Cagle v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/30/2014. (MSN)

FILED
2014 Sep-30 AM 09:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
SHEILA LOUANN CAGLE,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

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Case Number: 6:13-cv-01373-JHE

Defendant.
MEMORANDUM OPINION1
Plaintiff Sheila Louann Cagle (“Cagle”) seeks review, pursuant to 42 U.S.C. §§ 405(g),
205(g) of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying her application for Supplemental Security Income
(“SSI”) benefits. Cagle timely pursued and exhausted her administrative remedies. The case is
therefore ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned has carefully
considered the record and, for the reasons stated below, the Commissioner’s decision is
AFFIRMED.
I. Factual and Procedural History
Cagle was a twenty-seven year old female at the time of her hearing before the
Administrative Law Judge (“ALJ”) on February 13, 2012. (Tr. 52). Cagle has a tenth-grade
education, (tr. 165), and previously worked as a short order cook, waitress, and cashier. (Tr. 191194).
1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 13).

Cagle applied for SSI on September 7, 2010, alleging an initial onset date of February 1,
2009. (Tr. 141). Cagle’s application was denied on January 26, 2011, (tr. 80-82), and Cagle
requested a hearing before an ALJ. (Tr. 89). After a video hearing, the ALJ denied Cagle’s
claim on February 24, 2012. (Tr. 24-41). Cagle sought review by the Appeals Council, but the
council denied her request on May 22, 2013. (Tr. 1-3). On that date, the ALJ’s decision became
the final decision of the Commissioner. Cagle then initiated this action on July 23, 2013. (Doc.
1).
II. Standard of Review2
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this court is to determine whether the decision of the Commissioner is supported by
substantial evidence and whether proper legal standards were applied. See Wilson v. Barnhart,
284 F.3d 1219, 1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to
determine if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted). This court will
determine that the ALJ’s decision is supported by substantial evidence if it finds “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”

Id.

Substantial evidence is “more than a scintilla, but less than a preponderance.” Id. Factual
findings supported by substantial evidence must be upheld by the court. The ALJ’s legal
conclusions, however, are reviewed de novo, “because no presumption of validity attaches to the
[ALJ’s] determination of the proper legal standards to be applied.” Davis v. Shalala, 985 F.2d

2

In general, the legal standards applied are the same whether a claimant seeks Disability
Insurance Benefits (“DIB”) or SSI. However, separate, parallel statutes and regulations exist for
DIB and SSI claims. Therefore, citations in this opinion should be considered to refer to the
appropriate parallel provision as context dictates. The same applies to citations for statutes or
regulations found in quoted court decisions.
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528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the law, or if the
ALJ fails to provide the court with sufficient reasoning for determining the proper legal analysis
has been conducted, the ALJ’s decision must be reversed. See Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for SSI as well as establish entitlement for a period of disability, a claimant
must be disabled as defined by the Social Security Act and the Regulations promulgated
thereunder.3 The Regulations define “disabled” as the “inability to do 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 12 months.” 20 C.F.R. § 416.905(a). To establish entitlement to disability
benefits, a claimant must provide evidence of a “physical or mental impairment which “must
result from anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 416.908.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 416.920(a)(4)(i–v). The Commissioner must determine in sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently engaged in substantial gainful activity;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the Secretary;
whether the claimant can perform his past work; and
whether the claimant is capable of performing any work in the national
economy.

See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2010); accord McDaniel v. Bowen, 800 F.2d
1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied steps on and two, [she] will
3

The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts 400 to 499,
revised April 1, 2013.
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automatically be found disabled if [she] suffers from a listed impairment. If the claimant does
not have a listed impairment but cannot perform [her] work, the burden shifts to the Secretary to
show that the claimant can perform some other job.” Pope v. Shalala, 998 F.2d 473, 477 (7th
Cir. 1993), overruled in part on other grounds, Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999);
accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Foote, 67 F.3d at
1559.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Cagle has not engaged in substantial gainful activity since
the application date. (Tr. 26). At Step Two, the ALJ found Cagle had the following severe
impairments: vasovagal syndrome, seizure disorder, multiple sclerosis (relapsing-remitting),
headaches, an adjustment disorder with anxiety and depressed mood, and polysubstance abuse.
(Id.) At Step Three, the ALJ found Cagle 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. Part 404, Subpart P, Appendix 1. (Tr. 27-30).
Before proceeding to Step Four, the ALJ determined Cagle’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined Cagle has the RFC to perform medium work as defined in
20 C.F.R. 416.967(c) except she can never climb any ladders, ropes, or scaffolds; can only
frequently climb ramps/stairs, balance, stoop, crouch, kneel and crawl; must avoid all exposure
to hazards like dangerous machinery and unprotected heights; must avoid concentrated exposure

