Hollis v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying Hollis benefits be AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 10/9/2013. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHRISTI S. HOLLIS,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
1 )
Acting Commissioner of Social Security,
)
Defendant.
)

Civil Action No. 12-00659-N

MEMORANDUM OPINION AND ORDER
Plaintiff Christi S. Hollis brings this action seeking judicial review of a final
decision of the Commissioner of Social Security denying her application for
supplemental security income (“SSI”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
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. 15 (“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.”); see also Doc. 17 (order
of reference).)

Upon consideration of the administrative record (“R.”) (Doc. 12),

Hollis’s brief (Doc. 13), and the Commissioner’s brief (Doc. 22),2 it is determined that
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Colvin is
substituted for Michael J. Astrue as the proper defendant in this case.
1

2

16, 18.)

The Court granted the parties’ request to waive oral argument.

(See Docs.

the Commissioner’s decision denying Hollis benefits should be AFFIRMED.3
I.

Procedural Background

On April 14, 2009, Hollis filed an application for SSI (R. 128-130), alleging
disability beginning September 30, 2008 (see R. 128). Her application was initially
denied. (See R. 77-83.)

A hearing was then conducted before an Administrative

Law Judge on September 30, 2010 (see R. 46-74). On October 19, 2010, the ALJ
issued a decision finding Hollis was not disabled (R. 30-45), 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 (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 October 17, 2012
(see Doc. 1).
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
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
Any appeal taken from this memorandum opinion and order and judgment
shall be made to the Eleventh Circuit Court of Appeals. (See Doc. 15 (“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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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
evidence.”

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

1158-59 (11th Cir. 2004)).
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On appeal to this Court, Hollis raises one issue: whether the ALJ’s failure to
order a second consultative examination in light of medical evidence that postdates
Hollis’s consultative examination means the ALJ’s decision is not supported by
substantial evidence. (See generally Doc. 13.)
III.
A.

Discussion

The ALJ’s decision.

After identifying the following severe impairments: “Mood Disorder, NOS;
Personality Disorder, Cluster B; and Polysubstance Abuse” (R. 35), but concluding
no impairment or combination of impairments meets or medically equals a listed
impairment (see R. 35-36), the ALJ determined that Hollis “has the residual
functional capacity to perform at least light work as defined in 20 CFR 416.967(c).
She is able to understand, remember, and carry out short and simple instructions,
and concentrate and attend for reasonable periods of time.
general public should not be a usual job duty.”

(R. 36-37.)

Contact with the

In support of his RFC

determination, the ALJ sets out at some length Hollis’s hearing testimony, which
included that
She has received treatment for mental issues at Alta Pointe [sic]. She
was admitted and treated at the Love Lady [sic] Center from November
2009 to May 2010. She got her job at the Irondale Café through the
Love Lady [sic] Center. She was treated for Bipolar Disorder,
depression, and Obsessive Compulsive Disorder.
She is on
medications now. She was just placed on an assistance program. She
has not been readmitted to Alta Pointe [sic]. She was dropped because
it had been a long time since she had been seen. She sees a person in
Mt. Vernon for her mental health issues. Her medications help her
anxiety and depression “some.” She has times throughout the month
when nothing helps much. She has weeks or days where she wants to
sleep. Her cycles of problems with depression have been going on for
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about 10 years [or] longer. She has had difficulty with drugs and
alcohol in the past. It has been at least one year.
(R. 37-38.)
While the ALJ gave “significant weight” to the July 8, 2009 opinion of the
state agency reviewing psychologist, Dr. Linda Duke, and the July 22, 2009
evaluation completed by Dr. John Davis (see R. 38-39), the ALJ also relied on myriad
medical records (see id.)

For purposes of this appeal, it should be noted that the

ALJ specifically discussed the following medical records that postdate the reports by
Drs. Duke and Davis: (1) October 13, 2009 treatment notes from AltaPointe, which
“indicate[d] that [Hollis] last used crack a couple of days ago [and] was on a waiting
list for the Second Chance Program” (see R. 38 (citing R. 254-255)); and (2) treatment
notes from the Lovelady Center (dated November 9, 2009 through May 20, 2010)
regarding Hollis’s treatment for drug and alcohol abuse and also noting that Hollis’s
Global Assessment of Functioning (“GAF”) was “rated as 54, indicating moderate
symptoms” in December 2009 (see R. 39 (citing R. 262-270)). Finally, as to Hollis’s
mental impairments, the ALJ concluded: “Nothing in the record suggests that [her]
mental impairments have been incapable of being alleviated or controlled with the
proper and regular use of prescription medications. In fact, the record discloses
that such medications have proven successful in assisting [Hollis] in maintaining
control of her conditions and mitigating any accompanying symptomatology.”

