Westphal v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 5/17/2017. (KAM, )

FILED
2017 May-17 AM 10:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
CATHERINE WESTPHAL,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

)
)
)
)
) Case No. 4:16-cv-00059-JEO
)
)
)
)
)
)

MEMORANDUM OPINION
Plaintiff Catherine Westphal brings this action pursuant to Section 205(g) of
the Social Security Act (42 U.S.C. § 405(g)), seeking review of the final decision
of the Acting Commissioner of Social Security (“Commissioner”) 1 denying her
application for disability insurance benefits. (Doc. 1).2 The case has been
assigned to the undersigned United States Magistrate Judge pursuant to this court’s
general order of reference. The parties have consented to the jurisdiction of this
1

Nancy A. Berryhill was named the Acting Commissioner on January 23, 2017. See
https://www.ssa.gov/agency/commissioner.html. Under 42 U.S.C. § 405(g), “[a]ny action
instituted in accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil
Procedure, the Court has substituted Nancy A. Berryhill for Carolyn W. Colvin in the case
caption above and HEREBY DIRECTS the clerk to do the same party substitution on CM/ECF.
2

References herein to “Doc(s). ___” are to the document numbers assigned by the Clerk of the
Court to the pleadings, motions, and other materials in the court file, as reflected on the docket
sheet in the court’s Case Management/ Electronic Case Files (CM/ECF) system.

court for disposition of the matter. (Doc. 9). See 28 U.S.C. § 636(c), FED. R. CIV.
P. 73(a). Upon review of the record and the relevant law, the undersigned finds
that the Administrative Law Judge (“ALJ”) properly developed the record and was
correct in his decision that Plaintiff did not have a medically determinable
impairment to qualify for disability insurance benefits. Upon consideration, the
court finds that the Commissioner is due to be affirmed.
I. PROCEDURAL HISTORY
On March 19, 2012, Westphal protectively filed an application for disability
insurance benefits and supplement security income benefits, alleging disability
beginning on March 10, 2012. (R. 135-42, 167).3 Westphal was initially denied
benefits on June 1, 2012 (R. 69-73), and requested a hearing before an ALJ on July
20, 2012. (R. 84-86). A hearing was held on January 15, 2014. (R. 25-45). The
ALJ denied Westphal’s claim on April 11, 2014. (R. 10-24). The Appeals
Council denied review. (R. 1-3). Westphal then filed this action under § 405(g).
(Doc. 1).
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
Commissioner’s decision is supported by substantial evidence and whether proper
3

References herein to “R.___” are to the page numbers of the administrative record, which is
located at documents 5-1 through 5-11.
2

legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The
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. 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. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits under the Social Security Act, a claimant
must show 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
3

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. §
1382(a)(3)(A). A physical or mental impairment is “an impairment that results
from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382(a)(3)(D).
Determination of disability under the Social Security Act requires a five step
analysis. 20 C.F.R. §§ 404.1520(a)(4). Specifically, the Commissioner must
determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a sever medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014)4 (citing 20
C.F.R. § 404.1520(a)(4)). Plaintiff bears the burden of proving that she was
disabled within the meaning of the Social Security Act. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005). The applicable “regulations place a very heavy
burden on the claimant to demonstrate both a qualifying disability and an inability
to perform past relevant work.” Id.

4

Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered binding
precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
4

IV. FINDINGS OF THE ALJ
Plaintiff was 24 years old on the date of the ALJ’s decision. (R. 20, 167).
Plaintiff has a high school education and past work as a front desk clerk and
cashier. (R. 41-42, 172). Plaintiff alleges that she was disabled due to a broken
left foot, broken left ankle, right femur operation, several broken ribs, and infection
in the mouth. (R. 171). At her hearing, Plaintiff requested that she be treated as a
“closed period” claimant for the period from February 10, 2012 to December
2013.5 (R. 13).
Plaintiff associates many of her alleged problems to a motor vehicle accident
on March 10, 2012, but the evidence indicates that she recovered from her accident
within a short period of time and did not experience any long-lasting functional
limitations. Because of the accident, Plaintiff experienced fractures in her right leg
and left foot. (R. 226-28, 243-49, 252-53). There was no evidence of trauma in
the chest, abdomen, neck, or pelvis. (R. 250-51). Plaintiff had surgery to repair a
fracture in her right leg, and was discharged from the hospital on March 15, 2012.
(R. 226-27). At the beginning of April, Plaintiff underwent surgery to repair the
fractures in her left foot. (R. 233-34, 261-62). Two-weeks later, Dr. Ashish Shah
5