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to extreme heat; and is limited to employment at low-stress jobs with only occasional contact
with the public. (Tr. 30-31). In reaching this conclusion, the ALJ considered Cagle’s physical
examinations, treatment, diagnostic test results and other evidence contained in medical records
and treatment records from her physicians. (Tr. 30-39).
At Step Four, the ALJ determined Cagle is unable to perform any past relevant work.
(Tr. 39). At Step Five, the ALJ determined, based on Cagle’s age, education, work experience,
and residual function, jobs exist in significant numbers in the national economy Cagle can
perform. (Tr. 39-40). Therefore, the ALJ determined Cagle is not disabled and denied her
claim. (Tr. 41).
V. Analysis
This Court is limited in its review of the Commissioner’s decision in that the
Commissioner’s findings of fact must be reviewed with deference. See Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990) (citing Graham v. Bowen, 790 F.2d 1572, 1574-75 (11th Cir.
1986)). In contrast to factual findings, the Commissioner’s conclusions of law are subject to an
“exacting examination” or de novo review. See Martin, 894 F.2d at 1529 (citing Graham, 790
F.2d at 1574-75) (“The Secretary’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 mandates reversal.”) (citations omitted). In particular, this court has a “responsibility to
scrutinize the record in its entirety to ascertain whether substantial evidence supports each
essential administrative finding.” See Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)
(citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)).4 However, the court “abstains

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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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from reweighing the evidence or substituting its own judgment for that of the [Commissioner].”
Id. (citation omitted).

The court must review the Commissioner’s decision and determine

whether it is supported by substantial evidence and if he applied the correct legal standards.
Wilson, 284 F.3d at 1221.
Cagle contends the ALJ’s decision is not supported by substantial evidence and should be
reversed and remanded because the ALJ: (1) improperly discounted the opinion of Dr.
Christopher LaGanke and (2) incorrectly examined the vocational expert. (Doc. 12 at 8).
A. The Administrative Law Judge Properly Weighed Treating Physician Testimony
Cagle contends the ALJ’s decision is not supported by substantial evidence because the
ALJ improperly discounted the opinion of Cagle’s treating physician, Dr. LaGanke. (Doc. 12 at
8). Under 20 C.F.R. § 404.1527(c)(2), a treating physician’s opinion is given controlling weight
where it is “supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the] case record.” Accordingly, “[t]he
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 v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997). Good cause to reduce the weight given to a treating physician’s opinion 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. Barnhart, 357 F.3d 1232, 1241 (11th Cir.
2004).
The parties do not dispute Dr. LaGanke is a treating physician or that the ALJ articulated
reasons for giving less weight to his opinion. (Doc. 12 at 8-9; doc. 13 at 6). Cagle asserts,
however, the ALJ erred in discrediting Dr. LaGanke’s opinion on grounds not founded in the

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evidence.

(Doc. 12 at 10).

The ALJ’s reasons for discounting the opinion included: (1)

inconsistency with medical evidence; (2) contradictions of Drs. Moizuddin, Norwood and
Reddy; (3) infrequency of treatment visits; (4) treatment was inconsistent with that pursued if
Cagle were truly disabled; and (5) the uncritical reliance upon Cagle’s statements, even though
there were good reasons for questioning the reliability of Cagle’s complaints. (Tr. 31-39).
Cagle contends “Dr. Laganke’s [sic] opinion is supported by not only physical
examination of [Cagle]’s impairments, but also by diagnostic testing including MRIs”; it is
consistent with the opinion of Dr. Moizuddin; and the ALJ’s conclusion his opinion “is based on
anything other than his own examination and testing” is “mere speculation.” (Doc. 12 at 10-11).5
The Commissioner counters, stating Dr. LaGanke’s opinion is not supported by the medical
evidence, including the MRIs; it is inconsistent with the majority of the consultative physicians’
findings; and the ALJ’s conclusions regarding Dr. LaGanke’s reliance on Cagle’s subjective
testimony is based on the fact his opinion is not supported by the medical evidence and treatment
history. (Doc. 13 at 9-12).
The opinion in question appears in “Physical Capacities Evaluation” (“PCE”) and
“Clinical Assessment of Pain” forms drafted by Cagle’s attorneys and filled out by Dr. LaGanke.
(Tr. 383-85). Dr. LaGanke’s PCE stated Cagle could lift ten pounds occasionally and less

