Wise v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 12/5/18. (MRR, )
2018 Dec-06 PM 12:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Case No. 4:17-cv-01229-TMP
The plaintiff, Patrick William Wise, appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”)1 denying
his application for a period of disability and Disability Insurance Benefits (“DIB”).
Mr. Wise timely pursued and exhausted his administrative remedies and the
decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g),
1383(c)(3). The parties have consented to the exercise of dispositive jurisdiction
It appears, from the briefs filed by the Government in other Social Security cases and
from news reports, that there is neither a Commissioner nor an Acting Commissioner currently
serving in the Administration, but that the functions of the job still are being performed by
Nancy A. Berryhill.
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by a magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 24). Accordingly, the
court issues the following memorandum opinion.
The plaintiff was 47 years old on the date of the ALJ’s opinion. (Tr. at 35).
His past work experience includes employment as a master carpenter. (Tr. at 34).
The plaintiff claims that he became disabled on August 21, 2013, due to severe low
back pain, severe neck pain, carpal tunnel syndrome, depression, panic disorder
with agoraphobia, post-traumatic stress disorder, and attention deficit disorder with
hyperactivity. (Doc. 15, p.2).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
he is, the claimant is not disabled and the evaluation stops. Id. If he is not, the
Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends on the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops.
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§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, he will be found disabled without further
consideration. Id. If they do not, a determination of the claimant’s residual
functional capacity will be made and the analysis proceeds to the fourth step.
20 C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an
assessment, based on all relevant evidence, of a claimant’s remaining ability to do
work despite his impairments. 20 C.F.R. § 404.945(a)(1).
The fourth step requires a determination of whether the claimant’s
impairments prevent him from returning to past relevant work.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
If the claimant can still do his past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience, in order to determine if he do
other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can
do other work, the claimant is not disabled.
The burden is on the
Commissioner to demonstrate that other jobs exist which the claimant can perform;
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once that burden is met, the claimant must prove his or her inability to perform
those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228
(11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that the plaintiff
had not engaged in substantial gainful activity since his alleged onset date of
August 21, 2013. (Tr. at 20). According to the ALJ, the plaintiff has the following
impairments that are considered “severe” based on the requirements set forth in the
regulations: “cervical disc disease, obesity, s/p carpal tunnel surgery, and lumbar
back pain.” Id. He also determined that the plaintiff’s “major depression-recurrent
and anxiety disorder” are non-severe. Id. at 27. The ALJ found that the plaintiff’s
severe and non-severe impairments, separately and in combination, neither meet
nor medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id. at 29. The ALJ found the plaintiff to have mild restriction in
activities of daily life, mild difficulties in social functioning, and mild difficulties
with regard to concentration. (Tr. at 28). The ALJ determined that the plaintiff
has the residual functional capacity to perform work at a sedentary level of
exertion as defined in 20 CFR 416.967(a). Id. The ALJ further elaborated:
The claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 416.967(a), which allows for occasional
stooping and crouching; no upper extremities pushing or pulling; no
driving; and a temperature controlled environment.
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(Tr. at 24)
According to the ALJ, the plaintiff is unable to perform any of his past
relevant work and has “a high school education, a 2-year electronics degree, and is
able to communicate in English” as those terms are defined by the regulations.
(Tr. at 33). He determined that “[t]ransferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is ‘not disabled,’ whether or not the
claimant has transferable job skills.” Id. Even though the plaintiff is limited to
sedentary work, the ALJ determined that there are a significant number of jobs in
the national economy that he is capable of performing, such as assembler, table
worker, and surveillance monitor. (Tr. at 36). The ALJ concluded his findings by
stating that Plaintiff “has not been under a disability, as defined in the Social
Security Act, since August 21, 2013, the amended onset date of disability.” Id.
Standard of Review
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
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Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not
decide facts, weigh evidence, or substitute its judgment for that of the
Commissioner. Id. “The substantial evidence standard permits administrative
decision makers to act with considerable latitude, and ‘the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’”
Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting
Consolo v. Federal Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this
court finds that the evidence preponderates against the Commissioner’s decision,
the court must affirm if the decision is supported by substantial evidence. Miles,
84 F.3d at 1400. No decision is automatic, however, for “despite this deferential
standard [for review of claims] it is imperative that the Court scrutinize the record
in its entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct
legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635
(11th Cir. 1984).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
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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).
plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain facts, the court has no
power to reverse that finding as long as there is substantial evidence in the record
Mr. Wise argues that the ALJ’s decision was erroneous and should be
remanded for three reasons. (Doc. 15, p.1). First, he claims that the ALJ failed to
afford the proper weight to the opinions of his treating physician, Dr. Tariq, and his
treating psychologist, Dr. Lachman, and failed to show good case for doing so. Id.
