Mulkey v. Colvin
MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the Commissioner's final decision issued August 8, 2014, denying Mulkey's application for CIB and SSI is AFFIRMED under 42 U.S.C. § 405(g) and 1383(c)(3). Signed by Magistrate Judge William E. Cassady on 5/17/2017. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ANTHONY D. MULKEY,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, :
MEMORANDUM OPINION AND ORDER
Social Security Claimant/Plaintiff Anthony D. Mulkey brought this action
under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final
decision of the Defendant Commissioner of Social Security (the “Commissioner”)
denying his applications for child’s insurance benefits (“CIB”) and supplemental
security income (“SSI”) under Title II of the Social Security Act, 42 U.S.C. § 401, et
seq. The parties have consented to the exercise of jurisdiction by the Magistrate
Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Doc. 25
(“In accordance with the 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 the trial, order the entry of a final
judgment, and conduct all post-judgment proceedings.”)).
Upon consideration of the briefs of the parties, (Docs. 20-21), and the
administrative record, (Doc. 19), (hereinafter cited as “(R. [page number(s) in
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d), FED. R. CIV. P., Berryhill is substituted for Carolyn W. Colvin as the
proper defendant in this case.
lower-right corner of transcript])”), it is determined that the Commissioner’s
decision is due to be AFFIRMED.
Mulkey was born on December 30, 1993. (R. 15). The highest grade of
school Mulkey attained was twelfth grade at Baker High School in Mobile,
Alabama, and while there, he attended special education classes. (R. 191 [SSA
Ex. 6E]). Mulkey’s sole instance of employment, which occurred in the second
quarter of 2012, was with Mother Mary’s Family Restaurant. (R. 15).
Mulkey filed applications for CIB 2 and SSI 3 with the Social Security
Administration (the “SSA”), on March 6, 2012, and January 14, 2013, respectively.
(R. 13). In Mulkey’s applications, he alleged disability beginning on February 1,
2001.4 (R. 13). After Mulkey’s claim was denied, he requested a hearing, which
was held before an Administrative Law Judge (“ALJ”) for the SSA on April 23,
2014. (R. 13). On August 8, 2014, the ALJ issued an unfavorable decision on
Mulkey’s claims, finding him “not disabled” under sections 223(d) and
1614(a)(3)(A) of the Social Security Act. (R. 10-28).
Mulkey requested review of the ALJ’s decision by the Appeals Council for
“Congress amended the Social Security Act in 1939 to provide a monthly benefit for designated
surviving family members of a deceased insured wage earner. ‘Child’s insurance benefits’ are
among the Act’s family-protective measures. 53 Stat. 1364, as amended, 42 U.S.C. § 402(d).”
Astrue v. Capato ex rel. B.N.C., 566 U.S. 541, 132 S. Ct. 2021, 2027, 182 L. Ed. 2d 887 (2012).
“SSI is a general public assistance measure providing an additional resource to the aged, blind,
and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is
based upon proof of indigence and disability. See 42 U.S.C. 1382(a), 1382c(a)(3)(A)-(C).” Sanders
v. Astrue, Civil Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28, 2012).
“For SSI claims, a claimant becomes eligible in the first month where she is both disabled and
has an SSI application on file. 20 C.F.R. § 416.202-03 (2005).” Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (per curiam). “An applicant qualifies for [CIB] if she meets the Act’s
definition of ‘child,’ is unmarried, is below specified age limits (18 or 19) or is under a disability
which began prior to age 22, and was dependent on the insured at the time of the insured’s death.
[42 U.S.C.] § 402(d)(1).” Astrue, 132 S. Ct. at 2027 (footnote omitted).
the SSA’s Office of Disability Adjudication and Review. (R. 7-9). The Appeals
Council denied Mulkey’s request for review on February 8, 2016, which made the
ALJ’s the final decision of the Commissioner. (R. 1-6). On February 24, 2016,
Mulkey filed this action pursuant to § 405(g)5 and § 1383(c)(3)6 to review the final
decision of the Commissioner. (Doc. 1, ¶ 4).
Standard of Review
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is supported by substantial evidence and based on
proper legal standards. Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)
(citations and internal quotations omitted). The Court “may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner].” Id. (citations omitted). “Even if the evidence preponderates
against the Commissioner’s findings, [the Court] must affirm if the decision
reached is supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990) (citing Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986);
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); and Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
“Yet, within this narrowly
circumscribed role, [the Court does] not ‘act as automatons.’” Bloodsworth, 703
“Any individual, after any final decision of the Commissioner . . . made after a hearing to which
he was a party, irrespective of the amount in controversy, may obtain a review of such decision
by a civil action commenced within sixty days after the mailing to him of notice of such decision
or within such further time as the Commissioner . . . may allow.” 42 U.S.C. § 405(g).
“The final determination of the Commissioner of Social Security after a hearing under
paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the
same extent as the Commissioner’s final determinations under section 405 of this title.” 42 U.S.C.
