Wilson v. Social Security Administration, Commissioner
MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 8/16/2012. (AVC)
2012 Aug-16 PM 01:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BOBBY W. WILSON,
MICHAEL J. ASTRUE,
Civil Action No.: 4:11-CV-1941-RDP
MEMORANDUM OF DECISION
Plaintiff Bobby Wayne Wilson brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c) seeking review of the decision by the Commissioner of the Social Security
Administration denying his applications for disability, Disability Insurance Benefits (“DIB”),
and Supplemental Security Income (“SSI”). Based upon the court’s review of the record and the
briefs submitted by the parties, the court finds that the final decision of the Commissioner is due
to be affirmed.
Plaintiff filed his applications for disability, DIB, and SSI benefits on May 14, 2007,
alleging onset of disability as of October 31, 2006, as amended at the administrative hearing. (Tr.
45-46, 110-16). These claims were initially denied by the Social Security Administration on
September 21, 2007. (Tr. 67-77). Plaintiff then requested and received a hearing before
Administrative Law Judge Edward A. Snyder (“ALJ”) on August 27, 2009. (Tr. 40-64, 78). In
his decision dated September 15, 2009, the ALJ determined that Wilson had not been disabled
within the meaning of §§ 216(i) and 223(d) of the Social Security Act (the “Act”). (Tr. 24). After
the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 1, 10), that
decision became the final decision of the Commissioner, and therefore a proper subject of this
court’s appellate review. 42 U.S.C. §§ 405(g), 1383(c).
Plaintiff was thirty-three years old at the time of the hearing. (Tr. 46). He did not
complete his high school education and has not worked or applied for a job since October 31,
2006. (Tr. 143, 149). Plaintiff has previously worked as a painter and a compression molding
machine operator. (Tr. 53-54, 144). He was in a car accident on August 18, 2004 in which he
was ejected from the vehicle. Plaintiff was treated for a splenic rupture with shock, a closed head
injury, a both–bone fracture in his left forearm, and damage to his left ankle among other
injuries. (Tr. 180-216). Plaintiff claims that his current disabilities arose from this accident and
include pain in moving and using his arms, inability to stay on his feet for more than two hours,
and anxiety attacks when riding in a vehicle. (Tr. 143).
Plaintiff was originally treated for his injuries at Baptist Montclair Hospital. He was
released on August 27, 2004 with no subsequent complications. (Tr. 180-81). During follow up
visits in 2005, Plaintiff was found to have a full range of motion in his elbow and to only have
mild soreness in the region of the fracture in his arm. (Tr. 225-26). Plaintiff was examined for
disability purposes by Dr. Tenchavez on August 8, 2007. (Tr. 227). Dr. Tenchavez’s diagnosis of
Plaintiff was as follows: prior left Monteggia’s fracture- status post open reduction internal
fixation; history of radial nerve palsy; and status post splenectomy secondary to trauma. (Tr.
229). Dr. Tenchavez noted that Plaintiff was able to heel, toe, and tandem walk, that he could
stoop and rise on his knees, and that the grip strength in his left hand was diminished to about
4/5 its normal capacity. (Tr. 229).
Plaintiff went to the hospital once in 2008 due to a fall. (Tr. 295). He had another fall in
2009 and returned for another hospital visit. (Tr. 319). During both of these visits, x-rays were
taken that showed no definite fractures or soft tissue damage in the left forearm and only a subtle
fracture and some soft tissue swelling in the left ankle. (Tr. 300, 301, 318, 321). Plaintiff also
went to the hospital an additional four times in 2008 for treatment unrelated to his current
impairments. During these visits he did not complain of pain or seek treatment related to his
earlier injuries. (Tr. 262-81, 305-13). A physical residual functional capacity (“RFC”)
assessment was performed on Plaintiff by Angela Williamson on August 29, 2007. (Tr. 234).
