Phillips v. Social Security Administration, Commissioner
Filing
15
MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate-Judge Harwell G Davis, III on 02/06/14. (SPT )
FILED
2014 Feb-06 AM 10:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TAMMY D. PHILLIPS,
Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant
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) Case No. 5:13-cv-00107-HGD
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MEMORANDUM OPINION
In this action under 42 U.S.C. 405(g), plaintiff seeks judicial review of an
adverse social security ruling which denied claims for disability insurance benefits
(hereinafter DIB) and Supplemental Security Income (hereinafter SSI). (Doc.1). The
parties filed written consent and this action has been assigned to the undersigned
Magistrate Judge to conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (See Doc. 12). Upon
consideration of the administrative record and the memoranda of the parties, the court
finds that the decision of the Commissioner is due to be affirmed and this action
dismissed.
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I.
Proceedings Below
Plaintiff filed an application for a period of disability and disability insurance
benefits on December 8, 2006, in which she alleged that she became unable to work
on December 2, 2006. (Tr. 88-99, 106). These claims were initially denied. (Tr. 6364, 74-75, 84-86). On March 27, 2007, plaintiff requested a hearing before an
Administrative Law Judge (ALJ), which took place on December 2, 2008. On
February 13, 2009, the ALJ issued a decision denying plaintiff’s application. (Tr. 1928). The Appeals Council denied plaintiff’s request for review. (Tr. 1-3). After the
Appeals Council denied plaintiff’s request for review of the ALJ’s decision, that
decision became the final decision of the Commissioner and, therefore, a proper
subject of this court’s appellate review. 42 U.S.C. §§ 405(g), 1383(c)(3).
II.
ALJ Decision
Disability under the Act is determined under 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 work
activity” is work that involves doing significant physical or mental activities. 20
C.F.R. § 404.1572(a). “Gainful work activity” is work that is done for pay or profit.
20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant has
a medically determinable impairment or a combination of medical impairments that
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significantly limits the claimant’s ability to perform basic work activities. 20 C.F.R.
§ 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability.
Id. Third, the ALJ must determine whether the claimant’s impairment meets or
medically equals the criteria listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See
20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526. If such criteria are met, the
claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared
disabled under the third step, the ALJ still may find disability under the next two
steps of the analysis. The ALJ first must determine the claimant’s residual functional
capacity (RFC), which refers to the claimant’s ability to work despite her
impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines
whether the claimant has the RFC to perform past relevant work. 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past
relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds that the
claimant is unable to perform past relevant work, then the analysis proceeds to the
fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last part of the analysis, the
ALJ must determine whether the claimant is able to perform any other work
commensurate with her RFC, age, education and work experience. 20 C.F.R.
§ 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove
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the existence in significant numbers of jobs in the national economy that the claimant
can do given the RFC, age, education and work experience.
20 C.F.R.
§§ 404.1520(g), 404.1560(c).
The Administrative Law Judge strictly followed this protocol in evaluating
plaintiff’s allegations of disability. Evidence reflects that plaintiff was 39 years old
at the time of the Commissioner’s decision on February 13, 2009. (Tr. 27, 34). She
had a high school education and had previously worked as a fast-food worker, creeler,
and spinner operator.1 (Tr. 35-36). Plaintiff alleges that she has been unable to work
since December 2, 2006, when she quit or was fired from her last job because of
bipolar disorder, depression and obsessive compulsive disorder (OCD). (Tr. 34, 111).
The ALJ held that plaintiff has the residual functional capacity to perform a full
range of work at all exertional levels but with certain non-exertional limitations. He
held that plaintiff can remember/carry-out simple instructions, but no detailed tasks
or instructions. She can maintain attention and concentration for two-hour periods
across an eight-hour workday. He noted that a well-spaced work environment would
be best. Furthermore, the ALJ found that any contact with the public by plaintiff
should be infrequent and non-intensive. Supervision should be tactful, constructive
and non-threatening. According to the ALJ, plaintiff needs a “low stress” job,
1
Creelers and spinners are jobs in the textile industry.
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meaning one with an Specific Vocational Preparation (SVP) of 2 or less, involving
only simple work-related decisions. (Tr. 23).
Using these limitations to form a hypothetical question for a vocational expert
(VE), the ALJ asked the VE whether jobs exist in the national economy for an
individual with the claimant’s age, education, work experience and residual
functional capacity. The VE testified that given all of these factors, the individual
would be able to perform the requirements of representative unskilled light
occupations such as laundry sorter, sewing machine operator, and assembler. (Tr.
