Reynolds v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 7/2/2014. (PSM)
2014 Jul-02 PM 02:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARK DANIEL REYNOLDS,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
CIVIL ACTION NO.
Plaintiff Mark Daniel Reynolds (“Reynolds”) 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
Reynolds filed an application for Title XVI Supplemental Security Income
on August 11, 2009, alleging a disability onset date of August 11,2009, due to
Crohn’s disease, sleep disorder, colitis, and panic attacks. (R. 28, 249). After the
SSA denied Reynolds’ claim, he requested a hearing before an ALJ. (R. 170-71).
The ALJ subsequently denied Reynolds’ claim, (R. 25-36), which became the final
decision of the Commissioner when the Appeals Council refused to grant review.
(R. 1-6). Reynolds 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
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
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).
Lastly, where, as here, a plaintiff alleges disability because of pain, he must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
This standard is referred to as the Hand standard, named after Hand v.
Heckler, 761 F.2d 1545, 1548 (11th Cir. 1985).
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate
reasons for refusing to credit a claimant’s subjective pain testimony,
then the [ALJ], as a matter of law, has accepted that testimony as true.
Implicit in this rule is the requirement that such articulation of reasons
by the [ALJ] be supported by substantial evidence.
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Reynolds had not
engaged in substantial gainful activity since August 11, 2009, and, therefore, met
Step One. (R. 30). Next, the ALJ found that Reynolds satisfied Step Two because
he suffered from the severe impairments of “[a]nxiety disorder, alcoholism, and
ulcerative colitis.” Id. The ALJ then proceeded to the next step and found that
Reynolds failed to satisfy Step Three because he “does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments.” Id. 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 Reynolds had the residual functional capacity
perform light work as defined in 20 C.F.R. § 416.967(b) except he
can remember, understand, and carryout simple instruction and would
work best in a well spaced work environment. Contact with the
public should remain casual; criticism should be non-confrontational;
and changes to the work setting should be introduced gradually.
(R. 33). In light of his RFC, the ALJ held that Reynolds “is unable to perform any
past relevant work.”2 (R. 35). Lastly, in Step Five, the ALJ considered Reynolds’
age, education, work experience, and RFC and determined “there are jobs that exist
in significant numbers in the national economy [Reynolds] can perform.” Id.
As of the date of the ALJ’s decision, Reynolds was 52 years old, and had
past relevant heavy skilled work as a mobile home utility worker. (R. 35, 139).
Therefore, the ALJ found that Reynolds “has not been under a disability, as defined
in the Social Security Act, since August 11, 2009.” (R. 36).
The court now turns to Reynolds’ contentions that the ALJ (1) improperly
discredited Reynolds’ subjective testimony; (2) abused his discretion by engaging
in settlement negotiations with Reynolds and became biased against Reynolds for
declining to accept the ALJ’s settlement proposal; (3) abused his discretion by
refusing to allow Reynolds’ counsel to cross-examine the medical expert; (4) failed
to apply the correct legal standard on the issue of Reynolds’ noncompliance with
prescribed treatment; and (5) committed reversible error by failing to make
credibility findings regarding the testimony of Reynolds’ wife. See doc. 9 at 12-24.
The court addresses each contention in turn.
Application of the Eleventh Circuit pain standard
Reynolds contends the ALJ improperly discredited Reynolds’ subjective
pain testimony. Doc. 9 at 12-17. As mentioned in Section III, supra, the pain
standard in this circuit requires a two part analysis. In applying this standard, the
ALJ found Reynolds met the first part because “the medical evidence establishes
[Reynolds’] physical impairment.” (R. 34). However, the ALJ found Reynolds did
not meet the first prong3 of the second part of the pain standard because “the
See Holt, 921 F.2d at 1223 (“objective medical evidence that confirms the
severity of the alleged pain arising from that condition”).
medical evidence . . . does not support the frequency or severity of [his] symptoms
as alleged.” (R. 34). The ALJ also found that Reynolds did not meet the second
prong4 of the second part because the evidence does “not establish an underlying
medical condition, which is of such severity that it can reasonably be expected to
give rise to the symptoms alleged by the claimant.” (R. 33).
