Polk v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION Signed by Judge L Scott Coogler on 08/09/2013. (MSN)

Polk v. Social Security Administration, Commissioner

Doc. 12

FILED
2013 Aug-09 PM 04:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
LARA POLK,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Lara M. Polk (“Plaintiff”), appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
her application for Period of Disability, Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”). Plaintiff timely pursued and exhausted her
administrative remedies and the decision of the Commissioner is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Plaintiff was forty years old at the time of the Administrative Law Judge’s
(“ALJ”) decision, and she has a high school education and some college course

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work. (Tr. at 162.) Her past relevant work experiences include employment as a
cook, mystery shopper, vending representative, house cleaner, shelter case worker,
apartment manager, office worker, and waitress. (Id. at 156, 167.) Plaintiff claims
that she became disabled on August 1, 2008, due to anxiety, panic attacks, asthma,
ulcerative colitis, depression, back pain, and fibromyalgia. (Id. at 151.)
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§
404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he
or she is, the claimant is not disabled and the evaluation stops. Id. If he or she is not,
the Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends on the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the
claimant’s impairments are not severe, the analysis stops. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step

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three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. pt. 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, he or she will be found disabled without
further consideration. Id. If they do not, a determination of the claimant’s residual
functional capacity (“RFC”) will be made and the analysis proceeds to the fourth
step. 20 C.F.R. §§ 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience in order to determine if he or
she can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v) 416.920(a)(4)(v). If the
claimant can do other work, the claimant is not disabled. Id.
Applying the sequential evaluation process, the ALJ found that Plaintiff met
the insured status requirements of the Social Security Act through December 31,

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2009. (Tr. At 11.) She further determined that Plaintiff has not engaged in
substantial gainful activity since the alleged onset of her disability. (Id.) According
to the ALJ, Plaintiff’s possible somatization disorder versus fibromyalgia is
considered “severe” based on the requirements set forth in the regulations. (Id.)
However, she found that this impairment neither meets nor medically equals any of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 12.)
The ALJ did not find Plaintiff’s allegations to be totally credible, and determined
that Plaintiff has the following RFC:
light work with a sit/stand option, with the following limitations: no
climbing ladders, ropes or scaffolds; no exposure to extreme heat and
humidity; avoid concentrated exposure to irritants such as fumes,
odors, dusts, gasses, and poorly ventilated areas; avoid concentrated
exposure to chemicals; no exposure to unprotected heights; no
exposure to hazardous machinery; no direct contact with the public;
and work can be around co-workers throughout the day but with only
occasional interaction with co-workers.
(Id. at 13.)
According to the ALJ, Plaintiff is unable to perform any of her past relevant
work. (Id. at 20.) Plaintiff is a “younger individual,” and she has “at least a high
school education,” as those terms are defined by the regulations. (Id.) The ALJ
determined that “transferability of job skills is not material” in this case. (Id.) The
ALJ found that Plaintiff has the residual functional capacity to perform light work.
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(Id. at 13.) Even though Plaintiff cannot perform the full range of light work, the
ALJ used the Medical-Vocation Rules as a framework supporting a finding that
Plaintiff was “not disabled,” and the ALJ found that there are a significant number
of jobs in the national economy that Plaintiff is capable of performing, such as
production assembler, electronic worker, and electronic product assembler. (Id. at
20-21.) The ALJ concluded her findings by stating that Plaintiff “was not under a
‘disability,’ as defined in the Social Security Act, at any time through the date of
this decision.” (Id. at 21.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide
facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id.

