Barnes v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 3/22/2016. (KAM, )

FILED
2016 Mar-22 PM 04:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JANA BARNES,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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) No. 4:14-cv-02229-JEO
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MEMORANDUM OPINION
Plaintiff Jana Barnes brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final decision of the Acting Commissioner of Social Security
(“Commissioner”) denying her application for disability insurance benefits
(“disability benefits”) and supplemental security income (“SSI”). The case has
been assigned to the undersigned United States Magistrate Judge pursuant to the
court’s general order of reference. Upon review of the record and the relevant law,
the undersigned finds that the Commissioner’s decision is due to be affirmed.
I.

PROCEDURAL HISTORY

On January 27, 2011, Plaintiff filed an application for disability benefits and
SSI, alleging disability beginning March 14, 2007. (R. 51). 1 Her claims were

1

References herein to “R. ___” are to the electronic record found at document 8.
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denied on April 11, 2011. On April 28, 2011, Plaintiff requested a hearing with an
Administrative Law Judge (“ALJ”). An initial hearing was held on May 11, 2012,
before Judge Michael Brownfield. Testimony was presented by medical expert Dr.
James Anderson as well as Jerry Keith Haney, Plaintiff’s brother (R. 51).
A second hearing was held on January 4, 2013. At this hearing, testimony
was presented by Janice Fox, Plaintiff’s mother, and vocational expert James Hare.
Following that hearing, the ALJ issued a decision, finding that Plaintiff was not
disabled within the meaning of the Social Security Act (R. 51-63). Plaintiff then
requested that the Appeals Council review the ALJ’s decision. That request was
denied on September 20, 2014. (R. 1-5). On that date, ALJ Brownfield’s decision
became the final decision of the Commissioner. (R. 1). This action followed
pursuant to 42 U.S.C. § 405(g).
II.

STANDARD OF REVIEW

The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the decision of
the Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson
v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This court must “scrutinize the
record as a whole to determine if the decision reached is reasonable and supported
by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

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1983). Substantial evidence is, “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Id. It is, “more than a scintilla,
but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If
the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, it must reverse the ALJ’s decision. Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III.

STATUTORY REQUIREMENTS AND DEFINITIONS

For a claimant to be entitled to disability and SSI benefits, she must be
disabled as that term is defined in the Social Security Act. 42 U.S.C. §
423(d)(1)(A) defines disability as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” Additionally, pursuant to
42 U.S.C. § 423(d)(2)(A), a claimant is not disabled unless their disability, when
considered along with their age, education, and work experience, prevents them

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from performing some sort of substantial gainful work at a job which exists in the
national economy.
III. STATEMENT OF FACTS
Plaintiff was 35 years old on her alleged disability onset date of March 14,
2007. (R. 62, 211). She has a ninth grade education and has semi-skilled past
relevant work history as a certified nurse assistant, cashier/stocker, and kennel
assistant. (R. 62, 98-100, 216-17, 234-40). Her medical history includes remote
seizures – the last one was in 2006, compression fractures in her back also dating
to 2006, migraine headaches that are under control via medication, and
cardiovascular issues including a mild heart attack in 2010. (Id. at 54, 60, 117).
She applied for disability benefits and was denied the same in 2007. (Id. at 118).
The ALJ determined that she has severe impairments, including chronic
back pain, chronic myalgia, coronary artery disease, and major depressive disorder.
(R. 53). Plaintiff complains her side effects from medication include problems
with long and short term memory and persistent fatigue. (R. 105-06). She is
generally inactive and complains of depression. (R. 107-09, 112).
The ALJ determined that Plaintiff has the residual functional capacity
(“RFC”) to perform light work with “a sit/stand option” and other restrictions. (R.
59). Based on vocational expert testimony, the ALJ also determined that “there are

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jobs that exist in significant numbers in the national economy that [Plaintiff] can
perform.” (R. 62-63, 82-86).
The ALJ further determined that Plaintiff was not under a disability from her
alleged onset date until the date of the decision. (R. 63). Accordingly, he
concluded that she was not entitled to benefits under the Act. (Id.)
IV.

