Green v. Colvin

Filing 23

Order entered that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/30/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEWAYNE GEORGE GREEN,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

CIVIL ACTION NO. 13-00253-B

ORDER
Plaintiff

Dewayne

George

Green

(hereinafter

“Plaintiff”)

brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying his claim for a
period

of

disability

and

disability

insurance

benefits

under

Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.
On July 7, 2014, the parties consented to have the undersigned
conduct any and all proceedings in this case.
the

action

was

referred

to

the

undersigned

(Doc. 20).
to

Thus,

conduct

all

proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
careful

consideration

of

the

administrative

record

and

Upon
the

memoranda of the parties, it is hereby ORDERED that the decision
of the Commissioner be AFFIRMED.
I.

Procedural History
Plaintiff protectively filed an application for a period of

disability
2009. 1

and

disability

insurance

benefits

on

November

6,

(Tr. 143). Plaintiff alleged that he had been disabled

since April 1, 1997, due to “gastrointestinal disorder, anxiety
disorder, diabetes, right arm, [and] right shoulder.”
143, 147).
request,

(Id. at

Plaintiff’s application was denied and upon timely

he

was

granted

an

administrative

hearing

before

Administrative Law Judge Kim McClain-Leazure (hereinafter “ALJ”)
on October 25, 2011.

(Id. at 26).

Plaintiff attended the

hearing with his counsel and provided testimony related to his
claims.
at

the

November

(Id. at 29).
hearing
15,

and

2011,

A vocational expert (“VE”) also appeared

provided
the

ALJ

testimony.
issued

an

finding that Plaintiff is not disabled.

(Id. at 52).
unfavorable

On

decision

(Id. at 22).

The

Appeals Council denied Plaintiff’s request for review on March
25, 2013. 2

(Id. at 1).

The parties waived oral argument (Doc.

1

In order to qualify for disability insurance benefits, a
claimant must be found to be disabled on or before his date last
insured. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005
(citing 42 U.S.C. § 423(a)(1)(A) (2005)).
In this case,
Plaintiff’s date last insured is June 30, 2002.
(Doc. 16 at
12).
Thus, Plaintiff must show that he was disabled on or
before that date.
Because Plaintiff’s onset date is April 1,
1997 (id.), the Court’s analysis is limited to the relevant time
period between April 1, 1997 (the alleged onset date) and June
30, 2002 (the date last insured).

2

As discussed herein, Plaintiff submitted additional evidence to
the Appeals Council in the form of a letter dated December 9,
2011, from Plaintiff’s treating psychologist, Dr. Robert
DeFrancisco, Ph.D., which the Appeals Council considered before
denying Plaintiff’s request for review. (Tr. 5).

2

19), and agree that this case is now ripe for judicial review
and

is

properly

before

this

Court

pursuant

to

42

U.S.C.

§§

405(g) and 1383(c)(3).
II.

Issues on Appeal
1. Whether the ALJ erred in not giving
controlling weight to the opinions of
Plaintiff’s
treating
psychologist,
Dr.
Robert DeFrancisco?
2. Whether the Appeals Council erred in
failing to properly review the opinions of
Plaintiff’s
treating
psychologist,
Dr.
Robert DeFrancisco?

III. Factual Background
Plaintiff was born on
years

of

age

at

the

October 25, 2011.

time

November 30, 1960, and was
of

his

(Tr. 26, 116).

administrative

fifty

hearing

on

Plaintiff graduated from

college with a degree in management and worked as a corrections
officer from 1985 to 1996 and as a debt collector in 1997.

(Id.

at 30-31, 35, 148).
Plaintiff testified that he stopped working because he had
problems

getting

along

with

co-workers

and

supervisors

because he could not cope with the stress of working.
34).

and

(Id. at

According to Plaintiff, when he worked, he had severe

stomach

cramps,

headaches,

and

an

inability

to

concentrate.

(Id. at 36-37).
Plaintiff testified that he has a wife and two children,

3

but he avoids people and likes to spend his days alone in the
woods and watching sports on television.

(Id. at 42, 46, 49).

Plaintiff stated that he tries to take no medication.

(Id. at

43).
IV.

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

limited

determining

1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

3

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

evidence as a reasonable person
support

a

conclusion.”).

In

consists

“such

relevant

would accept as adequate to

determining

3

of

whether

substantial

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
4

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); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 4

4

C.F.R.

for

20 C.F.R.

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
5

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has

not

engaged

in

substantial

gainful

activity

during

the

period from his alleged onset date of April 1, 1997, through his
date last insured of June 30, 2002, and that, through the date
last insured, he had the severe impairments of bipolar disorder,
impulse control disorder, and personality disorder.

(Tr. 16).

The ALJ further found that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals any
of

the

listed

impairments

Subpart P, Appendix 1.
The

ALJ

concluded

contained

in

20

C.F.R.

