Wilson v. Colvin
MEMORANDUM OPINION AND ORDER that Commissioner's decision denying benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 9/24/2015. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
PAMELA DELOISE WILSON,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 15-00080-N
MEMORANDUM OPINION AND ORDER
Social Security Claimant/Plaintiff Pamela Deloise Wilson (“Wilson”) has brought
this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final
decision of the Defendant Commissioner of Social Security (“the Commissioner”)
denying her protective applications for disability insurance benefits (“DIB”) under Title
II of the Social Security Act, 42 U.S.C. § 401, et seq., and supplemental security income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. By the
consent of the parties (see Doc. 19), 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 Doc. 20).
Upon consideration of the parties’ briefs (Docs. 13, 14) and the administrative
record (Doc. 12) (hereinafter cited as “(R. [page number(s)])”),1 the Court finds that the
Commissioner’s decision is due to be AFFIRMED.
With the Court’s consent, the parties jointly waived the opportunity for oral argument.
(See Docs. 17, 18).
Wilson protectively filed applications for DIB and SSI with the Social Security
Administration (“SSA”) on February 19 and February 14, 2013, respectively, alleging
disability beginning February 10, 2013.2 After her applications were initially denied,
Wilson requested a hearing on her applications, which was held before an
Administrative Law Judge (“ALJ”) for the SSA on April 16, 2014. (R. 16).
On July 18, 2014, the ALJ issued an unfavorable decision on Wilson’s
applications, finding her “not disabled” under the Social Security Act. (See R. 17 - 26).
Wilson requested review of the ALJ’s decision by the Appeals Council for the SSA’s
Office of Disability Adjudication and Review (R. 8), which denied her request on
December 10, 2014. (R. 1 - 4).
On February 13, 2015, Wilson filed this action under §§ 405(g) and 1383(c)(3) for
judicial review of the Commissioner’s December 10, 2014 final decision. (Doc. 1).
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 Appeals Council.”); 42 U.S.C. § 1383(c)(3) (“The final
“The Social Security Act's general disability insurance benefits program (‘DIB’)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. 423(a).
The Social Security Act's Supplemental Security Income (‘SSI’) is a separate and distinct
program. SSI is a general public assistance measure providing an additional resource to
the aged, blind, and disabled to assure that their income does not fall below the poverty
line. Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C.
Sanders v. Astrue, Civil Action No. 11-0491-N, 2012 WL
4497733, at *3 (S.D. Ala. Sept. 28, 2012).
“For SSI claims, a claimant becomes eligible in the first month where she is both
disabled and has an SSI application on file. 20 C.F.R. § 416.202–03 (2005). For DIB
claims, a claimant is eligible for benefits where she demonstrates disability on or before the
last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005).” Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
determination of the Commissioner of Social Security after a hearing [for SSI benefits]
shall be subject to judicial review as provided in section 405(g) of this title to the same
extent as the Commissioner's final determinations under section 405 of this title.”); 42
U.S.C. § 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.”).
Standard of Review
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on proper
legal standards. Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” ’ ”
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (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].’ ” Winschel, 631 F.3d at 1178
(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 Cir. 1983))). “
‘Even if the evidence preponderates against the [Commissioner]'s factual findings, we
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).
“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). Moreover, “[t]here is no presumption…that the Commissioner
followed the appropriate legal standards in deciding a claim for benefits or that the
legal conclusions reached were valid.
Instead, [the court] conduct[s] ‘an exacting
examination’ of these factors.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per
curiam) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)) (internal
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).”). “ ‘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 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th
Eligibility for DIB and SSI requires that the claimant be disabled. 42
U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). 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. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 (11th Cir. Feb. 11, 2015)
(per curiam) (unpublished).3
The Social Security Regulations outline a five-step, sequential evaluation
process used to determine whether a claimant is disabled: (1) whether the
claimant is currently engaged in substantial gainful activity; (2) whether
the claimant has a severe impairment or combination of impairments; (3)
whether the impairment meets or equals the severity of the specified
impairments in the Listing of Impairments; (4) based on a residual
functional capacity (“RFC”) assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and
(5) whether there are significant numbers of jobs in the national economy
that the claimant can perform given the claimant's RFC, age, education,
and work experience.
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v);
Phillips, 357 F.3d at 1237-39).4
“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, 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
In this Circuit, “[u]npublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014). See also
Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007)
(“Unpublished opinions are not controlling authority and are persuasive only insofar as
their legal analysis warrants.”).
4 The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual
steps of this five-step sequential evaluation.
