Bishop v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 12/19/2013. (JLC)

FILED
2013 Dec-19 AM 10:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

NADINE F. BISHOP,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO. 2:11-CV-3438-VEH
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MEMORANDUM OPINION
The plaintiff, Nadine F. Bishop, brings this action pursuant to the provisions of
section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial
review of a final adverse decision of the Commissioner of the Social Security Administration
(the Commissioner) denying her application for disability insurance benefits and
Supplemental Security Income. The plaintiff timely pursued and exhausted her administrative
remedies available before the Commissioner. Accordingly, this case is now ripe for judicial
review under 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g). Based on the
court’s review of the record and the briefs submitted by the parties, the court finds that the
decision of the Commissioner is due to be affirmed.
I. STANDARD OF REVIEW
The sole 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. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). To that end this
court “must scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Id. (citations omitted). Substantial
evidence is “such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Id. This court may not decide the facts anew, reweigh the evidence,
or substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990). Even if the court finds that the evidence preponderates against the
Commissioner’s decision, the court must affirm the Commissioner’s decision if it is
supported by substantial evidence. Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003).
II. STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish entitlement for a period of
disability, a claimant must be disabled. The Act defines disabled as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than twelve months . . . .”

42 U.S.C.

§ 423(d)(1)(A); 42 U.S.C. § 416(I). For the purposes of establishing entitlement to disability
benefits, “physical or mental impairment” is defined as “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

2

In determining whether a claimant is disabled, Social Security regulations outline a
five-step sequential process. 20 C.F.R. § 404.1520 (a)-(f). The Commissioner must determine
in sequence:
(1)

whether the claimant is currently employed;

(2)

whether she has a severe impairment;

(3)

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

(4)

whether the claimant can perform her past work; and

(5)

whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); 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 past work, the burden shifts to the
Secretary to show that the claimant can perform some other job.” Pope, 988 F.2d at 477;
accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
In the present case, the ALJ determined the plaintiff met the first two tests, but
concluded she did not suffer from a listed impairment. The ALJ found the plaintiff had the
residual functional capacity (RFC) “as set forth in Exhibits 7F and 8F, except the claimant
must have a sit/stand option and the claimant experiences mild to moderate pain.” R. 24.
Exhibit 7F was the physical RFC assessment completed by the State agency non-medical
disability examiner. R. 234-241. Exhibit 8F was the mental RFC assessment completed by
3

Dr. Estock, M.D.,the State agency psychiatric consultant. R. 242-245. Based on the plaintiff’s
RFC, the ALJ found the plaintiff could not perform any of her past relevant work. R. 28.
Once it is determined the plaintiff cannot return to her prior work, “the burden shifts
to the [Commissioner] to show other work the claimant can do.” Foote, 67 F.3d at 1559.
When a claimant is not able to perform the full range of work at a particular exertional level,
the Commissioner may not exclusively rely on the Medical-Vocational Guidelines (the grids).
Foote, 67 F.3d at 1558-59. The presence of a non-exertional impairment (such as pain,
fatigue, or mental illness) also prevents exclusive reliance on the grids. Foote, 67 F.3d at
1559. In such cases, “the [Commissioner] must seek expert vocational testimony .” Id. The
ALJ found the plaintiff would be able to perform other jobs in the national economy based
on the testimony of a vocational expert (VE). R. 29. Therefore, he found the plaintiff was not
disabled at step five of the sequential evaluation framework. R. 29.
III. FACTUAL BACKGROUND
The plaintiff filed applications for a period of disability, disability insurance benefits,
and Supplemental Security Income (SSI) on October 16, 2007. R. 63-64. She alleges she
became disabled on October 16, 2007. R. 40. The plaintiff was 53 years old at the time of
the ALJ’s decision. R. 41. She has a high school education, plus a two-year associate’s
degree, and past relevant work as an adjustment clerk/processor. R. 42, 56, 139, 165. She
alleged she was disabled due to lower back and right leg problems; fibromyalgia;
degenerative disc disease in her upper back; a herniated disc in her middle back; and
depression. R. 160.
4

