Browning v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge Virginia Emerson Hopkins on 4/23/12. (SAC )
2012 Apr-23 PM 03:09
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
) Case No.: 2:11-CV-1602
Plaintiff Tiquila Sophornia Browning (“Ms. Browning”) brings this action
pursuant to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act. She seeks review
of a final adverse decision of the Commissioner of the Social Security Administration
(“Commissioner” or “Secretary”), who denied her application for Supplemental
Security Income (“SSI”).
Ms. Browning timely pursued and exhausted her
administrative remedies available before the Commissioner. The case is ripe for
review pursuant to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act.1
42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.
FACTUAL AND PROCEDURAL HISTORY
Ms. Browning was a 35-year-old female at the time of her hearing before the
administrative law judge (hereinafter “ALJ”). (Tr. 24). She has a high school
education. (Tr. 36). Her past relevant work experiences include employment as a
proof machine operator and a hospital cleaner. (Tr. 59). Ms. Browning claims she
became disabled on May 19, 2008,2 due to limitations related to bipolar disorder and
hypertension.3 (Tr. 18, 34–35, 63). Her last period of work ended on May 19, 2008.
Ms. Browning filed her application for SSI on May 22, 2008. (Tr. 105–08).
The Regional Commissioner denied her claim on June 28, 2008. (Tr. 67–71). On
August 12, 2008, Ms. Browning timely requested a hearing (Tr. 74), which was held
on January 19, 2010, in Birmingham, Alabama. (Tr. 16). The ALJ concluded that
Ms. Browning was not disabled and issued his written decision denying her
application for benefits on March 25, 2010. (Tr. 16–25). The ALJ’s decision
denying benefits became the final decision of the Commissioner when the Appeals
Ms. Browning amended her alleged onset date at the hearing. (See Tr. 16, 34).
The ALJ noted in his decision that Ms. Browning “admitted at the hearing that her
hypertension is now well controlled with prescribed medication” (Tr. 18) and “should cause her
no exertional limitations.” (Tr. 22; see also Tr. 54-55). Ms. Browning does not raise any
challenges on appeal to the ALJ’s determination concerning her hypertension, so the court – like
the ALJ – focuses its analysis only on Ms. Browning’s bi-polar disorder.
Council denied Ms. Browning’s request for review on March 16, 2011. (Tr. 1–6).
Ms. Browning filed her Complaint on May 13, 2011, which asks this court to
review the ALJ’s decision. (Doc. 1). This court has carefully considered the record
and affirms the decision of the ALJ.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court. The ALJ’s legal conclusions, however, are reviewed de novo,
because no presumption of validity attaches to the ALJ’s determination of the proper
legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993).
If the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, the ALJ’s decision must be reversed. Cornelius v.
Sullivan, 936 F. 2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.4 The Regulations define “disabled” as “the
inability to do 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
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2007.
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the Secretary;
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the national
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to former applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the
claimant has satisfied steps one and two, she will automatically be found disabled if
she suffers from a listed impairment. If the claimant does not have a listed
impairment but cannot perform her work, the burden shifts to the Secretary to show
that the claimant can perform some other job.” Pope, 998 F.2d at 477; accord Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found that Ms. Browning has not engaged in substantial gainful
activity since May 19, 2008. (Tr. 18). He also found that the medical evidence
supported a finding that Ms. Browning’s impairments of bipolar disorder and
hypertension were considered “severe” according to 20 C.F.R § 416.920(c). (Tr. 18).
The ALJ then held that those medically determinable impairments, in combination,
do not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404
Appendix 1, Subpart P, of the Social Security Regulations. (Tr. 18).
After “careful consideration of the entire record,” including the report of the
state agency reviewing psychiatrist and Ms. Browning’s testimony,5 the ALJ found
that the claimant has the residual functional capacity to perform a full
range of work at all exertional levels but with the following
nonexertional limitations: The claimant can concentrate on simple 1-2
step tasks for 2 hour periods in the course of a regular 8 hour workday.
The claimant is able to interact on a limited basis with the public and coworkers, and can accept non-threatening direct supervision. Work
demands should be mostly routine, and changes in the work place
should be infrequent and gradually introduced. The claimant can make
adequate simple work place decisions and plans reliably.
The vocational expert testified that, given these limitations, Ms. Browning
would be precluded from returning to her past relevant work in light of her age,
education, work experience, and residual functional capacity. (Tr. 59). The ALJ
agreed and concluded that Ms. Browning’s impairments prevent her from performing
her past relevant work. (Tr. 23). However, the vocational expert testified that a
The ALJ expressly found that Ms. Browning’s testimony concerning her disabling
limitations was not credible. (Tr. 22–23).
hypothetical individual having the same age, education, work experience, and
residual functional capacity set out above could work in certain occupations such as
laminator (sedentary and unskilled), assembler (light and unskilled), or food
packaging machine operator (light and unskilled). (Tr. 60–61). He further testified
that there were jobs available in the national and local economies in those types of
positions and stated “there would be others as well.” (Id.).
