Haynes v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 3/31/2016. (AVC)

FILED
2016 Mar-31 PM 03:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBIN MARIE HAYS,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 2:15-cv-00100-JEO

MEMORANDUM OPINION
Plaintiff Robin Marie Hays1 brings this action pursuant to 28 U.S.C. § 405(g),
seeking review of the final decision of the Acting Commissioner of the Social
Security Administration denying her application for Disability Insurance Benefits
(“DIB”). The case has been assigned to the court per the general order of reference
of this district. After thorough review, the court finds the Commissioner’s decision
is due to be affirmed.
I.

PROCEDURAL HISTORY
On June 30, 2011, Hays filed an application for DIB with the Social Security

Administration. (R. 148).2 The Regional Commissioner denied her claim on August

1

Plaintiff is also identified in the record as Robin Haynes and Robin Hays Haynes.

2

References herein to “R. ___” are to the electronic record located at document 7.

22, 2011. (R. 153-158). Hays filed a Request for Hearing with an Administrative
Law Judge (“ALJ”) on October 18, 2011. (R. 159-160). On February 12, 2013,
Administrative Law Judge Ronald Reeves conducted a hearing which Hays, her
attorney, and a vocational expert (“VE”) attended. (R. 101-147). The ALJ issued a
decision denying Hays’s DIB claim on May 17, 2013. (R. 69-93).
On July 2, 2013, Hays requested the Appeals Council review the ALJ’s
decision. (R. 68). The Appeals Council denied Hays’s request for review on
November 28, 2014. (R. 1-4). On that date, the ALJ’s decision became the final
decision of the Commissioner. Hays then filed this action for judicial review under
42 U.S.C. § 405(g).
II.

STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly tailored. The

court must determine whether the Commissioner’s decision is supported by
substantial evidence and whether the Commissioner applied the proper legal
standards. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The 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). “Substantial evidence is more than a scintilla, but less than
a preponderance.” Id. It means the decision is supported by “relevant evidence a
2

reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971).
Applying the foregoing standard, the court must defer to the ALJ’s factual
findings. See Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court
may not “decide the facts anew, reweigh the evidence, or substitute [its] judgment for
that of the Commissioner.” Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th
Cir. 2014) (citing Winchel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011)). In contrast, the court reviews questions of law de novo. See Cornelius, 936
F.2d at 1145. Accordingly, no presumption of validity attaches to the ALJ’s
conclusions of law. Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982). If
the court finds the ALJ improperly applied the law, or failed to provide the court with
sufficient reasoning for determining that the proper legal analysis has been
conducted, the court must reverse the ALJ’s decision. See Cornelius, 936 F.2d at
1145-46.
III.

STATUTORY FRAMEWORK
To qualify for disability benefits, a claimant must show she is disabled. Being

disabled is “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
3

of not less than 12 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 demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
The plaintiff bears the burden of proving that she is disabled and is responsible for
producing evidence in support of such a claim. Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003).
Determination of disability under the Social Security Act requires a five step
analysis. 20 C.F.R. § 404.1520(a). Specifically, the Commissioner must determine
in sequence whether the claimant: “(1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental impairment; (3)
has such an impairment that meets or equals a Listing and meets the duration
requirements; (4) can perform his past relevant work, in light of his residual
functional capacity; and (5) can make an adjustment to other work, in light of his
residual functional capacity, age, education, and work experience.” Evans v. Comm’r
of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014)3 (citing 20 C.F.R. §
404.1520(a)(4)). “An affirmative answer to any of the above questions leads either

3

Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, the may be cited as persuasive authority. 11th Cir. R. 36-2.
4

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.’ ” McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once a
finding is made that a claimant cannot return to prior work the burden shifts to the
[Commissioner] to show other work the claimant can do.” Foote v. Chater, 67 F.3d
1553, 1559 (11th Cir. 1995) (citation omitted). The Commissioner must further
show that such work exists in the national economy in significant numbers. Id.;
Evans, 551 F. App’x at 524.
IV.