28). Based on this, the ALJ concluded that plaintiff is capable of making a successful
adjustment to other work in the national economy, resulting in a finding that plaintiff
is “not disabled.” (Id.).
III.
Plaintiff’s Argument for Reversal
Plaintiff seeks to have the Commissioner’s decision reversed. Specifically,
plaintiff asserts that the ALJ’s mental findings as they relate to plaintiff’s RFC are not
based on substantial evidence. Plaintiff points to the opinion of treating psychologist,
Dr. Patrick Quirk, Psy.D., who assessed plaintiff on September 5, 2007, and
December 3, 2008, with marked or greater limitations in all mental work areas
including social functioning, responding to customary work pressures, supervision
and co-workers, and performing repetitive tasks, as well as a marked restriction in
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activities of daily living, maintaining concentration, persistence and pace and in
understanding, remembering, and carrying out instructions and performing simple
tasks. (Tr. 290-91, 317-18).
IV.
Standard of Review
The only issues before this 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); Chester v. Brown,
792 F.2d 129, 131 (11th Cir. 1986). 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, re-evaluate 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) (other citations omitted). If supported by substantial evidence, the
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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.
V.
Discussion
Plaintiff asserts that the medical opinions of treating psychologist, Dr. Quirk,
were not given sufficient consideration by the ALJ. “Medical opinions are statements
from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s] impairment(s), including
[the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do
despite impairment(s), and [the claimant’s] physical or mental restrictions.” 20
C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Absent “good cause,” an ALJ is to give the
medical opinions of treating physicians “substantial or considerable weight.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R.
§§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). 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. Comm’r of Soc. Sec., 357 F.3d
1232, 1241 (11th Cir. 2004). Additionally, the claimant’s daily activities can
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contradict the treating physician’s opinion and lessen its credibility. See id. “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.” Lewis, 125 F.3d at
1440. If the ALJ does state specific reasons, however, failure to give the treating
physician’s opinion controlling weight is not reversible error so long as it is
supported by substantial evidence. See Moore v. Barnhart, 405 F.3d 1208, 1212
(11th Cir. 2005) (per curiam).
In his decision denying plaintiff disability benefits, the ALJ noted the
following:
The claimant alleges disability due to bipolar disorder and obsessive
compulsive disorder with acid reflux. She claims difficulty with these
since 1987, with date last worked in December 2006 when she was fired
for not going to work often enough. (Exhibit 3E). The claimant’s
mother reported in January 2007 that throughout her whole life the
claimant had variable sleeping patterns and depending on her mood she
was able without assistance to care for personal needs, do cleaning and
laundry, but rarely cooked and only went outside the house about once
a week. The claimant read a lot (daily read books and occasionally the
newspaper), watched movies (two to four hours a day) and worked in
the flower garden; only sometimes did she remember what she had
watched/listened to/read. She had no problems getting along with others
unless she was “in her mood swings,” and during mood swings the
claimant showed anger, cursing, and throwing and breaking items. If a
mood swing happened she would finish tasks. She feared death,
reported hearing voices, and had thoughts of suicide (Exhibit 6E). At
the hearing in December 2008, the claimant testified that she went on a
break from work in December 2006 and never went back; she had things
in her mind about her coworkers. She had not looked for work since and
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had moved back in with her parents (in fact the record indicates the
claimant moved back in with her parents in about 2001). She reported
only infrequently going shopping with her mother or driving, claiming
that she could not get out around people; she had thoughts about them
talking about her and this was the same problem she had with
coworkers. The longest job she had ever held lasted four years; she had
not tried to work at all since December 2006. Her medications only cost
$5.00 a bottle; her therapist (Dr. Quirk) recommended medications that
were prescribed by her primary care physician (Dr. Blevins). Most days
her medications (currently listed as Celexa, Seroquel, Lamictal, and
Nexium, Exhibit 14E) worked but she admitted that for the few days
before the hearing they had not worked well because she was stressed
about the upcoming hearing. She admitted to her past history of
substance abuse, stating that she finally understood that she had been
self-medicating for many years. Although she was now better, she still
had days every week when she could not even leave the house;
previously, this occurred every day and constantly.
(Tr. 23-24).
The ALJ found that claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms but that her and her mother’s
statements concerning the intensity, persistence, and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above RFC.
