Alexander v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner denying benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 9/12/2013. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JALISSA R. ALEXANDER,

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

Civil Action No. 2:12-00607-N

MEMORANDUM OPINION AND ORDER
Plaintiff Jalissa R. Alexander 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 her applications for child insurance benefits 1 and
supplemental security income (“SSI”). The parties have consented to the exercise of
jurisdiction by the undersigned United States Magistrate Judge for all proceedings
in this Court pursuant to 28 U.S.C. § 636(c). (See Doc. 21 (“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),

Alexander’s brief (Doc. 15), and the Commissioner’s brief (Doc. 17),2 it is determined

The Social Security regulations provide that a claimant who is 18 years of age
or older may file an application for child’s benefits based on a disability that began before he
or she became 22 years old. See 20 C.F.R. § 404.350(a)(5). Alexander was born on
January 11, 1990, and claimed an onset date of August 17, 2008.
1

2

The Court granted Alexander’s request to waive oral argument.

(See Docs.

that

the

Commissioner’s

decision

denying

Alexander

benefits

should

be

AFFIRMED.3
I.

Procedural Background

On April 23, 2009, Alexander filed applications for child insurance benefits
and SSI, alleging disability beginning August 17, 2008.
initially denied.

Her applications were

A hearing was then conducted before an Administrative Law

Judge on August 18, 2010; that hearing was continued, so that additional evidence
could be obtained, and reconvened on December 2, 2010. On December 9, 2010, the
ALJ issued a decision finding Alexander was not disabled, and she sought review
from the Appeals Council. The Appeals Council issued its decision declining to
review the ALJ’s determination on August 23, 2012—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 September 20, 2012.
II.

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. Jones v. Bowen, 810 F.2d 1001,
1005 (11th Cir. 1986). In evaluating whether the plaintiff has met this burden, the
examiner must consider the following four factors: (1) objective medical facts and
19, 20.)
Any appeal taken from this memorandum opinion and order and judgment
shall be made to the Eleventh Circuit Court of Appeals. (See Doc. 21 (“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 court.”).)
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2

clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4)
the plaintiff’s age, education, and work history. Id. 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. Sryock
v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). 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 (1971). “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 [Commissioner’s] decision.”

Chester v. Bowen, 792 F.2d 129, 131

(11th Cir. 1986). Courts are precluded, however, from “deciding the facts anew or
re-weighing the evidence.”

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
3

evidence.”

Id. (citing Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004)).
On appeal to this Court, Alexander asserts one claim: that the ALJ’s decision
(in particular, the ALJ’s assessment of Alexander’s mental residual functional
capacity (RFC)) was not supported by substantial evidence because he rejected the
opinion of Nina Tocci, Ph.D., who performed a consultative examination of
Alexander at the request of the ALJ, instead giving controlling weight to an agency
doctor, John Davis, Ph.D., who gave an opinion after reviewing Alexander’s medical
records, and Dr. M. Hope Jackson, who completed a psychiatric review technique
form (“PRTF”) in July 2009 based on Alexander’s records but without reviewing
information on Alexander’s ability to function, and despite the fact that neither Dr.
Davis nor Dr. Jackson examined or treated Alexander.
III.
A.

Discussion

The ALJ’s Findings.

The ALJ determined that Alexander satisfied the requirements of 20 C.F.R.
§404.350(a)(5). He further found that Alexander had not engaged in substantial
gainful activity since the alleged onset date and that she suffered from several
severe impairments: ovarian cysts, pelvic inflammatory disease, asthma, and
borderline intellectual functioning.

The ALJ stated, “[t]he record refers to

allegations of depression and mood swings, but those complaints have not been
documented over any period of 12 consecutive months and the claimant has no
history of treatment by a mental health professional for depression, mood swings, or

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any other mental or emotional impairment.”

(R. 45.)