“In a ‘closed period’ case, the decision maker determines that a new applicant for disability
benefits was disabled for a finite period of time which started and stopped prior to the date of his
decision. Typically, both the disability decision and the cessation decision are rendered in the
same document.” Pickett v. Bowen, 833 F.2d 288, 289, n.1 (11th Cir. 1987).
5

stated that Plaintiff was doing well post-operatively and that he would place
Plaintiff in a non-weight bearing cast for four weeks. (R. 236).
In May 2012, Dr. Zakir Khan performed a consultative examination, and
found Plaintiff had the ability to sit, lift, carry, handle objects, hear, speak, and
travel but that standing and walking would be difficult until treatment of her left
foot injury was completed. (R. 276). In June 2012, Dr. Robert Estock, a state
agency consultant, found that Plaintiff had no severe mental limitations or
restrictions in mental functioning. (R. 51). In September 2012, Dr. Shah
performed surgery to remove the hardware in Plaintiff’s left foot. (R. 291-93, 31112).
Plaintiff received periodic treatment from Dr. James Tuck in 2012 and 2013.
(R. 546-60). Plaintiff sought medication refills for attention deficit disorder
(“ADD”), but did not report any ongoing psychological symptoms. (R. 540-60).
Plaintiff continued to take college courses during this time. (R. 33).
In July 2013, Dr. Tuck examined Plaintiff and found she had a normal
neurological function, normal sensation and coordination in all extremities, and
normal range of motion without pain in both lower extremities. (R. 550). Dr.
Tuck noted Plaintiff was alert and oriented, could recall recent and remote events,
had an appropriate mood and affect, and had an intact fund of knowledge. (Id.) In

6

September 2013, Dr. Tuck found Plaintiff maintained normal neurological,
musculoskeletal, and psychological examinations. (R. 546-47).
In evaluating Plaintiff’s application, the ALJ applied the five-step sequential
evaluation process for determining whether a claimant is disabled. (R. 15-20).
The ALJ first found that Plaintiff has not engaged in substantial gainful activity
since the alleged onset date. (R. 15). After reviewing the medical evidence and
testimony presented at the administrative hearing, the ALJ determined that
“although the records reveal [Plaintiff] suffered severe impairments in a motor
vehicle accident in March 2012, the records do not satisfy the requirement that an
impairment must last twelve months, particularly in light of her lack of treatment
from September 2012 until July 2013.” (R. 19). Although Plaintiff had seen Dr.
Tuck several times between September 2012 and July 2013, the ALJ found that the
record does not reveal any further complications or treatment for her right leg or
left foot, and Plaintiff experienced normal neurological and musculoskeletal
examinations. (R. 19, 546-60).
V. DISCUSSION
Plaintiff alleges the ALJ committed the following errors: First, the ALJ did
not obtain a December 2013 treatment note from Dr. Shah that Plaintiff’s attorney
mentioned during the hearing. (Doc. 7 at 6-7). Second, the ALJ did not order a
second physical consultative examination to be performed by Dr. Khan, whose
7

initial assessment was less than three months following Plaintiff’s injury. (Id. at
7). Third, the ALJ failed in his duty to fully develop the record because he “asked
no questions of Plaintiff pertaining to [her] mental impairments, nor did he
undertake any other development of the record regarding those impairments.” Id.
Taken together, Plaintiff alleges this shows that the ALJ failed to develop a full
and fair record, requiring remand. (Id. at 8-9).
As stated above, the Commissioner follows a five-step sequential evaluation
process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). Plaintiff has the burden of establishing the existence of a disability
under the first four steps and is responsible for producing evidence in support of
her claim. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The Social
Security Act defines disability as “the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
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). Both the impairment(s) and the
inability to work must last for at least twelve consecutive months. Barnhart v.
Walton, 535 U.S. 212, 217-20 (2002).
In determining whether a claimant is disabled, an ALJ considers the medical
opinions in the record together with the other relevant evidence. 20 C.F.R. §
404.1527(c). The ALJ evaluates “every medical opinion” regardless of its source.
8

