Westry v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying plaintiff benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 3/16/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIE WESTRY,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Civil Action No. 2:14-00415-N

MEMORANDUM OPINION AND ORDER
Plaintiff Willie Westry brings this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a final decision of the Commissioner of Social Security
denying his application for disability insurance benefits (“DIB”). The parties have
consented to the exercise of jurisdiction by, and this case has been ordered referred
to, the undersigned United States Magistrate Judge for all proceedings in this Court
pursuant to 28 U.S.C. § 636(c). See Docs. 18, 20. The parties have waived oral
argument. Docs. 17, 19.
Upon consideration of the administrative record (“R.”) (Doc. 12), Plaintiff’s
Brief (Doc. 14), and the Commissioner’s Brief (Doc. 15), the Court has determined
that

the

Commissioner’s

decision

denying

Plaintiff’s

benefits

should

be

AFFIRMED.1

Any appeal taken from this memorandum opinion and order and simultaneously entered separate
judgment may be made directly to the Eleventh Circuit Court of Appeals. See Doc. 23.

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I.

Procedural Background

Plaintiff filed an application for DIB on July 8, 2008 (see R. 340-342), alleging
a disability onset date of June 17, 2008. See R. 340. His application was initially
denied. See R. 145-149. Hearings were conducted before Administrative Law Judge
David L. Horton (“the ALJ”) on February 26, 2010. See R. 99-123. On April 22, 2010,
the ALJ issued a decision finding Plaintiff not disabled. R. 125-38. The Appeals
Council reviewed the case and remanded it to the ALJ because the original records
considered by the ALJ included information that did not pertain to the Claimant. R.
139-43. Further hearings were conducted before the ALJ on September 17, 2012. See
R. 79-98. On November 29, 2012, the ALJ issued a second decision, now before this
Court, finding Plaintiff not disabled. R. 57-78. The Appeals Council issued a decision
declining to review the ALJ’s determination on July 15, 2014 (see R. 1-7), rendering
the Commissioner’s decision final for purposes of judicial review (see 20 C.F.R. §
404.981). Claimant timely filed a complaint in this Court on September 5, 2014. See
Doc. 1.
II.

Factual Background

Plaintiff is a resident of Pinehill, Alabama (Doc. 1 at 1), born January 17,
1970. R. 340. He was 42 at the time of the second hearing before the ALJ. R. 79, 340.
He completed ninth grade and does not have a GED. See R. 602. His past relevant
work experience includes positions as a floor maintenance worker, dump truck
driver, diesel tractor operator, and road grader. R. 70; 381-401. He has not worked
since before the alleged onset date of June 17, 2008. R. 340. Plaintiff suffers from a
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number of medical issues, including irritable bowel syndrome, sleep apnea,
hypertensive cardiovascular disease, obesity, a history of right wrist fracture, and a
history of gallbladder surgery. R. 63.
On June 19, 2008, Plaintiff was prescribed a CPAP machine by Walid W.
Freij, M.D., to treat severe obstructive sleep apnea syndrome. R. 527-40. He has
been treated by Roseanne Cook, M.D., for irritable bowel syndrome, hypertension,
sleep apnea, and a number of other conditions. R. 562-617. On February 28, 2012,
Dr. Cook completed a Medical Source Statement stating that Plaintiff could work an
8-hour workday with a number of limitations. R. 605. On March 15, 2012, Dr. Freij
completed a Medical Source Statement indicating that Plaintiff could not maintain a
regular 8-hour workday. R. 607.
III.

Claims on Appeal

On appeal to this Court, Plaintiff asserts that the Commissioner’s decision to
deny benefits is in error (i.e., not supported by substantial evidence) on the following
ground:
The ALJ erred in rejecting the opinion of the treating physician,
Roseanne Cook, M.D., and the treating neurologist, Walid W. Freij,
M.D., and in giving greater weight to the opinion of Dr. Carmichael, a
non-examining non-treating reviewing DDS physician who completed a
checkbox form after reviewing only four medical exhibits, did not
consider sleep apnea, and rendered his opinion over four years before
the ALJ’s decision.
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Doc. 14 at 1-2.
IV.

Standard of Review

In all Social Security cases, a plaintiff (sometimes referred to as a claimant)
bears the burden of proving that he or she is unable to perform his or her previous
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether
that burden has been met, and thus a claimant has proven that he or she is disabled,
the examiner (most often an ALJ) must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of examining physicians;
(3) evidence of pain; and (4) the plaintiff’s age, education, and work history (see id);
and, in turn,
uses a five-step sequential evaluation to determine whether the
claimant is disabled, which considers: (1) whether the claimant is
engaged in substantial gainful activity; (2) if not, whether the claimant
has a severe impairment; (3) if so, whether the severe impairment
meets or equals an impairment in the Listing of Impairments in the
regulations; (4) if not, whether the claimant has the [residual functional
capacity, or] RFC[,] to perform her past relevant work; and (5) if not,
whether, in light of the claimant’s RFC, age, education and work
experience, there are other jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. 2012) (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)).
If a plaintiff proves that he or she cannot do his or her past relevant work, it
then becomes the Commissioner’s burden to prove that the plaintiff 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. Id.;

