Porter v. Social Security Administration, Commissioner
Filing
11
MEMORANDUM OPINION - After careful review, the court concludes that the ALJ's determination that Plaintiff is not disabled is supported by substantial evidence, and the proper legal standards were applied in reaching this determination. The Commissioner's decision is therefore due to be affirmed, and a separate order in accordance with this Memorandum Decision will be entered. Signed by Judge R David Proctor on 12/10/2018. (KEK)
FILED
2018 Dec-10 AM 11:11
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JAMAL PORTER,
}
}
Plaintiff,
}
}
v.
}
}
NANCY A. BERRYHILL,
}
Acting Commissioner of Social Security, }
}
Defendant.
}
Civil Action No.: 4:17-cv-882-RDP
MEMORANDUM OF DECISION
Plaintiff Jamal Porter (“Plaintiff” or “Porter”) brings this action pursuant to Section 205(g)
of the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of
Social Security (“Commissioner”) denying his claims for a period of disability and disability
insurance benefits (“DIB”). See 42 U.S.C. § 405(g). Based on the court's review of the record and
the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to
be affirmed.
I.
Proceedings Below
On April 17, 2014, Plaintiff filed an application for supplemental security income (“SSI”)
alleging disability as of December 31, 2008. (Tr. 20, 39, 71). Plaintiff later amended her alleged
onset date and he now contends that it is June 24, 2014. (Tr. 20, 39, 163). Plaintiff’s initial
application was denied by the Social Security Administration (“SSA”) on July 14, 2014. (Tr. 8789). On July 29, 2014, Plaintiff filed a request for a hearing by an Administrative Law Judge
(“ALJ”). (Tr. 92). That request was granted (Tr. 95-97), and Plaintiff received a hearing before
ALJ Denise Copeland (“the ALJ”) on February 8, 2016. (Tr. 39-65, 105-10). In her decision dated
April 20, 2016, the ALJ determined that Plaintiff has not been under a disability, as defined by the
1
Act, since his amended disability onset date of June 24, 2014. (Tr. 20-32). After the Appeals
Council (“AC”) denied Plaintiff’s request for review of the ALJ’s decision (Tr. 1-3), that decision
became final and a proper subject for this court’s review.
II.
Statement of Facts
Plaintiff was born on November 15, 1975 and was 38 years old on his amended disability
onset date. (Tr. 47, 174). He alleges disability due to back problems, bipolar disorder, depression,
bad nerves, and attention deficit disorder (“ADD”). (Tr. 66, 71). Plaintiff last worked at Quality
Grinding doing machine work from July 2008 until October 2008. (Tr. 72, 186). Prior to that,
Plaintiff worked for Goodyear as a tire loader. (Id.). Plaintiff has not worked since 2008. (Tr. 178).
Plaintiff was incarcerated from 2000-2006, and he associates his current mental condition with his
experience during that time, although he says he has always tended to keep to himself. (Tr. 54,
207, 318).
Plaintiff had not seen a medical professional prior to filing his disability claim, and the
record does not reflect any medical evidence prior to 2014. However, Plaintiff saw Dr. Sathyan
Iyer on June 7, 2014 at the request of Disability Determination Services (“DDS”). (Tr. 71, 27578). Dr. Iyer described Plaintiff as alert with no acute distress and noted a smell of alcohol on his
breath. (Id.). Dr. Iyer found Plaintiff to have a history of depression probably caused and
aggravated by excess alcohol consumption, as well as uncontrolled hypertension. (Tr. 278). Dr.
Iyer found Plaintiff to have no significant physical limitations, but that “continued excess alcohol
use could impair many functions.” (Id.).
Approximately two weeks later June Nichols, a licensed psychologist with Gadsden
Psychological Services, LLC, examined and evaluated Plaintiff at the request of DDS. (Tr. 280).
Dr. Nichols described Plaintiff as neat and clean with a clear stream of consciousness and
2
orientation to person, place, time, and situation. (Tr. 281). She noted that Plaintiff was “visibly
shaking during the interview with a tremulous voice” and that while Plaintiff’s speed of mental
processing was slowed, his recent memory functions were grossly intact. (Id.). There was no
evidence of confusion in his thought processes. (Tr. 282). Dr. Nichols diagnosed Plaintiff with
alcohol dependence, post-traumatic stress disorder (“PTSD”), major depressive disorder, panic
disorder without agoraphobia, generalized anxiety disorder, and specific reading disorder. (Tr.