Reynolds contends the ALJ erred because “ulcerative colitis is a medical
condition which is capable of causing frequent bathroom breaks.”5 Doc. 9 at 14.
To support this contention, Reynolds cites to the testimony of Dr. Joseph Rubini,
the medical expert (ME) who testified at Reynolds’ second ALJ hearing. At that
hearing, Reynolds’ attorney asked Dr. Rubini whether ulcerative colitis is capable
of producing symptoms that would require multiple trips to the bathroom, and Dr.
Rubini responded “yes.” (R. 136). Unfortunately for Reynolds, the court simply
cannot view Dr. Rubini’s testimony in isolation. In that regard, the court notes that
Dr. Rubini also testified that Reynolds’ “colitis is not severe” because one of the
medical records described Reynolds “as enjoying rock climbing6 and I felt that
See Holt, 921 F.2d at 1223 (“objectively determined medical condition is
of such a severity that it can be reasonably expected to give rise to the alleged
Reynolds testified that he had required 15 to 16 bathroom breaks prior to
time of the hearing, which commenced at 8:43 a.m. (R. 52). His wife testified that
on the average day Reynolds had to go to the bathroom at least 25 times a day. (R.
Reynolds later testified that it had been over a year since he had been rock
climbing. (R. 154).
that’s indicative or [sic] rather not a severe condition of his colitis and I noted that
he didn’t take anti-colitis medication and when he didn’t take the medication he’s
more likely to have stools and bloody stools at that but he either couldn’t afford it
or didn’t take it at times,” (R. 122), that Reynolds’ ulcerative colitis could be
described as “recurrent,” and “that at times [it is] severe and at other times less
severe,” (R. 123), and that he did not consider frequent bowel movements to be “a
typical” or “classical symptom with people diagnosed with a history of ulcerative
colitis,” but that it is “with some people in particular and those people that are not
taking any treatment for their condition.” (R. 132). Based on this testimony, it is
evident that Dr. Rubini’s testimony is subject to a variety of interpretations.
Significantly, such fact finding is within the province of the ALJ. See Landry v.
Heckler, 728 F.2d 1551, 1554 (11th Cir. 1986) (reiterating that in determining
whether a claimant’s condition meets the pain standard, “choosing between
conflicting evidence is a task particularly suited to the fact finder”) (quoting Hand,
761 F.2d at 1549 n.6).
In explaining his findings, the ALJ noted that Dr. Rubini “testified that
[Reynolds] had a history of ulcerative colitis with chronic alcoholism and drug
seeking, . . . [and] opined that [Reynolds’] ulcerative colitis was not severe.” (R.
34). The ALJ also noted that the consultative examination of Dr. Hirenkumar Jani
on December 14, 2009, “was ostensibly normal, and [Reynolds’] ulcerative colitis
was note[d] as in remission.” (R. 34, 312-15). Indeed, Dr. Jani’s report contains
no mention of frequent bowel movements, with the only reported symptoms being
that “[c]urrently [Reynolds] is describing having abdominal pain, cramp like
which is 5/10–increased by eating, decreased by medicine.” (R. 312). The ALJ
also found it significant that the “treating source records are devoid of any evidence
of [Reynolds] having any flare up of his ulcerative colitis, during the relevant
period,” and that “the record contains only one medical treatment note [during that
period], which was for a refill of [Reynolds’] anxiety medication and not related to
his physical issue.” (R. 34). In fact, this treatment note of December 10, 2009,
from Dr. Henry Davis, mentions no complaints from Reynolds about colitis
symptoms, and Dr. Davis diagnosed only a “[h]istory of ulcerative colitis, not
presently seeing a GI specialist or on any medication.” (R. 354). The ALJ also
cited the lack of “independent supportive evidence of [Reynolds] having the
frequency and severity of symptoms as alleged,” and again noted that “in spite of
not receiving ongoing medical treatment or prescribed medication, [Reynolds] has
had no flare up related to his physical issue during the relevant period.” (R. 34).