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Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Finally, but importantly, although “the [plaintiff] 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) (citations omitted).
The task for this Court is to determine whether the Commissioner’s decision
to deny a plaintiff benefits is supported by substantial evidence. Substantial
evidence is defined as more than a scintilla but less than a preponderance, and
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “In determining whether
substantial evidence exists, [a court] must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the [Commissioner’s] decision.”
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Courts are precluded, however,
from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370
Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005)). “Even if the evidence preponderates against
the Commissioner’s findings, [a court] must affirm if the decision reached is
supported by substantial evidence.” Id. (citing Crawford v. Commissioner of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)) (emphasis added).

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V.
A.

Analysis

The ALJ properly considered the treating and non-treating
physicians’ opinions regarding Plaintiff’s ability to work.
The Plaintiff argues that the ALJ improperly rejected the opinions of treating

physicians, Roseanne Cook, M.D., and Walid W. Freij, M.D., while giving greater
weight to a consulting physician, R. Glenn Carmichael, M.D. Doc. 14 at 1-2. Dr. Cook
issued two separate opinions regarding Plaintiff’s functional limitations, one in
October 2009 (R. 562-68) and one in February 2012. R. 605-06. Dr. Freij issued an
opinion regarding Plaintiff’s functional limitations in March 2012. R. 607.
Evidence

considered

by

the

Commissioner

determination may include medical opinions.

in

making

a

disability

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 v. Comm'r of Soc. Sec.,

631 F.3d 1176, 1178-79 (11th Cir. 2011) (quoting 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2)).
physicians;

(2)

“There are three tiers of medical opinion sources: (1) treating
nontreating,

nonexamining physicians.”

examining

physicians;

and

(3)

nontreating,

Himes v. Comm'r of Soc. Sec., 585 F. App'x 758, 762

(11th Cir. Sept. 26, 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
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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.
non-examining physicians.”

These factors apply to both examining and

Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521,

523 (11th Cir. Sept. 30, 2014) (per curiam) (unpublished) (internal citations and
quotation marks omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)).
The ALJ “may reject the opinion of any physician when the evidence supports
a contrary conclusion.”

Bloodsworth, 703 F.2d at 1240. Accord, e.g., Anderson v.

Comm'r of Soc. Sec., 427 F. App'x 761, 763 (11th Cir. 2011) (per curiam)
(unpublished). However,
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.
“A ‘treating source’ (i.e., a treating physician) is a claimant's ‘own physician,
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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. May 2, 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
brief hospitalizations.”

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

“Good 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.’

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)).
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The ALJ concluded that Dr. Cook’s medical source statements were due “little
weight.” R. 69. The ALJ stated that this was because Dr. Cook’s statement that
“sleep apnea would prevent [the Plaintiff from] maintain concentration, persistence
or pace” was “inconsistent with the claimant report to Dr. Freij that he was feeling
refreshed when he awakened in the morning, using his C-pap machine.” Id. compare
R. 609. The ALJ also reasoned that there were no test results or symptoms present
in Dr. Cook’s treatment notes that supported Plaintiff’s complaint of pain. R. 69. The
ALJ chose to give “greater weight” to Dr. Cook’s “treatment notes, clinical findings,
and diagnostic tests” due to her relationship with the Plaintiff as a treating
physician, but chose not to accept Dr. Cook’s medical source statements. Id. Because
the ALJ determined that the physician’s opinion was not bolstered by the evidence
(see id. compare R. 609), the ALJ had “good cause” to disregard Dr. Cook’s
evaluations. See Winschel, 631 F.3d at 1179. The ALJ’s statement of the reasons for
disregarding the evaluations comport with the standard set by Winschel. See id.
Thus, the ALJ properly considered Dr. Cook’s evaluation of Plaintiff’s sleep apnea
and pain.
The same evaluation may be applied to the ALJ’s consideration of Dr. Freij’s
evaluation. The ALJ concluded that Dr. Freij’s medical source statement was due
“little weight” because the opinion that Plaintiff “could not maintain concentration,
persistence, or pace for periods of at least 2 hours” was “not consistent” with
Plaintiff’s statement that he was awakening feeling refreshed while using the C-pap
machine. R. 69 compare R. 609. The ALJ again chose to give “greater weight” to Dr.
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Freij’s “treatment notes, clinical findings, and diagnostic tests” due to his
relationship with the Plaintiff as a treating physician, but also chose not to accept
Dr. Freij’s medical source statement. Id. Because the ALJ determined that the
physician’s opinion was inconsistent with his own treatment records (see id. compare
R. 609), the ALJ had “good cause” to disregard Dr. Freij’s evaluation. See Winschel,
631 F.3d at 1179. The ALJ’s statement of the reasons for disregarding the
evaluations comport with the standard set by Winschel. See id. Thus, the ALJ
properly considered Dr. Freij’s evaluation of Plaintiff’s sleep apnea.
The ALJ also gave “greater weight” to the opinion of R. Glenn Carmichael,
M.D., that Plaintiff could perform light work activities because this opinion was
“consistent with the available medical evidence that was reviewed in rendering the
opinion.” R. 70. The ALJ must evaluate all medicals opinions before him or her. 20
C.F.R. § 404.1527(c). Evaluating an opinion such as Dr. Carmichael’s based on
consistency comports with the requirements for evaluating all medical evidence. See
20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent an opinion is with the
record as a whole, the more weight we will give to that opinion.”).
Generally, “[t]he opinions of nonexamining, reviewing physicians, such as
those of Dr[]. [Carmichael], when contrary to those of the examining physicians, are
entitled to little weight, and standing alone do not constitute substantial evidence.”
E.g., Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987). However, where an
ALJ has properly articulated good cause to give less than substantial weight to a
treating physician’s opinion, an ALJ does not err in assigning more weight to the
10