(Tr. 24).
In reaching this conclusion, the ALJ stated that she gave little weight to the
opinions of Dr. Quirk set forth in August and September 2007 (Exhibit 10F) and in
December 2007 (Exhibit 13F) that plaintiff has marked or extreme functional
limitations in all listed areas of mental functioning and that she is “simply incapable
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of maintaining gainful employment.” The ALJ stated that he rejects Dr. Quirk’s
opinions because they are “not supported by the balance of the record.” (Id.).
The ALJ noted that plaintiff had been seeing Dr. Quirk since April 19, 2007,
just a couple of weeks after the Social Security Administration denied her claim for
disability. He saw plaintiff a total of 12 times through early November 2008.
According to the ALJ, the treatment notes consistently indicate that plaintiff reported
a long history of “progressively building paranoia and ideas of conspiracy” since her
late teens and early 20s, with complaints of frequent auditory hallucinations and
occasional visual hallucinations, as well as delusions and panic attacks which were
worse when she was working. Dr. Quirk administered a Minnesota Multiple Personal
Inventory-2, but her infrequency scale was elevated to the point that the test was not
scoreable. Dr. Quirk diagnosed plaintiff with bipolar disorder I and/or paranoid
schizophrenia.
The ALJ also noted that, in May 2007, plaintiff reported periods of hyperness
lasting five to six days followed by depressed periods, but she did not indicate how
often these periods occurred or really the intensity of symptoms during that period.
(Tr. 24-25). The ALJ noted further, however, that Dr. Quirk’s treatment records also
indicate plaintiff reported that medications helped her sleep quite a bit. In July 2007,
plaintiff also reported that the Lamictal was really helping. In subsequent office
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visits, plaintiff reported that she was actually taking care of her mother during her
mother’s own emotional crises. Importantly, the ALJ noted that Dr. Quirk’s opinion
appeared to be based solely on plaintiff’s reports to Dr. Quirk and little, if any,
observations by Dr. Quirk about how plaintiff actually was functioning during the
period when he actually saw her. It is also unclear whether Dr. Quirk ever did a
mental status examination.
In setting out why he did not credit the opinions of Dr. Quirk, the ALJ stated:
In contrast, there are records going back to 1995 and through March
2007 that convincingly show that the claimant functioned much better,
especially in the absence of substance abuse, despite her allegations of
constant daily decompensation. The claimant reportedly was treated by
a psychiatrist for some time in 1994 but it did not help because she was
drinking at that time (Exhibit 3F). As already noted, the claimant was
treated for polysubstance abuse in 1995; at that time a history of
depression and anxiety were also noted; only some nervousness was
noted during the interview and there was only an indication of mild
depression. Overall, including the substance abuse, her GAF was
assessed at 50-55 at that time (Exhibit 1F). The American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders:
DSM-IV 34 (4th ed., text revision 2000) states that a GAF of 41-50
indicated serious mental limitations, while a GAF of 51-60 indicated no
more than moderate mental limitations.
The claimant has worked a number of jobs; notably in the early to mid
1990’s she had worked at Shaw Industries (where she worked as a
creeler) for several years, earning as much as $17,000 in 1994 and over
$14,000 in 1995 (Exhibits 4D and 4E). In 2001, she sought treatment
for depression and panic disorder, and was diagnosed with bipolar
disorder with mild psychotic ideation and obsessive compulsive disorder
by Mary Traynor, M.D., another psychiatrist. She had been back at
Shaw Industries since 1999, and although reporting in April 2002 that
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she was on probation from her job for absenteeism, mental status
examination only showed that claimant was “somewhat labile” and the
following month she admitted to abusing crystal meth (Exhibit 3F), and
also had treatment for polysubstance abuse for a couple of months after
that (Exhibit 4F). Despite all this substance abuse and her additional
emotional problems, the claimant’s primary abnormality during that
2002 substance abuse treatment was a “dysphoric mood,” and she was
noted as being very interactive, responsive, attentive, and constructive
during group sessions (she was in an intensive outpatient program), and
nothing was noted about mood swings or not getting along with staff or
other patients (Exhibit 4F). In 2000 she earned $17,598, in 2001
$13,897, and in 2002 $13,295 at Shaw (Exhibits 4D and 4E).
(Tr. 25).