Treatment records show the plaintiff was seen by Dr. Foster on April 29, 2008, with
complaints of right hip pain and problems sleeping. R. 291. Examination showed edema in
the lower extremities and clicking in the right hip. R. 291. Dr. Foster diagnosed the plaintiff
with arthritis. R. 291.
On September 30, 2008, the plaintiff saw Dr. Foster complaining of wheezing for the
past three weeks. R. 290. She continued to carry a diagnosis of hip pain and weakness. R.
290. An MRI of the plaintiff’s hips was ordered. R. 290. The MRI showed no evidence of
fracture or dislocation of the hips, and there was no evidence to suggest the presence of
bursitis. R. 263. The impression was: “Unremarkable MRI of the hips.” R. 263.
When the plaintiff saw Dr. Foster on November 19, 2008, she continued to report
right hip pain. R. 289. Dr. Foster noted the plaintiff’s MRI was normal, but found tenderness
in the left hip on physical examination. R. 289.
The plaintiff was seen at Dr. Foster’s office on April 22, 2009, complaining of
swelling all over her body after she started taking Nexium. R. 284. Dr. Foster assessed the
plaintiff with edemal fibromyalgia. R. 283.
When she was seen at Dr. Foster’s office on November 17, 2009, the plaintiff
complained of extreme fatigue, weakness, and trouble getting up in the morning. R. 282. She
also complained of back pain, joint pain, stiffness, myalgias, and depression. R. 281-82. Dr.
Foster indicated the plaintiff’s musculoskeletal examination was normal. R. 281. She was
given samples of Savella for her depression and fibromyalgia. R. 281.

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On December 17, 2009, the plaintiff was seen at Dr. Foster’s office reporting she had
not noticed much difference after taking Savella for two weeks. R. 280. The plaintiff had a
flat affect. R. 279. The plaintiff continued to be diagnosed with fibromyalgia. R. 279. The
possible need for a rheumatology referral was noted and she was to continue Savella. R. 279.
On January 14, 2010, the plaintiff was seen at Dr. Foster’s office with nausea,
possibly related to sinus drainage. R. 278. She reported Savella was causing nightmares, and
that she was no longer seeing her psychiatrist, Dr. Jetty, because it was too expensive. R. 278.
The treatment note states the plaintiff would be referred to a specialist for assessment of her
fibromyalgia. R. 277.
On February 16, 2010, the plaintiff saw Dr. Morgan, a rheumatologist, to whom she
had been referred by Dr. Foster. Dr. Morgan noted the plaintiff “understands that she has
osteoarthritis and fibromyalgia and has a quite suboptimal status.” R. 301. She reported that
her symptoms started after a fall on her right hip in 2007. R. 301. Dr. Morgan noted it was
not clear whether there was a fracture, or if a dislocation required screw fixation. R. 301. Dr.
Morgan noted the plaintiff also has had discomfort in her knees and arms. R. 301. The
plaintiff told Dr. Morgan she had previously been referred to Dr. Fagan, a neurologist, for
nerve conduction studies, which did not show abnormalities. R. 301. She also reported she
had been referred to Dr. Oh, of UAB Neurology, “and got a fibromyalgia designation.” R.
301. Dr. Morgan noted “[i]t appears this was also diagnosed before then.” R. 301.

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Dr. Morgan found the plaintiff had a “depressed mood with very good cooperation”
during the examination. R. 302. The plaintiff’s neurologic examination was normal. R. 302.
Dr. Morgan observed: “The large and small joints do not appear unremarkable [sic]. There
is not particular soft tissue tenderness and typical fibromyalgia trigger point areas do not
appear remarkable.” R. 302. Dr. Morgan deferred his diagnosis. R. 302. The treatment plan
contains the following:
We suspect there is a combination of pain causes including myofascial aspects
but also associated with clinical depression and localized osteoarthritis aspects.
This includes lumbar spine and hip. We think she is getting effect from the
current treatment and perhaps most likely there is not a lot of additional benefit
likely from medications.
R. 302-03. Dr. Morgan discussed other modes of treatment, “including trying to get
enjoyment from social, religious and service parts of life.” R. 303.
After this visit, Dr. Morgan wrote a letter to Dr. Foster, which included the following:
“My impression is deferred as to final impression. We however think that she has the
combination of pain of fibromyalgia, dysthymic and osteoarthritis aspects.” R. 304.
The plaintiff followed up with Dr. Morgan on March 16, 2010. She reported she did
not feel better than on the previous visit. R. 306. She reported she was “hurting all over,
including in the legs, arms and knees.” R. 306. Dr. Morgan noted the plaintiff’s laboratory
results were surprising, “with the elevation of cyclic citrullinated peptides in the strong
positive range.” R. 306. However, the plaintiff’s rheumatoid factor and direct ANA were not
abnormal. R. 306. She also had a mildly elevated C-reactive protein. R. 306. Dr. Morgan

