Mitchell v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 3/26/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TASHA RENAE MITCHELL,

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

CIVIL ACTION 13-0402-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for disability insurance benefits (Docs. 1, 13).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 18).
argument was heard on March 24, 1014.

Oral

Upon consideration of the

administrative record, the memoranda of the parties, and oral
argument, it is ORDERED that the decision of the Commissioner be
AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the administrative hearing, Plaintiff was
thirty-four years old, had completed a college education (Tr.
43), and had previous work experience as a salon attendant,
general office clerk, and human resources clerk (Tr. 46).

In

claiming benefits, Mitchell alleges disability due to chronic
fracture of the left foot and major depressive disorder (Doc. 13
Fact Sheet).
The Plaintiff filed an application for disability benefits
on July 19, 2010 (Tr. 111-12; see also Tr. 24).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that although Mitchell could not return to her
past relevant work, there were specific sedentary jobs that she
could perform (Tr. 24-32).

Plaintiff requested review of the

hearing decision (Tr. 20) by the Appeals Council, but it was
denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not

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supported by substantial evidence.
alleges that:

Specifically, Mitchell

(1) The ALJ failed to properly consider the

Veteran Administration’s (hereinafter VA) finding that she was
partially disabled; (2) the ALJ did not properly consider the
conclusions of an examining physician; (3) the ALJ did not
consider all of the evidence of record; and (4) the ALJ’s
findings regarding her mental impairments are contradictory
(Doc. 13).

Defendant has responded to—and denies—these claims

(Doc. 15).
Mitchell’s first claim is that the ALJ failed to properly
consider the VA’s finding that she was partially disabled (Doc.
13, pp. 2-5).

Plaintiff points to a VA decision, on June 4,

2010, finding her “70 percent disabled due to her service
connected condition of major depressive disorder as of September
24, 2009 . . . [and] 10 percent disabled due to her service
connected condition of chronic left foot extensor tendonitis as
of October 1, 2001,” resulting in a combined 70 percent
disability rating (Doc. 13, p. 3).
Social Security regulations state as follows:
A decision by any nongovernmental
agency or any other governmental agency
about whether you are disabled or blind is
based on its rules and is not our decision
about whether you are disabled or blind. We
must make a disability or blindness
determination based on social security law.
Therefore, a determination made by another

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agency that you are disabled or blind is not
binding on us.
20 C.F.R. § 404.1504 (2013).

The Eleventh Circuit Court of

Appeals has acknowledged this principle, though holding that
another’s agency’s determination of disability is entitled to
great weight.

Bloodsworth v. Heckler, 703 F.2d 1233, 1241

(1983).
This claim is without merit.

Mitchell’s last insured date,

for disability benefits, was June 30, 2005 (see Tr. 26).
Plaintiff admits as much in her Fact Sheet (see Doc. 13).

The

evidence on which Mitchell relies is dated June 4, 2010, nearly
five years too late.

Nevertheless, the Court notes that the ALJ

reviewed the medical evidence from the relevant time period
regarding her depression and left foot impairment and found them
severe, but not disabling (Tr. 29-30).

As the evidence

Plaintiff cites does not state that it relates to a time before
her insurance status expired, even were the ALJ to have accepted
the VA’s disability findings as her own, it would have been of
no benefit to Mitchell.

The Court finds no error in the ALJ’s

failure to acknowledge—and credit—this evidence as it was
irrelevant to the query before her.
Plaintiff next claims that the ALJ did not properly
consider the conclusions of an examining physician, Dr. Joseph
G. Law, Jr. (Doc. 13, pp. 5-6).

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It should be noted that

"although the opinion of an examining physician is generally
entitled to more weight than the opinion of a non-examining
physician, the ALJ is free to reject the opinion of any
physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);1 see
also 20 C.F.R. § 404.1527 (2013).

On April 29, 2003, Dr. Law performed an examination for the
VA “for assessment of aptitudes, achievement, personality and
temperament” (Tr. 508; see generally Tr. 508-10).

Law was to

assess Mitchell’s “ability to cope with the day to day stresses
of employment, participate in vocational rehabilitation efforts,
and determine feasibility for employment or training” (id.).
Law administered the Woodcock Johnson III Tests of Achievement
on which Plaintiff scored eight-grade equivalency in letter-word
identification, reading fluency, math calculation, and passage
comprehension and a sixth-grade equivalency in spelling.
Mitchell also took the Wechsler Adult Intelligence Scale-III and
scored within the average range of intelligence which Law
thought was a valid measure of her ability; he did express the
opinion that her IQ score could have been ten points higher if
she had been on medication to improve her attention span.

The

1The Eleventh Circuit, in the en banc decision Bonner v.

City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted
as precedent decisions of the former Fifth Circuit rendered prior
to October 1, 1981.

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Tester noted that the scores indicated that Plaintiff had a
learning disability.

Law’s impression was that Mitchell had

mild, recurrent, major depressive disorder, post traumatic
stress disorder, attention deficit hyperactivity disorder, a
reading disorder, and a math disorder.