This RFC evaluation, which mirrors the assessments made by Dr. Tenchavez (Tr. 229),
ultimately determined that Plaintiff was able to work at a light exertional level. (Tr. 235). The
RFC also included some additional postural restrictions in light of Plaintiff’s limitations. (Tr.
234-41). Ms. Williamson found that Plaintiff should never climb ropes, ladders, or scaffolds and
that he was limited in both gross and fine manipulation. (Tr. 236-37).
Plaintiff has also undergone numerous mental and psychological evaluations. Plaintiff
was evaluated by Dr. Rogers of the Homewood Vocational Rehabilitation Center on May 7,
2009. (Tr. 334). Dr. Rogers determined that Plaintiff’s speech and conversation were
spontaneous and normal, that Plaintiff possessed normal thought processes, that his judgment
was unimpaired, and that he had a restrictive mood. (Tr. 336). Dr. Rogers also diagnosed
Plaintiff with “pain disorder, depressive disorder, anxiety disorder, reading disorder,
mathematics disorder, learning disorder, and disorder of written expression.” (Tr. 337). He
determined that Plaintiff’s intelligence and social skills were both in the low average range. (Tr.
Plaintiff’s files were reviewed by Dr. Bentley and a consultative examination report was
made on August 9, 2007. (Tr. 230-33). Dr. Bentley determined that Plaintiff suffered from
recurrent major depression that was moderate to severe. (Tr. 232). He also noted that Plaintiff
was alert and oriented and that he seemed reasonably motivated and cooperative. (Tr. 231-32).
Andrea Nelson, a therapist at Homewood Vocational Rehab, also reviewed Plaintiff’s records.
(Tr. 343). Based on these records and her interactions with Plaintiff, Ms. Nelson determined that
Plaintiff is not a candidate for employment. (Tr. 343). Ms. Nelson based this assessment on her
experiences with Plaintiff, particularly the need to reschedule appointments because of his
anxiety about riding in automobiles. (Tr. 343).
On August 30, 2007, Dr. Estock evaluated Plaintiff’s records and filled out both a
Psychiatric Review Technique form and a mental RFC assessment form. (Tr. 242-55, 256-59).
Dr. Estock concurred with the previous findings concerning Plaintiff’s depression, anxiety, and
chronic pain. (Tr. 254). Dr. Estock determined that Plaintiff has moderate limitations in activities
of daily living and maintaining concentration, persistence, or pace, and that he suffered mild
difficulties in maintaining social functioning. (Tr. 252).
The Social Security Act’s general DIB program provides income to individuals who are
forced into involuntary, premature retirement, provided they are both insured and disabled,
regardless of indigence. 42 U.S.C. § 423(a). The Act’s SSI program is separate and distinct from
the DIB. SSI is a general public assistance measure providing an additional resource to the aged,
blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for
SSI is based upon proof of indigence and disability. 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C).
However, despite the fact they are separate programs, the law and regulations governing a claim
for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated
identically for the purpose of determining whether a claimant is disabled. Patterson v. Bowen,
799 F.2d 1455, 1456 (11th Cir. 1986). Claimants under DIB and SSI must provide “disability”
within the meaning of the Act which defines disability in virtually identical language for both
programs. 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a),
416.905(a). A person is entitled to disability benefits when the person is unable to:
Engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is one resulting
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 Commissioner employs a five-step, sequential evaluation process to determine
whether a claimant is entitled to benefits.
Is the person presently unemployed?
Is the person’s impairment(s) severe?
Does the person’s impairment(s) meet or equal one of the
specific impairments set forth in 20 C.F.R. Pt. 404, Subpt.
P, App. 1?
Is the person unable to perform his or her former
Is the person unable to perform any other work within the
42 C.F.R. §§ 404.1520, 416.920 (2010).
An affirmative answer to any of the questions leads either to the next question, or, on
steps three and five, to a finding of “disabled”. 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).
The burden of proof rests squarely on a claimant through Step 4. Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant can establish a prima facie case of
qualifying disability once he meets the burden of proof from Step 1 through Step 4. At Step 5,
the burden shifts to the Commissioner, who must then show there are a significant number of
jobs in the national economy the claimant can perform. Id.
