Dubose v. Social Security Administration, Commissioner
MEMORANDUM OPINION - Substantial evidence supports the ALJ's denial of Ms. Dubose's applications for a period of disability and disability insurance benefits. Therefore, the court WILL AFFIRM the Commissioner's decision. The court will enter a separate order consistent with this memorandum opinion. Signed by Judge Annemarie Carney Axon on 3/31/2021. (KEK)
2021 Mar-31 AM 09:59
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CHRISTINA LYNN DUBOSE,
Case No.: 4:20-cv-00760-ACA
Plaintiff Christina Lynn Dubose appeals the decision of the Commissioner of
Social Security denying her claim for a period of disability and disability insurance
benefits. Based on the court’s review of the administrative record and the parties’
briefs, the court WILL AFFIRM the Commissioner’s decision.
On June 26, 2017, Ms. Dubose applied for a period of disability and disability
insurance benefits, alleging that her disability began on May 31, 2015. (R. at 87,
225–26). The Commissioner initially denied Ms. Dubose’s claim (id. at 152), and
Ms. Dubose requested a hearing before an Administrative Law Judge (“ALJ”) (see
id. at 160). After holding a hearing (r. at 102–136), the ALJ issued an unfavorable
decision (id. at 87–97). The Appeals Council denied Ms. Dubose’s request for
review (id. at 1), making the Commissioner’s decision final and ripe for the court’s
judicial review, 42 U.S.C § 405(g).
STANDARD OF REVIEW
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The court “must determine whether the Commissioner’s decision is
supported by substantial evidence and based on proper legal standards.” Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotation marks
omitted). “Under the substantial evidence standard, this court will affirm the ALJ’s
decision if there exists such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Henry v. Comm’r of Soc. Sec., 802 F.3d 1264,
1267 (11th Cir. 2015) (quotation marks omitted). The court may not “decide the
facts anew, reweigh the evidence, or substitute [its] judgment for that of the [ALJ].”
Winschel, 631 F.3d at 1178 (quotation marks omitted). The court must affirm
“[e]ven if the evidence preponderates against the Commissioner’s findings.”
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004)
(quotation marks omitted).
Despite the deferential standard for review of claims, the court must
“scrutinize the record as a whole to determine if the decision reached is reasonable
and supported by substantial evidence.” Henry, 802 F.3d at 1267 (quotation marks
omitted). Moreover, the court must reverse the Commissioner’s decision if the ALJ
does not apply the correct legal standards. Cornelius v. Sullivan, 936 F.2d 1143,
1145–46 (11th Cir. 1991).
To determine whether an individual is disabled, an ALJ follows a five-step
sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
Winschel, 631 F.3d at 1178.
Here, the ALJ determined that Ms. Dubose had not engaged in substantial
gainful activity since her alleged onset date of May 31, 2015. (R. at 89). The ALJ
found that Ms. Dubose’s degenerative disc disease, peripheral neuropathy, asthma,
and interstitial cystitis were severe impairments, but that her lupus, asthma,
hypothyroidism, mitral valve prolapse, obesity, monoarticular arthritis of the right
foot, biliary colic, fatigue, and gout were non-severe impairments. (R. 89). The ALJ
also found that Ms. Dubose’s fibromyalgia was not a medically determinable
impairment. (Id. at 90). The ALJ then concluded that Ms. Dubose does not suffer
from an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix
After considering the evidence of record, the ALJ determined that Ms. Dubose
had the residual functional capacity to perform light work except that she faced some
additional physical and environmental limitations. (R. at 90–91). Based on this
residual functional capacity and the testimony of a vocational expert, the ALJ found
that jobs existed in the national economy that Ms. Dubose could perform, including
ticket seller, booth cashier, and office helper. (Id. at 96–97). Accordingly, the ALJ
determined that Ms. Dubose has not been under a disability, as defined in the Social
Security Act, from her alleged onset date through the date of the decision. (Id. at
Ms. Dubose argues that the court should reverse and remand the
Commissioner’s decision for two reasons: (1) the ALJ did not properly evaluate the
opinion of consultative examiner Dr. Anand Iyer and (2) the ALJ’s decision is not
supported by substantial evidence because the hypothetical that he posed to the
vocational expert was incomplete. (Doc. 11 at 11–24). The court examines each
issue in turn.
Evaluation of Dr. Iyer’s Opinion
Ms. Dubose’s first argument is that the ALJ did not properly consider the
opinion of the Commissioner’s consultative physician, Dr. Iyer. (Doc. 11 at 11–21).