He expressed the opinion

that Plaintiff had “a serious employment handicap and [would]
spiral down into very serious depression necessitating
psychiatric hospitalization [without] successful intervention”
(Tr. 510).
In her determination, the ALJ reviewed Law’s report but did
not give his conclusions as much weight as other evidence of
record as he was “not a Psychologist, but ha[d] a Doctorate in
Education” (Tr. 30).

The ALJ went on to note that Plaintiff had

been examined by mental health professionals at the VA.
Mitchell argues that the ALJ cherry-picked the evidence,
referencing only the parts of Law’s report that supported a
finding that she was not disabled while ignoring those parts
that supported disability (Doc. 13, p. 6).

Specifically,

Plaintiff cites the following:
For example, Dr. Law found Plaintiff to
suffer with sad moods, decreased interest in
activities, nightmares, a sense of
foreshortened future, and decreased
concentration and memory. Tr. 509. Dr. Law
also noted that Plaintiff has distressing
dreams and intrusive thoughts about her
fiancé’s death, has difficulty in sustaining

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attention, and was easily distracted and
forgetful in daily activities. Id.
(Doc. 13, p. 6).

The Court notes that although these statements

appear in Law’s report, they were a recitation of Mitchell’s own
statements about herself; they are not presented as the Tester’s
opinion (see Tr. 509).
Plaintiff went further in her claim, though, pointing out
the following:
In addition, Dr. Law was of the opinion that
Claimant would require psychiatric care and
medication for PTSD, depression, and ADHD.
Id. Dr. Law also opined that Claimant would
benefit from a long term therapeutic
relationship with a counselor and that it
would be beneficial for Claimant to engage
in upgrading her academic skills. Id. Dr.
Law opined that “[Plaintiff] has a serious
employment handicap and will spiral down
into very serious depression necessitating
psychiatric hospitalization if successful
intervention is not forthcoming.” Id.
(Doc. 13, p. 6).

While these thoughts do more correctly reflect

Dr. Law’s conclusions from that one-time consultative
examination, they did not, ultimately, prove to be correct.

As

a Veteran, Mitchell had full opportunity to avail herself of
psychiatric care and medication, but did not—at least not on a
regular basis.

Plaintiff also successfully upgraded her

academic skills, completing two college undergraduate degrees.
Furthermore, Mitchell’s depression did not cause a “spiral

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downward” that required hospitalization; even as recently as
March 26, 2007, nearly two years past her insurance cessation
date, the VA rated Mitchell’s depression disability as only
thirty percent (Tr. 404).

The ALJ specifically noted

Plaintiff’s ability to get an education, her failure to
regularly seek psychiatric help, and her non-compliance with her
medication regimen as reasons for rejecting her claim that her
depression was disabling.

The Court finds substantial support

for that determination and his rejection of some of Dr. Law’s
conclusions.
Next, Mitchell claims that the ALJ did not consider all of
the evidence of record.

Plaintiff points to three different

specific examinations that took place through the VA that she
argues the ALJ did not reference in his discussion of the
evidence (Doc. 13, p. 8).

There were two examinations—one

physical and one mental—that took place on June 6, 2002 and a
physical exam on June 7, 2002.
On June 6, 2002, Mitchell underwent a physical examination
in which she was diagnosed to have chronic pain of the left foot
secondary to injury and stress fracture as well as a history of
depression (Tr. 501-02).

The doctor, in performing the

examination, noted that everything was normal including the lab
results.

The ALJ referenced the report in her determination,

though it was only for things Plaintiff communicated to the

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doctor at the time of the examination.
Plaintiff also underwent a psychological examination on
June 6, 2002 in which the doctor noted that she cried through
much of the interview (Tr. 503-05).

She was diagnosed with

depression, given a prescription for Celexa,2 and encouraged to
go to the clinic regularly for help.

The ALJ made no specific

reference to this examination.
On June 7, 2002, Mitchell was examined by Dr. Bass who
noted that she was walking satisfactorily without a discernible
limp; she could heel-and-toe walk and squat and rise again (Tr.
499-500).

The doctor noted that there was no pain on range of

motion testing at that time and that although pain could limit
functional ability, he could not address that situation in its
absence.

In her determination, the ALJ referenced the

examination, noting that Dr. Bass’s diagnosis was “chronic pain
of the left foot secondary to injury and stress fracture and
[that she was] otherwise in good health” (Tr. 29).
The Court finds that the ALJ referenced two of the three
examinations Mitchell asserts were ignored.

More to the point

though, Plaintiff has not pointed out the significance of these
particular examinations as they do not add anything to the
record that would contribute to a finding of disability as the

2

Celexa is used in treating depression.

Error! Main Document
Only.Physician's Desk Reference 1161-66 (62nd ed. 2008).

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evidence therein can be found in other medical records.
Mitchell’s claim that the ALJ did not properly consider all of
the evidence of record is without merit.
Mitchell’s final claim is that the ALJ’s findings regarding
her mental impairments are contradictory (Doc. 13, pp. 8-10).
However, all of the evidence Plaintiff cites for this claim
post-dates her last insured date by more than four years and is
irrelevant to the ALJ’s determination of non-disability as of
June 30, 2005.

This claim is of no merit.

Mitchell has raised four different claims in bringing this
action.

All are without merit.

Upon consideration of the

entire record, the Court finds "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.
DONE this 26th day of March, 2014.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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