Part

404,

(Id.).
that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a full range
of

work

at

nonexertional

all

exertional

limitations:

levels,

no

contact

with
with

the
the

following
public;

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 claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

6

occasional contact with

supervisors and co-workers; changes in

the workplace should be introduced gradually; time off task can
be

accommodated

Preparation

by

(SVP)

normal

no

breaks;

greater

than

repetitive, simple, and routine tasks.

Specific
two;

Vocational

and

preferably

(Id. at 18).

The ALJ

also determined that while Plaintiff’s medically determinable
impairments could reasonably be expected to produce the alleged
symptoms, his statements concerning the intensity, persistence
and limiting effects of the alleged symptoms were not credible
to the extent that they were inconsistent with the RFC.

(Id. at

19).
Given Plaintiff’s RFC, the ALJ found that Plaintiff was
incapable of performing his past work as a corrections officer,
or collector.

(Id. at 21).

However, utilizing the testimony of

a VE, the ALJ concluded that considering Plaintiff’s residual
functional

capacity

for

a

range

of

work

at

all

exertional

levels, as well as his age, education and work experience, there
were other jobs existing in the national economy that Plaintiff
was

able

unskilled,

to

perform,

SVP

2),

such

as

“horticultural

“commercial

industrial

worker”

cleaner”

(heavy,
(medium,

unskilled, SVP 2), “garment bagger” (light, unskilled, SVP 1),
and “garment folder” (light, unskilled, SVP 2).

(Id. at 22).

Thus, the ALJ concluded that Plaintiff is not disabled.

(Id.).

Also pertinent to this appeal are the findings made by the

7

ALJ which informed his decision that Plaintiff is not disabled.
In

assessing

whether

Plaintiff

met

or

medically

equaled

Listing, the ALJ made the following relevant findings:
The
severity
of
the
claimant’s
mental
impairments did not meet or medically equal
the
criteria
of
any
mental
impairment
listings, including listing 12.04 governing
affective disorders and 12.08 governing
personality disorders. . . . In activities
of daily living, the claimant had moderate
restriction. The claimant apparently worked
as a correction officer for the State of
Alabama until 1997 (Exhibits 2D, 3E, and
5E).
He testified that the job was
stressful for him, and the State of Alabama
ordered him disabled due to behavioral
issues and gastric problems.
He also
testified that he was fired from his job as
a collector for a furniture company, in
part, because he could not handle the
pressures of the job. He worked for a short
time as a flight crew trainee in 2000;
however, he reportedly had to resign due to
stress (Exhibits 2D, 1E, and 12E).
On
January 21, 2011, Robert A. DeFrancisco,
Ph.D., a psychologist who has seen the
claimant periodically since 1995, provided a
sworn statement indicating that the claimant
had marked restriction in daily living as of
June 2010 (Exhibit 10F).
On the other hand, Dr. DeFrancisco saw the
claimant no more than once a year during the
period from the alleged onset day of April
1, 1997 through the date last insured of
June 30, 2002, and he usually noted that the
claimant was doing well (Exhibit 4F).
On
April 16, 1999, Dr. DeFrancisco noted that
he
was
willing
to
provide
a
letter
indicating that the claimant was competent
to fly.
In social functioning, the claimant had
moderate difficulties. In Dr. DeFrancisco’s

8

a

sworn statement, he stated that the claimant
had a very erratic way of interacting with
others, was very forthright and moody, and
had been involved in some altercations with
coworkers and supervisors when he worked as
a correction officer (Exhibit 10F).
Dr.
DeFrancisco indicated that the claimant had
marked restriction in social functioning
that
precluded
him
from
interacting
favorably with coworkers or supervisors as
of June 2002, and he should not have been
required to interact with the public in any
way.
The claimant testified that he had
trouble
getting
along
with
coworkers,
supervisors, and others in his jobs as a
correction officer, collector, and flight
crew trainee.
Again however, the treatment notes indicate
otherwise. Dr. DeFrancisco saw the claimant
no more than once a year during the period
from the alleged onset date of April 1, 1997
through the date last insured of June 30,
2002, and he usually noted that the claimant
was doing well (Exhibit 4F).
On April 16,
1999,
Dr.
DeFrancisco
noted
that
the
claimant was as “chipper” as ever.
With regard to concentration, persistence,
or
pace,
the
claimant
had
moderate
difficulties.
In Dr. DeFrancisco’s sworn
statement, he stated that the claimant had
problems with concentrating and focusing
when he worked as a correction officer
(Exhibit 10F).
Dr. DeFrancisco indicated
that the claimant could not have handled the
routine demands of an ordinary workweek as
of June 2002.
The claimant testified that
he
had
problems
with
impulsivity
and
difficulty concentrating in his job as a
correction officer; he was fired from his
job as a collector for a furniture company,
in part, because he could not handle the
pressures of the job; and he had to resign
as a flight crew trainee in 2000 due to
stress.