Dr. Iyer examined Ms. Dubose on one occasion and opined that she “may
have some impairment of functions involving: sitting, standing, walking, climbing
steps, bending, lifting, twisting, carrying, [and] reaching overhead.” (R. 712). Dr.
Iyer also concluded that Ms. Dubose “does not have significant limitation of
functions involving: handling, hearing and speaking.” (Id.).
The ALJ found Dr. Iyer’s opinion only “somewhat persuasive.” (R. 95). The
In doing so, I note the opinion lacks specific vocationally relevant
language which makes it difficult to ascertain the physician’s exact
opinion about the claimant’s ability to engage in work related activity;
however, I find the assessment is consistent with a one time exam.
Indeed, the indication that the claimant may have difficulty with sitting,
standing, walking, climbing steps, bending, lifting, twisting, and
carrying is supported and consistent with the longitudinal record of
evidence. More specifically, the actual exam performed by the
physician was primarily normal with only a few notations such as pain
with range of motion and decreased sensation in her feet; however, the
longitudinal record of evidence noting degenerative disc disease with
neuropathy, including, but not limited to, tenderness to palpation,
muscle spasms, decreased range of motion, and decreased sensation is
certainly broadly consistent with the noted possible limitations.
However, having said that, I find, despite the notation about pain with
range of motion in the claimant’s neck, that the longitudinal record of
evidence does not support overhead reaching limitations. Indeed, the
claimant did not report any limitations with regard to reaching in her
function report or at the hearing.
(Id.). Ms. Dubose challenges the ALJ’s evaluation of Dr. Iyer’s opinion on two
First, Ms. Dubose contends that it was improper for the ALJ to find Dr. Iyer’s
opinion only somewhat persuasive based on the fact that the opinion lacked specific
vocationally relevant language. (Doc. 11 at 11). The regulations governing how the
Commissioner evaluates medical opinions changed for claims filed after March 27,
2017. See 20 C.F.R. § 404.1520c (2017). Because Ms. Dubose filed her application
for benefits in June 2017, the Commissioner argues that the new regulations apply
to the ALJ’s consideration of Ms. Dubose’s claim. (Doc. 12 at 6–15). Although
Ms. Dubose claims that the new regulations do not impact the ALJ’s obligation to
seek additional information from a medical source, she does not challenge the
applicability of the new regulations to the ALJ’s review of Dr. Iyer’s opinion. (See
generally doc. 11 at 11–21; doc. 13 at 2–4). Therefore, the court assumes that the
new regulations control the analysis.
Under the revised regulations, an ALJ “will not defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion(s). . . .”
20 C.F.R. § 404.1520c(a). Instead, the ALJ considers the persuasiveness of a
medical opinion using the following five factors: (1) supportability; (2) consistency;
(3) the relationship with the claimant, including the length of the treatment
relationship, the frequency of examinations, and the purpose and extent of the
treatment relationship; (4) specialization; and (5) other factors, including evidence
showing the medical source has familiarity with other evidence or an understanding
of the Social Security Administration’s policies and evidentiary requirements. Id. at
§ 404.1520c(c). Supportability and consistency are the most important factors, and
Id. at § 404.1520c(b)(2). The ALJ may, but is not required to, explain how he
considered the other factors. Id.
Here, the ALJ properly evaluated Dr. Iyer’s opinion under the relevant factors.
The ALJ noted that Dr. Iyer was a one-time examiner, and the ALJ explained why
some of Dr. Iyer’s conclusions were consistent with and supported by the one-time
exam and the longitudinal record of evidence and why other of Dr. Iyer’s
conclusions were not. (R. at 95). Accordingly, the court finds that substantial
evidence supports the ALJ’s decision to find Dr. Iyer’s opinion somewhat
Citing McClurkin v. SSA, 625 F. App’x 960 (11th Cir. 2015), Ms. Dubose
argues that the ALJ “failed to state with at least ‘some measure of clarity’ the
grounds for his decision in repudiating the opinion of an examining physician. (Doc.
11 at 14) (emphasis omitted). But the ALJ’s paragraph long, detailed explanation
for why he found Dr. Iyer’s opinion somewhat persuasive belies Ms. Dubose’s
position. (See R. 95).
Ms. Dubose also argues that the court should find that the ALJ improperly
evaluated Dr. Iyer’s opinion based on the Seventh Circuit’s “degree of suspicion”
standard adopted in Wilder v. Chater, 64 F. 3d 335 (7th Cir. 1995). (Doc. 11 at 15–
21). The Eleventh Circuit has not adopted this standard. Therefore, this court will
not follow it either. But even if Wilder were controlling, Wilder is distinguishable
from the facts of this case. In Wilder, the consulting physician’s opinion was the
only evidence of the claimant’s impairments. Wilder, 64 F.3d at 337–38. Here, the
record contains other evidence and opinions about Ms. Dubose’s physical
limitations. (See R. 310–884). Accordingly, Wilder does not assist Ms. Dubose.
