Sullivan v. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying plaintiff benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 5/20/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JULIA OVERSTREET SULLIVAN,

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

Civil Action No. 13-00401-N

MEMORANDUM OPINION AND ORDER
Plaintiff Julia Overstreet Sullivan 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 disability insurance benefits (“DIB”)
and supplemental security income (“SSI”).

The parties have consented to the

exercise of jurisdiction by, and this case has been ordered referred to, the
undersigned United States Magistrate Judge for all proceedings in this Court
pursuant to 28 U.S.C. § 636(c). (See Doc. 24.)
Upon consideration of the administrative record (“R.”) (Doc. 17), Sullivan’s
brief (Doc. 18), the Commissioner’s brief (Doc. 21), and the arguments presented at
the hearing held May 13, 2014 (cf. Doc. 22), the Court has determined that the
Commissioner’s decision denying Sullivan benefits should be AFFIRMED.1

Any appeal taken from this memorandum opinion and order and
simultaneously entered separate judgment shall be made directly to the Eleventh Circuit
Court of Appeals. (See Doc. 24.)
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I.

Procedural Background

Sullivan filed applications for DIB and SSI on February 9, 2010 (see R.
271-282), alleging a disability onset date of December 12, 2009 (see R. 271, 278).
Her applications were initially denied. (See R. 152-157.)

Hearings were conducted

before an Administrative Law Judge May 13, 2011 (see R. 109-126) and September 1,
2011 (see R. 82-108).2 On January 17, 2012, the ALJ issued a decision finding
Sullivan not disabled (R. 60-81), and she sought review from the Appeals Council.
The Appeals Council issued a decision declining to review the ALJ’s determination
on July 31, 2013 (see R. 1-8)—making that 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 August 6, 2013 (see Doc. 1).3
II.

Standard of Review and Claims on Appeal

In all Social Security cases, a plaintiff (sometimes referred to herein as a
claimant) 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 that burden has been met, and thus a claimant has proven that

As provided in the ALJ’s decision (see R. 63), at the initial hearing, “it was
determined that the record required development, in order to further evaluate claimant’s
physical and mental functioning, and she was scheduled for consultative examinations.”
2

The administrative record also contains a separate ALJ determination, dated
January 20, 2010, denying Sullivan benefits for a period beginning April 8, 2008. (See R.
130-144.) The Appeals Council also declined to review this ALJ’s determination, on
February 18, 2011. (See R. 145-149.) For the sake of completeness, this is also not
Sullivan’s first appeal to this Court. In Civil Action No. 08-00596-B, Magistrate Judge
Bivins affirmed the Commissioner’s decision to deny Sullivan benefits for a period beginning
August 1, 2005. (See generally Civil Action No. 08-00596-B, Doc. 17.)
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2

he or she is disabled, the examiner (most often an ALJ) 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. An ALJ, in turn,

uses a five-step sequential evaluation to determine whether the
claimant is disabled, which considers: (1) whether the claimant is
engaged in substantial gainful activity; (2) if not, whether the claimant
has a severe impairment; (3) if so, whether the severe impairment
meets or equals an impairment in the Listing of Impairments in the
regulations; (4) if not, whether the claimant has the [residual functional
capacity, or] RFC[,] to perform her past relevant work; and (5) if not,
whether, in light of the claimant’s RFC, age, education and work
experience, there are other jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. App’x 868, 870 (11th Cir. Feb. 9,
2012) (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f);
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted).
If a plaintiff proves that he or she cannot do his or her past relevant work, it
then 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.

Id.;

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Finally, but importantly, although “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 Commissioner’s decision

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to deny a 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. Barnhart, 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)) (emphasis added).
On appeal to this Court, Sullivan asserts two—analytically similar—reasons
why the Commissioner’s decision denying her benefits is in error (i.e., not supported
by substantial evidence):
(1)

The ALJ erred by failing to give adequate and controlling weight to the
opinions of Sullivan’s treating physician, Dr. Evans; and

(2)

The ALJ erred by failing to consider and weigh the full report of Dr.
Varden—that is, the ALJ utilized the portion of his report that tended
to support a finding of not disabled and ignored the potion that tended
to support a finding of disability.