Finally, in addition to relying on the absence of reports of disabling symptoms to
treating or consultative examiners, the ALJ also observed that Dr. Jani “opined
[Reynolds] could walk or stand at least six hours without any restriction and had no
restrictions while sitting,” and that Dr. Rubini testified Reynolds “has the physical
capacity to perform light exertional activities.” Id. Therefore, the ALJ concluded
that “[u]ltimately, the medical opinions contained within the record indicate that
[Reynolds] can perform at least light exertional activity.” Id.
Put simply, the ALJ weighed the evidence and found Reynolds did not have
“an underlying medical condition, which is of such severity that it can reasonably
be expected to give rise to the symptoms alleged by the claimant.” (R. 34). While
Reynolds is free to disagree with the ALJ, the court notes that the ALJ’s
determination that Reynolds does not meet the pain standard “is a question of fact,
which . . . is subject only to limited review in the courts to ensure that the finding is
supported by substantial evidence.” Hand, 761 F.2d at 1549. Based on this record,
the court finds that substantial evidence supports the ALJ’s finding. Therefore, the
ALJ did not err in finding Reynolds was not disabled due to his alleged symptoms.
Abuse of discretion and bias
Reynolds contends next that because the ALJ offered to award Reynolds a
closed period of benefits at the hearing, the ALJ “became a negotiator on behalf of
the SSA as opposed to an impartial arbiter of the facts and, therefore, should have
recused himself from further participation in the case.” Doc. 9 at 18. The record
shows that prior to taking testimony from a vocational expert [VE], the ALJ made
the following offer to Reynolds:
[O]ne thing I could do and it’s not an ultimatum is before I ask our
vocational expert what her, presenting hypotheticals, if you would be
considering a closed period that would begin 12/22/09 and end
12/22/2010 and that would give him something, where it says he has
no money to go to doctors or anything like that because there was a
period of time, I think he couldn’t work but I’m not sure. But the
alternative is if that doesn’t seem, then I’ll go to, I’ll ask and that, it’s
no longer an option once we move on because I don’t know what the
vocational expert’s going to say but before I go to the vocational
expert and say, assuming a person got A, B, C and before you do it
whether a, one year closed period would be acceptable to you and to
him. It’s not an ultimatum. It’s only an option.
(R. 143-44). Reynolds’ attorney responded that “the problem with that . . . is that
this man needs, he needs medical treatment in the future and you know, a closed
period is not going to help him getting his medicine, $ 400 a month or so, it’s his
call to make but I certainly would not recommend him doing that simply because if
he needs his medicine that’s not going to–” (R. 144). The record does not reflect
whether Reynolds or his attorney made a definitive decision on whether to accept
the offer at that time. Following the VE’s testimony, the ALJ revived his offer:
“And there’s no way that you see a close[d] period would be a viable option in this
case.” (R. 157). Reynolds’ attorney responded: “No, sir. It’s not going to help
him. He can’t get his medicine. This guy is going to die if he doesn’t get some
medicine.” Id. After additional discussion of Reynolds’ need for a colonoscopy,
Reynolds’ attorney asked the ALJ “what’s wrong with having an onset date of June
2010.” (R. 158). The ALJ then extensively explained his reasons for offering a
I mean, I’m betwixt and between on this case. I mean I heard the
testimony of our vocational expert. I heard the testimony of our
medical expert. I reviewed the two exhibits which say he can work.
There’s a lot of material that says he can do work but on the other
side of the coin he does have an illness. This is a very difficult case.
That’s why I figured if we went with a closed period you would
certainly have X amount of dollars to get whatever test he needs and
then could always file again with your excellent representation.
There’s no time limit on that. . . . Okay, this is a Title XVI so he can’t
get any benefits prior to 2009 anyway but if he were to go to a closed
period he could still file another Title XVI after he gets that money
and he gets, I would definitely go again and it’s more to give him, as
you point out, the wherewithal to get the tests that he should have. I
would go with a year and a half but I’d be like going against some
testimony here to do it. But I, this is a difficult case. I do think he
has a gastro, whether it is of such a nature that he can never work
because of it, that I’m not convinced, I’m surely not convinced and
the same thing with the mental disorder. I’m not convinced that it’s
so overwhelming that he can’t handle that. Those are the two areas
that I deal with and, so, but I haven’t made any final decision. I have
to go through the evidence again and I’ll just weigh it and then come
up with a decision but I do believe you have severe medically
determinable impairments. Whether that means you could not work
at any job I’m not sure. I don’t know. I’ve got to listen to his
testimony again and I’ve got to review the material and listen to our
vocational expert but this is a very borderline type of case for me.
