Quarles v. Colvin
MEMORANDUM OPINION AND ORDER that the Commissioner's final decision denying plaintiff's application is AFFIRMED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 2/14/18. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JENNIFER A. QUARLES,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 2:15-00572-N
MEMORANDUM OPINION AND ORDER
Plaintiff Jennifer A. Quarles 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 applications for a
period of disability and disability insurance benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.
consideration of the parties’ briefs (Docs. 26, 27) and those portions of the
administrative record (Docs. 10, 24) (hereinafter cited as “(R. [page number(s) in
lower-right corner of transcript])”) relevant to the issues raised, the Court finds that
the Commissioner’s final decision is due to be AFFIRMED under sentence four of §
With the consent of the parties, 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 Docs. 16, 17). With the Court’s consent, the
parties jointly waived the opportunity for oral argument. (See Docs. 30, 31).
On February 14, 2013, Quarles filed applications for a period of disability,
DIB, and SSI with the Social Security Administration (“SSA”), alleging disability
beginning November 1, 2012.
Quarles requested a hearing before an
Administrative Law Judge (“ALJ”) with the SSA’s Office of Disability Adjudication
and Review after her applications were initially denied; the hearing was held on
July 30, 2014. On November 19, 2014, the ALJ issued an unfavorable decision on
Quarles’s applications, finding her “not disabled” under the Social Security Act and
thus not entitled to benefits. (See R. 22 – 41).
Quarles requested review of the ALJ’s decision with the Appeals Council for
the Office of Disability Adjudication and Review, but on September 13, 2015, the
Appeals Council dismissed the request for review after finding that the request had
not been timely filed and that Quarles had failed to show good cause to extend the
time for filing the request. (R. 1 – 5). On November 11, 2015, Quarles initiated
this action to challenge the Appeals Council’s dismissal. (Doc. 1).
After receiving briefing from the parties (see Docs. 11, 12,) and holding oral
argument, the undersigned entered an order on August 10, 2016, remanding this
case to the Commissioner under sentence six of § 405(g) for consideration of new
and material evidence.
(See Doc. 19).
After considering the new evidence, the
“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). 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).” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
Appeals Council issued a decision on March 30, 2017, setting aside its earlier
dismissal of Quarles’s request for review and instead denying Quarles’s request for
review (R. 638 – 642), making that decision the Commissioner’s new final decision
on Quarles’s applications.
The Commissioner filed this new final decision and a record of the additional
administrative proceeding with the Court on June 26, 2017. (Doc. 24). The Court
then reopened this action and set a briefing schedule on the new decision. (See
Docs. 23, 25). The parties timely filed their briefs (Docs. 26, 27), and this action for
judicial review of the Commissioner’s March 30, 2017 final decision is now under
submission (see Doc. 31). See 42 U.S.C. § 1383(c)(3) (“The final 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.”); 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.”).
Standards 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].’ ”
Id. (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
“‘Even if the evidence preponderates against the [Commissioner]’s
factual findings, [the Court] 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). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”).3 “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).
However, the “substantial evidence” “standard of review applies only to
[Commissioner]’s conclusions of law, including determination of the proper
standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679
Nevertheless, “ ‘[t]here is no burden upon the district court to distill every
potential argument that could be made based on the materials before it…’ ” Solutia,
Inc. v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012) (per curiam) (quoting
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en
banc)) (ellipsis added). Generally, claims of error not raised in the district court are
deemed waived. See Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 –
16 (11th Cir. 1994) (“As a general principle, [the court of appeals] will not address
an argument that has not been raised in the district court…Because Stewart did
not present any of his assertions in the district court, we decline to consider them on
appeal.” (applying rule in appeal of judicial review under 42 U.S.C. §§ 405(g),
1383(c)(3)); Hunter v. Comm’r of Soc. Sec., 651 F. App'x 958, 962 (11th Cir. 2016)
(per curiam) (unpublished) (same); Cooley v. Comm'r of Soc. Sec., 671 F. App'x 767,
769 (11th Cir. 2016) (per curiam) (unpublished) (“As a general rule, we do not
consider arguments that have not been fairly presented to a respective agency or to
the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999) (treating
as waived a challenge to the administrative law judge’s reliance on the testimony of
a vocational expert that was ‘not raise[d] . . . before the administrative agency or
the district court’).”); In re Pan Am. World Airways, Inc., Maternity Leave Practices
& Flight Attendant Weight Program Litig., 905 F.2d 1457, 1462 (11th Cir. 1990)
(“[I]f a party hopes to preserve a claim, argument, theory, or defense for appeal, she
must first clearly present it to the district court, that is, in such a way as to afford
the district court an opportunity to recognize and rule on it.”); Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999) (applying In re Pan American World Airways in
Social Security appeal).