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Cagle also asserts it was “egregious error” to dismiss Dr. LaGanke’s opinion without
first contacting Dr. LaGanke for clarification. (Doc. 12 at 12). However, she cites to a Social
Security Ruling addressing only opinions speaking to issues reserved to the Commissioner,
which is not applicable here, (id.) (citing S.S.R. 96-5p), and to the regulation on evidence in
general, which states the Commissioner will make “every reasonable effort to obtain evidence,”
(id.) (citing 20 CFR § 416.912(e)). Cagle cites no law to support the conclusion there is a duty
on the facts of her case for an ALJ to call a physician for clarification of his conclusory
statements, nor any law stating failure to obtain clarification of a physician’s medical opinion is
reversible error. Cagle presents no evidence to show the ALJ did not contact Dr. LaGanke for
clarification and cites no law showing the ALJ was required to state what measures were taken to
acquire such clarification.
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weight frequently; could only sit two hours and only stand or walk for one hour during an eight
hour workday; required assistance of a cane “to ambulate even minimally in a normal workday”;
could occasionally do arm and leg controls and reach overhead; could never do climbing, gross
or fine manipulation, bending, or stooping; and could not operate motor vehicles or work around
hazardous machinery or dust, fumes, and allergens. (Tr. 383). The pain assessment stated
Cagle’s pain was such as to be distracting to adequate performance of daily activities or work
and physical activity would greatly increase it to the point of causing distraction from or
abandonment from tasks. (Tr. 385). None of these opinions are directly supported by citation to
medical evidence and are conclusorily “stated” merely by the checking of a box or circling of a
letter or number on a form.
The ALJ explicitly discounted the severity of the limitations appearing in Dr. LaGanke’s
opinion because they were not supported by the evidence. (Tr. 38). Dr. LaGanke’s treating
examinations found Cagle was mostly normal except for some loss of strength, decreased
sensation, and ataxic gait. (Tr. 261-79, 386-99). An emergency room examination in 2010
found no loss of strength and a normal gait, (tr. 299-302), and Dr. Norwood’s consultative
examination found no loss of strength and some evidence of malingering regarding Cagle’s
strength and ataxic gait, (tr. 346). The MRIs LaGanke ordered and to which Cagle points as
evidence for his opinion were mostly normal as well. Dr. LaGanke’s review of MRI scans in
February 2009 indicated the cranial MRI scan was normal, (tr. 261), and the MRIs of Cagle’s
thoracic and cervical spine, which Dr. LaGanke ordered in May 2009, both came back negative
with no abnormalities, (tr. 265, 267). The MRI of Cagle’s brain taken in May 2009 showed two
tiny foci of increased signal intensity suggesting a lacunar infarction, (tr. 266), but a subsequent
MRI for comparison in January 2010 found the two foci decreased in intensity with no new

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abnormalities, (tr. 272). By September 2009, “Dr. LaGanke [had] reviewed [Cagle’s] scans and
determined that she did not have ‘lacunar infarcts’ . . . .” (Tr. 271).
LaGanke’s assertion Cagle could only sit for two hours in an eight hour period is
inconsistent with Cagle’s own report she sits for much of the day at home, (tr. 180), a statement
supported by her aunt’s similar report, (tr. 172). LaGanke’s assertion Cagle required a cane “to
ambulate even minimally in a normal workday,” (tr. 383) (emphasis added), is contradicted by
his own failure to prescribe her one. (Tr. 70, 261-79, 383, 386-99). The ALJ explicitly stated
the evidence did not support Cagle’s use of a walker and Cagle had admitted it was not
prescribed. (Tr. 36). Furthermore, Cagle’s own testimony was she only uses a walker a few
days a week, (tr. 70), and the ALJ stated considerable grounds for believing Cagle is
exaggerating her symptoms, (tr. 35-36). Cagle also asserts Dr. Moizuddin’s report is consistent
with LaGanke’s opinion because his report states “needs a walker to stabilize herself” and
“clearly cannot attempt heel or toe walk,” (tr. 342), but she ignores Moizuddin’s statement in the
same report Cagle “does not use an assistive device,” (tr. 343). She similarly ignores the
inconsistencies with the opinions and records of other physicians. (Tr. 299-302, 346).
Cagle also asserts the ALJ’s determination LaGanke’s report was based on her subjective
statements is “mere speculation” because there is “nothing in the record to suggest that Dr.
LaGanke based his opinion on anything other than his own examination and testing.” (Doc. 12
at 11). Further, she states, “when a physician is instructed to give his opinion based upon his
examination and he does so, it is assumed to be the doctor’s own professional assessment.” (doc.
12 at 11) (citing Hale v. Bowen, 831 F.2d 1007, 1012 n.7 (11th Cir. 1987)). The Hale court,
however, specifically noted there was no evidence the claimant could do more than that stated in
the PCE. Id. at 1012. Here, on the other hand, the ALJ pointed to the fact LaGanke’s report was

