Johnson v. Colvin
MEMORANDUM OPINION AND ORDER that Commissioner's final decision denying plaintiff's application for a period of disability and DIB is AFFIRMED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 11/9/17. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
BARBARA BYRD JOHNSON,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 1:17-00026-N
MEMORANDUM OPINION AND ORDER
Plaintiff Barbara Byrd Johnson brought this action under 42 U.S.C. § 405(g)
seeking judicial review of a final decision of the Defendant Commissioner of Social
Security (“the Commissioner”) denying her application for a period of disability and
disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42
U.S.C. § 401, et seq. Upon consideration of the parties’ briefs (Docs. 11, 14) and
those portions of the administrative record (Doc. 10) (hereinafter cited as “(R. [page
number(s) in lower-right corner of transcript])”) relevant to the issues raised, the
Court finds that the Commissioner’s final decision is due to be AFFIRMED under
sentence four of § 405(g).1
On November 5, 2013, Johnson filed an application for a period of disability
and DIB with the Social Security Administration (“SSA”), alleging disability
With the consent of the parties, the Court has designated the undersigned
Magistrate Judge to conduct all proceedings and order the entry of judgment in this
civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
73, and S.D. Ala. GenLR 73. (See Docs. 18, 19). With the Court’s consent, the
parties jointly waived the opportunity for oral argument. (See Docs. 17, 20).
beginning September 30, 2013.2 After her application was initially denied, Johnson
requested a hearing before an Administrative Law Judge (“ALJ”) with the SSA’s
Office of Disability Adjudication and Review. An ALJ hearing was held on August
On September 11, 2015, the ALJ issued an unfavorable decision on
Johnson’s application, finding her “not disabled” under the Social Security Act and
thus not entitled to benefits. (See R. 9 – 21).
The Commissioner’s decision on Johnson’s application became final when the
Appeals Council for the Office of Disability Adjudication and Review denied
Johnson’s request for review of the ALJ’s decision on November 18, 2016. (R. 1 – 5).
Johnson subsequently filed this action under § 405(g) for judicial review of the
Commissioner’s final decision. See (Doc. 1); 42 U.S.C. § 405(g) (“Any individual,
after any final decision of the Commissioner of Social Security 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 of Social Security may allow.”); Ingram v. Comm'r of Soc. Sec.
Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this Circuit is that
a court may review, under sentence four of section 405(g), a denial of review by the
“For DIB claims, a claimant is eligible for benefits where she demonstrates
disability on or before the last date for which she were insured.” Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (citing 42 U.S.C. § 423(a)(1)(A)
Standards 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) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d
1436, 1439 (11th Cir. 1997))). However, the Court “ ‘may not decide the facts anew,
reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ”
Id. (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)
(alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
“‘Even if the evidence preponderates against the [Commissioner]’s
factual findings, [the Court] must affirm if the decision reached is supported by
substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The Court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”).3 “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
[Commissioner]’s conclusions of law, including determination of the proper
standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679
Nevertheless, “ ‘[t]here is no burden upon the district court to distill every
potential argument that could be made based on the materials before it…’ ” Solutia,
Inc. v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012) (per curiam) (quoting
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en
banc)) (ellipsis added). Generally, claims of error not raised in the district court are
deemed waived. See Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 –
16 (11th Cir. 1994) (“As a general principle, [the court of appeals] will not address
an argument that has not been raised in the district court…Because Stewart did
not present any of his assertions in the district court, we decline to consider them on
appeal.” (applying rule in appeal of judicial review under 42 U.S.C. §§ 405(g),
1383(c)(3)); Hunter v. Comm’r of Soc. Sec., 651 F. App'x 958, 962 (11th Cir. 2016)
(per curiam) (unpublished) (same); Cooley v. Comm'r of Soc. Sec., 671 F. App'x 767,
769 (11th Cir. 2016) (per curiam) (unpublished) (“As a general rule, we do not
consider arguments that have not been fairly presented to a respective agency or to
the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999) (treating
as waived a challenge to the administrative law judge’s reliance on the testimony of
a vocational expert that was ‘not raise[d] . . . before the administrative agency or
the district court’).”); In re Pan Am. World Airways, Inc., Maternity Leave Practices
& Flight Attendant Weight Program Litig., 905 F.2d 1457, 1462 (11th Cir. 1990)
(“[I]f a party hopes to preserve a claim, argument, theory, or defense for appeal, she
must first clearly present it to the district court, that is, in such a way as to afford
the district court an opportunity to recognize and rule on it.”); Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999) (applying In re Pan American World Airways in
Social Security appeal).