Id. In deciding the weight to give to a medical opinion, the ALJ is to consider (1)
whether the opinion’s source examined the claimant; (2) whether the source has a
treating relationship with the claimant; (3) the relevant evidence supporting the
opinion, particularly medical signs and laboratory findings; (4) the extent to which
the opinion is consistent with the record as a whole; and (5) whether the opinion is
related to the source’s specialization. Id. The ALJ need not explicitly mention
each of these factors in his written decision. Lawton v. Comm’r of Soc. Sec., 431
F. App’x 830, 833 (11th Cir. 2011). Weighing the evidence is the ALJ’s duty, and
the court may not “decide the facts anew, reweigh the evidence, or substitute its
judgment for that of the Commissioner.” Mitchell v. Comm’r of Soc. Sec., 771
F.3d 780, 782 (11th Cir. 2014) (citing Winchel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1178 (11th Cir. 2011)).
1. Absence of Dr. Shah’s December 2013 Treatment Note
Plaintiff initially claims that the ALJ erred in failing to obtain documentation
of her December 20, 2013 visit with Dr. Shah, which purportedly shows that he
had recommended additional surgery to fuse affected bones in her left foot. (Doc.
7 at 6). Specifically, she says the ALJ made no effort to obtain any of her records
that would “substantiate the existence of a medically determinable impairment.”
(Id.)

9

In Norton v. Comm’r of Soc. Sec., 607 F. App’x 913, 915 (11th Cir. 2005),
the Eleventh Circuit set forth the relevant guiding principles:
“It is well-established that the ALJ has a basic duty to develop a full
and fair record.” Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995).
Consequently, the ALJ must “‘scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.’” Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (quoting Cox v.
Califano, 587 F.2d 988, 991 (9th Cir. 1978)). The ALJ must consider
all of the impairment evidence presented at the hearing, stating the
weight accorded to each item and the reasons for accepting or
rejecting the evidence. Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th
Cir. 1990).
Additionally, the court recognizes that an ALJ is not required to discuss every
piece of evidence in detail. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.
2005) (stating “there is no rigid requirement that the ALJ specifically refer to every
piece of evidence in his decision, so long as the ALJ’s decision, … , is not a broad
rejection which is ‘not enough to enable [the district court or this Court] to
conclude that [the ALJ] considered her medical condition as a whole.’” (quoting
Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995) (internal quotation omitted)).
The test for determining whether an ALJ committed error in failing to develop a
record requires “a showing of prejudice before it is found that the claimant’s right
to due process has been violated to such a degree that the case must be remanded
to the Secretary for further development of the record.” Graham v. Apfel, 129 F.3d

10

1420, 1423 (11th Cir. 1997). The court should be guided by whether the record
reveals evidentiary gaps which result in unfairness or “clear prejudice.” Id.
During the hearing, the ALJ afforded Plaintiff 30 days to submit additional
medical records, including Dr. Shah’s note from December 20, 2013. (R. 29-31).
As best as the court can discern, the additional medical information was never
submitted.
Plaintiff has failed to demonstrate how the ALJ’s 30-day extension was
“clearly prejudicial” to resolving any evidentiary gaps to substantiate the existence
of a medically determinable impairment in her case. The burden is on Plaintiff to
produce evidence to support her claim, and the ALJ met his basic duty to fully and
fairly develop the record by agreeing to hold the matter open for 30 days to receive
and examine any assessment and treatment records from Dr. Shah. See 20 C.F.R. §
404.950(d). (R. 29). Plaintiff’s counsel stated that he had already ordered the
records. He did not request any assistance from the ALJ to obtain the records. (R.
30). Counsel did not ask for any further extensions and he did not submit anything
additional for the record. The court finds that the ALJ met his obligation by
agreeing to keep the record open for the additional evidence and because the record
evidence supports his conclusion that Plaintiff did not suffer from a medically
determinable impairment or impairments entitling her to benefits.

