Bouler v. Berryhill
Filing
30
Order re: 1 Complaint filed by Betty Bouler stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 6/28/18. (mpp) Copies to counsel
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
BETTY BOULER,
*
*
*
*
* CIVIL ACTION NO. 17-00372-B
*
*
*
*
*
*
Plaintiff,
vs.
NANCY BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
ORDER
Plaintiff
Betty
Bouler
(hereinafter
“Plaintiff”),
seeks
judicial review of a final decision of the Commissioner of Social
Security denying her claim for supplemental security income under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq.
On May 10, 2018, the parties consented to have the undersigned
conduct any and all proceedings in this case.
the
action
was
referred
to
the
undersigned
(Doc. 25).
to
Thus,
conduct
all
proceedings and order the entry of judgment in accordance with 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
careful
consideration
of
the
administrative
record
and
Upon
the
memoranda of the parties, it is hereby ORDERED that the decision
of the Commissioner be AFFIRMED.
Procedural History1
I.
Plaintiff filed her application for benefits on April 25,
2014.
(Doc. 11 at 238).
Plaintiff alleges that she has been
disabled since June 1, 2009, due to back problems/bad discs,
swollen feet, numbness in hands, pain, high blood pressure, skin
disease, nerves, depression, and problems with left eye.
(Id. at
251, 255).
Plaintiff’s application was denied and upon timely request,
she was granted an administrative hearing before Administrative
Law Judge Paul Johnson (hereinafter “ALJ”) on July 28, 2016.2
at 48).
(Id.
Plaintiff attended the hearing with her counsel and
provided testimony related to her claims.
(Id. at 55).
A
vocational expert (“VE”) also appeared at the hearing and provided
testimony.
(Id. at 72).
On September 10, 2016, the ALJ issued an
unfavorable decision finding that Plaintiff is not disabled.
at 14).
(Id.
The Appeals Council denied Plaintiff’s request for review
on July 18, 2017.
(Id. at 5).
Therefore, the ALJ’s decision dated
September 10, 2016, became the final decision of the Commissioner.
Having
exhausted
her
administrative
timely filed the present civil action.
remedies,
(Doc. 1).
Plaintiff
The parties
1
The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF.
2
An earlier hearing scheduled on August 25, 2015, was continued.
(Doc. 11 at 33).
2
waived oral argument on May 10, 2018.
(Doc. 24).
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.
Issues on Appeal
1. Whether substantial evidence supports the
assignment of little weight to the opinions
of Plaintiff’s treating physician, Dr. Huey
Kidd, D.O., and the opinions of examining
psychiatrist, Dr. David Hodo, M.D.?
2. Whether the ALJ erred in considering evidence
that is not in the record?
III. Factual Background
Plaintiff was born on February 4, 1967, and was forty-nine
years of age at the time of her administrative hearing on July 28,
2016.
(Doc. 11 at 48, 251).
Plaintiff completed the tenth grade
in school and one semester of eleventh grade.
While in the tenth
and eleventh grades, Plaintiff was assigned to special education
classes.
(Id. at 66, 292).
Plaintiff last worked in 2009 for two months as a packer on
a poultry farm.
relevant work.
(Id. at 55, 256).
Prior to that, she had no past
(Id. at 56).
At her hearing, Plaintiff testified that she can no longer
work due to depression after the death of her son in 2014.
at 56-57, 60, 68).
(Id.
Plaintiff further testified that she has
problems with carpal tunnel syndrome in her left wrist, gout in
her feet, diabetes, high blood pressure, low back pain, stomach
3
pain, trouble sleeping, and glaucoma.3
(Id. at 60-62, 65-68).
She
takes oral medication for diabetes, as well as medication to help
her sleep.
She also uses eye drops for glaucoma.
(Id. at 60-62,
65, 68, 71).
Some of Plaintiff’s medications make her drowsy.
(Id. at 64).
At the administrative hearing, Plaintiff reported
that she was scheduled for gall bladder surgery.
(Id. at 70).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.
The Court’s 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.4
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
A court
may not decide the facts anew, reweigh the evidence, or substitute
its judgment for that of the Commissioner.
F.2d 1065, 1067 (11th Cir. 1986).
Sewell v. Bowen, 792
The Commissioner’s findings of
fact must be affirmed if they are based upon substantial evidence.
