Fricke v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 8/8/2014. (AVC)

FILED
2014 Aug-08 PM 04:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
NANCY MAE FRICKE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

}
}
}
}
}
}
}
}
}
}
}

Civil Action No.: 5:13-CV-00806-RDP

MEMORANDUM OF DECISION
Plaintiff Nancy Mae Fricke brings this action pursuant to Title II of Section 205(g) and
Title XVI of Section 1631(c)(3) of the Social Security Act, seeking review of the decision by the
Administrative Law Judge, denying her claims for Disability Insurance Benefits and
Supplemental Security Income. See also, 42 U.S.C. §§ 405(g) and 1383(c). (Tr. 65, 67, 120-123,
124-130). Based on the court’s review of the record and the briefs submitted by the parties, the
court finds that the decision of the ALJ is due to be affirmed.
I.

Proceedings Below
On May 3, 2010, Plaintiff filed for Disability Insurance Benefits (DIB) and Supplemental

Security Income (SSI), alleging that she became disabled on January 1, 2006.1 (Tr. 65, 67, 12030). Plaintiff’s applications were denied initially on August 4, 2010 by the Social Security
Administration. (Tr. 69-78). Plaintiff then requested a hearing before an Administrative Law
Judge (ALJ) on August 10, 2010. (Tr. 81-82). Plaintiff’s request was granted and a video
hearing was held before ALJ Patrick R. Digby on September 21, 2011. (Tr. 26-56). In his
1

During the hearing held on September 21, 2011, Plaintiff’s disability onset date was amended to March
31, 2008. (Tr. 13, 46-47).

decision, dated November 2, 2011, the ALJ determined that Plaintiff had not been under a
disability within the meaning of Section 1614(a)(3)(A) of the Social Security Act since May 3,
2010, the date her application was filed. (Tr. 8-25). After the Appeals Council denied Plaintiff’s
request for review of the ALJ’s decision, (Tr. 1-4), that decision became the final decision of the
Commissioner, and therefore a proper subject of this court’s appellate review.
Plaintiff was fifty years old at the time of the hearing and reported having a driver’s
license and a high school level of education along with secretarial training. (Tr. 120, 145). She
has previous work experience as an office clerk. (Tr. 49). Plaintiff’s duties as an office clerk
mostly involved typing, answering phones, ordering materials, being a runner, and carrying
paperwork. (Tr. 177). The company she previously worked for closed; however, she claims that
she would not be working at the company even if it were open. (Tr. 49-50).
Plaintiff testified that she independently cares for her personal needs, drives a car
independently, watches television, enjoys reading, spends time with others, counts her own
change, uses a checkbook/money order, takes care of a pet, prepares meals, does laundry, and
shops on her own. (Tr. 33, 34, 41-42, 47-48, 58, 154-160). She also mentioned that she lives with
a roommate who helps her with the household chores. (Tr. 33-34).
Plaintiff further testified that she is unable to lift anything, frequently has to use the
restroom, and has difficulty walking and sitting for long periods of time. (Tr. 37, 40, 66).
Specifically, Plaintiff testified that she could walk thirty to forty feet at most and stand for less
than five minutes. (Tr. 40-41). She reported that she has trouble climbing stairs, reaching,
hearing, following instructions, getting along with others, lacks memory, and understanding. (Tr.
159). Additionally, she reported depression, suicidal thoughts, panic attacks, and tends to isolate
herself by not leaving the house and not talking to anyone. (Tr. 43-45, 50-51, 68, 159). She

2

reports experiencing vision problems, dizziness, complications with her left knee having a
squeezing sensation, blood clots in her legs, and an inability to concentrate. (Tr. 34-35, 39-40,
45, 50-51, 68, 144). Plaintiff noted that she suffers from hypertension, gastroesophogeal reflux
disease, a refractive error, high cholesterol, and difficulty bending and standing. (Tr. 58, 68,
144).
In 2005, Plaintiff sustained back injuries from a car accident and sought treatment from
the Crestwood Medical Center. An examination of Plaintiff’s back was conducted and it was
indicated through computerized tomography that Plaintiff had degenerative changes in her
cervical spine. (Tr. 253). Particularly, the computerized tomography demonstrated modest to
moderate degenerative facet changes with a minor spurring and degenerative facet disease. (Tr.
253).

