appropriately to supervision in a work setting, marked limitations to
perform simple tasks in a work setting and marked limitations to perform
repetitive tasks in a work setting.
Tr. 23. The ALJ stated that he “declines to mechanistically and uncritically apply a
treating physician rule in place of the evidence as a whole and common sense.” Id. The
ALJ then noted a myriad of reasons as to why he chose to discredit Dr. Rowe’s opinion.
Tr. 23-27. The ALJ found that Dr. Rowe relied quite heavily on Lake’s subjective reports
of her symptoms and limitations and uncritically accepted most, if not all, as true. Tr. 23.
Courts have traditionally found that “[c]linical psychologists deal with quintessentially
subjective information with respect to which they must exercise professional, interpretive
judgment,” as a result the ALJ should not outright reject a treating psychologist’s opinion
because it was based on a claimant’s subjective complaints. Matthews v. Barnhart, 347
F. Supp. 2d 1093, 1101 (M.D. Ala. 2003). However, in Matthews, the Court found that
there was objective evidence that supported the treating psychologist’s opinion. Id.
Here, the ALJ supported his rejection of Dr. Rowe’s opinion with a series of
objective evidence that tend to refute the limitations that Dr. Rowe has placed on Lake.
Tr. 23-26. First, the medical record is full of examples of treating physicians’ suspicions
of malingering and complaints that are out of proportion to the findings of medical tests.
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Tr. 23, 25.
The ALJ felt these “gross magnifications” lead to Lake’s subjective
complaints to be less than credible, without objective evidence to support the complaints.
The ALJ then turned to the treatment received and the treatment relationship. Tr.
23-26. The ALJ notes that Lake was noncompliant in attending mental health treatment
at East Alabama Mental Health Center, and as a result was terminated from their services
for her failure to continue therapy in April 2006. Tr. 23. Lake returned to East Alabama
Mental Health Center to reestablish herself as a patient two days after filing for disability
in June 2008, which the ALJ noted was coincidental. Tr. 22-23. The ALJ noted that not
only was there a two-year gap between treatments, but another one-year gap between her
last visit and the hearing.6 Tr. 25. Additionally, the records indicate a four year gap in
treatment between 2002 and 2006. Tr. 53. The ALJ found this particularly interesting
because there is no evidence on the record of any decompression, nervous breakdowns, or
hospitalizations during the gaps in treatment. Id. The ALJ also noted that Lake reported
that she is taking medication for her mental illness, but only takes it “sometimes.” Tr. 21.
The Social Security Administration (“SSA”) has spoken to the issue of the weight
of treating sources, as cited by Lake:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
The one-year gap between Lake’s last treatment and the hearing before the ALJ is solely noted for issues of
decompression and not for non-compliance, because Lake has provided that financial issues prevented her
complying during this time period. Tr. 49.
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hospitalizations. If we find that a treating source's opinion on the issue(s) of
the nature and severity of your impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in your case record, we
will give it controlling weight.”
20 C.F.R. § 416.927(c)(2), 404.1527(c)(2). Lake failed to include the second half of the
regulation that requires an impairment to be “well supported by medically acceptable
clinical and laboratory diagnostic techniques” to be given controlling weight. Id.; See
Doc. 12 at 11. Although this case involves subjective symptoms of mental treatment, the
ALJ correctly notes that treatment notes are unusually sparse.
additionally questioned the “longitudinal picture” that is traditionally found with a
treating source with the mention of the two year gap in treatment, as well as the sparse
visits as a whole. Tr. 23, 25. The ALJ made it clear that he did not find that “the nature
and severity of [Lake’s] impairments is well-supported by medically acceptable [. . .]
diagnostic techniques.” 20 C.F.R. § 416.927(c)(2), 404.1527(c)(2).
The ALJ also weighed Dr. Doug McKeown’s testimony as a Medical Expert in the
field of psychology. Tr. 52-63. After having reviewed Lake’s psychological records and
listening to the testimony at the hearing, Dr. McKeown gave his expert opinion of the
severity of Lake’s condition. Tr. 52-53. Dr. McKeown found it to be of concern that
there was “no indication of any specific ongoing therapy or treatment,” and “no indication
that treatment has ever really been reserved.” Tr. 54. He found that there “was never
really follow up or treatment” for any of the mental health related issues that were
developed or considered, in part due to noncompliance in 2006 and to the plain lack of
treatment in 2008. Tr. 55. Because of the “absence of any significant treatment or follow
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up,” Dr. McKeown found that there is “really no indication that we had any condition that
has lasted for a 12-month period or would be expected to last for a 12-month period [. . .]
[a]nd would not meet or equal the Secretary’s listing.” Id. Dr. McKeown also found it
difficult to find “any decompression issues in work or work like settings based on the fact
that [Lake] is intermittently working every now and then,” and stated there is no specific
indication of any decompression. Tr. 55-56.