opinion of a non-examining physician, so long as other substantial evidence supports
it. Here, the ALJ articulated good cause to assign “little weight” to the treating
physicians’ opinions but gave “greater weight” to their objective treatment notes,
which the ALJ found to be “consistent with” his RFC assessment. R. 69. The ALJ
also found Dr. Carmichael’s opinion to be “consistent with the available medical
evidence that was reviewed in rendering the opinion.”

R. 70.

Thus, the ALJ

properly considered and weighed the opinion of Dr. Carmichael, along with the rest
of the medical evidence available. Compare Crow v. Comm'r, Soc. Sec. Admin., 571
F. App'x 802, 807 (11th Cir. July 7, 2014) (per curiam) (unpublished) (“[T]he
non-examining physician's assessment, indicating that Crow was capable of the full
range of light work, was consistent with the record, as the ALJ noted. The ALJ
provided specific reasons for discounting his treating physician's opinion, and those
reasons are supported by the record such that the ALJ did not err.

The ALJ also

provided specific reasons for giving greater weight to the non-treating physician's
assessment.

Accordingly, the ALJ did not err in weighing the medical opinion

evidence.” (citations omitted)), and Forrester v. Comm'r of Soc. Sec., 455 F. App'x
899, 902-03 (11th Cir. Jan. 10, 2012) (per curiam) (unpublished) (“[T]he ALJ had
‘good cause’ to not give Dr. Goss's opinion considerable weight and did not err[, and]
the ALJ did not err by relying on the opinions of the non-treating physicians, taken
alone, in a way that left its decision unsupported by substantial evidence.

The

evidence supported a contrary conclusion to Dr. Goss's opinion, and the ALJ was not
prohibited from reaching that conclusion simply because non-treating physicians
11

also reached it. Therefore, the ALJ properly explained the weight it gave to various
medical opinions, clearly articulated its reasons, and did not err by crediting the
opinions of non-treating sources over a treating one.” (citation omitted), with
Johnson v. Barnhart, 138 F. App'x 266, 271 (11th Cir. June 29, 2005) (per curiam)
(unpublished) (“Maloy’s RFC evaluation is not dispositive, as its conclusions are
from a non-treating, non-examining physician, and the other medical records
express no indication of Johnson’s ability to perform her past work.”).
B.
The ALJ relied on substantial evidence in making the RFC
assessment and in finding that the Plaintiff could perform past work.
Finally, the ALJ’s RFC determination and his subsequent determination that
the Plaintiff can perform light work at a reduced level are supported by substantial
evidence as required by Jones (190 F.3d at 1228) and Crawford (363 F.3d at
1158-59). In making the decision, the ALJ considered and relied on the opinions,
assessments, and treatment notes of Roseanne Cook, M.D.; Walid W. Freij, M.D.; R.
Glenn Carmichael, M.D.; Gary R. Kania, D.O.; and Ninna E. Tocci, Ph.D.
(psychology). R. 64-70. The ALJ also relied on the testimony of a vocational expert,
Joshua S. Tilton, Ph.D.; the testimony of a physical medical expert, William B.
Whatley III, M.D.; and the testimony of a psychological medical expert, Sydney H.
Garner, Psy.D. Id. As required by the Eleventh Circuit, the evidence relied upon is
“more than a scintilla” and is “such relevant evidence as a reasonable person would
accept as adequate to support [the ALJ’s] conclusion.” See Martin v. Sullivan, 894 F.
2d 1520, 1529 (11th Cir. 1990) (internal citations omitted). In the last analysis, the
record evidence does not support Plaintiff’s assignments of error. Rather, the record
12

as a whole reflects that the ALJ’s decision was supported by substantial evidence.
VI.

Conclusion

Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Plaintiff benefits is AFFIRMED under 42 U.S.C. § 405(g).
DONE and ORDERED this the 16th day of March 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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