The Court will address each reason in turn.

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III.
A.

Analysis

The ALJ has articulated appropriate reasons, supported by
substantial evidence, to not give the opinions of Sullivan’s
treating physician controlling weight.

Sullivan contends her treating physician since 2002 has been Carla J. Evans,
D.O. (See Doc. 18 at 3; see also R. 373.)

Dr. Evans’s records, or records from her

practice, appear at R. 373-374, 398-403, 404-405, 415-425, 487-491, and 501-516.
Sullivan contends that two documents (R. 373-374 and R. 404-405) titled “Report of
Disability, Part I: Statement by Examining Physician,” which appear to be part of
paperwork from the Retirement Systems of Alabama (“RSA”) and also appear to be
completed by Dr. Evans, are opinions of a treating physician entitled to controlling
or at least substantial weight. (See Doc. 18 at 2-5.) See also 20 C.F.R. § 416.927(c)
(“Regardless of its source, we will evaluate every medical opinion we receive.
Unless we give a treating source’s opinion controlling weight . . . , we consider
[several] factors in deciding the weight we give to any medical opinion.”).
As to treating source opinions, the law in this Circuit is, moreover, that they
“must be given substantial or considerable weight unless ‘good cause’ is
shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997)[.4] Good cause is shown when the: “(1) treating physician’s
“In every case, a treating physician will have greater access to the medical
records, and more familiarity with the patient and his condition than will an examining
physician or a physician who merely reviewed the record evidence. This is the reason for
the treating physician rule whereby greater deference is usually accorded to the opinion of a
treating physician than the opinion of a physician who has only examined the patient one
time or the opinion of a physician who has merely reviewed the medical records. This is the
reason the courts require an ALJ to provide specific, legitimate reasons for discounting a
treating physician’s opinion.” Vine v. Astrue, Civil Action No. 09-2212-KHV-GBC, 2010 WL
2245079, at *11 (D. Kan. May 11, 2010) (internal citations omitted), report and
recommendation adopted, 2010 WL 2245076 (D. Kan. June 2, 2010).
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5

opinion was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records.” Phillips, 357 F.3d
at 1241. Where the ALJ articulate[s] specific reasons for failing to
give the opinion of a treating physician controlling weight, and those
reasons are supported by substantial evidence, there is no reversible
error. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
Gilabert v. Commissioner of Soc. Sec., 396 Fed. App’x 652, 655 (11th Cir. Sept. 21,
2010)

(per

curiam)

(some

internal

citations

modified);

accord

Evans

v.

Commissioner, Soc. Sec. Admin., 551 Fed. App’x 521, 524 (11th Cir. Jan. 6, 2014)
(per curiam).
The ALJ’s discussion of Dr. Evans’s opinions begins as follows:
The undersigned also acknowledges the opinions provided by the
claimant’s treating physician, Charla Evans, D.O., in conjunction with
her ongoing evaluations of the claimant for State disability benefits.
(Exhibits C4F [R. 373-374] and C9F [R. 404-405]). In December 2009,
Dr. Evans opined that the claimant is permanently “disabled” and
“totally incapacitated for further performance” of her prior job duties as
a bus driver, officer worker, and building maintenance. (Exhibit C9F).
Dr. Evans indicates that the claimant’s panic disorder, major
depression, edema and hypertension[ ] cause poor concentration,
depressed mood, poor judgment and swollen legs. These symptoms
were purported to restrict the claimant from driving, operating
machinery, and prolonged standing/walking; and “no” reasonable
accommodations could be made to accommodate her problems. This
opinion is similar to Dr. Evans’ prior finding in November 2009.
(Exhibit C4F).
(R. 73.)
The ALJ determined that “[n]o controlling weight [should be] given to [Dr.
Evans’s] opinions because they are inconsistent with the other objective medical
evidence of record”—objective findings and opinions from Drs. Varden, Starkey,
Davis, and Duke, which the ALJ concluded, “directly contradict” Dr. Evans’s finding

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of “total disability and are consistent with the findings that the claimant can
perform less than the full range of light and unskilled work activity.”