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found no change in his physical examination of the plaintiff as compared to the previous
visit. R. 306. However, he was concerned about her “unsatisfactory symptomatic status.” R.
306. Dr. Morgan found the plaintiff had “bony and soft tissue involvement at most of the DIP
joints [distal interphalangeal joints of the hand], but did not have “as much if any proximal
interphalangeal joint thickening.” R. 306. Dr. Morgan noted an elevated level of cyclic
citrullinated peptides (CCP) was “indicative of rheumatoid arthritis presence or subsequent
development.” R. 306. Dr. Morgan’s note states as follows: “We do not think that there are
enough features now to make that designation but do keep that possibility in mind.” R. 306.
Dr. Morgan’s clinical impression was atypical osteoarthritis, possible; and positive CCP. R.
306. The plaintiff was to stop Celebrex and to try prednisone 10 mg per day. R. 306. She was
to be reassessed in one month’s time. However, there are no further treatment notes from Dr.
Morgan in the record.
On March 17, 2010, the plaintiff was seen by Dr. Foster, and reported she had seen
Dr. Morgan. R. 288. The plaintiff complained of back/neck pain, joint pain, and stiffness. R.
288. Dr. Foster’s musculoskeletal examination found the plaintiff was tender in all joints and
all trigger points. R. 287.
On April 13, 2010, Dr. Foster completed a physical capacities evaluation (“PCE”),
indicating the plaintiff would be limited to lifting five pounds occasionally or less. R. 316.
The plaintiff was limited to a total of two hours sitting in an eight-hour day. R. 316. She was
limited to a total of one hour of combined standing and walking in an eight-hour day. R. 316.

8

Dr. Foster also completed a clinical assessment of pain form indicating that “[p]ain is present
to such an extent as to be distracting to adequate performance of daily activities or work.”
R. 317. Dr. Foster indicated the plaintiff’s pain would be greatly increased by physical
activity, and drug side effects could be expected to be severe. R. 317-18. Dr. Foster indicated
the plaintiff has an underlying medical condition consistent with the pain she experiences.
R. 318. She also indicated fatigue/weakness would be present to such an extent as to
negatively affect adequate performance of daily activities or work. R. 319. Dr. Foster opined
that physical activity would increase the plaintiff’s fatigue/weakness to such an extent as to
require bed rest and/or medications. R. 319. She indicated the plaintiff had an underlying
medical condition consistent with the fatigue/weakness she experienced. R. 320.
The plaintiff also suffers from mental impairments. Dr. Foster referred the plaintiff
to Dr. Jetty, a psychiatrist. R. 255. On May 21 2007, Dr. Jetty noted the plaintiff had a 10
month history of depression. R. 255. The plaintiff reported she could not work because it was
a struggle just to deal with everyday life. R. 255. She reported crying spells. R. 256. The
plaintiff’s sister, who accompanied her to the appointment, reported these crying spells lasted
several hours per day. R. 256. It was also reported the plaintiff “rambles incoherently,” and
does not or cannot clarify what she said. R. 256. During the mental status examination Dr.
Jetty found the plaintiff was depressed and tearful. R. 257.
On her June 7, 2007, visit to Dr. Jetty, the plaintiff reported feeling shaky, but overall
better. R. 254. The treatment note indicates the plaintiff had been diagnosed with Major

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Depressive Disorder, Recurrent, Severe With Psychotic Features. R. 254. The plaintiff
reported she had experienced no crying spells. R. 254. The plaintiff’s family rated her
improvement at 75 percent, and the plaintiff reported an 85 percent improvement. R. 254.
On June 25, 2007, the plaintiff reported no crying episodes. R. 253. She reported that
she continued to ramble while talking, and had difficulty focusing and concentrating. R. 253.
She reported that she had started cooking again, and her personal care was improving. R.
253. The treatment note indicates that “physically/mentally she feels unable to cope.” R. 253.
Dr. Jetty noted the plaintiff reported she was babysitting three of her godson’s children. R.
253. The plaintiff reported that she “[h]as applied for food stamps. They have asked her to
enroll in a job training program.” R. 253. Dr. Jetty opined the plaintiff might benefit from
vocational rehabilitation. R 253.
On August 7, 2007, the plaintiff reported to Dr. Jetty things were “going okay,”
although she was still depressed. R. 252. Dr. Jetty encouraged the plaintiff to apply for jobs,
which would increase “her activity level, social interaction [and] boost her self-esteem which
had been low.” R. 252.
On October 9, 2007, the plaintiff told Dr. Jetty she was somewhat better. R. 251.
However, she reported that she had difficulty waking up in the morning, and usually went
back to sleep because she had nothing to do. R. 251. At this visit, she reported an episode in
which she heard someone opening the door and running in her house. R. 251. But when she
got up and looked, no one was there. R. 251. She reported that she had experienced a couple