On that basis, the ALJ found

that Alexander did not suffer a ‘severe’ impairment of either depression or mood
swings.
With regard to the consultative mental exam, the ALJ’s decision states as
follows:
The Administrative Law Judge arranged for the claimant to be
evaluated by Nina E. Tocci, Ph.D. On September 28, 2010, Dr. Tocci
noted that the claimant reported a range of daily activities including
helping at her father’s store, attending classes at a junior college,
watching television, going to church, and driving places.
The
claimant’s borderline intelligence was noted, and Dr. Tocci also
presented diagnoses of a major depressive disorder and a pain disorder.
Dr. Tocci completed a questionnaire on which she indicated that the
claimant had marked and extreme mental limitations. (Exhibit 14F).
Because that opinion seemed to be at odds with virtually the entire
record, the administrative law judge sought the opinion of Dr. John
Davis, the eminent psychologist and former President of the Alabama
Psychological Association. Dr. Davis emphatically disagreed with Dr.
Tocci’s ratings and noted that he believed that Dr. Jackson’s opinion
was consistent with the record. Dr. Davis’ opinion and that of Dr.
Jackson are accorded greater weight than the opinion of Dr. Tocci
whose assessment is given very little weight. Among other factors, Dr.
Tocci’s inconsistent opinion that the claimant would have an “extreme”
limit in the ability to respond to usual work situations, while
simultaneously having a mere “mild” limitation in carrying out simple
instructions, a very common work situation, undermined the credibility
of her report.
(Id.)
Dr. Davis testified very briefly at Alexander’s second hearing. He stated it
was his opinion that Alexander suffered borderline intellectual functioning. With
regard to Dr. Tocci’s report, he further stated:
The markings are the ratings are (sic) --- I just don’t find any support
for them even in her own report. She’s in school, she graduated from
high school, I think she struggled with her [inaudible] but she’s doing
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regular classes. I’m more in agreement with the RFC that was done
by Dr. [inaudible][. 4] I just don’t see anything in her own report,
observations that support the level of limitations that [inaudible].
(R. 62-63.)
The ALJ assigned Alexander the residual functional capacity to perform light
work subject to limitations: no climbing ladders, ropes or scaffolds; no work around
dangerous machinery, at heights, or around deep water; and, related to her
borderline intellectual function, only work which involves understanding, carrying
out, and remembering simple one and two step instruction, no production pace work,
and only occasional interactions with the general public.

(R. 47.)

Other than borderline intellectual functioning, the ALJ makes no reference to
any other mental impairment such as depression or mood swings. The ALJ did not
mention these additional diagnoses in addressing the severity of her conditions, and
did not mention them in the written decision.

Thus, the ALJ appears to have

discredited not only Dr. Tocci’s opinions concerning Alexander’s limitations, but her
diagnosis of Alexander’s other mental conditions.5
B.

Medical Records.

In addition to medical records concerning Alexander’s physical condition,
including abdominal pain and bleeding, as well as pain in her breast and knee, the
record contains information concerning the mental limitations from which she
4

at 6.)

The Commissioner states that this was a reference to Dr. Jackson.

(Doc. 16

In reviewing the Commissioner’s decision, however, the Court’s role is not to
second guess how the ALJ weighs the evidence; the Court’s sole concern is whether the
Commissioner’s decision is supported by substantial evidence.
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6

suffers.
On February 8, 2007, at the request of the Alabama Department of
Rehabilitation Services, Linda S. Lindman, Ph.D. evaluated Alexander.

Dr.

Lindman conducted a clinical interview and administered the SAIS-III and WIAT-II
tests, for intellectual functioning and achievement.

She opined that Alexander

suffered from borderline intellectual functioning and assigned a GAF score of 65.
A January 22, 2009 record from Jackson Medical Center indicates that
Alexander thought her thyroid medication put her in a bad mood, causing anger
problems, but no further reference is made in their notes to this possible side effect
or symptom.
On July 16, 2009, M. Hope Jackson, Ph.D., a psychologist working for the
agency, completed a PRTF (R. 345-358) and a mental RFC assessment (R. 359-366).
According to Dr. Jackson’s report, the only medical record concerning Alexander’s
mental condition available to her was Dr. Lindman’s 2007 evaluation. There was
also, however, a record from the Clarke County Board of Education, dated August
21, 2007, concerning IQ testing, which Dr. Jackson summarized as follows: “CTONI:
NIQ 87; PNIQ 91; GNIQ 85.
[B]attery Comp 76.”