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
If, in Steps One through Four of the five-step evaluation, a plaintiff 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 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. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834, 836 (11th
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).
“When no new evidence is presented to the Appeals Council and it denies review,
then the administrative law judge's decision is necessarily reviewed as the final
decision of the Commissioner, but when a claimant properly presents new evidence to
the Appeals Council, a reviewing court must consider whether that new evidence
renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262.
Claims on Judicial Review
The ALJ reversibly erred in not giving adequate weight to the opinion of Wilson's
treating physician, Glenton W. Davis, M.D., or, alternatively, in “fail[ing] in her duty to
develop the record by not recontacting Dr. Davis, or ordering a consultative
At Step One, the ALJ determined that Wilson had “not engaged in substantial
gainful activity since February 10, 2013, the alleged onset date.” (R. 18). At Step Two,
the ALJ determined that Wilson had the following severe impairments: congestive
angioplasty, history of coronary atherosclerosis, anemia, heart murmur, diastolic
dysfunction, hyperlipidemia, history of angina pectoris, and obesity. (R. 18). At Step
Three, the ALJ found that Wilson did not have an impairment or combination of
impairments that meets or equals the severity of the specified impairments in the
Listing of Impairments.
Wilson does not challenge any of the ALJ’s
determinations at Steps One through Three, or at Step Five finding a significant
number of jobs in the national economy that Wilson can perform. Her claims of error
concern the ALJ’s analysis in Step Four.
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 Wilson had the RFC “to perform light work as defined
in 20 CFR 404.1567(a) and 416.967(a) [sic5] except that she can occasionally push/pull
controls with her right lower extremity; occasionally reach overhead with the left upper
extremity. She can occasionally climb ramps and stairs, but never climb ladders or
scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. She should
avoid concentrated exposure to extreme heat and cold, and large bodies of water. She
should avoid all exposure to unprotected heights, hazardous moving mechanical parts,
and operating a motor vehicle for commercial purposes.
She is limited to simple,
routine, and repetitive tasks.” (R. 19).
“ ‘Medical opinions are statements from physicians and psychologists or other
The ALJ appears to have erroneously cited to 20 C.F.R. §§ 404.1567(a) and
416.967(a), defining “sedentary work,” rather than §§ 404.1567(b) and 416.967(b), defining
“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. “Light work is
defined as work that ‘involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds.’…The regulations further state that ‘[e]ven
though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing
and pulling of arm or leg controls.’ ” Id. n.5 (quoting 20 C.F.R. § 404.1567(b), which is
identical to § 416.967(b)).
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)). “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.”
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)).
“[T]he ALJ must state with particularity the
weight given to different medical opinions and the reasons therefor.” Winschel, 631
F.3d at 1179 (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per
However, 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)
“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. 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). “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
With good cause, an ALJ may disregard a treating physician's
opinion, but he ‘must clearly articulate [the] reasons’ for doing so.”
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)).
The ALJ noted that, following a stent placement in 2006, Wilson was “followed
by Dr. Glenton Davis, who indicated that her vitals were stable, lungs clear, and
extremities stable.” On February 10, 2013, Wilson went to a hospital because she was
experiencing shortness of breath and fullness in her throat associated with chest pain.”
“Her hospital course was benign, she did well on chest pain medication, and she was
discharged on February 12, 2013.” On February 19, 2013, Wilson followed up with Dr.
Davis, who “noted that her physical examination was unremarkable” (see R. 307),
though “[a]t the same time he opined that [Wilson] has congestive heart failure and is
one hundred percent disabled” (see R. 331). (R. 21).
On April 16, 2013, Wilson “returned to Dr. Davis for her coronary artery disease
and history of congestive heart failure and it was noted that she was doing well with no
problems and assessed with hypertension and congestive heart failure, stable…” On
May 11, 2013, Dr. Davis completed a Medical Source Statement, opining that Wilson
“can occasionally lift and/or carry five pounds and frequently lift and/or carry one
pound[,] can sit, stand, and/or walk one hour in an eight-hour workday[,] can
occasionally push and/or pull with arms and legs, gross manipulate, fine manipulate,
reach (including overhead), and operate a motor vehicle[,] can never climb stairs or
ladders, balance, bend, stoop, or work around hazardous machinery[,] cannot be
exposed to pulmonary irritants[, and] will miss more than four days per month.” (R.
