Evans v. Astrue

Filing 22

MEMORANDUM AND OPINION entered: Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 10/17/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
THOMAS JEFFERSON EVANS, JR.,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 12-0161-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. 1383(c)(3), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 13).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.
21).

Oral argument was waived in this action (Doc. 20).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
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substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

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

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

(11th Cir. 1984) (quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982)).
At the time of the administrative hearing, Plaintiff was
thirty-two years old, had completed a high school special
education curriculum although he did not have a G.E.D. (Tr. 29,
91, 94, 110-12), and had previous work experience as a stocker
and landscape laborer (Doc. 13 Fact Sheet).

In claiming

benefits, Evans alleges disability due to recurrent major
depression, with history of overdose, and a cluster B
personality disorder (id.).
The Plaintiff filed an application for SSI on April 28,
2009 (Tr. 196-98).

Benefits were denied following a hearing by

an Administrative Law Judge (ALJ) who determined that although
he could not return to his past relevant work, Evans was capable
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of performing specified jobs in the national economy (Tr. 2636).

Plaintiff requested review of the hearing decision (Tr.

15-16) by the Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Evans alleges

(1) The ALJ failed to properly consider the opinions and

conclusions of a treating physician; (2) the ALJ failed to find
that one of his impairments was severe; (3) the ALJ erred in
selectively adopting the opinion of a State Agency physician;
and (4) the ALJ did not properly develop the record (Doc. 13).
Defendant has responded to—and denies—these claims (Doc. 16).
The relevant evidence of record follows.
Records from the Cahaba Center for Mental Health show that
Evans was examined on May 14, 2008 by Psychiatrist Timothy S.
Baltz whose impression was major depression, recurrent type
partial remission, and multiple situational stressors; the
doctor prescribed Cymbalta1 (Tr. 307; see generally Tr. 296-308).
On August 6, Plaintiff admitted that he had not been taking his
medication, but that he was sleeping well at night and was
feeling fine; Dr. Baltz added Cluster B type Personality
Disorder to his diagnosis and encouraged Evans to stay on his

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medications (Tr. 306).

The Court notes that the records contain

treatment notes spanning from January 24 through October 13,
2008 but disclose little information other than Evans’s
admission that he was not taking his medications as ordered (Tr.
296-97; see generally Tr. 296-308).
On November 10, 2008, Dr. Robert Estock, a non-examining
physician, completed a Psychiatric Review Technique Form
indicating that Evans had a Cluster B Personality Disorder (Tr.
309-22).

His opinion was based on the medical evidence of

record at the time he completed the form.
On January 29, 2009, records from Vaughan Regional Medical
Center show that Plaintiff made a suicide attempt by a small
overdose of his medications (Tr. 324-35).

He was transferred to

East Alabama Medical Center where he stayed for four nights (Tr.
336-42).

On discharge, Evans was less depressed and considered

stable; he was encouraged to continue with outpatient treatment.
On November 5, 2008, Psychiatrist Baltz saw Plaintiff who
said he was doing fine; the doctor noted that Evans was noncompliant with his medications but, nevertheless, re-prescribed
Cymbalta (Tr. 348; see generally Tr. 346-61).

On February 4,

2009, Plaintiff stated that he felt better after the suicide

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Cymbalta is used in the treatment of major depressive disorder.

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attempt and knew that that was the wrong thing to do (Tr. 347).
On April 8, Baltz noted that Evans had gained fifty pounds since
he had started taking medication; Plaintiff denied wanting to
hurt himself or anybody else (Tr. 346).

The doctor recommended

that Plaintiff try to get into a transitional home as a means of
increasing his independence.
On June 5, 2009, Dr. Estock completed a second Psychiatric
Review Technique Form indicating that Evans had an Affective
Disorder that was characterized as a Major Depressive Disorder
in partial remission (Tr. 368; see generally Tr. 365-78).
Estock expressed the opinion that Plaintiff was moderately
restricted in activities of daily living and that he would have
moderate difficulties in maintaining social functioning and
concentration, persistence, or pace (Tr. 375). The doctor also
completed a mental residual functional capacity assessment in
which he expressed the opinion that Evans would be moderately
limited in his ability to do the following:

understand,

remember, and carry out detailed instructions; maintain
attention and concentration for extended periods; work in
coordination with or proximity to others without being
distracted by them; complete a normal workday and workweek

Physician's Desk Reference 1791-93 (62nd ed. 2008).

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without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and
length of rest periods; interact appropriately with the general
public; accept instructions and respond appropriately to
criticism from supervisors; and respond appropriately to changes
in the work setting (Tr. 379-81).

The Court notes that Estock

did not examine Plaintiff, but based his opinions on the medical
evidence of record at the time he completed the forms.
On July 1, 2009, Dr. Baltz noted that Evans had gained
another ten pounds, was claiming to be good, and voiced a goal
of overcoming depression; his diagnostic impression was the same
(Tr. 385; see generally Tr. 385-87).

On November 4, the

Psychiatrist noted a slight weight loss and that Plaintiff
denied wanting to hurt himself or anyone else; Cymbalta was represcribed (Tr. 389; see generally Tr. 389-92).
On February 24, 2010, Psychiatrist Baltz completed a mental
residual functional capacity form in which he indicated that
Evans would have marked difficulties in his ability to maintain
social functioning; he further stated that Plaintiff would have
marked deficiencies of concentration, persistence, or pace,
resulting in frequent failure to complete tasks in a timely
manner (Tr. 396-97).