K-TEA{NU}: Reading Comp 78; Math Comp 73;

While Dr. Jackson’s report indicates that these are the only

records she considered, there is a note that Dr. Jackson was unable to reach
Alexander to have her complete ADL forms, and thus that “[i]nformation about the
claimant’s ability to function currently is unavailable . . . . Therefore, the case will be
rated with the limitations that would be expected for someone with borderline
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intellectual functioning.”
Dr. Jackson stated that, in her opinion, Alexander was moderately limited in
the ability to understand and remember detailed instructions, the ability to carry
out detailed instructions, and the ability to maintain attention and concentration for
extended periods; according to this summary, Alexander had no other significant
mental limitations. On that same basis, Dr. Jackson provided a functional capacity
assessment, which stated that “Claimant has the ability to understand, remember
and carry out very short and simple instruction.

She can attend for two hour

intervals.”
And, on that basis, the ALJ accepted the VE’s statement that a person with
such limitations could find work she could perform available in the national
economy, including house cleaner and garment folder.

The ALJ thus found that

plaintiff was not disabled.
C.

Analysis.

The ALJ continued the first hearing to allow Alexander to be evaluated by two
consultative examiners (CEs), one for physical symptoms and the other for mental
limitations. 6

But, after ordering the CEs, the ALJ rejected the results of the

impartial psychologist’s RFC opinion and the rest of the CE results, including, as set
forth above, the diagnoses of mood swings and depression.

At the hearing, the ALJ

It appears from the transcript of that hearing that the ALJ recognized a lack
of sufficient information in the record to allow a determination of Alexander’s condition; the
Social Security regulations provide that an ALJ may order a CE in such circumstances. See
20 C.F.R. §404.1517.
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8

called a medical expert, Dr. Davis, who stated that he did not think Dr. Tocci’s RFC
opinions were supported by the medical records.

He nonetheless agreed that

Alexander had borderline intellectual functioning.
The Commissioner will generally “give more weight to opinions from . . . a
source who has examined [the claimant] . . . [and] treating sources,” 20 C.F.R. §
404.1527(c)(1)-(2). Dr. Tocci examined plaintiff; Dr. Davis did not.

In this case,

however, the ALJ gave several reasons for finding that Dr. Tocci’s opinions were not
entitled to significant weight, including the lack of supporting data in the medical
records, as well as a purported conflict between her finding that Alexander suffered
an “‘extreme’ limit in the ability to respond to usual work situations, while
simultaneously having a mere ‘mild’ limitation in carrying out simple instructions, a
very common work situation . . . .”

(R. 45.)

Thus, it appears that the ALJ has

expressed valid reasons to reject Dr. Tocchi’s opinions. See, e.g., Mounts v. Astrue,
479 Fed. App’x 860, 867 (10th Cir. May 9, 2012) (“[T]he other two reasons[—one, the
opinion was not supported by the “longitudinal treatment notes” of a licensed clinical
social worker who treated the claimant and, two, the opinion was “inconsistent with
the record as a whole”—]given by the ALJ are more than adequate for this court to
discern why the ALJ rejected [the consultative psychologist’s] opinion.”); Ogranaja v.
Commissioner of Soc. Sec., 186 Fed. App’x 848, 850 (11th Cir. June 5, 2006) (per
curiam) (“The ALJ did not err in discounting [the] opinion [rendered after a one-time
neurological consultation by Dr. Diaz] regarding Ogranaja's physical capabilities
because substantial evidence indicates that it is inconsistent with her examination
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findings, as well as other examination reports in the record.” (citation omitted)).
After rejecting Dr. Tocci’s opinions, the evidence on which the ALJ based his
mental RFC determination includes: school records of intelligence testing; a 2007
report by Dr. Lindman which included the results of intelligence testing; a notation
of irritability, possibly due to drug side effects; an evaluation of the medical records
by Hope Jackson, Ph.D., a state agency psychologist; and the minimal hearing
testimony offered by Dr. Davis that Alexander suffered borderline intellectual
functioning. There may also have been a mention of depression in a record from Dr.
Hussein, prior to the diagnosis by Dr. Tocci.
Clearly, the ALJ’s mental RFC determination must be supported by
substantial evidence, which also requires that the ALJ “provide a sufficient rationale
to link such evidence to the legal conclusions reached.”