The ALJ also noted that there was as gap in plaintiff’s treatment records from
July 2002 until March 2004, when she returned to Dr. Traynor and reported that in
the interim she had gotten back on drugs but had been clean for one and a half years
and had recently been treated for depression although she was then working a very
stressful position as a manager of a fast-food restaurant for 50-60 hours per week.
She reported that she was doing really well and just needed a psychiatrist to oversee
the various medications she was taking. (Exhibit 3F). In December 2004, she was
working full time. She reported that she lapsed and drank a few beers and smoked
pot in October 2004, even though she reported that she had stopped taking her
psychotropic medications in July 2004 (five months earlier) and had had some
paranoid thinking and missed several days of work due to depressed mood and racing
thoughts. Although she had a dysphoric mood and reported passing thoughts of
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suicide, but no plans, she had an appropriate affect, was calm, had normal orientation,
had no indication of ay psychosis, and was assessed with a GAF of 52 (Exhibit 4F).
Plaintiff tested positive for opiates and marijuana in March 2005 and was
diagnosed with abuse of those substances. (Id.). Her primary physician at that time,
Dr. Blevins, noted only that claimant was taking Seroquel and Effexor for depression
in May 2005 and that there were some unspecified “problems with anti-depressant,”
a diagnosis of bipolar disorder, and an increase in Seroquel in late December 2006.
(Tr. 26).
During a consultative examination in March 2007 with Dr. Mary Arnold,
Psy.D., a licensed psychologist, plaintiff reported that medications calmed her down
when she was really hyper and helped her focus better. Plaintiff has been living with
both parents since 2001 and reported no problems getting a job, just keeping one due
to anger issues. She claimed that she lost her job in December 2006 due to not
returning to her job after getting into an argument away from the job. Dr. Arnold
noted that plaintiff was neatly groomed and attired, had a composed demeanor, and
her social skills and behavior were appropriate to the situation. Her mood was broad
with congruent affect. According to Dr. Arnold, plaintiff was alert and oriented in
all spheres, was able to mentally calculate problems in subtraction, multiplication and
division, repeated six digits forward and four digits backward, counted backward
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from 20, and recited serial 7s. She also was able to recite the months of the year
forward/backward in sequence and recalled three of three objects after a five-minute
delay. She made eye contact , did not exhibit tangential or circumstantial thinking,
and her response times were within the normal range. Dr. Arnold also noted that
plaintiff performed daily activities independently, including cleaning and doing
dishes and laundry, and went out to eat on occasion (a family birthday), watched her
son play pool, read self-help books, watched television, and drove herself to the
examination. Dr. Arnold diagnosed plaintiff with bipolar disorder and assessed a
GAF of 59 (Exhibit 7F). (Tr. 26).
The ALJ explained the weight he gave to this medical evidence as follows:
The undersigned gives great weight to Dr. Arnold’s assessment of a
GAF of 59, indicating no more than moderate mental impairment. This
assessment is consistent with Dr. Arnold’s detailed findings and
observations during her examination of the claimant showing good
cognitive functioning and social interaction and rebuts the claimant’s
allegations at the hearing that previously she had almost constant
decompensation. Dr. Arnold’s assessment is also consistent with the
claimant’s good work history for extended periods of time despite some
substance abuse and pre-existing problems with depression/anxiety
(later diagnosed as bipolar disorder). Although the claimant states that
her thoughts about other people led her into arguments and/or to miss
work, making it impossible for her to keep jobs for long periods of time,
even when she was having the most problems with substance abuse
there was no indication of any abnormal level of anger or ability to get
along with other people. So no matter how the claimant might interact
with family members, the alleged difficulties with people especially in
the workplace are not supported. Dr. Quirk’s opinions of marked and/or
extreme mental limitations are based on the claimant’s reports of
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symptoms, and apparently not on any observed symptoms, and those
opinions are contradicted by the rest of the evidence. The undersigned
gives great weight to the state agency medical consultant opinion in
March 2007 that the claimant only had mild or moderate mental
limitations with functional restrictions as set forth above (Exhibit 9F);
that opinion is strongly supported by all of the evidence–overall no more
than moderate dysfunction through examination by Dr. Arnold in March
2007, and no real evidence of any deterioration in functioning since
then. The claimant’s current ability to function well even in stressful
circumstances is evidenced by her testimony at the hearing in December
2008 that despite not doing well for the past few days due to anticipating
the hearing, she remembered last seeing Dr. Quirk on November 4th or
5th; Dr. Quirk’s records show he saw her on November 5th.
(Tr. 26-27).
