Dukes v. Colvin

Filing 23

Order re: 1 Complaint filed by Kenyada Dukes stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for supplemental security income and child insurance benefits be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/30/2016. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
KENYADA DUKES,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 15-00225-B

ORDER
Plaintiff
judicial

Kenyada

review

Social

Security

income

and

child

of

a

Dukes
final

denying

(hereinafter
decision

his

insurance

claim
benefits

of

for

“Plaintiff”)
the

Commissioner

supplemental

under

seeks

Title

Social Security Act, 42 U.S.C. §§ 1381, et seq.

of

security

XVI

of

the

On June 8,

2016, the parties consented to have the undersigned conduct any
and all proceedings in this case.

(Doc. 20).

Thus, the action

was referred to the undersigned to conduct all proceedings and
order

the

entry

of

judgment

in

accordance

with

636(c) and Federal Rule of Civil Procedure 73.

28

U.S.C.

§

Upon careful

consideration of the administrative record and the memoranda of
the

parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner be AFFIRMED.
I.

Procedural History
Plaintiff filed an application for supplemental security

income benefits on June 12, 2001, when he was fourteen years
old.

(Tr. 382).

basis

of

The claim was approved on March 4, 2003 on the

major

depression,

learning

deficit disorder.

(Id. at 111, 118).

Agency

that

disorder,

determined

December 1, 2008.

Plaintiff’s

(Id. at 174).

and

attention

On December 16, 2008, the
disability

had

ceased

on

Following Plaintiff’s request

for reconsideration, a hearing was conducted on July 28, 2010
before

Administrative

Law

Judge

Ricky

South.

(Id.

at

80).

Plaintiff (who was twenty-three years old at the time) attended
the hearing with his counsel and provided testimony related to
his claims.

(Id. at 83).

Also testifying at the hearing were

Plaintiff’s mother, a vocational expert (“VE”), and a medical
expert (“ME”).

(Id. at 90, 95, 100).

On September 20, 2010,

the ALJ issued an unfavorable decision finding that Plaintiff
was not disabled.

(Id. at 148).

The Appeals Council granted Plaintiff’s request for review
and remanded the case back to the ALJ on December 12, 2011, with
instructions to further evaluate the opinion evidence, as well
as Plaintiff’s mental and physical impairments and the effect of
any limitations on the occupational base.
subsequent

hearing

was

conducted

on

(Id. at 157-59).

May

1,

2013,

before

Administrative Law Judge Ricky South (hereinafter “ALJ”).
at 44).

A

(Id.

Plaintiff attended the hearing with his counsel and

provided testimony related to his claims.

2

(Id. at 48).

A

vocational

expert

provided testimony.
On

June

(“VE”)

also

appeared

at

the

hearing

and

filed

an

(Id. at 72).

6,

2013,

Plaintiff

protectively

application for child insurance benefits, alleging that he has
been disabled since March 15, 2009, due to right hand pain,
right hand tingling and numbness to elbow, poor right hand grip
and stiffness in dominant right hand, possible nerve damage to
right

hand,

major

depression,

mood

disorder,

ADHD,

learning

disability, high blood pressure, and glaucoma in both eyes.
(Id.

at

644,

648,

659).

Plaintiff’s

application

for

1

child

insurance benefits was escalated to the hearing level with his
remanded claim for supplemental security income benefits.
at 644; Supp. Tr. 1011).

(Id.

On September 3, 2013, the ALJ issued

two separate unfavorable decisions finding that Plaintiff is not
disabled and denying both of Plaintiff’s claims for benefits. 2
(Id.

at

8-27;

Supp.

Tr.

review on March 4, 2015.

1003).

The

(Id. at 1).

Appeals

Council

denied

Therefore, the ALJ’s

decisions dated September 3, 2013 became the final decisions of

1

Plaintiff has raised no issue on appeal regarding the ALJ’s
findings related to any of his physical impairments. (Doc. 16).
Therefore, the Court’s discussion is limited to Plaintiff’s
mental impairments.

2

As discussed, Plaintiff’s applications for benefits were decided
together.
The ALJ wrote separate opinions for each claim, but
applied the same evidence to both decisions and reached the same
result. (Tr. 27; Supp. Tr. 1003).

3

the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

waived oral argument on June 8, 2016 (Doc. 19), and agree that
this case is now ripe for judicial review and is properly before
this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issue on Appeal
1.

Whether the ALJ erred in rejecting the
opinions
of
Plaintiff’s
treating
psychiatrist, Dr. David W. Hodo, M.D.,
while crediting the opinions of the nonexamining
medical
expert,
Dr.
Doug
McKeown, Ph.D.?