In reaching his conclusion of “not disabled,” the ALJ considered the vocational
expert’s testimony as well as the Medical-Vocational Guidelines, 20 C.F.R. Part 404,
Subpart P, Appendix 2 (hereinafter “grids”), which he referenced as a framework for
his decision. (Tr. 24–25). The ALJ acknowledged that Ms. Browning had certain
non-exertional limitations that compromised her ability to perform unskilled work “at
all exertional levels.” (Tr. 24). Nevertheless, using the grids and Rule 204 as a
framework for decision-making and considering the vocational expert’s testimony,
the ALJ concluded that Ms. Browning was “capable of making a successful
adjustment to other work that exists in significant numbers in the economy.” (Tr.
24–25). Accordingly, the ALJ determined that Ms. Browning was not eligible for SSI
because she was “not disabled” under § 1614(a)(3)(A) of the Social Security Act.
The court can reverse a finding of the Secretary if it is not supported by
substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).6 Ms. Browning makes two arguments on appeal. She first asserts that
“the ALJ has failed to recognize [her] non-compliance as an element of her mental
health issues and diagnosis.” (Doc. 9 at 7). Because of “this significant error,” she
contends that the ALJ’s decision “should be reversed and benefits awarded.” (Id. at
8). Second, she argues that “[a]t the very least the ALJ should have ordered a
consultative evaluation with a psychiatrist or psychologist rather than relying on the
non-examining physician mental RFC contained in the claim file.” (Id. at 9). As
such, she requests in the alternative that her case be remanded “for a full and proper
consideration of the medical evidence of record, including the opinion of the
consultative examiner.” (Doc. 9 at 11).
In its review, this court finds that the ALJ’s decision was supported by
substantial evidence and applied the correct legal standards.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
EVIDENCE OF RECORD, INCLUDING MS. BROWNING’S
NON-COMPLIANCE, AND HIS DECISION WAS SUPPORTED
BY SUBSTANTIAL EVIDENCE REGARDLESS.
Ms. Browning first asserts that the ALJ committed reversible error by failing
to properly consider the medical evidence of record because he should have
recognized her non-compliance with treatment as “an element of her mental health
issues and diagnosis.” (Doc. 9 at 7). She submits that the ALJ’s failure to properly
consider her non-compliance “amounts to an over-simplification of an important
mental health issue.” (Id.).
To support her argument on this ground, Ms. Browning relies on the fourth
edition of the Diagnostic and Statistical Manual of Mental Disorder (the “manual”)
produced by the American Psychiatric Association (the “APA”). However, the
APA’s manual, which is not readily accessible by this court,7 is not binding authority.
Significantly, Ms. Browning cites to no controlling Supreme Court or Eleventh
Circuit case that supports her contention that the ALJ erred in his analysis of Ms.
Browning’s non-compliance. The only somewhat relevant case she cites to quotes
dicta from an opinion by Judge Guin of the Northern District of Alabama8 that
Ms. Browning does not provide a copy of the APA’s manual, nor does she provide a
reference link by which the court may access the manual.
The opinions of other district court judges, even in the Northern District of Alabama,
are not binding on this Court. See, e.g., Fishman & Tobin, Inc. v. Tropical Shipping & Const.
Co., Ltd., 240 F.3d 956, 965 (11th Cir. 2001) (“[T]he district court cannot be said to be bound by
laments: “Sadly, the symptoms of mental disorders often include the inability to seek
out the treatment and help necessary to treat such disorders.” Bennett v. Barnhart,
288 F. Supp. 2d 1246, 1255 (N.D. Al. 2003). While the court agrees with that
statement, it does not constitute a holding or binding legal precedent.
Without more, Ms. Browning’s underdeveloped argument is not enough to
persuade the court that the ALJ committed a “significant error” in this case that
mandates reversal. The court reminds Ms. Browning that its review is narrowly
circumscribed and focused only on whether the Commissioner’s decision is supported
by “substantial evidence” and whether he applied proper legal standards. Richardson,
402 U.S. at 390; Wilson, 284 F.3d at 1221. Further, the court is not bound to address
perfunctory and underdeveloped arguments. See Flanigan’s Enters., Inc. v. Fulton
County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party waives an
argument if the party “fail[s] to elaborate or provide any citation of authority in
support” of the argument); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987)
(stating that an argument made without citation to authority is insufficient to raise an
issue before the court).