This computerized tomography showed no evidence of a cervical fracture or disc

herniation. (Tr. 253). An additional test pertaining to Plaintiff’s pelvis further revealed no
evidence of any fractures or abnormalities. (Tr. 254). Other medical tests related to Plaintiff’s
lumber spine and chest areas also revealed no abnormalities and were within normal limits. (Tr.
255-256).
Plaintiff has a history of left lower extremity pain and dysfunction due to vascular
problems. In October 2005, Dr. Gary Gross, Plaintiff’s treating vascular surgeon, examined
Plaintiff’s lower extremities and vascular problems. (Tr. 288-299). After being observed by Dr.
Gross, Plaintiff underwent left lower extremity lesser saphenous vein excision and ligation
surgery. (Tr. 234). Even upon undergoing this surgery, Dr. Gross diagnosed Plaintiff with a left
lower extremity popliteal cyst. (Tr. 293-294). Records demonstrate that vein tests of Plaintiff’s
left lower extremity performed in June 2008 were within normal limits and there was no
evidence of superficial or deep vein thrombosis. (Tr. 289). Later testing by Dr. Gross also

3

indicated that Plaintiff did not have any evidence of bone bruises, meniscal tears, and her medial
and lateral collateral ligaments were normal. (Tr. 298). In relation to Plaintiff’s mental health,
Dr. Gross found Plaintiff had anxiety related to the death of her mother in June 2008. (Tr. 290).
Dr. Leonard Martinec, another of Plaintiff’s treating physicians, noted on May 9, 2008
that she reported having symptoms of insomnia and was under tremendous stress due to three
recent deaths in her family. (Tr. 378). Dr. Martinec noted that Plaintiff had been taking Effexor
for depression for years and diagnosed her with anxiety and depression. (Tr. 378). He increased
her dosage of Effexor and Xanax for anxiety. (Tr. 378). In June 2008, Dr. Martinec found
Plaintiff was still experiencing anxiety and insomnia, and as a result, again increased her
medication. (Tr. 377).
In May 2009, the record shows that Plaintiff again complained of pain in her lower
extremities and sought treatment from Dr. Martinec. (Tr. 326-332). On May 14, 2009, Plaintiff
was concerned she had a blood clot on the left leg and thigh, which was painful when she slept
on her left side. (Tr. 373). Dr. Martinec found Plaintiff was tender over the left popliteal cyst.
(Tr. 373). As a result, Dr. Martinec ordered labs, x-rays, and a Venous Doppler Study to rule out
deep vein thrombosis. (Tr. 326-331). The Venous Doppler Study revealed no evidence of
thrombosis affecting the deep venous system of the left lower extremity. (Tr. 330). Moreover, xrays of Plaintiff’s left hip were within normal limits and there was no significant degenerative
change. (Tr. 331).
On July 4, 2009, Plaintiff was admitted to the Huntsville Hospital after apparently
attempting suicide with a gun. (Tr. 301-368). She was diagnosed with social stress, depression,
and alcohol intoxication. (Tr. 310). Even though Plaintiff was intoxicated, it was acknowledged
that she was alert times three and displayed no signs of acute distress or obvious discomfort. (Tr.

4

305). She had a depressed affect, but responded appropriately to questions, and after her hospital
admission, denied that she had tried to commit suicide, specifically stating that “she accidently
discharged her gun, ha[d] no intent to kill herself, that she [was] fine” (Tr. 305, 321, 323). She
further admitted that she was safe to go home and denied anything but chronic, mild depression,
which she felt she could handle. (Tr. 323). Plaintiff was discharged in stable condition. (Tr. 323324).
Plaintiff did not report any further depression or anxiety related symptoms until February
2010. Dr. Martinec noted on February 6, 2010 that Plaintiff was contemplating divorcing her
husband and under more stress than usual. (Tr. 371). Dr. Martinec’s treatment notes indicate that
Plaintiff stated she was having suicidal thoughts. (Tr. 371). As a result, Dr. Martinec diagnosed
Plaintiff as being depressed and referred her to a psychiatrist. (Tr. 371). However, nothing in the
record shows that Plaintiff acted upon this referral, and she did not report any further symptoms
of anxiety or depression until her visit with Dr. Martinec in April 2010. (Tr. 370, 388).
In July 2010, Doctors John Lary and Erin Smith conducted a consultative examination
and prepared reports on Plaintiff at the request of the Social Security Administration.
Specifically, on July 26, 2010, Dr. Erin Smith conducted a consultative psychological
examination. At the outset, Dr. Smith’s report has a disclaimer that acknowledges her assessment
is largely “dependent upon the accuracy and reliability of information obtained from sources
beyond the control of th[e] examiner.” (Tr. 391). Plaintiff denied current suicidal and homicidal
ideation and had good insight and judgment. (Tr. 392). Dr. Smith noted that Plaintiff’s mood was
depressed and her affect was anxious, she was alert and oriented to time, place, person, and
situation, and her thought content and processes were within normal limits with no indications of
auditory or visual hallucinations, bizarre mentation or abnormal fears or obsessions. (Tr. 392).