III. Factual Background
Plaintiff was born on May 1, 1987, and was twenty-six years
of age at the time of his second administrative hearing on May
1, 2013.

(Tr. 44, 49).

Plaintiff was incarcerated at the time

of the second hearing; thus, he testified via telephone.

(Id.

at 46, 52).
Plaintiff testified that he graduated from high school and
took

some

special

education

classes

while

there.

He

also

testified that he attended college, but quit after a couple of
months because he had problems.

(Id. at 61).

Plaintiff worked

from 2004 to 2009 at the YMCA and at a laundry service, but none
of his work constituted substantial gainful activity.
48, 410-11).

(Id. at

Plaintiff also testified that he has difficulty

4

reading, but he can write and do simple math.
Plaintiff

testified

that

his

(Id. at 61-62).

“number

one

problem”

is

depression, for which he is being treated by Dr. David Hodo,
M.D.,

a

psychiatrist.

(Id.

at

50).

Dr.

Hodo

first

saw

Plaintiff in 1994 (when Plaintiff was six years old), and he has
treated Plaintiff off and on for years.
750).

(Id. at 70-71, 747,

According to Plaintiff, his depression causes

sleep excessively and to have mood swings.

him to

(Id. at 50).

He

takes medication for depression (Buspirone), and it makes him
drowsy.

(Id. at 56, 641-42).

Plaintiff testified that he is single and has two children,
ages

one

and

nine

months.

(Id.

at

52).

Prior

to

his

incarceration, Plaintiff lived with his mother and brother.
(Id. at 53).

3

He testified that he sometimes sleeps late but

other times gets up around 9:00 a.m., watches television, plays
with his eight-year-old brother when he gets in from school,
eats dinner, watches television, and then goes to bed.
59-61).

(Id. at

Plaintiff testified that he “sleep[s] all right” after

taking his medicine.

(Id. at 61).

Plaintiff also testified

that he can take care of his own personal care needs, including
dressing himself and showering.

(Id. at 58).

3

He does not cook

At the time of Plaintiff’s first hearing on July 28, 2010, he
testified that he lived by himself in his own apartment.
(Tr.
85).

5

or vacuum or mow the lawn, but he makes his own bed, straightens
the house, and takes out the trash.

(Id. at 58-59).

He can use

a cell phone and understands how to text but has problems with
spelling.

(Id. at 58).

He plays games on the computer.

He has a driver’s license and shops.

(Id. at 54).

(Id.).
He gets

along okay with people, although he is sometimes forgetful and
is easily distracted.

(Id. at 68).

In his Function Report submitted to the Agency in October
2008, Plaintiff stated that he can take care of all of his own
personal needs, that he can prepare his own meals, that he can
do laundry, that he can count change, and that he can use a
checkbook/money orders.

(Id. at 575-77).

He also reported that

he socializes with family and goes to church and has no problems
getting along with others.

(Id. at 578-79).

He stated that he

finishes what he starts “some time[s,]” but does not follow
instructions well and does not get along with authority figures
well, although he has never been fired from a job because of
problems getting along with other people.

(Id. at 579-80).

He

does not need reminders to take care of his personal needs, but
he needs reminders to take his medications.
IV.

(Id. at 576).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

limited

one.

The

Court’s

6

review

is

limited

to

determining

1)

whether

the

decision

of

the

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

4

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

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); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

his

or

her

4

disability.

20

C.F.R.

§§

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
7

404.1512, 416.912.

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 5
5

C.F.R.

for

20 C.F.R.

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner 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 claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

8

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity and that he has
the severe impairments of attention deficit disorder/attention
deficit hyperactivity disorder; affective disorder; right hand
pain; status post fracture; and low blood pressure of unknown
etiology.

(Tr.

Plaintiff

does

14,
not

48,

74).

have

The

an

ALJ

further

impairment

or

found

that

combination

of

impairments that meets or medically equals any of the listed
impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix
1.

(Id. at 14).
The

ALJ

concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
light

work,

with

the

following

non-exertional

limitations:

Plaintiff “is limited to no more than simple, short instructions
and simple work-related decisions with few work place changes.
He is limited to unskilled work.

The claimant can occasionally

interact with the general public, supervisors and co-workers.
He is unable to work in close proximity to others and is easily
distracted.
have

no

perform

He is limited to low stress jobs.

requirement
math

to

read

calculations.”

instructions,

6

(Id.