282-83). Dr. Nichols found the chance for significant improvement over next twelve months was
“poor without intense intervention regarding alcohol abuse and other symptoms.” (Tr. 283). Dr.
Nichols explained that Plaintiff’s ability to relate interpersonally and his ability to withstand the
pressures of everyday work were compromised based on his current symptoms. (Id.). Further,
Plaintiff was found to have deficits that would interfere with his ability to remember, understand,
and carry out work related instructions. (Id.). Although she did not think that Plaintiff would be
able to handle his own funds, Dr. Nichols said Plaintiff could live independently with assistance.
(Id.).
Later that same year, on October 7, 2014, Plaintiff went to Cherokee, Etowah, Dekalb
Mental Health Center (“CED”) complaining of auditory hallucinations, paranoia, and depression.
(Tr. 302). Plaintiff reported the auditory hallucinations were not commands but statements of his
worthlessness. (Tr. 312). In the intake assessment Plaintiff was described as appearing appropriate
but with a dysphoric mood and blunted affect. (Tr. 303-04). Plaintiff was unable to sit still,
reported that he did not like crowds, and was unable to be alone. (Tr. 304, 312). Plaintiff reported
his symptoms started while he was incarcerated but that he has always had social issues. (Tr. 312).
Notes indicate that a treatment plan would be formulated. (Tr. 303).
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Plaintiff visited Quality Life Health Services on October 14, 2014 complaining of
hypertension, back pain, and headache. (Tr. 284). Dr. Ochuko Odjebda prescribed Plaintiff
Flexeril, lisinopril, and meloxicam, yet noted that Plaintiff had a normal physical exam. (Tr. 287).
The prescriptions were filled at a Walmart pharmacy in Gadsden. (Tr. 237, 301).
On November 3, 2014, Plaintiff saw Dr. Richard Grant at CED Mental Health Center
(“CED”). (Tr. 301). Dr. Grant noted Plaintiff’s depressed mood and affect with reports of
hallucinations, delusions, and inadequate attention and concentration. (Tr. 301). Plaintiff’s insight
and judgment were fair and thought process was logical. (Tr. 301). Dr. Grant prescribed Plaintiff
Seroquel for depression. (Tr. 301). That prescription was again filled at the Walmart pharmacy
in Gadsden. (Tr. 237, 301).
Plaintiff followed up with Dr. Odjegba on November 6, 2014. (Tr. 284, 289). In addition
to following-up on complaints of back pain and hypertension, Plaintiff was experiencing a cough
from allergies. (Tr. 289). Lab reports indicate that Plaintiff returned on November 25, 2014 for
blood work. (Tr. 296).
Medical evidence indicates that Plaintiff continued to seek therapy from CED. On
November 18, 2014, Plaintiff reported that the Seroquel made him sleepy. (Tr. 300). Plaintiff also
reported isolating himself and being afraid of letting people down. (Id.). His mood was dysphoric
and his affect was constricted, yet his GAF score increased from 40 to 45. (Id.). Therapy notes
from February 13, 2015 indicate that depression coping skills were discussed with Plaintiff and
that his GAF remained at 45. (Tr. 299). Therapy notes from March 27, 2015 indicate that
Plaintiff’s depression had improved but that he continued to isolate himself, though he walked his
daughter to the bus approximately two times per week. (Tr. 323). Plaintiff was encouraged to try
to visit Dollar General one time a week to help with isolation. (Id.). About two months later, on
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May 19, 2015, Plaintiff saw Dr. Grant. (Tr. 325). His mood was described as euthymic, and he
stated that he was feeling more depressed. (Id.). Around the same time Plaintiff was given another
prescription for Seroquel, but it does not appear Plaintiff ever filled that prescription. (Tr. 237,
324).
At a therapy session on May 20, 2015, Plaintiff noted an increase in depression symptoms
due to an injury to his leg. (Tr. 325). However, Plaintiff also noted that he was motivated by his
relationship with his daughter. (Id.). On August 17, 2015, Plaintiff reported to the therapist that
he was feeling down because he was unable to walk his daughter to the bus that day. (Tr. 326).
