White v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 11/12/2013. (MSN)

FILED
2013 Nov-12 AM 11:56
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
DAVID A. WHITE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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5:11-cv-3471-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, David A. White, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying his application for
Supplemental Security Income (“SSI”). Mr. White 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).
Mr. White was thirty-six years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has a ninth grade education. (Tr. at 93-93, 171.)
His past work experiences include employment as a grounds keeper. (Tr. at 83.) Mr.
White claims that he became disabled on September 15, 2007, due to a back injury,

herniated discs, degenerative disc disease, and depression. (Tr. at 220.)
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 or she is, the
claimant is not disabled and the evaluation stops. Id. If he or she 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. 20 C.F.R. §§ 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. pt. 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 or she
will be found disabled without further consideration. Id. If they do not, a

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determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her 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 or she can 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. Id.
Applying the sequential evaluation process, the ALJ found that Mr. White has
not engaged in substantial gainful activity since September 4, 2008, the application
date. (Tr. at 15.) According to the ALJ, Plaintiff’s chronic back and leg pain secondary
to degenerative disc disease; spondylosis; bulging disc at L4-5 L5-S1 level; and some
spinal stenosis secondary to an injury in October 2005 are considered “severe” based
on the requirements set forth in the regulations. (Id.) However, he found that these
impairments neither meet nor medically equal any of the listed impairments in 20

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C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The ALJ determined that Mr. White
has the following residual functional capacity:
to perform light work in regards to which he can lift/carry 20
pounds occasionally; 10 pounds frequently; sit 6 hours and stand
4 hours with breaks; walk 4 hours with customary breaks; no
more than occasionally manipulate stairs, kneel, crouch, stoop,
but not repetitively; avoid ladders, crawling, unprotected heights,
heavy vibratory jobs, cold exposure; and unlimited fine and gross
manipulation.
(Tr. at 15-16.)
According to the ALJ, Mr. White has no past relevant work; he is a “younger
individual;” he has a “limited education;” and he is able to communicate in English,
as those terms are defined by the regulations. (Tr. at 16.) The ALJ determined that
transferability of job skills is not an issue because Plaintiff has no past relevant work.
(Id.) Applying the medical vocational rules as a framework, and considering the
testimony of a vocational expert (“VE”), the ALJ found that there are a number of jobs
in the national economy that the plaintiff is capable of performing. (Tr. at 20-21.)1 The

1

At Plaintiff’s second hearing, a VE testified that an individual with Plaintiff’s age,
education, work history, and RFC could perform work as a nut sorter, a wire wrapper, and a
stuffer. (Tr. at 83-84.) Although the ALJ in his decision mistakenly cited the jobs a VE at the
first hearing identified in response to a different hypothetical question (Tr. at 21, 104-05), such
error was harmless, as the VE at the second hearing identified a significant number of jobs in the
national economy Plaintiff could perform. See Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987).
Further, Plaintiff has not raised this error as an issue in his brief, and has thus waived it. See
United Tech. Corp. v. Mazer, 556 F.3d 1260, 1279-80 (11th Cir. 2009).
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ALJ concluded his findings by stating that Plaintiff “has not been under a disability, as
defined in the Social Security Act, since September 4, 2008, the date the application
was filed.” (Tr. at 21.)2
II.

Standard of Review
This 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 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

2

For SSI benefits, a claimant becomes eligible in the first month he is both disabled and
has filed an SSI application. See 20 C.F.R. § 416.501(2011); Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005). Thus, the relevant time frame for SSI benefits was September 4, 2008, the
date Plaintiff protectively filed for SSI benefits, through the date of the ALJ’s decision.
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evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J.,
dissenting) (quoting Consolo v. Fed. 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).
III.

Discussion
Mr. White alleges that the ALJ’s decision should be reversed and remanded for

two reasons. First, Mr. White contends that the ALJ did not accord enough weight to
the opinion of his treating physician, neurologist Jeffrey T. Harris, M.D. (“Dr.
Harris”). Second, he contends that the ALJ accorded too much weight to the opinion
of the non-examining medical expert who testified at his hearing, board-certified
orthopaedist Allan Levine, M.D. (“Dr. Levine”).
A.