6

at

The job must

write

16).

reports

The

ALJ

or

also

The ALJ also assigned certain exertional limitations that are
not at issue here. (Tr. 15-16).

9

determined

that

while

Plaintiff’s

medically

determinable

impairments could reasonably be expected to produce the alleged
symptoms, his statements concerning the intensity, persistence
and limiting effects of the alleged symptoms were not credible
for the reasons explained in the decision.
The

ALJ

found

relevant work.

that

Plaintiff

(Id. at 25).

(Id. at 23).

does

not

have

any

past

However, utilizing the testimony

of a VE, the ALJ concluded that considering Plaintiff’s residual
functional capacity for a range of light work with the stated
restrictions, as well as his age, education and work experience,
there are jobs existing in the national economy that Plaintiff
is able to perform, such as “machine tender,” “wire worker,” and
“assembler,” all of which are classified as light and unskilled.
(Id.

at

26).

Thus,

the

ALJ

concluded

disability ended on December 1, 2008, and
become disabled again since that date.
The

Court

now

considers

the

that

Plaintiff’s

Plaintiff has not

(Id.).

foregoing

in

light

of

the

record in this case and the issues on appeal.
1.

Issue

A. Whether the ALJ erred in rejecting the
opinions
of
Plaintiff’s
treating
psychiatrist, Dr. David W. Hodo, M.D.,
while crediting the opinions of the nonexamining
medical
expert,
Dr.
Doug
McKeown, Ph.D.?
In

this

case,

Plaintiff

argues

10

that

the

ALJ

erred

in

rejecting the opinions of his treating psychiatrist, Dr. David
W. Hodo, M.D., while at the same time crediting the opinions of
non-examining

medical

testified

Plaintiff’s

at

expert,

Dr.

Doug

hearing.

McKeown,

(Doc.

16

Ph.D.,

who

5).

The

at

Commissioner counters that the ALJ had good cause to discredit
Dr.

Hodo’s

opinions

because

they

were

conclusory

and

inconsistent with the substantial evidence in the case and that
that the substantial evidence supports the ALJ’s finding of no
disability.

(Doc. 17).

Having carefully reviewed the record in

this case, the Court finds that Plaintiff’s claim is without
merit.
As part of the disability determination process, the ALJ is
tasked

with

examining,

weighing
and

the

opinions

non-examining

and

findings

physicians.

In

of

treating,

reaching

a

decision, the ALJ must specify the weight given to different
medical opinions and the reasons for doing so.

See Winschel v.

Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
The failure to do so is reversible error.

See Williams v.

Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009).
When
ALJ

weighing

the

opinion

of

a

treating

physician,

the

must give the opinions “substantial weight,” unless good

cause exists for not doing so.

Costigan v. Commissioner, Soc.

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4

11

(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).

The opinion of “a

one-time examining physician — or psychologist,” on the other
hand,

is

not

physician.

entitled

to

the

same

deference

as

a

treating

Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,

2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160).

An ALJ is also “required to consider the

opinions of non-examining state agency medical and psychological
consultants because they ‘are highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation.’”
(11th

Cir.

Milner v. Barnhart,
2008)

404.1527(f)(2)(i)).
examining

sources

(unpublished)
“The

when

examining sources.”

275 Fed. Appx. 947, 948

ALJ

they

may
do

(citing
rely

not

on

20

C.F.R.

opinions

conflict

with

of

§
non-

those

of

Id. (citing Edwards v. Sullivan, 937 F.2d

580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

medical

good

cause

source

exists

when

it

to

is

discredit

contrary

to

the
or

unsupported by the evidence of record.

Phillips v. Barnhart,

357 F.3d 1232, 1240 (11th Cir. 2004).

“Good cause may also

exist

where

a

doctor’s

opinions

are

merely

conclusory,

inconsistent with the doctor’s medical records, or unsupported

12

by objective medical evidence.”

Hogan v. Astrue, 2012 U.S.

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”
764

F.2d

834,

835

(11th

Cir.

1985)

(per

Sryock v. Heckler,
curiam)

(citation

omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,

212

(11th

Cir.

2010)

(The

ALJ

may

reject

any

medical

opinion if the evidence supports a contrary finding.).
The record in this case shows that Plaintiff began seeing a
psychiatrist, Dr. David Hodo, M.D., in 1994 when he was six
years

old

communicate.

for

problems

with

(Tr. 747, 750).

isolation

and

Dr. Hodo related

problems to “family turmoil” and possible ADHD.
748).

refusing

to

Plaintiff’s

(Id. at 732,

Over the next few years, Plaintiff’s appointments with

Dr. Hodo were sporadic.