10

of similar episodes, but not on a regular basis. R. 251. The plaintiff also reported she had
signed up for vocational rehabilitation. R. 251
The first note from Dr. Jetty after the plaintiff’s alleged onset date was on November
8, 2007. The plaintiff reported she had attended vocational rehabilitation. R. 250. She denied
having either paranoia or hallucinations. R. 250. Dr. Jetty reported the plaintiff continued to
battle depression, which the plaintiff rated as an eight. R. 250. The plaintiff reported she was
going to church, keeping her grandchildren, and walking around the mall. R. 250.
On January 25, 2008, the plaintiff told Dr. Jetty she was feeling better on Lexapro, but
complained it was making her too drowsy. R. 249. The plaintiff rated her depression as a six.
R. 249. Although she reported no paranoia, she did have perceptual problems. R. 249. She
reported she felt something was under the covers on two occasions, but when she checked
nothing was there. R. 249. Dr. Jetty reported the plaintiff’s affect was more reactive, and that
she was babysitting her nine-month-old granddaughter on the weekends. R. 249. Topamax
was prescribed to help reduce the plaintiff’s bad dreams.
On August 6, 2008, the plaintiff told Dr. Jetty she was doing fair. R. 248. She reported
the Topamax had helped, but still complained of bad dreams. R. 248. She reported the
increased dosage of Lexapro helped her depression, and that she was spending more time
with her family. R. 248. She had also gone shopping with her sister, which she had not done
in a long while. R. 248. The plaintiff rated her depression as a five. R. 248. Dr. Jetty noted
the plaintiff’s affect was restricted, but that she did “lighten up several times during the

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interview.” R. 248. Dr. Jetty noted the plaintiff’s paranoia was better. R. 248. The plaintiff’s
medications were adjusted and she was to follow-up in two months. R. 248.
When the plaintiff saw Dr. Jetty on January 8, 2009, it was noted she missed her
October appointment. R. 247. The plaintiff reported she was taking computer classes. R. 247.
Dr. Jetty noted the plaintiff laughed when she stated she was “trying to put some knowledge
in this old brain.” R. 247. The plaintiff reported ongoing problems with bad dreams. R. 247.
She rated her depression as 7.5 or 8 following her mother’s death the previous August. R.
247. The plaintiff denied paranoia and reported no clear hallucinations. R. 247. This is the
final treatment note from Dr. Jetty in the record.
The plaintiff was referred to Dr. Gordon for a consultative psychological evaluation
by the Social Security Administration on February 21, 2008. R. 214-17. Dr. Gordon did not
have access to the plaintiff’s treatment records when she conducted her evaluation. R. 214.
The plaintiff reported she had depression, anxiety, and panic attacks. R. 214. She reported
visual hallucinations involving “movement of people down the hall and under the covers.”
R. 214 She also admitted she occasionally “rambles and speaks in tongues at night.” R. 214.
The plaintiff reported having horrible dreams and at least one panic attack per month. R. 214.
She reported difficulty concentrating and impaired memory functioning. R. 214.
On mental status examination Dr. Gordon noted the plaintiff was “pleasant, polite, and
socially appropriate at all times.” R. 215. Rapport was good and she was able to initiate and
maintain interactions with Dr. Gordon. R. 215. Dr. Gordon reported the plaintiff’s mood

