Lewis v. Astrue
MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying the plaintiff benefits be AFFIRMED. Signed by Magistrate Judge William E. Cassady on 11/20/2012. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SHERMAN D. LEWIS, JR.,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
The plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying his application for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”).
The parties have consented to the exercise of jurisdiction by
the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court.
(See Doc. 22 (“In accordance with provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the
parties in this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including . . . order the entry of a final judgment, and conduct
all post-judgment proceedings.”).)
Upon consideration of the administrative record
(“R.”) (Doc. 12), the plaintiff’s brief (Doc. 15), the Commissioner’s brief (Doc. 19), and
the arguments presented at the November 5, 2012 Hearing (see Doc. 21), it is determined
that the Commissioner’s decision denying the plaintiff benefits should be AFFIRMED.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 22 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
On July 28, 2008, the plaintiff filed applications for DIB and SSI (R. 133-140),
alleging disability beginning May 28, 2008 (see R. 136).
denied on September 17, 2008.
(See R. 79-88.)
His applications were initially
A hearing was then conducted before
an Administrative Law Judge on February 25, 2010 (see R. 50-76).
On March 19, 2010,
the ALJ issued a decision finding that the claimant was not disabled (R. 32-49), and the
plaintiff sought review from the Appeals Council.
The Appeals Council issued its
decision declining to review the ALJ’s determination on February 9, 2012 (see R.
1-7)—making the ALJ’s determination the Commissioner’s final decision for purposes
of judicial review, see 20 C.F.R. § 404.981—and a complaint was filed in this Court on
March 21, 2012 (see Doc. 1).
Standard of Review and Claims on Appeal
In all Social Security cases, the plaintiff bears the burden of proving that he or
she is unable to perform his or her previous work.
(11th Cir. 1986).
Jones v. Bowen, 810 F.2d 1001, 1005
In evaluating whether the plaintiff has met this burden, the examiner
must consider the following four factors: (1) objective medical facts and clinical
findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the
plaintiff’s age, education, and work history.
Once the plaintiff meets this burden,
it becomes the Commissioner’s burden to prove that the plaintiff is capable—given his
or her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy.
834, 836 (11th Cir. 1985).
Sryock v. Heckler, 764 F.2d
Although at the fourth step “the [plaintiff] bears the burden
of demonstrating the inability to return to [his or] her past relevant work, the
Commissioner of Social Security has an obligation to develop a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny
plaintiff benefits is supported by substantial evidence.
Substantial evidence is defined
as more than a scintilla, and means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401
“In determining whether substantial evidence exists, [a court] must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Courts are precluded, however, from “deciding the facts anew or re-weighing the
Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per
curiam) (citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
And, “[e]ven if
the evidence preponderates against the Commissioner’s findings, [a court] must affirm
if the decision reached is supported by substantial evidence.”
Id. (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
On appeal to this Court, the plaintiff asserts two, related arguments: the
Commissioner erred by, first, rejecting the opinions of the plaintiff’s treating physicians,
and, second, finding that the plaintiff “can perform ‘sedentary work,’ with moderate
mental limitations, [a] finding[ that is] not supported by linkage to either the medical
opinion evidence of record or reasonable inferences drawn from the medical evidence
as a whole.”
(Doc. 15 at 2.)
This is yet another matter in which the ALJ’s RFC assessment and, moreover,
how she reached that assessment is under attack on appeal.
Here, the ALJ determined
that the plaintiff retains the RFC to perform sedentary work with certain additional
Specifically, her fifth step finding is:
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a) except that he is
unable to climb ladders, scaffolds, or ropes, and is unable to work around
unprotected heights or dangerous equipment.
He is unable to
understand, remember, and carry out detailed or complex instructions.
He is unable to work in crowds. He is limited to occasional contact.
Because the plaintiff takes issue with both the ALJ’s decision to reject the
opinions of his treating physicians and her RFC assessment, formed without those
opinions, it is necessary to set forth the proper analysis for consideration of RFC issues
raised in cases like this one.
The Commissioner’s RFC Assessment.
The Eleventh Circuit has made clear that “[r]esidual functional capacity, or RFC,
is a medical assessment of what the claimant can do in a work setting despite any
mental, physical or environmental limitations caused by the claimant’s impairments
and related symptoms.”
Peeler v. Astrue, 400 Fed. App’x 492, 493 n.2 (11th Cir. Oct. 15,
2010) (per curiam) (citing 20 C.F.R. § 416.945(a)). Stated somewhat differently, “[a]
claimant’s RFC is ‘that which [the claimant] is still able to do despite the limitations
caused by his . . . impairments.’”