F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the
administrative denials of Social Security benefits dictates that ‘(t)he findings of the
Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’
42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential
standard of review is applicable only to findings of fact made by the Secretary, and
it is well established that no similar presumption of validity attaches to the
Secretary’s conclusions of law, including determination of the proper standards to
be applied in reviewing claims.” (some quotation marks omitted)).
“conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). “‘The [Commissioner]’s failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the
proper legal analysis has been conducted mandates reversal.’” Ingram, 496 F.3d at
(quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)).
Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
In sum, courts “review the Commissioner’s factual findings with deference
and the Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (per curiam) (“In Social Security appeals, we review de novo
the legal principles upon which the Commissioner's decision is based. Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, we review the resulting
decision only to determine whether it is supported by substantial evidence.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004).”).
Eligibility for DIB…requires that the claimant be disabled. 42 U.S.C.
§ 423(a)(1)(E)…A claimant is disabled if she is unable “to engage in
any substantial gainful activity by reason of a medically determinable
physical or mental impairment ... which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C.
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015) (per
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
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).5
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).
“These factors must be considered both singly and in
combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
claimant 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. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).
Finally, although the “claimant 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). See also Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established
that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” (citations omitted)).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.
In determining whether a
claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
Where, as here, the ALJ denied benefits and the Appeals Council denied
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the [Appeals
Council] has denied review, [the Court] will look only to the evidence actually
presented to the ALJ in determining whether the ALJ’s decision is supported by
substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). If the
applicant attacks only the ALJ’s decision, the Court may not consider evidence that
was presented to the Appeals Council but not to the ALJ. See id. at 1324.
At Step One, the ALJ determined that Johnson met the applicable insured
status requirements through December 31, 2016, and that she had not engaged in
substantial gainful activity since the alleged disability onset date, September 30,
2013. (R. 14). At Step Two, the ALJ determined that Johnson had the following
severe impairments: bipolar disorder, obsessive compulsive disorder (OCD), and
personality disorder. (R. 14). At Step Three, the ALJ found that Johnson did not
have an impairment or combination of impairments that met or equaled the
severity of one of the specified impairments in the relevant Listing of Impairments.
(R. 14 – 16).
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“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] residual functional capacity 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 (footnote omitted).
The ALJ determined that Johnson had the RFC “to perform a range of work
at all exertional levels but with the following limitations: She can have only
“To determine the physical exertion requirements of different types of employment
in the national economy, the Commissioner classifies jobs as sedentary, light,
medium, heavy, and very heavy. These terms are all defined in the regulations …
Each classification … has its own set of criteria.” Phillips, 357 F.3d at 1239 n.4.
See also 20 C.F.R. § 404.1567.
occasional interaction with the public, coworkers, and supervisors. She is to have
no production-paced work. She has an unlimited ability to understand, remember,
and carry out short and simple instructions but can have no work with detailed
instructions.” (R. 16 – 20).
Based on this RFC, the ALJ determined that Johnson was unable to perform
any past relevant work as a legal assistant. (R. 20). At Step Five, after taking
testimony from a vocational expert, the ALJ found that there exist significant
numbers of jobs in the national economy that Johnson can perform given her RFC,
age, education, and work experience.
(R. 20 – 21).
Thus, the ALJ found that
Johnson was not disabled under the Social Security Act. (R. 21).
First Claim of Error (Prior ALJ Decision)
Johnson filed a previous DIB application on September 28, 2011, alleging
disability beginning June 30, 2010. (See R. 51). A different ALJ held a hearing on
that application and, in a decision issued March 19, 2013, awarded Johnson a closed
period of DIB, finding that she had been disabled from June 30, 2010, through April
16, 2012 (R. 51 – 59) (hereinafter, “the Prior Decision”). The Prior Decision appears
to have been part of the administrative record at the time the present ALJ rendered
his decision. Johnson argues that the ALJ here reversibly erred in failing to assign
weight to, or even mention, the Prior Decision in denying Johnson’s November 5,
2013 application, which is the subject of this action. More specifically, Johnson
argues the ALJ should have discussed and assigned weight to the Prior Decision’s
discussion of a report by Dr. Sherman, who conducted a January 12, 2012
consultative examination of Johnson. Johnson concedes that Dr. Sherman’s report
“is not in the file” of this case but argues that, since “[t]he Commissioner did not
obtain a physical consultative examination in the proceedings on the 2013
application[,]” “Dr. Sherman’s consultative examination, conducted on January 12,
2012, is the only consultative physical examination of Mrs. Johnson[,]” and the ALJ
here “had an obligation to at least address” the Prior Decision and its discussion of
Dr. Sherman’s report. (Doc. 11 at 10 (emphasis added)).
