Perdue v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 7/21/2014. (PSM)

FILED
2014 Jul-21 AM 10:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

MARY E. PERDUE,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
1:12-cv-2864-AKK

MEMORANDUM OPINION
Plaintiff Mary E. Perdue (“Perdue”) brings this action pursuant to Section 205(g)
of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the final
adverse decision of the Commissioner of the Social Security Administration (“SSA”).
This court finds that the Administrative Law Judge’s (“ALJ”) decision - which has
become the decision of the Commissioner - is supported by substantial evidence.
Therefore, for the reasons elaborated herein, the court will affirm the decision denying
benefits.
I. Procedural History
Perdue, whose past relevant experience includes work as a garment inspector and
trash packer, filed an application for Title XVI Supplemental Security Income on
October 14, 2009, alleging a disability onset date of January 1, 2005, due to asthma, back
problems, and nerve problems. (R. 15, 158). After the SSA denied Perdue’s claim, she

requested a hearing before an ALJ. (R. 125-26). The ALJ subsequently denied Perdue’s
claim, (R. 12-26), which became the final decision of the Commissioner when the
Appeals Council refused to grant review. (R. 1-6). Perdue then filed this action for
judicial review pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, See 42 U.S.C. § 405(g); Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the correct legal
standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that the
Commissioner’s “factual findings are conclusive if supported by ‘substantial evidence.’”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court may not
reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the
Commissioner; instead, it must review the final decision as a whole and determine if the
decision is “reasonable and supported by substantial evidence.” See id. (citing
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). Substantial evidence
falls somewhere between a scintilla and a preponderance of evidence; “[i]t is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Martin, 849 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other
citations omitted). If supported by substantial evidence, the court must affirm the
Commissioner’s factual findings even if the preponderance of the evidence is against the
Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court acknowledges

that judicial review of the ALJ’s findings is limited in scope, it notes that the review
“does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairments 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 twelve months.” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental impairment is “an impairment
that results from anatomical, physiological, or psychological abnormalities which are
demonstrated by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20 C.F.R.
§ 404.1520(a)-(f). Specifically, the Commissioner must determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (citing 20 C.F.R. § 416.920(a)-(f)). “Once
a finding is made that a claimant cannot return to prior work the burden shifts to the
Secretary to show other work the claimant can do.” Foote v. Chater, 67 F.3d 1553, 1559
(11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Perdue had not engaged
in substantial gainful activity since October 14, 2009, and, therefore, met Step One. (R.
17). Next, the ALJ found that Perdue satisfied Step Two because she suffered from the
severe impairments of “low back pain due to osteoarthritis, asthma, depression, and
glaucoma.” Id. The ALJ then proceeded to the next step and found that Perdue failed to
satisfy Step Three because she “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments.”
(R. 20). Although the ALJ answered Step Three in the negative, consistent with the law,
see McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four where he determined
that Perdue has the residual functional capacity (RFC) to perform
light work as defined in 20 CFR 416.967(b) except the claimant is limited
to occasional stooping, bending, crouching, or crawling. The claimant
cannot perform frequent overhead reaching/lifting with the left upper
extremity. The claimant is to avoid concentrated exposure to extreme cold,
extreme heat, wetness, fumes, odors, gases, and pulmonary irritants. She
cannot work around unprotected heights. She is limited to jobs that require
20/30 visual acuity bilaterally and simple 1-2-3 step work procedures.
Contact with the public and co-workers should be brief.
(R. 22). In light of her RFC, the ALJ held that Perdue “is unable to perform any past
relevant work.” (R. 24). Lastly, in Step Five, the ALJ considered Perdue’s age,

education, work experience,1 and RFC and determined “there are jobs that exist in
significant numbers in the national economy [Perdue] can perform.” (R. 25). Therefore,
the ALJ found that Perdue “has not been under a disability, as defined in the Social
Security Act, since October 14, 2009, the date the application was filed.” (R. 26).
V. Analysis
The court now turns to Perdue’s contentions that the ALJ failed to (1) properly
evaluate the report from the consultative mental examiner, and (2) incorporate all of
Perdue’s established limitations in the hypothetical question posed to the vocational
expert (VE). See doc. 8 at 4-13. The court addresses each contention in turn.
A.

The ALJ properly evaluated the report from the consultative examiner.

