Wren v. Social Security Administration, Commissioner
MEMORANDUM OPINION affirming the Commissioner's decision. Signed by Judge Madeline Hughes Haikala on 8/31/2016. (KMG)
2016 Aug-31 PM 05:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of the
Social Security Administration,
Case No.: 2:15-CV-00963-MHH
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Elisha Wren seeks
judicial review of a final adverse decision of the Commissioner of Social Security.
The Commissioner denied Ms. Wren’s claims for a period of disability and
disability insurance benefits and supplemental security income.
review, the Court affirms the Commissioner’s decision.
Ms. Wren applied for a period of disability and disability insurance benefits
and supplemental security income on July 20, 2012. (Doc. 5-6, pp. 2-3, 4-13).
Ms. Wren contends that her disability began on July 20, 2012. (Doc. 5-3, p. 37).1
The Commissioner initially denied Ms. Wren’s claims on September 26, 2012.
(Doc. 5-5, pp. 7-16). Ms. Wren requested a hearing before an Administrative Law
Judge (ALJ). (Doc. 5-5, pp. 17-23). The ALJ issued an unfavorable decision on
February 13, 2014. (Doc. 5-3, pp. 18-29). On May 14, 2015 the Appeals Council
declined Ms. Wren’s request for review (Doc. 5-3, pp. 2-5), making the
Commissioner’s decision final and a proper candidate for this Court’s judicial
review. See 42 U.S.C. §§ 405(g) and § 1383(c).
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.
“Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
During the administrative hearing, Ms. Wren amended her alleged onset date to July 20, 2012.
(Doc. 5-3, p. 37). Initially, Ms. Wren alleged that August 1, 2011 was her onset date. (Doc. 5-6,
pp. 2, 4).
1155, 1158 (11th Cir. 2004). In making this evaluation, the Court may not “decide
the facts anew, reweigh the evidence,” or substitute its judgment for that of the
ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir.
2011) (internal quotations and citation omitted). If the ALJ’s factual findings are
supported by substantial evidence, then the Court “must affirm even if the evidence
preponderates against the Commissioner’s findings.” Costigan v. Comm’r, Soc.
Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ
follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Ms. Wren has not engaged in substantial
gainful activity since July 20, 2012, the amended alleged onset date. (Doc. 5-3, p.
The ALJ determined that Ms. Wren suffers from the following severe
impairments: back strain, obesity, profound hearing loss in the left ear, depression,
bipolar disorder, and a learning disorder. (Doc. 5-3, p. 20). Based on a review of
the medical evidence, the ALJ concluded that Ms. Wren does not have an
impairment or combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Doc. 5-3, p. 21). Therefore, the ALJ evaluated Ms. Wren’s residual
The ALJ stated that Ms. Wren has the RFC to perform:
medium work as defined in 20 CFR 404.1567(c) and 416.967(c)
except the claimant must avoid exposure to heights and hazards as
well as avoid excessively noisy work environments. The claimant is
limited to simple routine tasks and a few detailed as well as a few
multi-step tasks that can easily be demonstrated and she could work
on the low-end of semi-skilled work. The claimant is able to have
frequent but superficial interaction with coworkers.
(Doc. 5-3, p. 24). Based on this RFC, the ALJ concluded that Ms. Wren is able to
perform her past relevant work as a cashier, hostess, and waitress. (Doc. 5-3, p.
27). Relying on testimony from a vocational expert, the ALJ found that other jobs
exist in the national economy that Ms. Wren can perform in addition to her past
relevant work, including general office clerk, cleaner, dishwasher/kitchen helper,
laundry worker, ticket taker, and garment folder. (Doc. 5-3, p. 28). Accordingly,
the ALJ determined that Ms. Wren has not been under a disability within the
meaning of the Social Security Act. (Doc. 5-3, p. 29).
Ms. Wren argues that she is entitled to relief from the ALJ’s decision
because the ALJ failed to develop a full and fair record, and the ALJ failed to give
the proper weight to the findings and records of Dr. Blotcky, a consultative
physician. (Doc. 12, p. 9-11). The Court examines each issue in turn.