However, a month later, on June 13, 2013, Wilson underwent surgery for left
heart catheterization, selective coronary angiogram, left ventriculogram, and cutting
balloon to mild stent placement. (R. 22). Wilson “tolerated [the procedure] well” and
was discharged the following day with instructions of no driving, working, exercising, or
lifting over five pounds for only five days. (R. 22). The ALJ noted “the record reflects
that the surgery was generally successful in relieving the symptoms.” (R. 23). Indeed,
notes from five doctor visits following the surgery (on June 27, June 28, August 13,
November 12, and November 21, 2013, three of which were with Dr. Davis), reflect
“normal” and “unremarkable” examinations, a lack of complaints from Wilson related to
her congestive heart failure, and limitations primarily concerning only diet. (See R. 22
– 23 [ALJ opinion discussing post-surgery medical evidence]; 344 [Dr. Davis’s 6/28/2013
treatment notes]; 375 – 76 [Dr. Aksut’s 6/27/2013 treatment notes]; 382 – 83 [Dr.
Aksut’s 11/21/2013 treatment notes]; 386 – 87 [Dr. Davis’s 11/12/2013 treatment notes];
389 [Dr. Davis’s 8/13/2013 treatment notes]).
After noting all of this, the ALJ assigned “little weight” to “Dr. Davis’ statement
of the claimant being 100% disabled, as well as his Medical Source Statement,” stating:
Normally a treating physician would be given great weight, but not if the
opinion is inconsistent with his treating notes and the evidence of record
of record [sic]. Not only is his opinion inconsistent with his examination
notes, it is inconsistent with cardiology records. There are no current
restrictions indicated in cardiology records. At one time, the claimant was
restricted to no driving, working, exercising, or lifting over five pounds,
but this was for only five days. The most recent cardiology treatment
records reflect only dietary restrictions. Even Dr. Davis’ records do not
reflect objective findings consistent with his opinion/assessment. His
most recent records show the claimant as doing well with stable
extremities. His treating notes do not even show the claimant reporting
shortness of breath, dizziness, swelling, hip pain or the medication side
effects that she testified too [sic].
Thus, I have given his
opinion/assessment little weight and great probative value to treatment
records as a whole.
The remaining medical evidence is essentially consistent with the overall
picture of the claimant’s medical status. The claimant underwent surgery
with a few restrictions that were for only five days. Dr. Davis, who is
given little weight, is the only provider to recommend more restrictions
that are disabling. However, as noted above, the objective evidence of
record clearly outweighs his assessment/opinion. I decline to accept his
position over the rest of the evidence, as it appears to be inconsistent with
the entire picture. I cannot even say that his assessment relies heavily on
the claimants complaints, as his most recent (2013) notes do not reflect
any complaints, as described by the claimant at the hearing.
(R. 23 – 24).
The ALJ clearly stated the weight given to Dr. Davis’s opinions – “little” – and
articulated several reasons that the Eleventh Circuit has recognized as “good cause” for
assigning less than substantial weight to a treating physician’s opinion – his opinions
were not bolstered by the evidence, evidence supported a contrary finding; and his
opinions were inconsistent with his own medical records. See Winschel, 631 F.3d at
1179. All that remains for this Court to determine is whether this decision is supported
by substantial evidence. It is.
First, as the Commissioner points out, Dr. Davis’s opinion that Wilson was
“100% disabled” is not considered a medical opinion under the Social Security
regulations, and the ALJ was not required to accept it because “the resolution of that
issue is reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(1), 416.927(d). ‘A
statement by a medical source that [a claimant is] “disabled” or “unable to work” does
not mean that [the Commissioner] will determine that [the claimant is] disabled.’ Id. §§
404.1527(d)(1), 416.927(d)(1).” Forsyth v. Comm'r of Soc. Sec., 503 F. App'x 892, 893
(11th Cir. Jan. 16, 2013) (per curiam) (unpublished). See also Lanier v. Comm'r of Soc.
Sec., 252 F. App'x 311, 314 (11th Cir. Oct. 26, 2007) (per curiam) (unpublished) (“The
ALJ correctly noted that the opinion that Lanier was unable to work was reserved to
the Commissioner. See 20 C.F.R. § 404.1527(e) (explaining that a physician's opinion
that a claimant is ‘disabled’ or ‘unable to work’ is not a medical opinion and that this
opinion is reserved exclusively to the Commissioner).”). Moreover, though Dr. Davis
opined at the time of Wilson’s February 19, 2013 examination that she was “100%
disabled” (see R. 331), his treatment notes from that exam reflect unremarkable
objective findings. (See R. 307 (noting that “vital signs stable,” “lungs are clear,” “CV
normal,” “abdomen benign,” and “extremities stable”)).