He stated that he continued to isolate himself. (Id.). A therapy note from November 12, 2015
indicates that Plaintiff felt overwhelmed with stress and having not had his medication for over a
month. (Tr. 328). On December 1, 2015, Plaintiff reported hearing voices. (Tr. 330). Notes
indicate that “Patient has relapsed due to not taking the Seroquel for several months. Not
compliant with process of obtaining medication. Plan is to resume medication.” (Tr. 330).
On January 26, 2016, about two months after Plaintiff’s last reported visit to CED,
Plaintiff’s counsel referred him to Dr. David Wilson at Gadsden Psychological Services who
performed a psychological evaluation. (Tr. 317-21). During the interview, Plaintiff said he felt
depressed 95% of the time, but that he felt better when he saw his daughter. (Tr. 320). He said he
saw his daughter two to three times a week and took her to the park. (Id.). According to Dr. Wilson,
Plaintiff had problems with mental control and attention, problems with short term and working
memory, and severe problems with mood disturbance. (Id.). Plaintiff’s interview with Dr. Wilson
also indicated that he was still taking Seroquel, although the pharmacy records show the last time
he filled a prescription was on November 3, 2014, and during his last visit to CED, which was
about two months before his interview, he had been off his medication for several months. (Tr.
5
237, 321, 330). Dr. Wilson diagnosed Plaintiff with major depressive disorder, recurrent (severe
with psychotic features), post-traumatic stress disorder, panic disorder, history of alcohol abuse,
estimated borderline intelligence, chest pain, problems with back and legs, acid reflux, and severe
hypertension. (Tr. 321). Dr. Wilson opined that Plaintiff could not (1) sustain an ordinary routine
without special supervision, (2) interact appropriately with co-workers, or (3) adhere to basic
standards of neatness and cleanliness. (Tr. 322). Dr. Wilson further estimated Plaintiff would be
expected to fail to report to work twenty-eight out of thirty days. (Id.).
III.
ALJ Decision
Disability under the Act is determined using a five-step test. 20 C.F.R. § 404.1520. First,
the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R.
§ 404.1520(a)(4)(i). “Substantial gainful activity” is work activity that involves doing significant
physical or mental activities for pay or profit. 20 C.F.R. § 404.1572. Work activity may be
considered substantial even if it is part-time or if the claimant does less, gets paid less, or has less
responsibility than when he worked before. 20 C.F.R. § 404.1572(a). Even if no profit is realized,
work activity may still be considered gainful so long as it is the kind of work usually done for pay
or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant is engaging in substantial
gainful activity, then the claimant cannot claim disability. 20 C.F.R. § 404.1520(b).
Second, the ALJ must determine whether the claimant has a severe medical impairment or
a combination of impairments that is severe. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant does
not have a severe impairment or combination of impairments, then he may not claim disability.
(Id.). If the impairment is not expected to result in death, the claimant must also meet the 12month duration requirement. 20 C.F.R. § 404.1509.
6
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(a)(4)(iii), 404.1525, and 404.1526. If the claimant meets or equals a listed impairment
and meets the duration requirement, he will be found disabled without considering age, education,
and work experience. 20 C.F.R. § 404.1520(d).
If the claimant does not meet the requirements for disability under the third step, he may
still be found disabled under steps four and five of the analysis. The ALJ must first determine the
claimant’s residual functional capacity (“RFC”), which refers to the claimant’s ability to work
notwithstanding his impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ must
determine whether the claimant has the RFC to perform past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant is capable of performing past relevant work, then the claimant
is deemed not disabled. (Id.). If the ALJ finds the claimant is unable to perform past relevant
work, then the analysis moves to the fifth and final step of the analysis.
In the final step of the analysis, the ALJ must determine whether the claimant is able to
perform any other work commensurate with his RFC, age, education, and work experience. 20
C.F.R. § 404.1520(g). At this point, 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
perform given his RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g),
404.1560(c).
Here, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since
he filed his application for SSI on April 17, 2014. (Tr. 22). The ALJ found Plaintiff suffers from
the severe impairments of major depressive disorder with psychosis, anxiety-related disorder, and
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alcohol dependence. (Id.). Plaintiff’s hypertension was determined to be non-severe because it did
not cause more than minimal work-related limitations. (Id.).