Russ v. Barnhart, 363 F.

Supp. 2d 1345, 1347 (M.D. Fla. 2005); compare id., with Packer v. Astrue, Civil
Action No. 11–0084–CG–N, 2013 WL 593497, at *4 (S.D. Ala. Feb. 14, 2013) (“[T]he
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.” (quoting Salter v. Astrue, No. CA 11–00681–C, 2012 WL
3817791, at *3 (S.D. Ala. Sept. 4, 2012))); see also Hanna v. Astrue, 395 Fed. App’x
634, 636 (11th Cir. Sept. 9, 2010) (per curiam) (“The ALJ must state the grounds for
his decision with clarity to enable us to conduct meaningful review. . . . 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
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review [a plaintiff’s] case.” (internal citation omitted)); 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, 363 F. Supp. 2d at 1347)); Packer, 2013 WL 593497, at *4 (While “the
Eleventh Circuit has declined to impose overly rigid requirements when reviewing
disability decisions[,] meaningful review . . . requires [that] ALJs [ ] state with
clarity the grounds for their decisions.” (internal citations and quotation marks
omitted)).
First, Dr. Lindman’s evaluation, completed in 2007, prior to Alexander’s
application or the alleged onset date of her disability, is of limited relevance to
Alexander’s claim—the report contains a recitation of the test results, but no opinion
on the effects of the Alexander’s intellectual limitations on her ability to work.
Thus, the Court must determine whether the remaining record evidence, which is
primarily the opinions of Drs. Jackson and Davis, non-examining sources, provides
substantial evidence to support the ALJ’s mental RFC determination in light of the
Eleventh Circuit’s holding 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.”

Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir.
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1990) (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).
Swindle remains good law in this Circuit,7 but, under certain circumstances,
“substantial evidence supports [an] ALJ’s decision to assign great weight to” the
opinion of a state agency physician.

Ogranaja, 186 Fed. App’x at 850.

In

Ogranaja, the court cited Swindle, but then noted 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.
Id. at 851 (emphasis added). Further, as 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 the record.
Id. at *5 (citations modified and second emphasis added).

In Hogan, the court

ultimately affirmed the ALJ’s decision, concluding, “[a]fter a careful review of all the

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))).
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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).

Similarly, here, the ALJ “agreed with . . . the findings of the State agency [Dr.
Jackson] with respect to [Alexander’s] mental capacities” after noting that the
medical expert called to testify at the hearing, Dr. Davis, agreed with those findings.
(R. 48.)

The ALJ then “incorporated” the findings as to Alexander’s mental

capacities into his RFC determination, which the ALJ also noted was “supported by
the medical history of record, the minimal abnormal test and examination findings
of record, the sporadic nature of [Alexander’s] treatment, . . . and by [Dr. Davis’s]
testimony.”

(R. 48-49.)

Based on this, and in light of Ogranaja, the Court cannot say that the decision
to adopt Dr. Jackson’s opinion is not based on substantial evidence.

See, e.g.,

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)); cf. Davis v. Astrue, Civil Action No. 2:08CV631–SRW, 2010 WL 1381004, at
*5 (M.D. Ala. Mar. 31, 2010) (holding that “the ALJ properly assigned ‘great weight’”
to the opinion a non-examining physician because that opinion was “supported by
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and consistent with the record as a whole[,] unlike the opinion of plaintiff’s treating
sources . . . . The opinion of a non-examining physician alone does not constitute
substantial evidence. 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.” (emphasis added and some citations omitted)).
Based on the law in this Circuit, the Court must conclude that the ALJ
properly relied on the opinions of Dr. Jackson 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 his conclusions and conclude that the decision is
supported by substantial evidence.
IV.

Conclusion

Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Alexander benefits be AFFIRMED.
DONE and ORDERED this the 12th day of September, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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