The ALJ developed a full and fair record.
Ms. Wren argues that the ALJ should have ordered a consultative mental
examination to fully investigate her disability allegations. The Eleventh Circuit
Court of Appeals recently reiterated that when making an RFC assessment, an ALJ
“‘has a duty to develop the record where appropriate but is not required to order a
consultative examination as long as the record contains sufficient evidence for the
[ALJ] to make an informed decision.’” Castle v. Colvin, 557 Fed. Appx. 849, 853
(11th Cir. 2014) (quoting Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
1269 (11th Cir. 2007)); see also Sellers v. Barnhart, 246 F. Supp. 2d 1201, 1210
(M.D. Ala. 2002) (An ALJ “is not required to order a consultative examination
unless the record, medical and non-medical, establishes that such an examination is
necessary to enable the ALJ to render a decision.”) (emphasis in Sellers).
In this case, the record contained sufficient evidence for the ALJ to make an
informed decision regarding Ms. Wren’s mental capacity. The records available to
the ALJ included work history and function reports, which state that Ms. Wren has
held a variety of jobs and performed many tasks on a day-to-day basis; medical
records from Ms. Wren’s primary and treating physicians which include a
diagnosis of bipolar disorder; and psychiatric records noting Mr. Wren’s
depressive order. (Doc. 5-7, pp. 24-39; Doc. 5-8, pp. 53, 59-62, 71-73). The
record also contains treatment notes from mental health providers who indicated in
April 2013 that “outpatient services are reasonably expected to improve” Ms.
Wren’s bipolar symptoms, condition, and functional level. (Doc. 5-8, p. 80). Ms.
Wren’s treating psychiatrist noted in August 2013 that Ms. Wren would seek
employment or secure disability benefits. (Doc. 5-8, p. 86).
The record also contains a report and a medical source statement from an
evaluating psychologist who completed a mental status exam and administered
tests to determine Ms. Wren’s level of intellectual functioning. (Doc. 5-8, pp. 5055).
Additionally, the record includes Ms. Wren’s testimony in which she
acknowledged her ability to function in social settings, care for her children,
prepare meals, and pass the science and history portions of her GED. (Doc. 5-3,
pp. 40-47, 51). Ms. Wren testified that she could not work because of back pain,
not because of mental impairments. (Doc. 5-3, p. 47).
The ALJ determined that Ms. Wren’s residual functional capacity was
supported by the evidence, “which shows that [Ms. Wren] only experiences mild to
moderate psychiatric symptoms when she is compliant with her treatment and she
is able to engage in many activities of daily living despite her learning disorder.”
(Doc. 5-3, p. 27). Therefore, the ALJ was not required to order a consultative
examination. See e.g., Castle, 557 Fed. Appx. at 853; 20 C.F.R. § 404.1519a(a)(2)
(“When we purchase a consultative examination, we will use the report from the
consultative examination to try to resolve a conflict or ambiguity if one exists. We
will also use a consultative examination to secure needed medical evidence that the
file does not contain such as clinical findings, laboratory tests, a diagnosis or
prognosis necessary for decision.”).
The ALJ gave proper weight to Dr. Blotcky’s opinion.
Dr. Blockty is a one-time examining consultative psychologist. Therefore,
as a matter of law, his opinion is not entitled to deference. See Denomme v.
Comm'r of Soc. Sec., 518 Fed. Appx. 875, 879 (11th Cir. 2013) (“The ALJ does
not have to defer to the opinion of a physician who conducted a single
examination, and who was not a treating physician.”) (citing McSwain v. Bowen,
814 F. 2d 617, 619 (11th Cir. 1987)). Nevertheless, the ALJ still must explain the
weight he assigned to Dr. Blotcky’s opinion and the rationale for doing so. See
Winschel, 631 F.3d at 1179 (“[T]he ALJ must state with particularity the weight
given to different medical opinions and the reasons therefor.”) (citing Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam)).