Nevertheless, the ALJ further determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 22-23). Concerning Plaintiff’s RFC,
the ALJ determined Plaintiff could perform a full range of work at all exertional levels but with
some non-exertional limitations. (Tr. 25). Plaintiff was found to be able to understand, remember,
and carry out simple instructions, but not more detailed or complex ones. (Id.). The ALJ also
found that while Plaintiff should not interact with members of the public he could interact
occasionally with coworkers and supervisors, meaning he should have no more than occasional
conversations and interpersonal interactions. (Id.). Plaintiff’s attention and concentration were
found to be sufficient for two-hour blocks to complete an eight-hour work day with customary
breaks. (Id.). The ALJ found that Plaintiff is able to perform his past work as a machine tender.
(Tr. 30). Therefore, the ALJ concluded that Plaintiff was not disabled.
IV.
Plaintiff’s Argument for Remand or Reversal
In his Memorandum in Support of Disability, Plaintiff asserts the ALJ made three errors
warranting remand. (Pl. Mem., Doc. #8 at 2). First, Plaintiff argues that the ALJ failed to clearly
state grounds for repudiating the opinions of examining psychologists Dr. David Wilson and Dr.
June Nichols. (Id.). Second, Plaintiff argues that the ALJ failed to accord proper weight to the
treating psychiatrist, Dr. Fred Feist. (Id.). Finally, Plaintiff argues that the ALJ’s decision was not
based on substantial evidence. (Id.).
For the reasons explained below, the court finds that the decision of the ALJ is due to be
upheld.
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V.
Standard of Review
The only issues before the court are whether the record reveals substantial evidence to
sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847 F.2d
698, 701 (11th Cir. 1988). Title 42 U.S.C. § 405(g) mandates that the Commissioner’s findings
are conclusive if supported by “substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the evidence, or
substitute its judgment for that of the Commissioner; instead, it must review the final decision as
a whole and determine if the decision is reasonable and supported by substantial evidence. See id.
(citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of evidence;
“[i]t is such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239). If supported by
substantial evidence, the Commissioner’s factual findings must be affirmed even if the evidence
preponderates against the Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court
acknowledges that judicial review of the ALJ’s findings is limited in scope, the court also notes
that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
VI.
Discussion
After careful review, the court concludes that the ALJ's findings are supported by
substantial evidence and that proper legal standards were applied.
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A.
Proper Weight was Accorded to the Medical Opinions in the Record.
Plaintiff challenges the ALJ’s evaluation of the medical opinions of Dr. Nichols and Dr.
Wilson, two one-time examiners. (Pl.’s Mem., Doc. #8 at 18-25). The court concludes, contrary
to Plaintiff’s argument, that the ALJ’s evaluation complies with legal precedent.
An ALJ must articulate the weight given to different medical opinions and the reasons for
assigning that weight. See Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
Among other things, the weight afforded to a medical opinion regarding the nature and severity of
a claimant’s impairments depends upon the examining and treating relationship the medical source
had with the claimant, the evidence the medical source has presented to support the opinion, how
consistent the opinion is with the record as a whole, and the specialty of the medical source. See
20 C.F.R. §§ 404.1527(d), 416.927(d).
Within the classification of acceptable medical sources are the following different types of
sources (and these, as noted below, are assigned different weights): (1) a treating source, or a
primary physician, which is defined in the regulations as “your 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;” (2) a non-treating
source, or a consulting physician, which is defined as “a physician, psychologist, or other
acceptable medical source who has examined you but does not have, or did not have, an ongoing
treatment relationship with you;” and (3) a non-examining source, which is a “a physician,
psychologist, or other acceptable medical source who has not examined you but provides a medical
or other opinion in your case ... includ[ing] State agency medical and psychological consultants....”
20 C.F.R. § 404.1502.
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The regulations and case law set forth a general preference for the opinion of a treating
medical source over those of non-treating medical sources, and non-treating medical sources over
non-examining medical sources. See 20 C.F.R. § 404.1527(d)(2); Ryan v. Heckler, 762 F.2d 939,
942 (11th Cir. 1985). Thus, a treating physician’s opinion is entitled to “substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Crawford v. Comm’n of Soc. Sec., 363 F.3d
1155, 1159 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997))
(internal quotations omitted). “Good cause” exists when the: “(1) treating physician’s opinion was
not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records.” Phillips v.
Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also Edwards
v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good cause” existed where the
opinion was contradicted by other notations in the physician’s own record).