Treating Physician’s Opinion

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Plaintiff contends that the ALJ did not give proper weight to his treating
physician’s functional capacity opinion expressed in an August 2009 RFC
questionnaire. (Tr. at 387-90.) In the questionnaire, Dr. Harris indicated that he
treated Plaintiff for lumbar stenosis and low back pain. (Tr. at 387.) He stated that
Plaintiff’s medication caused drowsiness, sedation, and impaired judgment, which may
implicate Plaintiff’s ability to work. (Tr. at 387.) Dr. Harris also stated that no
emotional factors contributed to the severity of Plaintiff’s symptoms and functional
limitations, but then limited Plaintiff to low-stress jobs. (Tr. at 388.) Dr. Harris
further opined, among other things, that Plaintiff’s pain would constantly interfere
with his ability to maintain attention and concentration; he could not sit or stand/walk
for more than two hours each in an eight-hour workday; he could rarely twist, stoop,
crouch, and climb ladders; he would need five or six unscheduled fifteen minute breaks
each day; and he would likely miss more than four days of work per month. (Tr. at
389-90.)
Within the classification of acceptable medical sources are the following
different types of sources which are entitled to different weights of opinion: 1) a
treating source, such as Dr. Harris, which is defined in the regulations as “your
physician, psychologist, or other acceptable medical source who provides you, or has

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provided you, with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with you;” 2) a non-treating source, 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. 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). The regulations and case law indeed set forth a
general preference for treating sources’ opinions over those of non-treating sources,
and non-treating sources over non-examining sources. See 20 C.F.R. § 404.1527(d)(2);
Ryan v. Heckler, 762 F.2d 939, 942 (11th Cir. 1985).
As such, a treating physician’s testimony is entitled to “substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Crawford v.

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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). “Good
cause” exists for an ALJ to not give a treating physician’s opinion substantial weight
when: “(1) the treating physician’s opinion was not bolstered by the evidence; (2) the
evidence supported a contrary finding; or (3) the 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).
In this case, the ALJ provided several reasons for giving little weight to Dr.
Harris’s questionnaire opinion. The ALJ acknowledged Dr. Harris was a treating
source, but explained that Dr. Harris’s functional capacity opinion was inconsistent
with his own records as well as other records in the file. (Tr. at 19.) The ALJ noted
the objective findings did not show the degree of limitation Dr. Harris suggested. (Tr.
at 16.) Further, the ALJ indicated he found Dr. Harris’s opinions to be conclusory.
(Tr. at 19.)
The ALJ’s decision to accord little weight to Dr. Harris’s questionnaire opinion

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is supported by substantial evidence. First, Dr. Harris’s functional capacity opinion
was not consistent with the objective medical evidence in the record, including his own
treatment notes. At several examinations, Dr. Harris found Plaintiff had deep tendon
reflexes at 2/4, which meant that Plaintiff’s reflexes were normal, normal motor
strength at 5/5, normal gait, and intact balance and coordination. (Tr. at 16, 20, 301,
305, 307, 393; see also Tr. at 313.) At an examination in December 2008, Dr. Harris
noted Plaintiff’s gait was limited by pain and his balance and coordination were
“mildly” impaired. (Tr. at 379.) However, by August 2009, he observed Plaintiff’s
gait was normal; his balance and coordination were intact; and his sensory modalities
were intact. (Tr. at 393.) While at some examinations Dr. Harris noted some
decreased sensation (tr. at 301, 305, 307, 379), Plaintiff at his hearing denied having
numbness. (Tr. at 44, 72.) Other sources on examination also noted intact sensation.
(Tr. at 313, 357-58, 374, 376, 409.) For example, Dr. John H. Lary, a consultative
examiner, observed in October 2008 that though Plaintiff walked with a mild limp, he
was also able to heel and toe walk, assume and arise from a squat and a kneeling
position, and balance without any aids. (Tr. at 313.) A December 2008 MRI of
Plaintiff’s lumbar spine was negative for spinal stenosis, and there was no evidence of
nerve root compression. (Tr. at 19, 73, 385.) A psychological consultative examiner

