Timmons v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/19/2018. (AFS)

FILED
2018 Sep-20 AM 08:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CHERYL LYNN TIMMONS,

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Plaintiff,

v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Civil Action Number
5:17-cv-00224-AKK

MEMORANDUM OPINION
Cheryl Lynn Timmons brings this action pursuant to Section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g), seeking review of the final adverse
decision of the Commissioner of the Social Security Administration (“SSA”). This
court finds that the Administrative Law Judge (“ALJ”) applied the correct legal
standard and that her decision—which has become the decision of the
Commissioner—is supported by substantial evidence. Therefore, the court
AFFIRMS the decision denying benefits.
I.

Procedural History

Timmons worked for the Alabama Department of Finance for more than 10
years until she stopped working in December 2013 at age 51 due to her alleged

disability. Docs. 3-6 at 15-19; 3-7 at 19. Timmons filed her application for
Disability Insurance Benefits (“DIB”) on November 25, 2013, doc. 3-4, asserting
that she suffered from a disability beginning on November 5, 2013 and caused by
several disabling impairments, including major depression disorder, anxiety,
fatigue, and insomnia. Id. at 2-3. After the SSA denied her application, doc. 3-4 at
15-16, Timmons requested a formal hearing before an ALJ. Doc. 3-3 at 90.
Ultimately, the ALJ entered a decision finding that Timmons was not disabled.
Doc. 3-3. The Appeals Counsel affirmed, rendering the ALJ’s decision the final
decision of the Commissioner. Id. Having exhausted her administrative remedies,
Timmons filed this action pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g). Doc. 5.
II.

Standard of Review

The only issues before this court are whether the record contains 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 ALJ applied the
correct legal standards, 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)
and 1383(c) mandate that the Commissioner’s “factual 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

2

review the final decision as a whole and determine if the decision is “‘reasonable
and supported by substantial evidence.’” Id. (quoting 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). If supported by substantial evidence, the
court must affirm the Commissioner’s factual findings even if the preponderance
of the evidence is against those findings. See id. While judicial review of the
ALJ’s findings is limited in scope, it “does not yield automatic affirmance.” Lamb,
847 F.2d at 701.
In contrast to the deferential review accorded the Commissioner’s factual
findings, “conclusions of law, including applicable review standards, are not
presumed valid” and are subject to de novo review. Martin, 894 F.2d at 1529. The
Commissioner’s failure to “apply the correct legal standards or to provide the
reviewing court with sufficient basis for a determination that proper legal
principles have been followed” requires reversal. Id.
III.

Statutory and Regulatory Framework

An individual applying for DIB bears the burden of proving that she is
disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). To qualify, a

3

claimant must show “the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A); 42
U.S.C. § 416(i)(I)(A). A physical or mental impairment is “an impairment that
results from anatomical, physiological, or psychological abnormalities which are
demonstrated by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f).

Specifically, the Commissioner must determine, in

sequence:
(1) whether the claimant is doing substantial gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or is medically equivalent to one
listed by the Secretary;
(4) whether the claimant is unable to perform his or her past work;
and
(5) whether the claimant is unable to perform any work in the
national economy.
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
4

prior work, the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV.

The ALJ’s Decision

The ALJ applied the five-step analysis for DIB claims, see McDaniel, 800
F.2d at 1030, and found that step one was satisfied because Timmons was not
engaged in substantial gainful activity between January 1, 2014 and September 18,
2015. Doc. 3-3 at 34-35. At step two, the ALJ found that Timmons has “severe
impairments” caused by major depressive disorder, bipolar disorder, anxiety
disorder, attention deficit hyperactivity disorder, and personality disorder. Doc. 33 at 35. At step three, the ALJ considered whether Timmons had any of the
following mental disorders between November 5, 2013 and October 26, 2015: (1)
affective disorders; (2) anxiety related disorders; or (3) personality disorders. 20
CFR Pt. 404, Subpt. P, App. 1, §§ 12.04, 12.06, 12.08.1 The ALJ concluded that
Timmons’s impairments, considered singly or in combination, did “not meet or
medically equal the criteria of listings” in 20 CFR Part 404, Subpart P, Appendix
1. Doc. 3-3 at 34-37.