On the other hand, the opinions of a one-time examiner or of a non-examining source are
not entitled to the initial deference afforded to a physician who has an ongoing treating relationship
with a plaintiff. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987). Still, though, medical
consultants or medical experts are highly qualified medical specialists who are experts in Social
Security disability programs, and their opinions may be entitled to great weight if the evidence
supports their opinions. See 20 C.F.R. § 404.1527(e)(2)(iii), 416.927(e)(2)(iii); Social Security
Ruling (“SSR”) 96-6p, 1996 WL 374180. Indeed, a medical expert’s opinion may be entitled to
greater weight than the opinions of treating or examining sources in appropriate circumstances,
such as when the medical expert has reviewed the complete case record. See SSR 96-6p, 1996 WL
374180. In short, an ALJ “may reject the opinion of any physician when the evidence supports a
11
contrary conclusion.” McCloud v. Barnhart, 166 F. App'x 410, 418–19 (11th Cir. 2006) (citing
Bloodsworth, 703 F.2d at 1240).
With these principles in mind, the court addresses the ALJ’s assessment of the medical
opinions in this matter.
1.
The Opinions of Examining Psychologists Dr. Nichols and Dr. Wilson.
Plaintiff challenges the weight given by the ALJ to the opinions of two examining
psychologists, Dr. Nichols and Dr. Wilson. (Pl.’s Mem., Doc. #8 at 18-23). Specifically, he
contends that the ALJ failed to state with “some measure of clarity” her reasons for giving little
weight to those opinions. (Id.).
In the report of her consultative psychological evaluation of Plaintiff, Dr. Nichols stated
that Plaintiff had “deficits, which would interfere with his ability to remember, understand, and
carry out work related instructions.” (Tr. 27, 283). The ALJ afforded “limited weight” to that
conclusion because it was offered before Plaintiff overcame his alcohol dependence. (Tr. 27, 283,
319). Specifically, the ALJ noted that Plaintiff “was able to stop drinking on his own in response
to his doctor’s admonitions regarding the effect of alcohol consumption on his blood pressure,
which was at ‘stroke level.’” (Tr. 27-28). Those deficits were explained in relation to Dr. Nichols’s
prognosis for Plaintiff, which was described as “poor without intense intervention regarding
alcohol abuse and other symptoms.” (Tr. 27, 283). In fact, Plaintiff had not received mental health
treatment or taken any medication at the time of Dr. Nichols’s evaluation. (Tr. 280). Based on this
posture, the ALJ did not err in her treatment Dr. Nichols’s opinion. Substantial evidence shows
that after Plaintiff stopped drinking alcohol, began taking medication, and began seeing a
psychologist, his functioning improved. (Tr. 319, 324-26, 328). Thus, in this context, the opinion
12
of a one-time examiner is not entitled to great weight, McSwain, 814 F.2d at 619, and the ALJ
clearly set forth her reasons for according Dr. Nichols’s opinion limited weight.
The ALJ also gave limited weight to the opinion of consulting examiner Dr. Wilson. (Tr.
28). Dr. Wilson stated in his notes that Plaintiff appeared neat in hygiene and appearance. (Tr.
319). His speech was clear and normal in rate, and he was cooperative and respectful throughout
the interview. (Id.). Dr. Wilson opined that Plaintiff (1) could understand, remember, and carry
out simple instructions but he could not sustain appropriate interactions and (2) could not maintain
a schedule and would miss twenty-eight days of work out of a thirty-day period because “[h]is
ability to withstand the pressure of day to day occupational functioning is highly impaired.” (Tr.
28, 321-22). Dr. Wilson further stated Plaintiff was severely depressed and highly anxious, and
that he was on medication which made him sleepy. (Tr. 321). Yet, the pharmacy records reveal
Plaintiff was not taking his medication at the time he was examined by Dr. Wilson. (Tr. 237).
According to the report from Walmart pharmacy printed three days before Plaintiff went to see Dr.
Wilson, Plaintiff first filled his Seroquel prescription on November 3, 2014, yet did not refill that
prescription any time after the date Plaintiff was determined to have been non-compliant with his
medication. (Tr. 237, 328). Refusal to follow prescribed medical treatment without good reason
has been found to be sufficient reason to preclude a finding of disability. Ellison v. Barnhart, 355
F.3d 1272, 1275 (11th Cir. 2003). Although “good reason” can be lack of ability to pay, the ALJ
rejected this defense for Plaintiff because the record indicated he had sufficient means to purchase
cigarettes and alcohol. (Tr. 27).