(R. 158-59). Although the transcript of the hearing does not reflect it, Reynolds
again declined the ALJ’s offer of a closed period of disability.7
Turning now to Reynolds’ contention of bias against him due to his rejection
of the offer, the court initially notes that a presumption of honesty and integrity
exists in those who serve as adjudicators for administrative agencies. See
Schweiker v. McClure, 456 U.S. 188, 195 (1982) (finding that hearing officers who
decide Part B Medicare claims “serve in a quasi-judicial capacity, similar in many
In a brief to the Appeal Council, Reynolds’ attorney confirms that
Reynolds “informed [the ALJ] that he was unwilling to accept a closed period.”
respects to that of administrative law judges,” and are presumed to be unbiased).
However, this presumption may be rebutted by showing a conflict of interest or
some other specific reason for disqualification. Id. Under the regulations, an ALJ
is disqualified from conducting a hearing “if he or she is prejudiced or partial with
respect to any party.” 20 C.F.R. § 404.940. Thus, Reynolds may overcome the
presumption by showing that the ALJ was prejudiced against him.
Prejudice exists when an ALJ considers evidence outside the record in
deciding a claimant’s case. See Miles v. Chater, 84 F.3d 1397, 1401 (11th Cir.
1996). However, to constitute bias, the evidence “must stem from an extrajudicial
source and result in an opinion on the merits on some basis other than what the
judge learned from his participation in the case.” United States v. Grinnell Corp.,
384 U.S. 563, 583 (1966); see also U.S. v. Amedeo 487 F.3d 823, 828 (11th Cir.
2007) (same). Consequently, “[o]pinions formed on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 555 (1994); see also Amedeo, 487 F.3d at
829 (same). When the alleged bias does not stem from an extrajudicial source, it
must be “so extreme as to display clear inability to render fair judgment.” Liteky,
510 U.S. at 551.
Reynolds does not allege the ALJ considered evidence outside the record, or
formed “an opinion on the merits on some basis other than what the judge learned
from his participation in the case.” Grinnell, 384 U.S. at 583. Reynolds has also
not cited any authority to support his contention that it was improper for the ALJ to
offer a closed period of disability. On the other hand, the Commissioner cites to
D’Amato v. Apfel, 2001 WL 776945 (S.D.N.Y. 2001), in which the court rejected a
similar allegation of alleged bias related to an offer to settle the case:
Indeed, the Second Circuit has recognized that the high standard of
propriety applied to recusal motions for federal judges “cannot apply
to administrative law judges who, after all, are employed by the
agency whose actions they review.” Greenberg v. Bd. of Governors of
Fed. Reserve Sys., 968 F.2d 164, 167 (2d Cir.1992). Even applying
the heightened standard to a federal district judge, the Second Circuit
affirmed the denial of a recusal motion when Judge Baer “urged the
parties to settle,” and suggested that the plaintiff should consider his
“prior remittur in assessing the wisdom of trying the case again.”
Lightfoot v. Union Carbide Corp ., 92 Civ. 6411, 1997 WL 543076, at
*1 (S.D.N.Y. Sept. 4, 1997) aff’d, 175 F.3d 1008 (2d Cir. 1999).
Although Judge Baer did not offer to settle the case himself, his strong
recommendation that the case should be settled was not considered
evidence of bias because there was no display of “deep seated
favoritism or antagonism that would make fair judgement impossible.”