Before performing the fourth and fifth steps, the ALJ must determine the claimant’s
residual functional capacity. Id. at 1238-39. The RFC is what the claimant is able to do despite
his impairments and is based on all relevant medical and other evidence. Id. It also can contain
both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers
the claimant’s RFC, age, education, and work experience to determine if there are jobs available
in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use
the Medical Vocational Guidelines (“grids”) or hear testimony from a vocational expert (“VE”).
Id. at 1239-40.
In this case, the ALJ first determined that Plaintiff is not presently employed and has not
engaged in substantial gainful employment since the alleged onset date of disability. (Tr. 17).
The ALJ also determined that Plaintiff suffers from the severe impairments of major depressive
disorder, panic disorder, and chronic pain syndrome (Tr. 17), but that these impairments do not
meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 18).
Before proceeding to the final two steps, the ALJ determined Plaintiff’s RFC. The ALJ
determined that Plaintiff has the RFC:
to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b) except he could not climb ladders, ropes, or scaffolds,
otherwise could perform posturals occasionally; could reach and
feel with the left upper extremity frequently but not constantly;
would need to avoid concentrated exposure to hazards such as
open machinery and unprotected heights; would not be required to
operate or drive vehicles; would be limited to tasks that could be
learned in thirty days or less involving no more than simple work
related decisions with few workplace changes; and would not be
required to read instructions or write reports in the course of his
(Tr. 20). In considering Plaintiff’s entire medical record when making this evaluation, the ALJ
acknowledged that Plaintiff’s symptoms were caused by an underlying medically determinable
physical or mental impairment. (Tr. 20). However, the ALJ questioned Plaintiff’s credibility
concerning the intensity and limiting effects of these symptoms. (Tr. 20).
After determining Plaintiff’s RFC, the ALJ moved to the fourth step of the disability
determination. The ALJ concluded that Plaintiff is capable of performing past relevant work as a
compression thermal form molding machine operator because this work does not require the
performance of work-related activities precluded by his RFC. (Tr. 23). In making this
determination, the ALJ relied upon the testimony of a Vocational Expert (“VE”). (Tr. 23). The
VE testified that an individual with Plaintiff’s RFC could perform the job of a compression
molding machine operator. (Tr. 63). He also informed the ALJ that his testimony was consistent
with the Dictionary of Occupational Titles (“DOT”). U.S. Dep’t of Labor, Dictionary of
Occupational Titles, Volume II, (4th ed. rev. 1991) (Tr. 63).
Because the ALJ determined that Plaintiff was not disabled as defined in the Act, he did
not proceed to the fifth and final step of the analysis.
Plaintiff’s Argument for Remand or Reversal
While Plaintiff has organized his brief into two main arguments, there are numerous
smaller arguments contained within these broad categories. In the interest of carefully examining
the merits of each of Plaintiff’s claim, the court has scrutinized Plaintiff’s brief and found the
following specific allegations: (1) the ALJ’s determination that Plaintiff was able to return to his
job as a compression thermal form molding operator is inherently contradictory to the ALJ’s
restriction that Plaintiff avoid exposure to open machinery (Pl.’s Mem. 7); (2) the physical RFC
that the ALJ relied upon was created by a single decision-maker in violation of the Code of
Federal Regulations (Pl.’s Mem. 8); (3) the ALJ should have developed the record to obtain
medical input before deriving RFC findings (Pl.’s Mem. 12); (4) the ALJ erred by not reporting
the findings of Dr. Alvin Tenchavez in his decision (Pl.’s Mem. 10); (5) the ALJ should have
reported the consultative psychological examination performed by Dr. Bentley in his decision
(Pl.’s Mem. 11); (6) the ALJ erred by rejecting the opinion of Andrea Nelson as conclusory and
should have at least recontacted Ms. Nelson for further clarification (Pl.’s Mem. 11); and (7) the
ALJ’s restriction of essentially unskilled work with no written instructions barely addresses
Plaintiff’s intellectual limitations, and does not remotely address the mental limitations assessed
by two impartial consultative examining sources. (Pl.’s Mem. 12).