(R. 73.)

This

determination presents good cause for the ALJ’s decision not to give Dr. Evans’s
opinion substantial or controlling weight.

See, e.g., Evans, 551 Fed. App’x at 524

(reiterating that “[g]ood cause exists when” a treating physician’s “opinion was not
bolstered by the evidence” or “the evidence supported a contrary finding” (citing
Lewis, 125 F.3d at 1440)); Phillips, 357 F.3d at 1241 (same); see also Madison v.
Astrue, No. 08-1243-JTM, 2009 WL 1873811, at *5 (D. Kan. June 30, 2009) (“An ALJ
may give less weight to the opinion of a physician when it is inconsistent with the
other substantial evidence in the record.” (citing Pisciotta v. Astrue, 500 F.3d 1074,
1078 (10th Cir. 2007))); Lewis v. Astrue, No. CA 12–00201–C, 2012 WL 5868615, at
*8 (S.D. Ala. Nov. 20, 2012) (same).
The ALJ further discounted Dr. Evans’s opinions because the doctor’s own
treatment notes dated after her opinions “show only routine and conservative
treatment, and that the claimant’s impairments appear generally stabilized with
this regimen.”

(R. 73 (citing Exhibit C21F [R. 487-491], records ranging from April

2011 to July 2011).)

That a treating source’s opinions are “inconsistent with the

doctor’s own medical records” is clearly also good cause to not give those opinions
substantial or controlling weight.

Evans, 551 Fed. App’x at 521; accord Gilabert,

396 Fed. App’x at 655; Phillips, 357 F.3d at 1241; Lewis, 125 F.3d at 1440; see also
Patterson v. Astrue, No. 1:07–cv–00129–MP–AK, 2008 WL 4097461, at *1 (N.D. Fla.
Aug. 27, 2008) (“[A] contradiction between a treating physician’s opinion and her
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own medical records has been held to constitute one possible sufficient ground for
rejecting a treating physician’s opinion.”).
The ALJ also offered a third reason to discount Dr. Evans’s opinions—a
reason echoed at oral argument by counsel for the Commissioner—“[a] statement by
a medical source that the claimant is ‘disabled’ or ‘unable to work’ does not mean
that the [ ] claimant will be determined to be disabled as that term is defined in the
Act[.]”

(R. 73 (citations omitted).) Indeed, it appears Dr. Evans’s opinions were

submitted to RSA in connection with Sullivan’s ongoing disability from the Mobile
County Public School System in 2005.

(See R. 73, 87.)

Although a determination of disability by another agency is not binding
on the Commissioner, the Social Security Regulations plainly state that
a claimant may bring evidence of an impairment to the Commissioner’s
attention
including
“[d]ecisions
by
any
governmental
or
nongovernmental agency about whether [an individual is] disabled . . .
.” 20 C.F.R. § 404.1512(b)(5). The weight that the Commissioner
should afford this evidence differs by circuit, but in the Eleventh
Circuit the finding of disability by another agency is entitled to great
weight. Falcon v. Heckler, 732 F.2d 827, 831 (11th Cir.1984) (citing
Bloodsworth v. Heckler, 703 F.2d 1233, 1241 (11th Cir. 1983)).
Freese v. Astrue, No. 8:06-CV-1839-T-EAJ, 2008 WL 1777722, at *2 (M.D. Fla. Apr.
18, 2008) (footnote omitted); see also 20 C.F.R. § 404.1504 (“A decision by any
nongovernmental agency or any other governmental agency about whether you are
disabled . . . is based on its rules and is not our decision about whether you are
disabled . . . . We must make a disability . . . determination based on social security
law.

Therefore, a determination made by another agency that you are disabled . . .

is not binding on us.”).
Here, however, the ALJ has been presented with a medical source opinion
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submitted in support of another agency’s disability determination, and it appears
the ALJ accepted it for what it is (and, based on the ALJ’s decision, afforded what it
said great weight). Dr. Evans’s opinion was that Sullivan could not perform her
duties for the school system, described in the form as “[d]riving buses, office work,
yard work on building maintenance[, and] school bus helper inspector.”

(R. 373.)