Dr. McKeown, a psychiatric specialist with an extensive mental health practice,
found that someone with the severity level indicated by Dr. Rowe would “require
institutional care if that was in actuality the severity level.” Tr. 63. Dr. McKeown also
took issue with the sparse visits and treatments in reaching his conclusion. Dr. McKeown
stated that Lake’s noncompliance does not rule out the diagnosis, but it does give a clear
indication that it is “not [of] severe enough nature to be able to develop the severity level
that would consider [it] a significant disorder.” Tr. 62. Dr. McKeown also stated that one
visit with Dr. Rowe is sufficient for a firm diagnosis, but it is not sufficient for the
establishment of severity level. Tr. 63. Regarding the lack of treatment, Dr. McKeown
found that there are no records or tests that can substantiate what Lake reported, despite
the ability of psychologists to run objective tests. Tr. 60, 63.
Dr. McKeown also found Dr. Rowe’s assessment to be inconsistent based upon
Lake’s own actions. Dr. McKeown found that the fact that Lake is working, even though
it is only part-time, demonstrates an ability to perform simple tasks in a work setting. Tr.
58. This observation is of interest because it shows “no indication that [Lake’s ability is]
impaired except by any report of her back pain,” and that there is “nothing related to her
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mental health issues.” Id. This assertion is supported by Lake’s own testimony: referring
to her previous employment Lake stated, “some days that I was supposed to work I was
there but it was some days that I had to call in because of my back;” and referring to her
current employment Lake stated, “I do work now like I said but my back gives me
problems.” Tr. 42.
However, Dr. McKeown stated that according to Dr. Robert Estock’s records,
which conflict with Dr. Rowe’s assessment, Lake does have a moderate to marked
limitation for detailed and complex tasks and mild to moderate in all other areas. Tr. 56.
Dr. Estock found that Lake suffers from “Probable Schizoaffective Disorder,” and
chronic depression that is controlled with Wellbutrin; however, it “does not appear to
significantly affect work related activities.” Tr. 299-317. As a result of Dr. McKeown
giving weight to Dr. Estock’s findings, the ALJ adopted the limitations set forth in Dr.
Estock’s report. Tr. 19.
As previously stated the “ALJ is free to reject the opinion of any physician when
the evidence supports a contrary conclusion.” Sryock, 764 F.2d at 835. Here, the ALJ
found that both the testimony by the Medical Expert as well as the evidence on the record
contradict Dr. Rowe’s assessment. Tr. 25. The ALJ explicitly countered counsel for the
claimant’s assertion that Dr. McKeown is the only physician who believes Lake can work
by citing to “Exhibits 1F, 2F, 4F, 6F, 7F, 8F, and of course the medical expert testimony,
all contain reports and assessments, some of them multiple, of physicians who believe
that the claimant can work and whose assessments, as interpreted by the vocational
expert, indicate an ability to work.” Id. Dr. McKeown found, and the ALJ agreed, that if
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Dr. Rowe’s assessment were accurate, Lake would not be able to work even on a parttime basis, which she did at the time of the hearing. Tr. 23, 58. The ALJ found, and this
Court agrees, that the medical records, as well as the medical and vocational expert
testimony, directly conflict with the assessment completed by Dr. Rowe.
Therefore, the Court finds that the ALJ properly rejected the opinion of Dr. Rowe because
the evidence supports a contrary conclusion.
Lake additionally claims that the ALJ’s conclusion involved a “substitution of
judgment for that of a physician or mental health practitioner.” See Doc. 12 at 10.
Specifically, Lake points to the ALJ’s comment that “[s]he came across to myself, the
finder of facts, as neither sincere nor credible and neither physically nor mentally
disabled” as opposed to considering medical records from treating sources. See Doc. 12
at 10-11. The law is clear that the ALJ may not substitute his judgment or conclusions for
the medical evidence on the record or the diagnosis of a medical professional. See
Graham v. Bowen, 786 F.2d 1113, 1115 (11th Cir. 1986); Marbury v. Sullivan, 957 F.2d
837, 840-41 (11th Cir. 1992).
The ALJ explicitly states that “as the independent finder of facts [he] does not
discredit the medical advisors’ opinions because he does not find fully credible
substantial evidence to discredit them.” Tr. 20. The ALJ found the assessments of the
State Agency experts to be “fully consistent with the reports of the treating and examining
physicians and are found to be credible for the reasons stated therein and throughout the
decision.” Id. The only physician records that the ALJ found to not be supported by
substantial evidence is that of Dr. Rowe. Since the Court has already found the ALJ
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properly rejected Dr. Rowe’s assessment because it is contradicted by evidence on the
record, the Court finds there was no substitution of judgment for that of a treating
Therefore, the Court finds that the ALJ’s mental residual functional capacity
findings were based on substantial evidence.
Pursuant to the findings and conclusions detailed in this Memorandum Opinion,
the Court concludes that the ALJ’s non-disability determination is supported by
substantial evidence and proper application of the law. It is, therefore, ORDERED that
the decision of the Commissioner is AFFIRMED.
A separate judgment is entered
DONE this 23rd day of August, 2012.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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