(Id. at 696-97, 731).

In April 1996,

Dr. Hodo conducted tests which showed that Plaintiff’s I.Q. was
“normal,” and Dr. Hodo again noted that Plaintiff’s problems
were “emotional,”7 not the result of a learning disability.

7

(Id.

In March 1995 and May 1996, Dr. Hodo referenced family problems,
noting family turmoil and problems between Plaintiff and one of
his brothers.
(Tr. 724, 732).
In 1998, Dr. Hodo’s notations
continue to reference problems between Plaintiff and his
brother, noting that the brother was in boot camp and on
probation and that Plaintiff was not to be left alone with him.
(Id. at 706-07).
In March 1999, Dr. Hodo noted that Plaintiff
missed his father and wanted his parents to get back together.
(Id. at 700-02).

13

at

725-26).

Dr.

Hodo’s

treatment

notes

reflect

a

possible

diagnosis of adjustment disorder with depression and anxiety vs.
major depression and anxiety disorder, NOS.

(Id. at 726).

From 1996 through 2000, Dr. Hodo prescribed medications for
Plaintiff

(including

Ritalin,

Zoloft,

and

Wellbutrin)

and

consistently noted that Plaintiff was doing better/doing fine,
“more

alert,”

“brighter,”

improved

better

concentration,

school

work,

cooperative,

improved

smiling,

attention

span,

excellent grades (straight A’s and A/B honor roll), excellent
mood,

happy,

excellent

appetite,

no

behavioral

problems,

that his medications were helping with “no side effects.”

and
(Id.

at 697, 700-02, 709, 711-17, 722).
From 2001 to 2002, Dr. Hodo’s notes reflect that Plaintiff
was experiencing problems at home and at school.
687, 692-93, 696-97, 765).

Dr. Hodo

(Id. at 685,

continued to prescribe

Wellbutrin and Ritalin, which he noted was helping and was well
tolerated, as evidenced by Plaintiff’s reports in December 2001
and January 2002 that he was better and experiencing little or
no depression. 8

(Id. at 684, 766-67).

The following month, on

February 20, 2002, Dr. Hodo completed a Medical Source Statement
(Mental) (“MSS”) opining that Plaintiff had marked or extreme

8

Plaintiff filed his first application for disability benefits
during this time, on June 12, 2001, when he was fourteen years
old. (Tr. 382).

14

limitations

in

every

functional

category

himself and health/physical well being.
On

December

6,

2001,

at

age

except

caring

for

(Id. at 768).
fourteen,

Plaintiff

was

examined by Dr. Lee Stutts, Ph.D., at the request of the Agency.
(Id. at 752).

Dr. Stutts conducted a mental status examination,

and his findings were largely normal, with the exception of poor
eye

contact,

(Id.).
Scale

poor

rapport,

and

slow

cognitive

processing.

Dr. Stutts referenced school testing which showed a Full
IQ

score

of

99.

(Id.).

Dr.

Stutts also noted

Plaintiff was taking Wellbutrin and Ritalin.
diagnosed

depressive

disorder,

disorder;

rule

dysthymic

disability

out

and

opined

that

NOS;

rule

out

disorder;
Plaintiff

(Id.).

that

Dr. Stutts

social

anxiety

out

learning

rule
would

benefit

from

psychotherapy, a more stringent behavior approach to move him
away

from

his

dysfunctional

behavior

patterns,

and

educational testing to rule out a learning disorder.

further
(Id. at

753).
The following year, on October 1, 2002, at age fifteen,
Plaintiff

was

examined

at

Donald W. Blanton, Ph.D.

the

request

of

(Id. at 770).

the

Agency

by

Dr.

Plaintiff’s mental

status examination revealed that his thoughts and conversation
were normal, but he was sad, had very little eye contact, and
limited insight and judgment. (Id. at 771-72).

In addition,

testing resulted in a Full Scale IQ score of 57 (indicating mild

15

mental

retardation);

however,

Dr.

Blanton

depression may have influenced the score.

indicated

(Id.).

that

Dr. Blanton

noted that Plaintiff was taking Wellbutrin, Paxil, and Ritalin.
(Id.

at

771).

Depression

without

Retardation.
“marked”

Dr.