Johnson cites no authority suggesting that the Prior Decision should be
considered “evidence” at all, much less that the ALJ’s failure to specifically address
it constitutes reversible error under sentence four of § 405(g).7 On the other hand,
in the context of considering the propriety of a “sentence six” remand for
consideration of “new and material evidence,” the Eleventh Circuit has held that
another ALJ’s later favorable decision is not even “evidence for purposes of
§ 405(g)[,]” much less “new and material evidence.” Hunter v. Soc. Sec. Admin.,
Comm'r, 808 F.3d 818, 822 (11th Cir. 2015), cert. denied, 136 S. Ct. 2487 (2016).
The Hunter panel explained its reasoning as follows:
The Commissioner correctly argues that the Prior Decision has no res judicata
effect on the present ALJ decision. See Luckey v. Astrue, 331 F. App'x 634, 638
(11th Cir. 2009) (per curiam) (unpublished) (“Administrative res judicata applies
when the agency has made a ‘previous determination or decision ... about [a
claimant's] rights on the same facts and on the same issue or issues, and [that]
previous determination or decision [had] become final by either administrative or
judicial action.’ 20 C.F.R. § 404.957(c)(1). In 2000, an ALJ determined that based on
the facts surrounding that time period, Luckey had been disabled since March 1998.
However, in the application at issue, Luckey alleged a disability onset date of 1 July
2002. Because the factual time period for Luckey’s current application is different
from her previous application, administrative res judicata does not apply.” (some
A decision is not evidence any more than evidence is a decision.
Holding, as we do, that a later favorable decision is not evidence for §
405(g) purposes is also supported by the limited scope of judicial
review of the ALJ’s decision. We must affirm if it is supported by
substantial evidence. Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion. A preponderance of the evidence is not required. In
determining whether substantial evidence supports a decision, we give
great deference to the ALJ’s factfindings.
In light of our deferential review, there is no inconsistency in finding
that two successive ALJ decisions are supported by substantial
evidence even when those decisions reach opposing conclusions. Faced
with the same record, different ALJs could disagree with one another
based on their respective credibility determinations and how each
weighs the evidence. Both decisions could nonetheless be supported by
evidence that reasonable minds would accept as adequate. Because of
that possibility, the mere existence of a later favorable decision by one
ALJ does not undermine the validity of another ALJ’s earlier
unfavorable decision or the factfindings upon which it was premised.
Id. (citations and quotation omitted). Johnson has given the undersigned no cause
to conclude that Hunter’s reasoning does not apply here as well.
Moreover, as a general matter, “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…this Court to
conclude that the ALJ considered her medical condition as a whole.”
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam) (quotation omitted).
Rather, an ALJ is only required to explain the weight given to “obviously probative
exhibits.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (per curiam)
(quotation omitted). Accord Lawton v. Comm'r of Soc. Sec., 431 F. App'x 830, 835
(11th Cir. 2011) (per curiam) (unpublished) (“Although the ALJ is not required to
specifically refer to every piece of evidence in the record, Dyer, 395 F.3d at 1211, he
is required to explain the weight he afforded to ‘obviously probative exhibits,’
Cowart, 662 F.2d at 735 (quotation omitted).”).
Dr. Sherman’s report was based on a single consultative examination
occurring January 12, 2012, and the Prior Decision found that Johnson was
disabled only for a period ending April 16, 2012. Johnson’s present application
alleges disability beginning over a year after the Prior Decision, on September 30,
2013. Moreover, while Johnson emphasizes that the Previous Decision’s summary
of Dr. Sherman’s report was “the only consultative physical examination of Mrs.