Second, Wise argues that the ALJ failed to state his reasons for affording less
weight to the opinions of Dr. June Nichols and Dr. David Wilson with “at least
some measure of clarity.” Id. Third, Plaintiff argues that the ALJ did not consider
all of his severe mental impairments. Id.
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A. Treating Medical Providers
A treating physician’s testimony is entitled to “substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Crawford v. Commissioner
of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotations omitted). The
weight to be afforded a medical opinion regarding the nature and severity of a
claimant’s impairments depends, among other things, upon the examining and
treating relationship the medical source had with the claimant, the evidence the
medical source presents 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). Furthermore, “good cause” exists for an ALJ not to
give a treating physician’s opinion substantial weight 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, 1241
(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).
The court must also be aware of the fact that opinions such as whether a
claimant is disabled, the claimant’s residual functional capacity, and the
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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).
The court is
interested in the doctors’ evaluations of the claimant’s “condition and the medical
consequences thereof, not their opinions of the legal consequences of his [or her]
condition.” Lewis, 125 F.3d at 1440. Such statements by a physician are relevant
to the ALJ’s findings, but they are not determinative, as it is the ALJ who bears the
responsibility for assessing a claimant’s residual functional capacity. See, e.g., 20
C.F.R. § 404.1546(c).
1. Dr. Tariq
Mr. Wise argues that that the ALJ’s decision to afford only “partial weight”
to Dr. Tariq’s opinion was erroneous because the ALJ misstated the opinion.
(Doc. 15, p. 32). The Commissioner argues that the ALJ’s opinion was in accord
with the sparse record that did not support Dr. Tariq’s assertion that the plaintiff
was unable to work. (Doc. 21, p. 5). The ALJ afforded “partial weight” to Dr.
Tariq’s opinion. Specifically the ALJ stated:
Partial weight is given to the opinions of Dr. Tariq, who completed a
Request for Medical Information on August 27, 2013. In the
document, Dr. Tariq opined that the claimant was mentally and
physically unable to work due to back pain, anxiety, and cervicalgia.
However, Dr. Tariq opined that the claimant’s conditions were not
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permanent and that it was expected that the claimant was able to seek
employment or return to work in 6 months. While I agree that the
claimant’s conditions were not totally disabling as indicated by the
physician, I find that the opinion in which the physician indicated that
the claimant was unable to work due to back pain, anxiety, and
cervicalagia [sic] is not supported by objective findings (Exhibit 7F).
(Tr. at 33-4).
On August 27, 2013, in a request for information by the Food Stamp
Program, Dr. Tariq opined that the plaintiff was unable to work because of his
back pain, anxiety, and cervicalgia. (Tr. at 208). Dr. Tariq was uncertain when the
conditions began but opined that the plaintiff’s inability to work was not
permanent, and he would be able to return to work in a minimum of six months.
As an initial matter, despite plaintiff’s contention to the contrary, Dr. Tariq’s
August 27, 2013, opinion is not entitled to the usual deference given to a treating
physician. Pursuant to 20 CFR § 404.1527, a treating source is defined as an
“acceptable medical source who provides [the claimant], or has provided [the
claimant], with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].” 20 CFR § 404.1527(a)(2).
This requires that the claimant must have seen the provider with a frequency that is
consistent with the requirements of his conditions. Id. This requires neither that
visits are very frequent, nor does it preclude a source that the claimant only sees
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twice a year if that is the common treatment schedule for the claimant’s condition.
Id. However, a source that the claimant sees only once to obtain a report in
support of disability is not a treating source. Id.