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appeared to be dysthymic, and that her affect was sad and consistent with her mood. R. 215.
Dr. Gordon reported the plaintiff’s memory appeared intact for recent and remote
information. R. 216.
Dr. Gordon made the following diagnoses on Axis I: Major Depressive Disorder,
Single Episode, Severe, With Psychotic Features; Anxiety Disorder NOS; Panic Disorder
Without Agoraphobia; Pain Disorder Associated With Both Psychological Factors and a
General Medical condition; and Hypersomnia Related to Depression. R. 216. Dr. Gordon
gave the plaintiff a GAF score of 50.1 Dr. Gordon opined that, based on the results of her
evaluation, the plaintiff
should be able to learn, remember, and follow-through on work instructions.
However, her work focus and subsequent work pace are likely to fall below
average at all times due to psychological issues and mental and physical
fatigue will likely contribute to her difficulties. She should be able to maintain
amicable relationships with coworkers and supervisors, although at times her
patience is likely to wane and she may display mild irritability. She appears to
be experiencing considerable distress secondary to her medical issues and
psychosocial stressors, and she would likely find additional work pressures to
overwhelm her emotional control and capacity to cope effectively.
R. 216-17. Dr. Gordon reported the plaintiff was cooperative and displayed good motivation.
R. 217. Dr. Gordon concluded : “There was no evidence of an attempt to embellish her
symptoms or otherwise provide misleading information.” R. 217.
1

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 30 (4th Edition) (“DSM-IV”). 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).” DSM-IV at 32 (emphasis in original).
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The plaintiff was also referred to Dr. Padove by the Social Security Administration
for a consultative physical examination on January 28, 2008. Dr. Padove reported that his
comprehensive exam of the plaintiff’s musculoskeletal system revealed the following: “She
had difficulty sitting up, complaining of pain. She also had difficulty taking her shoes and
socks off and then complaining of low back pain.” R. 206. Dr. Padove’s range of motion
testing revealed reduced range of motion in the dorsolumbar spine and hips. R. 209. Dr.
Padove’s diagnoses included fibromyalgia, degenerative disease of the hip, degenerative disc
disease, psychosis, and depression. R. 207. Dr. Padove concluded: “I think the patient has
significant impairments, which are outlined above.” R. 207.
There are also x-rays of the plaintiff’s lumbosacral spine from Dr. Romeo, another
Social Security consultant. R. 219. The x-ray showed a “stable right SI joint screw fixation,”
but was otherwise normal. R. 219.
IV. DISCUSSION
A.
The plaintiff argues on appeal that the ALJ erred in failing to accord great weight to
the opinion of Dr. Foster, her treating physician. Pl.’s Br. 12. Under the regulations, a
treating physician’s opinion will be given controlling weight if it is well supported and not
inconsistent with other substantial evidence in the record.
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.
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20 C.F.R. § 404.1527(c)(2). In considering whether an ALJ has properly rejected a treating
physician’s opinion, this court is not without guidance. “The law of this circuit is clear that
the testimony of a treating physician must be given substantial or considerable weight unless
“good cause” is shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997). “Good cause” exists when the evidence does not bolster the treating physician's
opinion; a contrary finding is supported by the evidence; or the opinion is conclusory or
inconsistent with the treating physician's own medical records. Id. If a treating physician’s
opinion is rejected, the ALJ must clearly articulate the reasons for doing so. Id.
The ALJ gave little weight to Dr. Foster’s opinions, and rejected her PCE and clinical
assessment of pain and fatigue forms, which indicated the plaintiff would be unable to work
due to debilitating pain and medication side effects. The ALJ found these opinions were not
supported by Dr. Foster’s “own records, medication or treatment plan.” R. 26. The ALJ
noted that although “Dr. Foster began seeing the plaintiff in April 2008, she did not diagnose
the claimant with fibromyalgia until April 2009.” R. 26. The ALJ found that Dr. Foster’s
failure to refer the plaintiff to a specialist until January 2010 suggested the plaintiff’s
“symptoms were not severe enough for the referral.” R. 26. The ALJ observed that, even
though the plaintiff carried a diagnosis of fibromyalgia, Dr. Foster’s treatment notes show
only one examination, March 17, 2010, wherein she noted the plaintiff had tenderness over
joints and trigger points. R. 26. The ALJ remarked that this notation occurred after Dr.
Morgan questioned the plaintiff’s diagnosis of fibromyalgia. R. 26.