Johnson” (Doc. 11 at 10 (emphasis added)), Johnson’s present application claimed
disability based only on mental impairments (see R. 61, 127, 144). Thus, to the
extent they could be considered evidence, Johnson has failed to show how either the
Prior Decision or its summary of Dr. Sherman’s 2012 report was “obviously
probative” of the issue of whether Johnson was disabled on or after September 30,
2013, due to mental impairments, such that reversal and remand is required. See
Phillips, 357 F.3d at 1238 (“[T]he regulations define RFC as that which an
individual is still able to do despite the limitations caused by his or her
impairments.” (emphasis added)).8 Relatedly, because Johnson was only claiming
Johnson does not argue the rule that an “ALJ must state with particularity
the weight given to different medical opinions and the reasons therefor” applies to
the Prior Decision’s discussion of Dr. Sherman’s report, Winschel, 631 F.3d at 1179,
and the undersigned is not convinced that the previous ALJ’s summary of Dr.
Sherman’s report itself qualifies as a “medical opinion” that the ALJ here would
have been required to specifically address.
Luckey v. Astrue, 331 F. App'x 634 (11th Cir. 2009), which Johnson has cited
disability based on mental impairments, and in light of the fact that the record
contained other medical evidence of Johnson’s physical abilities, see infra, the ALJ
did not err by failing to obtain a physical consultative examination before denying
her 2013 DIB application. See Ingram, 496 F.3d at 1269 (“The administrative law
judge has a duty to develop the record where appropriate but is not required to
order a consultative examination as long as the record contains sufficient evidence
for the administrative law judge to make an informed decision.”).
Accordingly, the Court OVERRULES Johnson’s first claim of error.
Second Claim of Error (Stress Test Results)
Johnson next argues that the ALJ reversibly erred in failing to assign weight
to the results from an exercise treadmill stress test conducted June 1, 2013, in
which Johnson “exercise[d] for 6 minutes achieving a maximum heart 151 and
exceeded the target heart rate.” (See R. 220, 235). While conceding that the stress
test and concurrent nuclear imaging “did not indicate a cardiac impairment,”
as dealing with a “similar situation,” is materially distinguishable. The Luckey
panel found that the ALJ there reversibly erred because, inter alia, it was unclear
whether the ALJ had considered records of clinical psychologist Dr. Oatley
diagnosing the plaintiff with paranoid personality disorder. 331 F. App'x at 640.
Much as the undersigned does here with Dr. Sherman’s report, the Luckey panel
actually noted that it “recognize[d] the force of the argument that the ALJ was not
required to consider Oatley’s diagnoses because they pertained only to Luckey’s
previous disability application.” Id. n.1. Nevertheless, the panel found that the
ALJ should have sufficiently explained his consideration of Dr. Oatley’s diagnosis
because “Oatley’s medical reports were part of the record evidence considered by
the ALJ.” Id. (emphasis added. Luckey says nothing about consideration of a
previous ALJ’s finding of fact regarding medical records, and Johnson acknowledges
that Dr. Sherman’s report itself was not part of the administrative record
considered by the ALJ here. Moreover, Dr. Oatley’s records were obviously
probative in Luckey because the plaintiff there expressly claimed disability based on
paranoid personality disorder.
Johnson nevertheless argues that the results are clearly probative because they
demonstrate “Johnson’s limited exercise capability,” which is “clearly inconsistent
with the ability to sustain work at the Heavy level of physical exertion.” (Doc. 11 at
12 – 13).
The undersigned agrees with the Commissioner that the record does not
support Johnson’s dire lay reading of the stress test results.
Dr. Cave, the
physician who performed the stress test, documented “adequate,” “unremarkable,”
and “normal” findings from the test, in particular noting Johnson’s “normal tensive
response to exercise” with “[n]o symptoms…reported.”
The ALJ was
entitled to defer to Dr. Cave’s medical judgment regarding the results of the stress
test, and those unremarkable findings are not “clearly inconsistent with” the ALJ’s
assigned RFC, nor are they “obviously probative” of whether Johnson was disabled
on or after September 30, 2013, due to mental impairments. Accordingly, the Court
OVERRULES Johnson’s second claim of error.
Third Claim of Error (Treating Psychiatrist Opinion)
determination may include medical opinions.
See 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2). “ ‘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] impairment(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and
[the claimant's] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79
(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).