Hanna v. Astrue, 395 Fed. App’x 634, 635 (11th Cir.
Sept. 9, 2010) (per curiam) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir.
“In making an RFC determination, the ALJ must consider the record evidence,
including evidence of non-severe impairments.”
Id. (citation omitted); compare 20
C.F.R. § 416.945(a)(1) (“We will assess your residual functional capacity based on all the
relevant evidence in your case record.”), with 20 C.F.R. § 416.945(a)(3) (“We will assess
your residual functional capacity based on all the relevant medical and other
From the foregoing, it is clear that the ALJ is responsible for determining a
claimant’s RFC—a deep-seated principle of Social Security law, see 20 C.F.R. § 416.946(c)
(“If your case is at the administrative law judge hearing level under
§ 416.1429 or at
the Appeals Council review level under § 416.1467, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the Appeals Council makes
a decision) is responsible for assessing your residual functional capacity.”), that this
Court has never taken issue with.
See, e.g., Hunington ex rel. Hunington v. Astrue, No.
CA 08-0688-WS-C, 2009 WL 2255065, at *4 (S.D. Ala. July 28, 2009) (“Residual functional
capacity is a determination made by the ALJ[.]”) (order adopting report and
recommendation of the undersigned).
The regulations provide, moreover, that while a
claimant is “responsible for providing the evidence [the ALJ] . . . use[s] to make a[n]
[RFC] finding[,]” the ALJ is responsible for developing the claimant’s “complete
medical history, including arranging for a consultative examination(s) if necessary,”
and helping the claimant get medical reports from her own medical sources.
In assessing RFC, the ALJ must consider any statements about what a
claimant can still do “that have been provided by medical sources,” as well as
“descriptions and observations” of a claimant’s limitations from her impairments,
“including limitations that result from  symptoms, such as pain[.]”
In determining a claimant’s RFC, the ALJ considers a claimant’s “ability to meet
the physical, mental, sensory, or other requirements of work, as described in
paragraphs (b), (c), and (d) of this section.”
20 C.F.R. § 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we first
assess the nature and extent of your physical limitations and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching, handling, stooping
or crouching), may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first assess
the nature and extent of your mental limitations and restrictions and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to carry out certain mental
activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to supervision,
co-workers, and work pressures in a work-setting, may reduce your
ability to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically determinable
impairment(s), such as skin impairment(s), epilepsy, impairment(s) of
vision, hearing or other senses, and impairment(s) which impose
environmental restrictions, may cause limitations and restrictions which
affect other work-related abilities. If you have this type of impairment(s),
we consider any resulting limitations and restrictions which may reduce
your ability to do past work and other work in deciding your residual
20 C.F.R. § 416.945(b), (c) & (d).
Against this backdrop, this Court starts with the proposition that an ALJ’s RFC
determination necessarily must be supported by substantial evidence.
Compare Figgs v.
Astrue, No. 5:10–cv–478–Oc–18TBS, 2011 WL 5357907, at *1-2 (M.D. Fla. Oct. 19, 2011)
(“Plaintiff argues that the ALJ’s residual functional capacity (‘RFC’) determination is
not supported by substantial evidence. . . . [The] ALJ’s RFC Assessment is [s]upported
by substantial record evidence[.]”), report & recommendation approved, 2011 WL 5358686
(M.D. Fla. Nov. 3, 2011), and Scott v. Astrue, No. CV 110–052, 2011 WL 2469832, at *5
(S.D. Ga. May 16, 2011) (“The ALJ’s RFC Finding Is Supported by Substantial
Evidence[.]”), report & recommendation adopted, 2011 WL 2461931 (S.D. Ga. June 17, 2011),
with Green v. Social Sec. Admin., 223 Fed. App’x 915, 923-24 (11th Cir. May 2, 2007) (per
curiam) (“Green argues that without Dr. Bryant’s opinion, there is nothing in the record
for the ALJ to base his RFC conclusion that she can perform light work. . . . Once the
ALJ determined that no weight could be placed on Dr. Bryant’s opinion of  Green’s
limitations, the only documentary evidence that remained was the office visit records
from Dr. Bryant and Dr. Ross that indicated that she was managing her respiration
problems well, that she had controlled her hypertension, and that her pain could be
treated with over-the-counter medication. Thus, substantial evidence supports the ALJ’s
determination that Green could perform light work.”).