F.2d 1233, 1239 (11th Cir. 1983) (citing Ware v. Schweiker, 651 F.2d 408, 411 (5th
Cir. 1981), cert. denied, 455 U.S. 912, 102 S. Ct. 1263, 71 L. Ed. 2d 452 (1982)). The
Court “must scrutinize the record as a whole, [Ware, 651 F.2d at 411]; Lewis v.
Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975), to determine if the decision
reached is reasonable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), and
supported by substantial evidence, Scharlow v. Schweiker, 655 F.2d 645, 648 (5th
Cir. 1981).” Bloodsworth, 703 F.2d at 1239.
“In contrast to the deferential review accorded to the [Commissioner’s]
findings of fact, the [Commissioner’s] conclusions of law, including applicable
review standards are not presumed valid.”
Martin, 894 F.2d at 1529 (citing
MacGregor, 786 F.2d at 1053; Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983),
Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982); Smith v. Schweiker, 646
F.2d 1075, 1076 (5th Cir. Unit A June 1981). “The [Commissioner’s] failure to
apply the correct legal standard or to provide the reviewing court with sufficient
basis for a determination that proper legal principles have been followed
mandates reversal.” Martin, 894 F.2d at 1529 (citing Gibson v. Heckler, 779 F.2d
619, 622 (11th Cir. 1986); Bowel v. Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984);
Smith, 707 F.2d at 1285; Wiggins, 679 F.2d at 1389; Ambers v. Heckler, 736 F.2d 1467,
1470 (11th Cir. 1984)).
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is
disabled: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) whether the claimant has a severe
impairment or combination of impairments; (3) whether the
impairment meets or equals the severity of the specified
impairments in the Listing of Impairments; (4) based on a residual
functional capacity (“RFC”) assessment, whether the claimant can
perform any of his or her past relevant work despite the
impairment; and (5) whether there are significant numbers of jobs
in the national economy that the claimant can perform given the
claimant’s RFC, age, education, and work experience.
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips v. Barnhart, 357 F.3d 1232, at 1237-39 (11th Cir. 2004)).
Claims on Judicial Review
“The [ALJ] reversibly erred in failing to assign controlling weight
to the opinion of the [Mulkey]’s treating physician, Edith McCreadie, M.D.[,] and
instead adopted her own medical opinion. The [ALJ] failed to show good cause
in rejecting the Plaintiff’s treating physician.” (Doc. 20, at 1-2).
“The [ALJ] committed reversible error in violation of Social
Security Regulations 20 C.F.R. § 416.945, 20 C.F.R. § 404.1545, and Social Security
Ruling 96-8p in that the [ALJ]’s residual functional capacity [(“RFC”)]
determination was not supported by substantial evidence.” (Doc. 20, at 2).
“At the first step, the ALJ must consider the claimant’s current working
situation. If the claimant is ‘doing substantial gainful activity, [the ALJ] will find
that [the claimant is] not disabled.’” Phillips, 357 F.3d at 1237 (alterations in
original) (quoting 20 C.F.R. § 404.1520(a)(4)(i) & (b). “If however, the claimant is
not currently ‘doing gainful activity’ then the ALJ moves on to the second step.”
Phillips, 357 F.3d at 1237. At the first step, the ALJ determined that Mulkey had
“not engaged in substantial gainful activity since February 1, 2001, the alleged
onset date.” (R. 23). The ALJ noted that Mulkey earned “$239.00 in income from
Mother Mary’s Family Restaurant in the second quarter of 2012,” but “[t]his
work activity did not rise to the level of substantial gainful activity.” (R. 15).
At the second step, the ALJ is to “consider the medical
severity of [the claimant’s] impairment(s).”
20 C.F.R. §
404.1520(a)(4)(ii). When considering the severity of the claimant’s
medical impairments, the ALJ must determine whether the
impairments, alone or in combination, “significantly limit” the
claimant’s “physical or mental ability to do basic work skills.” 20
C.F.R. § 404.1520(c). If the ALJ concludes that none of the
claimant’s impairments are medically severe, the ALJ is to conclude
that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(ii) & (c).
If, however, the ALJ concludes that the claimant’s impairments are
medically severe, then the ALJ moves on to the third step.
Phillips, 357 F.3d at 1237 (alterations in original).
At Step Two, the ALJ
determined that Mulkey had the following severe impairments:
deficit disorder and borderline intellectual functioning.” (R. 15).
At the third step, the ALJ again considers the “medical
severity of [the claimant’s] impairment(s)” in order to determine
whether the claimant’s impairment(s) “meets or equals” one of the
listed disabilities. 20 C.F.R. § 404.1520(a)(4)(iii). Although the list is
too voluminous to recite here, the idea is that the listings
“streamline[ ] the decision process by identifying those claimants
whose medical impairments are so severe that it is likely they
would be found disabled regardless of their vocational
background.” Bowen v. Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287,
2297, 96 L. Ed. 2d 119 (1987). If the ALJ concludes that the
claimant’s impairments meet or equal one of the listed disabilities
and meet the duration requirement, the ALJ will conclude that the
claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii) & (d). If,
however, the ALJ concludes that the claimant’s impairments do not
meet or equal the listed impairments, then the ALJ will move on to
Phillips, 257 F.3d at 1238 (alterations in original). At Step Three, the ALJ found
that Mulkey “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments” in 20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926. (R.