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,
3
Plaintiff testified that she also suffers from an intellectual
disability. Her prior application for disability benefits on that
basis was denied. (Doc. 11 at 58-60, 71, 87).
4
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).
4
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,
Commissioner’s decision.
as
well
as
unfavorable,
to
the
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).
V.
Statutory and Regulatory Framework
An individual who applies for Social Security disability
benefits must prove his or her disability.
416.912.
20 C.F.R. §§ 404.1512,
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. §§
423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
Social
Security
regulations
provide
a
five-step
The
sequential
evaluation process for determining if a claimant has proven his
disability.
20 C.F.R. §§ 404.1520, 416.920.
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
5
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.
810 F.2d 1001, 1005 (11th Cir. 1986).
Jones v. Bowen,
At the fourth step, the ALJ
must make an assessment of the claimant’s RFC.
Barnhart, 357 F. 3d 1232, 1238 (llth Cir. 2004).
See Phillips v.
The RFC is an
assessment, based on all relevant medical and other evidence, of
a claimant’s remaining ability to work despite his impairment. See
Lewis v. Callahan, 125 F. 3d 1436, 1440 (llth Cir. 1997).
If a claimant meets his or her burden at the fourth step, it
then 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.
764 F.2d 834, 836 (11th Cir. 1985).
Sryock v. Heckler,
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.
1999).
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.
1987) (citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir.
6
1985)).
VI.
Discussion
A. Substantial evidence supports the ALJ’s
assignment of weight to the opinions of
Plaintiff’s treating physician, Dr. Huey
Kidd, D.O., and the opinions of examining
psychiatrist, Dr. David Hodo.
In her brief, Plaintiff argues that the ALJ erred in assigning
little weight to the opinions of her treating physician, Dr. Huey
Kidd, D.O., and to the opinions of examining psychiatrist, Dr.
David Hodo, M.D.
(Doc. 13 at 5-9).
ALJ
concluded
erroneously
that
Plaintiff maintains that the
these
expert
opinions
were
inconsistent with the substantial medical evidence in the case.
(Id.).
Defendant counters that the opinions of Dr. Kidd and Dr.
Hodo are inconsistent with the objective record evidence in the
case and that the ALJ had good cause to discredit the opinions.
(Doc. 19 at 6-19). Having carefully reviewed the record, the Court
finds that Plaintiff’s claim is without merit.
As part of the disability determination process, the ALJ is
tasked
with
weighing
the
opinions
and
examining, and non-examining physicians.
findings
of
treating,
In 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).
do so is reversible error.
The failure to
See Williams v. Astrue, 2009 U.S. Dist.
LEXIS 12010, *4, 2009 WL 413541, *1 (M.D. Fla. 2009).
7
When weighing the opinion of a treating physician, the ALJ
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 (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)).
However, the opinion of “a one-
time examining physician — or psychologist” is not entitled to the
same deference as a treating physician.
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.’”
Milner v. Barnhart, 275
Fed. Appx. 947, 948 (11th Cir. 2008) (unpublished) (citing 20
C.F.R. § 404.1527(f)(2)(i)).
“The ALJ may rely on opinions of
non-examining sources when they do not conflict with those of
examining sources.”
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
when
unsupported by the evidence of record.
8
exists
it
to
is
discredit
contrary
to
the
or
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 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.”
Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)
(per 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.).
In the instant case, the ALJ found that Plaintiff has the
severe impairments of degenerative joint disease, obesity with
lumbago, borderline intellectual functioning, and major depression
versus depressive disorder.
(Doc. 11 at 16).
The ALJ also
determined that Plaintiff has the RFC to perform a range of light
work with the following restrictions: Plaintiff can frequently
stoop, and occasionally climb, kneel, crouch and crawl.
occasionally operate foot controls.
extreme
temperatures;
unprotected heights.
vibrating
and
She can
She must avoid exposure to
dangerous
machinery;
and
She can perform simple tasks with gradual
introduction of new tasks and assignments.
She can maintain
attention, concentration and pace to acceptably perform the simple
tasks for two-hour increments throughout the workday.
9
Assigned
job duties will require no direct public contact.
(Doc. 11 at
21).
The ALJ also found that Plaintiff has no past relevant work.
(Id. at 25).
Utilizing the testimony of the vocational expert,
the ALJ concluded that Plaintiff can perform work such as a tagger,
laundry worker, and inspector (all light and unskilled).
25-26, 72, 74).
disabled.