At the time that Dr. Tariq gave his August 27, 2013, opinion, he had treated
the claimant on only one occasion—the day before, on August 26, 2013. (Tr. at
20, 207-8). After one visit, Dr. Tariq did not possess any special knowledge of the
patient’s condition due to the longevity of his treatment that now entitles his
opinion to special consideration. See Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997); 20 CFR § 404.1527(d)(2). Additionally, as the ALJ noted, there
are no objective findings, such as treatment records or physical examination
results, supporting Dr. Tariq’s opinion. (Tr. at 34). The medical evidence of
record on the date of Dr. Tariq’s opinion includes surgical results from plaintiff’s
cervical fusion at Gadsden Regional Medical Center and a record from Dr. Tariq
on August 26, 2016, where he, seemingly without medical testing or objective
evidence, diagnosed the patient with cervicalgia, lumbago, and generalized anxiety
disorder. (Tr. at 170-180, 207). Even with those diagnoses, his recommended
treatments at that time were neck and back exercises and continuation of the
medication prescribed for anxiety. (Tr. at 207). Therefore, the court finds that Dr.
Tariq had not established “treating physician” relationship at the time of his
August 27, 2013, report.
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But even if it is assumed that Dr. Tariq was a “treating physician, the ALJ’s
decision to afford “partial weight” was supported by substantial evidence because
the opinion was not supported by objective medical evidence.
physician’s opinion can be discounted if is not supported “by objective medical
evidence or is wholly conclusory.” See Crawford v. Comm'r of Soc. Sec., 363
F.3d 1155, 1159 (11th Cir. 2004) (quoting Edwards v. Sullivan, 937 F.2d 580,
583–84 (11th Cir. 1991)). Dr. Tariq’s conclusory opinion that the claimant is
unable to perform any work is contradicted by the conservative treatment the
claimant had received to that point, as well as the consultative examination by Dr.
Schafer performed only a month later, in September 2013.
2. Dr. Lachman
Mr. Wise also argues that the ALJ failed to afford proper weight to the
opinion of his treating psychiatrist, Dr. Lachman.
(Doc. 15, p.1).
Commissioner, on the other hand, argues that there are inconsistencies in Dr.
Lachman’s opinions that provide substantial evidence for the ALJ to discredit her
opinion. (Doc. 21, pp. 5-7). The ALJ afforded “minimal weight” to the Mental
Health Source Statements completed by Dr. Lachman on December 1, 2014, and
August 24, 2015, because they were inconsistent with objective medical findings.
(Tr. at 34).
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In the December 1, 2014, opinion Dr. Lachman opined that the plaintiff was
able to (1) “understand, remember, or carry out very short and simple instructions,”
(2) “maintain attention, concentration, and pace” for at least a two hour period, and
(3) “maintain socially appropriate behavior and adhere to basic standards of
neatness and cleanliness.” (Tr. at 237). However, she opined that the plaintiff
could not: (1) “perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances,” (2) keep an orderly routine while
unsupervised, or (3) accept and respond appropriately to instruction and criticism.
Id. She opined that Mr. Wise was “not able to work at all,” and that these
limitations dated to October 1, 2012. Id.
Nine months later, on August 24, 2015, Dr. Lachman completed another
Mental Health Source Statement where she opined that Mr. Wise could
“understand, remember, or carry out very short and simple instructions” and
“maintain attention, concentration, and pace” for at least a two hour period. (Tr. at
371). She opined the plaintiff could not: (1) “perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances,”
(2) keep an orderly routine while unsupervised, (3) accept and respond
appropriately to instruction and criticism, or (4) “maintain socially appropriate
behavior and adhere to basic standards of neatness and cleanliness.” Id. She
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opined that the plaintiff was “not employable” and that the limitations existed back
to October 1, 2012. Id.
The court finds that there is substantial evidence in the record to support the
ALJ’s finding that the medical opinions were not supported by objective medical
findings. As an initial matter, Dr. Lachman’s findings that the plaintiff’s
limitations existed in October of 2012 are not supported by any medical evidence.
Dr. Lachman’s first appointment with the plaintiff was on April 7, 2014, and the
first medical evidence of any psychiatric treatment is on February 18, 2014. See
(Tr. at 210-6).
There are medical records for her to review concerning the
claimant’s mental-health status prior to February 2014. Therefore, Dr. Lachman
had no way of knowing what limitations the plaintiff had in 2012, and any opinion
about plaintiff’s psychiatric condition at that time was not based on objective
medical evidence. Additionally, on December 1, 2014, Dr. Lachman opined that
the plaintiff had very severe limitations and was “not able to work at all.” (Tr. at
237). However, just fourteen days later, Dr. Lachman had an appointment with the
Mr. Wise where she noted that he was frustrated because he was unable to get in to
pain management but was “otherwise stable on psych regimen.” (Tr. at 312).
On April 27, 2015, Dr. Lachman again saw Mr. Wise.