At the fourth step, the ALJ must assess: (1) the claimant's
[RFC]; and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R.
§ 404.1545(a). Moreover, the ALJ will “assess and make a finding
about [the claimant's RFC] based on all the relevant medical and
other evidence” in the case. 20 C.F.R. § 404.1520(e). Furthermore,
the RFC determination is used both to determine whether the
claimant: (1) can return to her past relevant work under the fourth
step; and (2) can adjust to other work under the fifth step . . . . 20
C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ
will conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past
relevant work, the ALJ must determine the claimant's RFC using all
relevant medical and other evidence in the case. 20 C.F.R. §
404.1520(e). That is, the ALJ must determine if the claimant is
limited to a particular work level. See 20 C.F.R. § 404.1567. Once
the ALJ assesses the claimant’s RFC and determines that the
claimant cannot return to her prior relevant work, the ALJ moves
on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (alterations in original) (footnote omitted). At the
fourth step, the ALJ assessed that Mulkey had the RFC:
[T]o perform a full range of work at all exertional levels but with
the following nonexertional limitations: he can perform simple
tasks with only one- to two-step instructions; engage in occasional
contact with the general public; and engage in occasional or casual
contact with coworkers and supervisors, namely he is able to work
in proximity to others but should not work in any position that
(R. 18-19). The ALJ stated Mulkey had no past relevant work and, therefore, did
not state whether Mulkey can return to his past relevant work. (R. 22).
At the fifth step, the ALJ considers the claimant’s RFC, age,
education, and work experience to determine whether the claimant
“can make an adjustment to other work.”
20 C.F.R. §
404.1520(a)(4)(v). Essentially, the ALJ must determine if there is
other work available in significant numbers in the national
economy that the claimant has the ability to perform. If the
claimant can make the adjustment to other work, the ALJ will
determine the claimant is not disabled. If the claimant cannot make
the adjustment to other work, the ALJ will determine that the
claimant is disabled.
There are two avenues by which the ALJ may determine
whether the claimant has the ability to adjust to other work in the
national economy. The first is by applying the Medical Vocation
Social Security regulations currently contain a special section
called the Medical Vocational Guidelines. 20 C.F.R. pt. 404 subpt.
P, app. 2. The Medical Vocational Guidelines (“grids”) provide
applicants with an alternate path to qualify for disability benefits
when their impairments do not meet the requirements of the listed
qualifying impairments. The grids provide for adjudicators to
consider factors such as age, confinement to sedentary or light
work, inability to speak English, educational deficiencies, and lack
of job experience. Each of these factors can independently limit the
number of jobs realistically available to an individual.
Combinations of these factors yield a statutorily-required finding of
“Disabled” or “Not Disabled.”
The other means by which the ALJ may determine whether
the claimant has the ability to adjust to other work in the national
economy is by the use of a vocational expert. A vocational expert is
an expert on the kinds of jobs an individual can perform based on
his or her capacity and impairments. When the ALJ uses a
vocational expert, the ALJ will pose hypothetical question(s) to the
vocational expert to establish whether someone with the limitations
that the ALJ has previously determined that the claimant has will
be able to secure employment in the national economy.
Phillips, 357 F.3d at 1239-40 (footnotes omitted). At step five, the ALJ determined
that, given Mulkey’s RFC, age, education, and work experience, “there are jobs
that exist in significant numbers in the national economy that [Mulkey] can
perform” based on the testimony of the vocational expert, who opined that,
based on Mulkey’s limitations, he could perform the jobs of janitor cleaner,
garment folder, and hand packers. (R. 22-23). Accordingly, the ALJ found that
Mulkey “has not been under a disability, as defined in the Social Security Act,
from February 1, 2001, through the date of [the ALJ’s] decision.” (R. 23).
“’Medical opinions are statements from physicians and psychologists or
other acceptable medical sources that reflect judgments about the nature and
severity of [the claimant’s] impairments(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do despite impairments(s),
and [the claimant’s] physical or mental restrictions.’” Winschel, 631 F.3d at 117879 (alterations in original) (quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).
“The law of this circuit is clear that the testimony of a treating physician must be
given substantial or considerable weight unless ‘good cause’ is shown to the
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citations
omitted); see also 20 C.F.R. 404.1527(d)(2) (“Generally, we give more weight to
opinions from your treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of
your medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or
from reports of individual examinations, such as consultative examinations or
brief hospitalizations.”). “’[G]ood cause’ exists when the: (1) treating physician’s
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 1240-41. “When electing
to disregard the opinion of a treating physician, the ALJ must clearly articulate
its reasons.” Id. 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).