Blanton

diagnosed

psychotic

(Id. at 773).

limitations

in

Plaintiff

features

and

with

Mild

Major
Mental

He also completed a MSS finding
Plaintiff’s

ability

to

respond

appropriately to other students, use judgment in detailed or
complex decisions, understand, remember, and carry out detailed
or complex instructions, maintain concentration, persistence, or
pace for two hours, maintain social functioning, and maintain
activities of daily living. (Id. at 774-75).
on

March

4,

2003,

Plaintiff’s

security income benefits

Five months later,

application

for

supplemental

was approved on the basis of major

depression, learning disorder, and attention deficit disorder.
(Tr. 111, 118, 382).
Plaintiff did not see Dr. Hodo for several years after he
began receiving social security benefits.

He returned to Dr.

Hodo in 2005 at age eighteen and from 2005 to 2008, Dr. Hodo saw
Plaintiff

occasionally

in

his

office

but

medication or other treatment during this time.
884, 887, 899, 905-06).

prescribed

no

(Id. at 879,

Dr. Hodo’s treatment notes reflect that

Plaintiff was having good junior and senior years in high school
and was doing well; however, after graduation, Plaintiff began

16

to have problems with the police.
902,

904).

vocational

Dr.

Hodo

(Id. at 879, 882-85, 890-94,

recommended

rehabilitation

interested in computers.

and

that

noted

Plaintiff
that

(Id. at 879-80).

enroll

Plaintiff

in
was

Dr. Hodo’s treatment

notes from October 2007 to August 2008 reflect that Plaintiff
had enrolled in junior college to learn brick masonry; he was
looking

for

pending.

a

job;

and

he

had

criminal

court

proceedings

(Id. at 882-83, 885).

On November 17, 2008, at twenty-one years of age, Plaintiff
was examined at the request of the Agency by psychologist, Dr.
Richard S. Reynolds, Ph.D.

(Id. at 855-57).

Plaintiff’s mental

status examination was completely normal, and Dr. Reynolds noted
that Plaintiff was on no medication.

(Id. at 855-56).

Dr.

Reynolds administered an IQ test, resulting in a Full Scale IQ
score of 74. (Id. at 857).

Dr. Reynolds diagnosed Plaintiff

with no condition other than Borderline Intellectual Functioning
and opined that Plaintiff’s ability to understand, carry out,
and

remember

instructions

and

to

respond

appropriately

to

supervision, coworkers, and work pressures was intact for his
level of intellectual functioning.

(Id. at 855, 857).

Dr.

Reynolds further opined that Plaintiff would not need assistance
with any benefits awarded.

On December 16, 2008, the Agency

determined

disability

that

Plaintiff’s

17

had

ceased

effective

December 1, 2008.9

(Id. at 174).

Plaintiff continued to see Dr. Hodo from May 2009 to May
2010. During said period, Dr. Hodo did not prescribe Plaintiff
any medication.
still

Dr. Hodo’s notes reflect that Plaintiff was

pursuing

brick

masonry

and

was

doing

“all

right”

and

“pretty good” (id. at 929-930); that he was staying out late at
night,

and

environment
Plaintiff

his

mother

(Id.

was

at

was

trying

928-30).

distressed

to

His

and

get

notes

upset

him
also

because

in

a

better

reflect

that

police

were

the

looking for his brother and had questioned him as well.
927).

(Id. at

On June 29, 2010, (when Plaintiff was twenty-three years

old), Dr. Hodo completed a MSS form opining that Plaintiff had
marked

and

extreme

limitations

in

every

functional

category.

(Id. at 925-26).

Dr. Hodo acknowledged that he had not obtained

a

evaluation

psychological

prescribed no medication.

and

that

Plaintiff

was

being

(Id. at 926).

At Plaintiff’s administrative hearing conducted on July 28,
2010, medical expert and psychologist, Dr. Doug McKeown, Ph.D.,
testified that Plaintiff has had several IQ tests and that one
was

in

the

borderline

average range.
that

Plaintiff

range,

(Id. at 91).
passed

his

but

the

majority

were

in

the

In addition, the record showed

high

9

school

exit

exams,

and

had

Plaintiff’s request for reconsideration of that decision and his
subsequent application for child’s insurance benefits are the
subject of the current appeal.
18

graduated from high school.
With

respect

to

(Id.).

Plaintiff’s

depression,

Dr.

McKeown

testified that, although Plaintiff had seen Dr. Hodo for many
years,

Dr.

Hodo

saw

no

need

for

intervention

medication) to treat Plaintiff’s problems. 10

(not

even

(Id. at 92).

Dr.

McKeown further testified that, other than visits with Dr. Hodo,
there is no significant treatment and no basis for Dr. Hodo’s
MSS

forms

opining

marked

category.