F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the
administrative denials of Social Security benefits dictates that ‘(t)he findings of the
Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’
42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential
standard of review is applicable only to findings of fact made by the Secretary, and
it is well established that no similar presumption of validity attaches to the
Secretary’s conclusions of law, including determination of the proper standards to
be applied in reviewing claims.” (some quotation marks omitted)).
“conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). “‘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
(quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)).
Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
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).”).
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. 2015) (per
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
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).5
“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 this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
“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 work history.” 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 omitted).
If, in Steps One through Four of the five-step evaluation, a claimant 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
claimant 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 Cir. 1985).
Finally, although the “claimant 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). See also Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established
that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” (citations omitted)).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.
In determining whether a
claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
Where, as here, the ALJ denied benefits and the Appeals Council denied
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the [Appeals
Council] has denied review, [the Court] will look only to the evidence actually
presented to the ALJ in determining whether the ALJ’s decision is supported by
substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). If the
applicant attacks only the ALJ’s decision, the Court may not consider evidence that
was presented to the Appeals Council but not to the ALJ. See id. at 1324.
Summary of the ALJ’s Decision
At Step One, the ALJ determined that Quarles met the applicable insured
status requirements through December 31, 2016, and that she had not engaged in
substantial gainful activity since the alleged disability onset date, November 1,
2012. (R. 27). At Step Two, the ALJ determined that Quarles had the following
hypertension; obesity; depression; and borderline intellectual functioning. (R. 27 –
28). At Step Three, the ALJ found that Quarles did not have an impairment or
combination of impairments that met or equaled the severity of one of the specified
impairments in the relevant Listing of Impairments. (R. 28 – 29).
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 Quarles had the RFC “to perform sedentary work
as defined in 20 CFR 404.1567(a) and 416.967(a)[ 6 ] except she can perform
“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.
See also 20 C.F.R. §§ 404.1567, 416.967.
occasional pushing or pulling with the upper and lower extremities. She can do no
climbing of ladders, ropes, or scaffolds. She can perform occasional climbing of
ramps and stairs. She can perform occasional balancing, kneeling, crouching, and
She can perform no crawling.
She can perform frequent handling,
fingering, and feeling. She must avoid concentrated exposure to extreme heat, cold,
and vibration. She is able to avoid common workplace hazards. She does not pose
danger to herself or others. She can perform tasks that have no fine detail work.
She can have no exposure to dangerous machinery or unprotected heights. She can
perform no work requiring walking on uneven terrain.
During a regularly
scheduled workday, or the equivalent thereof, she can understand and remember
short and simple instructions, but is unable to do so with detailed or complex
instructions. She can do simple, routine, and repetitive tasks, but is unable to do so
with detailed or complex tasks.” (R. 29 – 39).
Based on this RFC, the ALJ determined that Quarles was unable to perform
any past relevant work.
At Step Five, after taking testimony from a
vocational expert, the ALJ found that there exist significant numbers of jobs in the
national economy that Quarles can perform given her RFC, age, education, and
work experience. (R. 39 – 40). Thus, the ALJ found that Quarles was not disabled
under the Social Security Act. (R. 40 – 41).
Claim 1 – Dr. Tocci’s Opinion
determination may include medical opinions.
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, 631 F.3d at 1178-79
(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).
“There are three tiers of
medical opinion sources: (1) treating physicians; (2) nontreating, examining
physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of
Soc. Sec., 585 F. App'x 758, 762 (11th Cir. 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 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.” Eyre v. Comm'r, Soc. Sec. Admin., 586
F. App'x 521, 523 (11th Cir. 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.
Among the medical opinions of record reviewed by the ALJ was an April 16,
2013 report of a mental status examination by Dr. Nina Tocci, which the ALJ
assigned “significant weight…because Dr. Tocci evaluated [Quarles] and has the
objective medical evidence to support an opinion related to her specialty.” (R. 33).