9

Again, Dr. DeFrancisco saw the claimant no
more than once a year during the period from
the alleged onset date of April 1, 1997
through the date last insured of June 30,
2002, and he usually noted that the claimant
was alert, oriented, and doing well (Exhibit
4F).
On May 8, 2000, Dr. DeFrancisco noted
that the claimant was much less stressed now
that he was out of the Department of
Corrections (DOC).
As for episodes of decompensation, the
claimant had experienced no episodes of
decompensation, which had been of extended
duration.
Because the claimant’s mental impairment did
not cause at least two “marked” limitations
or one “marked” limitation and “repeated”
episodes of decompensation, each of extended
duration, the “paragraph B” criteria were
not satisfied.
(Tr. 17-18). 5

Also, in assessing Plaintiff’s RFC, the ALJ made

the following relevant findings:
The claimant alleges that he worked as a
correction officer for the State of Alabama
until 1997.
He experienced difficulties
with impulsivity and concentration; gastric
problems; and trouble getting along with
inmates,
coworkers,
supervisors.
His
treating psychologist told him that he
needed to stay away from stress or his
condition could get much worse.
The State
of Alabama ordered him disabled due to his
behavioral issues and gastric problems.
He
was also fired from his job as a collector
for a furniture company because he could not
5

The ALJ also found that the evidence failed to satisfy the
“paragraph C” criteria of Listings 12.04 (governing affective
disorders) and 12.08 (governing personality disorders).
(Tr.
18).
Plaintiff does not challenge the ALJ’s finding that he
failed to meet or medically equal any Listing.

10

handle the pressures of the job and had
conflicts with others, including judges in
small claims court. He worked for short time
as a flight crew trainee in 2000; however,
he
had
problems
with
coworkers
and
supervisors and had to resign due to stress.
I
specifically
note
here
that
the
occupations
of
correctional
officer,
collection and flight crew are by definition
high stress jobs. . . .
The claimant was seen by Dr. DeFrancisco
four times during the period from the
alleged onset date of April 1, 1997 through
the date last insured of June 30, 2002
(Exhibit 4F).
On March 4, 1998, Dr.
DeFrancisco noted that although the claimant
still could not work at the DOC, he was
doing well and not taking any medication.
Dr. DeFrancisco stated that the claimant
appeared to be continually grandiose but was
actually quite harmless.
On April 16, 1999, Dr. DeFrancisco
noted
that the claimant felt like he could not
work at the DOC and that he had basically
disabled the claimant from working there (at
the Department of Corrections) (Exhibit 4F).
The claimant was noted to be a little
grandiose;
however,
his
alertness,
orientation, chipperness, contentment, and
reasonableness were also noted. Then unlike
someone who is unable to handle stress or is
disabled, the claimant said he would need a
letter from Dr. DeFrancisco indicating that
he was competent to fly planes.
Dr.
DeFrancisco stated that the claimant was
doing quite well and that he was willing to
provide
a
letter
indicating
that
the
claimant was competent to fly.
On May 8, 2000, Dr. DeFrancisco noted that
the claimant continued with anxiety and
work-related
gastric
problems,
and
the
claimant continued to feel like he could not
work for the DOC (Exhibit 4F).
The
claimant’s mental alertness, orientation,

11

and reasonable adjustment were noted.
Dr.
DeFrancisco stated that the claimant was
much happier and much less stressed now that
he was out of the DOC.
On May 29, 2001, Dr. DeFrancisco noted that
the claimant was very grandiose, had a
personality disorder, and continued with a
marginal existence (Exhibit 4F).
However,
the claimant’s stability and orientation
were also noted. Dr. DeFrancisco expressed
his lack of surprise that the claimant had
unsuccessfully tried to work for an airline.
On
January
21,
2011,
Dr.
DeFrancisco
provided a sworn statement (Exhibit 10F).
He
indicated
that
he
had
periodically
treated the claimant since October 1995. He
stated that the claimant had a very erratic
way of interacting with others, was very
forthright and moody, had inflated selfesteem, experienced bipolar symptoms, had
problems with concentrating and focusing,
and had been involved in some altercations
with coworkers and supervisors when he
worked as a correction officer. He diagnosed
the claimant with impulse control disorder
and bipolar disorder, and opined that the
claimant was disabled from his job as a
correction
officer.
The
claimant
was
subsequently determined to be disabled from
his job as a correction officer.
Dr.
DeFrancisco indicated that, as of June 2002,
the claimant had marked restriction in daily
living, had marked restriction in social
functioning
that
precluded
him
from
interacting favorably with coworkers or
supervisors, should not have been required
to interact with the public in any way, and
could not have handled the routine demands
of an ordinary workweek.
The basic mental demands of competitive,
remunerative, unskilled work includes the
abilities (on a sustained basis)
to
understand, carry out, and remember simple
instructions;
make
simple
work-related

