JOHNSON v. COLVIN

Filing 16

MEMORANDUM ORDER. The decision of the defendant Commissioner is AFFIRMED and plaintiff's applications for Disability Insurance Benefits and Supplemental Security Income are DENIED. The clerk is directed to close the file. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on 2/13/2014. (sdw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

LARRY DONALD JOHNSON,
Plaintiff,
v.

Case No. 3:13cv49/CJK

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
_____________________________/
MEMORANDUM ORDER
This case is now before the court pursuant to 42 U.S.C. § 405(g) for review of
a final determination of the Commissioner of Social Security (“Commissioner”)
denying Larry Donald Johnson’s applications for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34, and
Supplemental Security Income (“SSI”) benefits under Title XVI of the Act, 42
U.S.C. §§ 1381-83. The parties have consented to Magistrate Judge jurisdiction,
pursuant to 28 U.S.C. § 636(c) and FEDERAL RULE OF CIVIL PROCEDURE 73, for all
proceedings in this case, including entry of final judgment. Upon review of the
record before this court, I conclude that the findings of fact and determinations of the
Commissioner are supported by substantial evidence.
Commissioner, therefore, will be affirmed.

Case No. 3:13cv49/CJK

1

The decision of the

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PROCEDURAL HISTORY
Plaintiff, who will be referred to as claimant, plaintiff, or by name, raises two
issues. He first claims that the Administrative Law Judge (“ALJ”) erred by failing
to provide good cause for according little weight to the “opinions of plaintiff’s
treating physicians.” (Doc. 11, p. 6). This point focuses upon a report provided by
Dr. Lokaranjit Chalasani, a psychiatrist. Under the second point, plaintiff argues that
the ALJ’s formulation of Residual Functional Capacity (“RFC”) is not supported by
substantial evidence. Plaintiff urges that the ALJ erred by determining that he could
return to his past work as a kitchen helper. (Doc. 11, p. 9). This order will provide
facts as relevant to analysis of each issue based upon my independent review of the
record.
STANDARD OF REVIEW
A federal court reviews a Social Security disability case to determine whether
the Commissioner’s decision is supported by substantial evidence and whether the
ALJ applied the correct legal standards. See Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991)
(“[T]his Court may reverse the decision of the [Commissioner] only when convinced
that it is not supported by substantial evidence or that proper legal standards were not
applied.”). Substantial evidence is “‘such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)).
With reference to other standards of review, the Eleventh Circuit has said that
“‘[s]ubstantial evidence is more than a scintilla . . . .’” Somogy v. Comm’r of Soc.
Sec., 366 F. App’x 56, 62 (11th Cir. 2010) (quoting Lewis, 125 F.3d at1439).
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Although the ALJ’s decision need not be supported by a preponderance of the
evidence, therefore, “it cannot stand with a ‘mere scintilla’ of support.” Hillsman v.
Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). Moreover, the reviewing court “‘may
not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that
of the Secretary[.]’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). A
reviewing court also may not look “only to those parts of the record which support
the ALJ[,]” but instead “must view the entire record and take account of evidence in
the record which detracts from the evidence relied on by the ALJ.” Tieniber v.
Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). In sum, review is deferential to a
point, but the reviewing court conducts what has been referred to as “an independent
review of the record.” Flynn v. Heckler, 768 F.2d. 1273, 1273 (11th Cir. 1985); see
also Getty ex rel. Shea v. Astrue, No. 2:10–cv–725–FtM–29SPC, 2011 WL 4836220
(M.D. Fla. Oct. 12, 2011); Salisbury v. Astrue, No. 8:09-cv-2334-T-17TGW, 2011
WL 861785 (M.D. Fla. Feb. 28, 2011).1
The Social Security Act defines a disability as an “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.”2 42 U.S.C.
1

The Eleventh Circuit not only speaks of an independent review of the administrative record,
but it also reminds us that it conducts a de novo review of the district court’s decision on whether
substantial evidence supports the ALJ’s decision. See Ingram v. Comm'r of Soc. Sec. Admin., 496
F.3d 1253, 1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 11th Cir. 2002).
2