Nevertheless, the court has reviewed the Commissioner’s decision in light of
Plaintiff’s concern that “[t]o deny an individual diagnosed with mental health issues
a decision of one of its brother or sister judges,” although such decisions may be persuasive).
based on non-compliance is inappropriate unless there is direct opinion evidence from
a treating, examining, or consultative source indicating that the non-compliance was
somehow voluntary, and not related to mental illness itself.” (Doc. 9 at 7-8).
Because Ms. Browning points the court to no legal authority that supports her
argument on this point, and the court has not been able to independently locate any
such authority, the court cannot say that the ALJ committed legal error by factoring
her non-compliance into his analysis. However, the court notes that, non-compliance
aside, the ALJ’s decision was nevertheless supported by other substantial evidence.
As an important initial observation, which the Commissioner correctly noted,
the ALJ did not find Ms. Browning not disabled because of her non-compliance;
instead, he properly considered the medical evidence of Ms. Browning’s bi-polar
disorder and found it to be a severe impairment. (Tr. 18). The ALJ only noted Ms.
Browning’s history of non-compliance when he assessed her credibility (Tr. 20-23)
and determined that her condition was not as disabling as she claimed. Moreover, the
ALJ’s mention of her non-compliance was but one of multiple factors influencing his
credibility determination. (See, e.g. Tr. 23 (citing “various inconsistencies between
[Ms. Browning]’s allegations at the hearing and her statements to her treating care
providers throughout the medical evidence of record”). For instance, the ALJ noted
Ms. Browning’s testimony at the hearing that she had not sought employment since
her last job, while the records indicated she was engaged in an active search. (Tr. 23).
He also noted that she claimed at the hearing that “she essentially engaged in no
activities of daily living and had been at this (non-)activity level since her claim was
filed.” (Tr. 22). The ALJ found that the record supported a different conclusion, as
Ms. Browning had “previously reported a wide range of daily activities (including the
care of her young children) and was medically reported as carrying out all activities
of daily living with no assistance.” (Tr. 22-23). And, further, the ALJ found Ms.
Browning’s testimony not credible because she claimed that her medications were
“not working” and “causing debilitating side effects” and that her “symptoms [were]
worsening,” but those claims went against the weight of the medical evidence, which
reflected statements of Ms. Browning to her doctors that her medications “were doing
a good job” and “had no side effects” as of March 13, 2009, which pre-dated her noncompliance issues. (Tr. 23). She gave a similar report about the absence of side
effects on October 9, 2009, following her brief period of non-compliance. (Tr. 23).
For these reasons and more, the ALJ found that the medical record “militate[d]
against the credibility” of Ms. Browning’s testimony about the disabling limitations
of her condition. (Tr. 23).
The court has reviewed the medical records and determines that they
substantially support the ALJ’s negative credibility determination. (See Tr. 214-16,
231, 259, 277). Thus, even if Ms. Browning could point the court to an appropriate
legal authority that supports her position about the manner in which non-compliance
must be considered by an ALJ, the ALJ’s decision in this case would nevertheless
stand to be affirmed because it was supported by substantial evidence independent
of the non-compliance factor.
THE ALJ DID NOT COMMIT REVERSIBLE ERROR BY
FAILING TO ORDER A CONSULTATIVE EXAMINATION.
Alternatively, Ms. Browning contends that this case should be remanded
because in light of her “multiple episodes of decompensation requiring
hospitalization and intervention,” the ALJ at least “should have ordered a consultative
evaluation with a psychiatrist or psychologist rather than relying on the nonexamining physician mental RFC contained in the claim file.” (Id. at 9). Implicitly,
therefore, she argues that the ALJ failed to fully and fairly develop the record by not
ordering a consultative evaluation. Based on the legal standards set out below, the
court disagrees. Additionally, the court addresses several misleading aspects of Ms.
First, Ms. Browning exaggerates her claim of “multiple episodes of
decompensation requiring hospitalization and intervention.” According to the
medical record, she underwent two episodes of decompensation, but only one
occurred within the time frame of her alleged disability. The disability onset date
alleged by Ms. Browning at the hearing was May 19, 2008. The first documented
episode of decompensation occurred prior to her alleged onset date, lasting from
October 13, 2007, to November 6, 2007, when she was admitted to Trinity Medical
Center following her father’s passing after a battle with chronic illness. The second
episode of decompensation lasted from August 1, 2009 to August 14, 2009, when she
was hospitalized again at Trinity Medical Center for a severe headache and diagnosed
relapse of her bipolar disorder. The second episode followed a suspected miscarriage.
Second, the ALJ’s written decision reveals that he did not exclusively rely on
the state agency psychiatric consultant’s report in determining Ms. Browning’s RFC.
