Carter v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/25/2014. (PSM)

FILED
2014 Sep-25 AM 08:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
HYRMON CARTER,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
1:13-cv-2113-AKK

MEMORANDUM OPINION
Plaintiff Hyrmon Carter (“Carter”) 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
(“ALJ”) applied the correct legal standard and that his decision—which has
become the decision of the Commissioner—is supported by substantial evidence.
Therefore, the court AFFIRMS the decision denying benefits.
I. Procedural History
Carter filed his application for Title II period of disability and disability

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insurance benefits, as well as Title XVI Supplemental Security Income, on July
28, 2010 (R. 70, 150-151), alleging a disability onset date of March15, 2010, (R.
178), due to an acute cerebrovascular accident, acute systolic congestive heart
failure, subclinical hyperthyroidism, hypertension, and a prior heart attack. (R.
182). After the SSA denied his application on November 22, 2010, (R.83-85),
Carter requested a hearing, (R. 93-94). At the time of the hearing on December 1,
2010, Carter was 48 years old, (R. 23-36, 150, 152), had completed two years of
college (R. 183-64), and previously worked as a software engineer, project
director, and technical support specialist, (R. 48-51; 207-14). Carter has not
engaged in substantial gainful activity since May of 2009, when his contract with
Thompson West expired. (R. 48-49, 61).
The ALJ denied Carter’s claim on April 24, 2011, (R. 23–36), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review on September 19, 2013, (R. 1–3). Carter then filed this action
pursuant to section 1631 of the Act, 42 U.S.C. § 1383(c)(3), on November 20,
2013. 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.
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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)
and 1383(c) mandate 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 they are
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
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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.

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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 sequential analysis, the ALJ initially determined
that Carter had not engaged in substantial gainful activity since his application
date and therefore met Step One. (R. 25). Next, the ALJ acknowledged that
Carter’s severe impairments of hypertension, status post cerebrovascular accident
and congestive heart failure, cardiomyopathy, and thyroid disease met Step Two.
(R. 25–27). The ALJ then proceeded to the next step and found that Carter did not
satisfy Step Three since he “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments. . . ” (R. 27). Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, he proceeded to Step
Four, where he determined that Carter
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has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except as noted. He
cannot climb ladders, ropes, or scaffolds. He can at least occasionally
balance with no assistive device. He must avoid concentrated
exposure to extreme temperatures. He must avoid exposure to
unprotected heights and moving machinery.
(R. 28). In light of Carter’s RFC, the ALJ determined that Carter “is capable of
performing past relevant work as a Software Engineer, Project Director, and
Technical Support Specialist. This work does not require performance of workrelated activities precluded by the claimant’s residual functional capacity.” (R.
35). Because the ALJ answered Step Four in the negative, he determined that
Carter was not disabled. (R. 36).
V. Analysis
The court turns now to Carter’s contention that the ALJ failed to properly
evaluate the medical evidence of record from Dr. Anthony J. Fava, M.D. Doc. 11
at 6-12. For the reasons stated below, the court finds that the ALJ applied the
correct legal standards and his opinion is supported by substantial evidence.
A.
The ALJ properly evaluated the report from the consultative
examiner.
Dr. Fava examined Carter on November 17, 2010, at the request of the SSA.
(R. 982-987). In his report, Dr. Fava stated that Carter “is able to perform the
following work-related activities: sitting; standing and walking for less than 30
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minutes; lifting, carrying, and handling objects weighing less than 1lb; hearing
and speaking; he is unable to travel.” (R. 985). The vocational expert present at the
hearing testified that Carter would be incapable of performing any work related
activities if Dr. Fava’s comment regarding Carter’s functional capacity were
accurate. (R. 66). Accordingly, Carter contends Dr. Fava’s opinion establishes his
disability and that the ALJ erred in giving it little weight. Doc. 11 at 6.
The ALJ is not required to adopt the opinion of any one medical source, but
must instead consider the totality of the evidence in arriving at a conclusion
regarding disability. See 20 C.F.R. §§ 404.1527(b), (c); 416.927(b),(c); Phillips v.
Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). Moreover, the regulations afford
differing standards for determining evidentiary weight based on three medical
source classifications: nonexamining sources, nontreating (but examining)
sources, and treating sources. See 20 C.F.R. §§ 404.152; 404.1527; 416.902;
416.927. As a nontreating physician, Dr. Fava’s opinion was not entitled to
controlling weight under 20 C.F.R. § 404.1537(c)(2). Consequently, the ALJ had
to consider several factors to determine the weight, if any, to give Dr. Fava’s
opinions. These factors include whether Dr. Fava (1) had examined Carter; (2) had
a treating relationship with Carter; (3) presented medical evidence and explanation
supporting the opinion; (4) provided an opinion that is consistent with the record
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as a whole; and (5) is a specialist. See 20 C.F.R. §§ 404.1527(c); 416.927(c).
Moreover, 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. Fava, 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 little weight to Dr.
Fava’s comment regarding Carter’s functional capacity. (R. 35). In reaching this
decision, the ALJ provided several reasons - all of which are supported by
substantial evidence - that constituted good cause for rejecting Dr. Fava’s opinion.
Specifically, the ALJ found that Dr. Fava’s comment was inconsistent with the
record, including Dr. Fava’s own assessment. Id.
For instance, the ALJ noted that Dr. Wyndol Hamer, M.D. examined Carter
at the Oxford Clinic on February 21, 2011, and reported that Carter ambulated
with little difficulty, sat comfortably on the examination table without difficulty or
evidence of pain, and that a musculoskeletal examination revealed no muscle
facsciculations, atrophy, muscle weakness, asymmetry, or reduced range of
motion. (R. 32-33, 1023). Next, the ALJ also noted that Dr. Robert Summerlin,
Ph.D., who performed a consultive psychological evaluation of Carter in
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November of 2010, claimed that Carter was making “good progress in returning to
a normal level of functioning subsequent to his cardiovascular accident,” and that
he “did not find evidence of a psychological disorder which would cause him to be
unemployable.” (R. 31, 981). Additionally, the ALJ evaluated Dr. Robert Estock’s
Psychiatric Review Technique Form, where Dr. Estock opined that Carter lacked a
severe mental impairment, and had mild restrictions of the activities of daily
living; no difficulty in maintaining social functioning; mild difficulties in
maintaining concentration, persistence, or pace; and no episodes of
decompensation, each of extended duration. (R. 32, 989, 999).
More significantly, the ALJ noted that Dr. Fava’s own medical findings
contradicted his “comment.” (R. 35). Specifically, Dr. Fava reported that Carter
had a normal range of motion in the dorsolumbar spine and that he was able to
ambulate normally.1 (R. 984, 986). Dr. Fava also reported that Carter had no
problem getting on and off the examination table, was able to squat and arise, was
able to heel and toe walk with minimal difficulty, and showed no evidence of
ataxia or spasticity. (R. 984). As the ALJ found, none of these findings are
consistent with Dr. Fava’s comment that Carter only had the capacity to sit, stand,