And while, as explained in
Green, an ALJ’s RFC assessment may be supported by substantial evidence even in the
absence of an opinion by an examining medical source about a claimant’s residual
functional capacity, specifically because of the hearing officer’s decision to give less
than controlling weight to such an opinion,2 223 Fed. App’x at 923-24; see also id. at 923
An ALJ’s articulation of reasons for giving less than controlling weight to a
treating source’s RFC assessment must, of course, be supported by substantial evidence. See,
e.g., Gilabert v. Commissioner of Soc. Sec., 396 Fed. App’x 652, 655 (11th Cir. Sept. 21, 2010) (per
cuiam) (“Where the ALJ articulated specific reasons for failing to give the opinion of a treating
physician controlling weight, and those reasons are supported by substantial evidence, there is
no reversible error. In this case, therefore, the critical question is whether substantial evidence
supports the ALJ’s articulated reasons for rejecting Thebaud’s RFC.”) (citing Moore v. Barnhart,
405 F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v. Commissioner of Soc. Sec. Admin., 389 Fed. App’x
944, 947-48 (11th Cir. July 28, 2010) (per curiam) (same).
(“Although a claimant may provide a statement containing a physician’s opinion of her
remaining capabilities, the ALJ will evaluate such a statement in light of the other
evidence presented and the ultimate determination of disability is reserved for the
ALJ.”), nothing in Green can be read as suggesting anything contrary to those
courts—including this one—that have staked the position that the ALJ must link the
RFC assessment to specific evidence in the record bearing upon the claimant’s ability to
perform the physical, mental, sensory, and other requirements of work.3
In Green, such linkage was easily identified since the documentary evidence
remaining after the ALJ properly gave less than controlling weight to the RFC opinion of the
treating physician “was the office visit records from Dr. Bryant and Dr. Ross that indicated that
[claimant] was managing her respiration problems well, that she had controlled her
hypertension, and that her pain could be treated with over-the-counter medication.” 223 Fed.
App’x at 923-24. Based upon such nominal clinical findings, the court in Green found
“substantial evidence support[ing] the ALJ’s determination that Green could perform light
work.” Id. at 924; see also Hovey v. Astrue, Civil Action No. 1:09CV486-SRW, 2010 WL 5093311,
at *13 (M.D. Ala. Dec. 8, 2010) (“The Eleventh Circuit’s analysis in Green, while not controlling,
is persuasive, and the court finds plaintiff’s argument . . . that the ALJ erred by making a
residual functional capacity finding without an RFC assessment from a physician without merit.
In formulating plaintiff’s RFC in the present case, the ALJ—like the ALJ in Green—relied on the
office treatment notes of plaintiff’s medical providers.”).
Therefore, decisions, such as Stephens v. Astrue, No. CA 08-0163-C, 2008 WL 5233582
(S.D. Ala. Dec. 15, 2008), in which a matter is remanded to the Commissioner because the “ALJ’s
RFC determination [was not] supported by substantial and tangible evidence” still accurately
reflect the view of this Court, but not to the extent that such decisions are interpreted to require
that “substantial and tangible evidence” must—in all cases—include an RFC or PCE from a
physician. See id. at *3 (“[H]aving rejected West’s assessment, the ALJ necessarily had to point
to a PCE which supported his fifth-step determination that Plaintiff can perform light work
activity.”) (emphasis added). But, because the record in Stephens
contain[ed] no physical RFC assessment beyond that performed by a disability
examiner, which is entitled to no weight whatsoever, there [was] simply no basis
upon which this court [could] find that the ALJ’s light work RFC determination
[was] supported by substantial evidence. [That] record [did] not reveal
evidence that would support an inference that Plaintiff [could] perform the
requirements of light work, and certainly an ALJ’s RFC determination must be
supported by substantial and tangible evidence, not mere speculation regarding
what the evidence of record as a whole equates to in terms of physical abilities.
e.g., Saunders v. Astrue, Civil Action No. 1:11cv308–WC, 2012 WL 997222, at *5 (M.D.
Ala. Mar. 23, 2012) (“It is unclear how the ALJ reached the conclusion that Plaintiff ‘can
lift and carry up to fifty pounds occasionally and twenty-five pounds frequently’ and
sit, stand and/or walk for six hours in an eight hour workday,  when the record does
not include an evaluation of Plaintiff’s ability to perform work activities such as sitting,
standing, walking, lifting, bending, or carrying.”), with 20 C.F.R. § 416.945(b), (c) & (d).
Indeed, the Eleventh Circuit appears to agree that such linkage is necessary for
federal courts to conduct a meaningful review of an ALJ’s decision.
For example, in
Hanna, the panel noted that
[t]he ALJ determined that Hanna had the RFC to perform a full range of
work at all exertional levels but that he was limited to ‘occasional hand
and finger movements, overhead reaching, and occasional gross and fine
manipulation.’ In making this determination, the ALJ relied, in part, on
the testimony of the ME. . . .