FINDINGS OF THE ALJ
Hays was 55 years old at the time of the hearing before the ALJ. (R. 117). She

has a high school education and attended junior college for approximately one year.
(Id. 117-118). Hays was employed as an administrative assistant from 1980 to
September 14, 2005, the date she last engaged in substantial gainful activity (“SGA”).
(Id. 118, 217). Hays initially alleged an onset date of disability beginning September
14, 2005, but later amended that date to December 14, 2009. (Id. 72). The ALJ
determined her date of last insured to be December 31, 2010. (Id. 84).
Following a hearing, the ALJ determined Hays had two medically determinable
“severe” impairments: fibromyalgia syndrome and mild cervical and lumbar
degenerative disease. (Id. 85). Hays also suffers from a number of additional
5

ailments, including chronic fatigue syndrome, insomnia, Dupuytren’s contractures,
breast implants, hypertension, hypercholesterolemia, and irritable bowel syndrome.
(Id.) The ALJ found these additional impairments, however, did not impose a
significant limitation on Hays’s ability to perform basic work activities when
considered in combination, and therefore were “not severe.” (Id.) In addition, the
ALJ found Hays suffered from one medically determinable mental impairment,
depression, but that it “did not cause more than minimal limitation” in her ability to
perform basic mental work and activities and was “not severe.” (Id.)
Moving to the next step, the ALJ found neither of Hays’s severe impairments
met or medically equaled the severity of the impairments included in the Listings.
(Id. 86). The ALJ found that Hays had the residual functional capacity (“RFC”) to
perform a full range of light work during the period from her amended onset date of
disability through her date of last insured. (Id. 87). During this period, Hays’s
impairments could reasonably be expected to produce “no worse” than a moderate
degree of pain. (Id. 88). The ALJ also found Hays capable of performing her past
relevant work as administrative assistant at the sedentary level of exertion. (Id. 89).
Relying on the VE’s testimony, the ALJ determined that the administrative assistant
job could be performed at the sedentary level, as Hays had performed the job in her
former employment. (Id.) The ALJ concluded, therefore, that Hays was not disabled
6

within the meaning of the Social Security Act from the alleged date of onset to the
date of last insured. (Id.)
V.

DISCUSSION
Hays contends the ALJ did not apply the “treating physician’s rule” to evidence

supplied by David A. McLain, M.D, and Kennedy F. Kunz, M.D. (Doc. 10 at 9-13).
She also argues that the ALJ failed to properly articulate his reasons for rejecting the
treating physicians’ reports and opinions. Hays urges the court to reverse the
Commissioner’s decision and award her disability benefits. (Id. at 14-15). In the
alternative, she requests the Commissioner’s decision be reversed and remanded for
proper application of the treating physician’s rule and proper consideration of the
evidence. The Commissioner retorts that the ALJ applied the correct legal standard
in assessing the medical opinions and that substantial evidence supports the ALJ’s
decision. (Doc. 11 at 4-9).
A.

The ALJ’s Decision to Give Little Weight to Dr. McLain’s Statement
that Hays was “Disabled from Any Employment” and Dr. Kunz’s
Statement that Hays Could Not Sustain Work Without Excessive
Absenteeism

Hays initially contends that the ALJ improperly evaluated the opinions of
treating physicians McLain and Kunz. (Doc. 10 at 9). In assessing this contention,
the standard is clear:

7

A treating physician’s testimony is entitled to “substantial or
considerable weight unless ‘good cause’ is shown to the contrary.”
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159
(11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997)) (internal quotations omitted). The weight to be afforded a
medical opinion regarding the nature and severity of a claimant’s
impairments depends, among other things, upon the examining and
treating relationship the medical source had with the claimant, the
evidence the medical source presents to support the opinion, how
consistent the opinion is with the record as a whole, and the specialty of
the medical source. See 20 C.F.R. §§ 404.1527(d), 416.927(d).
Furthermore, “good cause” exists for an ALJ not to give a treating
physician’s opinion substantial weight when the: “(1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.”
Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) (citing
Lewis, 125 F.3d at 1440); see also Edwards v. Sullivan, 937 F.2d 580,
583-84 (11th Cir. 1991) (holding that “good cause” existed where the
opinion was contradicted by other notations in the physician’s own
record).
The court must also be aware that opinions such as whether a claimant
is disabled, the claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions,...but are,
instead, opinions on issues reserved to the Commissioner because they
are administrative findings that are dispositive of a case; i.e., that would
direct the determination or decision of disability.” 20 C.F.R. §§
404.1527(e), 416.927(d). The court is interested in the doctors’
evaluations of the claimant’s “condition and the medical consequences
thereof, not their opinions of the legal consequences of his [or her]
condition.” Lewis, 125 F.3d at 1440. Such statements by a physician
are relevant to the ALJ’s findings, but they are not determinative, as it
is the ALJ who bears the responsibility for assessing a claimant’s
residual functional capacity. See, e.g., 20 C.F.R. § 404.1546(c).
Cagle v. Comm’r. Soc. Sec., 2015 WL 5719180, *3 (N.D. Ala. Sept. 30,
8