Therefore, the ALJ’s
observation that his “100% disabled” opinion was inconsistent with his treatment notes
Dr. Davis’s treatment notes from the February 19, 2013 examination simply note: “Patient
disabled.” (R. 307). The “100% disabled” opinion was issued in a separate letter, also dated
February 19, 2013, addressed “to whom it may concern” and stating, in full: “Ms. Pamela
Wilson is a patient of mine diagnosed with Congestive Heart Failure. Due to her medical
condition she is 100% disabled.” (R. 331).
is supported by substantial evidence.
Second, both of Dr. Davis’s opinions were issued prior to Wilson’s June 13, 2013
surgery, which the ALJ noted was “generally successful in relieving the symptoms.” (R.
23). The post-surgery medical evidence of record supports this determination. Thus,
substantial evidence supports the ALJ’s decision to give less weight to Dr. Davis’s presurgery opinions because, whatever weight they may have carried prior to Wilson’s
surgery, their continued viability was not supported by post-surgery medical evidence.7
Wilson defends Dr. Davis’s opinions as being “supported by the medical evidence
of record that existed at the time Dr. Davis gave” them but acknowledges that “things
significantly changed in Ms. Wilson’s case[ following her surgery], and it is unclear
whether or not [Dr. Davis’s] opinion continued to represent Ms. Wilson’s limitations…”
(Doc. 13 at 8 – 10). This leads into Wilson’s second claim of error, which asserts that
the ALJ was required to either recontact Dr. Davis for a new opinion or order a
consultative examination to assess Wilson post-surgery, due to “the lack of medical
evidence existing after Ms. Wilson's operation” – in particular, the lack of “opinions
provided from any source whatsoever regarding Ms. Wilson's ability to function” after
the surgery. (Id. at 10, 13).
Although the ALJ generally has an obligation to develop the record, the
ALJ did not err by failing to inquire into Ingram's mental capacity. Even
though Social Security courts are inquisitorial, not adversarial, in nature,
claimants must establish that they are eligible for benefits. 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. Doughty v. Apfel, 245 F.3d 1274, 1281
The ALJ found Wilson’s subjective testimony regarding her symptoms and limitations to
be “inconsistent and unpersuasive.” (R. 23). Wilson does not challenge that finding on
(11th Cir. 2001) (citation omitted).
Ingram, 496 F.3d at 1269. See also 20 C.F.R. §§ 404.1519a(b), 416.919a(b) (“We may
purchase a consultative examination to try to resolve an inconsistency in the evidence,
or when the evidence as a whole is insufficient to allow us to make a determination or
decision on your claim.”).
Regarding an ALJ’s “duty” to recontact a treating physician,
20 C.F.R. §§ 404.1520b(b) and 416.920b(b) both state: “If any of the
evidence in your case record, including any medical opinion(s), is
inconsistent, we will weigh the relevant evidence and see whether we can
determine whether you are disabled based on the evidence we have.”
Thus, a mere determination that a medical opinion is inconsistent does
not require an ALJ to recontact the source before discounting that
evidence. An ALJ, among other courses of action, “may recontact [the
claimant's] treating physician, psychologist, or other medical source” if
“the evidence is consistent but [the ALJ] ha[s] insufficient evidence to
determine whether [the claimant is] disabled, or if after weighing the
evidence [the ALJ] determine[s he] cannot reach a conclusion about
whether [the claimant is] disabled ...” 20 C.F.R. §§ 404.1520b(c)(1),
416.920b(c)(1) (emphasis added). See also Social Security Ruling (SSR)
96–5P (effective July 2, 1996) (“[I]f the evidence does not support a
treating source's opinion on any issue reserved to the Commissioner and
the adjudicator cannot ascertain the basis of the opinion from the case
record, the adjudicator must make ‘every reasonable effort’ to recontact
the source for clarification of the reasons for the opinion.”). Even then, the
regulations give ALJs discretion in “determin[ing] the best way to resolve
[an] inconsistency or insufficiency[,] ... depend[ing] on the nature of the
inconsistency or insufficiency.” 20 C.F.R. §§ 404.1520b(c), 416.920b(c). See
also Williams v. Comm'r, Soc. Sec. Admin., 580 F. App'x 732, 734 (11th
Cir. Sept. 10, 2014) (per curiam) (unpublished) (“When evidence,
including opinion evidence, is inconsistent, the ALJ has no duty to
consider it. See 20 C.F.R. § 416.920b (providing that, if any record
evidence is inconsistent, the ALJ will take the additional step of weighing
the relevant evidence to determine disability).”); Harris v. Colvin, 584 F.