Perdue contends the ALJ had no valid reason for rejecting the report of the
consultative examiner, Dr. Robert Storjohann, Ph.D. Doc. 8 at 11. Dr. Storjohann
examined Perdue on February 11, 2010, at the request of the SSA, and diagnosed Perdue
as having “Major depression, recurrent, severe,” and “Generalized anxiety disorder.” (R.
331). Dr. Storjohann gave Perdue a GAF score of 45,2 and found that “[s]he appears to
have marked deficits in her ability to respond appropriately to supervision, coworkers,

1

As of the date of the ALJ’s decision, Perdue was 47 years old, had a marginal
education, and past relevant work that included light semi-skilled work as a garment inspector,
and light unskilled work as a trash packer. (R. 25).
2

The Global Assessment of Functioning (GAF) Scale is used to report an
individual’s overall level of functioning. Diagnostic and Statistical Manual of Mental
Disorders 32 (4th ed., Text Revision). A GAF of 41-50 indicates: “Serious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to
keep a job).” Id. at 34 (emphasis in original).

and work pressures in a work setting.” Id. Perdue contends the ALJ erred in rejecting
these findings.
As a non-treating physician, Dr. Storjohann’s opinion was not entitled to
controlling weight under 20 C.F.R. § 404.1527(c)(2). Consequently, the ALJ had to
consider several factors to determine the weight, if any, to give Dr. Storjohann’s
opinions. These factors include whether Dr. Storjohann presented medical evidence and
explanation supporting his opinion, and whether his opinion is consistent with the record
as a whole. See 20 C.F.R. § 416.927(c). However, the ALJ “may reject the opinion of
any physician when the evidence supports a contrary conclusion.” Bloodworth v.
Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). Indeed, even a treating physician’s
opinions, which are entitled to more deference than those of Dr. Storjohann, may be
rejected if the ALJ has “good cause.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997).
The ALJ considered these factors and ultimately gave “[v]ery limited weight” to
Dr. Storjohann’s opinions. (R. 24). In reaching this decision, the ALJ provided multiple
reasons that are supported by the substantial evidence and constituted good cause for
rejecting Dr. Storjohann’s opinions. First, the ALJ found that Dr. Storjohann’s
“conclusory report seems to indicate heavy reliance on [Perdue’s] subjective report of her
mental symptoms and limitations rather than the objective findings of the evidentiary
record.” (R. 24). Under the law, “good cause” exists to reject an opinion if it is
conclusory, see Lewis, 125 F.3d at 1440, or was based mainly on the claimant’s
subjective complaints, see Pettaway v. Astrue, 376 F. App’x 889, 891 (11th Cir. 2010).

Second, the ALJ found that “[t]he medical evidence of record simply does not
substantiate the reliability or credibility of the severity of [Perdue’s] subjective
complaints,” and that “Dr. Storjohann provided very little explanation of the evidence
relied on in forming his diagnoses of [Perdue] and his assessment that she had moderate
to marked impairments resulting from her mental limitations.” (R. 24). This finding is
consistent with the relevant regulation that provides that the weight given an opinion
depends on the degree of supporting explanation and its consistency with the record as a
whole. See 20 C.F.R. § 416.927(c)(3)-(4). Third, the ALJ found that Dr. Storjohann’s
evaluation “included numerous conflicting assessments of [Perdue’s] mental state in
regards to her limitations,” and gave an extended explanation to support this finding:
Dr. Storjohann opined [Perdue] appeared to have moderate deficits in her
ability to understand, carry out, and remember instructions in a work setting
and marked deficits in her ability to respond appropriately to supervision,
coworkers, and work pressures in a work setting. However, he also
reported in the same evaluation, that [Perdue] was oriented to person,
place, situation, and time, she was able to perform simple mathematical
calculations, and most significantly, that she was able to make acceptable
work decisions. He further opined her recent and remote memory was
grossly intact, her thoughts and speech were logical, coherent, and goaldirected and that there were no loose associations, confusion,
hallucinations or delusions observed.
(R. 24). The ALJ specifically observed that Dr. Storjohann’s finding of a “marked”
deficit in the ability to respond appropriately to supervision, coworkers, and work
pressures was contradicted by Dr. Storjohann’s own findings, which “indicated that
[Perdue’s] judgement and insight were grossly intact,” and that she “was able to make
acceptable work decisions and manage her own financial affairs.” (R. 23.) For these
reasons, because “good cause” exists to reject a medical opinion when the opinion is