Id. at *2. Similarly, ALJ Levin’s offer to settle the case did not reveal
any reason why he could not make a fair and impartial decision
regarding Plaintiff’s application. Both the record of the second
hearing and the resulting decision in this case further illustrate that
ALJ Levin fully examined all of the evidence and reached a reasoned
Id. at *6. The court finds the reasoning expressed in D’Amato is persuasive, and
concludes that the ALJ’s offer of a closed period of disability, in and of itself, was
not improper and is insufficient to establish bias. Therefore, Reynolds must show
that the ALJ’s bias was “so extreme as to display clear inability to render fair
judgment.” Liteky, 510 U.S. at 551.
Other than the making of the offer itself, Reynolds’ only contention of bias is
that the ALJ denied his claim “in retribution for [Reynolds’] failure to accept the
ALJ’s offers of a compromise settlement.” Doc. 9 at 18. This argument is based on
Reynolds’ assertion that “[i]t is apparent that during the hearing, the ALJ was
sufficiently satisfied of [Reynolds’] disability to offer him up to one and one-half
years worth of benefits.” Id. (emphasis removed). Unfortunately, contrary to
Reynolds’ contention, the hearing transcript shows that the ALJ was far from
convinced that Reynolds was entitled to even a closed period of benefits. For
example, the ALJ stated that “there was a period of time, I think he couldn’t work
but I’m not sure.” (R. 143) (emphasis added). At a later point, the ALJ stated that
he “heard the testimony of our medical expert” and “reviewed the two exhibits
which say he can work,” and that “[t]here’s a lot of material that says he can do
work.” (R. 158). Further, the ALJ emphasized that he had not “made any final
decision,” and would “have to go through the evidence again and . . . weight it and
then come up with a decision,” (R. 159), and that he was “betwixt and between” on
whether Reynolds was disabled. (R. 158). Therefore, the court finds no evidence
to support Reynolds’ contention that the ALJ was “satisfied of [Reynolds’]
disability,” but rendered an unfavorable decision “in retribution for [Reynolds’]
failure to accept the ALJ’s offers of a compromise settlement.” Doc. 9 at 18.
Likewise, there is no evidence showing the ALJ exhibited bias “so extreme as to
display clear inability to render fair judgment.” Liteky, 510 U.S. at 551.
Accordingly, Reynolds’ contention is without merit.
Refusal to allow cross-examination of the medical expert
Reynolds contends next that the ALJ abused his discretion by refusing to
allow his attorney to question Dr. Rubini about the impact of chronic anxiety on
Reynolds’ gastrointestinal condition. Doc. 9 at 20. The SSA’s Hearings, Appeals,
and Litigation Law Manual (HALLEX) provides that “the claimant and the
representative have the right to question the ME fully on any pertinent matter within
the ME’s area of expertise,” but that “the ALJ will determine when they may
exercise this right and whether questions asked or answers given are appropriate.”
HALLEX I-2-6-70, 1993 WL 751901 (S.S.A.). The manual also provides that
“[t]he ALJ will not permit the ME to respond to questions on nonmedical matters or
to draw conclusions not within the ME’s province.” Id. Reynolds asserts that it was
within Dr. Rubini’s area of expertise to answer “questions about the effects, if any,”
the diagnoses of chronic anxiety and depression “would have on [Reynolds’]
gastrointestinal symptoms.” Doc. 9 at 21. However, a review of the transcript of
the hearing shows the ALJ did not abuse his discretion in refusing to allow Dr.
Rubini to testify on a subject outside Dr. Rubini’s expertise.
At the second ALJ hearing, Reynolds’ attorney asked Dr. Rubini whether he
was familiar with global assessment of functioning (GAF) scores,8 and Dr. Rubini
responded: “Well, I’m not too swift on that. I can imagine it but I’m not going to
be expert in that area.” (R. 134). Reynolds’ attorney also asked Dr. Rubini the
following question: “And, you’re not prepared to give any testimony about the
severity of the chronic anxiety, depression, post traumatic stress disorder. Is that
correct?” Id. Dr. Rubini responded: “That’s correct.” Id. After the ALJ
reiterated that Dr. Rubini was “only going to deal with the physical not the
behavioral or mental or mood disorders,” Reynolds’ attorney continued his
Okay, well, then let me ask another way. Doctor, in your experience
as an internal medicine doctor are you aware as to whether or not
psychological factors can have a physical affect [sic] such as those
similar to ulcerative colitis?