The ALJ found that the evidence did not support a finding that Plaintiff “is so mentally
debilitated that he would miss 28 days of work in a month and unable to even maintain basic
standards of neatness, cleanliness, and socially appropriate behavior.” (Tr. 28). Because an ALJ
13
may properly reject the opinion of any physician when the evidence supports a contrary
conclusion, McCloud, 166 F. App’x. at 418, the finding of the ALJ is due to be upheld.
2.
The Opinion of “Treating Physician” Dr. Fred Feist.
Plaintiff also challenges the weight given by the ALJ to the opinion of Dr. Fred Feist, whom
he contends is a treating psychologist. (Pl. Mem., Doc. #8 at 25-27; Pl. Reply, Doc. #10 at 9-10).
Specifically, he contends that the ALJ failed to state her reasons for giving little weight to Dr.
Feist’s opinion that Plaintiff is not “mentally or physically able to work” on a “permanent” basis.
(Tr. 234). The court disagrees.
A treating physician is a claimant’s “own physician ... who has provided [claimant] with
medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with
[claimant].” Nyberg v. Comm'r of Soc. Sec., 179 Fed.Appx. 589, 591 n.3 (11th Cir. 2006) (quoting
20 C.F.R. § 404.1502). The opinion of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Phillips, 357 F.3d at 1240.
(citing Lewis, 125 F.3d at 1440). The ALJ must clearly articulate the reasons for giving less weight
to the opinion of a treating physician, and the failure to do so is reversible error. See Lewis, 125
F.3d at 1440.
An ALJ is not required to accept conclusory statements from medical sources, even a
treating source, that a claimant is unable to work, because the decision on that issue is not a medical
question, but is a decision “reserved to the Commissioner.” 20 C.F.R. §§ 404.1527(d) &
416.927(d). A medical opinion is a statement from an acceptable medical source that reflects
judgments about the nature and severity of a claimant’s impairments and what he can still do
despite those impairments, whether physical or mental. 20 C.F.R. 416.927(a)(1).
14
Opinions such as whether a claimant is disabled, the claimant’s RFC, and the application
of vocational factors “are not medical opinions, ... but are, instead, opinions on issues reserved to
the Commissioner because they are administrative findings that are dispositive of a case; i.e., that
would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d).
A doctor’s evaluation of a claimant’s “condition and the medical consequences thereof, not [an]
opinion[] of the legal consequences of his condition” is what counts. Lewis, 125 F.3d at 1440.
Such statements by a physician are relevant to the ALJ’s findings, but they are not determinative
because is the ALJ who bears the responsibility for assessing a claimant’s RFC. See, e.g., 20 C.F.R.
§ 404.1546(c).
Here, as the ALJ noted, there is no indication the Dr. Feist ever treated Plaintiff. (Tr. 28).
Although Dr. Feist’s signature appears on a form dated January 14, 2015 in which he opined that
work requirements should be waived for Plaintiff so that he may receive SNAP benefits, no
treatment records from CED Mental Health are signed by Dr. Feist or otherwise indicate that Dr.
Feist was Plaintiff’s treating psychologist. Plaintiff points to two additional signatures from Dr.
Feist: one on a Problem Assessment dated October 7, 2014, and another on a Consumer Diagnosis
Form dated November 18, 2014.1 (Tr. 316, 329). But these signatures are not enough to buttress
an argument that the ALJ’s finding is unsupported by substantial evidence. As another court has
noted, two visits are not enough to establish a physician as a treating source. Chaney-Everett v.
Astrue, 839 F. Supp. 2d 1291, 1303 (S.D. Fla. 2012) (holding ALJ did err in discounting the
opinion of an alleged treating physician because the physician had only seen the claimant twice
and therefore was not a treating source entitled to more weight). The ALJ explained her reasoning
The signature on these forms is illegible but are purported by Plaintiff to be Dr. Feist’s. (Pl.’s Mem., Doc. #8 at 89). Although the Commissioner acknowledges the signatures are illegible, she acknowledged that they may belong to
Dr. Feist. (Doc. # 9 at 12).
1
15
for giving limited weight to the findings of Dr. Feist, and her reasoning is supported by the record.
See 20 C.F.R. § 404.1527(c)(2); Crawford, 363 F.3d at 1160 (11th Cir. 2004).