Quarles claims that the ALJ reversibly erred in doing so because Dr. Tocci’s
opinions that Quarles “does not appear to have issues that reach clinical
significance” and “appears to be functioning within the low average range of
intellectual ability” (R. 33, 375) are inconsistent with the ALJ’s Step Two
determination that Quarles suffered from two “severe” mental impairments,
depression and borderline intellectual functioning (R. 27). Quarles asserts that the
ALJ thus created a conflict in the record that the ALJ failed to resolve. However,
the undersigned agrees with the Commissioner that there was no such conflict.
“At step two…a claimant’s impairment is determined to be either severe or
not severe. Step two is a threshold inquiry. It allows only claims based on the most
trivial impairments to be rejected. The claimant’s burden at step two is mild. An
impairment is not severe only if the abnormality is so slight and its effect so
minimal that it would clearly not be expected to interfere with the individual's
ability to work, irrespective of age, education or work experience. Claimant need
show only that her impairment is not so slight and its effect is not so minimal.”
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). On the other hand,
“clinical significance” is a medical term of art that, while not easily susceptible to
one definition,7 “relates to the magnitude of the observed effect and whether the
See generally Sarah M.R. Cravens, The Usage and Meaning of “Clinical
magnitude or ‘effect size’ is big enough to consider changes to clinical
Andrea C. Skelly, Probability, proof, and clinical significance, Evidence-
(https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3506143/ (last visited Dec. 11,
2017)) (emphasis added).
See also Elizabeth Heavey, Ph.D, RN, CNM,
Differentiating statistical significance and clinical significance, American Nurse
04/item_8038_7659.pdf (last visited Dec. 11, 2017) (“A difference is deemed
clinically significant when experts in the field believe a statistically significant
finding is substantial enough to be clinically important and thus should direct the
course of patient care.”); Clifford S. Goodman, PhD, HTA 101: Introduction to
(https://www.nlm.nih.gov/nichsr/hta101/ta101013.html (last visited Dec. 12, 2017))
(“Clinical significance: a conclusion that an intervention has an effect that is of
practical meaning to patients and health care providers.”). Thus, an SSA Step Two
administrative determination that an impairment is “severe” is not inconsistent
with a medical determination that the same impairment is not one of “clinical
significance” requiring a change in treatment.
Similarly, a Step Two finding that Quarles’s mental impairments have more
than a minimal effect on her ability to do work is not inconsistent with a finding
that she is nevertheless “functioning within the low average range of intellectual
Significance” in Drug-Related Litigation, 59 Wash. & Lee L. Rev. 553 (2002)
(discussing the ambiguity and subjectivity of “clinical significance”).
ability.” Cf. Moore, 405 F.3d at 1213 n.6 (“To a large extent, Moore questions the
ALJ’s RFC determination based solely on the fact that she has various leg
instability and shoulder separation. However, the mere existence of these
impairments does not reveal the extent to which they limit [a claimant’s] ability to
work…” (citing McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.1986) (“ ‘severity’
of a medically ascertained disability must be measured in terms of its effect upon
ability to work”)).8
Accordingly, the Court OVERRULES Quarles’s first claim of reversible
Claim 2 – Dr. Blanton’s Opinion
Quarles next claims that the ALJ reversibly erred in rejecting the medical
Quarles also claims that Dr. Tocci’s diagnostic impressions of “Axis I: No
diagnosis” and “Axis II: Deferred” conflict with the ALJ’s Step Two findings of
depression and borderline personality disorder as severe impairments. See Emily
Stork, A Competent Competency Standard: Should It Require A Mental Disease or
Defect? A Debate Sparked by the Circuit Split over Axis II Personality Disorders and
Competency to Stand Trial, 44 Colum. Hum. Rts. L. Rev. 927, 938 (2013)
(“Personality disorders are mental illnesses characterized by rigid, dysfunctional
patterns of experience, perception, conduct, and reactions that significantly
interfere with a person's functioning across place and time. Personality disorders
are currently classified as Axis II disorders in the diagnostic scheme used by
clinicians to diagnose psychiatric disorders. This diagnostic scheme is outlined by a
series of Diagnostic and Statistical Manuals (DSMs), the most recent one being the
revised fourth edition (DSM-IV-TR). Axis I disorders are mental disorders such as
schizophrenia, bipolar disorder, and major depressive disorder, as well as anxiety
disorders and substance abuse disorders.” (footnotes omitted)). To the extent this
did create a conflict in the evidence, the ALJ adequately resolved it. Dr. Tocci’s
opinion was given “significant,” but not controlling, weight, and the ALJ’s decision
shows that the opinion was considered in conjunction with the other evidence of
record regarding Quarles’s mental impairments, with the ALJ ultimately
concluding at Step Four that Quarles did have depression and borderline
intellectual functioning, but that those impairments were “not disabling.” (See R.