ME: Am I aware that psychological factors, what about psychological
Can they impact conditions such as ulcerative colitis?
ME: Psychological conditions impact everyone whether they have any
conditions at all. We don’t live in a vacuum. I don’t understand what
I guess, the symptoms of ulcerative colitis, can they be exacerbated–
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).
ALJ: I’m not allowing that.
(R. 135). This testimony shows that Dr. Rubini, who is a board certified specialist
in internal medicine, (R. 118), was not prepared to testify as an expert about
Reynolds’ mental conditions, and apparently did not understand the purpose of the
questions posed by plaintiff’s attorney. At the first hearing, the ALJ indicated he
wanted to have a medical expert examine the record and give “an opinion exactly
what gastrointestinal disease” Reynolds had. (R. 62). Considering Dr. Rubini’s
specialty and the purpose for his testimony, the court finds no abuse of discretion
by the ALJ.
Reynolds’ noncompliance with prescribed treatment
Relying on Dawkins v. Bowen, 484 F.2d 1211 (11th Cir.1988), Reynolds
next contends “[i]t was reversible error for the ALJ to base his decision, in part, on
the fact that [Reynolds] was not taking any prescribed medicine or receiving
treatment for his condition.” Doc. 9 at 23. Reynolds’ reliance on Dawkins is
misplaced because the case involved an ALJ’s decision that found the claimant’s
impairments were “amenable to adequate control” with medications. Id. at 1213.
As a result, the court was applying a regulation that currently requires a claimant to
“follow treatment prescribed by [his] physician if this treatment can restore [the
claimant’s] ability to work.” 20 C.F.R. § 416.930. In contrast, the ALJ here did
not deny benefits because prescribed treatment would restore Reynolds’ ability to
work. In fact, the ALJ observed that “in spite of not receiving treatment or
prescribed medication, [Reynolds] has had no flare up related to his physical issue
during the relevant period.” (R. 34). In other words, the ALJ found that Reynolds’
condition was not disabling even without treatment.
The ALJ’s only other reference to Reynolds’ lack of treatment was his
observation that “the records relate that [Reynolds] was not taking any prescribed
medication or receiving treatment for his condition,” and that “[w]hile [Reynolds]
alleged this was due to financial reasons, the mental health records note that
[Reynolds] was purchasing medications from friends.” (R. 34). In that respect, the
matter before the court is more akin to Ellison v. Barnhart, in which the ALJ’s
disability determination “was not significantly based on a finding of
noncompliance.” 335 F.3d 1272, 1275 (11th Cir. 2003). In Ellison, this factor
alone was sufficient for the court to find no reversible error even though the ALJ
failed to consider the claimant’s ability to afford the treatment. Id. Here, when the
ALJ’s decision is considered as a whole, it is clear that Reynolds’ failure to pursue
treatment was not a significant factor in his decision. Therefore, consistent with
Ellison, the court finds no reversible error in the ALJ’s consideration of Reynolds
failure to receive treatment for his conditions.
The failure to make credibility findings regarding the testimony of
Reynolds’ final contention of error is that the “ALJ was required to
summarize the testimony of [Reynolds’] wife and to make specific credibility
findings regarding her testimony.” Doc. 9 at 24. Unfortunately for Reynolds, the
ALJ found he did not meet the Eleventh Circuit pain standard. As a result,
Reynolds cannot be found disabled based on subjective complaints of pain. See
Landry v. Heckler, 728 F.2d 1551, 1553 (11th Cir. 1986) (recognizing that the
Eleventh Circuit pain standard reflects the requirements of the Social Security
Disability Reform Act of 1984, and abrogated prior cases that allowed a finding of
disability based on subjective complaints alone). Therefore, the testimony of
Reynolds’ wife as to the extent of his symptoms was irrelevant. Id. at 1554.
Accordingly, the ALJ did not err in failing to make credibility findings regarding
the testimony of Reynolds’ wife.
Based on the foregoing, the court concludes that the ALJ’s determination
that Reynolds 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 2nd day of July, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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