The ALJ’s RFC assessment, as it was based on the ME’s testimony, is
problematic for many reasons. . . . [G]iven that the ME opined only that
Hanna’s manipulation limitations were task-based without specifying
how often he could perform such tasks, it is unclear how the ALJ
concluded that Hanna could occasionally engage in all forms of hand and
finger movements, gross manipulation, and fine manipulation. . . .
The ALJ also agreed with the VE’s testimony that, under the RFC
determination, Hanna could return to his past work. But this conclusion
is not clear from the record. The VE answered many hypothetical
questions and initially interpreted the ME’s assessment to mean that
Hanna’s gross manipulation abilities were unlimited and so, with only a
restriction to fine manipulation, he could perform his past relevant work.
In a separate hypothetical, the VE stated that a claimant could not return
to his past work as a packaging supervisor if restricted to occasional
fingering, handling, and gross and fine manipulation. The ALJ also did
not include the ME’s steadiness restriction in the RFC assessment; and the
Id. (citing Cole v. Barnhart, 293 F. Supp. 2d 1234, 1242 (D. Kan. 2003) (“The ALJ is responsible for
making a RFC determination, and he must link his findings to substantial evidence in the record
and explain his decision.”)).
VE testified that a person restricted to handling that required steadiness
would not be able to return to Hanna’s past work. The ALJ must state
the grounds for his decision with clarity to enable us to conduct
meaningful review. The ALJ has not done so here. To the extent the
ALJ based Hanna’s RFC assessment on hearing testimony by the ME and
VE, the assessment is inconsistent with the evidence. The ALJ did not
explicitly reject any of either the ME’s or VE’s testimony or otherwise
explain these inconsistencies, the resolution of which was material to
whether Hanna could perform his past relevant work. Absent such
explanation, it is unclear whether substantial evidence supported the
ALJ’s findings; and the decision does not provide a meaningful basis upon
which we can review Hanna’s case.”
395 Fed. App’x at 635-36 (emphasis added and internal citations and footnotes omitted);
see also Ricks v. Astrue, No. 3:10–cv–975–TEM, 2012 WL 1020428, at *9 (M.D. Fla. Mar. 27,
2012) (“‘The existence of substantial evidence in the record favorable to the
Commissioner may not insulate the ALJ’s determination from remand when he or she
does not provide a sufficient rationale to link such evidence to the legal conclusions
reached.’ Where the district court cannot discern the basis for the Commissioner’s
decision, a sentence-four remand may be appropriate to allow him to explain the basis
for his decision.”) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. Fla. 2005))
(emphasis added); cf. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th
Cir. 1994) (“The [Commissioner’s] failure to apply the correct law or to provide the
reviewing court with sufficient reasoning for determining that the proper legal analysis
has been conducted mandates reversal.”) (citation omitted); Dixon v. Astrue, 312 Fed.
App’x 226, 229 (11th Cir. Fed. 13, 2009) (per curiam) (after noting,“‘[w]hile we may not
supply a reasoned basis for [an] agency’s action that the agency itself has not given, we
will uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned[,]’” vacating a district court’s decision to affirm the ALJ where “the ALJ’s
path [was] not reasonably discernible”) (quoting Zahnd v. Secretary, Dep’t of Agric., 479
F.3d 767, 773 (11th Cir. 2007)).
Such linkage, moreover, may not be manufactured speculatively by the
Commissioner—using “the record as a whole”—on appeal, but rather, must be clearly
set forth in the ALJ’s decision.
See, e.g., Durham v. Astrue, Civil Action No.
3:08CV839-SRW, 2010 WL 3825617, at *3 (M.D. Ala. Sep. 24, 2010) (rejecting the
Commissioner’s request to affirm an ALJ’s decision because, according to the
Commissioner, overall, the decision was “adequately explained and supported by
substantial evidence in the record”; holding that affirming that decision would require
that the court “ignor[e] what the law requires of the ALJ[; t]he court ‘must reverse [the
ALJ’s decision] when the ALJ has failed to provide the reviewing court with sufficient
reasoning for determining that the proper legal analysis has been conducted’”) (quoting
Hanna, 395 Fed. App’x at 636 (internal quotation marks omitted)); see also id. at *3 n.4
(“In his brief, the Commissioner sets forth the evidence on which the ALJ could have
relied . . . .
There may very well be ample reason, supported by the record, for [the
ALJ’s ultimate conclusion].
However, because the ALJ did not state his reasons, the
court cannot evaluate them for substantial evidentiary support.