(Tr. at 320).
However, the notes from this visit are duplicates of the December 15 visit with the
exception of a new notation that the plaintiff was “bothered by minimal stressors to
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the point where he is not functioning well.” Id. He was noted to be very anxious
but also cooperative and polite. Id. On July 27, 2015, however, the plaintiff had
an appointment with a LCSW, Chad Knight, where he reported reduced anxiety
and anger and that his anxiety was well managed. (Tr. at 333-4). He achieved
some of his counseling goals and was noted to be oriented to person, place, time,
and situation with no disturbances and of good mood and full affect. Id. Yet, less
than one month later, on her Mental Health Source Statement dated August 24,
2015, Dr. Lachman ascribed even more severe limitations than in her December 1,
2014, opinion. (Tr. at 371). This is wholly inconsistent with the latest psychiatric
encounter with the plaintiff at Quality of Life with Chad Knight where he was
noted to be improving. Compare (tr. at 371) with (tr. at 333-4). Because of the
inconsistencies with the objective medical evidence, the court finds that there is
substantial evidence in the record to support the ALJ’s decision to afford “minimal
weight” to Dr. Lachman’s opinions.
B. Non-Treating Physicians
As addressed previously, the ALJ must consider several factors in
determining the weight to be given to a medical opinion. 20 C.F.R. § 404.1527(c).
Different types of medical sources are entitled to differing weights. The opinion of
a treating physician, who has an ongoing relationship with the patient, is entitled to
the greatest weight.
20 C.F.R. § 404.1502.
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A non-treating physician or
psychologist, who has examined the patient but does not treat the patient, is
entitled to less weight. Id. The least weight is given to a non-examining medical
source, who may provide an opinion based on a review of the patient’s record but
who has not examined the patient. Id. Even so, any medical source’s opinion can
be rejected where the evidence supports a contrary conclusion. See, e.g., McCloud
v. Barnhart, 166 F. App’x 410, 418-19 (11th Cir. 2008).
1. Dr. June Nichols
Mr. Wise argues that the ALJ erroneously substituted his opinion for that of
the medical examiners when he gave only “partial weight” to the opinion of the
consultative examiner, June Nichols. (Doc. 15, p. 39). The Commissioner argues
that there was substantial evidence to support the finding because Dr. Nichols’
opinion is not supported by the objective findings. (Doc. 21, p. 8). Dr. Nichols
gave the following opinion on October 12, 2013.
…Mr. Wise suffers with chronic pain and has had increasing
symptoms of depression; with greater difficulty controlling impulses.
His ability to relate interpersonally and withstand the pressures of
everyday work is compromised due to the nature of his current
symptomatology. He does not have deficits, which would interfere
with his ability to remember, understand and carry out work related
instructions. He is able to handle his own funds and to live
independently. Prognosis for significant improvement over the next
12 months is guarded.
(Tr. at 196).
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The ALJ gave only “partial weight” to Dr. Nichols’ opinion because he
found that the opinion that Mr. Wise’s ability to relate interpersonally and
withstand the pressures of everyday work was compromised was not supported by
the objective findings of the examination. (Tr. at 33). On the day of the exam, Dr.
Nichols noted that Mr. Wise was “neat and clean,” that he spoke clearly and with a
normal rate, that his mood was “mildly dysphoric” and congruent with his thought
processes, and that his affect was appropriate and normal. (Tr. at 194). Mr. Wise
reported that he had insomnia, decreased appetite, decreased energy, and
anhedonia. Id. He denied having homicidal or suicidal ideations and crying spells.
Id. Mr. Wise had a clear stream of consciousness, he was “oriented to person,
place, time, and situation,” his mental processing was of an adequate speed, his
memory was intact, he had an adequate general fund of knowledge, he could think
abstractly, he had normal thought processes, he was unremarkable for
hallucinations and delusions, he denied having obsessive or compulsive thoughts,
he had good judgment and insight, and he was of average intellectual ability. (Tr.
at 195). He reported that he did not like crowds of people and that he had panic
The court finds that there is substantial evidence in the record to support the
ALJ’s finding. In addition to all of the above findings that indicate a much higher
level of functioning than was opined, Dr. Nichols reported that Mr. Wise was well
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motivated and cooperative during the exam. (Tr. at 195). She also reported that
Mr. Wise lived with his wife and children. (Tr. at 195). This provides substantial
evidence to discredit Dr. Nichols’ opinion that Mr. Wise is lacking in interpersonal
abilities and unable to withstand everyday work. Additionally, to the extent that
the plaintiff argues that the ALJ did not state his reasons with “at least some
measure of clarity,” this argument is without merit. The ALJ explicitly stated that
he was giving only “partial weight” to the opinion because it was not supported by
the objective findings. See (Tr. at 33).