5

Dr. Smith also noted that Plaintiff had fair attention and concentration and determined that based
upon Plaintiff’s mental status examination, she has normal speech, good insight and judgment,
average cognition, and intact recent and remote memory. (Tr. 393). Dr. Smith opined that
Plaintiff will require assistance with her daily living and medical needs and assigned her a global
assessment of functioning (GAF) score of 45, indicating serious symptoms or any serious
impairment in social, occupational or school functioning. (Tr. 393). Dr. Smith’s mental status
examination indicated that Plaintiff’s overall level of social and adaptive functioning and ability
to maintain gainful full-time employment were severely impaired and diagnosed her with major
depressive disorder, generalized anxiety disorder, and panic disorder without agoraphobia. (Tr.
393).
On July 29, 2010, Dr. Lary conducted a separate consultative examination report at the
request of the Social Security Administration, where he diagnosed Plaintiff with a left popliteal
cyst with mild tenderness, hypertension, gastroesophageal reflux disease, status post varicose
vein stripping surgery, psychological complaints, and refractive error. (Tr. 409). Further, Dr.
Lary opined that Plaintiff has the ability to sit, stand, walk, lift, carry, bend, squat, reach, see
(needs glasses), hear, speak, understand, and her ability to manipulate small objects was
unimpaired. (Tr. 409).
On July 30, 2010, Dr. Amy Cooper, a state agency psychological consultant, conducted a
mental residual functional capacity assessment on Plaintiff. Dr. Cooper opined that Plaintiff has,
at most, moderate limitations in functioning due to her depression and anxiety and that she could
tolerate ordinary work pressures but should avoid excessive workloads, quick decision making,
rapid changes, and multiple demands. (Tr. 445). Further, Plaintiff would be able to concentrate
and attend to simple tasks for two hours; however, she will need customary rests and breaks and

6

a small number of familiar coworkers. (Tr. 445). He predicted that she may miss one or two days
per month due to symptoms of her anxiety and depression, and interaction with the public should
be casual and non-intensive. (Tr. 445). Dr. Cooper further found that Plaintiff can understand
and remember simple instructions and work procedures, but will have more difficulty with
detailed instructions. (Tr. 445). Changes to Plaintiff’s work environment or expectations should
be introduced gradually and infrequently and she would be able to maintain a work pace
consistent for the mental demands of competitive level work. (Tr. 445).
Near the end of Plaintiff’s hearing, the ALJ posed a hypothetical question to Vocational
Expert (VE) Martha Daniel. (Tr. 19, 52-53). The VE was asked to compare Plaintiff’s residual
function capacity with physical and mental demands of the work she performed in the past. (Tr.
19, 52-53). The VE testified that Plaintiff is not capable of performing her past work as an office
clerk as generally performed in the national economy. (Tr. 53). The ALJ then posed a second
hypothetical question, asking the VE whether jobs exist in the national economy for an
individual with the claimant’s age, education, RFC, and work experience. (Tr. 54). The VE
reported that Plaintiff would be capable of performing the requirements of representative
occupations such as garment operator, hand packager, and an assembler of small products. (Tr.
54).
Based on the testimony of Plaintiff, the VE, and the record, the ALJ found that there
exists a significant number of jobs in the national economy that Plaintiff could perform, in
conformance with the Medical-Vocational Guidelines provided at 20 C.F.R. § 404, Subpart P,
Appendix 2, and therefore, Plaintiff is not disabled. (Tr. 21).

7

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 activity 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. § 404.1572(b). If the ALJ finds that the claimant
engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §
404.1520(b).

Second, the ALJ must determine whether the claimant has a medically

determinable impairment or a combination of medical impairments that 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 of an impairment 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 may still find disability under the next two steps of the analysis. The ALJ
must first 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 the claimant 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