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“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,
1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the evidence
preponderates against the Commissioner’s decision, the Court must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No decision is
automatic, however, for “despite this deferential standard [for review of claims] it
is imperative that the Court scrutinize the record in its entirety to determine the
reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th
Cir. 1987). Moreover, failure to apply the correct legal standards is grounds for
reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion
Plaintiff alleges that the ALJ’s decision should be reversed and remanded for

three reasons. First, she believes that the ALJ did not give proper weight to the
opinion of Dr. Storjohann, a consulting physician. (Doc. 8 at 18.) Second, Plaintiff
contends that parts of the ALJ’s decision were not supported by substantial

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evidence, including the VE testimony, the finding that Plaintiff retains the RFC to
perform light work with limitations, the implied finding that Plaintiff’s anxiety is
not severe, and the determination that Plaintiff is not credible. (Doc. 8 at 19-27.)
Third, Plaintiff claims that the ALJ erred by considering adverse inferences from
Plaintiff’s lack of medical treatment regarding her alleged back impairment. (Doc. 8
at 28.) Plaintiff also moves for a sentence six remand based on a subsequent
psychological evaluation. (Doc. 9 at 1.)
A.

Weight Given to Dr. Storjohann’s Opinion

Plaintiff contends that the ALJ substituted her own opinion for that of Dr.
Storjohann’s. (Doc. 8 at 18.) Additionally, Plaintiff contends that the ALJ failed to
state the weight given to Dr. Storjohann’s opinion. (Id.)
1)

Substitution of the ALJ’s Opinion for that of Dr. Storjohann

A treating psychiatrist’s testimony is entitled to “substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). However, the opinion of a one-time examiner is not
entitled to the same degree of deference as a treating physician. McSwain v. Bowen,
814 F.2d 617, 619 (11th Cir. 1987). This is particularly true when the one-time
examiner’s opinion is contradicted by other medical evidence. Wainwright v.

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Comm’r of Soc. Sec. Admin., 06-15638, 2007 WL 708971, at *2 (11th Cir. Mar. 9,
2007).
Here, Dr. Storjohann was a consultative physician who completed a one-time
mental examination of Plaintiff in 2010; he was not Plaintiff’s treating physician.
(Tr. at 14.) As such, his opinion is not entitled to substantial or considerable weight.
Additionally, as the ALJ noted, Dr. Storjohann based his assessment on Plaintiff’s
subjective complaints; thus, his opinion was entitled to little weight. (Id. at 19.)
The ALJ did not substitute her opinion for Dr. Storjohann’s, but instead
relied upon the more recent psychological examination conducted by Dr. Davis in
2011. (Tr. at 357-67.) During this examination, Dr. Davis administered the
Minnesota Multiphasic Personality Inventory-II, which led to her diagnosing
Plaintiff with somatization disorder with features of mild dysthymia, and no
significant levels of depression or other symptoms. (Tr. at 363-64.) Dr. Davis also
completed a Mental Medical Source Statement, opining that Plaintiff had the
following limitations:
no limitations in her ability to understand and remember simple
instructions, no limitations in her ability to carry out simple
instructions, no limitations in her ability to make judgment on simple
work-related decisions, no limitations in her ability to understand and
remember complex instructions, a mild limitation in her ability to carry
out complex instructions, a mild limitation in her ability to make
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judgment on complex work-related decisions, and no or mild
limitations in her ability to interact appropriately with coworkers and
the public.
(Tr. at 358-59.) Additionally, the opinion of Dr. Davis was “supported by
treatment records and the claimant’s activities;” thus, the ALJ gave it great weight.
(Tr. at 19.)
The case relied upon by Plaintiff, Wilder v. Chater, is distinguishable from
the present case. 64 F.3d 335 (7th Cir. 1995). In Wilder, the ALJ disregarded a
psychiatrist’s testimony that was the only medical evidence in the case. Id. Here,
however, there are multiple opinions by multiple doctors, and there was a sufficient
basis for giving little weight to the testimony of Dr. Storjohann. Accordingly ALJ
did not substitute her opinion for Dr. Storjohann’s.
2)

The Reason for the Weight Given to Dr. Storjohann’s Opinion

There is no basis for Plaintiff’s contention that the ALJ failed to state the
weight given to Dr. Storjohann’s opinion or that she failed to state the reasons for
giving the opinion such weight, as both are explicitly stated in the record. The ALJ
noted that “Dr. Storjohann based his assessment on the claimant’s subjective
complaints, which are not supported by the records,” and therefore his opinion was
“entitled to little weight.” (Tr. at 19.)