(Id.).

shows

no

more

than

category,

with

possible

and

extreme

limitations

in

every

Dr. McKeown opined that the medical evidence
“mild

to

moderate”

“moderate”

impairments

impairments

tasks, but no impairment for simple tasks.

for

in

any

complex

(Id. at 93).

During the next two years, Plaintiff continued seeing Dr.
Hodo, and Dr. Hodo continued to recommend no medication or any
other treatment.

Dr. Hodo’s treatment notes from April 2011 to

May 2012 reflect that Plaintiff was doing “all right,” that he
was living alone, that he had applications for jobs, that he was
not staying out late as much, that he was helping care for his
seven-month-old daughter while her mother worked, that he had a
court

date

but

did

not

feel

that

he

was

going

to

be

incarcerated, that he was “doing well,” and that he was not

10

Plaintiff’s attorney acknowledged at the first hearing that
Plaintiff was taking no medication prescribed by Dr. Hodo. (Tr.
91).

19

depressed.

(Id. at 945-48).

On May 31, 2012 (when Plaintiff

was twenty-five years old), Dr. Hodo completed another MSS again
opining that Plaintiff had marked and extreme limitations in
every functional category.

(Id. at 943).

Dr.

Hodo again

acknowledged that he did not obtain a psychological evaluation
and that Plaintiff was on no medication.
In

June

2012,

Dr.

Hodo’s

(Id. at 944).

treatment

notes

reflect

that

Plaintiff was still having legal problems involving drugs and
charges for first degree robbery; that he had a ten-month old
daughter and another baby on the way; that he was looking for
his own house or apartment; and that he was not depressed.

(Id.

at 950).

Although Dr. Hodo prescribed no medication, it appears

from

notes

his

that

he

recommended

counseling at a mental health center.

that

Plaintiff

consider

(Id. at 950).

Dr. Hodo’s notes reflect that in November 2012, Plaintiff
was in jail for assault but still receiving treatment from Dr.
Hodo.

(Id. at 952).

little

depressed”

and

Plaintiff reported that he was feeling “a
anxious.

(Id.).

Dr.

Hodo

completed

another MSS on that date and again opined that Plaintiff had
marked and extreme limitations in every functional category and
that no psychological evaluation had been obtained.
953-54).

(Id. at

Dr. Hodo indicated he was going to start Plaintiff on

medication.

(Id.).

Dr. Hodo continued to treat Plaintiff from November 2012 to

20

March 2013, during which time it appears that Plaintiff was in
and out of jail. 11

(Id. at 957-65).

Plaintiff reported that he

loved going to church and that he quotes scripture.
958).

Dr.

Hodo’s

notes

reflect

that

Plaintiff

(Id. at

was

taking

Buspar, that it was helping, that he was “much better,” that he
was not depressed, that he was looking for a job, and that he
was interested in welding or becoming an electrician.
957-61, 965).

(Id. at

This is the final treatment note in the record.

As discussed above, Plaintiff argues that the ALJ erred in
rejecting the opinions of his treating psychiatrist Dr. Hodo,
while crediting the opinions of non-examining psychologist and
medical expert, Dr. McKeown.
decision

reveals

opinions

of

that

Dr.

the

Hodo,

However, a review of the ALJ’s

ALJ

as

had

they

good

were

cause

to

inconsistent

reject

the

with

the

substantial evidence in the case.
As

the

confirms,

ALJ

that

found,

Dr.

the

Hodo’s

record

opinions

evidence
set

forth

detailed
in

MSS

above
forms

completed on June 29, 2010 (id. at 925), May 31, 2012 (id. at
943), and November 6, 2012 (id. at 953-54), that Plaintiff has
marked or extreme limitations in every functional category, are
inconsistent

with

Dr.

Hodo’s

own

conservative,

infrequent

treatment of Plaintiff, as well as his own examination findings.

11

Plaintiff filed his application for child insurance benefits on
June 6, 2013. (Tr. 659).
21

Dr. Hodo’s treatment records repeatedly reflect that Plaintiff
was doing “all right,” was not depressed, was living on his own,
was pursuing job training or looking for a job, and was helping
care for his infant daughter while her mother worked.

(Id. at

928-30, 945-46, 948, 950, 957-58, 961).
Moreover,

in

direct

contrast

to

Dr.

Hodo’s

repeated

opinions that Plaintiff’s mental impairments were debilitating,
his

treatment

records

show

he

(Id. at 855, 879, 882-85, 887, 890-95, 899, 902,
954).