(R.

39.)
B.

The plaintiff’s argument on appeal.

As indicated above, on appeal, Hollis presents a single issue. She claims that
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certain medical records, some cited in the ALJ’s decision, necessitated that the ALJ,
before rendering his decision, order a consultative mental examination “to clarify
[Hollis’s] mental residual functional capacity and allow the ALJ to make an
informed decision.”

(Doc. 13 at 5; see id. at 4-6.)

After the claimant saw Dr. Davis and her file was reviewed by Dr.
Duke, she was admitted to a psychiatric center for medical health
treatment at the Mobile County Health Department. She was
diagnosed with Bipolar Disorder, Manic with psychotic features and
Obsessive Compulsive disorder. She also returned to Altapointe [sic]
Mental Health for treatment, where it was noted she suffered
Obsessive Compulsive Disorder, Alcohol Abuse in Remission, Drug
Dependence in Remission, and Borderline Personality Disorder. This
evidence was created after the state agency examiners created their
opinions[, and, according to Hollis,] casts doubt as to the limitations
opined by Dr. Davis and Dr. Duke.
(Id. at 4, 6 (record citations omitted).)

Hollis also asserts that her counsel

“requested a post-hearing psychological-consultative examination due to the fact
that the state agency examination and review was performed before additional
evidence that indicated a much more severe impairment was available[,]” (id. at 4
(citing R. 72 (Counsel: “I would request that the Court consider and take under
advisement whether to send Ms. Hollis out for further psychiatric evaluations.
Note that Dr. Davis saw her back in July of ’09. She’s been in a treatment program
since then. . . . I think a more accurate assessment of her mental residual functional
capacity may provide a better understanding of the problems that she’s having and
whether or not she’s disabled.”)).
C.

Analysis.

“In determining whether remand is appropriate in cases such as this one, the

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Court must balance an ALJ’s duty to develop a full and fair record against a
claimant’s responsibility to prove disability[,]” keeping in mind “the nonadversarial
nature of Social Security administrative proceedings[.]”

Jenkins v. Colvin, No. CA

2:12–00465–N, 2013 WL 3465190, at *6 (S.D. Ala. July 10, 2013); accord Rivers v.
Astrue, 901 F. Supp. 2d 1317, 1327 (S.D. Ala. 2012) (“[A] claimant bears the burden
of proving disability and for producing evidence in support of his claim while the ALJ
has ‘a basic duty to develop a full and fair record.’” (quoting Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003) (per curiam))).4
An ALJ’s affirmative duty to develop a full and fair record, in certain cases,
“extends to obtaining a consultative examination when the same would be of benefit
in the administrative process.”