11

Moreover, Plaintiff has failed to establish how this single treatment note
from 21 months after the initial accident would have changed the ALJ’s
determination that Plaintiff did not have a medically determinable impairment that
lasted 12 months. Graham v. Apfel, 129 F.3d at 1423 (holding medical records,
along with the ALJ’s questioning, were sufficient for the ALJ to evaluate
Plaintiff’s impairments and Plaintiff failed to point to anything in the record to
demonstrate prejudice due to a gap in evidence which may have warranted
additional medical evidence). The purpose of the December treatment note from
Dr. Shah purportedly was to provide evidence that Plaintiff’s impairment required
additional surgery. (R. 30). In his decision, the ALJ noted that Plaintiff requested
“closed period” consideration from February 10, 2012 to December 2013. (R. 13).
There was sufficient medical testimony already in the record for the ALJ to
evaluate Plaintiff’s physical injuries. And that is exactly what he did. For these
reasons, Plaintiff’s claim that the ALJ failed to fully develop the record regarding
Dr. Shah’s December 2013 treatment note fails to demonstrate the requisite
prejudice to warrant relief.
2. The Failure to Order a Second Physical Consultative Examination
Plaintiff next contends that the ALJ failed to fully develop the record when
he discounted the findings and opinions of Dr. Khan’s May 29, 2012 examination
and when he did not schedule a second consultative examination to address the
12

short-coming he identified. (Doc. 7 at 7). This contention fails to establish error
on the part of the Commissioner for a number of reasons. First, the ALJ did not
discount the findings of Dr. Khan. (R. 18). Rather, the ALJ stated that “Dr.
Khan’s assessment is accorded some weight; however, his assessment was less
than three months following the claimant’s injury.” (Id.) 20 C.F.R. §§
404.1527(c) affords the ALJ discretion when evaluating the weight to be given to
medical opinions contextualized to the nature of the diagnosis. The ALJ concluded
that Dr. Khan’s evaluation, as well as the other evidence, failed to demonstrate that
Plaintiff suffered from a medically determinable impairment that lasted twelve
months. (R. 17-19). Specifically as to Dr. Khan, the record provides:
Examination revealed normal range of motion of all joints of the
upper and right lower extremities with no erythema, warmth, swelling,
or joint deformity. Left hip extension, internal rotation, and external
rotation were normal, and left hip flexion was decreased as well as left
knee and ankle range of motion. Dexterity and grip strength of the
hands was normal. Motor and sensory examination was intact in all
extremities, and deep tendon reflexes were equal and symmetrical
bilaterally. She was currently using a walker and wearing an
orthopedic ankle boot. She was unable to test tandem, heel, or toe
walking due to partial weight bearing status of the left lower limb.
Dr. Kahn diagnosed attention deficit disorder, post traumatic injury to
the right femur treated with open reduction and internal fixation, and
complex mid foot fracture dislocation currently being surgically
treated. She demonstrated an ability to sit, lift, carry, handle objects,
hear, speak, and travel; and standing and walking were reported to
presently be difficult for her and would be until treatment of the left
foot injury was final…
(R. 17-18).

13

Second, the decision to obtain a second consultative examination is
discretionary and is required only where the record is inconsistent or insufficient.
See 20 C.F.R. §§ 404.1519a(a), 416.920b(c). The Eleventh Circuit has explained
that an ALJ “is not required to order a consultative examination as long as the
record contains sufficient evidence for the administrative law judge to make an
informed decision.” Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th
Cir. 2007). Plaintiff has failed to demonstrate how a second consultative
examination was necessary for the ALJ to make an informed decision or to fully
develop the record. The court finds that the record contained sufficient evidence to
support the ALJ’s findings, including two examinations with Dr. Tuck during the
relevant period (July and September 2013) that showed normal findings in the
affected area. (R. 546-47 & 549-51). Thus, the Commissioner was not required to
order a second physical consultative examination.
3. Attention Deficit Disorder (“ADD”) and Obsessive Compulsive
Disorder (“OCD”) Diagnosis
Plaintiff further argues that her diagnosis of ADD and OCD required the
ALJ to obtain a consultative examination regarding her mental impairments, and
that the lack of a such an examination represents a failure to properly follow 42
U.S.C. § 421(h). (Doc. 7 at 8 (citing McCall v. Bowen, 846 F.2d 1317, 1320 (11th
Cir. 1988)). Plaintiff argues that despite the evidence of her mental impairments,
the ALJ asked no questions of her concerning the diagnosis, nor did he undertake
14