Standard of Review
The court reviews a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and based upon proper legal standards. Hand v.
Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The court “may not decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that of the Commissioner,” but rather it
“must defer to the Commissioner’s decision if it supported by substantial evidence.” Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1997). The court must find the Commissioner’s decision
conclusive “if it is supported by substantial evidence and the correct legal standards were
applied.” Kelly v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999).
Substantial evidence is more than a scintilla. The evidence must do more than merely
create a suspicion of the existence of a fact, and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Hand at 1440.
If the Commissioner’s decision is supported by substantial evidence, the district court
will affirm, even if the court would have reached a contrary result as the finder of fact, and even
if the court finds that the evidence preponderates against the Commissioner’s decision. Edwards
v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). The district court must view the record as a
whole, taking into account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).
The district court will reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with sufficient
reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep’t of
Health and Human Serv., 21 F.3d 1064, 1066. There is no presumption that the Secretary’s
conclusions of law are valid. Id.
Plaintiff has organized his allegations into two broad arguments. The first argument
alleges that the ALJ erred in failing to develop the record to obtain a physical medical source
opinion. (Pl.’s Mem. 7). First, Plaintiff claims that the ALJ’s restriction of no exposure to open
machinery is inconsistent with his finding that Plaintiff can return to work as a compression
thermal form molding machine operator. (Pl.’s Mem. 7). Next, Plaintiff claims that because there
was no RFC by a physician of record, the ALJ should have further developed the record before
determining his RFC. (Pl.’s Mem. 10). Concerning the mental aspect of Plaintiff’s claim, he
alleges broadly that the ALJ’s mental RFC findings are based (at best) on exclusion of the
evidence. (Pl.’s Mem. 11). Specifically under this broad allegation, Plaintiff argues that the ALJ
should have explicitly included the findings of Dr. Bentley in his report. (Pl.’s Mem. 11).
Plaintiff also argues that the ALJ was incorrect in rejecting the opinion of Andrea Nelson and
that the ALJ at least had a duty to recontact Ms. Nelson to clarify her opinion. (Pl.’s Mem. 11).
Finally, Plaintiff alleges that the ALJ’s restrictions on his ability to work do not appropriately
address his mental limitations. (Pl.’s Mem. 12). The court addresses each argument in turn.
The ALJ Did Not Fail to Develop the Record by Not Obtaining a Physical
Medical Source Opinion.
The ALJ’s Restriction of No Exposure to Open Machinery Is
Consistent with His Determination That Plaintiff Can Return to His
Previous Work as a Compression Thermal Form Molding Operator.
Plaintiff first claims that the ruling of the ALJ is inherently contradictory because the
ALJ ruled that he was capable of returning to his job as a compression thermal form molding
operator while also noting that he was restricted from exposure to open machinery. (Pl.’s Mem.
7). Plaintiff’s argument implies that work as a compression thermal form molding machine
operator would inherently expose him to the hazards of open machinery. However, the
requirements and hazards associated with this position in the Dictionary of Occupational Titles
do not indicate exposure to any dangerous conditions associated with open machinery. DOT,
1991 WL 683478 (1991). The position does not require exposure to extreme heat or cold,
vibrations, moving mechanical parts, electric shock, radiation, explosives, or toxic caustic
Also, the record demonstrates that the hypothetical that the ALJ posed to the VE
specifically included a limitation regarding open machinery. The VE stated that Plaintiff could
perform this job as a compression thermal form molding machine operator despite his
limitations. (Tr. 63). The VE also testified that his conclusion was consistent with the DOT. (Tr.
63). VE testimony can provide substantial evidence to support an ALJ’s decision that a claimant
can return to a previous job. Savor v. Shalala, 868 F.Supp. 1363 (M.D.Fla. 1994). Therefore, for
these reasons, there is no inherent contradiction in the ALJ’s determination that Plaintiff could
return to his job as a compression thermal form molding machine operator and the restriction to
avoid open machinery.
The ALJ Fully Developed the Record Before Deriving an RFC Despite
the Lack of an RFC by a Physician of Record.
Plaintiff’s brief makes numerous assertions concerning the ALJ’s failure to fully develop
the record. The court has grouped these allegations into three subsections in order to address all
of the arguments in a more structured manner.
First, Plaintiff urges that a physical RFC performed only by a single decision maker
violates the Code of Federal Regulations. Second, Plaintiff argues that the ALJ erred by not
developing the record and ordering a consultative examination. Finally, Plaintiff contends that
the ALJ erred by not reporting the findings of Dr. Tenchavez.
The Physical RFC Performed Only by a Single Decision Maker
Without a Medical Consultant Does Not Violate Code of
Plaintiff argues that while a Medical Source Opinion (“MSO”) is not required for the
ALJ to make RFC findings, it is still required at the State Agency level for disability
determinations to be made by both a medical consultant and the disability examiner. (Pl.’s Mem.
8). Plaintiff states that the only time that a disability examiner makes this determination without
a medical consultant is when there is no medical evidence to examine and the individual refuses
to attend a consultative examination. (Pl.’s Mem. 8).
Title 20 § 404.1615(c)(1) and (2) of the Code of Federal Regulations seem to support
Plaintiff’s assertion. This section of the Code, which provides regulations about making
disability determinations, states that such determinations will be made by both a State agency
medical or psychological consultant and a State agency disability examiner. 20 C.F.R. §
404.1615(c)(1). The Code allows the determination to be made solely by a disability examiner
only when there is no medical evidence to be evaluated and the individual fails or refuses,
without good reason, to attend a consultative examination. 20 C.F.R. § 404.1615(c)(2). It also
provides an exception when the claim is adjudicated under the quick disability determination
process or as a compassionate allowance, and the initial or reconsidered determination is fully
favorable to the claimant. 20 C.F.R. § 404.1615(c)(3). None of these situations exist in this case.
Therefore, considered by itself, § 404.1615(c)(2) requires both a State agency medical or
psychological consultant and a State agency disability exam.
However, Plaintiff’s argument ignores the more recent 20 C.F.R. § 404.906 (2007). This
regulation outlines a plan to test modifications to the disability determination procedures. Title
20 C.F.R. § 404.906 states that it will institute these new procedures “[n]otwithstanding any
other provision in this part or part 422 of this chapter.” 20 C.F.R. § 404.906(a). Also, Alabama
is one of the states in which these modifications are being tested. 71 Fed. Reg. 45,890 (August
10, 2006). Therefore, the provisions in 20 C.F.R. § 404.906 take precedence over those in 20
C.F.R. § 404.1615.
One of the modifications put into effect by these new regulations is the Single Decision
Maker Model. Under this model, a single decision maker will make the disability determination
and may also determine if other conditions for entitlement to benefits based on disability are
met. Under this plan, a signature from a medical or psychological consultant is not required on
the disability determination forms. 20 C.F.R. § 404.906 (2007).
Furthermore, while the findings by the ALJ must be supported by substantial evidence,
the Eleventh Circuit does not require an RFC from a physician for an ALJ to make his
determination. Langley v. Astrue, 777 F.Supp.2d. 1250, 1258 (N.D.Ala. 2011). Therefore, the
fact that the physical RFC in this case was generated and signed by a single decision maker
disability specialist does not violate any regulations.
The ALJ’s RFC Findings Were Based on Substantial Evidence
and No Error Was Made by Not Ordering a Consultative
Plaintiff next argues that the ALJ should have further developed the record to obtain
medical input before making RFC findings. (Pl.’s Mem. 12). This argument relies heavily on the
supposed impropriety of the physical RFC by the single decision maker. The court has already
concluded that the reliance on the RFC was proper; however, even if the physical RFC by the
single decision maker was not proper, the ALJ still based his RFC findings on substantial
The ALJ’s RFC assessment must consider all of the relevant evidence to determine the
most that a claimant can do despite any limitations. 20 C.F.R. § 404.1545(a)(1) (2010). It is the
ALJ’s responsibility to assess the claimant’s RFC at the administrative hearing. 20 C.F.R. §
404.1546(c) (2010). The claimant is generally responsible for providing evidence for the ALJ to
consider when making his RFC finding. 20 C.F.R. § 404.1545(a)(3) (2010). However, it is the
ALJ who is responsible for developing the claimant’s complete medical history. This
responsibility includes arranging consultative examinations if necessary and assisting the
claimant in obtaining medical records from his own medical sources. Id. A consultative
examination should be ordered if one is needed to make an informed decision. Reeves v.
Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984). However, if no physician recommends an
additional consultation and the record is sufficiently developed for the ALJ to make a
determination, then the failure to order a consultative examination is not error. Good v. Astrue,
240 Fed.Appx. 399, 404 (11th Cir. 2007).
In this case, no physician recommended an additional consultation and the ALJ
considered the entire record in reaching his opinion. The ALJ first discussed the testimony of
Plaintiff during the hearing. He found some of Plaintiff’s testimony to be inconsistent. (Tr. 21).
The ALJ also found some of Plaintiff’s responses to be evasive or vague. (Tr. 21). This question
of credibility influenced the ALJ’s determination regarding the “intensity, persistence, and
limiting effects” of Plaintiff’s symptoms. (Tr. 21).
The ALJ also discussed Plaintiff’s medical records. When discussing Plaintiff’s hospital
visits since the original car accident, the ALJ noted that when Plaintiff was released from the
hospital that his injuries had been treated with no subsequent complications. (Tr. 21-22). He also
discussed that in subsequent visits for medical treatment that the medical tests did not reveal any
substantial fractures or soft tissue damage that would substantiate Plaintiff’s asserted level of
impairment. (Tr. 22). The ALJ even commented on four visits to the hospital for reasons
unrelated to Plaintiff’s car crash injuries. He noted that during these visits Plaintiff did not seek
treatment or advice for his existing injuries. (Tr. 22). Therefore the record was appropriately
developed and it was not necessary for the ALJ to obtain a consultative examination.
The ALJ Was Not Required to Report the Findings of Dr.
Plaintiff contends that the ALJ’s failure to specifically mention the assessment performed
by Dr. Tenchavez on August 8, 2007 is another example of him not properly developing the
record. (Pl.’s Mem 10, Tr. 227).
However, “there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206,
1211 (11th Cir. 2005). It is enough that an ALJ’s decision is not a broad rejection that would lead
a court to conclude that the ALJ did not consider the claimant’s medical condition as a whole
before making a decision. Id. Here, it is clear that the ALJ considered Plaintiff’s entire medical
history. Also, the information from Dr. Tenchavez’s examination was largely summarized in
Plaintiff’s physical RFC. (Tr. 236). That physical RFC was reported in the record and considered
by the ALJ. (Tr. 22-23). Therefore, it was not error for the ALJ to not specifically refer to the
examination performed by Dr. Tenchavez.
The ALJ’s Mental RFC Findings Are Based on Substantial Evidence and a
Fully Developed Record.
The ALJ Did Not Fail to Fully Develop the Record by Not Specifically
Including the Opinion of Dr. Bentley.
Plaintiff argues that the ALJ’s mental RFC findings were based, at best, on exclusion of
the evidence. (Pl.’s Mem. 11). Specifically, Plaintiff argues that the ALJ erred by not reporting
the consultative psychological examination performed by Dr. Bentley on August 9, 2007. (Pl.’s
Mem. 11). This argument is off the mark for reasons similar to Plaintiff’s argument concerning
the physical assessment performed by Dr. Tenchavez. Again, the ALJ is not required to
specifically refer to every piece of evidence as long as his decision is not a broad rejection of the
evidence, Dyer at 1211, and the opinion of a one-time examiner is not entitled to deference.
McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987).
In this case, the ALJ did not broadly reject Dr. Bentley’s assessment but instead based his
decision on the evidence as a whole. Dr. Estock’s assessment noted the core findings of Dr.
Bentley that Plaintiff was alert, oriented, and that his memory was intact. (Tr. 231, 254). The
mental RFC also noted Dr. Bentley’s diagnosis of “major depression, recurrent, moderate to
severe, and panic disorder.” (Tr. 254). Dr. Estock took this information into account when
determining Plaintiff’s mental RFC and the extent to which Plaintiff’s impairments limited his
ability to work. This assessment by Dr. Estock, which includes the findings of Dr. Bentley, was
reported by the ALJ in his decision. (Tr. 23).
The ALJ also considered other evidence concerning Plaintiff’s limitations as a result of
his mental impairments. The ALJ reported the mental consultative examination performed by
Dr. Rogers on May 7, 2009. (Tr. 22, 333-41). In this examination, Dr. Rogers found that Plaintiff
was able to work (although with some restrictions and conditions). (Tr. 337). His diagnosis is
consistent with that of Dr. Bentley. He determined that Plaintiff suffered from pain related to his
psychological and general medical condition, depressive disorder, and anxiety. Dr. Rogers also
diagnosed a reading disorder, a mathematics disorder, a learning disorder, and a disorder of
written expression. (Tr. 337). Despite these limitations, Dr. Rogers determined that Plaintiff was
capable of being cooperative with peers and supervision, of maintaining a routine work cycle in
a well-structured work situation, and that he possessed good motivation. (Tr. 337). The ALJ took
these and other limitations set forth by Dr. Rogers into account when determining Plaintiff’s
RFC. (Tr. 22). The ALJ’s findings recognized that Plaintiff is limited to tasks that (1) can be
learned in thirty days or less, (2) involve no more than simple work-related decisions with few
workplace changes, and (3) do not involve a requirement that he read instructions or write
reports in the course of his work. (Tr. 22). These limitations and the discussion of the reports of
both Dr. Estock and Dr. Rogers show that the ALJ did not exclude evidence from the record
when determining Plaintiff’s RFC.
The ALJ Gave Appropriate Weight to the Opinion of Andrea Nelson
and Did Not Err by Not Recontacting Ms. Nelson for Further
Plaintiff claims that the ALJ inappropriately rejected as conclusory the evaluation
conducted by Andrea Nelson on May 19, 2009. (Pl.’s Mem. 11, Tr. 343). Although Plaintiff
contends that the ALJ rejected this evidence after determining it was conclusory (Pl.’s Mem. 11),
that argument is not supported by the record. In reality, the ALJ did not “reject” the evidence,
but merely concluded that because of the conclusory nature1 of Ms. Nelson’s opinion that it
deserved “little evidentiary weight.” (Tr. 22).
After careful review, the court finds the ALJ correctly decided to give Ms. Nelson’s
opinion “little evidentiary weight.” (Tr. 22). Even opinions from treating physicians, whose
opinions are normally given substantial or considerable weight, are given very little evidentiary
weight if the opinion is conclusory. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2003);
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (“we note that we are concerned here
with the doctor’s evaluations of [claimant’s] condition and the medical consequences thereof,
not their opinions of the legal consequences of his condition.”). Ms. Nelson was not a treating or
Plaintiff does not dispute the fact that the opinion was conclusory; he only claims that it should not
have been rejected or that the ALJ should have contacted Ms. Nelson for further clarification
pursuant to 20 C.F.R § 404.1512(e). (Pl.’s Mem. 11).
even a consulting physician. Therefore her conclusory opinion about Plaintiff’s ability to work
was appropriately given little evidentiary weight.
Plaintiff next claims that the ALJ should have contacted Ms. Nelson for clarification of
her opinion pursuant to 20 C.F.R. 404.1512(e). (Pl.’s Mem. 11). Section 404.1512(e) provides
that every reasonable effort will be made to obtain evidence from the claimant’s medical
sources. However, “[i]n evaluating the necessity for a remand, we are guided by whether the
record reveals evidentiary gaps which result in unfairness or clear prejudice.” Brown v. Shalala,
44 F.3d 931, 935 (11th Cir. 1995). The likelihood of unfair prejudice may arise if there is an
evidentiary gap that “the claimant contends supports her allegations of disability.” Id. At 936
Here no such evidentiary gap exists. Although there are parts of the letter from Ms.
Nelson that were not conclusory concerning Plaintiff’s psychological state—specifically, his
hesitation to ride in automobiles and how this fear affects his life (Tr. 343), substantial evidence
concerning these issues was already contained in the record and an additional opinion from a
non-medical source would not have influenced the ALJ’s decision. The ALJ relied upon the
medical opinions of Dr. Bentley (Tr. 230-33), Dr. Estock (Tr. 242-59), and Dr. Rogers (Tr. 33341) to determine Plaintiff’s psychological conditions and the limitations that result from these
conditions. Further clarification from Ms. Nelson would not have changed this determination.
Therefore, the ALJ did not err by not recontacting Ms. Nelson.
The ALJ Appropriately Addressed Plaintiff’s Intellectual and Mental
Limitations in His RFC.
Finally, Plaintiff argues broadly that the ALJ’s restriction to essentially unskilled work
with no written instructions barely addresses his intellectual limitations, and does not remotely
address the mental limitations assessed by two impartial consultative examining sources. (Pl.’s
Mem. 12). Although Plaintiff makes this assertion, he does not elaborate or cite any authority to
support it. Issues raised in a perfunctory manner, without supporting arguments and/or citation to
authorities, are generally deemed to be waived. Continental Tech. Serv., Inc. v. Rockwell Int’l
Corp., 927 F.2d 1198, 1199 (11th Cir. 1991). However, in order to thoroughly analyze every
issue, the court will still examine the claim.
The ALJ explained that while he did believe Plaintiff’s anxiety to be a severe
impairment, he did not find it to be debilitating. (Tr. 22). He noted that Plaintiff had only sought
medication for his anxiety shortly before the hearing and that the anxiety did not prevent
Plaintiff from a social life that includes visiting regularly with friends and family. (Tr. 22). The
ALJ ultimately concluded that “the nature and extent of treatment in this case simply belie
[Plaintiff’s arguments regarding] debilitating anxiety.” (Tr. 22). The ALJ and other reports had
already called Plaintiff’s credibility into question. (Tr. 21-22, 239). This court “may not decide
facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.”
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Therefore this court cannot question the
ALJ’s conclusions concerning the severity of Plaintiff’s anxiety.
Also, Plaintiff’s intellectual and mental limitations were considered by the ALJ in his
determination of his Global Assessment of Functioning (“GAF”) score. (Tr. 22). While making
this assessment, Dr. Rogers assessed Plaintiff’s pain disorder, depressive disorder, anxiety
disorder, reading disorder, mathematics disorder, learning disorder, and disorder of written
expression. Despite all of these impairments, Dr. Rogers still concluded that Plaintiff possessed a
GAF score of 53. (Tr. 337). This score reflects only moderate symptoms. DSM-IV-TR, (4th
Edition, 2000). The ALJ considered this information when determining Plaintiff’s work
restrictions and decided to further restrict him to tasks that can be learned in thirty days or less
involving no more than simple work-related decisions with few workplace changes, and no
requirement that he read instructions or write reports in the course of his work. (Tr. 22).
Therefore, the ALJ did indeed address Plaintiff’s intellectual and mental limitations when
determining his RFC.
The court concludes that the ALJ’s determination that Plaintiff is not disabled is
supported by substantial evidence and proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed, and a separate
order in accordance with this memorandum will be entered.
DONE and ORDERED this
day of August, 2012.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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