“There are three tiers of
medical opinion sources: (1) treating physicians; (2) nontreating, examining
physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of
Soc. Sec., 585 F. App'x 758, 762 (11th Cir. 2014) (per curiam) (unpublished) (citing
20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2)). “In assessing medical opinions,
the ALJ must consider a number of factors in determining how much weight to give
to each medical opinion, including (1) whether the physician has examined the
claimant; (2) the length, nature, and extent of a treating physician's relationship
with the claimant; (3) the medical evidence and explanation supporting the
physician’s opinion; (4) how consistent the physician’s opinion is with the record as
a whole; and (5) the physician’s specialization.
These factors apply to both
examining and non-examining physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586
F. App'x 521, 523 (11th Cir. 2014) (per curiam) (unpublished) (internal citations
and quotation marks omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) &
(e)). “[T]he ALJ must state with particularity the weight given to different medical
opinions and the reasons therefor.” Winschel, 631 F.3d at 1179.
“A ‘treating source’ (i.e., a treating physician) is a claimant's ‘own physician,
psychologist, or other acceptable medical source who provides, or has provided,[
the claimant] with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].’ ” Nyberg v. Comm'r of Soc.
Sec., 179 F. App'x 589, 591 (11th Cir. 2006) (per curiam) (unpublished) (quoting 20
C.F.R. § 404.1502). “Absent ‘good cause,’ an ALJ is to give the medical opinions of
treating physicians ‘substantial or considerable weight.’ ” Winschel, 631 F.3d at
1179 (quoting Lewis, 125 F.3d at 1440). That is so because treating sources are
likely in a better position “to provide a detailed, longitudinal picture of [a
claimant’s] 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
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
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.’ With good cause,
an ALJ may disregard a treating physician's opinion, but he ‘must clearly articulate
[the] reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d
at 1240-41) (internal citation omitted). See also, e.g., Bloodsworth, 703 F.2d at 1240
(“[T]he opinion of a treating physician may be rejected when it is so brief and
conclusory that it lacks persuasive weight or where it is unsubstantiated by any
clinical or laboratory findings. Further, the Secretary may reject the opinion of any
physician when the evidence supports a contrary conclusion.” (citation omitted)).
An ALJ’s failure to clearly articulate the reasons for giving less weight to the
opinion of a treating physician is reversible error. Lewis v. Callahan, 125 F.3d at
1440 (citing MacGregor, 786 F.2d at 1053).
Johnson argues that the ALJ’s reasons for failing to assign substantial, if not
controlling, weight to the medical opinion of Johnson’s treating psychiatrist, Dr.
Hammond, are not supported by substantial evidence. The ALJ summarized Dr.
Hammond’s treatment notes and medical opinions as follows:
The claimant has a very long history of non-disabling mental health
In 2003, she appeared for treatment with Marilyn
Hammond, M.D. and reported that she had been in and out of therapy
since 1987 and was starting to have suicidal thoughts. In the
evaluation performed on October 13, 2003, bipolar disorder was ruled
out but she was diagnosed with dysthymia and OCD and assigned a
GAF score of 50. She returned to therapy in March of 2011 and
bipolar disorder was added as a diagnosis. She has visited quarterly
for medication management since. The treatment notes reflect that
she has been doing very well with medication at almost all of the visits.
No acute symptoms or exacerbation of her conditions have been noted
(Exhibit B1F). In May of 2014, the claimant reported that she feels
that she is unable to work and that she has been fired three times for
poor work performance. Dr. Hammond noted that, “After 15 years of
outstanding work as a legal assistant she does not appear to have
dementia on evaluation but may have some other cognitive
She then recommended that the claimant have
neuropsychological testing done. In October, Dr. Hammond noted that
the claimant was doing well and was well groomed. She was pleasant,
sleeping well, eating well, with good concentration and coherent
thought processes. The claimant reported that she did not follow up
with the recommended neuropsychological testing because she could
not afford it (Exhibit B4F). At every visit, the claimant had a GAF
score of 50 noted. She was noted to be doing very well at almost every
visit. She was noted to be coping well with family stressors such as
her daughter using drugs having custody issues (Exhibit B9F). In May
of 2014 and August of 2015, Dr. Hammond completed forms on the
claimant’s behalf giving opinions about the claimant’s residual
functional capacity. On the first form, she indicated that the claimant
has moderate to marked deficiencies in concentration, persistence or
In a footnote, the ALJ noted that the “GAF scale was designed by psychiatrists to
rate the psychological, social and occupational functioning of an individual patient
on a mental health scale of 0-100…A GAF score of 50 equals serious symptoms or
any serious impairment.” (R. 17 n.1 (citing the Diagnostic and Statistical Manual of
Mental Disorders, 4th ed., p. 32)).