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also observed that Plaintiff’s gait, balance, and coordination were unimpaired. (Tr. at
18, 324.) Additionally, Plaintiff did not need a cane or other assistive device. (Tr. at
18, 311, 389.) There is no indication that Dr. Harris or any other source recommended
surgery. (Tr. at 20, 95, 323.) See Peters v. Astrue, 232 F. App’x 866, 871 (11th Cir.
2007) (noting that “conservative” treatment is a good reason to discount a treating
physician’s opinion). At several examinations, Plaintiff even reported improvement
with his treatment. (Tr. at 20, 303, 305, 307, 381, 383, 393.) Further, Dr. Levine, and
Keith H. Langford, M.D., a state agency consultant, both agreed that the objective
findings in the record did not support a finding of significant limitations beyond a range
of light work. (Tr. at 74-75, 328- 34.) Dr. Levine explained that Dr. Harris was
identifying limitations that are not compatible with someone who has normal reflexes,
normal strength, normal gait and normal sensation. (Tr. at 79-80.)
The ALJ also appropriately found that the medical evidence did not support Dr.
Harris’s findings of mental limitations imposed by Plaintiff’s condition. See 20 C.F.R.
§ 416.927(d) (4) (providing that more weight is given to opinions consistent with the
record). First, as both the ALJ and Dr. Levine observed, Dr. Harris’s questionnaire
was internally inconsistent. (Tr. at 16, 74.) Dr. Harris stated that emotional factors did
not contribute to the severity of Plaintiff’s symptoms and functional limitations, but

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then stated that stress increased Plaintiff’s pain and thus limited him to low stress jobs.
(Tr. at 16, 74, 388.) Also, as the ALJ observed, Dr. Harris stated Plaintiff’s medication
caused drowsiness, sedation or impaired judgement, but there was no indication of this
in the medical records. (Tr. at 17, 19-20.) At examinations, sources frequently found
Plaintiff alert and oriented, and his records showed no known drug allergies. (Tr. at
16, 301, 305, 307, 357-59, 374, 376-77, 393, 412.) Further, the evidence does not
support Dr. Harris’s conclusion that Plaintiff’s pain or symptoms constantly interfered
with his attention and concentration. Again, Dr. Harris’s own notes reflect he often
observed Plaintiff to be alert. (Tr. at 301, 305, 307, 393.) At a neuropsychological
evaluation in November 2008, Carol Walker, Ph.D. observed Plaintiff’s attention and
concentration were well maintained during the evaluation and his insight and judgment
appeared to be good. (Tr. at 18, 325-26.) She found Plaintiff’s capacity to understand
and follow instructions was unimpaired. (Tr. at 18, 326.)
Finally, the ALJ also appropriately considered that Dr. Harris’s opinion was
conclusory. (Tr. at 19.) The Eleventh Circuit has stated that a “treating physician’s
report ‘may be discounted when it is not accompanied by objective medical evidence
or is wholly conclusory.’” Crawford, 363 F.3d at 1159 (quoting Edwards v. Sullivan, 937
F.2d 580, 583 (11th Cir. 1991)). Dr. Harris did not include with the questionnaire the

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results of a physical examination or adequately explain how he reached his conclusions.
(Tr. at 387-90.) See 20 C.F.R. § 416.927(d)(3) (providing more weight should be given
to opinions with supporting explanation). While Dr. Harris noted Plaintiff had lumbar
stenosis and low back pain and identified MRI evidence showing disc bulges and
compression of the thecal sac, the diagnoses of a condition alone is insufficient to show
functional limitations. See Johns v. Bowen, 821 F.2d 551, 555 (11th Cir. 1987) (the mere
diagnosis of condition says nothing about why the condition makes it impossible for the
claimant to be gainfully employed); McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.
1986) (“[T]he ‘severity’ of a medically ascertained disability must be measured in
terms of its effect upon ability to work, and not simply in terms of deviation from
purely medical standards of bodily perfection or normality.”). There is no indication
from Dr. Harris’s notes that he ever tested Plaintiff’s abilities to sit, stand, walk, lift,
carry, twist, stoop, crouch, or climb. (Tr. at 301-08, 378-85, 392-97). Additionally, as
other medical doctors observed, Dr. Harris’s objective findings in his progress notes
did not indicate a degree of limitation beyond the capacity to perform a range of light
work. (Tr. at 74-75, 328-34.)
In sum, considering that Dr. Harris’s RFC questionnaire was at times internally
inconsistent and conclusory, and not consistent with the other objective medical

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evidence of record or his own treatment notes, good cause existed for the ALJ to give
lesser weight to Dr. Harris’s opinions, despite the fact that he was Plaintiff’s treating
physician.
B.