Here, the court does
not hold that the ALJ’s ultimate conclusion is unsupportable on the present record; the
court holds only that the ALJ did not conduct the analysis that the law requires him to
conduct.”) (emphasis in original).
Given the standard set forth above, the Court must first determine whether the
reasons articulated by the ALJ for not giving controlling weight to the opinions of Drs.
Spiro (see R. 42) and Fort (see R. 43), both of whom, according to the plaintiff, are
treating sources, are supported by substantial evidence.
See, e.g., Thomas v. Astrue, No.
CA 11–0406–C, 2012 WL 1145211, at *9 (S.D. Ala. Apr. 5, 2012) (“Because the
undersigned finds that the ALJ did not explicitly articulate an adequate reason,
supported by substantial evidence, for rejecting a portion of [the treating physician’s]
PCE assessment, this Court must necessarily find that the ALJ’s RFC determination is
not supported by substantial evidence.”).
A finding that the ALJ failed to articulate
reasons, supported by substantial evidence, for rejecting a treating source’s opinion, or
a portion thereof, ends the Court’s review of an ALJ’s RFC determination.
As to treating sources, one district court outside of this Circuit has said:
In every case, a treating physician will have greater access to the medical
records, and more familiarity with the patient and his condition than will
an examining physician or a physician who merely reviewed the record
evidence. This is the reason for the treating physician rule whereby
greater deference is usually accorded to the opinion of a treating physician
than the opinion of a physician who has only examined the patient one
time or the opinion of a physician who has merely reviewed the medical
records. This is the reason the courts require an ALJ to provide specific,
legitimate reasons for discounting a treating physician’s opinion.
Vine v. Astrue, Civil Action No. 09-2212-KHV-GBC, 2010 WL 2245079, at *11 (D. Kan.
May 11, 2010) (internal citations omitted), report & recommendation adopted, 2010 WL
2245076 (D. Kan. June 2, 2010).
And the law in this Circuit is that
[t]he opinion 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 is shown
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).
Where the ALJ articulate[s] specific reasons for failing to give the opinion
of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error.
Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert, 396 Fed. App’x at 655.
In her decision, the ALJ describes Dr. Spiro and his opinion as follows:
Arthur W. Spiro, D.O., a VA physician, completed a form on November 3,
2008, indicating that the claimant had American Heart Association
[“AHA”] Class III heart disease, suggesting that the individual has
marked limitations of physical activity, such that he is comfortable at rest,
but experiences cardiac symptomatology with less than ordinary activity.
It is noted that Dr. Spiro is an anesthesiologist.
(R. 39 (internal record citation omitted).)
And with regard to the weight to be afforded
Dr. Spiro’s opinion, the ALJ stated,
Dr. Spiro described the claimant’s heart disease as AHA Class III, but he is
an anesthesiologist, and such a conclusion is outside his area of expertise.
The treatment notes do not confirm symptomatology of the degree
suggested by Class III heart disease. I therefore find that his statement is
entitled to little weight.
(R. 42 (internal record citation omitted).)
Good cause to afford less than controlling weight to the opinion of a treating
physician includes both (1) that the treating physician rendered an opinion outside his
or her area of expertise, see Brihn v. Astrue, 582 F. Supp. 2d 1088, 1100–01 (W.D. Wis.
2008) (noting that when “the record contains well[-]supported contradictory evidence,
the treating physician’s opinion is just one more piece of evidence for the [ALJ] to
weigh, taking into consideration . . . factors listed in the regulation[,]” including
“whether the physician is a specialist in the allegedly disability condition”) (citing 20
C.F.R. § 404.1527(d)(2)); see, e.g., Burroughs v. Massanari, 156 F. Supp. 2d 1350, 1367 (N.D.
Ga. 2001) (“Dr. McDuffie is a specialist in rheumatology and thus better qualified to
diagnosis fibromyalgia and to gauge its effects on the individual than Dr. Hudgins, who
specializes in internal medicine.”) (citing 20 C.F.R. § 404.1527(d)(5) (“We generally give
more weight to the opinion of a specialist about medical issues related to his or her area
of specialty than to the opinion of a source who is not a specialist.”)), and (2) that the
treating physician’s opinion is inconsistent with his or her treatment notes, see Phillips,
357 F.3d at 1241 (good cause includes that the “treating physician’s opinion was . . .
inconsistent with the doctor’s own medical records”); cf. Brihn, 582 F. Supp. 2d at 1101
(noting that another factor under the regulation is “how consistent the physician’s
opinion is with the evidence as a whole and other factors”).
The Court, therefore, finds
that the ALJ’s decision articulates sufficient good cause (i.e., the stated reasons are
supported by substantial evidence) to give Dr. Spiro’s opinion “little weight.”