8

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 the existence, in significant numbers, of jobs in the national economy that the
claimant can do given her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c).
In the present case, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since March 31, 2008, her amended onset date of disability, and had a
combination of severe impairments consisting of a left popliteal cyst, a history of vein
thrombosis in the left lower extremity status post lesser saphenous vein excision and ligation,
degenerative changes of the cervical spine, a major depressive disorder, a generalized anxiety
disorder, and a panic disorder without agoraphobia satisfying the second prong of the analysis, as
set forth in 20 C.F.R. §§ 404.1520(c) and 416.920(c). (Tr. 13-14). The ALJ determined that
although Plaintiff has hypertension, hyperlipidemia, gastroesophogeal reflux disease, and a
refractive error, the record shows that these conditions are either controlled or corrected and do
not result in any work-related limitations. (Tr. 14). Therefore, these conditions were not “severe”
impairments. (Tr. 14). With regard to the third prong, the ALJ found that Plaintiff does not have
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 1 (20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). The ALJ determined that
all of these impairments, individually or in combination, are insufficient to qualify Plaintiff for
disability. (Tr. 14-15).
First, the ALJ determined that Plaintiff’s severe impairments were not of listing level
severity. More specifically, it was held that Plaintiff’s cervical degenerative changes did not

9

meet the listing level severity for spine disorders. (Tr. 14). To have listing level severity, a
disorder of the spine requires a compromise of a nerve root or the spinal cord. Because Plaintiff
has not demonstrated that the cervical changes resulted in compromise of a nerve root, the ALJ
found that her cervical degenerative changes did not meet the listing level severity requirement.
(Tr. 14).
Second, the ALJ determined that Plaintiff’s ability to perform activities such as taking
care of her dog, shopping on her own, independently caring for her personal needs, preparing
meals, doing laundry, shopping in stores, reading, watching television, spending time with
others, and driving a car independently as inconsistent with her allegations of disabling pain and
mental dysfunction, and therefore, only caused moderate restrictions in her activities of daily
living and social functioning. (Tr. 14). Third, Plaintiff had no more than a moderate difficulty in
concentration, persistence, or pace and experienced no repeated episodes or evidence of
decompensation due to any mental impairment. (Tr. 14). The ALJ further determined that
Plaintiff’s work history detracts from the credibility of her allegations of not being able to work,
since the record indicates that Plaintiff stopped working because the company that employed her
closed. (Tr. 18). As a result, the ALJ believed that Plaintiff’s work history raised a question as to
whether her current unemployment was actually due to medical impairment. (Tr. 18).
Finally, the ALJ noted significant gaps in Plaintiff’s history of treatment. (Tr. 18).
Particularly, the record showed numerous occasions on which Plaintiff did not specify any
particular complaint of pain or mental dysfunction, which contrasts with the current claim of
ongoing, disabling symptoms since her alleged onset date of disability. (Tr. 18). After
considering the evidence of record, the ALJ found that Plaintiff’s medically determinable
impairments could reasonably be expected to produce the alleged symptoms; however, her

10

statements concerning the intensity, persistence, and limiting effects of these symptoms are not
credible to the extent they were inconsistent with the RFC assessment. (Tr. 16). The ALJ further
determined that Plaintiff had the RFC to perform light work, except she would be able to
understand and remember simple instructions but not complex or detailed instructions; she can
concentrate and attend simple tasks; tolerate ordinary work pressures but should avoid excessive
workloads, quick decision making, rapid changes, and multiple demands; maintain work pace
consistent with competitive work; should not have contact with the general public; and any
changes in the workplace should be infrequent and gradually introduced. (Tr. 15).
At the concluding steps of the analysis, the ALJ found that Plaintiff is not capable of
performing past relevant work as an office clerk. (Tr. 19). However, based on the two
hypothetical questions posed to the VE, the ALJ determined that, taking into account Plaintiff’s
age, education, work experience, and RFC, she is “capable of making a successful adjustment to
other work that exists in significant numbers in the national economy” and found Plaintiff “not
disabled.” (Tr. 21). Accordingly, the ALJ found Plaintiff not disabled at any time from her
alleged onset date through the date of the decision. (Tr. 21).
II.

Plaintiff’s Argument for Reversal
Plaintiff offers two arguments for reversal: (1) the ALJ’s determination is in error

because substantial evidence does not support his decision and improper legal standards were
applied in denying her disability benefits, and (2) the ALJ improperly rejected the opinion of Dr.
Smith, the ALJ’s own consultative examiner.
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

11

(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. Bowen, 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, reevaluate the evidence, or substitute its judgment for that of
the Commissioner; instead, it must review the final decision as a whole and determine if the
decision is reasonable and supported by substantial evidence. See Id. (citing Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of
evidence; “[i]t is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other
citations omitted). If supported by substantial evidence, the Commissioner’s factual findings
must be affirmed even if the evidence preponderates against the Commissioner’s findings. See
Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s
findings is limited in scope, the court also notes that review “does not yield automatic
affirmance.” Lamb, 847 F.2d at 701.
V.