Non-Examining Medical Expert’s Opinion

Plaintiff also argues that the ALJ gave too much weight to Dr. Levine’s opinion
because he was a non-examining source. Plaintiff did not object to Dr. Levine being
called as an expert witness at his June 21, 2010, hearing. (Tr. at 71.) At the hearing,
Dr Levine testified that he had reviewed Plaintiff’s medical record. (Tr. at 72.) Dr.
Levine opined based on his review of the medical evidence, and allowing for expected
pain, that Plaintiff could occasionally lift twenty pounds and frequently lift ten pounds;
he could sit six hours, stand four hours, and walk four hours out of eight hours with
customary breaks; he could occasionally manipulate stairs, kneel, crouch, and stoop but
not repetitively; and he should avoid ladders, crawling, unprotected heights, heavy
vibratory machinery and extreme cold exposure. (Tr. at 74-75.) Dr. Levine identified
objective medical evidence that supported his opinion such as Dr. Harris’s examination
findings that Plaintiff had normal reflexes, strength, gait, and sensation and the MRI
evidence indicating no spinal stenosis or nerve root comprehension. (Tr. at 73-74,
79-80, 301, 305, 307, 393.) Dr. Levine also explained how the degree of limitations Dr.

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Harris identified were not supported by the medical records, and noted that Dr. Harris
made inconsistent statements with regard to whether emotional factors contributed to
Plaintiff’s symptoms and limitations. (Tr. at 74, 79-80, 388.)
As explained above, Dr. Levine is classified as 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. The
regulations provide that an ALJ may ask for and consider the opinion of a medical
expert, such as Dr. Levine, on the nature and severity of a plaintiff’s impairments and
whether the impairment equals the requirements of any impairment listed in Appendix
1. See 20 C.F.R. § 416.927(f)(2)(iii). An ALJ evaluates a medical expert’s opinion
using the factors enumerated in 20 C.F.R. § 416.927(d) that are used to evaluate an
examining or treating source’s opinion. See 20 C.F.R. § 416.927(f)(2)(iii) (providing
that when ALJs consider these opinions, they will evaluate them using the rules in
paragraphs (a) through (e) of the regulation). The regulations and case law indeed set
forth a general preference for treating sources’ opinions over those of non-treating
sources, and non-treating sources over non-examining sources. See 20 C.F.R. §
404.1527(d)(2); Ryan v. Heckler, 762 F.2d 939, 942 (11th Cir. 1985). However, “the

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weight due to a non-examining physician’s opinion depends, among other things, on
the extent to which it is supported by clinical findings and is consistent with other
evidence.” Jarrett v. Comm’r of Soc. Sec., 422 F. App’x 869, 873 (11th Cir. 2011).
Importantly, the opinions of non-examining sources may override opinions from
treating sources, provided that the non-examining source’s opinion is supported by the
record. See 20 C.F.R. § 416.927(d), (f); 56 Fed. Reg. at 36, 936-37, 36, 953, 36, 961, 36,
969.
In this case, the ALJ explained that he gave Dr. Levine’s opinion substantial
weight as he had the opportunity to review the medical evidence as well as hear the
testimony of Plaintiff. (Tr. at 19.) The ALJ also considered that Dr. Levine was a
board certified orthopaedist (Tr. at 19).
Given that Dr. Levine’s opinion was consistent with the medical evidence, he
provided an explanation for his opinion and he was a specialist in orthopaedics, the ALJ
appropriately gave Dr. Levine’s opinion substantial weight.

See 20 C.F.R. §

416.927(d)(3)-(5) (listing consistency, supportability, and specialization as relevant
facts when weighing medical opinions). In any event, the ALJ did not rely exclusively
on Dr. Levine’s opinion in determining Plaintiff’s RFC as Plaintiff alleges. This is
evident in the ALJ’s summation paragraph in his RFC analysis. The ALJ cited the

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MRI evidence, noting it was negative for spinal stenosis and nerve root compression.
(Tr. at 19, 73, 385.) The ALJ also noted the lack of evidence showing Plaintiff’s
medication caused side effects (tr. at 301, 305, 307, 357-59, 374), the conservative
nature of Plaintiff’s treatment (tr. at 95, 323), the evidence reflecting Plaintiff reported
improvement with treatment (tr. at 303, 305, 307, 381, 383, 393), and the unremarkable
objective findings with regard to strength, gait, balance, and coordination. (Tr. at
19-20, 301, 305, 307, 313, 324, 393). Thus, the ALJ did not consider Dr. Levine’s
opinion alone, as Plaintiff suggested, but considered the entire medical record. (Tr. at
19-20.) The Eleventh Circuit has recently stated that where the evidence supports a
contrary conclusion to the treating physician’s opinion, “the ALJ [i]s not prohibited
from reaching that conclusion simply because non-treating physicians also reached it.”
See Forrester v. Commissioner of Social Sec., 455 F. App’x 899, 902 (11th Cir. 2012).
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr. White’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.

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Done this 12th day of November 2013.

L. Scott Coogler
United States District Judge
[160704]

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