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B.

Sufficiency of the Supporting Evidence
1)

Vocational Expert (“VE”) Hypothetical

Plaintiff claims that the VE’s testimony was not substantial evidence because
the ALJ did not consider Plaintiff’s anxiety, panic attacks, asthma, ulcerative
colitis, depression, and degenerative condition. (Doc. 8 at 19.)
The ALJ must pose a hypothetical question that includes all of the plaintiff’s
impairments in order for the VE’s response to constitute substantial evidence.
Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). However, the ALJ is not
required to include limitations in the hypothetical that she properly rejected as
unsupported. Allen v. Barnhart, 174 Fed. App’x 497, 499 (11th Cir. 2006); see also
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004). Additionally,
an ALJ must only explicitly account for limitations in concentration, persistence,
and pace when medical evidence does not “demonstrate that a claimant can engage
in simple, routine tasks or unskilled work despite limitations in concentration,
persistence, and pace.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th
Cir. 2011).
In this case, the ALJ acknowledged all of the conditions that Plaintiff alleged,
but she concluded that Plaintiff had not produced evidence to support a finding that

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she had the additional severe impairments. (Tr. at 12-14.) This conclusion is
supported by the opinion of Dr. Davis, who found mild to no limitations on jobrelated skills (Tr. at 358-59), and the opinion of Dr. Jackson, who found mild
difficulties in maintaining concentration, persistence, and pace and no episodes of
decompensation. (Tr. at 251, 261-62.)
The present case is distinguishable from Pendley v. Heckler, the case Plaintiff
relied upon. 767 F.2d 1561 (11th Cir. 1985). In Pendley, the ALJ found that the
claimant suffered from specific physical and mental problems, but failed to include
those problems in the hypothetical posed to the VE. Id. The court found this to be
reversible error. Id. Here, as stated above, Plaintiff’s alleged conditions are not
supported by the medical evidence. (Tr. at 12-14.) Thus the ALJ was not required
to include these conditions.
The record and medical evidence do not support a finding that Plaintiff had
additional functional limitations not accounted for by the ALJ’s hypothetical
question to the VE.
2)

RFC Assessment

Plaintiff contends that the ALJ’s finding that she retains the RFC to perform
light work with limitations was not supported by substantial evidence. (Doc. 8 at

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24.) In support, Plaintiff relies on Walker v. Bowen, where an ALJ summarized
certain medical reports without providing how he relied upon them, and made no
reference to other medical reports in the record. Walker v. Bowen, 826 F.2d 996
(11th Cir. 1987).
“If a claimant has more than one impairment, and none meets or equals a
listed impairment, the Commissioner reviews the impairments’ symptoms, signs,
and laboratory findings to determine whether the combination is medically equal to
any listed impairment.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002).
This requirement is met if the ALJ states that the claimant “did not have an
impairment or combination of impairments” amounting to a disability. Id. at 1224.
In the present case, the ALJ stated all of the conditions alleged by Plaintiff.
(Tr. at 14.) The ALJ concluded, however, that Plaintiff did not produce evidence
sufficient to support a finding that she had the additional severe impairments. (Tr.
at 12-14.) The ALJ relied upon the opinions of multiple experts, especially Dr.
Davis and Dr. Jackson, distinguishing this case from Walker. (Tr. at 19.)
Additionally, the ALJ specifically stated that she considered Plaintiff’s
impairments, both alone and in combination. (Tr. at 12.) Therefore, the ALJ
sufficiently assessed Plaintiff’s impairments for RFC purposes.