Discussion
After careful review, the court finds that the ALJ’s determination that Plaintiff is not

disabled is supported by substantial evidence and the proper legal standards were applied in
reaching that decision. The court addresses each of Plaintiff’s arguments below.
A.

Substantial Evidence Does Support the ALJ’s Decision and Proper Legal
Standards Were Applied.

To determine whether a claimant is disabled, the five-step sequential evaluation process

12

must be employed as described in 20 C.F.R. §§ 404.1520, 416.920 and 42 U.S.C. §
423(d)(1)(A).

Plaintiff argues that the ALJ failed to properly weigh the medical opinion

evidence relating to her mental impairments. (Doc. 9 at 7-15). The Commissioner’s regulations
state that when reviewing regulations and weighing the opinions of medical sources, an ALJ
must consider any relevant evidence provided to support an opinion, particularly medical signs
and laboratory findings, as well as any explanation a source provides for an opinion, the
consistency of the opinion with the record as a whole, the specialization of the doctor, and any
other factors. 20 C.F.R. §§ 404.1527(c)(3)-(6), 416.927(c)(3)-(6). The court concludes that the
ALJ complied with these requirements.
The ALJ properly assessed Plaintiff’s credibility when looking to the medical evidence
related to her mental impairments. The ALJ considered the medical evidence and found that Dr.
Martinec had referred Plaintiff to a psychiatrist in February 2010, but there was no evidence that
Plaintiff ever followed up and sought mental health treatment. (Tr.17). The ALJ also properly
determined that Plaintiff did not report any symptoms of anxiety or depression when she saw Dr.
Martinec during her final visit in April 2010. (Tr. 17). In Plaintiff’s July 2010 examination by
Dr. Smith, Plaintiff reported no history of any mental health treatment. (Tr. 392). This is
substantial evidence supporting the ALJ’s findings that Plaintiff’s mental symptoms were within
normal limits.
The ALJ held that her work history detracts from her credibility with respect to her claim
that she cannot work. (Tr. 18). He found that Plaintiff stopped working because the company she
worked for closed, not because of any disabling impairment. The ALJ had sufficient grounds to

13

doubt Plaintiff’s credibility as to whether her current unemployment was actually due to medical
impairments.2 (Tr. 18).
In addition, record evidence supports the ALJ’s finding that there were several occasions
where Plaintiff did not specify any definite complaint of pain or mental dysfunction. Such a
failure runs contrary to her claims of ongoing, disabling symptoms. (Tr. 18). Furthermore,
Plaintiff reported being able to independently care for her personal needs, drive a car
independently, watch television, enjoy reading, spend time with others, count her own change,
use a checkbook/money order, take care of a pet, prepare meals, do laundry, and shop on her
own. (Tr. 33, 34, 41-42, 47-48, 58, 154-160). When this evidence is considered, Plaintiff’s
capability to perform these activities is inconsistent with her allegations of disabling pain and
mental dysfunction. Therefore, the ALJ properly held that this record evidence calls into
question her credibility of her allegations. (Tr. 18).
Additionally, the ALJ’s decision to discount the opinion of Dr. John Lary was supported
by substantial evidence. (Tr. 404-414). First, Dr. Lary’s findings of disability are both
inconsistent with his own treatment notes and with the record evidence as a whole. (Tr. 404414). Dr. Lary conducted a consultative examination report and diagnosed Plaintiff with a left
popliteal cyst with mild tenderness, hypertension, gastroesophageal reflux disease, status post
varicose vein stripping surgery, psychological complaints, and refractive error. (Tr. 409).
Notwithstanding these conclusions, Dr. Lary opined that Plaintiff has the ability to sit, stand,
walk, lift, carry, bend, squat, reach, see (needs glasses), hear, speak, understand, and her ability

2

Plaintiff first reported an alleged onset date of January 1, 2006, and then specified that she in fact ceased
working in February 2005 when the seasonal work she was doing ended, and then later specified an alleged onset
date of May 3, 2010. (Tr. 120, 142, 144). Based on this evidence, the ALJ appropriately examined Plaintiff’s
credibility due to her inconsistent allegations surrounding when and why she ceased working, in addition to what
period her alleged disabling impairment first stopped her from working.

14

to manipulate small objects was unimpaired. (Tr. 409). In light of this evidence, the ALJ
correctly gave little weight to the opinion of Dr. Lary’s examination of Plaintiff.
For these and other reasons, the court concludes that the ALJ’s findings are supported by
substantial evidence and, in making those findings, he correctly applied the law.
B.