pace. She indicated that the claimant has moderate restrictions in
responding appropriately to coworkers in a work setting. She noted
that the claimant reported having been fired three times from jobs due
to performance problems and that she should have a
neuropsychological evaluation performed. On the later form, she
indicated that the claimant has marked limitations in maintaining
social functioning and in maintaining concentration, persistence or
pace. She indicated that the claimant has had three episodes of
decompensation of extended duration and has moderate limitations in
understanding, remembering, and carrying out instructions in a work
setting. She has moderate restrictions in performing simple and
repetitive tasks in a work setting (Exhibits B3F, B8F).
(R. 17 – 18 (footnote omitted)).
The ALJ assigned “[n]o weight…to Dr. Hammond’s opinions[,]” explaining as
Although she is a long-term treating physician, her opinions are not
consistent with her own treatment notes. The treatment notes reflect
no deficits in concentration and the claimant has been doing well with
medication and managing stressful situations. She has had no
psychiatric hospitalizations and no acute symptoms reported in the
twelve years that Dr. Hammond has treated her and no side effects
from her medication. The opinion forms are not consistent with one
another. Dr. Hammond indicated that the claimant has no difficulty in
maintaining social functioning on the first form and indicated she has
marked difficulty on the later form. Her ability to understand,
remember, and carry out instructions changed from moderate to
marked between the two evaluations as well. The treatment notes do
not reflect any changes of that nature during that timeframe. On the
first form, she noted that the claimant has diagnoses of bipolar
disorder, dysthymia and major depression. On the second form, she
noted that the claimant has diagnoses of bipolar disorder, dysthymia,
and anxiety. There is no evidence on the record of episodes of
decompensation of extended duration – Dr. Hammond indicated that
she had three episodes of decompensation of extended duration. These
discrepancies severely erode Dr. Hammond’s credibility.
The ALJ adequately articulated “good cause” to reject Dr. Hammond’s
opinions by stating that they were inconsistent with Dr. Hammond’s own treatment
notes and providing specific examples of those inconsistencies.
identifies no specific discrepancies between Dr. Hammond’s records and the ALJ’s
summary of those records.
Having independently reviewed Dr. Hammond’s
treatment notes and opinions (R. 197 – 209, 237 – 242, 252, 262 – 264 [SSA Exs.
B1F, B3F, B4F, B6F, B8F & B9F), the undersigned finds the ALJ’s summary
reflects a fair consideration of that evidence, and that substantial evidence supports
the ALJ’s conclusion that Dr. Hammond’s treatment notes were not consistent with
Johnson attaches much significance to the fact that Dr. Hammond
consistently assigned her a GAF score of 50 throughout her treatment notes –
indicative on the GAF scale of “serious symptoms or any serious impairment” – and
provided “the diagnosis of Bipolar II and Dysthymia” with each GAF score.
However, “the mere existence of these impairments does not reveal the extent to
which they limit [Johnson’s] ability to work[,]” Moore, 405 F.3d at 1213 n.6, and
[t]he Commissioner has concluded…that the GAF scale “does not have
a direct correlation to the severity requirements in [the] mental
disorders listings.” Revised Medical Criteria for Evaluating Mental
Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746, 50764–65
(Aug. 21, 2000). As the Sixth Circuit has observed, GAF scores may be
Because the ALJ’s conclusion that Dr. Hammond’s opinions were inconsistent
with her treatment notes provides sufficient “good cause” to reject those opinions,
the undersigned need not address whether the ALJ’s additional conclusion that the
opinions themselves were inconsistent also constituted “good cause” to reject them.
helpful in formulating a claimant's RFC, but are not essential to the
RFC’s accuracy, and an ALJ’s failure to describe GAF scores does not
render the ALJ’s RFC assessment inaccurate. Howard v. Comm'r of
Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002). Similarly, the Eighth
Circuit has recognized that a GAF score may have little or no bearing
on a claimant’s social and occupational functioning. Jones v. Astrue,
619 F.3d 963, 973 (8th Cir.2010).
Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 613 (11th Cir. 2015) (per
curiam) (unpublished). See also Luterman v. Comm'r of Soc. Sec., 518 F. App'x 683,
688 (11th Cir. 2013) (“[T]he Social Security Commission had declined to endorse the
use of GAF scores in social security disability programs because they have no direct
correlation to the severity requirements of the mental disorders listings. See
Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain
Injury, 65 Fed. Reg. 50746, 50764–65 (Aug. 21, 2000).”).