(Id. at
Thus, the ALJ found that Plaintiff is not
Having reviewed the evidence at length, the Court is
satisfied that the ALJ’s findings related to Plaintiff’s RFC and
the
weight
accorded
to
the
opinions
of
Plaintiff’s
treating
physician, Dr. Kidd, and examining psychiatrist, Dr. Hodo, are
supported by substantial evidence.
First, with respect to Plaintiff’s treating physician, Dr.
Kidd, the record shows that on August 15, 2016, Dr. Kidd completed
a
Medical
Source
Statement
(“MSS”)
(Physical).
In
the
MSS
(Physical), Dr. Kidd opined that Plaintiff could occasionally
lift/carry
five
pounds,
frequently
lift/carry
one
pound,
stand/walk for less than one hour in an eight-hour workday, sit
for less than one hour in an eight-hour workday, and that Plaintiff
would be absent from work more than three times a month.
(Id. at
917).
Dr. Kidd also completed a Clinical Assessment of Pain (“CAP”)
form on August 15, 2016.
In the CAP form, Dr. Kidd opined that
Plaintiff’s pain is “virtually incapacitating,” and prevents her
10
from maintaining attention, concentration, or pace for periods of
at least two hours.
medical
(Id. at 918).
conditions
or
Dr. Kidd did not identify which
impairments
served
as
Plaintiff’s debilitating restrictions and pain.
the
bases
for
(Id.).
The ALJ accorded little weight to Dr. Kidd’s assessments.
He
found that Dr. Kidd’s opinions in the MSS (Physical) and CAP forms
were inconsistent with the medical evidence, including his own
treatment records. (Id. at 23-25). Specifically, the record shows
that Dr. Kidd treated Plaintiff from 2011 to 2016 for various
ailments including hypertension, obesity, lumbago, diabetes, back
and shoulder pain, major depression with psychotic features, and
gall stones.
(Id. at 601, 663-71, 680-82, 686, 920-23).
While
there is no question that Plaintiff has been diagnosed with these
medical conditions, Dr. Kidd’s treatment records reflect largely
conservative treatment with medication and two steroid injections
for back pain, all of which have been adequate at controlling her
symptoms.
(Id. at 681-82, 698).
In fact, Dr. Kidd’s records contain largely normal physical
examination
findings
appearing,”
“not
with
notations
ill-appearing,”
that
that
Plaintiff
she
“did
was
not
“well
appear
uncomfortable,” that she had normal posture, normal reflexes,
normal gait, and normal stance, and that while she experienced
tenderness, pain, and stiffness in her lower back and shoulder, it
was “relieved by medication.”
(Id. at 601-03, 608, 613, 668, 680,
11
686, 691, 695).
In addition, an x-ray of Plaintiff’s lumbosacral
spine, taken on April 1, 2015, showed degenerative spondylosis and
“mild” facet arthropathy without significant disc space narrowing.
(Id. at 620).
Similarly, a CT scan of Plaintiff’s cervical spine,
taken on May 14, 2016, showed “no acute finding,” degenerative
change at C6-7, “no significant spinal stenosis,” and “mild right
foraminal stenosis.”
(Id. at 761).
This evidence is inconsistent
with the severe limitations expressed in the MSS (Physical) and
CAP forms completed by Dr. Kidd.
In addition to being inconsistent with his own treatment
records, Dr. Kidd’s opinions are inconsistent with Plaintiff’s
treatment records from Dr. Ronnie Chu, M.D., who treated Plaintiff
in 2014 for low back and shoulder pain and depression.
Dr. Chu’s
records regularly reflect that Plaintiff was in no acute distress,
that she had a normal gait, that she moved all of her extremities
“well with full range of motion,” and that she had no swelling in
her extremities.
(Id. at 326-27, 480-81, 654).
Dr. Chu’s mental
examination findings similarly reflect normal orientation, normal
mood, and normal affect.
(Id. at 481).
Plaintiff was also treated by Dr. Gerold Sibanda, M.D., at
Whatley Health Services, Inc., from 2012 to 2014, for diabetes,
hypertension, arthritis, carpal tunnel syndrome, degenerative disc
disease, and unspecified type schizophrenia.
(Id. at 336-37).
Dr. Sibanda’s treatment records reflect that Plaintiff’s symptoms
12
were stable and controlled with medication.
