Corkerin v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 7/21/2014. (PSM)

FILED
2014 Jul-21 AM 10:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

LISA G. CORKERIN,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
7:12-cv-2730-AKK

MEMORANDUM OPINION
Plaintiff Lisa G. Corkerin (“Corkerin”) brings this action pursuant to Section
205(g) of the Social Security Act (“the 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’s (“ALJ”) decision - which
has become the decision of the Commissioner - is supported by substantial evidence.
Therefore, for the reasons elaborated herein, the court will affirm the decision denying
benefits.
I. Procedural History
Corkerin , whose past relevant experience includes work as a sales clerk, filed an
application for Title XVI Supplemental Security Income on July 24, 2008, alleging a
disability onset date of December 15, 2007, due to chronic obstructive pulmonary
disease, and osteoarthritis of the hips and lumbar spine. (R. 28, 131). After the SSA

denied Corkerin’s claim, she requested a hearing before an ALJ. (R. 73-74). The ALJ
subsequently denied Corkerin’s claim, (R. 25-34), which became the final decision of the
Commissioner when the Appeals Council refused to grant review. (R. 1-6). Corkerin
then filed this action for judicial review pursuant to § 205(g) of the Act, 42 U.S.C.
§ 405(g). Doc. 1.
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) mandates 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 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, 849 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other
citations omitted). If supported by substantial evidence, the court must affirm the
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Commissioner’s factual findings even if the preponderance of the evidence is 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, it notes that the review
“does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairments 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). 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 currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals 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.

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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 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
In performing the five step analysis, the ALJ found that Corkerin had not engaged
in substantial gainful activity since July 24, 2008, and, therefore, met Step One. (R. 30).
Next, the ALJ found that Corkerin satisfied Step Two because she suffered from the
severe impairments of “osteoarthritis of the hips and lumbar spine with scoliosis (all mild
by objective x-ray findings), obesity, and chronic obstructive pulmonary disease
(COPD).” Id. The ALJ then proceeded to the next step and found that Corkerin failed to
satisfy Step Three because she “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments.” (R. 31).
Although the ALJ answered Step Three in the negative, consistent with the law, see
McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four where he determined that
Corkerin has the residual functional capacity (RFC) to perform
light work as defined in 20 CFR 416.967(b) with the following limitations:
occasionally climb ramps/stairs and never climb ladders/ropes/scaffolds; no
overhead reaching bilaterally; no work at unprotected heights or around
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dangerous, moving, unguarded machinery; and no exposure to
concentrations of dust, fumes and other lung and bronchial irritants.
Id. In light of Corkerin’s RFC, the ALJ found that she was “capable of performing past
relevant work as a sales clerk.” (R. 34). Therefore, the ALJ found that Corkerin “has
not been under a disability, as defined in the Social Security Act, since July 24, 2008, the
date the application was filed.” Id.
V. Analysis
The court now turns to Corkerin’s contentions that the ALJ erred because he (1)
did not give proper weight to the opinion provided by her treating physician; (2) failed to
recontact her treating physician; and (3) gave great weight to the opinion of the State
agency reviewing physician. See doc. 8 at 7-14. The court addresses each contention in
turn.
A.

The ALJ properly considered the opinion provided by Corkerin’s treating
physician.

Corkerin’s primary contention on appeal is that the ALJ failed to give proper
weight to the statement provided by Dr. Margaret Morr, one of her treating physicians,
who wrote a letter stating that Corkerin “suffers severely from pain from hip arthritis and
lumbar degenerative arthritis” and “has bulging discs in her low back that severely limits
her ability to work.” (R. 338). In determining how much weight to give Dr. Morr’s
opinion, the ALJ had to consider several factors, including whether Dr. Morr (1) has
examined Corkerin; (2) has a treating relationship with Corkerin; (3) presented medical
evidence and explanation supporting her opinion; (4) provided an opinion that is
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consistent with the record as a whole; and (5) is a specialist. See 20 C.F.R. § 416.927(c).
Where, as here, the physician is a treating physician, if an ALJ “find[s] that a treating
source’s opinion on the issue(s) of the nature and severity of [a claimant’s] impairment(s)
is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence,” the ALJ must give it
“controlling weight.” 20 C.F.R. § 416.927(c)(2). Moreover, in this circuit, “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). “Good cause” exists when the evidence does not bolster the treating
physician’s opinion; a contrary finding is supported by the evidence; or the opinion is
conclusory or inconsistent with the treating physician’s own medical records. Id. Finally,
if the ALJ rejects a treating physician’s opinion, “[t]he ALJ must clearly articulate the
reasons for giving less weight to the opinion . . . and the failure to do so is reversible
error.” Id.
In evaluating Dr. Morr’s opinion, consistent with the law, the ALJ observed that
“[w]hile opinions from treating sources are generally given great weight, they must be
supported by treatment records or by other medical sources.” (R. 33). However, the ALJ
found that “[i]n this case, it is not.” Id. The court finds no error because the ALJ’s
discussion of the medical evidence shows that the ALJ had good cause to reject Dr.
Morr’s opinions. For example, the ALJ noted the inconsistency in Dr. Morr’s opinion
by observing that Dr. Morr consistently noted Corkerin had no instability and a normal
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gait. (R. 32); see Lewis, 125 F.3d at 1440 (opinion is inconsistent with the physician’s
own medical records). The ALJ also noted that although Dr. Morr reported Corkerin
“experienced ‘general’ tenderness of the right hip and was noted to have ‘severely
limited’ range of motion, it was self-limiting due to complaints of pain.” (R. 32).
Regarding these findings, the ALJ observed that treatment notes from Capstone Rural
Health Center show that Corkerin “walked with a normal gait with no visible scoliosis
and full range of motion throughout” and that “[s]pecifically, she was noted to have full
hip range of motion bilaterally with no pain.” (R. 32, 326). The ALJ further observed
that “[h]ip x-rays only showed ‘mild’ osteoarthritis of the hips, and a current MRI
showed only ‘mild to moderate’ diskogenic and facet degenerative changes with ‘mild to
moderate’ right neural foraminal narrowing ‘slightly’ crowding the right L5 Nerve root.”
(R. 32, 166, 335). The ALJ also noted that Dr. Morr is not a specialist. (R. 33); see 20
C.F.R. § 416.927(c)(5) (more weight is generally given to the opinion of a specialist).
Further the ALJ observed that even though Dr. Morr “opines that [Corkerin] has bulging
disks [Dr. Morr] has never referred her to a specialist for further evaluation and treatment
which would further support h[er] treatment records.” (R. 33).
Put simply, the ALJ considered the factors set forth in the regulations and,
consistent with this circuit’s pain standard, articulated good cause why he gave Dr.
Morr’s opinions limited weight. Specifically, the ALJ found that Dr. Morr’s opinion was
inconsistent with Dr. Morr’s own treatment notes and with the medical evidence.
Therefore, the ALJ had good cause for rejecting Dr. Morr’s opinions, and committed no
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reversible error. See Lewis, 125 F.3d at 1440 (“good cause” exists when physician’s
opinion is inconsistent with own records, a contrary finding is supported by the evidence,
and the evidence does not bolster physician’s opinion); 20 C.F.R. § 416.927(c)(2)
(opinion must be “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” to receive controlling weight).
B.