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3)

Non-Severe Anxiety

Next, Plaintiff claims that the implied finding that her anxiety is not severe was
not supported by substantial evidence. (Doc. 8 at 25.)
The claimant bears the burden of showing “that [she] has a medically severe
impairment or combination of impairments.” Bowen v. Yuckert, 482 U.S. 137, 146
(1987). In the Eleventh Circuit, “an impairment can be considered as ‘not severe’
only if it is a slight abnormality which has such a minimal effect on the individual
that it would not be expected to interfere with the individual’s ability to work,
irrespective of age, education, or work experience.” Brady v. Heckler, 724 F.2d 914,
920 (11th Cir. 1984). Additionally, “the ‘impairment’ must last or be expected to
last . . . not less than 12 months.” Barnhart v. Walton, 535 U.S. 212, 217 (2002).
Plaintiff has not met the burden of proving that her anxiety is severe. (Tr. at
12.) The ALJ stated that “the claimant has failed to provide sufficient evidence that
she has a medical condition that will last 12 months,” and later noted that “the
severity of the claimant’s mental impairment does not meet or medically equal the
criteria of listing 12.07.” (Id.) In making this determination the ALJ evaluated
Plaintiff’s activities of daily living; social functioning; concentration, persistence, or
pace; and episodes of decompensation. (Id.) Plaintiff was found to have mild

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restrictions or limitations in the first three areas, and no periods of
decompensation. (Id. at 12-13.)
In making the claim that her anxiety is severe, Plaintiff relies on the opinion
of Dr. Storjohann and his diagnosis of Generalized Anxiety Disorder with panic
attacks. (Doc 8. at 25-26.) However, as the ALJ noted, Dr. Storjohann based his
assessment on Plaintiff’s subjective complaints and his testimony was not credible.
(Tr. at 19.) Additionally, the examination of Dr. Davis resulted in finding no
limitations to mild limitations in common workplace activities. (Id. at 358-59.)
Accordingly, the ALJ properly considered all of the conditions alleged by Plaintiff.
(Id. at 14.)
There also remain “jobs that exist in significant numbers in the national
economy that the claimant can perform.” (Tr. at 20.) The presence of mild to no
limitations in Plaintiff’s daily life and work-related areas, combined with the
significant number of jobs available, show that the ALJ’s finding that Plaintiff’s
anxiety was not severe was supported by substantial evidence
4)

Plaintiff’s Credibility

Plaintiff contends that the ALJ’s decision that she is not credible was not
based on substantial evidence, and that the ALJ failed to provide sufficient

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explanation for the finding. (Doc. 8 at 27.)
The regulations “place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). A claimant must produce
“evidence of an underlying medical condition” as well as objective medical
evidence confirming the severity of the pain. Landry v. Heckler, 782 F.2d 1551, 1553
(11th Cir. 1986). The ALJ’s credibility determination does not have to cite
particular formulations; however, there cannot be a broad rejection that prevents
this Court from concluding that the ALJ considered the entirety of the medical
evidence. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). One factor an ALJ
considers when weighing a claimant’s subjective complaints against the medical
record is the claimant’s activities of daily living. Id. at 1212.
In this case, Plaintiff’s “extensive activities, in addition to her work
activities, are inconsistent with her alleged disability and are inconsistent with the
assessment of Dr. Storjohann and Dr. Fava.” (Tr. at 19.) Plaintiff takes care of her
three children, cleans the house, cooks, runs errands, home schools, and does all
indoor and outdoor chores. (Id. at 18, 177-81.) She reads, attends church, and
interacts with her family. (Id.) Plaintiff cleaned houses and occasionally babysat for