The ALJ’s decision provides the following regarding Dr. Fort and her opinion:
On January 12, 2010, Juliana Fort, M.D., a psychiatrist at the VA Medical
Center, completed a questionnaire on which she reported that the
claimant had depression, psychosis, and anxiety with symptoms and
limitations[,] which were of listing-level severity. She indicated that the
claimant was markedly impaired in ability to remember work-liked
procedures; in ability to understand, remember, and carry out detailed
instructions; in ability to maintain attention and concentration for
extended periods; in ability to sustain a routine without special
supervisions; in ability to complete a normal work day and work week
without interruptions from psychologically-based symptoms; and in
ability to respond appropriately to supervision, co-workers, and work
pressure. Dr. Fort noted that the claimant had had depression since
childhood, and that he could be expected to have continued depression off
alcohol. She reported that he had not used alcohol over the past several
(R. 39 (internal record citation omitted).)
With regard to the weight to be afforded Dr.
Fort’s opinion, the ALJ stated,
I have considered Dr. Fort’s assessment, but she has treated [the plaintiff]
only briefly and the stated limitations seem substantially in excess of what
would be expected even given the complaints reported by the claimant.
For these reasons, Dr. Fort’s conclusions are not considered persuasive.
(R. 43 (internal record citation omitted).)
That a physician had only a brief treating relationship with a plaintiff is clearly a
good cause to afford the opinion of that treating physician less than controlling weight.
See, e.g., Brihn, 582 F. Supp. 2d at 1101 (noting that another factor under the regulation is
“the number of times the treating physician has examined the claimant”).
second reason—Dr. Fort’s “limitations seem substantially in excess of what would be
expected even given the complaints reported by the claimant”—could be interpreted, at
first blush at least, as the ALJ substituting her own judgment for the judgment of a
physician, but the second reason, although nebulous, is better characterized, after
consideration of Dr. Fort’s lengthy restrictions (see, e.g., R. 39), as the ALJ finding that
Dr. Fort’s opinion is either “not bolstered by the evidence[,]” Phillips, 357 F.3d at 1241,
or, put slightly differently, not consistent “with the evidence as a whole and other
factors[,]” Brihn, 582 F. Supp. 2d at 1101. Both provide good cause to afford a treating
source less than controlling weight.
The Court, therefore, finds that the ALJ’s decision
not to consider Dr. Fort’s conclusions persuasive is also supported by substantial
The basis for the ALJ’s RFC determination.
Because substantial evidence supports the reasons articulated by the ALJ for not
giving controlling weight to the opinions of Drs. Spiro and Fort, the Court must now
determine whether the ALJ’s RFC assessment properly relies on and is linked to other
specific evidence in the record regarding the plaintiff’s ability to perform the physical,
mental, sensory, and other requirements of work.
If the ALJ’s decision provides such
linkage—that is, it gives this Court a sufficient rationale to link the remaining record
evidence to her legal conclusions—the ALJ’s decision is supported by substantial
evidence and will be affirmed.
After rejecting the opinions of Drs. Spiro and Fort, the ALJ stated, “In light of the
record as a whole and the claimant’s history, I find that the conclusions of Dr. Hinton,
the state agency psychologist, represent a reasonable estimate of the claimant’s
(R. 43.)4 And, according to the ALJ’s decision, Dr. Hinton
reviewed the evidence of record on September 16, 2008, and completed a
psychiatric review technique form on which he indicated that the claimant
had affective and substance abuse disorders. He indicated that the
claimant was mildly restricted in activities of daily living and that he was
moderately restricted in social functioning and in concentration,
persistence or pace. He reported that the “C” criteria were not present.
Dr. Hinton also completed a mental residual functional capacity
assessment on which he indicated that the claimant was moderately
impaired in ability to understand, remember, and carry out instructions;
in ability to maintain attention and concentration for extended period; and
in ability to interact with the public. He concluded that the claimant
could understand, remember, and carry out short simple instructions and
that he could maintain attention and concentration for reasonable periods.
He stated that contact with the general public should not be a usual job
On appeal, the plaintiff also challenges the ALJ’s finding that, with regard the
plaintiff’s “heart function[,] it is reasonable to suppose that [it] continued to improve with
resolution of acute symptoms” post-May 2008, contending that the ALJ makes no reference to
evidence to support this belief. The ALJ, however, gives “substantial weight to VA progress
notes [to] find that the claimant can perform sedentary work” with certain additional
limitations. And, in his brief, the plaintiff admits that “evidence not before the ALJ, but
submitted to the Appeals Council, establishes that his heart function did somewhat improve”
(Doc. 15 at 6). See Crist v. Astrue, Civil No. 5:10cv00106, 2012 WL 542705, at *6 (W.D. Va. Feb.