Baltz also found that Evans would be
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markedly limited in his ability to do the following:

respond to

customary work pressures; understand, carry out, and remember
instructions; and respond appropriately to supervision and coworkers in a work setting.
In his determination, the ALJ summarized the medical
evidence before determining that Evans was capable of working at
all exertional levels although there were nonexertional
limitations that would limit the types of jobs that he could
perform (Tr. 26-36).

After hearing testimony from a vocational

expert, the ALJ specifically listed hand packager and parking
lot attendant as jobs that Plaintiff would be able to perform
(Tr. 35).

In reaching his conclusions, the ALJ found that

Evans’s testimony regarding his impairments and limitations was
not credible (Tr. 33-34), a finding not challenged in this
action (see Doc. 13).
In bringing this action, Evans first claims that the ALJ
did not accord proper legal weight to the opinions, diagnoses
and medical evidence of his physician.

Plaintiff specifically

refers to the conclusions of Psychiatrist Baltz (Doc. 13, pp. 37).

The Court notes that "although the opinion of an examining

physician is generally entitled to more weight than the opinion
of a non-examining physician, the ALJ is free to reject the
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opinion of any physician when the evidence supports a contrary
conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.

1981);2 see also 20 C.F.R. § 404.1527 (2005).
The ALJ summarized the medical evidence provided by Dr.
Baltz, including the mental residual functional capacity
evaluation, but rejected his conclusions for five different
reasons (Tr. 32-33).

First, the conclusions were not supported

by the Psychiatrist’s own treatment records.

Second, the ALJ

noted that Baltz, and the therapists at Cahaba, treated
Plaintiff only infrequently; more specifically, the Psychiatrist
would usually go three months between examinations.
medication treatment was minimal.

Third,

Fourth, Dr. Baltz’s GAF

scores for Evans were higher than what would be expected for
someone with the limitations the Psychiatrist asserted that
Plaintiff had.

Fifth, the doctor characterized Evans’s

depression as being in partial remission while also stating that
he was markedly limited in essentially all activities (Tr. 3233).
The Court finds substantial support for the ALJ’s
determination that Dr. Baltz’s conclusions lacked evidentiary

2

The Eleventh Circuit, in the en banc decision Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as
precedent decisions of the former Fifth Circuit rendered prior to

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support.

Nowhere in any of the Psychiatrist’s treatment notes

is there any indication that Evans suffers from the limitations
suggested.

There is no other evidence of record to support

those limitations either.

Plaintiff’s claim otherwise is

without merit.
Evans next claims that the ALJ failed to find that one of
his impairments was severe.

More specifically, Plaintiff

asserts that although the ALJ discussed his depression, he
failed to even consider his diagnosis of personality disorder
(Doc 13, pp. 7-8).
In Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984),
the Eleventh Circuit Court of Appeals held that "[a]n impairment
can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual
that it would not be expected to interfere with the individual's
ability to work, irrespective of age, education, or work
experience."

Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.

1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985); cf. 20
C.F.R. § 404.1521(a) (2004).3

The Court of Appeals has gone on

to say that "[t]he 'severity' of a medically ascertained

October 1, 1981.
3
"An impairment or combination of impairments is not severe if
it does not significantly limit your physical or mental ability to do

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disability must be measured in terms of its effect upon ability
to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality."
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

McCruter

It is also

noted that, under SSR 96-3p, “evidence about the functionally
limiting effects of an individual’s impairment(s) must be
evaluated in order to assess the effect of the impairment(s) on
the individual’s ability to do basic work activities.”
Evans is correct in claiming that the ALJ did not address
his diagnosis of personality disorder, much less determine
whether or not it was a severe impairment.

Dr. Baltz’s notes

regularly list Cluster B Personality Disorder as one of
Plaintiff’s diagnoses (see, e.g., Tr. 306, 346-48, 385, 390).
However, Baltz’s notes make no distinction in his treatment
of the personality disorder and the depression.

Furthermore,

his conclusions regarding Evans’s abilities were discredited by
the ALJ, a finding that this Court has determined was supported
by substantial evidence.

Finally, the Court notes that

Plaintiff has not argued—much less demonstrated—that the
personality disorder affected his ability to work.

Evans’s

claim that the ALJ did not properly consider his personality

basic work activities."

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disorder in evaluating his claim of disability is without merit.
Plaintiff next claims that the ALJ erred in selectively
adopting the opinion of a State Agency physician.

Evans objects

to the ALJ’s discrediting the doctor’s finding that he would
miss one-to-two days of work a month due to psychological
symptoms (Doc. 13, pp. 8-9; cf. Tr. 381).
The Court rejects this claim as unsupported by the record.
Nowhere in the treating physician’s treatment notes is there any
suggestion that Plaintiff would miss work because of symptoms
from which he was suffering.

Likewise, Evans’s own testimony of

his limitations and abilities does not indicate such a need (see
Tr. 90-114).

This claim is without merit.

Plaintiff’s final claim is that the ALJ did not properly
develop the record.

The argument, essentially, is that because

he did not find support for limitations suggested by one of the
doctors, the ALJ should have ordered a consultative examination
to get another opinion (Doc. 13, pp. 9-10).

The Eleventh

Circuit Court of Appeals has required that "a full and fair
record" be developed by the Administrative Law Judge even if the
claimant is represented by counsel.

Cowart v. Schweiker, 662

F.2d 731, 735 (11th Cir. 1981).
The Court finds no support for this claim.
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The ALJ

rejected the unsupported opinion of a non-examining physician.
There was no reason to seek a second opinion.

The ALJ’s opinion

is supported by substantial evidence.
Plaintiff has raised four different claims in bringing this
action.

All are without merit.

Upon consideration of the

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

Perales, 402 U.S. at 401.

Therefore, it is

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

Judgment will be entered by

separate Order.
DONE this 17th day of October, 2012.

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

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