Moreover, the ALJ must state with particularity the weight given to
different medical opinions and the reasons therefor. Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam). “In the
absence of such a statement, it is impossible for a reviewing court
to determine whether the ultimate decision on the merits of the
claim is rational and supported by substantial evidence.” Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Therefore, when the
ALJ fails to “state with at least some measure of clarity the grounds
for his decision,” we will decline to affirm “simply because some
rationale might have supported the ALJ’s conclusion.” Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam). In such a
situation, “to say that [the ALJ’s] decision is supported by
substantial evidence approaches an abdication of the court’s duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.” Cowart, 662 F.2d at 735 (quoting
Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979)) (internal
quotation marks omitted).
Winschel, 631 F.3d at 1179 (alterations in original).
Mulkey argues the ALJ reversibly erred in failing to assign controlling
weight to the opinion of Mulkey’s treating physician, Edith McCreadie, M.D, and
instead, adopted her own medical opinion. Discharging the requirement that the
ALJ “state with particularity the weight given to different medical opinions and
the reasons therefore[,] Winschel, 631 F.3d at 1179, she assigned weight to the
opinions of Dr. McCreadie, which were stated in a “Mental Residual Functional
Capacity Questionnaire” (“MRFC Questionnaire”), (R. 278-79 [SSA Ex. 8F]), and
the reasons therefor as follows:
The undersigned has accorded [Dr. McCreadie’s] opinion little
weight because it is not bolstered by the evidence. Her opinion
appears to be based on subjective complaints. Her treatment notes
from that date specify “form filled out only” and “no visit today
just reviewed the form” with patient and mom. (Exhibit 9F). The
severity of limitations she indicates is inconsistent both with the
claimant’s outpatient medication management as a referral to a
mental health inpatient facility would be expected for a patient
with marked limitations in all mental abilities and with his receipt
of a high school diploma even if he took special education classes.
Although she reported psychological evaluations had been
obtained, she noted they [ ] occurred “At age 19-at Baye Pointe [sic]
and also at Strickland;” however, the claimant’s stay at Strickland
occurred at the age of 17 which indicates both that Dr. McCreadie
did not review these evaluations and that the source of her
information was not wholly reliable. (Exhibits 8F and 10F). Last
but not least, third party reports indicate the claimant’s mother
does not have a well-rounded view of her son’s behavior. For
example, on September 1, 2011, his mother reported he required
instructions and directions for all activities. (Exhibit 4F). In
contrast on June 18, 2012, it was noted that the responses from two
of the claimant’s teachers indicated his adaptive behavior fell in the
higher borderline and intellectually deficient range of functioning.
Thus, the ALJ determined that Dr. McCreadie’s opinions were not
bolstered by the evidence and were inconsistent with the evidence of record.
Mulkey argues the ALJ failed to show good cause for rejecting the opinions of
Dr. McCreadie. (Doc. 20, at 2). The reasons stated by the ALJ for assigning little
weight to Dr. McCreadie’s opinions are “[Dr. McCreadie’s] opinion appears to be
based on subjective complaints,” “[t]he severity of limitations [Dr. McCreadie]
management . . . and with his receipt of a high school diploma even if he took
special education classes,” “Dr. McCreadie did not review [Mulkey’s
psychological] evaluations and [ ] the source of her information was not wholly
reliable,” and “third party reports indicate [Mulkey’s] mother does not have a
well-rounded view of her son’s behavior.” (R. 21).
In the MRFC Questionnaire completed by Dr. McCreadie on April 2, 2014,
she opined Mulkey had an extreme7 impairment as to his activities of daily
living; ability to understand, carry out, and remember instructions; ability to
respond appropriately to customary work pressures; and ability to complete
work related activities in a normal workday or workweek. (R. 278-79 [SSA Ex.
Dr. McCreadie opined Mulkey had a marked 8 impairment as to his
estimated degree of difficulty in maintaining social functioning, ability to
Defined in the MRFC Questionnaire as a “[s]evere impairment of ability to function
independently, appropriately, effectively and on a sustained basis.” (R. 278 [SSA Ex. 8F]).
Defined in the MRFC Questionnaire as an “impairment which seriously affects ability to
function independently, appropriately, effectively and on a sustained basis; ‘marked’ is more
than ‘moderate’ but less than ‘extreme.’” (R. 278 [SSA Ex. 8F]).
respond appropriately to supervision, ability to respond appropriately to coworkers, ability to perform simple tasks, and ability to perform repetitive tasks.