Alternatively, even if Dr. Feist could be considered a treating physician, his opinion would
not be entitled to more weight from the ALJ. Feist’s signature on the SNAP benefit form
expressing Plaintiff’s inability to work is merely conclusory, and conclusory opinions are not
medical opinions and, although they cannot be ignored, whether a claimant is disabled is a
determination for the ALJ to make, not a psychologist. See 20 C.F.R. § 404.1527(e); Edwards, 937
F.2d at 583) (rejecting a treating physician’s opinion that a claimant could only work 4-hour days
when the opinion was not accompanied by clinical data or other supporting information). Further,
an ALJ may discount opinions not consistent with the record as a whole. 20 C.F.R. § 404.1502.
Although Dr. Feist claimed Plaintiff’s inability to work would be permanent, in CED notes
recorded about 10 weeks later, Plaintiff’s depression was found to have improved. (Tr. 323).
B.
The ALJ’s Finding is Based on Substantial Evidence Including the Testimony
of the Vocational Expert.
Finally, Plaintiff argues that the decision of the ALJ is not based on substantive evidence.
(Pl. Mem., Doc. # 8 at 27-29). In support of this argument, Plaintiff contends that the testimony
of the vocational expert (“VE”) was not based on a correct statement of Plaintiff’s limitations.2
(Id. at 27).
For a VE's testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of Plaintiff's impairments. Vega v. Comm. of Social Security, 265
F.3d 1214, 1220 (11th Cir. 2001). Importantly, the ALJ is not required to include findings in the
hypothetical that the ALJ has found to be unsupported. Crawford, 363 F.3d at 1161. As such, the
Plaintiff’s brief does not explain which impairments should have been included but rather quotes in full the VE
testimony from the transcript. Therefore, the court addresses here the impairments and limitations Plaintiff’s attorney
included in questioning during the hearing.
2
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hypothetical need only include limitations supported by the record. Jones v. Apfel, 190 F.3d 1224,
1229 (11th Cir. 1999).
Here, the ALJ asked the VE whether Plaintiff would be able to perform past relevant work
with certain mental and social limitations but no exertional limitations. (Tr. 61). Exertional
limitations are those that affect one’s ability to meet the strength demands of the job. 20 C.F.R. §
404.1569a. These demands include sitting, standing, walking, lifting, carrying, pushing and
pulling. (Id.). Plaintiff’s counsel conceded at the ALJ hearing that there was no objective evidence
to support a conclusion that Plaintiff had back problems that could result in exertional limitations.
(Tr. 40). Dr. Iyer also found Plaintiff to have no exertional limitations. (Tr. 278). Therefore, the
failure to include exertional limitations in the hypotheticals was not error.
Plaintiff’s counsel questioned the VE using a hypothetical including limitations that
Plaintiff would be unable to interact with supervisors and co-workers and would have to lie down
for 2 hours every 8-hour workday, but the ALJ was under no obligation to consider the response
to this hypothetical. It is reasonable for an ALJ to reject expert testimony where the objective
medical evidence ultimately did not coincide with the hypothetical assumptions posed to the VE.
Stone v. Comm'r of Soc. Sec. Admin., 596 F. App'x 878, 879 (11th Cir. 2015). There is no evidence
in the record to support that Plaintiff would need to lie down for two hours every full work day or
be completely unable to interact with others. To the contrary, the medical evidence of the record
shows Plaintiff was encouraged by his therapists at CED to have more interaction with others as
part of his treatment plan, and nowhere in the record is it indicated Plaintiff should or would need
to lie down because of his symptoms. (Tr. 323, 325).
Here, Plaintiff’s RFC is supported by the objective medical evidence and was properly
relied on by the ALJ in framing hypothetical questions to the VE. And, based upon that framing
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of the hypotheticals, the ALJ did not err in crediting the VE testimony. See Bouie v. Astrue, 226
F. App’x 892, 894-95 (11th Cir. 2007) (holding when ALJ poses hypotheticals supported by an
RFC based on substantial evidence the questions are complete and probative).
V.
Conclusion
After careful review, the court concludes that the ALJ's determination that Plaintiff is not
disabled is supported by substantial evidence, and the proper legal standards were applied in
reaching this determination. The Commissioner's decision is therefore due to be affirmed, and a
separate order in accordance with this Memorandum Decision will be entered.
DONE and ORDERED this December 10, 2018.
_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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