1

The SSA recently amended the criteria for “mental disorders” through formal rulemaking, and
the new listings became effective January 17, 2017. See Revised Medical Criteria for Evaluating
Mental Disorders, 81 FR 66138-01. The revised criteria renamed these respective listings to the
following: (1) depressive, bipolar and related disorders; (2) anxiety and obsessive-compulsive
disorders; and (3) personality and impulse-control disorders. Id.
5

Next, the ALJ determined Timmons’s residual functional capacity (“RFC”)
and found that Timmons “can perform simple routine tasks requiring no more than
short simple instructions and simple work related decision making with few work
place changes.” Doc. 3-3 at 46-47. Based on the RFC, and relying on the
testimony of a vocational expert (“VE”), at step four, the ALJ found that Timmons
could not return to her past relevant work as an eligibility worker and loan clerk.
Id. The ALJ then proceeded to step five, where based on Timmons’s RFC, age,
prior work experience, and the VE’s testimony, the ALJ concluded that Timmons
is “capable of making a successful adjustment to other work that exists in
significant numbers in the national economy,” including housekeeping, assembly
work, and laundry work. Id. As a result, the ALJ concluded that Timmons was
not disabled from the alleged onset date through the date of her decision. Id.
V.

Analysis

On appeal, Timmons argues that (1) the ALJ failed to properly weigh the
opinions of Timmons’s treating and examining physicians and relied instead on the
opinions of non-examining consultative physicians, doc. 5 at 5-16, and (2) that the
Appeals Council should have vacated the ALJ’s decision in light of new, material
evidence she submitted, id. at 16-17. The court addresses each contention in turn.

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A. Whether the ALJ erred by failing to properly weigh the opinions of
Timmons’s treating and examining physicians
Timmons argues that the ALJ erred by affording “little weight” to the
reports of Dr. Marie Cebert (treating physician), Dr. Danny Blanchard (treating
physician), and Dr. William Confer (non-treating consultative physician), and by
failing to state what, if any, weight she gave to those of Dr. Trevor Lindsay
(treating physician) and Dr. Heath Penland’s (treating physician). Docs. 3-8 at 1356; 3-9; 3-10 at 1-41, 69-76; 3-12; 3-13 at 1-15, 21-25; 3-11; 3-13 at 17-20; 5 at 78. The court disagrees.
The ALJ must give “substantial or considerable weight” to the opinion of a
treating physician “unless ‘good cause’ is shown.” Phillips v. Barnhart, 357 F.3d
1232, 1240 (11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997)). “Good cause exists ‘when []: (1) [the] treating physician’s opinion
was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3)
[the] treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records.’” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179
(11th Cir. 2011) (quoting Phillips, 357 F.3d at 1241). The ALJ must clearly
articulate the reasons for not giving substantial or considerable weight to a treating
physician’s opinions. Id.

A failure to do so constitutes reversible error.

MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).

7

Timmons argues that the ALJ should have given more weight to the
opinions of Drs. Lindsay, Cebert, Blanchard, and Penland, 2 who documented her
medical history and wrote letters opining that she was unable to work due to her
mental problems. Doc. 5 at 12. Although their letters and records indicate that
Timmons’s previous job impacted her health, each doctor recommended different
workplace adjustments for Timmons.

Specifically, in light of Timmons’s

depression, suicidal thoughts, and panic attacks, Dr. Cebert recommended that
Timmons take medical leave or reduce her work schedule, docs. 3-12 at 90; 3-8 at
53, whereas Dr. Blanchard opined that Timmons was not capable of continued
employment and suggested retirement, doc. 3-8 at 23. As for Dr. Lindsay, he
diagnosed Timmons with major depressive disorder and anxiety disorder, and
noted that Timmons’s hallucinations of demons caused her to “struggle” at her job
making her question whether she could continue working. Doc. 3-9. To the extent
that Timmons is maintaining that these opinions establish her disability, these
opinions are not dispositive on the issue of whether Timmons is unable to maintain
any steady employment. As the ALJ noted, these assessments are not medical
opinions, but are instead legal issues reserved for the Commissioner. See 20 C.F.R.
2

Dr. Penland’s December 2015 evaluation, where he opines that Timmons is unable to work,
will be addressed in Section B, infra, as Timmons raised it as new evidence to the Appeals
Council. As for the period relevant to the ALJ’s decision, the ALJ noted that Timmons met with
Dr. Penland in April 2015 around the time Timmons learned she had limited time remaining to
obtain “SSDI/Medicare.” Doc. 3-3 at 41. At the time, Dr. Penland increased Timmons’s
medication and noted that she was “cooperative” and “calm” while exhibiting “good memory,
attention, and concentration.” Id.
8