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not consistent with the other physicians’ reports or his own treatment of Cagle. (Tr. 38). Despite
Dr. LaGanke’s subsequent opinion of debilitating pain and medical conditions, Dr. LaGanke’s
treatment of Cagle included an extended period of nontreatment from February 2010 to January
2011, (tr. 32, 261-79, 386-99); other treating physicians’ records show only conservative
treatment inconsistent with extreme disability, (tr. 379-82, 423-30); and Cagle herself testified
the medicines helped with the pain, (tr. 64-65, 67). These inconsistencies support the conclusion
LaGanke’s opinion was more extreme than the evidence supports.
The ALJ’s decision to discount Dr. LaGanke’s opinion is supported by substantial
evidence.
B. The Administrative Law Judge Properly Examined the Vocational Expert
“In order for a vocational expert’s (“VE”) testimony to constitute substantial evidence,
the ALJ must pose a hypothetical question which comprises all of the claimant’s impairments.”
Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). Cagle argues, the ALJ’s failure to ask
the VE a hypothetical question regarding Cagle’s utilization of a cane, is a fatal error and
demands relief.
Cagle relies on Cowart v. Schweiker, 662 F.2d 731 (11th Cir. 1981), which requires an
ALJ to “‘scrupulously and conscientiously probe into, inquire of, and explore for all the relevant
facts,’ ensuring that both favorable and unfavorable facts are elicited.” (Doc. 12 at 14) (quoting
Cowart, 662 F.2d at 735). While it is true that the ALJ has a basic obligation to develop a full
and fair record, the obligation rises to this special duty referred to above only “when an
unrepresented claimant unfamiliar with hearing procedures appears before him.” Cowart, 662
F.2d at 735. However, at the ALJ hearing, Cagle was represented by Willliam Hanlin, (tr. 48);
therefore, Cowart’s special duty was not imposed. At the hearing, the ALJ asked if Cagle’s

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attorney had any other questions, who responded he had “[n]o questions . . . just a closing
comment or two.” (Tr. 76). The reasoning behind the elevated duty is to make sure claimants
are not “prejudiced by the lack of counsel,” Cowart, 662 F.2d at 735, not to do claimant’s
counsel’s work for him.
The argument the ALJ’s RFC assessment did not properly encompass Cagle’s limitations
is unfounded. Cagle argues, because of her assertion she needed a cane to get around and the
fact Dr. LaGanke wrote it on the physical capacities evaluation form, the ALJ was required to
add that limitation into both a hypothetical to the VE and into the RFC assessment. However, as
noted above, Cagle’s need for a cane was not supported by medical evidence and the ALJ’s
reduction in weight to LaGanke’s PCE was supported by substantial evidence clearly articulated.
“[T]he ALJ's hypothetical need not include a claimant’s asserted impairments that are not
supported by the medical evidence.” Vesy v. Astrue, 353 F. App’x 219, 225 (11th Cir. 2009).
The hypothetical question was proper. The ALJ asked the vocational expert what jobs
Cagle could perform if she had postural limitations, such as never climbing ladders, ropes or
scaffolds, as well as environmental, non-exertional mental limitations, such as limited contact
with the public, ability to carry out short, simple tasks and the need for infrequent changes within
the workplace. (Tr. 72-75). The ALJ also asked the vocational expert what kind of work Cagle
could do if her subjective limitations were believed. (Tr. 75-76). The vocational expert’s
responses to these hypotheticals, that Cagle could find a job if she were limited to medium and
light exertional work but could not find a job if her recounting of her symptoms was believed, is
substantial evidence to support the denial of benefits in light of the ALJ’s determination that
Cagle could perform medium work and her subjective account of her symptoms was not
credible.

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VI. Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative
record and memoranda of the parties, it is hereby ORDERED that the decision of the
Commissioner of Social Security denying Plaintiff’s claim for supplemental security income be
AFFIRMED and this action is due to be DISMISSED WITH PREJUDICE. A separate order
will be entered.
DONE this 30th day of September 2014.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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