12

decisions;
respond
appropriately
to
supervision,
coworkers,
and
usual
work
situations; and deal with changes in a
routine work setting (SSRs 85-15 and 96-9p).
In
light
of
the
claimant’s
mental
impairments during the period from the
alleged onset date of April 1, 1997 through
the date last insured of June 30, 2002, he
had the residual functional capacity to
perform a full range of work at all
exertional levels but with the following
nonexertional limitations: no contact with
the
public;
occasional
contact
with
supervisors
and
coworkers;
changes
in
workplace should be introduced gradually;
time off task can be accommodated by normal
breaks; SVP no greater than two; and
preferably repetitive, simple, and routine
tasks.
The record shows that the claimant
had the capacity to perform the above range
of unskilled work.
Dr. DeFrancisco saw the
claimant no more than once a year during the
period from the alleged onset date of April
1, 1997 through the date last insured of
June 30, 2002[;] the claimant took no
psychotropic medication during this period,
and Dr. DeFrancisco usually noted that the
claimant was alert, oriented, and doing well
(Exhibit 4F).
On April 16, 1999, Dr.
DeFrancisco noted that the claimant was as
“chipper” as ever, and he was willing to
provide
a
letter
indicating
that
the
claimant was competent to fly.
On May 8,
2000,
Dr.
DeFrancisco
noted
that
the
claimant was much happier and much less
stressed now that he was out of the DOC.
I cannot find the claimant’s allegations to
be fully credible. It is contrary to common
sense that a person who cannot handle stress
well would be competent to fly an airplane.
This fact alone diminishes the claimant’s
credibility. At the hearing, the claimant
admitted that he did not disclose his past
history of mental health problems when he
applied for the position of a flight crew
trainee
in
2000.
Moreover,
while
the

13

claimant testified that he has not worked as
an airline pilot since 2000, he apparently
indicated
that
he
was
working
as
a
commercial pilot when he was hospitalized
after a gunshot wound in October 2009
(Exhibit 2F).
In fact, there is no real
evidence the claimant ever flew a plane.
As for opinion evidence, only some weight is
given to Dr. DeFrancisco’s sworn statement
(Exhibit 10F).
Although Dr. DeFrancisco is
a treating medical source, his progress
notes during the period from the alleged
onset date of April 1, 1997 through the date
last insured of June 30, 2002 (Exhibit 4F),
only show that the claimant was disabled
from doing his past job as a correction
officer. They do not show that the claimant
was disabled from doing all work. Indeed,
Dr.
DeFrancisco
seemed
to
qualify
the
answers in his sworn statement as pertaining
to the DOC for the most part (Exhibit 10F).
(Id. at 19-21) (emphasis in original).
Following
disabled
letter

the

during
to

December

the

the
9,

disagreement

ALJ’s

relevant

Appeals
2011,

with

the

decision

period,

Council

in

which

ALJ’s

that

from
Dr.

decision

Plaintiff

Plaintiff
Dr.

stated

not

submitted

DeFrancisco

DeFrancisco
and

was

dated

noted
his

a

his

opinion

that, at the time that he determined that Plaintiff was unable
to continue to work as a correctional officer (in 1995), it was
also his opinion

at that time

disabled from all work.
expressed

his

belief

that Plaintiff was completely

(Id. at 274, 291).
that

the

ALJ

had

Dr. DeFrancisco

misinterpreted

his

treatment notes regarding his references to the Plaintiff doing

14

well

and

regarding

competent

to

fly

his

an

certification

airplane.

(Id.

that
at

the

Plaintiff

291).

The

was

Appeals

Council found the additional evidence did not provide a basis
for changing the ALJ’s decision.

(Id. at 2).

The Court now

considers the foregoing in light of the record in this case and
the issues on appeal.
1.

Issues
a. Whether the ALJ erred in not giving
controlling weight to Plaintiff’s
treating physician’s opinions?

Plaintiff

argues

that

the

ALJ

erred

in

not

giving

controlling weight to the opinions of his treating psychologist,
Dr. Robert DeFrancisco, contained in his sworn statement dated
January

2011.

In

the

January

2011

sworn

statement,

Dr.

DeFrancisco opined that in June 2002, Plaintiff could not handle
the routine demands of an ordinary work week and, thus, could
not work. 6
properly

(Tr. 281).

discounted

inconsistent

with

Dr.
the

The Commissioner counters that the ALJ
DeFrancisco’s
record

opinion

evidence

in

because

this

case

it

is

(more

precisely, with Dr. DeFrancisco’s own treatment records) related
to the period in question, i.e., the period from the onset date

6

Specifically, Dr. DeFrancisco stated: “I do not think [Mr.
Green] can handle the routine demands of an ordinary work week
with his problems.”
(Tr. 281).
When asked if that was his
opinion of Plaintiff’s condition in June 2002, Dr. DeFrancisco
stated, “Yes, it is.” (Id. at 282).