Waits v. Astrue, No. CV 12–J–2371–NE, 2013 WL

625311, at *4 (N.D. Ala. Feb. 20, 2013) (citing 20 C.F.R. §§ 404.1517; 416.917);
Clearly, “the burden is on [Holllis] to prove [s]he is disabled[,]” Sellers v.
Barnhart, 246 F. Supp. 2d 1201, 1210 (M.D. Ala. 2002) (citing 20 C.F.R. § 404.1512(s) (“In
general, you have to prove to us that you are blind or disabled. Therefore, you must bring
to our attention everything that shows that you are blind or disabled. This means you
must furnish medical and other evidence that we can use to reach conclusions about your
impairment(s) and, if material to the determination of whether you are blind or disabled, its
effect on your ability to work on a sustained basis.”)). But there also is no doubt that “[a]n
administrative law judge has a duty to develop a full and fair record.” Sims v. Astrue, Civil
Action No. 3:09cv366–CSC, 2010 WL 2952686, at *2 (M.D. Ala. July 26, 2010) (citing Kelley
v. Heckler, 761 F.2d 1538 (11th Cir. 1985)); accord Salazar v. Commissioner of Soc. Sec., 372
Fed. App’x 64, 67 (11th Cir. Apr. 6, 2010) (per curiam) (citing Ellison, 355 F.3d at 1276);
Waits v. Astrue, No. CV 12–J–2371–NE, 2013 WL 625311, at *4 (N.D. Ala. Feb. 20, 2013)
(“The ALJ always has an affirmative duty to develop a fair, full record.” (citing Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997))); cf. Sims v. Apfel, 530 U.S. 103, 110–11 (2000)
(“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ’s duty
to investigate the facts and develop the arguments both for and against granting benefits.”);
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000) (The SSA “has replaced
normal adversary procedure with an investigatory model, where it is the duty of the ALJ to
investigate the facts and develop the arguments both for and against granting benefits;
review by the Appeals Council is similarly broad.”).
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accord Cox v. Astrue, No. 5:11–CV–02319–LSC, 2012 WL 4008953, at *5 (N.D. Ala.
Sept. 12, 2012) (“The Commissioner’s duty to develop the record includes ordering a
consultative examination if one is needed to make an informed decision.” (citing
Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984), which in turn cited Ford v.
Secretary of Health & Human Servs., 659 F.2d 66, 69 (5th Cir. Unit B 1981))).
In fulfilling the duty to conduct a full and fair inquiry, the ALJ is not
required to order a consultative examination unless the record
establishes that such is necessary to enable the ALJ to render a
decision. See Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d
1253, 1269 (11th Cir. 2007) (“The administrative law judge has a duty
to develop the record where appropriate but is not required to order a
consultative examination as long as the record contains sufficient
evidence for the administrative law judge to make an informed
decision.”).
It is only where a consultative examination is necessary for the ALJ to
make a decision due to some conflict, ambiguity, or other insufficiency
in the medical evidence that the regulations require an ALJ to order a
consultative examination. See 20 C.F.R. § 404.1519a(a)(2) (“When we
purchase a consultative examination, we will use the report from the
consultative examination to try to resolve a conflict or ambiguity if one
exists. We will also use a consultative examination to secure needed
medical evidence the file does not contain such as clinical findings,
laboratory tests, a diagnosis or prognosis necessary for decision.”), 20
C.F.R. § 404.1519a(b) (“A consultative examination may be purchased
when the evidence as a whole, both medical and nonmedical, is not
sufficient to support a decision on your claim.”); see also Hawkins v.
Chater, 113 F.3d 1162, 1166 (10th Cir. 1997) (“The Secretary has broad
latitude in ordering consultative examinations.”).
Rivers, 901 F. Supp. 2d at 1327-28 (initial citation modified).
“The failure of an ALJ to order a consultative examination, when such an
evaluation is necessary to make an informed decision, constitutes justifiable cause
for a remand to the Commissioner.” Rease v. Barnhart, 422 F. Supp. 2d 1334, 1372
(N.D. Ga. 2006) (citing Reeves; Ford; Turner v. Califano, 563 F.2d 669 (5th Cir.
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1977)). “In determining whether it is necessary to remand a case for development
of the record, [a court should] consider[] ‘whether the record reveals evidentiary gaps
which result in unfairness or clear prejudice.’”

Salazar, 372 Fed. App’x at 67

(quoting Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (per curiam)); see also
Cox, 2012 WL 4008953, at *5 (“Plaintiff must show that the lack of records created
an evidentiary gap, resulting in unfairness or clear prejudice.” (citing Edwards v.
Sullivan, 937 F.2d 580, 586 (11th Cir. 1991))).
The evidence Hollis cites to establish that the ALJ was required to order the
requested second consultative examination appears in the record as Exhibits 11F (R.
256-261); 12F (R. 262-270); and 13F (R. 271) and a portion of Exhibit 14F (R.
272-281). (See Doc. 13 at 4 (citing R. 262-270, 256-261, and 263-273).)

The ALJ’s

decision specifically cites to and discusses Exhibit 12F (see R. 36, 39), and Exhibits
13F and 14F were presented to and considered by the Appeals Council (see R. 5).
•

Exhibit 11F, records from the Mobile County Health Department dated

from May 17, 2010 to June 15, 2010, indicate that Hollis appeared on May 17,
complaining that a “[k]not on her back [was] shooting” (R. 258), and again on June
15 for medication refills (see R. 256). Those records further note/assess/diagnose
Hollis with “Bipolar disorder, manic, with psychotic features” (R. 257) and indicate
that Hollis’s “Diagnosis History” includes “Bipolar disorder NOS” and “Obsessive
compulsive disorder” (R. 258).