After considering all the evidence presented and the ALJ’s written reasons for
his determination that plaintiff is not disabled, it is clear that this opinion is supported
by substantial evidence. The ALJ is responsible for evaluating the medical evidence
and determining plaintiff’s RFC. See 20 C.F.R. §§ 404.1546(c), 416.946(c); Walker
v. Bowen, 826 F.2d 996, 1000 n.1 (11th Cir. 1987). In making this determination, the
ALJ is charged with the duty to weigh the evidence, resolve material conflicts in
testimony, and determine the case accordingly. See Wheeler v. Heckler, 788 F.2d
1073, 1075 (11th Cir. 1986).
As noted by the ALJ, Dr. Quirk’s opinion that plaintiff suffered from marked
or extreme mental limitations is not supported by the record evidence. The ALJ noted
that medical records from 1995 through March 2007 demonstrate that plaintiff
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functioned much better than reported by Dr. Quirk, particularly when she was not
abusing drugs or alcohol. (Tr. 25, 200-01, 203-06, 208-12). Likewise, Dr. Quirk’s
progress notes reflect that plaintiff’s medications helped her, particularly with sleep
issues. (Tr. 25). During the consultative examination in March 2007 with Dr.
Arnold, plaintiff reported that medications calmed her down when she was really
hyper and helped her focus better. (Tr. 26). In July 2007, plaintiff also reported that
the Lamictal was really helping. In subsequent office visits to Dr. Quirk, plaintiff
reported that she was actually taking care of her mother during her mother’s own
emotional crises. (Tr. 26). In addition, Dr. Quirk’s opinion that plaintiff had marked
restrictions in her activities of daily living is also not supported by the record, which
demonstrates that plaintiff performs household chores, cares for her personal needs,
drives, reads books and watches television. (Tr. 23-24, 36-38, 129, 135-36, 290,
317).
Further undermining Dr. Quirk’s opinion is the fact that his conclusions appear
to be based on plaintiff’s own reports of symptoms rather than observed symptoms.
(Tr. 25-26).
Dr. Quirk’s opinions are also undermined by the report of the
consultative examiner, Dr. Mary Arnold, Psy.D. Dr. Arnold evaluated plaintiff in
March 2007 and observed that she had a composed demeanor and appropriate social
skills and behavior. (Tr. 267). Mental status findings provided no evidence of
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delusions or hallucinations. (Tr. 267-68). Dr. Arnold also noted that plaintiff
performed activities of daily living independently, including cleaning, doing dishes
and laundry, and reading books and watching television. (Tr. 268). Dr. Arnold
assessed plaintiff with Bipolar I Disorder and assigned a global assessment
functioning (GAF) score of 59.2
Dr. Arnold’s assessment, to which the ALJ assigned great weight, provides
substantial evidence to support the ALJ’s RFC determination and further undermines
Dr. Quirk’s opinions. As noted by the ALJ, Dr. Arnold’s assessment of plaintiff’s
GAF is consistent with her detailed examination findings and observations, which
reflect that plaintiff has good cognitive functioning and social skills. (Tr. 26, 26768). Dr. Arnold’s findings are also consistent with plaintiff’s work history which,
despite her problems with substance abuse, depression and anxiety, was reasonably
good for some extended periods of time. (Tr. 26, 104-05). Thus, there is substantial
evidence to support the ALJ’s determination to give little weight to the opinions of
Dr. Quirk and great weight to the assessment of Dr. Arnold.
There is substantial evidence to support the ALJ’s decision to give great weight
to the opinion of the State agency psychiatric consultant, Dr. Robert Estock, M.D.
2
A GAF score of 51-60 represents moderate symptoms (e.g., flat effect and circumstantial
speech, occasional panic attacks) or moderate difficulty in social, occupational or school functioning
(e.g., few friends, conflicts with peers or co-workers). See American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, 32-34 ($th ed. 2000, Text Rev.).