15

of April 1, 1997 through the date last insured of June 30, 2002.7
According

to

the

Commissioner,

while

the

record

evidence

supports Plaintiff’s claim that he was unable to perform his
work as a corrections officer/prison guard during the period in
question, the record does not support Plaintiff’s claim that he
was unable to perform all work activity prior to the expiration
of

his

insured

status

in

2002.

(Doc.

17

at

10).

Having

carefully reviewed the record in this case,8 the Court finds that
Plaintiff has failed to prove that he was disabled on or before
his last insured date.
As noted supra, a claimant seeking disability benefits must
prove that he was disabled on or before his last insured date,
which in this case is June 30, 2002.

Moore, 405 F. 3d at 1211.

As

notes

a

preliminary

matter,

the

Court

that

although

Dr.

DeFrancisco opined in January 2011 that, in June 2002, Plaintiff
could not handle the routine demands of an ordinary work week
and, thus, could not work, the record evidence pertaining to
7

The parties are in agreement that Plaintiff’s claim in this
case centers on the period of disability from April 1, 1997
through June 30, 2002. (Doc. 16 at 2-5, 12).

8

As discussed herein, the record in this case relating to
Plaintiff’s claim is extremely sparse.
State Agency reviewer,
Dr. Ellen Eno, Ph.D., noted that there was insufficient evidence
upon which to complete a Psychiatric Review Technique.
(Tr.
253).
For its part, the Court notes that, because the
Plaintiff’s claim relates only to his mental condition from 1997
to 2002, the Court must base its decision on the record evidence
related to that time period.

16

Plaintiff’s mental condition during the period in question (from
April 1997 to June 2002) is extremely limited.

Specifically,

the record consists of four pages of treatment notes from Dr.
DeFrancisco wherein he records four annual visits by Plaintiff
for the purpose of completion of a State disability form.

(Tr.

226-29).
Generally

speaking,

“[a]n

administrative

law

judge

must

accord substantial or considerable weight to the opinion of a
claimant’s treating physician unless good cause is shown to the
contrary.” Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir.
1985) (citations and internal quotation marks omitted).

“The

requisite ‘good cause’ for discounting a treating physician’s
opinion may exist where the opinion is not supported by the
evidence, or where the evidence supports a contrary finding.”
Hogan

v.

Astrue,

2012

U.S.

3155570, *3 (M.D. Ala. 2012).

Dist.

LEXIS

108512,

*8,

2012

WL

“Good cause may also exist where

a doctor’s opinions are merely conclusory, inconsistent with the
doctor’s medical records, or unsupported by objective medical
evidence.”

Id.

“[T]he weight afforded a treating doctor’s

opinion must be specified along with ‘any reason for giving it
no weight, and failure to do so is reversible error.’”

Williams

v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009); see also Phillips v.

Barnhart, 357 F.3d 1232,

1241 (11th Cir. 2004) (“When electing to disregard the opinion

17

of a treating physician, the ALJ must clearly articulate [his or
her] reasons.”).
Additionally, a retrospective medical opinion, such as “a
physician’s post-insured-date opinion that the claimant suffered
a

disabling

condition

prior

to

the

insured

date,”

is

to

be

discounted if it is inconsistent with the medical evidence that
predates the last insured date.

Mason v. Commissioner of Soc.

Sec., 430 F. Appx. 830, 832 (llth Cir. 2011).

In other words, a

retrospective

deference

diagnosis

is

not

entitled

to

“unless

corroborated by contemporaneous medical evidence of a disabling
condition” during the insured period.

Id.

The record in this case shows that Dr. DeFrancisco provided
a sworn statement dated January 21, 2011, in which he indicated
that he had begun treating Plaintiff in 1995 for problems that
Plaintiff was having at work as a prison guard for the State
Department

of

Corrections.

(Tr.

274).

Specifically,

Dr.

DeFrancisco stated that Plaintiff was having problems at work as
a result of altercations with the warden and his co-workers,
that

Plaintiff

others,

and

had

that

in

a

very
the

erratic

1990s,

he

way

of

interacting

diagnosed

Plaintiff

with
with

bipolar disorder and impulsive control disorder and determined
that Plaintiff was unable to work.

(Id. at 274-75, 278).

Dr.

DeFrancisco further opined that in June 2002 (prior to the date
Plaintiff was last insured), Plaintiff would not have been able

18

to handle the routine demands of an ordinary work week and that
Plaintiff remains “psychiatrically disabled and unable to work.”
(Id. at 281, 284).
At issue in this case is Dr. DeFrancisco’s opinion that, in
June 2002 (prior to the date last insured), Plaintiff would not
have been able to handle the routine demands of an ordinary work
week with his problems.
DeFrancisco’s

opinion

(Id. at 281).

is

inconsistent

The ALJ found that Dr.
with

his

own

treatment

records, and thus, it was only entitled to “some weight.”
at 21).