While he did give that doctor’s findings “substantial weight” because he found them
to be “internally consistent and consistent with the evidence as a whole” (Tr. 23), he
also relied on the totality of medical records surrounding Ms. Browning’s episodes
of decompensation and follow-up treatment. For instance, he described and relied on
the treatment notes and medical records from Ms. Browning’s two treating
physicians, Dr. Romaine Hain, M.D., and Dr. Sylvia A. Subong-Chambers, M.D. (Tr.
21–22). The ALJ also relied on the treatment notes and records of Ms. Browning’s
therapist, Gary Stockdale of Eastside Mental Health Center. (Id.). He described each
of Ms. Browning’s visits and the resulting progress notes in detail in his decision.
The sum of Ms. Browning’s argument as to the necessity of ordering a
consultative evaluation is as follows:
The ALJ should have at least considered developing the record to obtain
a medical source opinion by ordering his own consultative examination
pursuant to 20 C.F.R. 416.919a. The ALJ’s duty to develop the record
includes obtaining a consultative examination when one is needed to
make an informed decision. Reeves v. Heckler, 734 F.2d 519 (11th Cir.
(Doc. 9 at 10). She does not proceed to explain, however, why a consultative
examination “is needed to make an informed decision” in this case.
The SSA Regulations permit the ALJ to order a consultative examination when
the claimant’s medical sources cannot or will not give sufficient medical evidence
regarding the claimant’s impairment to make an informed decision regarding
disability. 20 C.F.R. §§ 404.1517, 416.919 et seq. Ms. Browning correctly cites
Reeves for the proposition that “[i]t is reversible error for an ALJ not to order a
consultative examination when such an evaluation is necessary for him to make an
informed decision.” Reeves, 734 F.2d at 522 n.1; see also Caulder v. Bowen, 791
F.2d 872, 878 (11th Cir. 1986) (“Consultative examinations are not required by
statute, but 20 C.F.R. § 404.1517 provides for them where warranted.”). However,
the Eleventh Circuit has also held that the ALJ’s duty to develop the record does not
include ordering a consultative examination when the record contains “sufficient
evidence” upon which the ALJ can make an “informed decision.” Ingram v. Comm’r
of Social Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007).
Based on the wide range of medical evidence the ALJ relied on in this case—
from Ms. Browning’s treating physicians and her therapist as well as the nonexamining consulting psychiatrist—the court finds that another consulting
examination was not needed in this case because the record contained sufficient
evidence upon which the ALJ was able to make an informed decision. (See Tr. 192205, 208-11, 214-16, 219-59, 262-77). Additionally, the court notes that Ms.
Browning’s counsel did not request a consulting examination during the hearing, and
no other physician in the record recommended a consulting examination. Cf. Moorer
v. Astrue, Case No. 5:07-cv-1433-VEH, Doc. 11 at 7-8 (N.D. Ala. Mar. 28, 2008)
(noting that the “non-attorney representative requested that the ALJ order an
orthopedic and psychological examination on account of missing emergency room
records and other medical records that [the claimant] had been unable to obtain prior
to his hearing”); Reeves, 734 F.2d at 522 (noting that “the ALJ failed to order a
consultative examination by an orthopedist even though the SSA’s consulting doctor
recommended such an evaluation”); Good v. Astrue, 240 Fed. App’x 399, 404 (11th
Cir. 2007) (holding that where “no other physician recommended an additional
consultation, and the record was sufficiently developed for the ALJ to make a
determination . . . the ALJ need not order an additional consultative examination
where the record was sufficient for a decision”).
As to Ms. Browning’s implicit argument that the ALJ failed to fully and fairly
develop the record, she has not met her burden of proving that a remand is merited
on this ground. Although an ALJ “has a basic obligation to develop a full and fair
record,” the Eleventh Circuit has held that “[t]here must be a clear showing of
prejudice before it is found that the claimant’s right to due process has been violated
to such a degree that the case must be remanded to the [Commissioner] for further
development.” Graham v. Apfel, 129 F.3d 1420, 1422-23 (11th Cir. 1997) (emphasis
added); see also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Here,
Ms. Browning has not even argued that there has been a clear showing of prejudice,
much less has it been demonstrated. Given the depth and explicitness of the ALJ’s
consideration of the available medical evidence, there is substantial evidence that the
ALJ fully and fairly developed the record.
Therefore, the ALJ’s decision was an informed one based upon sufficient facts,
and there was no reversible error in his failure to order a consultative examination.
As such, the court does not find that remand is necessary or appropriate in this case.
The court instead finds that the ALJ satisfied his duty to develop the record, and that
his decision is supported by substantial evidence in the medical record.
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision is
supported by substantial evidence and applies the proper legal standards.
Accordingly, the decision of the Commissioner will be affirmed by separate order.
DONE and ORDERED this the 23rd day of April, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
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