2015).
Here, the ALJ’s opinion includes an extensive review of Hays’s medical
records and other evidence. With regard to Dr. McLain, a rheumatologist, the ALJ’s
opinion recounts Dr. McLain’s initial assessment of Hays and her medical history
from her first visit with him on December 14, 2009:
“She has had back pain and has seen Dr. Michael Murray. She was sent
to Dr. Faulkner and she had an MRI of the lumbar spine and had several
epidural blocks. She also has trouble with her hands with knots in the
palms of both hands. She also has problems at C6-7 and has seen Dr.
Fullmer. She had a cervical myelogram and this flared up her
fibromyalgia. She had severe pain in her right hip in 1995-1996. She
had her appendix and this didn’t help and actually worsened the pain.
She was sent to Dr. Traylor and he diagnosed Fibromyalgia. She was
referred to Dr. Gilliland for fibroymalgia. She has tried physical therapy
several times. She also tried aquatic exercise and this made her worse.
She has some swollen glands and possibly the left sternoclavicular joint.
She has a history of silicone breast implants. These were removed and
were found to be leaking. She now has saline implants in. She is
applying for disability now. She worked for 25 years for Buffalo Rock
as an administrative assistant for the VP of marketing. She has [sic.,
had] trouble getting to work. The mornings were very difficult. Her
body would go into an attack. She had trouble sitting, standing, lifting,
or bending. She had a move at work and this flared her up.
“She complains of severe fatigue. She has trouble getting out of a
bathtub, opening jars, and getting dressed. She has dry eyes. She is
thirsty and brings a drink in with her. She has dry skin. She has a sharp
pain that wakes her up at night in her tailbone. She has had some left
knee pain. She has pain in her right ankle. She has had pain in her
shoulders. She has trouble sleeping at night. She is worse with changes
in weather, chilling, unaccustomed exercise, and stress. She is better
with heat.
9

“She has problems with her right leg giving out on her.” (Exhibit 9F,
page 26)
(R. 77, 426). The ALJ further notes the following concerning Dr. McLain’s
assessment of Hays on December 14, 2009:
The claimant’s neck was tender to palpation. Dr. McLain wrote that in
her spine, ribs, and pelvis, the claimant had 15 of the18 tender points
characteristic of fibromyalgia syndrome. The claimant’s gait and station
were normal. Each of her upper extremities was tender at the elbow.
Her right lower extremity was tender to palpation at the hip and knee.
Her left lower extremity was tender to palpation at the hip. The
claimant’s cranial nerves II-XII were grossly intact. Her reflexes were
2+ and symmetric, with no pathological reflexes. Her sensation was
intact to touch, pin, vibration, and position. The claimant’s mood was
depressed, but her judgment was intact. She was oriented to time, place,
and person. Her memory was intact for recent and remote events. Dr.
McLain assessed the claimant as having fibromyalgia; Dupuytren’s
contracture bilaterally, left greater than right; status post silicone breast
implants, now with saline breast implants; hypertension;
hypercholesterolemia; irritable bowel syndrome; and depression. He
added the words: “Totally Disabled from Any Employment” (Exhibit
9F, pages 27-28).
(Id. 78, 427).
As a part of the review process, the ALJ must consider any statements from
acceptable medical sources that reflect judgments about the nature and severity of a
claimant’s impairments, including symptoms, diagnosis and prognosis, what the
claimant can still do despite the impairments, and the claimant’s physical and/or
mental restrictions. See 20 C.F.R. § 404.1527(a)(2) & (c). In weighing the evidence,

