Whitton v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/11/2014. (PSM)

FILED
2014 Aug-11 PM 03:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

CAMERON WHITTON,

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

CIVIL ACTION NO.
2:12-cv-3987-AKK

MEMORANDUM OPINION
Plaintiff Cameron Whitton (“Whitton”) 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
Whitton, whose past relevant experience includes work as a stock clerk and a tree
trimmer helper, filed an application for Title II disability insurance benefits and Title
XVI Supplemental Security Income on October 21, 2008, alleging a disability onset date
of August 15, 2009, due to arthritis, back problems and anxiety. (R. 31, 175, 222). After

the SSA denied Witton’s claim, he requested a hearing before an ALJ. (R. 91-92). The
ALJ subsequently denied Whitton’s claim, (R. 28-43), which became the final decision
of the Commissioner when the Appeals Council refused to grant review. (R. 22-26).
Whitton 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
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Commissioner’s factual findings even if the preponderance of the evidence is against the
Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court acknowledges
that judicial review of the ALJ’s findings is limited in scope, it notes that the review
“does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairments which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve months.” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental impairment is “an impairment
that results from anatomical, physiological, or psychological abnormalities which are
demonstrated by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20 C.F.R.
§ 404.1520(a)-(f). Specifically, the Commissioner must determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

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

(4)

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

(5)

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

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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative answer to
any of the above questions leads either to the next question, or, on steps three and five, to
a finding of disability. A negative answer to any question, other than step three, leads to
a determination of ‘not disabled.’” Id. at 1030 (citing 20 C.F.R. § 416.920(a)-(f)). “Once
a finding is made that a claimant cannot return to prior work the burden shifts to the
Secretary to show other work the claimant can do.” Foote v. Chater, 67 F.3d 1553, 1559
(11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Whitton had not engaged
in substantial gainful activity since August 15, 2008, and, therefore, met Step One. (R.
33). Next, the ALJ found that Whitton satisfied Step Two because he suffered from the
severe impairments of “bipolar disorder and panic disorder.” Id. The ALJ then
proceeded to the next step and found that Whitton 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.” (R. 36). 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 she determined that Whitton has the residual functional
capacity (RFC) to perform
a full range of work at all exertional levels: The claimant can perform
simple, routine tasks and follow short, simple instructions, but not more
detailed or complex instructions/tasks. The claimant can make simple
work-related decisions with few workplace changes and any workplace
changes should be infrequent and introduced gradually. The claimant can
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never interact with the public and occasionally interact with co-workers
and supervisors. Supervision should be non-confrontational. The claimant
can sustain concentration and attention for two hours at one time with
normal breaks throughout an eight-hour day.
(R. 38). In light of his RFC, the ALJ held that Whitton “is capable of performing past
relevant work as a stock clerk and tree trimmer helper.” (R. 42). Therefore, the ALJ
found that Whitton “has not been under a disability, as defined in the Social Security Act,
from August 15, 2008, through the date of this decision.” Id.
V. Analysis
The court now turns to Whitton’s contentions that the ALJ erred because he (1)
did not give proper weight to the opinion provided by his treating psychiatrist; and (2)
gave significant weight to the opinion of the State agency reviewing psychiatrist. See
doc. 7 at 5-8. The court addresses each contention in turn.
A.

The ALJ had good cause for rejecting the opinion of Whitton’s treating
psychiatrist.

Whitton contends the ALJ erred in rejecting the opinions of his treating
psychiatrist. The record shows Whitton first saw Dr. Simon McClure on October 27,
2009, reporting that he needed to have his medicines renewed because they were
working.1 (R. 363). Dr. McClure found Whitton’s mood was stable, noted he reported

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Prior to seeing Dr. McClure, Whitton presented to the emergency room at UAB
Hospital on three occasions between August 20, 2009, and October 14, 2009. At each
visit, Whitton requested and received refills of his psychiatric medications after reporting
that he had missed his follow-up appointment with his psychiatrist, Dr. Langlow. (R.
269-70, 303-04, 332-33). However, there are no treatment notes from Dr. Langlow in
(continued...)
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feeling well and was staying calm, and renewed his medications. Id. At his next visit on
April 2, 2010, Whitton reported that although his medications were generally helpful, he
felt more depressed at times. (R. 367). Dr. McClure noted Whitton was “unable to
work,” id., and completed a supplemental questionnaire indicating extreme limitations in
the areas of maintaining social functioning; concentration, persistence, and pace; and
responding appropriately to co-workers in a work setting. (R. 365-66). The record
contains no further treatment notes from Dr. McClure.
To determine how much weight to give Dr. McClure’s opinion, the ALJ had to
consider several factors, including whether Dr. McClure (1) had examined Whitton; (2)
had a treating relationship with Whitton; (3) presented medical evidence and explanation
supporting the opinion; (4) provided an opinion that is consistent with the record as a
whole; and (5) is a specialist. See 20 C.F.R. § 416.927(c). Because Dr. McClure is a
treating physician, the ALJ must give “controlling weight” to his opinion if it “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R. § 416.927(c)(2).
Moreover, in this circuit “the testimony of a treating physician must be given substantial
or considerable weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan,