§ 404.1527(d); Coheley v. Soc. Sec. Admin., 707 Fed. Appx. 656, 659 (11th Cir.
2017); Hutchison v. Astrue, 408 Fed. Appx. 324, 327 (11th Cir. 2011) (finding that
an opinion regarding whether a claimant “could hold a job is a vocational opinion,
not a medical one” and is a “question reserved to the ALJ”). As such, the ALJ did
not err when she rejected these opinions.
Moreover, in her decision, the ALJ extensively considered these treating
physicians’ opinions and detailed her “good cause” for discounting them. Lamb,
847 F.2d at 703. For example, the ALJ noted that in a July 2012 letter3 for
reasonable workplace accommodations, Dr. Cebert recommended that Timmons
reduce her weekly work schedule but offered no explanation other than Timmons’s
“health has suffered greatly due to her job requirements.” Doc. 3-12 at 90. The
ALJ explained that she gave “little weight” to Dr. Cebert’s opinion because the
medical record as a whole also showed that Timmons “needed no changes in
therapy, as she was reacting well and feeling good.” Docs. 3-3 at 45. Indeed, the
medical records from Dr. Blanchard that the ALJ cited repeatedly note this fact.
See doc. 3-8 at 25-46. In other words, the records are inconsistent with the extent
of physical limitations described by Dr. Cebert, and those inconsistencies provide

3

Similarly, in a June 2012 examination, Dr. Cebert noted that Timmons “need[s] medical leave”
and exhibited “fatigue” and “depression.” Doc. 3-8 at 53. During a May 2012 examination, Dr.
Cebert notes that Timmons felt like she was having a “nervous breakdown” because her
employer required her to “process claims for [seven] counties” and review “42 claims per
month.” Id. at 54.
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good cause to discount the opinions. See 20 C.F.R. § 404.1527(c)(3), (c)(4);
Phillips, 357 F.3d at 1241 (explaining that good cause to discount a treating
physician’s opinion is shown when that “opinion was . . . inconsistent with the
doctor’s own medical records”).
The second treating physician’s opinion Timmons challenges the ALJ on is
that of Dr. Blanchard, who wrote a letter opining that Timmons was “not capable
of continued employment” because her “conditions are very serious” and she
cannot continue “her job expectations.”4 Doc. 3-8 at 23. The ALJ explained that
she afforded “little weight” to this opinion because Timmons’s treatment progress
reports repeatedly indicated that her mental status was “normal,” she appeared
“well groomed,” her affect was “appropriate,” her participation was “active,” her
mood was “normal,” and that she was “doing well and responding appropriately”
to treatment and there are “no major problems at this time.” Id. at 30-45. A
review of the record and treating notes support the ALJ’s decision to cast doubt on
Dr. Blanchard’s assessment of Timmons being incapable of performing any work.
As for the third treating physician Timmons cites, Dr. Lindsay, the ALJ
afforded little weight to his opinion because Dr. Lindsay’s records consisted
mostly of “billing dates” and “military leave statements.” Doc. 3-3 at 40. The

4

In an October 12, 2012 letter, Dr. Blanchard opined that Timmons’s “work hours be reduced”
and urged her workplace to “reassign her to a similar position with fewer requirements” in order
to “help her stabilize.” Doc. 3-12 at 99.
10

ALJ pointed out also that Dr. Lindsey’s limited records indicated that Timmons
displayed an “appropriate affect,” exercised and regularly completed house chores
even though she “had hallucinations about demons bothering her in her sleep.” Id.
Again, when the medical opinion is inconsistent with the medical record as a
whole, good cause exists for the ALJ to discount the opinion. Phillips, 357 F.3d at
1241.
Timmons also takes issue with the ALJ’s decision to give little weight to her
non-treating consultative physician, Dr. Confer, who met with her and reviewed
her medical files. Docs. 3-3 at 10-13; 3-13 at 26-32; 3-10 at 62-68. Based on a
disability evaluation he performed, Dr. Confer opined that Timmons was
“unlikely” to “deal with normal pressures in a competitive work setting.” Doc. 310 at 63-67.