10

the ALJ must consider, among other things, the source’s treatment or examining
relationship with the claimant, the evidence supporting the opinion, and the opinion’s
consistency with the record as a whole. See 20 C.F.R. § 404.1527(c) (1)-(4). A
treating source opinion is entitled to controlling weight when it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” in the case. See 20 C.F.R. §
404.1527(c)(2); see also SSR 96-2p (S.S.A.), 1996 WL 374188 at *3. A claimant’s
“statements alone are not enough to establish that there is a physical or mental
impairment.” 20 C.F.R. § 404.1528(a); see also 20 C.F.R. § 404.1529.
A treating physician is a physician or other acceptable medical source with an
ongoing treatment relationship with a claimant. 20 C.F.R. § 404.1502. A claimant
has an ongoing treatment relationship with the physician when she sees or has seen
the physician with a frequency consistent with the accepted medical practice for the
type of treatment required for her condition. Id. As noted above, the Eleventh Circuit
requires the ALJ to give a treating physician’s opinion “substantial, considerable, or
even controlling weight” unless there is good reason to the contrary. Lewis, 125 F.3d
at 1440. The rule affords treating physicians’ opinions significant weight because
they are “likely to be the medical professionals most able to provide a detailed,
longitudinal picture” of the claimant’s impairments. 20 C.F.R. § 404.1527(c)(2). The
11

opinion of a treating physician may bring a “unique perspective” to the medical
evidence that cannot be obtained from objective medical findings alone, such as
consultations or hospitalizations. Id. Provided good reason to the contrary, however,
the ALJ may disregard the report or opinion of a treating physician. Lewis, 125 F.3d
at 1140.
Here, the ALJ determined that Dr. McLain’s assessment of Hays’s condition
was not entitled to substantial weight because Dr. McLain saw Hays only once during
the relevant period. It is important to place this determination in context. The ALJ
stated:
The claimant has been treated over the years for fibromyalgia, chronic
fatigue, headaches, hypertension, and depression as well as neck and
back pain due to cervical and lumbar degenerative disc disease, but she
has not really followed through with recommended treatment for her
pain except for some medications, particularly Fioricet, which her new
internist in November 2010 wanted to wean her from. The claimant’s
previous internist reported in April 2008 that the claimant had vague
body aches and anxiety issues that were not improving, and that the
claimant was still taking Fioricet and Ambien with no real improvement.
Dr. Krauss, a pain management specialist, reported in November 2005
that he would not write chronic opiate therapy for the claimant until she
saw a pain psychologist but there is no evidence that the claimant did
that or that she ever went back to Dr. Krauss. The claimant did not
follow through with recommended physical therapy in 2005. She saw
Dr. McLain first in December 2009 (Exhibit 9F, pages 26-28), then not
again until April 2011, after her date last insured. The claimant has
consistently reported to Dr. McLain that her pain was as bad as it could
be on the pain scale and she has told her other doctors the same, that her
medications basically do not help. She reported to Dr. Kunz, her
12

internist, on December 3, 2010, that her medications were working, but
requested more, and Dr. Kunz refused. The claimant went back to Dr.
McLain in April 2011. Despite various medications, including Lortab
and Klonopin, the claimant still reports “pain as bad as it could be.” Dr.
McLain says on forms that the claimant has rheumatoid arthritis, but this
is never checked on his treatment records, although fibromyalgia and a
positive antinuclear antibody test are checked. The claimant’s other
records do not show a diagnosis of rheumatoid arthritis.
(R. 87-88). This analysis is consistent with the ALJ’s placement of significant weight
on Hays’s other treatment records during the insured period. (See id.). The ALJ
considered, but discounted, Dr. McLain’s records from the period after the expiration
of Hays’s insured status “as they express opinions for dates after [her] date last
insured.” (Id.)
The court cannot say on this record that the ALJ did not properly consider Dr.
McLain’s opinion. This is particularly true in view of Dr. McLain’s conclusory
statement in December 2009 after seeing Hays only once and determining that she
was “Totally Disabled from Any Employment.” (R. 428). When he reached this
conclusion, he did not have the “longitudinal picture” typically associated with a
treating physician. In fact, he did not see Hays again until April 2011. (R. 425).
Accordingly, his December 2009 opinion is not entitled to the typical deference
afforded a treating physician. See Gainous v. Astrue, 402 F. App’x 472, 474 n.2 (11th
Cir. 2010) (“we note that this Court has refused to give greater weight to the opinion