any other effort to develop the record regarding the impairments. (Doc. 7 at 7).
She then states that “[a]t the very least, the ALJ should have undertaken at least
one of the steps prescribed by 20 C.F.R. § 404.1520b(b) and (c).” 6 She concludes
that the ALJ simply relied upon the absence of evidence to issue a decision of
nondisability.” (Doc. 7 at 8). This, she asserts, is “reversible error.” (Id.) The
Commissioner responds: (1) Plaintiff’s reliance on McCall is misplaced; (2) the
language of § 421(h) applies to initial determinations; (3) § 421(h)(1) does not
require a consultative examination; and (4) Plaintiff has not met her burden of
alleging a mental health issue. (Doc. 8 at 13-16).
6

Although Plaintiff cites to 20 C.F.R. § 404.1520b(b) and (c) (see doc.7 at 8), the language can
be found in § 404.1520b(b)(2)(i)-(iv), which provides, in pertinent part:
We will try to resolve the inconsistency or insufficiency by taking any one or
more of the actions listed in paragraphs (b)(2)(i) through (b)(2)(iv) of this section.
We might not take all of the actions listed below. We will consider any additional
evidence we receive together with the evidence we already have.
(i)

We may recontact your medical source. We may choose not to seek
additional evidence or clarification from a medical source if we know
from experience that the source either cannot or will not provide the
necessary evidence. If we obtain medical evidence over the telephone, we
will send the telephone report to the source for review, signature, and
return;

(ii)

We may request additional existing evidence;

(iii)

We may ask you to undergo a consultative examination at our expense
(see §§ 404.1517 through 404.1519t); or

(iv)

We may ask you or others for more information.

15

Section 421(h)(1) states: “An initial determination … shall not be made until
the Commissioner of Social Security has made every reasonable effort to ensure …
in any case where there is evidence which indicates the existence of a mental
impairment, that a qualified psychiatrist or psychologist has completed the medical
portion of the case review and any applicable residual functional capacity
assessment.” In McCall, the Eleventh Circuit remanded the case to the lower court
for further remand to the Secretary for additional consideration of whether
McCall’s obesity was a consequence of failing to comply with a prescribed course
of treatment. 846 F.2d at 1319. In remanding the case, the court also addressed
McCall’s challenge that the Secretary improperly concluded that no mental or
emotional basis existed for her inability to work since there was no doctor’s report
in the record mentioning a mental or emotional problem. Id. The court stated:
In the instant case, plaintiff’s physicians have at times suggested that
she might be suffering from a psychological condition. They have
informed her that she suffered from “anxiety and nerves and a lot of
stress,” they have commented that she was “somewhat apprehensive,”
and they have prescribed Valium for her anxiety.
Such evidence may not have been sufficient to require the ALJ to
request a consultative psychological examination under this Court’s
decision in Murray v. Heckler, 737 F.2d 934, 935 (11th Cir.1984).
Murray, however, was decided before the effective date of Section
8(a) of the Social Security Disability Benefits Reform Act of 1984,
which appears to require a consultative examination on less evidence
than may have been required previously. The ALJ’s decision was
dated September 30, 1985. This section, which became effective in
16

1984, specifically provides that “in any case where there is evidence
which indicates the existence of a mental impairment” the Secretary
may determine that the claimant is not under a disability “only if the
Secretary has made every reasonable effort” to obtain the opinion of
“a qualified psychiatrist or psychologist.” 42 U.S.C.A. § 421(h); see
generally H.R. Rep. No. 98–618, 98th Cong., 2d Sess., reprinted in
1984 U.S. Code Cong. & Admin. News 3038. Along with her own
testimony of mental problems, the suggestions made by her treating
physicians might well be enough to require the appointment of a
psychiatrist or psychologist under the requirements of section 421(h).
Certainly, since the case has to be remanded for proper handling of
the overweight problem, the applicability of section 421(h) must be
carefully considered. The need for such a consultation would be
especially important if the failure to lose weight under a prescribed
course of treatment has a psychological overlay.
McCall, 846 F.2d at 1320.
The Commissioner specifically asserts the following:
First, the court in McCall never explicitly found the ALJ erred by not
ordering a consultative examination; instead the court remanded on
another issue while stating 42 U.S.C. § 421(h) “appears to” require a
consultative examination in some cases. See McCall, 846 F.2d at
1320 (“Certainly, since the case has to be remanded for proper
handling of the overweight problem, the applicability of section
421(h) must be carefully considered.”). Second, the language of §
421(h) indicates that it applies to initial determinations and not
necessarily to decisions made by an ALJ. See 42 U.S.C. § 421(h)
(“An initial determination . . . that an individual is not under a
disability . . .”); see also Sneed v. Barnhart, 214 Fed. App’x 883, 886
(11th Cir. 2006) (questioning the McCall court’s interpretation of §
421(h)). Third, § 421(h)(1) does not require a consultative
examination but that “a qualified psychiatrist or psychologist has
completed the medical portion of the case review and any applicable
residual functional capacity assessment.” 42 U.S.C. § 421(h)(1).
(Doc. 8 at 13).
17