21, 2012) (considering evidence submitted to the Appeals Council that “fully corroborate[d] the
evidence upon which the ALJ relied”) (citation omitted), report & recommendation adopted, 2012
WL 843756 (W.D. Va. Mar. 12, 2012). Moreover, at the hearing in this matter, the plaintiff’s
counsel admitted that no cardiologist has imposed limitations on the plaintiff. The Court,
therefore, finds that if the ALJ committed error by “suppos[ing,]” such error is harmless.
(R. 38 (record citations omitted).)
In his brief, the plaintiff provides that
[i]t bears mentioning that the ALJ rejected not only a treating
psychologist’s opinion (Dr. Fort), but also the opinion of the
Consultative Examiner, Dr. O’Brien, and then relies on the opinion of Dr.
Hinton, who not only has never seen Mr. Lewis, but rendered his opinions
on September 16, 2008 (Exhibits 6F and 7F, Tr. 328-45) without the benefit
of reviewing the records of Dr. Fort (Exhibit 14F, dated in January 2010).
The opinion of a non-examining, reviewing physician is not entitled to
more weight than the opinion of a treating physician. Swindle v. Sullivan,
914 F.2d 222, 226 n.3 (11th Cir. 1990). That reasoning is particularly true
when, as in this case, the non-examining, reviewing person has not seen a
significant portion of the evidence.
(Doc. 15 at 12.)
Taking the plaintiff’s second point first, when he completed the PRTF and mental
RFC in September, 2008, Dr. Hinton obviously lacked the benefit of reviewing the
records of, or consider the opinion rendered by, Dr. Fort.
The ALJ, however, had the
benefit of reviewing both Dr. Fort’s records prior to the issuance of
her opinion and
decided to reject Dr. Fort’s opinion—providing good cause for that decision, see
supra—and adopt Dr. Hinton’s.
This is significant because if neither the state agency
non-examining physician rendering an opinion based on a review of the medical
evidence that includes the opinion of a treating physician nor the ALJ had access to the
opinion of the treating physician, an ALJ’s decision relying on the state agency
non-examining physician’s opinion would not be supported by substantial evidence.
See, e.g., Williams v. Astrue, Civil Action No. 5:09CV00095, 2010 WL 1924481, at *2-3
(W.D. Va. May 12, 2010) (in which the ALJ relied on/quoted from the report of a state
disability agency psychologist’s mental RFC and PRTF, the court remanded, noting,
“the simple fact is that neither Dr. Kalil nor the Administrative Law Judge took into
account the global assessments set forth in the psychiatric reports from the Valley
Community Services Board or the University of Virginia Medical Center [treating
sources]. . . .
Dr. Kalil completed his assessment before these reports became
The Administrative Law Judge made no mention of the Global Assessments
of Functioning in his summary of the evidence.
Thus, there is no reason to believe that
the Law Judge considered the diagnostic impressions and opinions of the treating
psychiatrists in concluding that plaintiff retains the residual functional capacity for
sustained, light work activity.”) (emphasis added); compare id., with Tarver v. Astrue, No.
CA 10–0247–C, 2011 WL 206217, at *5-6 (S.D. Ala. Jan. 21, 2011) (distinguishing Williams
and affirming where an examining physician, who was also able to physically assess the
plaintiff, failed to specifically cite to an MRI from a treating source, but the ALJ
specifically considered the same MRI in his opinion).5
As to the plaintiff’s first point, while the Eleventh Circuit, in Swindle, held that
the opinion of a non-examining physician “is entitled to little weight and taken alone
does not constitute substantial evidence to support an administrative decision, 914 F.2d
at 226 n.3 (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985))—a holding that
is followed in this Circuit still, see, e.g., O’Bier v. Commissioner of Soc. Sec. Admin., 338
Fed. App’x 796, 798 (11th Cir. July 2, 2009) (per curiam) (citing Swindle but also noting
that an ALJ “may consider the reports and assessments of state agency physicians as
expert opinions”) (citing 20 C.F.R. § 416.927(f)(2)(i)))—under certain circumstances,
It should be pointed out that Dr. Hinton did have the benefit of reviewing Dr.
Carolyn O’Brien’s consultative examination of the plaintiff, completed on August 22, 2008 (R.
322-326), and, according to the plaintiff, Dr. Fort’s opinion . . . is not inconsistent with . . . Dr.
O’Brien[‘s]” (Doc. 15 at 11).