Sibanda’s
physical
findings,
examination
including
normal
notes
range
(Id.).
reflect
of
In fact, Dr.
largely
motion,
normal
normal
muscle
strength, and stability in all extremities with no pain.
334-43,
595).
Dr.
Sibanda
further
noted
that
(Id. at
Plaintiff’s
conditions were “stable,” “well controlled with current medicines”
and that she was “doing well.”
(Id.).
Dr. Sibanda encouraged
Plaintiff to continue her medications and to exercise.
336).
(Id. at
With respect to Plaintiff’s mental health condition, on
February
19,
2014,
Dr.
Sibanda
noted
that
Plaintiff’s
“schizophrenia” was “stable” and that she was “doing well on
current regimen.”
(Id. at 334, 339).
His psychiatric examination
notes likewise reflect largely normal findings, including normal
orientation, normal mood and affect, normal insight, and normal
judgment.
(Id. at 339, 343, 595).
Plaintiff also sought mental health treatment at West Alabama
Mental
Health
Center
psychotic symptoms.5
from
2012
to
(Id. at 767).
2016
for
depression
with
Plaintiff’s treatment notes
reflect that she was compliant with her medication and that her
“progress
controlled;
[was]
she
good;”
was
her
sleeping
symptoms
well;
5
her
were
mood
stabilized
and
affect
and
were
Plaintiff reported having hallucinations in which she saw her
dead son.
(Doc. 11 at 769).
13
appropriate; her insight and judgment were adequate; her thought
process was coherent; her thought control was adequate; and she
reported that she was “walking for exercise several times a week”
and “doing good.”
(Id. at 636, 641, 644, 767-68, 776, 781-82,
792, 796-97, 800-01, 816).
In sum, Plaintiff’s treatment records, on the whole, reflect
successful, conservative treatment for her physical and mental
health conditions resulting in largely normal examination findings
and reports by Plaintiff that she is doing well.
these
treatment
records
are
inconsistent
As the ALJ found,
with
the
severe
limitations expressed by Dr. Kidd in the MSS (Physical) and CAP
forms that he completed.
Therefore, the ALJ had good cause to
discredit those opinions.
Plaintiff also argues that the ALJ erred in rejecting the
opinion of one-time examining psychiatrist, Dr. David Hodo, M.D.,
that
Plaintiff
has
functional category.
marked
or
extreme
limitations
(Doc. 13 at 5; Doc. 11 at 728).
in
every
The record
shows that on June 16, 2016, Dr. Hodo examined Plaintiff and noted
that
she
including
had
her
hallucinations.
suffered
son,
several
and
that
recent
she
(Doc. 11 at 724-25).
deaths
reported
Dr.
in
her
family,
suffering
from
Hodo’s mental health
examination findings reveal that Plaintiff was well dressed, that
her mood was anxious and to some degree depressed, that her
thoughts were mostly logical, that she reported having auditory
14
and visual hallucinations and occasionally feeling suicidal, that
she had marked grief over the loss of her son and other family
members, and that her sensorium was intact.
(Id. at 725).
Dr.
Hodo’s impression was “major depression, severe, with psychotic
features.”
(Id. at 726).
Dr. Hodo also completed a “Medical
Source Opinion Form (Mental),” wherein he opined that Plaintiff
had marked or extreme limitations in every listed category.
Hodo
further
opined
that
Plaintiff’s
condition
would
Dr.
likely
deteriorate under the stress of a job, although Dr. Hodo did note
that Plaintiff’s medication “helps” and that she “should be able
to manage any financial benefits awarded to her.”
(Id. at 726-
28).
The ALJ accorded little weight to Dr. Hodo’s assessments. He
found that Dr. Hodo’s opinions in the MSS (Mental) form were the
result of a single examination by a non-treating source and were
based on Plaintiff’s subjective reports of hallucinations and
suicidal thoughts.
The ALJ further concluded that the opinions
were simply inconsistent with the substantial medical evidence
detailed above, including Plaintiff’s conservative mental health
treatment.
(Id. at 18).
Indeed, the medical record is devoid of
any evidence indicating a need for hospitalization or inpatient
care
for
Plaintiff’s
allegedly
conditions referenced by Dr. Hodo.
debilitating
mental
health
To the contrary, as the ALJ
noted, Plaintiff reported that she is able to care for her own
15
personal needs without assistance; she takes care of her twelveyear-old son; and she cooks, washes clothes, irons, performs
household chores, drives, shops, and manages her own finances.