15

The ALJ also found the medical evidence showed Dr. Foster’s opinions were
“inconsistent with the claimant’s other treating physicians and her own treatment records,
which renders her opinions less persuasive.” R. 26. The ALJ noted Dr. Morgan encouraged
the plaintiff “to increase her social activities, religious activities, and suggested that she begin
volunteering her time.” R. 26. The ALJ concluded this “suggests the claimant’s impairments
are not as severe as she has alleged.” R. 26.
The ALJ also found Dr. Foster’s treatment records contained gaps in treatment, which
he found to be “inconsistent with the severe functional limitations and pain alleged by the
claimant.” R. 27. The ALJ noted several occasions in which the plaintiff did not return for
follow-up visits until several months after Dr. Foster had instructed. R. 27.
All of these reasons articulated by the ALJ for refusing to credit Dr. Foster’s opinions
are supported by substantial evidence in the record. Based on the medical evidence, the ALJ
found Dr. Foster’s opinions were inconsistent with her own treatment notes, and were not
bolstered by evidence from other treating doctors. Therefore, the ALJ had good cause for
rejecting Dr. Foster’s opinions, and his decision to do so is supported by substantial evidence.
The plaintiff takes issue with two of the ALJ’s findings related to Dr. Foster’s
opinions. The plaintiff argues the ALJ applied the wrong legal standard when he stated that
Dr. Foster’s examination did not indicate the plaintiff met a Listing. Pl.’s Br. 13. The
plaintiff argues this was the wrong standard because Dr. Foster never opined the plaintiff
met a Listing. Id. However, the plaintiff does not dispute the ALJ’s finding that she does not

16

meet a Listing. While the plaintiff’s failure to meet a Listing is not determinative of whether
Dr. Foster’s opinions are supported by substantial evidence, it is at least some evidence
tending to show the plaintiff’s condition was not disabling. The ALJ’s decision does not
suggest he viewed the plaintiff’s failure to meet a Listing as a major factor in his decision
not to credit Dr. Foster’s opinions. Therefore, any error would be harmless because the ALJ
gave multiple other reasons supported by substantial evidence for discounting Dr. Foster’s
opinions.
The plaintiff also contends the ALJ erred by questioning Dr. Foster’s motives for
completing the PCE and clinical assessment of pain and fatigue forms. Pl.’s Br. 13. The
ALJ’s discussion of Dr. Foster’s opinions includes the following:
The possibility always exists that a doctor may express an opinion in an effort
to assist a patient with whom he or she sympathizes for one reason or another.
Another reality which should be mentioned is that patients can be quite
insistent and demanding in seeking supportive notes or reports from their
physicians, who might provide such a note in order to satisfy their patient's
requests and avoid unnecessary doctor/patient tension. While it is difficult to
confirm the presence of such motives, they are more likely in situations where
the opinion in question departs substantially from the rest of the evidence of
record, as in the current case.
R. 26. The ALJ’s discussion of a possible motive behind Dr. Foster’s opinion does not mean
that his decision was not based upon proper legal standards. In Kelly v. Comm’r of Soc.
Sec., the court considered language identical to that used by the ALJ in the present case. 401
F.App’x 403, 404 (11th Cir. 2010) (unpublished). The Kelly court found no merit in Kelly’s
argument that the ALJ discounted her doctor’s opinion because it was rendered because of

17

sympathy for his patient or to avoid doctor-patient tension. Id. at 407, n. 6. The Kelly court
found that the ALJ acknowledged that such motives were difficult to confirm, and ultimately
concluded the doctor’s opinion “was less persuasive because it lacked evidentiary support
and in fact was inconsistent with other evidence.” Id. The present case is indistinguishable
from Kelly. As discussed above, the ALJ gave multiple other reasons for rejecting Dr.
Foster’s opinions. Therefore, the plaintiff’s argument on this issue fails.
B.
The plaintiff also argues the ALJ failed to explain why he did not accept the opinions
of the consultative examiners, Drs. Padove and Gordon. Pl.’s Br. 12. As one-time examining
physicians, the ALJ had no duty to give special weight to these evaluations. An ALJ is only
required to give controlling weight to a treating physician’s opinion. See 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Because the ALJ did not give controlling weight to any of
the plaintiff’s treating doctors, he was required to consider the following factors in
determining how much weight to give the opinions of Drs. Padove and Gordon: (1) whether
the doctor has examined the plaintiff; (2) whether the doctor has a treating relationship with
the plaintiff; (3) the extent to which the doctor presents medical evidence and explanation
supporting his opinion; (4) whether the doctor's opinion is consistent with the record as a
whole; and (5) whether the doctor is a specialist. 20 C.F.R. §§ 404.1527(c), 416.927(c).
The opinions of Dr. Padove cited by the plaintiff are his report of abnormalities in
range of motion testing, and his conclusion that the plaintiff “has significant impairments