The ALJ agreed, and found that Sullivan “is unable to perform any past relevant
work[,]” described in the Commissioner’s decision as “a bus driver (DOT Code
913.463-019, medium, semi-skilled); and janitor (DOT Code 382.664-010, medium,
semi-skilled).”
B.

(R. 74.)

The ALJ also properly considered Dr. Varden’s opinion.

Sullivan’s second asserted error concerns the ALJ’s treatment of the opinion
of Dr. Varden, a consulting examiner.

At the conclusion of Dr. Varden’s opinion,

under “Plan,” he stated,
I believe the patient has a myofascial type pain syndrome if anything
and her limitations seem to be more related to her depression/anxiety
and her morbid obesity. Her perceived limitations are much
greater as evidenced by the medical source opinion. She’s not in
usage of any assistive devices currently. I would suspect that she
should be able to do most light work-related activities sitting standing
walking carry light objects etc. Medically overall she appears to be
fairly stable at present time in my opinion.
(R. 467 (emphasis added).)

Attached to Dr. Varden’s opinion is, indeed, a medcal

source opinion (see R. 469-474), which clearly instructs, “[t]o determine this
individual’s ability to do work-related activities on a regular and continuous basis,
please give us your opinion for each activity shown below.”

(R. 469 (emphasis

added). And, almost without a doubt, the signature on the last page (R. 474) is Dr.
9

Varden’s. But the limitations imposed therein are not consistent with Dr. Varden’s
conclusion, above.
Sullivan contends that the ALJ considered and assigned weight to aspects of
Dr. Varden’s opinion that concluded Sullivan was not disabled (i.e., his conclusion,
under “Plan”), but ignored aspects of Dr. Varden’s opinion that supported a finding
of disability (i.e., the medical source statement) and accuses the ALJ of “judicial
cherry-picking . . . .”

(Doc. 18 at 5-7.) Undeniably, as this Court has recently twice

held,
“[i]nherent in the judging function of an ALJ is the need to weigh and
evaluate the range of medical opinions appearing in the record.”
Lawrence v. Astrue, No. 5:12cv148/CJK, 2013 WL 359540, at *7 (N.D.
Fla. Jan. 30, 2013). Thus, “an ALJ may not simply pick and choose
among medical evidence without explanation.” Id. An ALJ must,
instead, “state with particularity the weight given to different medical
opinions and the reasons therefor.” Winschel v. Commissioner of Soc.
Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz v. Bowen,
825 F.2d 278, 279 (11th Cir. 1987)).
McAfee v. Colvin, Civil Action No. 13–00299–N, 2014 WL 1017893, at *4 (S.D. Ala.
Mar. 17, 2014) (quoting Smith v. Colvin, Civil Action No. 2:13–00275–N, 2014 WL
518057, at *3 (S.D. Ala. Feb. 10, 2014)).
Here, however, the ALJ did not “simply pick and choose among” Dr. Varden’s
opinion “without explanation.”

Instead, she explained how she treated the clear

inconsistency within Dr. Varden’s opinion (an inconsistency he clearly explained, at
R. 467):
The [ALJ] also acknowledges the “Medical Source Statement” . . .
completed by Dr. Varden, in conjunction with his examination. No
weight is given to this form because it was based upon the claimant’s
subjective complaints and is inconsistent with Dr. Varden’s
10

examination findings and narrative opinion. Dr. Varden specifically
noted that the claimant’s “perceived limitations are much greater as
evidenced by the medical source opinion.”
(R. 71.)
The undersigned agrees with counsel for Sullivan—as he stated during oral
argument—that Dr. Varden’s rather unorthodox approach with regard to the
medical source statement is potentially confusing, and it probably is bad policy for
the Commissioner to allow a consulting examiner to complete such a statement
based on the claimant’s own impressions—especially where the form instructs the
physician that he or she is to provide “your opinions for each activity listed below.”
The undersigned finds, however, that the ALJ in this case fulfilled her duty with
regard to the treatment of such evidence. And her treatment of this evidence is due
to be affirmed.
IV.

Conclusion

Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Sullivan benefits be AFFIRMED.

DONE and ORDERED this the 20th day of May, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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