13

of a physician who only examined the plaintiff once); Gibson v. Heckler, 779 F.2d
619, 623 (11th Cir. 1986) (‘[Plaintiff] relies on the rule that opinions of treating
physicians are generally entitled to more weight than opinions of nontreating
physicians. We are unable to accept the application of that rule in this case because
[physician] saw [plaintiff] only one time.’ (internal citations omitted)); see also
Hudson v. Heckler, 755 F.2d 781, 784 (11th Cir. 1985) (‘The evidence submitted by
appellant’s treating physician ... received all the consideration it was due. [Physician]
saw appellant twice and submitted only sketchy, conclusory notes.’)”). Additionally,
Dr. McLain’s conclusory statement is premised principally on Hays’s representations.
The regulations are clear that a plaintiff’s own “statements alone are not enough to
establish that there is a physical or mental impairment.” 20 C.F.R. § 404.1528(a).
Still further, Dr. McLain’s determinations – whether Hays was disabled and whether
she could perform any work – are committed to the discretion of the ALJ. See SSR
96-2p (S.S.A.), 1996 WL 374188 at *5.; see also Lewis, 125 F.3d at 1440 (“we note
that we are concerned here with the doctors’ evaluations of Lewis’s condition and the
medical consequences thereof, not their opinions of the legal consequences of his
condition”).
As to Dr. Kunz, Hays states that Dr. Kunz “also indicates that [she] does not
possess the residual functional capacity to sustain work activity without excessive
14

absenteeism.” (Doc. 10 at 9). While it is true that Dr. Kunz does make that
statement, he did not do so until October 5, 2012, when he completed a Physical
Capacities Evaluation form for Hays. (R. 431). As noted by the ALJ:
More than ten and a half months passed before ... [Dr.] Kunz ...
examined the claimant on November 4, 2010, and found her to be alert,
oriented times four, and in no acute distress. X-rays of the claimant’s
cervical spine showed a secondary ossification center at L5 anteriorly,
and loss of lordotic curvature. X-rays of the claimant’s lumbar spine
showed good alignment with good lordotic curvature, no acute bone
abnormalities and no degenerative changes. Chest x-rays were normal.
Neurologic examination was norm al. The claimant had normal range
of motion throughout, with no joint tenderness. Dr. Kunz detected no
trigger points in the claimant’s cervical, thoracic, lumbar, or sacral
spine. The claimant was able to heel walk and toe walk. She had
difficulty squatting and rising but was able to do so. The claimant
complained of low back pain and neck pain, but she had no arm
weakness. She also complained of fibromyalgia, arthritis, a migraine
headache, and insomnia (Exhibit 6F, pages 12-13 and 16).
(R. 79, 373-74, 377). Hays’s other 2010 visits were relatively unremarkable. Her
fibromyalgia was noted on her December 3, 2010 visit with Dr. Kunz as being better.
(R. 369). She was continued on her medications. (R. 370). During 2011, while her
fibromyalgia was mentioned along with her arthritis and other medical conditions,
there was no mention of her having an inability to work. (R. 441-21, 444-45, 44950). On March 23, 2012, Dr. Kunz noted that Hays reported no pain, which was
contrary to her March 14, 2012 report. (Compare R. 441 & 444). The court also
notes that on April 27, 2012, Dr. Kunz also completed a “Clinical Assessment of
15

Pain” on Hays, noting that her medication will impact her so as to make her “unable
to function at a productive level of work.” (R. 404).
Given the present record, the court finds that the ALJ fairly and appropriately
considered the evidence from Dr. Kunz. Even though he is a treating physician, his
records do not evidence that Hays was disabled during the insured period. While he
concluded in 2012 that Hays would not be able to work, that is not dispositive of the
issue before the court. To the contrary, as discussed below, there is no evidence in
the record that Hays’s condition in 2012 is reflective of her status during the relevant
period. Additionally, as noted above, this is a determination for the ALJ.
B.

Post-Insured Treating Physician Evidence from Drs. McLain and
Kunz

Hays also asserts that the evidence of her subseqent treatment from Drs.
McLain and Kunz – which “is not intermittent or sporadic” – demonstrates that while
she can only perform “some functions associated with work [she] cannot perform
other functions.” (Doc. 10 at 12). She further argues that because this evidence is not
contradicted, the ALJ’s determination that she can return to her past work is not
supported by any opinion evidence, and that the treating specialists’ evidence, “as
synthesized through the testimony of a vocational expert” at the evidentiary hearing,
establishes that she is disabled under the Act. (Id. at 13). The Commissioner retorts