The ALJ Did Not Commit Error and Properly Rejected the Opinion of Dr.
Smith, the ALJ’s Own Consultative Examiner.

After careful analysis, the court concludes that Plaintiff’s argument that the ALJ
committed error by improperly rejecting the opinion of Dr. Erin Smith, the ALJ’s own
consultative examiner, is also without merit. (Doc 9 at 1-9). Plaintiff argues that the ALJ erred
by giving little weight to Dr. Smith’s psychological assessment and that the ALJ substituted his
own opinion for the professional opinion of Dr. Smith. (Doc 9 at 1-11). Plaintiff further argues
that the ALJ should have recontacted Dr. Smith for clarification of her assessment and that the
ALJ’s reliance on a non-examining State agency doctor’s assessment was in error. (Doc 9 at 1115). The Commissioner counters these assertions by noting that Dr. Smith’s opinion did not
merit weight because Dr. Smith “clearly” based his opinion on Plaintiff’s physical limitations
and that, as a psychologist, Dr. Smith is not qualified to assess physical conditions. (Tr. 19,
Comm’r Mem. 8). The ALJ properly analyzed and weighed the medical opinions of Dr. Smith
and the State agency doctor. (Tr. 18-19).
It is axiomatic that the testimony of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). See also Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004)
(quoting Lewis ); Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (“‘The Secretary must
specify what weight is given to a treating physician’s opinion and any reason for giving it no
weight, and failure to do so is reversible error.’” (quoting MacGregor v. Bowen, 786 F.2d 1050,
15

1053 (11th Cir. 1986))). A similar preference for the opinions of treating physicians is found in
the Commissioner’s own regulations:
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations, such
as consultative examinations or brief hospitalizations. If we find that a treating
source’s opinion on the issue(s) of the nature and severity of your impairment(s)
is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your case
record, we will give it controlling weight.
20 C.F.R. §§ 404.1527(d)(2), 404.1527(c)(3)-(6), and 416.927(c)(3)-(6).
Accordingly, an “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. The Eleventh Circuit has held that the “good cause” necessary to reject a treating
physician’s opinion has been found in several instances, including 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
physician’s own medical records. Phillips, 357 F.3d at 1241.
Here, the ALJ correctly applied these legal requirements. First, the ALJ explained his
reasons for giving less weight to Dr. Smith’s opinion — that opinion is entitled to little weight
because it is inconsistent with her own medical findings. (Tr. 19). Dr. Smith’s assessments
concluded that Plaintiff’s overall level of social and adaptive functioning appeared to be severely
impaired secondary to her chronic medical issues and was diagnosed with Major Depressive
Disorder, Generalized Anxiety Disorder, and Panic Disorder without Agoraphobia. (Tr. 393). Dr.
Smith also opined that Plaintiff’s “ability to maintain gainful full-time employment is severely
impaired by her chronic medical conditions.” (Tr. 393). Taking into consideration Dr. Smith’s
16

overall assessment, the ALJ was correct in holding that Dr. Smith’s assessments were at odds
with her own mental status examination findings that Plaintiff had normal speech, normal
response to questions, good insight and judgment, average cognition, and intact memory. (Tr.
392-393). Her assessment is rendered even more unreliable because Plaintiff was found capable
of initiating and maintaining eye contact appropriately throughout the session, her thought
content and processes were within normal limits, there were no indications of auditory or visual
hallucinations, and she did not manifest any bizarre mentation or abnormal fears of obsessions.
(Tr. 392). It was further noted that there were no signs of suicidal and homicidal ideation, and
Plaintiff was alert and oriented to time, place, person, and situation. (Tr. 392). Dr. Smith’s
diagnosis is inconsistent with her own findings due to extensive evidence showing that Plaintiff’s
mental limitations were within normal limits. (Tr. 391-394). Therefore, the ALJ was correct in
giving little weight to Dr. Smith’s assessment, even though she is a treating physician.
In addition, properly understood, Dr. Smith’s assessment that Plaintiff’s ability to
maintain full-time employment was severely impaired by her medical conditions and that her
social and adaptive functioning was severely limited by her chronic medical issues were merely
opinions regarding Plaintiff’s limitations from physical impairments, not mental impairments.
(Tr. 19). Herein, the ALJ properly determined that Dr. Smith is a psychologist, qualified to opine
only to limitations related to mental impairment, not limitations related to physical impairment.
(Tr. 19, 391).
Furthermore, the ALJ adequately noted that Dr. Smith’s assessment was mostly based on
Plaintiff’s own reports of physical symptoms. (Tr. 19). Dr. Smith’s assessment starts with a
disclaimer that her assessment is based in part on material provided by the patient and then
summarizes Plaintiff’s physical complaints at length before determining that her physical