Despite this assessment, Dr. Confer stated also that Timmons

appeared “docile” and “likely quite cooperative in the workplace.” Id. at 67. In
that same evaluation, as the ALJ noted, Dr. Confer opined that Timmons
participates in regular activities such as removing old carpet, general cleaning,
house repairs, riding a lawn mower, laundry, grocery shopping, watching
television, attending church, and gardening. Docs. 3-10 at 66-67; 3-3 at 44-45. Dr.
Confer also described Timmons’s ability to recall events, appropriate abstractions,
and average intelligence. Doc. 3-3 at 42. Accordingly, the ALJ offered little
weight to these opinions for their inconsistency with Timmons’s “record as a

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whole,” which detailed her regular active schedule and ability to complete
household tasks. Doc. 3-3 at 40. In other words, the ALJ provided good cause for
her treatment of Dr. Confer’s opinion. See 20 C.F.R. § 404.1527(c)(4); Mullen v.
Acting Comm'r of Soc. Sec., 723 F. App'x 970, 972 (11th Cir. 2018) (affirming the
ALJ’s decision to disregard the medical opinion that was inconsistent with the
record related to that time period).
Relatedly, Timmons contends that the ALJ erred by giving “great weight” to
the non-examining physician, Dr. Angela Register, and non-treating physician, Dr.
Andrea Viegas, even though they purportedly failed to review Timmons’s entire
medical record. Thus, Timmons contends that the ALJ’s decision “should raise
flags of skepticism.” Doc. 5 at 7-8, 13. The court disagrees. Even if the “nonexamining doctor” is unable to review all of Timmons’s records before making
functional determinations, the ALJ commits no error if she “considered all of the
evidence in the record” in affording “great weight” to their opinions. Cooper v.
Comm'r of Soc. Sec., 521 F. App'x 803, 807 (11th Cir. 2013) (emphasis added). As
the ALJ noted, she gave their opinions “great weight” because they were based on
the entire record and not just “subjective reports of symptoms” and “snaphot[s] of
the individual’s functioning.” Doc. 3-4 at 13-16. See Forsyth v. Comm'r of Soc.
Sec., 503 F. App'x 892, 893 (11th Cir. 2013) (holding that the ALJ did not
improperly give more weight to the non-examining specialist due to the

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inconsistency of the treating physician’s opinion). Both doctors opined that
although Timmons experienced depression and anxiety, she preferred “solitary
activity” and can perform “simple routine tasks” that required “simple
instructions.” Doc. 3-3 at 46. Consistent with the treating physicians’ records of
Timmons’s ability to perform home chores and errands, the ALJ afforded more
weight to Dr. Register’s nuanced opinion 5 that Timmons had “mild restrictions of
daily living,” could maintain concentration for “at least 2 hours at a time,” and
could complete tasks with repetition. Id. at 47. See 20 C.F.R. § 404.1527(c)(4);
Mullen, 723 F. App'x at 972.
In light of the “evidence of the record” and medical opinions indicating that
Timmons found “her previous skilled job and work environment stressful,” the
ALJ ultimately concluded that Timmons could perform “simple tasks” and was
“capable of making a successful adjustment to other work.” 6 Id. at 46-48. See
Lindsey v. Comm'r of Soc. Sec., 2018 WL 3369170, at *2 (11th Cir. July 10, 2018)
5