opinion offered by consultative examining psychologist Dr. Donald Blanton.
noted previously, an “ALJ must state with particularity the weight given to
different medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179.
This is because,
“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).
Id. An ALJ “may reject the opinion of any physician when the evidence supports a
contrary conclusion.” E.g., Bloodsworth, 703 F.2d at 1240.
The ALJ summarized Dr. Blanton’s notes and opinion as follows:
Consultative examiner, Donald W. Blanton, Ph.D., evaluated the
claimant on June 18, 2014 to determine disability. When the examiner
queried the claimant, she responded that she was disabled because of
her diabetes mellitus and neuropathy in her legs and feet. She also
reported her arms hurt; she had vision problems with a history of laser
surgery. She reported depression, but stated she had never been in a
mental hospital. She reported she had been treated at the local mental
health center for year. She was taking medications for her conditions.
Upon mental status examination, she was sad looking. Her thoughts
and conversation were logical. Her associations were intact. Her
affect was flat but appropriate. She had no confusion. She complained
of anxiety and was restless. Her mood was depressed and she cried
frequently. Her sleep was poor and her appetite was fair. Her weight
was up-and-down. Her energy level was low. She appeared to have a
slight psychomotor retardation. She had been suicidal in the past but
she was not during the interview. There was no evidence of any
hallucinations, delusions, or paranoia. She was assessing about her
health problems. She was alert and oriented to time, person, place and
situation. Her intelligence was tested at the low average range. Her
insight was limited. Her judgment was fair for work and financial type
decisions (Exhibit C22F [R. 601 – 604]).
During the day, she watched TV and folded laundry. She washed the
dishes. Her sister did the cooking. She could make sandwiches. She
had a driver’s license and she was able to shop and handle her own
money. She rarely did shopping due to foot pain. She had no friends
outside of her family. She did not date. She did not attend parties are
[sic] clubs. She did attend church. She spent most of her time
watching TV. She sat on the porch but she did not read or do computer
activities. She did not text or play video games. Dr. Blanton opined
her IQ score was representative of the mild range of mental
retardation and was likely a lifelong condition. He also opined that
there was a possibility of some dementia due to long-term diabetes. He
further opined that emotionally she appeared to have serious ongoing
depression problems and she was encouraged to continue her
treatment with mental health. Dr. Blanton further opined that in his
opinion she had market limitations that seriously interfered with her
ability to perform work-related activities on a day-to-day basis in a
regular work setting in the following areas: understand detailed and
complex instructions, carry out detailed or complex instructions,
remember detailed and complex instructions, respond to customary
work pressure, use judgment in detailed or complex work-related
decisions, maintain attention, concentration, and pace for a period of at
least two hours. He opined that her depression was present for at least
tow years and her intellectual problems were present throughout her
lifetime. He opined that the claimant demonstrated deficits in
adaptive functioning due to her mental retardation likely manifested
prior to the age of 22 in the following areas: communication, work, and
functional academic skills (Exhibit C22F).
(R. 35 – 36). The ALJ stated: “Little weight is assigned to this opinion as it is not
consistent with the objective medical evidence of record; nor is it consistent with Dr.
Tocci’s opinion that has been assigned significant weight. As well, this opinion is
not consistent with the claimant’s work history and her ability to drive indicating
the ability to take and pass a driver’s license examination – atypical for an
individual consistent with mental retardation diagnosis.” (R. 36).