Thus, contrary to
Johnson’s assertions, a GAF score of 50 is not necessarily indicative of symptoms
“which preclude the individual from maintaining employment” under the Social
Security regulations. (Doc. 11 at 14). While Johnson also cites other portions of the
treatment notes, much of it Johnson’s subjective complaints, that could be viewed as
bolstering Dr. Hammond’s opinions, this Court “must affirm if the decision reached
is supported by substantial evidence[,]” “[e]ven if the evidence preponderates
against the Commissioner’s factual findings…”
Ingram, 496 F.3d at 1260
(quotation omitted). See also Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc) (“[F]indings of fact made by administrative agencies…may be
reversed by this court only when the record compels a reversal; the mere fact that
the record may support a contrary conclusion is not enough to justify a reversal of
the administrative findings.”). Because the ALJ articulated sufficient “good cause”
to reject Dr. Hammond’s opinions, and because substantial evidence supports that
“good cause,” the Court OVERRULES Johnson’s third claim of error.
Fourth Claim of Error (Non-examining Physician Opinion)
Johnson next argues that the ALJ reversibly erred in giving “substantial
weight” to the opinions of Dr. Veits, a non-examining state agency consultant. It is
true that “[t]he opinions of nonexamining, reviewing physicians,…when contrary to
those of the examining physicians, are entitled to little weight, and standing alone
do not constitute substantial evidence.” Sharfarz v. Bowen, 825 F.2d 278, 280 (11th
Cir. 1987) (per curiam) (citing Spencer ex rel. Spencer v. Heckler, 765 F.2d 1090,
1094 (11th Cir. 1985) (per curiam)). Nevertheless,
[r]egulations require that an ALJ consider the opinions of nonexamining physicians, including state agency psychological
consultants. 20 C.F.R. § 404.1527(f). The weight due to a nonexamining physician’s opinion depends, among other things, on the
extent to which it is supported by clinical findings and is consistent
with other evidence. See id. § 404.1527(d)(3)–(4); see also Crawford v.
Comm'r of Soc. Sec., 363 F.3d 1155, 1158, 1160 (11th Cir. 2004)
(holding that the ALJ did not err in relying on a consulting physician's
opinion where it was consistent with the medical evidence and findings
of the examining physician). Generally, the more consistent a
physician’s opinion is with the record as a whole, the more weight an
ALJ should place on that opinion. 20 C.F.R. § 404.1527(d)(4)…[W]here
a non-examining physician’s assessment does not contradict the
examining physician’s report, the ALJ does not err in relying on the
non-examining physician's report. See Edwards v. Sullivan, 937 F.2d
580, 584–85 (11th Cir.1991).
Jarrett v. Comm'r of Soc. Sec., 422 F. App'x 869, 873 (11th Cir. 2011) (per curiam)
(unpublished). Notably, “[i]f an ALJ has shown good cause to reject the opinion of a
treating or examining physician, the ALJ may then properly rely on the opinion of a
non-examining medical source if it is consistent with the objective evidence of
record.” Ethridge v. Berryhill, No. 1:16CV788-WC, 2017 WL 4780619, at *5 (M.D.
Ala. Oct. 23, 2017) (Capel, M.J.) (citing cases). See also Jarrett, 422 F. App'x at 874
(holding that ALJ did not err in giving significant weight to opinions of state agency
consultants where the ALJ appropriately gave little weight to the treating
physician’s opinion, no other examining physician opinion contradicted them, and
the non-examiner opinions were consistent with the treating physician’s notes).
Johnson argues that Dr. Veits’s opinion was unreliable because it was based
on his review of only a limited range of medical records. More specifically, Johnson
points out that, at the time Dr. Veits rendered his opinion on January 10, 2014, Dr.