(Doc. 11 at 66-67, 266-68).
All of the foregoing evidence is
inconsistent with the severe limitations expressed by Dr. Hodo in
the MSS (Mental) form that he completed.
Therefore, the ALJ had
good cause to discredit those opinions.
The Court further finds, based on the evidence detailed above,
that
substantial
evidence
supports
the
ALJ’s
finding
that
Plaintiff has the RFC to perform light work, with the stated
restrictions. 6
Indeed, Plaintiff has failed to show that any
limitations caused by her physical or mental impairments exceed
the RFC and are not accommodated by the RFC and its stated
restrictions.
For each of these reasons, Plaintiff’s claim must
fail.7
6
As discussed, the ALJ determined that Plaintiff has the RFC to
perform a range of light work with the following restrictions:
Plaintiff can frequently stoop, and occasionally climb, kneel,
crouch and crawl.
She can occasionally operate foot controls.
She must avoid exposure to extreme temperatures; vibrating and
dangerous machinery; and unprotected heights.
She can perform
simple tasks with gradual introduction of new tasks and
assignments. She can maintain attention, concentration and pace
to acceptably perform the simple tasks for two-hour increments
throughout the workday. Assigned job duties will require no direct
public contact. (Doc. 11 at 21).
7
Although Plaintiff has cited evidence in the record which she
claims supports a finding that she is disabled, that is, at best,
a contention that the record evidence supports a different finding.
That is not the standard on review. The issue is not whether there
16
B.
Last,
The ALJ’s reference to evidence discussed
in a prior administrative decision does
not require remand.
Plaintiff
argues
that
the
ALJ’s
consideration
of
evidence that was not made a part of the record requires a remand
in the instant case.
(Doc. 13 at 7).
Specifically, Plaintiff
claims that the ALJ’s reference to a prior administrative decision
which discussed a consultative report by Dr. Nina Tocci, Ph.D.,
finding
that
evaluation
Plaintiff
conducted
on
was
malingering
May
31,
2011,
in
was
a
mental
error.
status
Plaintiff
contends that remand is warranted because the ALJ did not include
Dr. Tocci’s report in the record in the instant case.
18).
Plaintiff
also
claims
that
she
was
(Doc. 11 at
deprived
of
the
opportunity to review the report, thereby violating several HALLEX
provisions.
(Id.).
The Commissioner counters that the ALJ did
not err in considering Dr. Tocci’s opinion that Plaintiff was
malingering, and that, in any event, any such error would be
is evidence in the record that would support a different finding,
but whether the ALJ’s finding is supported by substantial evidence.
See Figueroa v. Commissioner of Soc. Sec., 2017 U.S. Dist. LEXIS
181734, *15-16, 2017 WL 4992021, *6-7 (M.D. Fla. Nov. 2, 2017)
(“Although Plaintiff cites to certain test results, notes, and
physical therapy findings as support for her contention that ‘there
were objective medical findings that support the doctor’s opinions
about [her] limitations’ . . ., this is, at best, a contention
that the record could support a different finding. This is not the
standard on review. The issue is not whether a different finding
could be supported by substantial evidence, but whether this
finding is.”).
17
harmless.
(Doc. 19 at 11).
In her brief, Plaintiff argues that:
HALLEX I-2-1-35 requires that the ALJ must
provide the claimant or representative an
opportunity to examine the material that
constitutes or will constitute the evidence of
record before the hearing. This includes
evidence from a prior claim file if the ALJ is
going to rely on it. HALLEX I-2-1-13E.
Moreover,
all
evidence
used
in
the
determination of a claim must be entered into
evidence in that claim and listed as an
exhibit under HALLEX I-2-1-15 and I-2-1-20.
The ALJ cannot base his decision on evidence
that is not part of the record.
(Doc. 13 at 7).
Plaintiff’s argument is misplaced for several
reasons.
First, a review of the ALJ’s decision in the instant case
reveals that the ALJ referenced a prior administrative decision,
dated November 13, 2012, in which that ALJ discussed Dr. Tocci’s
finding
that
Plaintiff
had
malingered
psychological consultative examination.
during
her
2011
(Doc. 11 at 18-19, 24).
Notably, the prior administrative decision referencing Dr. Tocci’s
report is in the record in the instant case.
(Doc. 11 at 85, 91).