Contrary to Quarles’s assertions, the undersigned finds that the ALJ stated
the weight given to Dr. Blanton’s opinion and the reasons therefor with sufficient
“particularity,” and that substantial evidence supports those reasons. As explained
previously, Quarles has failed to show that the ALJ erred in assigning significant
weight to Dr. Tocci’s opinion. Moreover, contrary to Quarles’s assertion that only
Dr. Blanton administered “objective testing” at his examination, a review of Dr.
Tocci’s April 16, 2013 opinion (R. 373 – 375) indicates that she did so as well (e.g.,
math and counting exercises; naming “five famous people,” “five cities,” the current
and immediate past Presidents of the United States; word association exercises). It
should also be noted that Dr. Blanton only evaluated Quarles once, while Dr. Tocci
had conducted a previous mental status examination of Quarles on March 22, 2011,
which the ALJ also discussed in his opinion. (See R. 31 – 32). Dr. Tocci’s findings
from her 2011 examination were reasonably consistent with the findings from Dr.
Tocci’s 2013 examination.
The ALJ’s finding that Dr. Blanton’s opinion was inconsistent with Quarles’s
past work history as a home health aid and her ability to attain a driver’s license,
while perhaps not substantial evidence standing alone, is at least some evidence
bolstering his decision to assign “little weight” to Dr. Blanton’s opinion.
Considering this bolstering evidence together with Dr. Tocci’s opinion, the
undersigned finds that the ALJ’s decision to reject Dr. Blanton’s opinion is
supported by substantial evidence and thus due to be affirmed. 9 The fact that
Quarles can point to other evidence arguably bolstering Dr. Blanton’s opinion does
not change this determination. See Ingram, 496 F.3d at 1260 (holding that district
court must affirm if ALJ’s decision is supported by substantial evidence, even if the
evidence preponderates against it).
Accordingly, the Court OVERRULES Quarles’s second claim of reversible
There being no other claims of error raised, 10 the Court finds that the
Quarles argues that “the ALJ’s rejection of the medical opinions of Dr. Blanton on
the basis said opinions of record are not consistent with objective medical evidence
is the textbook definition of attempted conclusory rationale in which is not
grounded in the evidence of record.” (Doc. 26 at 13). While this stated reason,
standing alone, would arguably be insufficient to meet the ALJ’s burden to explain
his reasons for assigning little weight to Dr. Blanton’s opinion “with particularity,”
the undersigned has determined that the ALJ adequately articulated other reasons
that are supported by substantial evidence. Nevertheless, the ALJ’s finding that
Dr. Blanton’s opinion was “not consistent with the objective medical evidence” is in
line with his discussion of the other mental health evidence of record – a 2009
report by Dr. Richard Reynolds (R. 31), Dr. Tocci’s 2011 report (R. 31 – 32), and
records from the Cahaba Center for Mental Health (R. 32, 35).
Quarles also conclusorily claims the ALJ “failed to consider or apply Listing
12.05.” (Doc. 26 at 6, 9). However, her only substantive argument to this effect is
that, “[i]n light of the objective testing administered by Dr. Blanton and his
examination findings, the ALJ’s failure to mention or evaluate Ms. Quarles’s case
under the Intellectual Disability listing also demonstrates the lack of reasoning
applied throughout his decision.” (Id. at 14). To the extent this argument rests on
the ALJ’s purported improper rejection of Dr. Blanton’s opinion, it fails because the
undersigned has determined the ALJ decision to that opinion should be affirmed.
Regardless, because Quarles makes only passing and perfunctory mention of this
issue, it is deemed abandoned. See n.3 supra. Cf. Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 682 (11th Cir. 2014) (“Abandonment of an issue can…occur when
passing references appear in the argument section of an opening brief, particularly
Commissioner’s final decision denying Quarles benefits is due to be AFFIRMED.
In accordance with the foregoing analysis, it is ORDERED that the
applications for a period of disability, DIB, and SSI is AFFIRMED under sentence
four of 42 U.S.C. § 405(g).
Final judgment shall issue separately in accordance with this order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 14th day of February 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
when the references are mere background to the appellant’s main arguments or
when they are buried within those arguments.” (quotation marks omitted)).
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