17

impairments limit her ability to work. (Tr. 391, 393). As a result, contrary to Plaintiff’s
argument, the ALJ did not substitute his own opinion for that of Dr. Smith, but was only reading
the contents of Dr. Smith’s own report in determining that it was not entitled to great weight. (Tr.
18-19, 391-394).
In Wainwright v. Comm’r of Soc. Sec., No. 06-15638, 2007 WL 708971 (11th Cir. Mar.
9, 2007), the court concluded that the ALJ must “state with particularity that he [is] assigning
substantial weight to the opinions of . . . state agency psychologists and clearly articulate his
reasons for doing so,” and these reasons must be “explicit, adequate, and supported by
substantial evidence in the record.” Here, the ALJ properly articulated his reasons for according
little weight to the examining psychologist, Dr. Smith, and relying on Dr. Cooper’s assessment.
(Tr. 18-19). First, Plaintiff’s own treating physician had not imposed any limitations on her
mental capabilities; therefore, the ALJ correctly relied on Dr. Cooper’s assessment to determine
Plaintiff’s mental functional limitations. Second, the ALJ noted that Dr. Smith’s opinion was
less persuasive because it was (1) materially inconsistent with the record and, in fact,
inconsistent with his own treatment notes, (2) unsupported by the medical evidence, and (3)
appeared to be based primarily on Plaintiff’s subjective reports and complaints. (Tr. 18-19, 391394). The ALJ’s reasons are explicit, adequate, and supported by substantial evidence in the
record.
Plaintiff’s argument that the ALJ should have recontacted Dr. Smith is also without
merit. (Doc. 9 at 11-12). Title 20 C.F.R. § 404.1512(e) requires the Social Security
Administration (SSA) to:
re-contact a medical source to obtain additional evidence or to seek clarification
of evidence when the evidence received from that source “is inadequate for us to
determine whether [the claimant] is disabled.” 20 C.F.R. § 404.1512(e) (2006).
Specifically, additional evidence or clarification must be sought from the medical
18

source “when the report from [the claimant’s] medical source contains a conflict
or ambiguity that must be resolved, the report does not contain all the necessary
information, or does not appear to be based on medically acceptable clinical and
laboratory diagnostic techniques.” Id. Such additional evidence or clarification
may be obtained by the SSA requesting copies of the medical sources’ records,
obtaining a new or more detailed report from the medical source, or contacting the
medical source by telephone. Id. Social Security Ruling 96–5p recapitulates the
requirements of § 404.1512(e), and directs the ALJ to “make every reasonable
effort to recontact [medical] sources for clarification when they provide opinions
on issues reserved to the Commissioner and the bases for such opinions are not
clear[.]”
There was no other information needed from Dr. Smith for the ALJ to make a decision as to
Plaintiff’s restrictions. Even more importantly, obtaining a consultative examination, like the
one completed by Dr. Smith, is one of the remedies when a medical record is insufficient. 20
C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3). There is also substantial evidence supporting the
ALJ’s determination that Plaintiff was not mentally disabled, and that decision was supported by
other treating physicians, such as Dr. Martinec, and the physicians at Huntsville Hospital. (Tr.
301-368, 454). Therefore, the ALJ did not act as both judge and physician, so there was no need
for additional information or clarification, and the record reflects that the duty to recontact did
not arise here.
Lastly, Plaintiff’s argument that the ALJ erred in relying on Dr. Cooper’s assessment is
off the mark. (Doc. 9 at 12-13). Specifically, Plaintiff argues that the ALJ erred by giving
substantial weight to a non-examining state agency physician, such as Dr. Cooper, over the
opinion of examining psychologists, Dr. Smith, and it follows that the ALJ’s decision is not
based on substantial evidence. (Doc. 9 at 13-15). However, State agency medical consultants are
highly qualified psychologists who are also experts in Social Security disability evaluation. 20
C.F.R. §§ 404.1527(f)(2), 416.927(f)(2); Social Security Ruling 96-6p. The ALJ properly relied