When

Dr.

visits,

treatment

medication.

944-50,

office

no

other

926-30,

sporadic

recommended

whatsoever,

904,

than

that

Hodo

did

not

even

prescribe

medication in 2012 and 2013 for depression and anxiety when
Plaintiff was in and out of jail, his treatment notes reflect
that the medication was helping, that Plaintiff was much better,
and that he was not depressed.

(Id. at 957, 961, 965).

In

addition, Dr. Hodo noted on all three MSS forms that he had not
obtained a psychological evaluation when completing the forms
and that Plaintiff was not on medication.
954).

(Id. at 926, 944,

All of this evidence is inconsistent with the severity of

the limitations expressed by Dr. Hodo in the 2010 and 2012 MSS
forms.
In addition to being inconsistent with his own findings,
Dr.

Hodo’s

opinions

are

inconsistent

with

the

remaining

substantial evidence in this case, including the findings and

22

opinions
Ph.D.,

of
who

consultative
examined

examiner,

Plaintiff

on

Dr.

Richard

November

S.

17,

Reynolds,

2008

(when

Plaintiff was twenty-one) and found Plaintiff’s mental status to
be completely normal, his IQ to be borderline, and his ability
to

understand,

respond

carry

out,

appropriately

pressures

to

functioning.

be

and

to

remember

supervision,

intact

for

(Id. at 855-57).

his

instructions
coworkers,

level

of

and

and

to

work

intellectual

Dr. Reynolds further opined that

Plaintiff would not need assistance with any benefits awarded.
(Id.).
In addition, Dr. Hodo’s opinions set forth in the three MSS
forms are inconsistent with the opinions of medical expert Dr.
Doug

McKeown,

Ph.D.,

who

testified

at

Plaintiff’s

first

administrative hearing that there is no basis for Dr. Hodo’s
opinions that Plaintiff has marked or extreme limitations in
every functional category, particularly given that Dr. Hodo had
treated

Plaintiff

intervention
problems.

for

(not

(Id.

at

even
92).

many

years,

yet

medication)
Dr.

McKeown

to

saw

no

treat

further

need

for

Plaintiff’s
opined

that,

contrary to Dr. Hodo’s opinions, the medical evidence shows no
more

than

“mild

to

moderate”

impairments

in

any

functional

category, with the possible exception of “moderate” impairments
for complex tasks, but no impairment for simple tasks.
93).

23

(Id. at

Dr. Hodo’s opinions are also inconsistent with Plaintiff’s
reported activities of daily living which include being able to
live independently (id. at 85); take care of his own personal
care needs (id. at 58, 575); take care of his infant daughter
(id. at 945); prepare his own meals, do laundry, count change,
use a checkbook/money orders (id. at 575-77); use a cellphone
and play games on the computer (id. at 58); drive and shop (id.
at 54); and socialize with family, go to church, and get along
with others (id. at 578-79).

This evidence directly contradicts

Dr. Hodo’s opinions that Plaintiff has “marked” or “extreme”
limitations in every functional category, including his ability
to maintain activities of daily living.

(Id. at 926, 944, 954).

Based on the foregoing, the Court finds that the ALJ had good
cause to discredit the opinions of Dr. Hodo, as set forth in the
three MSS forms.
Having found that Dr. Hodo’s opinions are inconsistent with
the

substantial

Plaintiff’s

evidence

argument

in

that

this

Dr.

case,

McKeown’s

the

Court

opinions

are

rejects
flawed

because he did not have the benefit of reviewing Dr. Hodo’s last
two MSS forms, which were completed after Dr. McKeown testified
in Plaintiff’s first hearing.

(Doc. 16 at 9).

As discussed,

all three of Dr. Hodo’s MSS forms are largely redundant of one
another and, in any event, are inconsistent with the substantial
evidence in this case.

Therefore, it is immaterial that Dr.

24

McKeown did not consider Dr. Hodo’s last two forms.12
Moreover, the Court rejects Plaintiff’s argument that the
ALJ failed to develop the record in this case by failing to
obtain additional expert opinion evidence.

(Doc. 16 at 9).

Contrary to Plaintiff’s argument, the ALJ is not required to
obtain
where

additional
the

expert

record

contains

ALJ’s RFC determination.
Sec.

Admin.,

evidence

496

F.3d

regarding

sufficient

his

evidence

limitations

to

permit

the

See Ingram v. Commissioner of Soc.
1253,

1269

(11th

Cir.