At the request of Ms. Wren’s attorney, Dr. Blotcky conducted a consultative
psychological examination of Ms. Wren on May 16, 2013. (Doc. 5-8, p. 50). Dr.
Blotcky noted that:
Elisha was appropriately attired and nicely groomed for this
evaluation. She was wearing casual clothes that were clean and neat.
She had on make-up and jewelry. She has some tattoos. Elisha
complained of pain in her back. She has hearing loss in her left ear.
Elisha demonstrated logical and orderly thinking. Her thought
processes were concrete and simplistic. Her speech was normal. Her
abstract thinking was poor. Her memory functioning was intact but
vague. Elisha seemed depressed to me. Her affect was restricted.
She looked worn. Many of her verbalizations were morbid in content.
Her energy level was low. Elisha was not psychotic. She does not
have a thought disorder. This woman’s judgement is grossly intact.
Her insight is limited.
(Doc. 5-8, p. 51). Dr. Blotcky administered a WAIS-IV and IQ test. Ms. Wren
obtained a “Verbal Comprehension Index of 74, a Perceptual Reasoning Index of
69, a Working Index of 71, [and] a Processing Speed Index of 74.” (Doc. 5-8, p.
51). Dr. Blotcky assessed a full scale IQ score of 67. (Doc. 5-8, p. 52).
Blotcky diagnosed Ms. Wren with depressive disorder, NOS, and mild mental
Elisha must be involved in psychiatric treatment on a regular and
uninterrupted basis. She needs to be under the care of a psychiatrist
and psychologist. Her treatment should include a combination of
medication and individual counseling. She must complete a domestic
violence program as well.
Elisha must be followed by a physician for her back condition. She
also needs to be followed for the hearing loss in her left ear.
Elisha’s intellectual abilities fall into the Mildly Retarded range. Her
intellectual limitations are a lifelong problem.
(Doc. 5-8, p. 52). Dr. Blotcky noted that Ms. Wren’s “prognosis is poor to very
poor because of her depressive disorder NOS and mental retardation. Her medical
conditions, especially the persistent pain in her back, are primary as well. Taken
together her impairments and limitations are marked in severity.” (Doc. 5-8, p.
Dr. Blotcky also completed a mental medical source opinion form. (Doc. 58, pp. 54-55). Dr. Blotcky checked boxes stating that Ms. Wren has marked
limitations in the following categories:
respond appropriately to supervisors;
respond appropriately to customers or other members of the general public; use
judgment in detailed or complex work-related decisions; deal with changes in a
routine work setting; understand, remember, and carry out detailed or complex
concentration or pace for periods of at least two hours; maintain social functioning;
maintain activities of daily living. (Doc. 5-8, pp. 54-55). Dr. Blotcky also checked
boxes indicating that Ms. Wren has moderate limitations in the following
categories: respond appropriately to co-workers; use judgment in simple, one or
two step, work-related decisions; understand, remember, and carry out simple, one
or two-step instructions. (Doc. 5-8, pp. 54-55).
The ALJ gave Dr. Blotcky’s opinion reduced probative weight because:
the findings made during the examination are inconsistent with the
claimant’s own reported activities of daily living that included
engaging childcare, cooking, shopping and running errands.
Additionally these findings are inconsistent with the claimant’s ability
to work until she was terminated due to a back injury and the
claimant’s sporadic mental health treatment and limited objective
signs during her psychiatry sessions.
(Doc. 5-3, p. 27).
Ms. Wren argues that Dr. Blotcky’s report establishes that she meets Listing
12.05 for intellectual disability.2
“To meet Listing 12.05 for [intellectual
disability], ‘a claimant must at least (1) have significantly subaverage general
intellectual functioning; (2) have deficits in adaptive behavior; and (3) have
manifested deficits in adaptive behavior before age 22.’” Perkins v. Comm’r of
The ALJ’s decision uses the term mental retardation instead of intellectual disability. (R. 21).