The ALJ was not required to recontact Dr. Morr.

The court is not persuaded by Corkerin’s second contention that the ALJ should
have recontacted Dr. Morr for clarification if he had doubts about the basis of Dr. Morr’s
opinions. Doc. 8 at 10-11. Under the relevant regulation in effect at the time,1 the ALJ
only had a duty to contact Dr. Morr if there was insufficient medical evidence to allow the
ALJ to determine whether Corkerin was disabled:
When the evidence we receive from your treating physician or psychologist
or other medical source is inadequate for us to determine whether you are
disabled, we will need additional information to reach a determination or a
decision. To obtain the information, we will take the following actions.
(1) We will first recontact your treating physician or psychologist or
other medical source to determine whether the additional information
we need is readily available.

1

New regulations regarding recontacting of medical sources went into effect on
March 26, 2012. 77 Fed. Reg. 10651-01 (February 23, 2012). Under the new
regulations, recontacting a medical source is within the discretion of the ALJ. See 20
C.F.R. § 404.1520b(c)(1) (“We may recontact your treating physician . . . .”) (emphasis
added).
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20 C.F.R. § 404.912(e)(2010) (emphasis added). Here, the medical evidence included
extensive treatment notes, diagnostic testing, and a consultative examination by Dr. Will
Crouch. Consequently, because sufficient medical evidence from other treating and
examining sources existed to allow the ALJ to make an informed disability determination,
the ALJ had no obligation to recontact Dr. Morr.
Corkerin’s contention also misses the mark because she has not shown how the
ALJ’s failure to contact Dr. Morr resulted in an unfair proceeding or clear prejudice.
Before remanding for further development of the record, a reviewing court must consider
“whether the record reveals evidentiary gaps which result in unfairness or ‘clear
prejudice.’” Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir.1982) (quoting Ware v.
Schweiker, 651 F.2d 408, 413 (5th Cir. Unit A July 1981). Because there are no
evidentiary gaps in the record that prevented the ALJ from making a conclusive
determination regarding her disability, Corkerin has not established the requisite
prejudice, and remand for development of the record is not required.
C.

The ALJ properly considered the opinions of the State agency reviewing
physician.

Finally, Corkerin contends that the ALJ improperly gave greater weight to the
opinions of Dr. Robert Heilpern, the State agency reviewing physician, who did not
examine Corkerin. Doc. 8 at 10-12. The court notes that an ALJ must consider the
findings of a State agency medical consultant, who is considered an expert, and must
explain the weight given to such findings in the same way as with other medical sources.

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See 20 C.F.R. § 416.927(e)(2). Consistent with the regulations, although the ALJ gave
Dr. Heilpern’s opinion “great weight,” he explained that “[a]s a non-examining medical
source, the opinion of [Dr. Heilpern] can be given weight only insofar as it is supported
by evidence in the case record,” and that Dr. Heilpern’s “assessment in this case is an
accurate statement of Corkerin’s functional limitations.” (R. 33-34). Finally, although an
ALJ “may rely on opinions of nonexamining sources when they do not conflict with those
of examining sources,” Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008)
(unpublished) (citing Edwards v. Sullivan, 937 F.2d 580, 584–85 (11th Cir.1991), no
conflict with the opinions of examining sources exists here because the ALJ properly
rejected the opinions of Dr. Morr. See supra Section V.A. Therefore, the court finds the
ALJ did not give excessive weight to Dr. Heilpern’s opinions.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Corkerin is not disabled is supported by substantial evidence, and that the ALJ applied
proper legal standards in reaching this determination. Therefore, the Commissioner’s
final decision is AFFIRMED. A separate order in accordance with the memorandum of
decision will be entered.

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Done this 21st day of July, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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