1

Inexplicably, Dr. Fava’s report notes that the range of motion in Carter’s back was
“decreased as indicated on accompanying chart.” (R. 984). However, the accompanying chart,
(R. 986), indicates normal range of motion in Carter’s back.
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or walk for less than 30 minutes, lift, carry, or handle objects weighing less than
one pound, and could not travel. The inconsistencies between the multiple medical
examinations and Dr. Fava’s comment, along with the fact that Dr. Fava is neither
a treating physician nor a specialist, justifies the ALJ’s decision to give his
comment little weight. See 20 C.F.R. §§ 404.1527(c); 416.927(c). Therefore, the
court finds the ALJ properly evaluated Dr. Fava’s findings.
B.

The ALJ is Not Required to Request a Supplemental Report

Carter next contends that, if the ALJ found Dr. Fava’s opinion to be
inconsistent, he is required to re-contact Dr. Fava for clarification, pursuant to 20.
C.F.R. §§ 404.1519p(b) and 416.919p. Doc. 11 at 9. Carter’s contention is based
on a misinterpretation of the regulatory definition of “inadequate or incomplete.”
A complete consultative examination report includes: (1) the claimant’s major or
chief complaints; (2) a detailed description of the claimant’s history of the major
complaints; (3) a description of pertinent positive and negative detailed findings
based on the history, examination, and lab tests related to the major complaints
and any other abnormalities or lack thereof found during the exam or lab tests; (4)
the results of the lab tests; (5) the diagnosis and prognosis for the claimant’s
impairment; (6) a statement about what the claimant can still do despite the
impairments; and (7) an explanation or comment by the medical source on the
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claimant’s major complaints. See 20 C.F.R. §§ 404.1519n(c)(1)-(7),
416.919n(c)(1)-(7). Carter does not claim that Dr. Fava’s report lacks a requisite
element of a complete examination. Moreover, the ALJ did not reject Dr. Fava’s
report for being inadequate or incomplete; rather, the ALJ found that Dr. Fava’s
comment was inconsistent with his own examination and the record as a whole.
(R. 35). Because the ALJ had no duty to re-contact Dr. Fava before discounting
his comment, see Davidson v. Astrue, 370 F. App’x 995, 998 (11th Cir. 2010)
(ALJ not required to re-contact examining physician to furnish missing
information when report satisfies all requirements of the law), remand for
reconsideration of the opinion of Dr. Fava is not required.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Carter 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.

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Done this 25th Day of September, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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