19

on Dr. Cooper’s assessment to determine Plaintiff’s mental functional limitations. (Tr. 19, 415445).
With regards to Dr. Cooper’s assessment, the ALJ gave great weight to the opinion of
this state agency psychological consultant, who found that Plaintiff had, at most, moderate
limitations in functioning due to her depression and anxiety. (Tr. 19, 443-446). The ALJ
considered Dr. Cooper’s assessment and held that the assessment was well-supported by the
medical evidence and consistent with the record as a whole. (Tr. 19). See 20 C.F.R. §§
404.1527(c)(3)-(4), 416.927(c)(3)-(4). “[G]enerally a treating doctor’s opinion is entitled to more
weight than that of a consulting doctor’s.” Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.
1984). However, it is not error for an ALJ to rely “on the opinion of a non-examining physician
[if] th[e] opinion was consistent with the opinions of the examining physicians.” Edwards v.
Sullivan, 937 F.2d 580, 584-585 (11th Cir. 1991). In light of this, we look to whether Dr.
Cooper’s reports are consistent with the reports of other examining physicians who have given
Plaintiff mental health treatment such as Dr. Gross, Dr. Martinec, and the psychiatric treatment
conducted at the Huntsville Hospital. (Tr. 290-291, 301-368, 455). Moreover, if Dr. Cooper’s
assessment is inconsistent with the reports of other examining physicians who have given
Plaintiff mental treatment, the case would be remanded. (Tr. 415-446).
Dr. Gross and Dr. Martinec both diagnosed Plaintiff as suffering from depression and
anxiety during the period of May through June 2008. (Tr. 290-291, 455). On February 6, 2010,
Dr. Martinec diagnosed Plaintiff as still being depressed and referred her to a psychiatrist. (Tr.
455). However, nothing in the record shows that Plaintiff acted upon that referral, and, in fact
Plaintiff did not report any symptoms of anxiety or depression upon her final visit to Dr.
Martinec on April 2010. (Tr. 370, 388, 455). As a result, Dr. Martinec and Dr. Gross’ diagnosis

20

of Plaintiff’s mental treatment correlate with Dr. Cooper’s assessment that Plaintiff no longer
complained of having any symptoms of depression or anxiety, and she did not seek further
mental health treatment. (Tr. 290-291, 415-446, 451-476).
Plaintiff was also admitted and given mental health treatment at the Huntsville Hospital
after attempting suicide with a gun. (Tr. 301-368). Plaintiff was diagnosed with social stress,
depression, and alcohol intoxication. (Tr. 310). Even though Plaintiff was intoxicated, it was
acknowledged that she was alert times three and displayed no signs of acute distress or obvious
discomfort. (Tr. 305). Although she had a depressed affect, she responded appropriately to
questions, and after her hospital admission, denied that she had tried to commit suicide. (Tr. 305,
321, 323). She specifically stated that she accidently discharged her gun, that she was fine, and
had no intent to kill herself. (Tr. 321). She further admitted that she was safe to go home and
denied anything but chronic, mild depression, which she felt she could handle. (Tr. 323).
Plaintiff was discharged from the hospital the following day while in stable condition. (Tr. 323324). This evidence correlates with Dr. Cooper’s assessment that Plaintiff has, at most, moderate
limitations in functioning due to her depression and anxiety. (Tr. 443-446).
As noted above, Dr. Smith’s assessment is inconsistent with her own findings. She
reported Plaintiff had fair attention and concentration, and her mental status examination showed
Plaintiff had normal speech, normal response to questions, good insight and judgment, average
cognition, and intact recent and remote memory. (Tr. 392). Dr. Smith further opined that Plaintiff
was able to initiate and maintain eye contact appropriately throughout the session, her thought
content and processes were within normal limits, there were no indications of auditory or visual
hallucinations, and she did not manifest any bizarre mentation or abnormal fears of obsessions.
(Tr. 392). There were no signs of suicidal and homicidal ideation and Plaintiff was alert and

21

oriented to time, place, person, and situation. (Tr. 392). Moreover, in Plaintiff’s July 2010
examination by Dr. Smith, Plaintiff reported no history of any mental health treatment. (Tr. 392).
Dr. Smith found that Plaintiff’s overall level of social and adaptive functioning appeared
to be severely impaired. Her findings for that particular diagnosis are predominantly consistent
with Dr. Cooper’s assessment. (Tr. 393). Dr. Smith’s notes tend to show that Plaintiff’s mental
limitations were normal, evidence that actually supports Dr. Cooper’s diagnosis that Plaintiff
had, at most, moderate limitations in functioning due to her depression and anxiety. (Tr. 393,
443-446). Accordingly, it was proper for the ALJ to rely on Dr. Cooper’s assessment because it
was well-supported by medical evidence from other examining physicians, and consistent with
the record as a whole. (Tr. 415-446).
VI.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is

supported by substantial evidence and proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed, and a separate
order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this August 8, 2014.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

22