(Id.

Having reviewed the record at length, the Court agrees.

Contrary to Dr. DeFrancisco’s opinion (in the January 2011
sworn statement) that in June 2002, Plaintiff was unable to
perform any work (id. at 281-82), his treatment notes do not
reflect that he ever opined, during the time at issue, that
Plaintiff could no longer perform any work.

For instance, in

his treatment notes dated November 28, 1995, Dr. DeFrancisco
stated, “[Mr. Green] may very well indeed have problems working
for the Department of Corrections and he may need to seek other
employment;”

“he

does

seem

to

have

a

rather

demanding

personality [and] seems to be rather controlling but I don’t
know that any of this precludes him from working.” (Id. at 22324) (emphasis added).

In addition, as discussed herein, Dr.

DeFrancisco’s

notes

that,

after

treatment
being

disabled

dated
from

19

April
working

16,

1999,

as

a

reflect

corrections

officer, Plaintiff pursued a career as an airplane pilot, and
Dr.

DeFrancisco

Plaintiff

was

indicated

competent

his

to

willingness

fly

airplanes.

to
(Id.

certify
at

that

227-28).

These treatment notes are inconsistent with Dr. DeFrancisco’s
opinion, expressed more than a decade later, that Plaintiff was
precluded from all work prior to January 2002, the date last
insured.

(Id. at 281-82).

Furthermore,

as

the

ALJ

articulated,

Dr.

DeFrancisco’s

treatment records show that, during the relevant period from the
alleged onset day of April 1, 1997 through the date last insured
of June 30, 2002, Dr. DeFrancisco saw Plaintiff only four times,
that is, once a year for four years, for the express purpose of
updating Plaintiff’s State disability form. 9
Other

than

those

four

visits,

Plaintiff

(Id. at 226-29).

sought

no

treatment

whatsoever from Dr. DeFrancisco, or any other medical provider,
during the period in question, despite his claim that his mental
health conditions were debilitating.
and

the

record

reflects,

medication during this period.
treatment

belies

Plaintiff’s

Moreover, as the ALJ found

Plaintiff

no

psychotropic

(Id. at 20, 226).

This lack of

claim

9

of

took

debilitating

symptoms

In treatment notes dated March 24, 1998, Dr. DeFrancisco
stated, “George came in for [a] scheduled appointment today. . .
. I have not seen him in about a year to a year and a half. He
comes in for a disability update to complete out a form.
I
accomplished this for him. . . . I filled out his form and he
will call me on a PRN basis.” (Tr. 226).

20

prior to June 2002.
Also, as the ALJ articulated, on the four occasions that
Dr. DeFrancisco did see Plaintiff during the relevant period, he
noted on all but one occasion (the May 2001 visit) that the
claimant was doing well.

(Id. at 226-27).

In his treatment

notes dated March 24, 1998, Dr. DeFrancisco stated, “George came
in

for

[a]

scheduled

appointment

today.

Today’s

session

indicates that George is doing well. . . . He’s not on any
medication

at

this

particular

time.

He

appears

to

continually grandiose but actually [is] quite harmless.”

be
(Id.

at 226).
At Plaintiff’s next visit more than one year later,

on

April 16, 1999, Dr. DeFrancisco noted, “George comes in for his
annual mental health check-up.

He continues to feel like he

cannot work at the Department of Corrections. This has caused
him a lot of heartache in the past. . . .
is

doing

quite

well.

chipper as ever.

.

.

Mentally

he’s

Other than that, he
alert,

oriented,

as

He is a little grandiose still but other than

that he seems to be fairly content and reasonable. . . . At any
rate, he is doing well and we will see him on his yearly checkup

again.”

DeFrancisco

(Id.

at

indicated

227).
his

It

is

willingness

at
to

this

visit

provide

that

Dr.

Plaintiff

a

letter certifying that Plaintiff was competent to fly airplanes.
(Id.).

Specifically, Dr. DeFrancisco stated in his treatment

21

records, “[Mr. Green] may need a letter from me indicating he is
competent to fly.
one.”10

I told him I would do this if he should need

(Id.).

Plaintiff’s next visit was more than one year later, on May
8, 2000, at which time Dr. DeFrancisco noted, “[f]irst time I
have seen George since April 16, 1999. Basically he continues
with

the

same

problems

as

we

have

been

seeing

Anxiety and GI problems as related to work.

him

before.

He continues to

feel as if he cannot work for the DOC. . . George continues to
work with his flight school and he is much happier and much less
stressed now that he is out of the DOC.”

(Id. at 228).

At his last visit during the relevant period, on May 29,
2001, Plaintiff reported to Dr. DeFrancisco that he was unable
to find work with an airline.

(Id. at 229).

