Evans v. Astrue
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
THOMAS JEFFERSON EVANS, JR.,
MICHAEL J. ASTRUE,
Commissioner of Social Security,:
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.
Oral argument was waived in this action (Doc. 20).
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
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
Richardson v. Perales, 402 U.S. 389, 401 (1971).
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).
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
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.
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
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.
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.
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
Cymbalta is used in the treatment of major depressive disorder.
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:
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).
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
markedly limited in his ability to do the following:
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
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.
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
opinion of any physician when the evidence supports a contrary
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.
Fourth, Dr. Baltz’s GAF
scores for Evans were higher than what would be expected for
someone with the limitations the Psychiatrist asserted that
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
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
Nowhere in any of the Psychiatrist’s treatment notes
is there any indication that Evans suffers from the limitations
There is no other evidence of record to support
those limitations either.
Plaintiff’s claim otherwise is
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
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.
"An impairment or combination of impairments is not severe if
it does not significantly limit your physical or mental ability to do
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).
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.
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.
claim that the ALJ did not properly consider his personality
basic work activities."
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.
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
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).
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.
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
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
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
DONE this 17th day of October, 2012.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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