“substantial evidence supports [an] ALJ’s decision to assign great weight to” the
opinion of a state agency physician, Ogranaja v. Commissioner of Soc. Sec., 186 Fed. App’x
848, 850-51 (11th Cir. June 5, 2006) (per curiam) (citing Swindle but then noting that,
there, “[t]he ALJ arrived at his decision after considering the record in its entirety and
did not rely solely on the opinion of the state agency physicians.
The ALJ found that,
unlike [the treating physician’s] opinions, the expert opinions of the non-examining
state agency physicians were supported by and consistent with the record as a whole.”)
Similarly, here, the ALJ adopted the conclusions of Dr. Hinton
“[i]n light of the record as a whole and the claimant’s history[.]”
(R. 43.) Based on a
review of this statement and the ALJ’s decision in its entirety—in which the ALJ
properly rejects the opinions of treating sources—and in light of Ogranaja, the
undersigned cannot say that the decision to adopt—in essence, afford great weight
to—Dr. Hinton’s opinion is not based on substantial evidence.
See, e.g., Davis v. Astrue,
Civil Action No. 2:08CV631–SRW, 2010 WL 1381004, at *5 (M.D. Ala. Mar. 31, 2010)
As recently explained by the court in Hogan v. Astrue, Civil Action No.
2:11cv237–CSC, 2012 WL 3155570 (M.D. Ala. Aug. 3, 2012),
[i]n isolation, Swindle seems to suggest that the opinion of a nonexamining
physician cannot be substantial evidence under any circumstances. Swindle
cites Broughton as authority, but that case “held that the opinion of a
nonexamining physician is entitled to little weight if it is contrary to the opinion
of the claimant’s treating physician.” Broughton, 776 F.2d at 962 (emphasis
added). That formulation of the law is consistent with Lamb[ v. Bowen, 847 F.2d
698 (11th Cir. 1988)] and Sharfarz[ v. Bowen, 825 F.2d 278 (11th Cir. 1987]. Thus,
the court concludes that the opinion of a non-examining physician who has
reviewed medical records may be substantial evidence if it is consistent with the
well-supported opinions of examining physicians or other medical evidence in
Id. at *5 (second emphasis added). In Hogan, the court ultimately affirmed the ALJ’s decision,
concluding, “[a]fter a careful review of all the medical records, . . . that the ALJ’s residual
functional capacity [was] consistent with the medical evidence as a whole as well as Hogan’s
testimony about her abilities.” Id. at *6 (emphasis added).
(holding that “the ALJ properly assigned ‘great weight’” to the opinion a
non-examining physician because that opinion was “supported by and consistent with
the record as a whole[,] unlike the opinion of plaintiff’s treating sources”) (emphasis
added); see also id. (“The opinion of a non-examining physician alone does not constitute
Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990).
However, where the ALJ has discounted the opinion of an examining source properly,
the ALJ may rely on the contrary opinions of non-examining sources.
See Wainright v.
Commissioner of Soc. Sec. Admin., No. 06-15638, 2007 WL 708971(11th Cir. Mar. 9, 2007)
(per curiam) (holding that the ALJ properly assigned substantial weight to
non-examining sources when he rejected examining psychologist’s opinion, clearly
articulated his reasons for doing so, and the decision was supported by substantial
evidence); Osborn v. Barnhart, 194 Fed. App’x 654, 667 (11th Cir. Aug. 24, 2006) (per
curiam) (holding that it was proper for the ALJ to give more weight to the
non-examining physician and only minimal weight to the treating physician because
the treating physician’s opinion was not supported by objective medical evidence).”)
(emphasis added and citations modified); Wilkinson v. Commissioner of Soc. Sec. Admin.,
289 Fed. App’x. 384, 386 (11th Cir. Aug. 20, 2008) (per curiam) (“The ALJ did not give
undue weight to the opinion of the non-examining state agency physician because he
did not rely solely on that opinion.
The ALJ considered the opinions of other treating,
examining, and non-examining physicians; rehabilitation discharge notes indicating
improvement; and Wilkinson’s own disability reports and testimony.”) (citing
Broughton, 776 F.2d at 962).
Based on the law in this Circuit, the Court must conclude that the ALJ properly
relied on the opinions of (i.e., the PRTF and mental RFC assessment completed by) Dr.
Hinton and that these opinions provide the necessary linkage regarding the plaintiff’s
ability to perform, in particular, the mental requirements of work.
Therefore, the ALJ’s
decision provides this Court with a sufficient rationale to review her legal conclusions
and conclude that the decision is supported by substantial evidence.
Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying the plaintiff benefits be AFFIRMED.
DONE and ORDERED this the 20th day of November, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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