See Jackson v. Soc. Sec. Admin., Comm’r, 779 F. App’x 681, 685 (11th Cir. 2019)
(explaining that Wilder is inapposite where the ALJ does not reject the only medical
evidence about a claimant’s impairments).
To the extent Ms. Dubose contends that the ALJ substituted his opinion for
that of Dr. Iyer (see doc. 11 at 13–14), Ms. Dubose cites a number of cases that stand
for this general proposition, but she advances no specific argument regarding how
the ALJ did so in this case. Nevertheless, although an ALJ “may not make medical
findings” himself, the ALJ’s responsibility is “to resolve conflicting medical
opinions.” Ybarra v. Comm’r of Soc. Sec., 658 F. App’x 538, 543 (11th Cir. 2016)
(finding that “the ALJ did not usurp the role of a physician” by weighing the
credibility of a medical expert’s opinion “in light of other record evidence”). And
that is what the ALJ did here.
Second, Ms. Dubose argues that if the ALJ was dissatisfied with Dr. Iyer’s
opinion because it did not contain specific vocationally relevant language, then the
ALJ should have recontacted Dr. Iyer. (Doc. 11 at 11–13). If a consultative report
is inadequate or incomplete, the ALJ will contact the physician and ask the physician
to provide the missing information or a revised report. See 20 C.F.R. § 416.919p(b).
But nothing in the regulations requires a consultative examiner to describe his
opinion about a claimant’s limitations in vocationally relevant language.
See 20 C.F.R. § 416.919n. And in fact, “the absence of a medical opinion in a
consultative examination report will not make the report incomplete.” Id. (citing 20
C.F.R. § 416.913(a)(2)). Accordingly, the court finds that the ALJ was not required
to recontact Dr. Iyer.
Moreover, whether remand is required where an ALJ does not recontact a
medical source depends on “whether the record reveals evidentiary gaps which result
in unfairness or clear prejudice.” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir.
1995) (quotations omitted). Here, the ALJ did not discount Ms. Dubose’s limitations
that Dr. Iyer identified. Rather, the ALJ concluded that the longitudinal medical
evidence supported Dr. Iyer’s opinion that Ms. Dubose had some difficulty sitting,
standing, walking, climbing steps, bending, lifting, twisting, and carrying. (R. 95).
And the ALJ accounted for a number of the limitations in Ms. Dubose’s residual
functional capacity. (See id. at 90–91).
In sum, the court finds that substantial evidence supports the ALJ’s evaluation
of Dr. Iyer’s opinion, and the ALJ did not err in failing to recontact Dr. Iyer to clarify
his consultative examination report.
Vocational Expert Hypothetical
Ms. Dubose’s second argument is that the ALJ’s decision is not based on
substantial evidence because the ALJ’s hypothetical question to the vocational
expert assumed that Ms. Dubose could perform medium work and did not account
for all of Ms. Dubose’s impairments and limitations. (Doc. 11 at 23–24).
As an initial matter, Ms. Dubose does not identify what additional
impairments or limitations the ALJ should have included in the hypothetical
question to the vocational expert. (See id.).
In addition, Ms. Dubose’s argument operates from the faulty premise that the
ALJ relied on the vocational expert’s testimony in response to a hypothetical
question that assumed Ms. Dubose could perform medium work. (Id. at 21). The
hearing transcript is clear that the ALJ asked the vocational a series of hypothetical
questions. First, the ALJ asked the vocational expert questions about a hypothetical
individual who could perform medium work. (R. 131–32). The ALJ then modified
the hypothetical and posed a number of questions to the vocational expert, asking
the vocational expert to assume that the individual could perform light work. (Id. at
133–35). In response to these questions concerning light work, the vocational expert
testified that the hypothetical individual could perform various jobs, including ticket
seller, cashier, and office helper. (Id. at 133–34). The ALJ accepted the vocational
expert’s testimony about the hypothetical individual who could perform light work
(see r. 96–97), and Ms. Dubose does not challenge the vocational expert’s testimony
in that regard.
Accordingly, the court finds no error with the ALJ’s reliance on the vocational
Substantial evidence supports the ALJ’s denial of Ms. Dubose’s applications
for a period of disability and disability insurance benefits. Therefore, the court
WILL AFFIRM the Commissioner’s decision.
The court will enter a separate order consistent with this memorandum
DONE and ORDERED this March 31, 2021.
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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