Although Timmons experiences restrictions on social functioning, concentration, and social
interactions with the general public, Dr. Register noted that these limitations are moderate and
that Timmons is able to maintain “superficial social interactions in [the] work setting” and
handle “simple, routine tasks.” Docs. 3-3 at 43; 3-4 at 1-16. As a result, Dr. Register offered a
more nuanced recommendation that Timmons find a job where “changes in the work setting” are
infrequent to “avoid build-up of stress resulting in anxiety” as she felt in her “previous skilled
job.” Id.
6
The ALJ’s opinion, medical records, and Timmons’s testimony indicate that she had mild
restriction in her daily activities because she was “able to use a computer, watch television, use a
[cellphone] and text others, travel, visit [family], drive, leave home, attend church, run errands,
shop in stores, go to the bank, manage her finances, and read the bible.” Doc. 3-3 at 38.
Timmons’s own written report also indicated that she could “care for her pets, watch television,
do laundry, do housework, load the dishwasher, manage her personal care, prepare simple meals,
drive, shop online, sew, and read.” Id.
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(noting that the “ALJ determined that, based on the vocational expert’s testimony,
[claimant] was capable of working” in less skilled jobs and was considered “not
disabled”). Because the ALJ’s rationale was adequate, the court will not disturb
the credibility determination. See Lewis, 125 F.3d at 1440; Hunter v. Soc. Sec.
Admin., Comm’r, 808 F.3d 818, 823 (11th Cir. 2015).
Moreover, as to the ALJ’s determinations related to Timmons’s treating
physicians, an ALJ may disregard a treating physician’s opinion for good cause.
Critically, the court will not second guess the ALJ about the weight the treating
physician’s opinion deserves so long as she articulates a specific justification for it.
See Moore, 405 F.3d at 1212. The ALJ did so in this case. The records indicate
that there is ample evidence that Timmons could perform a range of medium tasks
and errands, which is contrary to the opinions of the treating physicians’ letters and
records. Therefore, the court finds no reversible error.
B. Whether the Appeals Council erred by failing to review new purportedly
relevant evidence
Timmons argues also that the Appeals Council erred by failing to review
evidence she submitted on appeal. Doc. 5 at 16-19. In general, a claimant may
present new evidence in support of her application at each stage of the
administrative process. Ingram v. Comm’r of Soc. Sec. Admin, 496 F.3d 1253,
1261 (11th Cir. 2007) (citing 20 C.F.R. § 404.900(b)). “The Appeals Council must
consider new, material, and chronologically relevant evidence and must review the
14

case if ‘the administrative law judge’s action, findings, or conclusion is contrary to
the weight of the evidence currently of record.’”

Id. (quoting 20 C.F.R.

§ 404.970(b) (effective through January 16, 2017)). 7

“New evidence is

chronologically relevant if it ‘relates to the period on or before the date of the
ALJ’s hearing decision.’” See Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d
1302, 1309 (11th Cir. 2018) (quoting 20 C.F.R. § 404.970(b)).
Here, the Appeals Council found correctly that the new records from
Crestwood Medical Center8 and Dr. Penland 9 were not chronologically relevant.
Doc. 3-3 at 2.

The records at issue are dated from November 5, 2015 and

December 15, 2015, which is after the ALJ’s decision. Id. at 2-4. Furthermore,
these records do not describe Timmons’s “mental symptoms during the relevant
period,” and note instead that the hospitalization at issue was primarily prompted
by Timmons’s recent “bout of stress” and “chief complaint” related to the ALJ’s
decision to deny her social security benefits. Doc. 3-3 at 10-21. See Hargress, 883
7

20 C.F.R. § 404.970 was amended effective January 17, 2017. See 81 FR 90987-01. The court
relies on the prior version of 20 C.F.R. § 404.970 that was in effect on October 29, 2015 when
the AC denied review in Timmons’s case.
8
According to the Crestwood Medical Records, Timmons complained primarily about not being
“eligible for social security benefits,” and expressed suicidal thoughts because her “disability
was recently denied.” Doc. 3-3 at 21. The records indicate that Timmons was “attentive and
cooperative” and she was “referred to outpatient treatment [after] safety issues [were]
addressed.” Id. at 24.
9
Dr. Penland provided a Mental Residual Functional Capacity report after the Crestwood
Hospitalization in November 2015, in which he notes that Timmons’s “last bout of stress
resulted in severe suicidality requiring hospitalization.” Doc. 3-3 at 10-13. As the Appeals
Council suggested, whether this assessment establishes that Timmons is disabled is an issue for a
“new claim for disability” to determine if Timmons was “disabled after October 29, 2015.” Id.
15

F.3d at 1309-10.

Because the Appeals Council is not required to “provide a

detailed discussion of a claimant’s new evidence,” it is sufficient for the Appeals
Council to state that the “submitted records are about a later time and, therefore, do
not affect the decision about whether a claimant was disabled at the time of the
ALJ hearing.” See Ring v. Soc. Sec. Admin., Comm'r, 728 F. App'x 966, 968 (11th
Cir. 2018). Thus, the Appeals Council properly declined to consider the new
records from Crestwood Medical Center and Dr. Penland on the grounds that they
are not chronologically relevant.
CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Timmons is not disabled is supported by substantial evidence, and that the
ALJ applied proper legal standards in reaching his decision. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
DONE the 19th day of September, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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