REVIEW AND FINDINGS

Plaintiff alleges that the ALJ erred in his decision making in that (1) he
failed to obtain a neuropsychological evaluation (“NPE”) of her, and (2) he did not
have medical expert Dr. James Anderson testify about the inconsistencies in Dr.
Christopher Randolph’s reports. (Doc. 14 at 11). The Commissioner retorts that
Plaintiff has not satisfied her burden of demonstrating that she is disabled. (Doc.
15 at 3). Additionally, she notes that “Plaintiff does not dispute that the ALJ’s
RFC finding fully accommodates the limitations from her physical impairments.”
(Id. at 4).
A.

NPE

Plaintiff argues that the ALJ’s duty to develop a full and fair record
mandates that he obtain “neuropsych testing” and not just a “consultative pscyh
exam.” (Doc. 14 at 12). The Commissioner responds that a consultative
examination was not necessary because the record is “more than sufficient to
support the ALJ’s decision on Plaintiff’s claim.” (Doc. 15 at 4).

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The law is clear that Plaintiff bears the burden of proving that she is
disabled. Ellis v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.2003) (“claimant bears
the burden of proving that he is disabled, and, consequently, he is responsible for
producing evidence in support of this claim.”). Additionally, as noted above, an
ALJ’s findings need only be supported by substantial evidence.
The record reflects that while Plaintiff complained of disabling mental
health symptoms, she was treated with medication and she received no inpatient or
outpatient psychiatric treatment. (R. 57, 431). The ALJ had Plaintiff
consultatively examined on two occasions – once by a psychologist and once by a
psychiatrist. In March 2011, consulting psychologist Dr. Robert Summerlin found
that Plaintiff’s mental health status was normal. He identified no issues with
regard to her memory, attention, or concentration. (Id. at 56, 431-32). He also
found at she was suffering from depressive disorder and that she had a GAF Score
of 60, meaning she had only moderate symptoms and limitations. (Id. at 56).2
During Plaintiff’s previous claim in 2007, Dr. David Wilson noted that
Plaintiff had, among other things, a “significant impairment in aspects of her shortterm memory, and she has a very impaired working memory…” with a GAF of 45.
2

Dr. Robert Estock, a State agency psychologist consultant, completed a Psychiatric Review
Technique form concerning Plaintiff on April 4, 2011. Therein, he concluded that Plaintiff was
not suffering any sever mental impairments. (R. at 435-447). He also stated that Plaintiff’s
“allegation of some mental symptoms are partially credible, and the severity of symptoms is
inconsistent with the objective medical findings.” (Id. at 447). The ALJ rejected Dr. Estock’s
opinion finding no severe mental impairment. (Id. at 58).
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(Id. at 57, 118). Premised on this notation, the ALJ in the present case stated he
would refer Plaintiff for further mental health testing. (Id. at 57, 119). Because of
this, the ALJ in August 2012 ordered additional psychological evaluation that was
done by Dr. Christopher Randolph. (Id. at 57). In his opinion, the ALJ found as
follows concerning Dr. Randolph’s evaluation:
Dr. Randolph’s report on his mental status examination of [Plaintiff]
was cursory. His diagnostic impressions were major depressive disorder;
recurrent, panic disorder; and borderline personality disorder. He raised a
question of borderline intellectual functioning and learning disability;
however, his evaluation of [Plaintiff] does not support these diagnoses, nor
are these diagnoses supported by the record as a whole. Dr. Rudolph
assigned a GAF of 50, meaning moderately severe symptoms and
limitations, although a GAF of 51 would be in the moderate symptoms and
limitations range. He provided that he saw no impairments in “reality
testing” that would preclude employment but that [Plaintiff] had
impairments that would be a limiting factor” in finding and maintaining
employment. He noted that although [Plaintiff] reported a long history of
symptoms, she had not sought psychiatric help.
(R. at 57, 507-08). Dr. Randolph also completed a Medical Source Statement at
about the same time wherein he concluded that Plaintiff’s “ability to understand,
remember, and carry out instructions was not affected. Nor was her ability to
interact appropriately with supervisors, coworkers, and the public, as well as
respond to changes in a routine work setting.” (R. at 57, 509-11).
When Plaintiff’s representative questioned Dr. Randolph’s assessment,
particularly when compared to Dr. Wilson’s earlier assessment, the ALJ noted that
Plaintiff “mischaracterizes Dr. Rudolph’s report. Dr. Rudolph did not find ‘no