(R. 278-79 [SSA Ex. 8F]). Additionally, Dr. McCreadie opined Mulkey had a
constant deficiency of concentration, persistence, or pace resulting in failure to
complete tasks in a timely and appropriate manner (commonly found in a work
setting) and he would be expected to have four or more episodes of
decompensation in work or work-like settings, which would cause him to
withdraw from that situation or to experience exacerbation of signs and
symptoms for a period lasting at least two weeks. (R. 278 [SSA Ex. 8F]). As to
the side-effects of Mulkey’s medications, Dr. McCreadie noted they caused
“difficulty sleeping at night,” and they “could make him drowsy.” (R. 279 [SSA
Dr. McCreadie commented Mulkey “’sleeps all the time’ and has
difficulty staying on a regular schedule. He cannot stay on task no matter how
simple or repetitive . . . even on his medication needs 24-hr supervision . . .
cannot function independently.” (R. 279 [SSA Ex. 8F]).
Dr. McCreadie noted on Mulkey’s MRFC Questionnaire a psychological
evaluation she obtained from BayPointe Hospital and Strickland Youth Center
that was performed when Mulkey was 19-years-old.
(R. 279 [SSA Ex. 8F]).
However, Mulkey received a psychiatric evaluation at BayPointe Hospital, where
he reported from Strickland Youth Center, when he was 17-years-old, (R. 297
[SSA Ex. 10F]). The ALJ concluded this “indicate[d] both that Dr. McCreadie did
not review these evaluations and that the source of her information was not
wholly reliable.” (R. 21). Also, Dr. McCreadie’s treatment notes from the date
when she completed the MRFC Questionnaire state, during an appointment with
Mulkey, “form filled out only” and “no visit today just reviewed the form [with
Mulkey and his mother].” (R. 280 [SSA Ex. 9F]). The ALJ concluded the MRFC
Questionnaire was “based on subjective complaints” since Dr. McCreadie
presumably completed the form with input from Mulkey and his mother. (R.
Mulkey argues the opinion of Dr. McCreadie is supported by the medical
evidence of record. (Doc. 20, at 4). The ALJ stated the “severity of limitations
[Dr. McCreadie] indicates is inconsistent” with Mulkey’s “outpatient medication
management,” and “his receipt of a high school diploma.”
McCreadie’s treatment of Mulkey was limited to medication management. (R.
275-77 [SSA Ex. 7F]) & 280-81 [SSA Ex. 9F]).
As the ALJ noted, Mulkey’s
“treatment records indicate his medication is relatively effective” and “[p]eriods
of exacerbation have been linked to medication noncompliance.” (R. 20). On
March 28, 2011, Mulkey reported to BayPointe Hospital from Strickland Youth
Center, at which time Shakeel Raza, M.D., performed a psychiatric evaluation of
Mulkey. (R. 297-302 [SSA Ex. 10F]). Dr. Raza’s diagnostic impression of Mulkey
included mood disorder, attention deficit hyperactivity disorder, anxiety
disorder, oppositional defiant disorder, parent/child relationship disorder,
pervasive developmental disorder, borderline intellectual functioning, obesity,
bullying at school, poor coping skills, and a Global Assessment of Functioning
score of 40.
(R. 301-02 [SSA Ex. 10F]).
Dr. Raza recommended Mulkey be
admitted under his care; receive a full range of services, including nursing care,
daily meetings with the psychiatric team, and individual and group therapy;
undergo a fire prevention program, anger management, and psychological
testing including IQ testing and skill building.
(R. 302 [SSA Ex. 10F]).
addition, Dr. Raza recommended school intervention, specifically in regard to
bullying at school and continuing to monitor Mulkey’s symptoms and behavior.
(R. 302 [SSA Ex. 10F]). At the time, Dr. Raza did not recommend medications for
Mulkey. (R. 302 [SSA Ex. 10F]). On April 6, 2011, Mulkey was discharged from
BayPointe Hospital, at which time a discharge summary was produced. (R. 29295 [SSA Ex. 10F]). Mulkey’s discharge diagnosis remained unchanged except his
Global Assessment of Functioning score increased to 70. (Compare R. 292 [SSA
Ex. 10F] with R. 301-02 [SSA Ex. 10F]). Upon discharge, Mulkey was prescribed
Prozac, and Dr. Raza recommended Mulkey be released to Strickland Youth
Center, continue taking Prozac, continue to participate in anger management
counseling, have psychological testing including IQ testing, receive school
intervention to reduce bullying, receive social skill building and fire prevention
counseling, receive homebound counseling, and to contact emergency services or
be transported to a hospital in the event of psychiatric emergencies. (R. 295 [SSA
After Mulkey was discharged from BayPointe Hospital, he continued his
care with AltaPointe Health Systems (“AltaPointe”) until November 29, 2012.