2. Dr. David Wilson
Plaintiff argues that the ALJ failed to state with at least some measure of
clarity the reasons that he discredited the opinion of Dr. Wilson and afforded it
only “minimal weight.” (Doc. 15, p. 39).
Conversely the Commissioner argues
that there is substantial evidence in the record to support the ALJ’s decision. (Doc.
21, p. 8). The ALJ afforded “minimal weight” to the Mental Health Source
Statement by Dr. David Wilson because the opinion was inconsistent with the
objective evidence gained through his evaluation of the plaintiff. Specifically the
Minimal weight is given to the mental health source statement
completed by Dr. Wilson on September 2, 2015, in that his opinions
are inconsistent with his objective findings upon examination during
the psychological evaluation. I specifically note that Dr. Wilson
opines that the claimant would experience sedation and possibly
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memory impairment as side effects to his medications. However, the
claimant admitted that he experienced no side effects resulting from
his prescription medications.
(Tr. at 34).
On September 2, 2015, Dr. Wilson opined that the plaintiff was unable to (1)
“understand, remember, or carry out” instructions, (2) maintain attention,
concentration or pace for a two hour period, (3) work within a schedule and be
punctual within tolerance, (4) keep up a routine without supervision, (5) adjust to
changes in the work place, (5) appropriately respond to criticism from supervisors,
(5) interact with co-workers, (6) maintain socially acceptable behavior and adhere
to standards of neatness and cleanliness. (Tr. at 379). He also opined that the
plaintiff would miss 30 out of 30 days of work in a time period. Id. Furthermore,
he stated that the plaintiff would experience sedation and possibly memory
impairment as a side effect of his medication. Id.
However, Dr. Wilson’s evaluation of the plaintiff indicates a much lower
degree of mental impairment than is depicted in his opinion. The plaintiff drove
himself to the interview and appeared neat and clean. (Tr. at 376). The records do
not note that he was late, so, presumably, he arrived on time. Id. His thought
processes were intact, his speech was clear and normal to rapid in rate, and he was
cooperative and respectful. Id. He reported that he had no phobias, obsessions,
compulsions, or crying spells. Id. He reported that he sometimes had panic attacks
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and occasionally had suicidal ideations. Id. On the normal day, he assisted in the
care of his disabled wife, cleaned the house, and cared for his dog. Id. He recently
had gone on a Sunday outing to the park with his daughter and grandson. Id. He
also reported that he occasionally attended church. Id. Additionally, the plaintiff
reported no sedation or memory impairment with his current medication regime
despite reporting side effects of prior medications. See id.
The court finds that there is substantial evidence to support the ALJ’s
finding that the severe limitations that Dr. Wilson opined existed are not supported
by the objective findings of the psychological evaluation, and in some instances are
directly contradicted by the medical findings. Furthermore, to the extent that the
plaintiff again seeks to argue that the ALJ failed to state the reasons for
disregarding the opinion “with some measure of clarity,” this is again without
merit. See (Doc. 15, p.39). The ALJ clearly and explicitly stated that he was
affording only “minimal weight” to the opinion and the reasons for doing so. (Tr.
C. Severe Impairments
Mr. Wise also argues that the ALJ failed to consider all of his severe
impairments. (Doc. 15, p. 45). He claims that the ALJ should have considered his
mental impairments as “severe,” that the ALJ failed to follow the “slight
abnormality” standard, and that the ALJ violated SSR 96-8p. Id. Conversely, the
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Commissioner argues that the ALJ’s finding was proper because the plaintiff failed
to meet the burden of proving he had a severe impairment. (Doc. 21, pp. 12-3).
To reiterate, the ALJ found that the plaintiff had severe impairments of “cervical
disk disease, obesity, s/p bilateral carpal tunnel surgery, and lumbar back pain.”
(Tr. at 20). The ALJ also found that “the [plaintiff’s] medically determinable
impairments of major depression-recurrent and anxiety disorder considered singly
and in combination [did] not cause more than minimal limitation in the [plaintiff’s]
ability to perform basic mental work activities and [was] therefore nonsevere.”