Importantly for purposes of this appeal, as the ALJ’s

decision explicitly states, Dr. Hakima had already “diagnosed [Hollis] with a Bipolar
Disorder,” in March 2009, before she was examined by Dr. Davis.
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(R. 38 (citing R.

253).)5 Thus, the Court cannot say that the Mobile County Health Department
records present information that is either ambiguous or conflicts with information
available to Dr. Davis, when he examined Hollis in July 2009, or Dr. Duke, when she
reviewed Hollis’s records the same month, such that this information casts doubt as
to the limitations they imposed on Hollis and required the ALJ to order a
consultative examination.
•

The substantive portions of Hollis’s records from the Lovelady Center

(Exhibit 12F (R. 262-270)) include an assessment of Hollis completed on November
9, 2009 (see R. 264-268, 270), which reflects that she reported last seeing a doctor in
October 2009 and had been previously diagnosed with obsessive compulsive
disorder, borderline personality disorder, and Bipolar disorder (see R. 270).
Similarly, this evidence also does not present information that is in conflict with

It should also be noted that LaTanja Batain, CRNP, examined Hollis at the
Mobile County Health Department in May and June 2010 and is the only signatory on the
corresponding records (see R. 256, 257, 258, 260, 261). The Court takes notice that “CRNP”
is the recognized acronym for Certified Registered Nurse Practitioner. “[A] nurse
practitioner’s opinion is considered ‘other source’ evidence, and is not given the same
controlling weight as a ‘treating source.’” Sommer v. Astrue, No. 3:10-CV-99, 2010 WL
5883653, at *3-5 (E.D. Tenn. Dec. 17, 2010) (quoting § 404.1527(d)). While such an opinion
“is only entitled to fair consideration[,]” Wilver v. Astrue, No. 8:07-CV-488-T-EAJ, 2008 WL
2824815, at *3 (M.D. Fla. July 21, 2008) (citation omitted)), the Social Security
Administration has “acknowledge[d] that medical sources who do not qualify as ‘acceptable
medical sources’ under the regulations are still considered valuable sources of information.”
Sommer, 2010 WL 5883653, at *3. However, a nurse practitioner-“other source” may not
present evidence to “establish the existence of an impairment.” Madise v. Astrue, Civil
Action No. 08-00376-B, 2009 WL 3078294, at *11 (S.D. Ala. Sep. 23, 2009) (“‘[O]ther’ medical
sources [ ] may present evidence of the severity of the claimant’s impairment and the effect
of the impairment on the claimant’s ability to work, but [such evidence] cannot establish
the existence of an impairment.” (citing § 404.1513(d)(1) (emphasis added))). Thus, any
diagnosis by Nurse Practitioner Batain expressed in these records cannot be used to
establish that Hollis has Bipolar Disorder.
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information available to Drs. Davis and Duke in July 2009, such that this
information casts doubt as to the limitations they imposed on Hollis and required
the ALJ to order a consultative examination.
•

As to the exhibits (13F and 14F) not before the ALJ, but first presented

to, and considered by, the Appeals Council, it should be noted that the Appeals
Council, declined to review the ALJ’s decision. (See R. 1.)

Thus, the Court is not

dealing with a case in which it is alleged the ALJ failed to follow the Appeals
Council’s instruction to further develop the record on remand.

Contra, e.g.,

Pettaway v. Astrue, No. CA 08-0171-C, 2008 WL 5111175 (S.D. Ala. Dec. 3, 2008);
Jowers v. Astrue, Civil Action No. SA–10–CV–0944 NN, 2012 WL 641973, at *1
(W.D. Tex. Feb. 27, 2012) (“The Appeals Council’s decision included detailed
instructions directing the ALJ to: develop the record fully as it related to Plaintiff’s
psychiatric impairments (including the instruction to obtain additional testimony
from a medical expert with psychological or psychiatric expertise and/or order a
consultative examination, if necessary) . . . .”). And if the Court were to assume
that the ALJ had the benefit of reviewing Exhibits 13F and 14F, those exhibits also
do not present information that is in conflict with information available to Drs.
Davis and Duke in July 2009, such that they casts doubt as to the limitations
imposed on Hollis in July 2009 and would have required the ALJ to order a
consultative examination. Moreover, Exhibits 13F and 14F—like all other evidence
Hollis points to on appeal—do not show that the ALJ’s decision is not based on
substantial evidence.
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IV.

Conclusion

Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Hollis benefits be AFFIRMED.
DONE and ORDERED this the 9th day of October, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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