2007)(“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.”); see also Good v. Astrue, 240 Fed. Appx. 399, 404
(11th

Cir.

additional
sufficient
evidence

to

2007)

(unpublished)

consultative
for

a

make

(“the

examination

decision.”).
an

informed

ALJ

need

where

Because
decision

the

not

the
ALJ

regarding

order

record
had

an
was

ample

Plaintiff’s

mental limitations and because substantial evidence supports the
12

Likewise, there is nothing in Dr. Hodo’s treatment notes after
Plaintiff’s first hearing that would call into question Dr.
McKeown’s findings and opinions.
To the contrary, as detailed
herein, Dr. Hodo’s treatment notes after July 28, 2010 (the date
of Plaintiff’s first hearing), show that Plaintiff was doing
well until he began having problems with the police, and
although he developed depression and anxiety while in jail, even
then his condition improved with medication.

25

ALJ’s finding that Plaintiff can perform a range of light work,
with

the

stated

non-exertional

restrictions,

Plaintiff’s

argument that the ALJ should have obtained additional evidence
is unavailing.
Last, the Court rejects Plaintiff’s argument that the ALJ
erred in failing to evaluate his nonexertional limitations under
SSR 85-15.

(Doc. 16 at 10).

Pursuant to 85–15, “[w]here a

person’s only impairment is mental, is not of listing severity,
but does prevent the person from meeting the mental demands of
past relevant work . . . the final consideration is whether the
person can be expected to perform unskilled work.”

SSR 85–15,

1985 SSR LEXIS 20, 1985 WL 56857, *4 (Jan. 1, 1985).

The ruling

explains:

“[t]he

remunerative,

basic

unskilled

mental
work

demands

include

the

of

competitive,

abilities

(on

a

sustained basis) to understand, carry out, and remember simple
instructions;

to

respond

appropriately

to

supervision,

coworkers, and usual work situations; and to deal with changes
in a routine work setting.

A substantial loss of ability to

meet any of these basic work-related activities would severely
limit the potential occupational base.
justify

a

finding

of

disability

because

This, in turn, would
even

favorable

age,

education, or work experience will not offset such a severely
limited occupational base.”

Id.

First, SSR 85–15 provides guidance for evaluating claimants

26

with solely nonexertional impairments, which does not apply here
since Plaintiff also had exertional impairments.

See Cason v.

Colvin, 2014 U.S. Dist. LEXIS 92907, *8 (June 12, 2014), report
and recommendation adopted by 2014 U.S. Dist. LEXIS 92490, 2014
WL 3361925, *3 (S.D. Ga. July 7, 2014).

Furthermore, even if

SSR 85-15 did apply to this case, it would not require a finding
of

disability.

As

discussed

above,

the

ALJ

restricted

Plaintiff’s RFC to a range of light work, with the following
restrictions designed to accommodate Plaintiff’s nonexertional
impairments (i.e., ADD/ADHD and affective disorder): Plaintiff
“is

limited

to

no

more

than

simple,

instructions

and

simple work-related decisions with few work place changes.

He

is limited to unskilled work.

short

[He] can occasionally interact

with the general public, supervisors and co-workers.

He is

unable

easily

to

work

distracted.
have

no

in

close

proximity

to

others

and

He is limited to low stress jobs.

requirement

to

read

perform math calculations.”

instructions,

(Tr. 14, 16).

is

The job must

write

reports

or

With the exception

of Dr. Hodo’s opinions (which the Court found the ALJ had good
cause

to

reject),

Plaintiff’s

claim

there
that

is

his

preclude him from all work.
evidence

detailed

limitations

are

above
fully

no

medical

evidence

nonexertional,

mental

to

support

limitations

To the contrary, the substantial

establishes
accommodated

27

that
by

Plaintiff’s
the

mental

nonexertional

restrictions included in the RFC.13
Based on the foregoing, the Court finds that Plaintiff’s
claim is without merit.
V.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for
supplemental

security

income

and

child

insurance

benefits

be

AFFIRMED.
DONE this 30th day of September, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

13

The substantial evidence would include Dr. McKeown’s testimony
that Plaintiff has no more than “mild to moderate” impairments
in any category, with possible moderate impairments for complex
tasks, and no impairment for simple tasks.
(Tr. 93).
In
addition, it would include the findings and opinions of
consultative psychologist Dr. Reynolds that Plaintiff’s mental
status examination was normal, that his IQ was borderline, and
that his ability to understand, carry out, and remember
instructions
and
respond
appropriately
to
supervision,
coworkers, and work pressures was intact for his level of
intellectual functioning. (Id. at 855-57).

28