(See R. 282-92). On May 16, 2011, Mulkey was prescribed Prozac 10 mg, Concerta
36 mg, and Abilify 5 mg, (R. 290 [SSA Ex. 10F]); his prescriptions were adjusted
on June 13, 2011, (R. 288 [SSA Ex. 10F]); adjusted, again, on September 1, 2011, to
Prozac 20 mg, Concerta 36 mg twice daily, Ability 5 mg, and Wellbutrin 300 mg,
(R. 286 [SSA Ex. 10F]), a regimen he was prescribed through November 29, 2012,
(R. 284 & 282 [SSA Ex. 10F]). On November 29, 2012, Mulkey was noted to have
a normal behavior; normal mood; appropriate to situation affect; unimpaired
memory; logical, coherent, and within normal limits thoughts; unimpaired
concentration; fair insight; fair judgment; and no anxiety. (R. 283 [SSA Ex. 10F]).
On February 13, 2013, Mulkey did not attend his appointment with AltaPointe.
(R. 271 [SSA Ex. 5F]).
On March 25, 2013, Mulkey completed a mental examination with Lucile
T. Williams, Psy. D., after he was referred by the Division of Disability
Determination. (R. 272 [SSA Ex. 6F]). Dr. Williams noted that Mulkey did not
take his medications prescribed by Dr. McCreadie “since December” because he
was “kicked off of the Medicaid.” (R. 272 [SSA Ex. 6F]). Mulkey, also, stated,
“The medicine helps me to stay calm, pay attention, keep my anger in control.”
(R. 272 [SSA Ex. 6F]). Mulkey’s prognosis was within six to twelve months, he
would have a favorable response to treatment including psychotherapy. (R. 273
[SSA Ex. 6F]).
On October 17, 2013, Mulkey reported back to Dr. McCreadie, and from a
follow-up visit on November 22, 2013, she noted his grandfather stated Mulkey’s
anger was controlled better since Mulkey resumed taking prescriptions. (R. 275
[SSA Ex. 7F]. As of November 22, 2013, Mulkey was prescribed Concerta 54 mg,
Prozac 20 mg, Wellbutrin 150 mg twice daily, Depakote 250 mg twice daily, and
Lopid 600 mg twice daily. (R. 276 [SSA Ex. 6F]). On January 20, 2014, at a visit
with Dr. McCreadie, Mulkey’s mother reported he was “jumping off” family
members, but Depokate had a calming effect on him and his dosage was
increased to 500 mg twice daily. (R. 281 [SSA Ex. 9F]).
In contrast to Dr. McCreadie’s opinion that Mulkey would have extreme
and marked restrictions in his ability to perform activities in a routine work
setting and constant deficiencies of concentration, persistence, or pace, he
testified he graduated from high school, (R. 34); he is able to read and write, (R.
34); he is able to add, subtract, multiply, and divide numbers (R. 34); he is able to
use a calculator, (R. 34); he is able to operate Facebook including activating and
deactivating accounts, (R. 37); he participated in vocational training while in high
school, (R. 34); he needs to be reminded to complete, but performs, household
chores such as taking out the garbage and making his bed, (R.38); he is able to
make himself a sandwich, (R. 38); and bathes himself and, sometimes, does so
without being told, (R. 38). Further, in contrast to Dr. McCreadie’s opinion that
Mulkey would be expected to have four or more episodes of decompensation in
work or work-like settings, Mulkey testified since he has taken his medications,
his episodes of frustration and problems with concentration have reduced in
frequency to “once in a blue moon.” (R. 40).
Beverly Lowery, who taught Mulkey transition services, workforce
essentials, and special driver education from 2011 to 2013, completed a “Teacher
Questionnaire” about Mulkey.
(R. 188-95 [SSA Ex. 6E]).
Questionnaire” included sections that addressed topics such as acquiring and
using information, attending and completing tasks, interacting and relating with
others, moving about and manipulating objects, caring for himself or herself,
medical conditions and medications/health and physical well-being, and
additional comments. (R. 188-95 [SSA Ex. 6E]). Ms. Lowery indicated Mulkey
generally had serious to very serious problems in regard to indicia for acquiring
and using information, (R. 189 [SSA Ex. 6E]); generally had obvious to very
serious problems in regard to indicia for attending and completing tasks with
weekly to daily frequency, (R. 190 [SSA Ex. 6E]); generally had a slight to very
serious problem in regard to indicia for interacting and relating with others, (R.
191 [SSA Ex. 6E]); had very serious problems in regard to indicia for moving
about and manipulating objects, (R. 192 [SSA Ex. 6E]); and generally had very
serious problems in regard to indicia for caring for himself with weekly to daily
frequency, (R. 193 [SSA Ex. 6E]). However, Ms. Lowery noted Mulkey was
“physically very lazy and slow,” (R. 190 [SSA Ex. 6E]), “socially maladjusted,”
(R. 191 [SSA Ex. 6E]), and “should be independent but he chooses not to [be],” (R.
193 [SSA Ex. 6E]).