Moreover, despite Plaintiff’s argument that she has been deprived
of the opportunity to examine Dr. Tocci’s report, she does not
dispute that the report was part of the record in her prior
proceedings.
Therefore, she clearly has had access to the report.
Next, with respect to Plaintiff’s argument that the instant
case should be remanded based on the ALJ’s alleged violations of
18
HALLEX, the Court notes that the Hearings, Appeals and Litigation
Law Manual (“HALLEX”) is a policy manual written by the Social
Security
Administration
to
provide
policy
guidelines to ALJs and other staff members.
and
procedural
See Bryant v. Colvin,
2015 U.S. Dist. LEXIS 144792, *17 n.16, 2015 WL 6457574, *5 n.16
(S.D. Ala. Oct. 26, 2015), aff’d, 661 Fed. Appx. 686 (11th Cir.
2016).
Although the Eleventh Circuit has not issued a definitive
decision regarding the enforceability of HALLEX, several court
decisions strongly suggest that the HALLEX provisions do not carry
the force of law.
See, e.g., McCabe v. Commissioner of Social
Sec., 661 Fed. Appx. 596, 599 (11th Cir. 2016) (“This Court has
not decided whether HALLEX carries the force of law....”); George
v. Astrue, 338 Fed. Appx. 803, 805 (11th Cir. 2009) (“[E]ven if we
assume that § I-2-8-40 of HALLEX carries the force of law — a very
big assumption — the ALJ did not violate it[.]”); see also Green
v. Berryhill, 2018 U.S. Dist. LEXIS 39914, *26, 2018 WL 1278433,
*4–5 (S.D. Ala. Mar. 12, 2018)(rejecting Plaintiff’s assignment of
error because “HALLEX lacks the force and effect of law and cannot
serve as a basis of reversible error on the part of the ALJ.”);
Fisher v. Berryhill, 2017 U.S. Dist. LEXIS 151381, *33, 2017 WL
4158635, *11 (S.D. Ala. Sept. 19, 2017)(“Fisher’s reliance upon
HALLEX I-2-6-70(A) is unavailing because it does not appear that
HALLEX provisions carry the force of law.”); Quarles v. Colvin,
2016 U.S. Dist. LEXIS 105479, *20, 2016 WL 4250399, *7 (S.D. Ala.
19
Aug. 10, 2016) (“HALLEX is an SSA internal manual that ‘does not
carry the authority of law.’”).
Even assuming, arguendo, that the HALLEX provisions at issue
do carry the force and effect of law, and further assuming a
violation thereof, Plaintiff has failed to show any prejudice as
a result of any alleged violation in the instant case, thereby
precluding a remand on that basis.
See McCabe, 661 Fed. Appx. at
599 (“Even assuming (without deciding) that HALLEX carries the
force of law and the agency failed to comply with it, McCabe has
not shown that she was prejudiced by this failure.”); Carroll v.
Social Sec. Admin., Commissioner, 453 Fed. Appx. 889, 892 (11th
Cir.
2011)
(discussing
HALLEX
and
noting
that
“an
agency’s
violation of its own governing rules must result in prejudice
before
[the
Eleventh
Circuit]
will
remand
to
the
agency
for
compliance.”).
As discussed, Plaintiff did have access to Dr. Tocci’s report
in her prior administrative proceedings; the prior administrative
decision discussing Dr. Tocci’s report is included in the record
in
the
instant
case;
Dr.
Tocci’s
finding
of
malingering
is
referenced by the State Agency reviewer, C. Finch, SDM, in his
assessment in the instant case; and, in any event, Dr. Tocci’s
report
is
considered
merely
cumulative
by
ALJ
the
on
of
the
other
issue
of
substantial
whether
evidence
Plaintiff’s
subjective complaints, and Dr. Hodo’s opinions based thereon, were
20
consistent with the objective record evidence.8
92, 111).
(Doc. 11 at 91-
Thus, Plaintiff has failed to show prejudice as a result
of the alleged HALLEX violations.
Accordingly, for each of the foregoing reasons, Plaintiff’s
claim must fail.
VII.
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 be AFFIRMED.
DONE this 28th day of June, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
8
The ALJ also discussed the evidence of Plaintiff’s wide range of
activities of daily living, her conservative mental health
treatment, and the fact that her mental health symptoms were
adequately managed and controlled by her medications. (Doc. 11 at
18-25).
21
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