Dr. DeFrancisco

commented that he was not surprised that Plaintiff was unable to
secure

a

job

with

an

“somewhat grandiose.” 11

airline,
(Id.).

stating

that

Plaintiff

is

Dr. DeFrancisco further noted

that Plaintiff was stable and oriented.

He instructed Plaintiff

10

With respect to this particular treatment note, the Court
agrees with the ALJ’s observations that the occupation of
airplane pilot is “by definition [a] high stress job[]” and that
it “is contrary to common sense that a person who cannot handle
stress well would be competent to fly an airplane.”
(Tr. 1920).

11

Dr. DeFrancisco also commented that Plaintiff “continues with
a marginal existence.” (Tr. 229).

22

to return as needed.

(Id.).

The record reflects that Plaintiff did not return to see
Dr. DeFrancisco until three years later, on May 20, 2004, which
was two years after the expiration of his insured status.

Dr.

DeFrancisco’s treatment notes reflect that the purpose of this
visit was the completion of the State disability form.

(Id. at

230). During this visit, Dr. DeFrancisco noted that Plaintiff
left the Department of Corrections in late 1995/early 1996 with
a diagnosis of personality disorder, that he tended to be very
moody and anxious, and that he had difficulties with personal
relationships and intense anger. (Id.). Dr. DeFrancisco opined
that “I don’t think he can handle stress related activities,
certainly as it is applied to his former job as a correction
officer.
in

I certainly wouldn’t feel comfortable with him being

charge

however
stated.”

of

he

inmates

does

have

at
a

this

point.

pervasive

He

is

non-psychotic,

personality

disorder

as

(Id.).

As the ALJ found, Dr. DeFrancisco’s treatment notes during
the

relevant

doing

well

time

without

period

reflect

medication,

that

and

Plaintiff

competent

to

was

stable,

handle

high

stress jobs such as flying airplanes. In fact, Dr. DeFrancisco’s
treatment notes reveal that it was not until April 2010 that Dr.
Francisco indicated that Plaintiff “now . . . should apply for
social security” disability.

(Id. at 232).

23

Specifically, Dr.

DeFrancisco noted on April 30, 2010, “[t]his is the first time I
have seen George in several years. . . . He recently got shot
and can not use his right hand very much. . . . He is filing for
social security as well. . . . George has always been as stated
mentally

and

physically

changed at all.

sick

to

some

degree.

This

has

not

He remains unstable to work in a correctional

officers job and I think now he also should apply for Social
Security and I think he has done that.”12

(Id. at 232).

In sum, the record supports the ALJ’s finding that

the

retrospective opinions expressed in Dr. DeFrancisco’s January
2011 sworn statement are inconsistent with his contemporaneous
treatment records from the period in question; thus, they are
not

entitled to deference.

See Mason, 430 F. Appx. at 832.

The fact that Dr. DeFrancisco’s retrospective opinions came nine
years

after

the

relevant

their reliability.

treatment

period

further

diminishes

While the record supports Dr. DeFrancisco’s

opinion that Plaintiff was unable to perform his past work as a
corrections officer/prison guard prior to June 2002, it does not
support his opinion that Plaintiff was incapable of performing
any work prior to June 2002, the date last insured.

12

Dr. DeFrancisco’s claim in his sworn statement that he
“encouraged [Plaintiff] to apply for social security back in the
90’s” (Tr. 280-81) is likewise inconsistent with this statement
in his April 30, 2010, treatment records that “I think now he
also should apply for Social Security.” (Id. at 232).

24

Having
Court

carefully

finds

DeFrancisco’s
Plaintiff

was

that

reviewed

the

record

in

the

ALJ

gave

appropriate

opinions

and

that

the

not

disabled

prior

to

ALJ’s
the

this

case,

weight

to

conclusion

expiration

insured status is supported by substantial evidence.

the
Dr.
that

of

his

Simply

put, the record is devoid of any evidence demonstrating that
Plaintiff had a disabling condition during the insured period.
Therefore, Plaintiff’s claim is without merit.
B. Whether the Appeals Council erred in
failing to properly review the opinions of
Plaintiff’s
treating
psychologist,
Dr.
Robert DeFrancisco?
Plaintiff argues that the Appeals Council erred in failing
to properly review the opinions of Dr. DeFrancisco set forth in
the letter 13 submitted to the Appeals Council dated December 9,
2011. (Doc. 16 at 9-10; Tr. 291).

According to Plaintiff, in

Dr. DeFrancisco’s December 9, 2011 letter, he disputes the ALJ’s
finding that the opinions set forth in Dr. DeFrancisco’s January
2011 sworn statement are “at odds” with his treatment notes. 14

13

Plaintiff refers to the letter as a sworn statement; however,
the letter is unsworn. (Tr. 291-92).