Effective September 3, 2013, the Commissioner replaced the term “mental retardation” with
“intellectual disability” in Listing 12.05, but the change did not affect the substance or
requirements of the listing. See Change in Terminology: “Mental Retardation” to “Intellectual
Disability,” 78 Fed. Reg. 46,499, 46,501 (Aug. 1, 2013). The Court discusses the listing using
the terminology that the Commissioner adopted in September 2013.
Soc. Sec., 553 Fed. Appx. 870 (11th Cir. 2014) (quoting Crayton v. Callahan, 120
F.3d 1217, 1219 (11th Cir. 1997)). “A claimant must meet these diagnostic criteria
in addition to one of the four sets of criteria found in 12.05(A), (B), (C), or (D) in
order to show that his impairments are severe enough to meet or equal Listing
12.05.” Id. (citing 20 C.F.R. § 404, Subpart P, Appendix 1, § 12.00(A)). A
claimant is presumed disabled under Listing 12.05(C) if the claimant meets the
introductory diagnostic description and shows a “valid verbal, performance, or full
scale IQ of 60 through 70.”
20 C.F.R. Part 404, Subpart P, Appendix 1, §
Based on Br. Blotcky’s assessed full scale IQ score of 67, Ms. Wren is
entitled to a presumption of intellectual disability, however, the Eleventh Circuit
has held that “a valid I.Q. score need not be conclusive of [intellectual disability]
where the I.Q. score is inconsistent with other evidence in the record on the
claimant’s daily activities and behavior.” Lowery v. Sullivan, 979 F.2d 835, 837
(11th Cir. 1992); see also Popp v. Heckler, 779 F.2d 1497, 1500 (11th Cir. 1986)
(per curiam) (“[T]he ALJ was not required to find that [the claimant had an
intellectual disability] based on the results of the IQ test. The ALJ is required to
examine the results in conjunction with other medical evidence and the claimant’s
daily activities and behavior.”); Outlaw v. Barhnart, 197 Fed. Appx. 825, 827
(11th Cir. 2006) (A “valid IQ score is not conclusive of [intellectual disability]
when the IQ score is inconsistent with other evidence in the record about
claimant’s daily activities.”).
Substantial evidence supports that ALJ’s conclusion that, despite Ms.
Wren’s qualifying IQ score, Ms. Wren’s mental impairments are not as severe as
Dr. Blotcky suggests.
Dr. Blotcky’s opinion concerning Ms. Wren’s mental
limitations is inconsistent with the medical evidence, Ms. Wren’s work history,
and her own description of her daily activities.
Doctors and medical professionals who treated Ms. Wren at Capitol Care
found signs of bipolar and other depressive disorders.
Ms. Wren received
medication for depression in July of 2013, and her medical chart from April 2013
notes a diagnosis of bipolar disorder. (Doc. 5-8, pp. 66, 71). However, these
physicians, and all doctors and specialists who treated and examined Ms. Wren
prior to Dr. Blotcky, did not note signs, findings, or other evidence indicating that
Ms. Wren has significantly subaverage general function or deficits in adaptive
functioning. (Doc. 5-8, pp. 2-12, 20-29, 36-49, 56-78, 81-105; Doc. 5-9, pp. 2-49).
Notably, just one month before Dr. Blotcky’s examination, Ms. Wren told her
treating psychiatrist that she wanted to get a job but was still having back
problems. Ms. Wren did not suggest to her mental health providers that her
intellectual disability prevented her from working. (Doc. 5-8, p. 81). Accordingly,
the ALJ properly rejected the opinion of one-time examiner, Dr. Blotcky. See
Monroe v. Comm’r of Soc. Sec., 569 Fed. Appx. 833, 835 (11th Cir. 2014) (“[A]n
ALJ ‘may reject any medical opinion if the evidence supports a contrary
finding.’”) (quoting Sharfaz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987));
Perkins v. Comm’r of Soc. Sec., 553 Fed. Appx. 870, 874 (11th Cir. 2014)
(“[B]ecause the ALJ determined that [a consultative examiner’s] opinions
regarding [the claimant’s] deficits in adaptive functioning were contrary to the
record evidence, he correspondingly assigned [the consultative examiner’s]
opinions in this regard diminished weight. Thus, the ALJ did not completely
disregard [the consultative examiner’s] evaluation, and provided sufficient
reasoning for assigning his opinions regarding adaptive functioning diminished
Ms. Wren’s work history also contradicts the findings of Dr. Blotcky. She
was engaged in substantial gainful activity until July of 2012 and has held a variety
of jobs including that of a warehouse worker, cashier, waitress, and hostess. (Doc.