16

that even if the opinions of Drs. McLain and Kunz had addressed Hays’s condition
on or before her last-insured date, the evidence during that period does not support
their opinions. (Doc. 11 at 7-8).
The Eleventh Circuit has “recognized that medical opinions based on treatment
occurring after the date of the ALJ’s decision may be chronologically relevant” to the
pertinent period. Washington v. Comm’r of Soc. Sec., 806 F.3d 1317, 1322-23 (11th
Cir. 2015) (citing Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983) (considering
a “treating physician’s opinion” even though “he did not treat the claimant until after
the relevant determination date”), superseded on other grounds by statute, 42 U.S.C.
§ 423(d)(5)).
The ALJ correctly placed little weight on the post-insured-date medical
evidence. Hays is correct, however, that Dr. McLain was a treating physician after
her date of last insured. Dr. McLain certainly was a treating physician from the
period of April 2011 forward, as Hays began seeing Dr. McLain frequently during
that period. See 20 C.F.R. 404.1502.
The effect of any physician’s opinion after the date of last insured, however,
is significantly diluted if it is inconsistent with pre-expiration evidence. See Hughes
v. Comm’r of Soc. Sec., 486 F. App’x 11, 13 (11th Cir. 2012) (“In order to qualify for
DIB, an individual must prove that her disability existed prior to the end of her
17

insured status period, and, after insured status is lost, a claim will be denied despite
her disability.”) (citing Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979)4).
Here, neither Dr. McLain nor Dr. Kunz provided any post-insured period evidence
that would bolster a finding of disability during the insured period. Instead, their
opinions demonstrate that Plaintiff’s impairments simply worsened after the insured
period. (R. 403-25, 431-51). A review of the record confirms that Plaintiff’s reports
of pain changed dramatically from 2005 to the post-insured period, particularly April
2011 to March 2012. Specifically, in 2005, Hays’s complaints regarding her level of
pain were generally in the 5-7 range, with one “8” (February 25, 2005). (R. 296, 298,
307, 309, 317, 318). In 2011-2012, they ranged from “9” to “10.” (Id. 405-06, 408,
416, 419, 423).5 Accordingly, the court finds the ALJ’s decision was consistent with
the substantial evidence in the record.
C.

Need to Articulate the Reasons for Rejecting the Treating
Physicians’ Report and Opinion

Hays next argues that the ALJ committed reversible error when he “failed to
articulate clearly” the reasons for giving less weight to the opinion of the treating

4

Decisions of the Fifth Circuit handed down by September 30, 1981, are binding as
precedent on all federal courts within the Eleventh Circuit. Bonner v. City of Prichard, 661 F.3d
1206 (11th Cir. 1981).
5

The court notes an absence of records concerning her specific pain levels during the
intervening period – particularly 2009 and 2010.
18

physician.6 (Doc. 10 at 14). Specifically, she argues that the ALJ’s explanation is
legally insufficient. The ALJ stated in his decision as follows:
As for the opinion evidence, the Administrative Law Judge accords
significant weight to the medical evidence contained in Exhibits 3F, 4F,
8F, and 9F (for the period prior to the expiration of the claimant’s
insured status). Little weight is given to the assessments in Exhibits 9F
and 10F insofar as they express opinions for dates after the claimant’s
date last insured. Little weight is given to Exhibit 7F, as it is not based
on all the medical evidence of record for the period prior to the
expiration of the claimant’s insured status.
(R. 88). The Commissioner does not specifically address this argument other than to
state that there is substantial evidence to support the decision.
The Eleventh Circuit Court of Appeals has been clear: “The Secretary must
specify what weight is given to a treating physician’s opinion and any reason for
giving it no weight, and failure to do so is reversible error.” MacGregor v. Bowen,
786 F.2d 1050, 1053 (11th Cir. 1986). In this instance, while the ALJ’s discussion
and explanation is brief and to the point, it does not warrant a reversal. He did what
he was required to do under controlling precedent. This claim is without merit.
VI.

Conclusion
For the foregoing reasons, the court finds the Commissioner’s decision is due

6

Hays presents this argument as though she is asserting that the ALJ failed to properly
articulate his reasoning as to a single doctor, presumably Dr. McLain. However, out of an
abundance of caution, the court is reviewing this claim as if it pertains to both Dr. McLain and
Dr. Kunz.
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to be affirmed.
DONE, this the 31st day of March, 2016.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

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