Hammond had not provided either of her opinions, Johnson had not undergone a
consultative examination, see infra, and the only treatment record from after
September 30, 2013, the alleged onset date, that Dr. Veits considered was by a note
by Dr. Hammond from November 20, 2013, “the first visit after Mrs. Johnson’s
employment was terminated.” (Doc. 11 at 18). Because, “[a]t the time Dr. Veits
reviewed the records of Dr. Hammond, most of the records reflected Mrs. Johnson’s
employment[,]” Johnson argues “[i]t is not surprising that Dr. Veits’ assessment
was consistent with the ability to work, in that most of the records from Dr.
Hammond were during the time Mrs. Johnson was working.” (Id.).
However, the ALJ found that Dr. Veits’s opinion was “consistent with the
claimant’s treatment history and the other substantial evidence contained in the
record[,]” though the ALJ also gave Johnson the benefit of the doubt based on
“evidence received at the hearing level” and found that Johnson was “slightly…more
limited” than Dr. Veits’s opinion suggested. (R. 19). The ALJ properly gave no
weight to the opinion of treating physician Dr. Hammond, as has been explained
above, and Johnson does not dispute the ALJ’s finding that Dr. Veits’s opinion was
largely consistent with the objective medical evidence of record. Accordingly, the
ALJ did not err in assigning significant weight to Dr. Veits’s opinion, and Johnson’s
fourth claim of error is OVERRULED.
Fifth Claim of Error (Consultative Examiner’s Opinion)
Johnson underwent a consultative psychiatric examination with Dr. Starkey
on April 14, 2015. In conjunction with this examination, Dr. Starkey provided a
medical opinion in the form of a Medical Source Statement of Ability to do WorkRelated Activities (Mental). (See R. 19). Johnson’s final claim of reversible error is
that, despite assigning Dr. Starkey’s opinion “significant weight,” the ALJ’s RFC is
inconsistent with certain facets of the opinion. Specifically, Johnson argues Dr.
Starkey’s finding that Johnson “has moderate restrictions in understanding and
remembering simple instructions,” which the ALJ expressly noted in his decision (R.
19), is inconsistent with the RFC determination that Johnson “has an unlimited
ability to understand, remember, and carry out short and simple instructions…” (R.
Johnson also argues that the ALJ completely failed to incorporate into the
RFC Dr. Starkey’s finding that Johnson had “moderate to marked restrictions in
responding appropriately to usual work situations and changes in a routine work
setting,” despite also expressly noting that facet of the opinion in his decision (see R.
The undersigned finds no reversible error in this regard. The ALJ did not
indicate that he was assigning Dr. Starkey’s opinion “controlling” weight, and, “[a]t
least where the opinion is not from a treating source, the Eleventh Circuit imposes
no rigid requirement that an ALJ, in crediting a medical opinion, must repeat it
word for word in the RFC determination.” Caffey v. Colvin, No. CV 15-00490-N,
2016 WL 6436564, at *9 (S.D. Ala. Oct. 28, 2016) (citing cases) (footnote omitted).
With regard to Dr. Starkey’s finding that Johnson had “moderate to marked
restrictions in responding appropriately to usual work situations and changes in a
routine work setting,” the ALJ appears to have adequately taken that finding into
account by limiting Johnson to “only occasional interaction with the public,
coworkers, and supervisors” and ruling out “production-paced work” (R. 16).
The ALJ also appears to have accounted for Dr. Starkey’s finding that
Johnson “has moderate restrictions in understanding and remembering simple
instructions” by limiting Johnson to instructions that were both “simple” and
“short.” Moreover, the ALJ’s decision adequately indicates that he did not adopt Dr.
Starkey’s opinion in toto but instead considered it in conjunction with the record as
a whole in formulating his RFC, noting that “[m]uch of the opinion was apparently
based on [Johnson]’s subjective reports of symptoms” and determining that the
“longitudinal medical evidence reveals limitations at the low end of the ranges
designed by Dr. Starkey…” (R. 19). The ALJ’s decision also noted that Johnson has
“continued to work part-time as a legal assistant scanning documents and
transcribing interviews” (R. 19 – 20), which supports the ALJ’s determination that
Johnson had no restrictions in understanding and remembering short and simple
Accordingly, the Court OVERRULES Johnson’s fifth claim of error. Having
overruled all claims of error raised, the Court finds that the Commissioner’s final
decision denying Johnson benefits is due to be AFFIRMED.
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued November 18, 2016, denying Johnson’s
application for a period of disability and DIB is AFFIRMED under sentence four of
42 U.S.C. § 405(g).
Final judgment shall issue separately in accordance with this order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 9th day of November 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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