The court finds Plaintiff is not entitled to relief for multiple reasons. First,
the court agrees with the Commissioner that § 421(h) applies to initial
determinations and not necessarily to decisions made by an ALJ. See 42 U.S.C. §
421(h) (“An initial determination . . . that an individual is not under a disability
. . .”). See also Sneed v. Barnhart, 214 F. App’x 883, 886 (11th Cir. 2006) (noting
that “[t]he Third Circuit has held that the normal requirement to order a psychiatric
consult pursuant to § 421(h) does not apply to … cases heard by an ALJ. Plummer
v. Apfel, 186 F.3d 422, 433 (3d Cir. 1999) (holding that the § 421(h) consultation
requirement applies only to cases falling under § 421(a), (c), (g), (i) at the initial
and reconsideration levels).”). Additionally, “an ALJ has regulatory flexibility to
evaluate mental impairments to determine their severity.” Sneed, 214 F. App’x at
886 (citing Plummer, 186 F.3d at 433; see also 20 C.F.R. § 404.1520a (evaluation
of mental impairments)).
Second, the ALJ complied with the requirements of § 421(h) because Dr.
Robert Estock, a state agency psychological consultant, reviewed the record and
provided an opinion regarding Plaintiff’s mental impairments and functioning.
(See R. 18, 51). The opinion of Dr. Estock, as a non-examining state agency
medical consultant, is entitled to substantial consideration as a relevant, expert
opinion. See 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (“State agency
medical and psychological consultants . . . are highly qualified physicians,
18

psychologists, and other medical specialists who are also experts in Social Security
disability evaluation.”). The Commissioner correctly points out that Plaintiff cites
no authority for the proposition that the ALJ’s reliance on Dr. Estock’s opinion
violated the statute. The undersigned notes, however, that other courts have
concluded that an ALJ’s reliance on a state agency medical consultant’s review is
appropriate to satisfy any requirement imposed by § 421(h)(1) even where the ALJ
did not order a consultative psychological examination. See, e.g., Parker v. Colvin,
No. 3:15cv269-WC, 2016 WL 1092237, at *4 (M.D. Ala. Mar. 21, 2016) (“The
record before the ALJ in this case was sufficient to permit the ALJ to assess the
severity of Plaintiff's OCD and dysthymia without the need for ordering a
consultative examination by a qualified psychiatrist or psychologist.”); Harris v.
Colvin, No. 13-481-KD-B, 2014 WL 584420, at *10 (S.D. Ala. Nov. 12, 2014)
(“In this case, Plaintiff is correct that the ALJ did not order a consultative mental
examination. However, the record does contain the opinion of State Agency
psychologist Dr. Joanna Koulianos, Ph.D., who reviewed Plaintiff's medical
records and completed a Psychiatric Review Technique and a Mental RFC
Assessment. Thus it is clear that the ALJ complied with 42 U.S.C. § 421(h) in
having Dr. Koulianos conduct a review of the medical records and compete a
Psychiatric Review Technique[.]”).