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pay, though neither of these amounted to substantial gainful activity for the period
of time in question. (Id. at 11, 19.)
Plaintiff also made inconsistent statements regarding her work history.
Plaintiff told Dr. Iyer during her examination that she had not worked in five years.
(Id. at 346.) Plaintiff then later testified that she did some work in 2010. (Id. at 3536.) The ALJ found that these inconsistent statements undermined Plaintiff’s
credibility. (Id. at 19.)
Also, as noted by the ALJ, “the claimant’s subjective allegations of record
regarding her symptoms and limitations exceed the minimal objective findings of
abnormality documented in the medical evidence.” (Id.) Specifically, Dr. Davis
opined that Plaintiff had mild or no limitations in work-related areas, which
weakens Plaintiff’s credibility. (Id. at 363-64.) Dr. Davis also opined that Plaintiff is
likely an individual with a mild-to-moderate level of dysphoria, tension, and worry,
but no significant levels of depression or other symptoms. (Id. at 17, 363-64.)
Therefore, Plaintiff’s claims are not supported by her daily activities or the medical
record, and as such the ALJ properly supported her decision that Plaintiff’s claims
are not credible.
C.

Adverse Inferences

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Next, Plaintiff contends that the ALJ improperly drew adverse inferences
from the lack of medical treatment about her impairment of degenerative changes
of the lumbar spine. (Doc. 8 at 28.)
Plaintiff reported daily activities that do not support a finding of severe
impairments or functional limitations, including driving, home schooling her
daughter, cooking, cleaning, grocery shopping, and engaging in outdoor and indoor
chores. (Tr. at 177-81, 242-43, 363.)
The ALJ reviewed the medical evidence of record and based her conclusion
that Plaintiff’s back impairment was not severe on benign objective findings that
occurred during a medical examination. (Tr. at 11-12.) During her examination with
Dr. Iyer, Plaintiff was in no acute distress and had normal range of motion of the
cervical spine, lumbar spine, hips, knees, ankles, elbows, wrists, and fingers. (Tr. at
346.) There was no evidence of swelling or deformity, and Tinel’s and Phalen’s
signs were also normal. (Id.) Dr. Iyer opined that Plaintiff’s perceived pain was
disproportional to the objective evidence revealed by examination. (Tr. at 347.)
Based on Plaintiff’s own reported daily activities, as well as the finding of a nonsevere back impairment in the medical records, the ALJ did not improperly draw
adverse inferences in regards to Plaintiff’s alleged back impairment.

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D.

Sentence Six Remand

Finally, Plaintiff moved for a “sentence six” remand for consideration of Dr.
David Wilson’s report. Plaintiff argues that Dr. Wilson’s report is important
because he “broke the tie” between two previous psychological evaluations by the
Commissioner. (Doc. 11 at 4.) The report, from a June 17, 2012 examination, was
not available on the date of the ALJ hearing, October 28, 2011, or prior to the Final
Decision of the Appeals Council. (Doc. 9 at 2.)
Under sentence six, “the court may remand the case to the Commissioner of
Social Security for further action . . . and it may at any time order additional
evidence to be taken.” 42 U.S.C. § 405(g). However, this additional evidence may
be taken “only upon a showing that there is new evidence which is material and
that there is good cause for the failure to incorporate such evidence into the record
in a prior proceeding.” (Id.)
Plaintiff submits a consultative examination report dated eight months after
the ALJ’s decision as grounds for a sentence six remand. A similar situation arose
previously in Wilson v. Apfel, 179 F.3d 1276 (11th Cir. 1999). There, the court found
the evidence irrelevant. Id. at 1278. “We review the decision of the ALJ as to
whether the claimant was entitled to benefits during a specific period of time, which

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period was necessarily prior to the date of the ALJ’s decision.” Id. at 1279. The
court held that while the new evidence, a doctor’s opinion from one year after the
ALJ’s ruling, may have been relevant to whether a deterioration in Plaintiff’s
condition subsequently entitled her to benefits, it was not probative to the case on
which the ALJ had ruled. Id.
As in Wilson, the new report from Dr. Wilson is irrelevant because it was
created eight months after the ALJ’s decision and does not in any way refer back to
the period for which Plaintiff seeks disability benefits. Accordingly, Plaintiff’s
motion to remand pursuant to sentence six is due to be denied.
IV.

Conclusion
Upon review of the administrative record, and considering all of Plaintiff’s

arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered.
Done this 9th day of August 2013.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
171032

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