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(...continued)
the record. At his final visit to UAB, Whitton was diagnosed with “[p]robable drugseeking behavior,” and told that he would “not have any more controlled substances
filled in this Emergency Department and that he needs to get a psychiatrist to follow
him.” (R. 370).
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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. Finally, if the ALJ rejects a treating physician’s opinion, “[t]he ALJ must
clearly articulate the reasons for giving less weight to the opinion . . . and the failure to
do so is reversible error.” Id.
Here, the ALJ correctly applied the law and articulated multiple reasons, all of
which are supported by substantial evidence, for giving Dr. McClure’s opinions little
weight. First, the ALJ explained that while Dr. McClure was a specialist in the area of
psychiatry and had a short treating relationship with Whitton, the limitations he assessed
“are not supported by the evidence as a whole.” (R. 41-42). To support his finding, the
ALJ observed, in part, that when Dr. Clyde McLane treated Whitton in November 2008,
he assessed a “Global Assessment of Functioning equal to 65, indicating some mild
symptoms or some difficulty in social, occupational or school functioning but generally
functioning pretty well.” (R. 33, 241). The ALJ also noted that Whitton returned to Dr.
McLane only once, and that “Dr. McLane found [Whitton’s] symptoms to be only mild
and there is no evidence of any further treatment until almost a year later when he
requested medications from UAB Hospital.” (R. 40). Based on a review of the record,
the court finds no error by the ALJ because good cause exists to reject a medical opinion
when, as here, medical records show sporadic medical visits. Petteway v. Comm’r of
Soc. Sec., 353 F..App’x 287, 290 (11th Cir. 2009) (unpublished).
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Second, and more importantly, the ALJ found Dr. McClure’s opinions were
“inconsistent with [his] own narrative reports and notes,” and explained that Whitton’s
“mental status examinations have been essentially normal and Dr. McClure’s treatment
notes show a good response to . . . prescribed medication.” (R. 42). Indeed, the ALJ
observed that at his initial visit, Whitton reported to Dr. McClure that “his medications
were working as he was staying calm, he had been feeling well, and he was able to look
after his daughter.” (R. 40). The ALJ also noted that Dr. McClure reported Whitton’s
“mood was stable, he slept well, his energy was good, his appetite and weight were
stable, and there were no medication side effects.” Id. Finally, the ALJ observed that
Whitton “has continued treatment with Dr. McClure and appears to be doing well with
continued compliance,” and at his April 2010 visit “reported that medications were
helpful and no abnormalities were noted in his mental status examination.” Id.
Based on this record, the court finds that the ALJ considered the factors set forth
in the regulations, and consistent with the law of this circuit, articulated good cause for
giving Dr. McClure’s opinions little weight: i.e., that Dr. McClure’s opinions were
inconsistent with his own treatment notes and the medical evidence from other
physicians. Because medical opinions must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive controlling weight, 20 C.F.R. §
416.927(c)(2), and because substantial evidence supports the ALJ’s findings, the ALJ had
good cause for not giving Dr. McClure’s opinions controlling weight. Therefore, the
court finds no reversible error.
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B.

The ALJ did not err in giving significant weight to the opinion of
the State agency reviewing psychiatrist.

Finally, Whitton contends that the ALJ improperly gave significant weight to Dr.
Robert Estock, the State agency reviewing psychiatrist. However, the record does not
support Whitton’s contention. The court notes that an ALJ must consider the findings of
a State agency medical consultant, who is considered an expert, and must explain the
weight given to such findings in the same way as with other medical sources. See 20
C.F.R. § 416.927(e)(2). Consistent with the regulation, the ALJ gave Dr. Estock’s
opinion that Whitton was capable of “understanding, remembering and carrying out
simple instructions with some social limitations” significant weight based on Dr.
Estock’s “specialization and expertise in the area of psychology” and “familiarity with
the disability program and its requirements.”2 (R. 42). Moreover, contrary to Whitton’s
contention, the ALJ committed no error because although “the report of a non-examining
doctor is accorded little weight if it contradicts an examining doctor’s report,” an ALJ
may rely on the report when it does not contradict the findings of examining doctors.
Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991). There is no such contradiction
here because, as discussed above, see Section V.A., supra, the ALJ properly rejected the

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The ALJ also stated that Dr. Estock “reviewed all medical evidence of record,”
(R. 42), which was true as of the time of Dr. Estock’s report. Significantly, the treatment
records after Dr. Estock’s report was issued support his opinions because they show that
Whitton’s mental status exams were essentially normal and that his medications were
effective at ameliorating his mental symptoms. See Section V.A., supra.
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opinions of Dr. McClure.3 Therefore, based on this record, the ALJ did not err in giving
Dr. Estock’s opinions significant weight.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Whitton 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 the 11th day of August, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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For the same reasons, the ALJ also reasonably rejected the opinions of Dr.
Alan Blotcky, Ph.D., (R. 357-361), who examined Whitton at the request of his attorney.
Moreover, because Whitton does not argue on appeal that the ALJ improperly rejected
Dr. Blotcky’s opinions, that issue has been abandoned. U.S. v. Cunningham, 161 F.3d
1343, 1344 (11th 1998).
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