19

Third, Plaintiff’s argument fails because she does not meet her burden of
alleging a mental health issue, and there was substantial evidence in the record to
validate the ALJ’s holding. Plaintiff has the burden of alleging a disability due to
her mental or medical condition either when she files her application or at her
hearing. Robinson v. Astrue, 365 F. App’x 993, 995 (11th Cir. 2010). In
Robinson, the court stated that the ALJ “had no duty to consider Robinson’s
C[hronic] F[atigue] S[yndrome] diagnosis because Robinson… did not allege that
she was disabled due to CFS either when she filed her claim or at her May 2006
hearing.” (Id.). See also Street v. Barnhart, 133 F. App’x 621, 627 (11th Cir.
2005) (holding that the claimant’s failure to raise a mental health issue as a basis
for disability at the hearing “alone could dispose of his claim” because an
administrative law judge is “under no obligation to investigate a claim not
presented at the time of the application for benefits and not offered at the hearing
as a basis for disability”) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir.
1996)). Here, Plaintiff did not allege a disability based on ADD or OCD.
Specifically, she did not allege a mental disability in her application, in her Adult
Function Report, or at the hearing before the ALJ. (See R. 25-45, 171, 189-97).
To the contrary, at one point during the hearing, Plaintiff’s attorney states, “Judge,
this, this case is really, I believe, dependent upon Ms. Westphal’s ability to sit and
stand.” (R. 29). Plaintiff did not mention any mental disability during questioning
20

at the hearing. She also acknowledged to the ALJ that she was able to complete
college courses during a portion of the period of her impairment (Summer 2013).
(R. 33). Thus, there was no obligation on the ALJ to further consider Plaintiff’s
mental status in determining whether she was disabled.
Lastly, the Eleventh Circuit has held that although an “administrative law
judge has a duty to develop the record where appropriate,” the ALJ “is not required
to order a consultative examination as long as the record contains sufficient
evidence for the administrative law judge to make an informed decision.” Ingram,
496 F.3d at 1269. In Ingram, the Eleventh Circuit determined that the ALJ did not
err in failing to further develop the record regarding the claimant’s mental capacity
by ordering a consultative mental examination because the record, including
evidence that the claimant’s “depression was alleviated by medication,” was
sufficient for the ALJ to determine the extent of the claimant’s mental
impairments. (Id.) Here, as already discussed, the ALJ complied with the
requirements of § 421(h)(1) because Dr. Estock, a state agency psychological
consultant, reviewed the medical evidence and provided an opinion regarding
Plaintiff’s mental impairments and functioning. (R. 18, 51).
To the extent Plaintiff notes that both Dr. Khan and Dr. Tuck diagnosed her
as suffering from ADD and OCD (doc. 7 at 7), those observations are insufficient
to warrant further evaluation under the circumstances. For instance, Dr. Khan
21

simply stated in his assessment that Plaintiff’s medical problems include ADD.
(R. 276). Dr. Tuck’s treatment records show Plaintiff was diagnosed with ADD
and OCD. The records show that in June 2012 Plaintiff was prescribed medication
for ADD. (R. 18). She was continued on her medication through February 2014.
(R. 18, 561). On November 5, 2012, she was diagnosed with OCD. (R. 18, 556).
On her last noted visit – September 6, 2013 – she reported an inability to
concentrate, but it improved with Adderall. (R. 18, 546). While this information
demonstrates a medical diagnosis, it is insufficient to require the ALJ to order
further testing and evaluation. This is particularly the situation in view of her
testimony that she was taking college courses during the Summer of 2013 and Dr.
Estock’s review and assessment finding that Plaintiff’s ADD/ADHD was nonsevere. (See R. 50-51).
VI. CONCLUSION
In light of the substantial evidence in the record, the ALJ had the necessary
information to determine Plaintiff’s impairments, her residual functional capacity,
and her ability to work. Moreover, Plaintiff has not shown that she suffered
prejudice as a result of any failure of the ALJ to perform further fact-finding.
There is no evidence the ALJ’s decision would have changed in light of any
additional information. Consequently, the ALJ did not err by not requesting an
additional consultative examination and by not asking questions to Plaintiff
22

concerning her ADD and OCD diagnosis. In sum, the court finds no error in the
determinations of the ALJ. For the foregoing reasons, the determination of the
Commissioner is due to be affirmed. An order consistent with this Memorandum
Opinion will be entered contemporaneously herewith.
DATED, this 17th day of May, 2017.

_________________________________
JOHN E. OTT
Chief United States Magistrate Judge

23