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(Tr. 26-27). State agency consultants are highly qualified specialists who are experts
in the Social Security disability programs. Their opinions may be entitled to great
weight if the evidence supports their opinions. See 20 C.F.R. §§ 404.1527(e)(2)(I),
416.927(e)(2)(I); Social Security Ruling (SSR) 96-6p, 1996 WL 374180 (S.S.A.).3
Dr. Estock reviewed the record, including Dr. Arnold’s evaluation, and
completed a Psychiatric Review Technique (PRT) and mental RFC assessment in
March 2007. (Tr. 270-86). Dr. Estock concluded that plaintiff had only mild or
moderate limitations in all areas of mental functioning. (Tr. 280, 284-85). Dr. Estock
concluded, in his Functional Capacity Assessment, that plaintiff could be expected
to understand, remember, and carry out short, simple instructions and tasks, but
would likely have difficulty with more detailed tasks and instructions; she could be
expected to maintain attention and concentration for two hours with all customary rest
breaks, and a well-spaced work environment would provide for maximum
concentration; her contact with the public should be infrequent and non-intensive;
supervision should be tactful, constructive and non-threatening; and changes in the
workplace should be infrequent and gradually introduced. (Tr. 286). The ALJ
3
In unpublished opinions, the Eleventh Circuit has stated that ALJs must weigh the opinions
of state agency physicians under the Commissioner’s regulations. See Wainwright v.Comm’t of Soc.
Sec., 2007 WL 708971, at *2 (11th Cir. March 9, 2007) (finding ALJ was entitled to reject opinion
of examining psychologist because he had examined claimant on only one occasion and his opinion
was contrary to opinions and assessments of state agency psychologists).
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considered these limitations and properly incorporated them into plaintiff’s RFC. (Tr.
23, 26-27).
Dr. Estock provided a detailed summary of the evidence that he reviewed,
which reflects some limitations in plaintiff’s concentration, memory and social
functioning, but no more than moderate dysfunction in any area. (Tr. 27, 282).
Therefore, the ALJ properly gave great weight to Dr. Estock’s opinions, which
provide substantial evidence to support the ALJ’s assessment of plaintiff’s RFC.
In summary, the ALJ properly explained his reasons for giving little weight to
the opinions of Dr. Quirk. Substantial evidence, including plaintiff’s medical records,
assessments by Dr. Arnold and Dr. Estock, and plaintiff’s statements about her
symptoms, supports the ALJ’s RFC finding regarding plaintiff’s limitations. See 20
C.F.R. §§ 404.1529, 416.929. Because there is good cause to discount the treating
psychologist’s opinions, the ALJ acted within his authority by discounting Dr.
Quirk’s opinion while giving “substantial weight” to those conclusions that are
consistent with the ALJ’s RFC findings. Phillips, 357 F.3d at 1241.
Plaintiff also complains that the ALJ’s references to her history of substance
abuse were improper. However, the analysis of whether substance abuse was a
material, contributing factor to a finding of disability is triggered only if the ALJ first
finds that the claimant is disabled. See 20 C.F.R. §§ 404.1535, 416.935; SSR 13-2p,
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2013 WL 621536 (S.S.A.). The ALJ did not find plaintiff to be disabled. Because
plaintiff was not found to be disabled, the ALJ was not required to consider whether
plaintiff’s history of substance abuse was a contributing factor material to a finding
of disability. The only consideration given plaintiff’s history of substance abuse by
the ALJ was in consideration of her credibility as a witness and the fact that, despite
this history, she was able to function socially and maintain employment. The fact that
she was able to function relatively well even when she was having substance abuse
problems tended to discount her claim that her mental condition was such that she
was marked to severely mentally impaired.
Additionally, the ALJ noted that plaintiff testified that she had not used alcohol
in five to ten years. This was contradicted by her medical records. This, according
to the ALJ, raised a question regarding her credibility. (Tr. 22, 47, 199). This
testimony was properly considered for such a purpose. See Arnold v. Astrue, 2012
WL 3030564, at *7 (N.D.Ala. July 23, 2012) (ALJ properly discredited claimant’s
testimony regarding severity of his impairments based on inconsistent statements
concerning alcohol and substance abuse).
Plaintiff also asserts that the ALJ should have considered utilizing a medical
advisor or expert to assist him in determining plaintiff’s RFC. However, an ALJ is
not required to obtain such services if it is not necessary to enable the ALJ to make
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a disability determination. See Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999)
(holding that additional medical testimony was unnecessary where the record was
sufficient for decision). Here, the ALJ considered and relied upon the opinion of the
State agency psychiatric consultant, Dr. Estock, in determining plaintiff’s RFC. Thus,
a medical advisor was unnecessary.
VI.
Conclusion
Accordingly, upon review of the administrative record, and considering all of
plaintiff’s arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. Therefore, that decision
is to be AFFIRMED. A separate order will be entered.
DONE this 6th day of February, 2014.
HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE
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