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impairment in testing that would preclude employment,” but found “no impairment
in reality testing that would preclude employment.” (R. at 57 (emphasis in
opinion)). The ALJ further found:
Dr. Rudolph did find that [Plaintiff] had impairments that would be a
“limiting factor” in finding and maintaining employment…. He did not find,
however as implied…, that [Plaintiff’s] impairments would entirely preclude
employment. I have in fact indicated significant limitations in the below
residual functional capacity based upon [Plaintiff’s] mental impairments.
Moreover, although [Plaintiff] has been treated for her psychological
symptoms by her primary care providers, there is no evidence of formal
inpatient or outpatient psychiatric treatment in the record. The treatment of
[Plaintiff’s] mental health symptoms by her primary care providers has been
routine and conservative in nature. The allegations that [Plaintiff] received
psychiatric treatment as a teenager are not supported by objective medical
evidence in the record…. The … implication that Dr. Rudolph was unaware
of or ignored evidence of psychiatric treatment in the record is unfounded. I
do agree … that Dr. Rudolph’s Medical Source Statement is not entirely
consistent with his report.
(R. at 58). Following the foregoing analysis, the ALJ concluded:
…. Although I find that [Plaintiff’s] mental impairments cause
moderate functional limitations, I conclude that the record as a whole
suggests that [Plaintiff] has exaggerated her symptoms as well as medication
side effects for disability purposes. In terms of opinion evidence, I find that
the opinions of both Dr. Summerlin and Dr. Rudolph are entitled to some
weight to the extent consistent with the below residual functional capacity
and to the extent that both found at most moderate limitations….
(Id.)
The Commissioner argues that this evidence is more than sufficient to
support the ALJ’s decision concerning Plaintiff’s claim. (Doc. 15 at 6). She also
states that “the only basis for Plaintiff’s argument that the ALJ should have

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obtained an NPE rather than Dr. Randolph’s psychiatric examination is medical
expert Dr. Anderson’s testimony at the first hearing…. However, Dr. Anderson’s
testimony did not mandate that the ALJ arrange an NPE….” (Id. at 6 (citations
omitted)).
The court agrees with the Commissioner for a number of reasons. First, the
consultants’ findings provide substantial evidence supporting the ALJ’s decision.
Dr. Randolph noted that he saw no impairment in “reality testing” that would
preclude employment but found that Plaintiff’s impairments would be a “limiting
factor” in finding and maintaining work. (R. at 508). He further indicated,
however, that Plaintiff had unaffected abilities to understand, remember, and carry
out instructions; interact appropriately with others; and respond to changes in a
routine work setting. (Id. at 509-10).
Second, the only basis for a NPE is grounded in the opinion of Dr.
Anderson, which did not mandate a NPE. Testifying at Plaintiff’s hearing, Dr.
Anderson, who is a medical physician and not a psychologist or psychiatrist, stated
that Plaintiff’s treating physician had wanted a NPE but was unable to have one
done due to financial difficulties. (R. 116-17). Dr. Anderson felt Plaintiff needed
to be evaluated further. (Id. at 118). Contrary to Plaintiff’s assertion, he did not
“opine[] that he could not express his medical opinion concerning [Plaintiff’s]
mental health impairments because they had not [been] fully evaluated.” (See Doc.

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14 at 10). He felt Plaintiff’s situation needed to be further evaluated. (R. at 118).
When the ALJ asked Dr. Anderson whether he thought Plaintiff should have an
NPE or a psychiatric examination, he stated, “I think the [NPE] would be helpful
to her in more than one way, although we’re basically talking a disability hearing.
But, her treating physicians would be helped by having a copy of an [NPE] in her
file.” (Id. at 116). Dr. Anderson did not opine that an NPE was required. Nor did
he indicate that a psychiatric examination would be inadequate. His preference for
an NPE appears to be premised on Plaintiff’s treatment needs. When the ALJ
indicated a neuropsychologist might not be available and he might sent Plaintiff to
“a psychiatrist CE” with a copy of Dr. Wison’s report and a reliable longitudinal
historian, Dr. Anderson agreed that that would be appropriate. (Id. at 119). Dr.
Anderson also indicated that Plaintiff needed to be “under the case of mental health
professionals to maximize the impact of her functioning” instead of “a family
doctor writing a pill [prescription].” (Id.)
Third, even if it is assumed that Dr. Anderson indicated that an NPE was
necessary, the ALJ was not required under the circumstances to order such. An
ALJ is charged with the responsibility of developing the record, evaluating the
relevant evidence, and assessing a claimant’s RFC. See 20 C.F.R. §§
404.1545(a)(1)& (3), 404.1546(c), 416.945(a)(1) & (3), 416.946(c); SSR 96-8p,
1996 WL 374184. The ALJ’s decision in this case to seek a psychiatric

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examination instead of an NPE is appropriate in view of the foregoing. Plaintiff
has not demonstrated otherwise.
Fourth, in evaluating Plaintiff, Dr. Randolph, a mental health specialist, did
not require or even request an NPE. There is no suggestion in the record that he
believed an NPE was necessary to further assess Plaintiff’s disability status.
B.