After reviewing all the relevant evidence in the record and listening to
oral arguments, it is determined that good cause exists for the ALJ’s decision to
assign little weight to the opinion of Mulkey’s treating physician, Dr. McCreadie,
set forth in a “Mental Residual Functional Capacity Questionnaire,” (R. 278-79
[SSA Ex. 8F]), and the ALJ’s reasons for her decision are supported by substantial
In Claim 2, Mulkey argues the ALJ’s RFC determination was not
supported by substantial evidence, (Doc. 20, at 8), because the ALJ “rejected the
opinion evidence and other medical evidence of record,” when she found
Mulkey was capable of performing work, (Doc. 20, at 11), and by doing so,
“effectively practiced medicine,” (Doc. 20, at 11). The Court construes these
arguments to assert (1) the ALJ is required to adopt at least one medical opinion
in formulating an RFC, and (2) the ALJ did not sufficiently show her work in
formulating Mulkey’s RFC.
The Court rejects both assertions. While the Social Security regulations
require ALJs to consider all medical opinions in the record when making a
disability determination, see 20 C.F.R. §§ 404.1527(b) & 416.927(b), “[n]othing in
the regulations requires the ALJ to accept at least one medical opinion before
rendering a decision—indeed, an ALJ may make a disability determination
without any medical opinion in the record.” Hale v. Colvin, Civil Action No. 1400222-CG-N, 2015 WL 3397939, at *11 (S.D. Ala. Apr. 24, 2015), report and
recommendation adopted, 2015 WL 3397628 (S.D. Ala. May 26, 2015); see also Packer
v. Astrue, Civil Action No. 11-0084-CG-N, 2013 WL 593497, at *3 (S.D. Ala. Feb.
14, 2013) (“[T]he ALJ is not precluded from making a proper RFC determination
in the absence of an opinion from an acceptable medical source.” (quotation
omitted)), aff'd, Packer v. Comm'r, Soc. Sec. Admin., 542 F. App’x 890 (11th Cir. Oct.
29, 2013) (per curiam); Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012)
(“[T]here is no requirement in the regulations for a direct correspondence
between an RFC finding and a specific medical opinion on the functional
capacity in question. The ALJ, not a physician, is charged with determining a
claimant's RFC from the medical record.” (quotation omitted)); 20 C.F.R. §§
404.1527(a)(2) & 416.927(a)(2) (“Evidence that you submit or that we obtain may
contain medical opinions.” (emphasis added)); 20 C.F.R. §§ 404.1546 & 416.946
(“If your case is at the [ALJ] hearing level . . . , the [ALJ] . . . is responsible for
assessing your residual functional capacity.”). The ALJ properly assigned little
weight to Dr. McCreadie’s opinion, see supra, and Mulkey has not asserted error
as to the weight assigned to the state agency consultant’s opinion.9 Accordingly,
the ALJ was not required to “fully reflect” either of those opinions in the RFC.
“A clear articulation of both fact and law is essential to our ability to
conduct a review that is both limited and meaningful.” Owens v. Heckler, 748
F.2d 1511, 1514-15 (11th Cir. 1984) (per curiam). See also Freeman v. Barnhart, 220
F. App'x 957, 959-60 (11th Cir. Mar. 23, 2007) (per curiam) (“The ALJ has a duty
Moreover, the opinion of a non-examining physician “is entitled to little weight and taken alone
does not constitute substantial evidence to support an administrative decision.” E.g., Swindle v.
Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990) (per curiam).
to make clear the weight accorded to each item of evidence and the reasons for
the decision so that a reviewing court will be able to determine whether the
ultimate decision is based on substantial evidence.” (citing Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir. 1981))). Nevertheless, “there is no rigid requirement
that the ALJ specifically refer to every piece of evidence in his decision, so long
as the ALJ’s decision . . . is not a broad rejection which is not enough to enable
the district court . . . to conclude that [the ALJ] considered her medical condition
as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)
(internal quotation marks omitted). In formulating the RFC at Step Four, the ALJ
thoroughly discussed and weighed the evidence of record and drew conclusions
from that evidence. Apart from the weight the ALJ assigned the two abovementioned medical opinions, Mulkey points to no evidence the ALJ allegedly
incorrectly or insufficiently assessed. Rather, she appears to assert only that the
ALJ failed to adequately show her work in applying Social Security Ruling 96-8p.
However, both this Circuit and others have repeatedly rejected similar
contentions that an ALJ’s failure to expressly show his or her work under SSR 968p is automatic grounds for reversal.
See Freeman, 220 F. App'x at 959-60
(“Freeman contends that the ALJ failed to identify her functional limitations and
work-related abilities on a function-by-function basis . . . . While the ALJ could
have been more specific and explicit in his findings, he did consider all of the
evidence and found that it did not support the level of disability Freeman
claimed. Only after he determined that she failed to carry her burden of showing
that she had become disabled from performing any of her work-related activities
did he state that she could perform light exertional activity. Therefore, the ALJ
complied with SSR 96–8p by considering Freeman's functional limitations and
restrictions and, only after he found none, proceeding to express her residual
functional limitations in terms of exertional levels.