App'x 526, 528 n. 1 (9th Cir. Aug. 15, 2014) (per curiam) (unpublished)
(“The agency was not required ... to re-contact Dr. Lindstrom, since the
evidence was sufficient to make a determination as to disability. 20 C.F.R.
§ 404.1520b(c); McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)
(noting that ‘[r]ejection of the treating physician's opinion ... does not by
itself trigger a duty to contact the physician for more explanation.’).”);
Beasley v. Colvin, 520 F. App'x 748, 752 (10th Cir. April 10, 2013)
(unpublished) (“An ALJ need only recontact a treating source ‘[i]f evidence
from the claimant's treating doctor is inadequate to determine if the
claimant is disabled.’ Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th
Cir. 2004); see also 20 C.F.R. § 404.1520b(c). Although the ALJ noted that
the handwritten notes were difficult to read, he further noted that ‘Dr.
Linden also completed a checklist, indicating multiple mental
limitations.’... The ALJ then discussed those findings. The ALJ had no
duty to recontact Dr. Linden in this situation because the evidence was
adequate to evaluate whether Ms. Beasley was disabled.”)…
Hale v. Colvin, Civil Action No. 14-00222-CG-N, 2015 WL 3397939, at *10 (S.D. Ala.
Apr. 24, 2015) (footnote omitted), report and recommendation adopted, 2015 WL
3397628 (S.D. Ala. May 26, 2015).
Wilson’s claim that there was a “lack of medical evidence existing after [her]
operation” is incorrect. As previously discussed, treatment notes from five doctor visits
taking place after Wilson’s surgery indicated “normal” and “unremarkable” findings
and a lack of major health complaints from Wilson. Though Wilson’s brief points to
symptoms noted in these records that may suggest possible limitations (e.g. high blood
pressure, refiling nitroglycerin prescription for chest pain) warranting further medical
investigation, read as a whole the post-surgery treatment notes do not indicate that
Wilson’s physicians were significantly concerned about these symptoms. Moreover, this
Court may not substitute its own judgment for the ALJ’s, nor may it reverse the
Commissioner even when a preponderance of the evidence may support a different
conclusion. Here, the ALJ, after examining the medical evidence of record, determined
“that the record reflects that the surgery was generally successful in relieving
[Wilson’s] symptoms” and that Wilson was not disabled. This finding is supported by
substantial record evidence, and the Court finds no reason to conclude that the record
was so deficient that the ALJ was required to order a consultative examination or
recontact Dr. Davis. Cf. Robinson v. Astrue, 365 F. App'x 993, 999 (11th Cir. Feb. 19,
2010) (per curiam) (unpublished) (“ ‘In evaluating the necessity for a remand, we are
guided by whether the record reveals evidentiary gaps which result in unfairness or
clear prejudice.’ Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (quotations
omitted). The likelihood of unfair prejudice may arise if there is an evidentiary gap that
‘the claimant contends supports her allegations of disability.’ Id. at 936 n.9. The ALJ
did not discount Robinson's limitations, as it found that she did in fact have severe
impairments that prevented her from performing her past relevant work. In light of the
substantial evidence in the record, including the vocational expert's testimony, the ALJ
had the necessary information to determine Robinson's impairments, her residual
functional capacity, and her ability to work. We note that the task of determining a
claimant's residual functional capacity and ability to work is within the province of the
ALJ, not of doctors. Moreover, Robinson has not shown that she suffered prejudice as a
result of any failure of the ALJ to perform further factfinding, because there is no
evidence ALJ's decision would have changed in light of any additional information.
Consequently, the ALJ did not err by not requesting an additional consultative
examination or by failing to recontact treating or examining physicians.”).8
Because Wilson has not shown that the ALJ erred in assigning little weight to
Dr. Davis’s opinions, nor has she shown that the ALJ failed to adequately develop the
Moreover, as the undersigned has previously observed, “[n]othing in the regulations
requires the ALJ to accept at least one medical opinion before rendering a decision—indeed,
an ALJ may make a disability determination without any medical opinion in the record.”
Hale, 2015 WL 3397939, at *11. See also 20 C.F.R. §§ 404.1527(a)(2) & 416.927(a)(2)
(“Evidence that you submit or that we obtain may contain medical opinions.” (emphasis
record, the Commissioner’s decision denying her applications for DIB and SSI is due to
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued December 10, 2014, denying Wilson’s applications
for DIB and SSI benefits is AFFIRMED under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Final judgment shall issue separately in accordance with this Order and Federal
Rule of Civil Procedure 58.
DONE and ORDERED this the 24th day of September 2015.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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