5-3, p. 27; Doc. 5-6, pp. 14-24). At her hearing, the vocational expert classified
Ms. Wren’s past work as semi-skilled work. (Doc. 5-3, pp. 64-65; Doc. 5-7, pp.
24-39). Ms. Wren’s ability to perform semi-skilled work is additional evidence
that she does not demonstrate the requisite deficiencies in adaptive functioning to
meet Listing 12.05(C). See e.g., Perkins, 553 Fed. Appx. at 873 (holding ALJ
properly considered claimant’s work history, even if only semiskilled work, as
evidence claimant did not have deficits in adaptive functioning); See Harris, 505
Fed. Appx. at 876 (affirming ALJ’s decision that, despite a qualifying IQ score
under listing 12.05, the claimant did not demonstrate deficits in adaptive
functioning because the claimant previously worked “as a prep cook, dishwasher,
food server, furniture deliverer, and truck driver, and he did not have any
documented work problems attributed to his mental impairment”).
Finally, Ms. Wren’s descriptions of her daily activities are inconsistent with
Dr. Blotcky’s opinion that her mental impairments and limitations are marked in
severity. Ms. Wren shops, cooks meals, assists her children with homework, and
runs errands. (Doc. 5-7, p. 33). On a daily basis, Ms. Wren prepares her children
for school, takes her children to school and daycare, goes to the store or doctor,
picks up her children from school, plays with her children, and prepares meals for
her family. (Doc. 5-7, pp. 32-34). Ms. Wren lived alone and took care of herself
and her three children without outside help until 2012 when her mother, who is on
disability, moved in with the family. (Doc. 5-3, p. 42). Ms. Wren also owns a car
and has had her driver’s license since she was sixteen. (Doc. 5-3, p. 40). Until four
months before her ALJ hearing, when Ms. Wren stopped driving, she drove her
youngest child to daycare. (Doc. 5-3, p. 39-41). Ms. Wren indicated that her
limited activities were due to her physical impairments and depression, not her
intellectual functioning. (Doc. 5-3, pp. 49-51). She also testified that she was able
to pass the history and science portions of the GED and failed the math portion
because she did not finish the classes provided before the test. (Doc. 5-3, p. 52).
Therefore, the ALJ properly concluded that Dr. Blotcky’s opinion is
inconsistent with Ms. Wren’s activities of daily living. See e.g. Harris v. Comm’r
of Soc. Sec., 330 Fed. Appx. 813, 815 (11th Cir. 2009) (noting the claimant did not
qualify for listing 12.05C because he “did well in special education classes and
was able to hold several jobs,” and was able to “dress and bathe himself, take care
of his personal needs, and manage money”); Hickel v. Comm’r of Soc. Sec., 539
Fed. Appx. 980, 984-85 (11th Cir. 2013) (noting claimant’s ability to work part
time, drive, prepare simple meals, attend church, and socialize with friends as
evidence of no deficits in adaptive functioning).
Because Dr. Blotcky’s opinion is not entitled to deference and because his
opinion is inconsistent with Ms. Wren’s daily activities, work history, and medical
treatment records, substantial evidence supports the ALJ’s decision to give Dr.
Blotcky’s opinion reduced probative weight.
For the reasons discussed above, the Court finds that the ALJ’s decision is
supported by substantial evidence, and the ALJ applied proper legal standards.
The Court will not reweigh the evidence or substitute its judgment for that of the
Commissioner. Accordingly, the Court affirms the Commissioner. The Court will
enter a separate final judgment consistent with this memorandum opinion.
DONE and ORDERED this August 31, 2016.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?