Furthermore, the ALJ’s
analysis of the evidence and statement that Freeman could perform light work
indicated how much work-related activity she could perform because ‘light work
requires standing or walking, off and on, for a total of approximately 6 hours of
an 8–hour workday.’ SSR 83–10.”); Castel v. Comm'r of Soc. Sec., 355 F. App'x 260,
263 (11th Cir. Nov. 30, 2009) (“Castel argues that the ALJ reached an RFC
Specifically, Castel claims that the ALJ did not perform the function-by-function
analysis to determine Castel's ability to handle strength demands.
argument is unfounded. The ALJ made a determination of Castel's RFC at step
four of the function-by-function analysis. The ALJ considered two disability
examiners' reports, Castel's testimony, and two Disability Determination
Services’ (‘DDS’) reports in arriving at Castel's RFC. See SSR 96–8p . . . (advising
that the RFC assessment must consider all relevant evidence, including medical
history, medical evaluations, daily activities, and lay evidence).
ultimately decided that Castel was capable of medium exertion level work and
thus was capable of performing past relevant work . . . . We do not require the
ALJ to ‘specifically refer to every piece of evidence in his decision,’ so long as the
decision is sufficient to allow us to conclude that the ALJ considered the
claimant's medical condition as a whole. Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005) (per curiam).
The ALJ found that the medium level work
determination was consistent with the medical evidence and found Castel’s RFC
to be at a medium level of work. The ALJ performed a proper RFC function
analysis, based on substantial evidence, and we shall defer to his conclusions.”);
Carson v. Comm'r of Soc. Sec., 440 F. App'x 863, 864 (11th Cir. Sept. 21, 2011) (per
curiam) (“Following [SSR 96-8p’s ‘function-by-function’] rubric, the ALJ fully
discussed and evaluated the medical evidence, Mr. Carson’s testimony, and the
effect each impairment has on his daily activities.
While, the ALJ did not
specifically refer to Mr. Carson’s ability to walk or stand, the ALJ did limit Mr.
Carson’s exertional level of work to ‘light work.’ ‘Light work’ by definition
limits the amount an individual can walk or stand for approximately six hours in
an eight-hour work day. See SSR 83–10, 1983 WL 31251 (S.S.A.). Furthermore,
the ALJ’s thorough evaluation of Mr. Carson’s case led the ALJ to adopt
additional limitations to Mr. Carson's ability to perform light work. Simply
because the ALJ chose not to adopt further limitations on Mr. Carson's ability to
walk or stand, does not mean the ALJ did not properly consider the alleged
limitations.”); Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (“Where an ALJ’s
analysis at Step Four regarding a claimant’s functional limitations and
restrictions affords an adequate basis for meaningful judicial review, applies the
proper legal standards, and is supported by substantial evidence such that
additional analysis would be unnecessary or superfluous, we agree with our
sister Circuits that remand is not necessary merely because an explicit functionby-function analysis was not performed.” (citing Zatz v. Astrue, 346 F. App’x 107,
111 (7th Cir. Oct. 5, 2009) (per curiam); Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th
Cir. 2005); Depover v. Barnhart, 349 F.3d 563, 567–68 (8th Cir. 2003); Delgado v.
Comm'r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. Mar. 4, 2002) (per curiam));
Chavez v. Astrue, 276 F. App'x 627, 627-28 (9th Cir. May 1, 2008) (per curiam)
(“Chavez claims that the ALJ committed legal error by determining his mental
residual functional capacity without performing a function-by-function
assessment as required by Social Security Ruling 96-8p, 1996 WL 374184, at *3
(July 2, 1996). This claim fails because the ALJ considered and noted ‘all of the
relevant evidence’ bearing on Chavez's ‘ability to do work-related activities,’ as
required by the function-by-function analysis. See [SSR] 96-8p, 1996 WL 374184,
at *3.”); Hendron v. Colvin, 767 F.3d 951, 956-57 (10th Cir. 2014) (rejecting
claimant’s contention that the ALJ’s “RFC is not in the proper form” because the
ALJ did not “separately discuss and make findings regarding her abilities to sit,
stand, walk, lift, carry, push, or pull” (citing Keyes–Zachary v. Astrue, 695 F.3d
1156, 1166 (10th Cir. 2012) (“Where, as here, we can follow the adjudicator’s
reasoning in conducting our review, and can determine that correct legal
standards have been applied, merely technical omissions in the ALJ's reasoning
do not dictate reversal. In conducting our review, we should, indeed must,
exercise common sense . . . . [W]e cannot insist on technical perfection.”))).
Accordingly, it is determined that the ALJ did not err in formulating the
RFC at Step Four. She thoroughly discussed and weighed the evidence of record
and drew conclusions from that evidence that were clearly articulated in her final
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued August 8, 2014, denying Mulkey’s
application for CIB and SSI is AFFIRMED under 42 U.S.C. § 405(g) and
Final judgment shall issue separately in accordance with this Order and
Rule 58, FED. R. CIV. P.
DONE and ORDERED this the 17th day of May 2017.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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