14

In the December 9, 2011, letter, Dr. DeFrancisco states that
it is common for patients with Plaintiff’s diagnoses to appear
chipper and well-adjusted on examination, and it simply means
that they are responding to treatment and avoiding the
situations and stress which cause them difficulty.
(Tr. 291;
Doc. 16 at 10). Dr. DeFrancisco also states in the letter that
it should not be inferred that it was his opinion that Plaintiff
was only disabled from his past work as a corrections officer,
25

(Doc. 16 at 10).

While Plaintiff acknowledges that the Appeals

Council considered Dr. DeFrancisco’s December 2011 letter, he
argues that the Council erred in concluding that it did not
provide a basis for changing the ALJ’s decision.

(Id.; Tr. 2).

The Commissioner counters that the additional evidence presented
to the Appeals Council not warrant reversal and does not change
the fact that substantial evidence supports the ALJ’s decision.
(Doc. 17 at 14).

Having carefully reviewed the record in this

case, the Court finds that the Appeals Council did not err in
finding

that

Dr.

DeFrancisco’s

December

2011

letter

did

not

provide a basis for changing the ALJ’s decision.
“With a few exceptions, the claimant is allowed to present
new evidence at each stage of [the] administrative process.”
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1261
(11th

Cir.

2007).

“The

Appeals

Council

must

consider

new,

but rather, it was his opinion at that time (1995) that
Plaintiff was “not able to work on a consistent basis” anywhere.
(Tr. 291).
Dr. DeFrancisco also attempts to explain his
certification in 1999 that Plaintiff was competent to fly
airplanes, stating that while he certified Plaintiff as
competent to fly, he did not certify that he could handle the
stress accompanying such a job. (Id.). The Court rejects that
argument as contrary to common sense. A certification by a
psychologist that his patient is competent to fly an airplane
would necessarily encompass the psychologist’s opinion that the
patient could handle the stress accompanying that task.
Dr.
DeFrancisco was not asked to provide his opinion concerning
Plaintiff’s competency to operate the controls and instruments
of
the
aircraft.
His
certification
clearly
referred
to
Plaintiff’s mental competency to handle the stress and pressure
of the job.

26

material, and chronologically relevant evidence and must review
the case if ‘the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently
of record.’” Id. (quoting 20 C.F.R. § 404.970(b)). “[W]hen a
claimant properly presents new evidence to the Appeals Council,
a

reviewing

renders

court

the

denial

must

consider

whether

that

of

benefits

erroneous.”

new

evidence

Id.

at

1262.

Evidence is material if it is “relevant and probative so that
there

is

a

reasonable

possibility

administrative outcome.”

that

it

would

change

the

Caulder v. Bowen, 791 F. 2d 872, 877

(llth Cir. 1986).
In

this

case,

Plaintiff

properly

submitted

the

December

2011 letter from Dr. DeFrancisco to the Appeals Council as it
was generated after the ALJ’s decision dated November 15, 2011.
In

the

letter,

Dr.

DeFrancisco

takes

issues

with

the

ALJ’s

interpretation of his treatment notes during the time period in
question.

The Court has reviewed Dr. DeFrancisco’s December

2011 letter and finds that the Appeals Council did not err in
evaluating the new evidence.
At

the

treatment

outset,

records

DeFrancisco’s
December

2011

the

Court

speak

for

retrospective
letter,

notes

themselves.

comments

which

that

are

and

Dr.

DeFrancisco’s

Therefore,
opinions

inconsistent

Dr.

in

the

with

his

contemporaneous treatment records created years earlier, were

27

properly

rejected.

See

retrospective

medical

inconsistent

with

Mason,

opinion

the

430

is

medical

to

F.

be

Appx.

at

discounted

evidence

that

832

(a

it

is

if

predates

the

claimant’s last insured date); Crafton v. Commissioner of Soc.
Sec.,

2014

U.S.

Dist.

LEXIS

23580

(M.D.

Fla.

Feb.

3,

2014)

(Appeals Council did not err in its evaluation of Plaintiff’s
new

evidence

where

the

evidence

constituted

a

retrospective

opinion that was not consistent with the medical evidence that
pre-dated the claimant’s last insured date and, thus, was not
material).
As in the preceding cases, the undersigned in this case has
identified no medical evidence in the record pre-dating June 30,
2002,

the

date

DeFrancisco’s
mental

last

insured,

retrospective

limitations

during

that

opinions
the

period

would

corroborate

regarding
in

Dr.

Plaintiff’s

question,

nor

Plaintiff identified any such corroborating evidence.

has

To the

contrary, Dr. DeFrancisco’s statements and opinions set forth in
the

December

9,

statements

and

statement,

which

rejected

as

2011

letter

opinions
the

are

contained

Court

inconsistent

has

with

merely
in

his

already
his

cumulative
January
found

of

2011

were

contemporaneous

the
sworn

properly
treatment

notes during the relevant period.
Therefore, for each of these reasons, the December 2011
letter

submitted

to

the

Appeals

28

Council

does

not

warrant

reversal, and Plaintiff’s claim must fail.
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 30th day of September, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

29