18

which are outlined above.” Pl.’s Br. 12. Contrary to the plaintiff’s argument, the ALJ
explained why he gave Dr. Padove’s opinions little weight. The ALJ afforded Dr. Padove’s
opinions little weight because he found them “generally inconsistent with the medical
evidence as a whole.” R. 27. The ALJ also found that Dr. Padove’s assessment “assigns too
much significance to the claimant’s impairments in light of the other medical evidence of
record, including the lack of objective findings.”2 R. 27. The reasons given by the ALJ for
not crediting the opinions of Dr. Foster apply with equal force to the opinions of Dr. Padove.
The medical evidence of record, including the lack of objective evidence, provides
substantial evidence to support the ALJ’s decision to afford Dr. Padove’s opinions little
weight.
The ALJ gave the opinions of Dr. Gordon, the Commissioner’s psychological
consulting examiner, “some weight.” R. 28. The plaintiff cites Dr. Gordon’s assessment of
a GAF score of 50 in arguing the ALJ did not properly reject her opinions. Pl.’s Br. 12. In
giving Dr. Gordon’s opinion “some weight,” the ALJ adopted the following opinions of Dr.
Gordon:
Dr. Gordon opined that the claimant’s cognitive functioning, memory,
receptive and expressive language skills were intact, and that the claimant
should be able to remember, and follow through on work instructions, but that
her work focus and pace could fall below average at times due to her
psychological issues. Dr. Gordon also noted that the claimant should be able

2

It should be noted that Dr. Padove did not have access to any of Dr. Foster’s or
Dr. Morgan’s treatment notes when he examined the plaintiff. Dr. Padove examined the
plaintiff on January 28, 2008, which was prior to the earliest treatment notes from those
doctors contained in the record.
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to maintain amicable relationships with co-workers and supervisors, although
her patience may wane.
R. 28. Although the ALJ did not elaborate on his reasons for adopting only portions of Dr.
Gordon’s findings, his reasoning can be discerned from his consideration of the plaintiff’s
allegations of limitations due to her depression.
The ALJ found the plaintiff’s allegations of disabling symptoms from depression
were inconsistent with the medical evidence of record. R. 27. The ALJ extensively discussed
the treatment notes from Dr. Jetty, the plaintiff’s treating psychiatrist.3 He observed that Dr.
Jetty noted improvement in the plaintiff’s depression during her treatment. R. 27. Dr. Jetty
also noted that the plaintiff reported improvement in her symptoms with treatment. R. 27.
The ALJ noted that the plaintiff reported to Dr. Jetty that “overall she was better” and that
“she had kept her godchildren’s grandchildren” when she was seen in June 2007. R. 27. He
observed that on August 7, 2007, the plaintiff “reported that she was doing okay,” and that
Dr. Jetty had encouraged her “to apply for jobs and to increase her activities and her social
interactions.” R. 27. The ALJ noted that when the plaintiff was seen on October 9, 2007,
she reported that “she was better and had signed up for vocational rehabilitation.” R. 27. He
observed that the plaintiff reported in January 2008 that “she was keeping her nine month
old granddaughter on weekends.” R. 27. The ALJ noted that the plaintiff reported “that she
was doing fair, and that she was spending more time with her family, going out and

3

Dr. Gordon did not have access to any of the plaintiff’s treatment notes when
she examined the plaintiff. R. 214.
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shopping” when she saw Dr. Jetty in August 2008. R. 27. The ALJ noted the plaintiff
reported on January 8, 2009, that she was taking computer classes and “laughingly stated
that she was trying to get some knowledge in her brain.” R. 27.
The treatment notes cited by the ALJ show the plaintiff’s condition improved with
treatment. They provide substantial support for the ALJ’s decision to give Dr. Gordon’s
opinions only “some weight.” Therefore, the ALJ did not err in his evaluation of Dr.
Gordon’s medical opinions.
IV. CONCLUSION
The court concludes the ALJ’s determination that the plaintiff is not disabled is
supported by substantial evidence, and that the ALJ applied the proper legal standards in
arriving at this decision. Accordingly, the Commissioner’s final decision is due to be
AFFIRMED. An appropriate order will be entered contemporaneously herewith.
DONE and ORDERED this 19th day of December, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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