Inconsistencies in Dr. Randolph’s Report

Plaintiff also complains that the ALJ did not have Dr. Anderson testify about
the inconsistencies in Dr. Randolph’s reports. (Doc. 14 at 11). Specifically,
Plaintiff argues that “[i]f the ALJ felt the need to have a medical expert at both
hearings, he should have consulted the medical expert during both hearings. He
should not have jumped to medical conclusions.” (Id.) This is the full extent of
his argument on this matter.
An “ALJ has a duty to develop the record fully and completely.” Wilson v.
Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999). However, he is not “obligated to seek
independent, additional expert medical testimony where the evidence is sufficient
to support” his decision in this instance. Id. The evidence, including the
consultants’ reports and Plaintiff’s history of conservative treatment, supports the
ALJ’s decision. The ALJ was not required to seek any additional input from Dr.
Anderson. This is particularly true where the ALJ noted “that Dr. Rudolph’s
Medical Source Statement is not entirely consistent with his report.” (R. 58). The

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ALJ noted the inconsistency in Randolph’s analysis of the medical evidence and
properly determined her RFC as he was required to do. See Robinson v. Astrue,
365 F. App’x 993, 999 (11th Cir. 2008) (“We note that the task of determining a
claimant’s residual functional capacity and ability to work is within the province of
the ALJ, not of doctors.”). Contrary to Plaintiff’s assertion, the ALJ did not “jump
to medical conclusions.” (Doc. 14 at 11). His decision reflects his intent to seek a
necessary medical opinion to develop the record and assess Plaintiff’s situation.
Additionally, the court finds that the record does not include any evidence
that Plaintiff has sought mental health treatment of a sort one would expect from a
person whose mental illnesses are so severe as to render her disabled.3 (R. 58).
The ALJ also noted that “the record does not contain any opinions from treating
physicians indicating that [Plaintiff] is disabled or even has limitations greater than
those determined by [the ALJ’s] decision.” (Id.) The record supports the ALJ’s
finding that Plaintiff’s symptoms are not as severe as she claims. (Id.) The
objective medical evidence does not indicate that, when properly treated, the
depressive episodes make Plaintiff incapable of performing substantial gainful
activity.

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To the contrary, Dr. Randolph, who performed the most recent psychiatric evaluation on
Plaintiff, described her lack of psychiatric treatment as “interesting” in light of her report to him
of a “long history of symptoms” (R. 508).
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While Plaintiff has sought some mental health services, particularly from
May 2013 until February 2014, they have only consisted of brief, cursory, halfhour counseling visits with a social worker. (R. 18-42). 4 Plaintiff further claims
that she received inpatient psychiatric treatment as a teenager, though no
documentary evidence in the record supports this claim. Even if this information is
accurate, that treatment would have been received many, many years prior to her
period of alleged disability, which began in March 2007. All of this evidence and
information leads the court to conclude that while Plaintiff may have mental health
issues requiring treatment, the ALJ reached the proper conclusion on the present
record, finding that her situation is not so severe as to render her disabled within
the definition Social Security Act. At worst, according to Dr. Randolph’s
evaluation, her mental health issues constitute a “limiting factor” in Plaintiff’s
ability to find and maintain gainful employment. (R. 508).
VI.

CONCLUSION

For the reasons set forth above, the undersigned concludes that the
Commissioner’s decision is due to be affirmed.

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The court also notes that the therapy session records from CED Mental Health Center
repeatedly indicate that Plaintiff was encouraged to find personal and social activities outside of
the home that would occupy her time and possibly assist with her depression. These same notes
contain little evidence that Plaintiff complied with the recommendation. (R. 18-42).
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DONE, this the 22nd day of March, 2016.

_________________________________
JOHN E. OTT
Chief United States Magistrate Judge

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