(Tr. at 27).
To the extent that Plaintiff relies on McDaniel v. Bowen for the proposition
that “only claims based on the most trivial impairments [should be] rejected,” this
is without merit in the context of this case. See (Doc. 15, p. 45) (citing McDaniel
v. Bowen, 800 F.2d 1026 (11th Cir. 1986). In McDaniel v. Bowen, the court
reiterated the Brady standard for the determination of severe impairment. 800 F.2d
at 1031 (citing Brady v. Heckler, 724 F.2d 914 (11th Cir.1984)). That standard
provides an “impairment can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual that it would not be
expected to interfere with the individual's ability to work, irrespective of age,
education or work experience.” McDaniel, 800 F.2d at 1031 (citing Brady, 724
F.2d 914). However, both McDaniel and Brady were cases where the plaintiff was
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found not to have any severe impairment at all. See McDaniel, 800 F.2d 1026,
Brady, 724 F. 2d 914. Thus, in both cases, the five-step sequential process was
ended at Step Two. See McDaniel, 800 F.2d 1026, Brady 724 F. 2d 914.
In the plaintiff’s case, however, the analysis did not end at Step Two. (Tr. at
13-16). Rather, because the plaintiff was found to be suffering from at least one
severe impairment, the ALJ continued to Step Three. (Tr. at 16). The number or
nature of severe impairments found at Step Two is unimportant if the sequential
analysis continues because, in assessing the claimant’s RFC at Step Four, all of the
claimant’s impairments must be considered, whether “severe” or not.
designation of an impairment as “severe” at Step Two only has the effect of
pushing the sequential analysis to the next step, which occurred here.
Plaintiff also alleges that the ALJ did not follow the “slight abnormality
standard” when he determined that Plaintiff’s mental impairments were nonsevere. (Doc. 15, p. 45).
In the Eleventh Circuit, the Brady standard is the
determinative test for whether an impairment is severe. See Brady, 724 F. 2d 914.
Here, the ALJ determined that the plaintiff’s medically determinable mental
impairments, major depression and anxiety, were only minimally limiting of the
claimant’s ability to perform work activities. (Tr. at 27). The ALJ reviewed the
medical evidence of record, weighed medical opinions, and explained the rationale
behind his findings. Additionally, the court has reviewed the medical records, with
Page 22 of 24
special attention to those cited by the plaintiff (doc. 15, p. 46), and found that the
plaintiff’s only recurrent psychiatric complaints were depression and anxiety. See,
e.g., (Tr. at 193-6, 204-16, 212-33, 236-45, 274-88). However, the existence of
an impairment does not prove that the impairment is severe or impacts a claimant’s
ability to work. Hutchinson v. Astrue, 408 F. App’x 324, 326 (11th Cir. 2011).
There is substantial evidence to support the ALJ’s findings that plaintiff’s major
depression and anxiety are non-severe. Accordingly, to the extent that Plaintiff
seeks remand on that ground, such request is declined.
Plaintiff additionally seeks remand on the ground that the ALJ violated
SSR 96-8p by not considering both his severe and non-severe impairments when
assessing his RFC. (Doc. 15, p. 45). The plaintiff argues that the ALJ did not
consider his “panic disorder with agoraphobia, posttraumatic stress disorder, and
attention deficit disorder with hyperactivity.” (Doc. 45, p. 45). As plaintiff points
out, SSR 96-8p requires:
In assessing RFC, the adjudicator must consider limitations and
restrictions imposed by all of an individual’s impairments, even those
that are not “severe.” While a “not severe” impairment(s) standing
alone may not significantly limit an individual’s ability to do basic
work activities, it may—when considered with limitations or
restrictions due to other impairments—be critical to the outcome of a
1996 WL 374184 at *5 (July 2, 1996).
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However, in considering step four of the sequential evaluation process, the
ALJ noted explicitly that determining the plaintiff’s RFC required him to consider
all of the severe and non-severe impairments cumulatively. (Tr. at 19). The ALJ
determined that the plaintiff had the RFC to perform sedentary work after
consideration of “all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other
evidence.” (Tr. at 30). Therefore, the ALJ’s decision is consistent with the
mandate of SSR 96-8p.
Upon review of the administrative record, and considering all of Mr. Wise’s
arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law.
The determination will be
AFFIRMED, and this action will be DISMISSED WITH PREJUDICE. A separate
order will be entered.
DONE this 5th day of December, 2018.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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