inconsistent with the physician’s own medical records, see Lewis, 125 F.3d at 1440, the
ALJ correctly found that Dr. Storjohann’s “conflicting inconsistent statement in regards
to [Perdue’s] symptoms and behavior renders his overall opinion less persuasive.” (R.
24). Finally, the ALJ found that Dr. Storjohann’s “description of [Perdue’s] marked
symptoms is simply not documented by medical findings in this case.” (R. 24). In fact,
the medical evidence shows that after beginning treatment for her mental impairments,
Perdue’s condition improved. (R. 388-92). For example, the treatment notes from
Cheaha Mental Health Center show Perdue reported that her “antidepressant [was]
working” on October 12, 2010, and that her “depression [was] improved” on January 4,
2011. (R. 389-90). Dr. Storjohann’s opinions do not reflect the impact of this treatment
on Perdue’s symptoms because Perdue was not receiving treatment or taking medications
for her mental impairments when Dr. Storjohann examined her. (R. 329). “[T]he extent
to which [the physician] is familiar with other information in [the] case record [is a]
relevant factor[] . . . in deciding the weight to give a medical opinion.” 20 C.F.R. §
416.927(c)(6). Where, as here, the record establishes that Dr. Storjohann lacked the
requisite familiarity with Perdue’s treatment history, the court finds no error in the ALJ’s
decision to give Dr. Storjohann’s opinion limited weight.
In a nutshell, the ALJ considered the factors set forth in the regulations and,
consistent with the law of this circuit, articulated “good cause” for giving Dr.
Storjohann’s opinions limited weight. Based on the court’s review of the record,
substantial evidence supports the ALJ’s finding and there is no reversible error.
B.

The ALJ did not fail to incorporate all of Perdue’s established limitations in

the hypothetical question posed to the VE.
Perdue’s final contention of error is based on the ALJ’s failure to include either
the vocational restrictions indicated by Dr. Storjohann, or those indicated by Dr. Eugene
Fleece, Ph.D., the State agency reviewing psychologist, in his hypothetical question to
the VE. Doc. 8 at 12-13. Unfortunately, Perdue overlooks that the regulations provide
that “[a]lthough [the ALJ] consider[s] opinions from medical sources on issues such
as . . . your residual functional capacity . . . the final responsibility for deciding these
issues is reserved to the [ALJ].” 20 C.F.R. § 416.927(d)(2). Consequently, the Eleventh
Circuit has recognized that “the task of determining a claimant’s residual functional
capacity and ability to work is within the province of the ALJ, not of doctors.” Robinson
v. Astrue, 365 F. App’x 993, 999 (11th Cir. 2010) (unpublished). Moreover, an ALJ’s
RFC finding can be supported by substantial evidence even without a medical source
statement in the record. See Green v. Soc. Sec. Admin., 223 F. App’x 915, 922-23 (11th
Cir. 2007) (unpublished) (rejected the claimant’s argument “that without [the physician’s]
opinion, there [was] nothing in the record” to support the ALJ’s RFC assessment).
Therefore, contrary to Perdue’s contention, the ALJ had no obligation to chose between
the restrictions found by Dr. Storjohann and those indicated by Dr. Fleece. Ultimately,
the ALJ properly considered Dr. Fleece’s opinion, along with the rest of the evidence, to
determine Perdue’s mental RFC. Because the hypothetical question posed to the VE
incorporated all of the restrictions found by the ALJ, it provides substantial evidence to
support his finding that Perdue could perform other work. Jones v. Apfel, 190 F.3d
1224, 1229 (11th Cir. 1999) (“In order for a VE’s testimony to constitute substantial

evidence, the ALJ must pose a hypothetical question which comprises all of the
claimant’s impairments.”); see also Deters v. Comm’r of Soc. Sec., 301 F. App’x 886,
888 (11th Cir. 2008) (unpublished) (ALJ is “not required to include findings in the
hypothetical that the ALJ had properly rejected as unsupported”) (quoting Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004)). Accordingly, the ALJ
committed no reversible error.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Perdue is not disabled is supported by substantial evidence, and that the ALJ applied
proper legal standards in reaching this determination. Therefore, the Commissioner’s
final decision is AFFIRMED. A separate order in accordance with the memorandum of
decision will be entered.
Done this 21st day of July, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE