Hankins v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 9/24/2012. (AVC)

FILED
2012 Sep-24 PM 02:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
SAMATHA LYNN HANKINS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No.:
4:11-CV-2426-RDP

MEMORANDUM OF DECISION
Plaintiff Samatha Lynn Hankins brings this action pursuant to Title 42, United
States Code, Section 405(g), seeking review of the decision by the Commissioner of the
Social Security Administration denying her claim for disability and Disability Insurance
Benefits (“DIB”). (Tr. 71). 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.
I.

Proceedings Below
Plaintiff filed her application for a period of disability and DIB on April 3, 2007

(Tr. 54), alleging onset of disability as of February 17, 2006. (Tr. 101). Plaintiff’s
application was denied by the Social Security Administration on July 26, 2007. (Tr. 55).
Plaintiff then requested and received a hearing before Administrative Law Judge Jerry M.
Lang (“ALJ”) on September 29, 2009. (Tr. 61, 70). In his decision dated November 25,
2009, the ALJ determined that Plaintiff is not disabled under §§ 216(i) and 223(d) of the
Social Security Act (the “Act”). (Tr. 23). After the Appeals Council denied Plaintiff’s

request for review of the ALJ’s decision (Tr. 1, 5), that decision became the final
decision of the Commissioner, and therefore a proper subject of this court’s appellate
review.
Plaintiff was forty-two years old at the time of the hearing and has a high school
equivalency diploma. (Tr. 33, 113, 147). Her past relevant work has been in the poultry
industry where she worked on a poultry processing production line and also as a quality
assurance inspector. (Tr. 46, 107). Plaintiff claims she is unable to work due to anxiety
and depression issues, panic disorder, uncontrolled blood pressure, mitro valve prolapse,
degenerative disk disease, and irritable bowel syndrome. (Tr. 106).
Plaintiff was examined by Dr. Larry Parker of the Spine Center at SportsMed on
May 11, 2004. (Tr. 164). Dr. Parker determined that Plaintiff had a “symptomatic lumbar
radiculopathy with significant lumbar disc herniation at L5-S1.” (Tr. 165). Plaintiff also
has medical records from the Guntersville Family Practice Clinic that cover visits from
February 28, 1997 to May 18, 2005. (Tr. 169-201). However, these records cover a
period before Plaintiff’s onset of disability and reveal nothing of relevance to this
decision.
Plaintiff’s records from Marshall Medical Center North span from May 18, 2005
to April 5, 2007. (Tr. 205-54). The records from these visits present conflicting
information concerning the severity of Plaintiff’s gastrointestinal problems. Plaintiff
underwent a colonoscopy with the removal of a polyp on August 24, 2005. (Tr. 220).
However, other tests conducted in 2005 showed no sign of abnormality in the abdomen
and normal gastric emptying. (Tr. 228-29). Plaintiff also has records from the Lakeside

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Clinic covering July 11, 2002 to April 25, 2007. (Tr. 256-78). These records indicate
anxiety and depression (Tr. 263, 266) among other complaints. (Tr. 256-78).
Plaintiff was seen at Mountain Lakes Behavioral Health Care for mental health
reasons between June 23, 2005 and April 12, 2007. (Tr. 281-311). The notes from these
visits show that her mood was consistently anxious; however, they also consistently show
physical presentation and “thought/perceptual disturbances” within normal limits. Her
speech was normal and her insight and judgment ranged from fair to good. (Tr. 281-95,
299-309).
During this time, Plaintiff underwent a psychiatric evaluation by Dr. Roza
Cieszkowski. (Tr. 296-98). Dr. Cieszkowski noted Plaintiff’s anxiety and described her
as very emotional. However, she also found Plaintiff to be cognitively intact and
possessing good judgment and insight. (Tr. 297). Dr. Cieszkowski’s diagnosis included
depressive disorder NOS, generalized anxiety disorder, and panic disorder without
agoraphobia. (Tr. 298). Based on this diagnosis, Dr. Cieszkowski still determined
Plaintiff to have a Global Assessment of Functioning (“GAF”) score of 58. (Tr. 298).
Plaintiff’s psychological state was evaluated by Dr. Mary Arnold on July 3, 2007.
(Tr. 313). Dr. Arnold observed that Plaintiff appeared healthy and clean. She noted there
was nothing odd about Plaintiff’s behavior and that Plaintiff was not agitated. While Dr.
Arnold found Plaintiff to be anxious and intermittently tearful, she also observed a full
range of expressions and that Plaintiff was amused by some neutral interview items. She
further found Plaintiff to be alert, oriented, and capable of understanding instructions and
calculating simple math problems. Plaintiff’s speech was fluid, she maintained good eye
contact, and was capable of reaching goal ideas without tangential or circumstantial
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thinking. Dr. Arnold estimated Plaintiff’s intelligence to be in the low average range.
After considering Plaintiff’s condition, Dr. Arnold diagnosed panic attacks with
agoraphobia, PTDS [sic], provisional, personality disorder, NOS, hypertension, obesity,
history of childhood/adult abuse, and socially avoidant. She also assigned Plaintiff a GAF
score of 45. (See Tr. 313-16).
Plaintiff underwent another consultative evaluation on July 5, 2007 with Dr. John
Lary. (Tr. 318). Dr. Lary ultimately diagnosed Plaintiff with “degenerative spinal disc
disease, lumbar spine disc extrusion at L5-S1 with significant lumbar sensory
radiculopathy, complaint of anxiety, depression, and panic attacks, hypertension, mitral
valve prolapse by patient history, normal neurological examination, irritable bowel
syndrome, and gastroesophageal reflux disease.” (Tr. 322). He also stated that Plaintiff’s
“ability to sit, stand, walk, lift, carry, bend, and squat is impaired by lumbar disc disease
and lumbar radiculopathy.” (Id.). Despite these conditions, Dr. Lary still found that
Plaintiff was able to flex her upper body at her waist by sixty degrees, hyperextend
twenty degrees, and perform a normal straight leg raising test. (Tr. 321). Dr. Lary also
observed that Plaintiff was able to walk normally, walk on her heels and toes, and squat
and rise. (Tr. 321). In his opinion, he found Plaintiff’s ability to reach, see, hear, speak,
understand, and manipulate small objections unimpaired. (Tr. 322).
Plaintiff received psychiatric treatment from Dr. Darren Gannuch between
November 6, 2006 and February 4, 2008. (Tr. 376-87). During this time, Dr. Gannuch
determined that Plaintiff suffered from a generalized anxiety disorder, and on June 29,
2007, assigned Plaintiff a GAF score of 68. (Tr. 376-77).

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Dr. Gregory Ciaccio met with Plaintiff four times between May and August 2008.
(Tr. 363-66), and once more on August 25, 2009. (Tr. 406). In the notes from Plaintiff’s
initial visit, Dr. Ciaccio documents numerous potential psychological disorders,
including obsessive compulsive disorder and bipolar disease, and assigned Plaintiff a
GAF score of around 50. (Tr. 366-67, 369). However, from the subsequent visits that
followed, Dr. Ciaccio narrowed his analysis down to generalized anxiety disorder and
depression. (Tr. 363-65, 406).
Dr. Ciaccio also completed a Mental Residual Functional Assessment of Plaintiff
on November 25, 2008. (Tr. 371-74). In this evaluation, Dr. Ciaccio determined that
Plaintiff was “markedly limited” in her ability to understand and remember detailed
instructions; maintain attention and concentration for extended periods; complete a
normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods; travel in unfamiliar places or use public transportation;
maintaining social functioning; concentration, persistence, or pace.

However, Dr.

Ciaccio further determined Plaintiff was either moderately or not significantly limited in
the other remaining areas. (Tr. 371-73).
Finally, Plaintiff was seen at Lakeside Clinic from July 25, 2007 to December 19,
2008. (Tr. 393-403). The diagnoses from these visits are consistent with earlier opinions
and show gastroesophageal reflux disease, hypertension, mitral valve prolapse,
depression, and anxiety. (Tr. 393-96).

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II.

ALJ’s Decision
Disability under the Act is determined under a five-step analysis. 20 C.F.R. §

404.1520(a). First, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(b). “Substantial work activity” is work
activity that involves performing significant physical or mental activities. 20 C.F.R. §
404.1572(a). “Gainful work activity” is work that is done for pay or profit. 20 C.F.R. §
404.1572(b). If the ALJ finds that the claimant engages in substantial gainful activity,
then the claimant cannot claim disability. Second, the ALJ must determine whether the
claimant has a medically determinable impairment or a combination of medical
impairments that is “severe.” 20 C.F.R. §§ 404.1520(c), 416.920(c). Absent such
impairment, the claimant may not claim disability. Third, the ALJ must determine
whether the claimant’s impairment meets or medically equals the criteria of an
impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§
404.1520(d), 404.1525, and 404.1526. If such criteria are met, the claimant is declared
disabled.
If the claimant does not fulfill the requirements necessary to be declared disabled
under the third step, the ALJ may still find disability under the next two steps of the
analysis. Before proceeding to steps four and five, the ALJ must first determine the
claimant’s RFC, which refers to the claimant’s ability to work despite her impairments.
20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines whether the claimant has
the RFC to perform past relevant work. 20 C.F.R. 404.1520(f). If the claimant is
determined to be capable of performing past relevant work, then she is deemed not
disabled. If the ALJ finds the claimant unable to perform past relevant work, then the
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analysis proceeds to the fifth and final step.
In the final step of the analysis, the ALJ must determine whether the claimant is
able to perform any other work commensurate with her RFC, age, education, and work
experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the claimant
to the ALJ to prove the existence, in significant numbers, of jobs in the national economy
that the claimant can do given her RFC, age, education, and work experience. 20 C.F.R.
§§ 404.1512(g), 404.1560(c).
The court recognizes that “the ultimate burden of proving disability is on the
claimant” and that the “claimant must establish a prima facie case by demonstrating that
[s]he can no longer perform [her] former employment.” Freeman v. Schweiker, 681 F.2d
727, 729 (11th Cir. 1982) (other citations omitted). Once a claimant shows that she can
no longer perform her past employment, “the burden then shifts to the [Commissioner] to
establish that the claimant can perform other substantial gainful employment.” Id.
In this case, the ALJ first determined that Plaintiff has not engaged in substantial
gainful employment since her onset date of disability. (Tr. 16). The ALJ also determined
that Plaintiff suffers from the severe impairments of degenerative disc disease, affective
disorders, anxiety-related disorders, and personality disorders (Id.), 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. 16).
The ALJ next determined that Plaintiff has the RFC:
To perform the full range of light work as defined in 20
C.F.R. § 404.1567(b). However, the claimant’s light work
must be that which only involves simple instructions,
demands no more than two hours attention and
concentration with a break, involves only occasional
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contact with supervisors and co-workers, no contact with
the general public, in an environment where changes are
infrequent and gradually introduced. (Tr. 17).
The ALJ acknowledged that Plaintiff’s symptoms were caused by an underlying
medically determinable physical or mental impairment. (Tr. 18-19). However, the ALJ
questioned Plaintiff’s credibility concerning the intensity and limiting effects of her
symptoms. (Tr. 19). The ALJ concluded that Plaintiff was unable to perform her past
relevant work, but considering her age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy that Plaintiff can perform.
(Tr. 21-22).
To reach this conclusion, the ALJ relied upon the opinion of the vocational expert
who testified that jobs exist for an individual with Plaintiff’s limitations. (Tr. 22, 47). The
vocational expert stated that such an individual could perform jobs such as the following:
night cleaning crew of which more than 3,800 exist in the state of Alabama; material
handler of which more than 2,900 exist in the state of Alabama; and wrapping/packaging
of which more than 3,200 exist in the state of Alabama. (Tr. 22). Accordingly, the ALJ
determined Plaintiff was not disabled.
III.

Plaintiff’s Argument for Remand or Reversal
Plaintiff contends that the ALJ committed reversible error by: (1) overlooking or

failing to consider the opinions of two Social Security consultative examiners; (2) failing
to accord controlling weight to the opinion of Dr. Gregory T. Ciaccio, her treating
psychiatrist; and (3) failing to allow her counsel to ask the vocational expert a
hypothetical question using the opinion of Dr. Ciaccio. (Pl.’s Mem. 10).

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IV.

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 is
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, 125 F.3d 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 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 (11th Cir. 1994). There is no
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presumption that the Secretary’s conclusions of law are valid. Id.
V.

Discussion
After careful review, the court determines the ALJ’s decision is due to be

affirmed for the following reasons.
A.

The ALJ Did Not Commit Error By Not Specifically Mentioning the
Opinions of Drs. Arnold and Lary.

Plaintiff contends that the ALJ’s failure to consider the opinions of two Social
Security consultative medical examiners—Drs. Arnold and Lary—and the failure to state
with particularity the weight given to these medical opinions is reversible error. (Pl.’s
Mem. 10). Plaintiff claims that this absence is evidence that the ALJ was “unaware” of,
simply “ignored,” or “forgot” about these two opinions. (Pl.’s Mem 10-11). The court
will address these arguments in relation to each medical examiner.
Plaintiff argues that the ALJ committed reversible error by not mentioning the
report of consultative psychologist, Dr. Arnold. (Pl.’s Mem. 10). The ALJ has a duty to
fully and fairly develop the record for both sides. Sims v. Apfel, 530 U.S. 103, 111
(2000). The ALJ also must state the weight given to different medical opinions. Sharfarz
v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). 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. Also, “[i]n
evaluating the necessity for a remand, we are guided by whether the record reveals

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evidentiary gaps which result in unfairness or clear prejudice.” Brown v. Shalala, 44 F.3d
931, 935 (11th Cir.1995).
The record contradicts Plaintiff’s claim that the ALJ ignored or was not aware of
Dr. Arnold’s report. (Pl.’s Mem. 10). During the hearing, the ALJ specifically referred to
Dr. Arnold’s opinion and the GAF score of 45 she assigned Plaintiff. (Tr. 51-52). The
ALJ then proceeded to explain to Plaintiff’s counsel that he would take notice of the
score and its implications. (Tr. 51). He also informed Plaintiff’s counsel that such a score
did not necessarily indicate that Plaintiff was unable to work. He explained that a score in
the range of forty-one to fifty indicates serious symptoms or any serious impairment of
social occupation and school functioning. However, the ALJ explicitly and correctly
stated that there is no dispositive GAF score that automatically equates to a conclusion of
inability to work.1 (Tr. 51-52).
Because a GAF score is not dispositive on the issue of disability, when supported
by substantial evidence the ALJ’s decision will stand as long as it enables this court to
conclude “that the ALJ considered her medical condition as a whole.” Dyer at 1211.
Here, there is no indication that the ALJ did not consider Plaintiff’s medical condition as
a whole. Dr. Arnold’s opinion is consistent with Plaintiff’s other psychological
evaluations (which did not find Plaintiff disabled) and does not indicate disability other
than through the non-dispositive GAF score.

1

The ALJ was correct that a low GAF score does not automatically indicate that a claimant is unable
to work. Federal regulations state that while the GAF score is the scale used in the multiaxial evaluation system
endorsed by the American Psychiatric Association, “[i]t does not have a direct correlation to the severity
requirements in our mental disorders listings.” 65 Fed. Reg. 50746, 50764-65 (2000). Therefore, the ALJ
correctly found that the score was not controlling and Plaintiff’s claim that “the ALJ just skips, ignores, or is
possibly unaware that Dr. Arnold did a report” is unfounded. (Pl.’s Mem. 10).

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Dr. Arnold observed that Plaintiff appeared healthy and clean. (Tr. 314). She
noted that there was nothing odd about her behavior and that she was not agitated. (Tr.
314). While Dr. Arnold found that Plaintiff was anxious and intermittently tearful, she
also noted a full range of expressions and that Plaintiff was amused by some neutral
interview items. (Tr. 314). She found Plaintiff to be alert, oriented, and capable of
understanding instructions and calculating simple math problems. (Tr. 314-15).
Plaintiff’s speech was fluid, she made good eye contact, and she was able to reach goal
ideas without tangential or circumstantial thinking. (Tr. 315). Dr. Arnold estimated
Plaintiff’s intelligence to be in the low average range. (Tr. 315). None of these
observations, however, denotes a debilitating mental condition. Therefore, the ALJ not
specifically mentioning Dr. Arnold’s findings in his decision did not create an
evidentiary gap and is not an error.
Plaintiff also alleges that the ALJ committed reversible error by not explicitly
discussing the opinion of Dr. Lary. (Pl.’s Mem. 11). Consistent with the discussion
above, the ALJ’s failure to explicitly mention the opinion of Dr. Lary is not an error as
long as the decision is not a broad rejection that would lead a court to conclude that the
ALJ did not consider Plaintiff’s medical condition as a whole. Dyer at 1211. Plaintiff
points to portions of Dr. Lary’s opinion that state “[her] ability to sit, stand, walk, lift,
carry, bend, and squat is impaired by lumbar disc disease and lumbar radiculopathy,” and
argues that this is evidence of her disability. (Pl.’s Mem. 10, Tr. 322). Of course, Plaintiff
acknowledges, as she must, that this statement does not indicate the degree of
impairment. (Pl.’s Mem. 10-11).

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Although the above-referenced quote does indicate an impairment, when this
statement is read in context with the rest of Dr. Lary’s report it becomes clear that
Plaintiff’s impairment is not disabling. First, Dr. Lary initially described Plaintiff as a
“generally healthy appearing white female in no acute distress.” (Tr. 320). He described
Plaintiff’s back as having no kyphosis and back musculature that appears normal to
inspection and palpation. (Tr. 321). He noted that Plaintiff was able to flex her upper
body at her waist by sixty degrees, hyperextend twenty degrees, and that her straight leg
raising test was normal. (Tr. 321). Dr. Lary observed that Plaintiff was able to: walk
normally; walk on her heels and toes; and squat and rise. (Tr. 321). The only comment
concerning a limitation in Plaintiff’s ability to move was the fact that she used both arms
to push herself upright from the squatting position. (Tr. 321). There is no indication that
Plaintiff was disabled by the lumbar disc disease and lumbar radiculopathy that Dr. Lary
diagnosed. (Tr. 322). Therefore, there is no evidentiary gap and the ALJ did not err by
not specifically mentioning Dr. Lary’s opinion.
B.

The ALJ Did Not Commit Error By Not Assigning Controlling
Weight to the Opinion of Dr. Ciaccio.

Plaintiff’s argument concerning the appropriate weight to give Dr. Ciaccio’s
opinion is confusing at best. Plaintiff urges that the ALJ of committing reversible error
by not according Dr. Ciaccio’s opinion “controlling” or “great” weight. (Pl.’s Mem 10,
12, 16). However, concerning this issue, Plaintiff only cites cases that refer to the
appropriate weight to assign a treating source. (Tr. 13). Plaintiff acknowledges that the
ALJ determined that Dr. Ciaccio did not qualify as a treating source. (Pl.’s Mem. 15).
Despite this knowledge, Plaintiff’s brief continually refers to Dr. Ciaccio as the treating
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psychiatrist. (Pl.’s Mem. 10, 12, 13). To use Plaintiff’s own language from another
section of the brief, Plaintiff “just skips, ignores, or is possibly unaware” that the ALJ
explicitly determined that Dr. Ciaccio was not a treating source. (Pl.’s Mem 10).
After carefully examining Plaintiff’s brief, the only logical conclusion the court
can reach is that Plaintiff is making either one of two arguments: either, Plaintiff is
arguing that, even though Dr. Ciaccio was not a treating physician, (1) his opinion still
deserved controlling weight, or (2) at a minimum, his opinion was not given appropriate
weight.
As to the first potential argument, Plaintiff’s brief provides no legal authority to
support that position. All of the authority that Plaintiff cites are rules for weighing a
treating physician’s opinion. (Pl.’s Mem 13). Issues raised in a perfunctory manner,
without supporting arguments and 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
briefly examine this claim.
Because Dr. Ciaccio was not a treating physician, his interactions with Plaintiff
necessarily render him an examining physician. The ALJ has no obligation to give
controlling or great weight to the opinion of an examining physician. Russell v. Astrue,
331 F. Appx. 678, 681-82 (11th Cir. 2009) (holding that the ALJ had good cause for
affording little weight to an examiner’s opinion where he appropriately found the
claimant’s other medical records failed to support the opinion and that the doctor’s own
examination contradicted his opinion). Therefore, if Plaintiff is arguing that Dr. Ciaccio’s

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opinion deserved controlling weight (even though he was not a treating physician),
Plaintiff’s argument is off the mark and the ALJ committed no error.
Plaintiff’s other possible argument is that the ALJ erred in concluding that Dr.
Ciaccio was not a treating source and therefore his opinion was not given appropriate
weight. Once again, if this is the claim, then Plaintiff presents no argument addressing
why it was a mistake for the ALJ to conclude that Dr. Ciaccio was not a treating source.
No legal authority is cited in support of this contention. Plaintiff does not even set forth
the standard to qualify as a treating physician, much less apply that standard to this case.
The Code defines a treating source as:
your own physician, psychologist, or other acceptable medical source who
provides you, or has provided you, with medical treatment or evaluation
and who has, or has had, an ongoing treatment relationship with you.
Generally, we will consider that you have an ongoing treatment
relationship with an acceptable medical source when the medical evidence
establishes that you see, or have seen, the source with a frequency
consistent with accepted medical practice for the type of treatment and/or
evaluation required for your medical condition(s). We may consider an
acceptable medical source who has treated or evaluated you only a few
times or only after long intervals (e.g., twice a year) to be your treating
source if the nature and frequency of the treatment or evaluation is typical
for your condition(s). We will not consider an acceptable medical source
to be your treating source if your relationship with the source is not based
on your medical need for treatment or evaluation, but solely on your need
to obtain a report in support of your claim for disability. In such a case, we
will consider the acceptable medical source to be a nontreating source.
20 C.F.R. § 404.1502 (2000). This definition leaves discretion to the ALJ to make the
ultimate determination of who qualifies as a treating source. The Code consistently uses
permissive rather than mandatory language in this section. Specifically, the Code states
that an ALJ “may” consider an acceptable medical source who has treated or evaluated a
claimant only a few times or only after long intervals (e.g., twice a year) to be a treating
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source if the nature and frequency of the treatment and evaluation is typical for the
claimant’s condition(s). This language is clearly permissive and does not require an ALJ
to consider a medical source who has only treated a claimant a few times to be
considered a treating source.
In this situation, Plaintiff presents no explanation as to why the ALJ was wrong to
treat Dr. Ciaccio as a non-treating source. Dr. Ciaccio only saw Plaintiff on a total of five
occasions. (Tr. 363-70, 406). The last of these visits occurred after a gap in treatment of
greater than one year. (Tr. 363, 406). Because Dr. Ciaccio only sporadically treated (or
evaluated) Plaintiff, and as there were long intervals in between some of those sessions, it
was well within the ALJ’s discretion to decide whether or not to consider Dr. Ciaccio to
be a treating source. Because the ALJ appropriately determined that Dr. Ciaccio was not
a treating source, he was not obligated to give Dr. Ciaccio’s opinion controlling weight.
Therefore, the ALJ did not commit error by concluding that Dr. Ciaccio was not a
treating source and by not according him controlling weight.
C.

Plaintiff Was Not Prejudiced When the ALJ Disallowed Plaintiff’s
Question to the Vocational Expert Regarding the Opinion of Dr.
Ciaccio.

Finally, Plaintiff argues that the ALJ committed reversible error by not allowing
her counsel to ask the vocational expert a hypothetical question regarding the opinion of
Dr. Ciaccio. (Pl.’s Mem. 10). During the hearing, the ALJ would not allow Plaintiff’s
counsel to ask the vocational expert any hypothetical questions based on the Mental RFC
form created by Dr. Ciaccio. (Tr. 48-49). The ALJ’s reasoning for this decision was the
subjective nature of the form’s term “markedly limited.” (Tr. 48). The ALJ assured
Plaintiff that Dr. Ciaccio’s opinion would be considered and would be given appropriate
16

weight. He also informed Plaintiff that Dr. Ciaccio’s opinion would not necessarily be
considered a treating source. “[I]f Dr. [Ciaccio] is a treating source, it will get the weight
a treating source deserves.” (Tr. 49). The ALJ went on to explain that the form would
have to be compared to Dr. Ciaccio’s treatment notes to determine the consistency of his
opinion. (Tr. 49).
The Code states that “[t]he administrative law judge may ask the witnesses any
questions material to the issues and shall allow the parties or their designated
representatives to do so.” 20 C.F.R. § 404.950 (2010). In Marin v. Commissioner of
Social Security, 535 F.Supp.2d 1263 (M.D. Fla. 2008), the ALJ prohibited Plaintiff’s
counsel from asking the vocational expert any questions that were not hypothetical.
Plaintiff’s counsel attempted to question the vocational expert regarding the factual basis
for the statistics she had cited. The ALJ did not allow these questions. The court
ultimately decided that this restriction prevented Plaintiff’s counsel from conducting a
meaningful cross-examination, id. at 1265, and was prejudicial to Plaintiff because the
credibility of the vocational expert could not be tested. Id.
A similar issue arose in Delker v. Commissioner of Social Security, 658
F.Supp.2d 1340 (M.D. Fla. 2009). There, the ALJ prohibited Plaintiff’s counsel from
questioning a vocational expert concerning the opinion of a treating physician’s mental
RFC assessment. Id. at 1369. The treating physician found the claimant to be “markedly
limited” in a number of categories on the form. Id. at 1356. The ALJ determined that this
opinion did not deserve much evidentiary weight because it was both internally
inconsistent and also inconsistent with earlier treatment notes. Id. at 1367. The ALJ also
stated that it was not proper to question the vocational expert about this form because the
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form did not define “markedly.” Finally, the ALJ discounted the opinion expressed on
the form because the physician only checked boxes and did not provide a medical
explanation for the limitations. Id.
The claimant in Delker argued that this inability to question the vocational expert
violated her due process rights. Id. at 1369. The court agreed and remanded the case. Id.
at 1370. In doing so, the court acknowledged that there can be no violation of due process
without a showing of prejudice. Id. The court specifically noted that “a reviewing court
should be guided by whether the record reveals evidentiary gaps which result in
unfairness or clear prejudice.” Id. The Delker court next determined that the ALJ should
not have stopped the questioning because the term “marked” was not defined on the
form. Id. at 1371. However, this mistake by the ALJ did not end the discussion; the real
issue was whether the claimant had been prejudiced by this action. Id. The court
determined that the claimant in Delker had indeed been prejudiced. Because the ALJ had
incorrectly discounted the opinion of the treating physician and then denied the claimant
the ability to question the vocational expert concerning the physician’s opinion, the ALJ
had effectively prevented the claimant from obtaining substantial evidence that there
were no jobs existing in the economy that she could perform. Id. The court found that this
lack of information constituted a gap in the evidentiary record and prejudiced the
claimant. Id.
The present case is remarkably similar to Delker. In both cases, the ALJ
prevented the claimant’s counsel from questioning a vocational expert about the opinion
of a physician. Also in both cases, the ALJ decided that these doctors’ opinions did not
deserve the weight normally given to a treating source. Both ALJs did not allow
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questioning of the vocational expert because of the subjective nature of the term
“marked.” But, again, just as in Delker, the key issue is this case is as follows: can
Plaintiff make a showing of prejudice based upon the disallowance of the question to a
vocational expert?

The court concludes she can not, and on that basis Delker is

distinguishable.
In Delker, the court determined that the ALJ erred by not giving the physician’s
opinion the weight of a treating source. Delker at 1369. Because the claimant’s counsel
was unable to question the vocational expert concerning the doctor’s opinion, it created a
gap in the evidentiary record. Id. at 1371. In this case, Plaintiff has presented no
argument to show that the ALJ erred by determining that Dr. Ciaccio’s was a nontreating source. Because this opinion was correctly given little evidentiary weight, the
fact that Plaintiff’s counsel was unable to question the vocational expert about the
opinion did not result in prejudice. No evidentiary gap was created by the lack of this
testimony. Therefore, the ALJ did not violate Plaintiff’s due process rights by limiting
the questioning of the vocational expert.
IV.

Conclusion
The court concludes that the ALJ’s determination that Samatha Lynn Hankins 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.

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DONE and ORDERED this

24th

day of September, 2012.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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