As indicated above, claimant is seeking both DIB and SSI. For purposes of determining
whether a claimant is disabled, the law and regulations governing a claim for DIB are identical to
those governing a claim for SSI. Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir. 1986). All
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§ 423(d)(1)(A). To qualify as a disability, the physical or mental impairment must
be so severe that the plaintiff not only is unable to do his previous work, “but cannot,
considering [his] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A)
Pursuant to 20 C.F.R. § 404.1520(a)-(g), the Commissioner analyzes a
disability claim in five steps:
1. If the claimant is performing substantial gainful activity, he is not disabled.
2.

If the claimant is not performing substantial gainful activity, his

impairments must be severe before he can be found disabled.
3. If the claimant is not performing substantial gainful activity and he has
severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if his impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4. If the claimant’s impairments do not prevent him from doing his past
relevant work, he is not disabled.
5. Even if the claimant’s impairments prevent him from performing his past
relevant work, if other work exists in significant numbers in the national economy
that accommodates his residual functional capacity and vocational factors, he is not
disabled.
Claimant bears the burden of establishing a severe impairment that keeps him from
performing his past work. See 20 C.F.R. § 404.1512. Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986).
references to statutes and rules in this order will be to those addressing DIB.
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The Eleventh Circuit has explained the operation of step five. See Doughty v.
Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001) (“In practice, the burden temporarily
shifts at step five to the Commissioner. The Commissioner must produce evidence
that there is other work available in significant numbers in the national economy that
the claimant has the capacity to perform. In order to be considered disabled, the
claimant must then prove that he is unable to perform the jobs that the Commissioner
lists. The temporary shifting of the burden to the Commissioner was initiated by the
courts, and is not specifically provided for in the statutes or regulations. See Brown
v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999) (quoting Walker v. Bowen, 834 F.2d 635,
640 (7th Cir. 1987) (‘The shifting of the burden of proof is not statutory, but is a
long-standing judicial gloss on the Social Security Act’)).”).
Step five (or step four in cases such as the present one where the ALJ decides
a claimant can perform past work) is where the issues often are framed. At that point,
the ALJ formulates the all-important residual functional capacity. Even where one
or more severe impairments are established, the claimant must show that he cannot
perform work within that residual functional capacity. The ALJ establishes residual
functional capacity, utilizing the impairments identified at step two, by interpretation
of (1) the medical evidence, and (2) the claimant’s subjective complaints (generally
complaints of pain). Residual functional capacity is then used by the ALJ to make
the ultimate vocational determination required by step five.3 “[R]esidual functional

3

“Before we go from step three to step four, we assess your residual functional capacity.
(See paragraph (e) of this section.) We use this residual functional capacity assessment at both step
four and step five when we evaluate your claim at these steps.” 20 C.F.R. § 404.1520(a)(4).
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capacity is the most [claimant] can still do despite [claimant’s] limitations.”4 20 CFR
§ 404.1545(a)(1). Often both the medical evidence and the accuracy of a claimant’s
subjective complaints are subject to a degree of conflict, and that conflict leads, as in
this case, to the points raised on judicial review by many disappointed claimants.
In the first point raised on review, claimant advances a two-page report entitled
“Supplemental Questionnaire As To Residual Functional Capacity.” (“Supplemental
Questionnaire”). T. 419-420. In this document, Dr. Chalasani circled or checked off
preprinted answers to eleven questions, some with sub-parts. The report contains one
handwritten notation having to do with the effects of certain medications. Question
number twelve, entitled “Additional Comments,” prompted no response by Dr.
Chalasani. Mr. Johnson finds several of the conclusions in this report important and
disagrees with the ALJ’s decision to afford those conclusions little weight. By
circling responses, Dr. Chalasani reported constant estimated deficiencies in
4

In addition to this rather terse definition of residual functional capacity, the Regulations
describe how the Commissioner makes the assessment:
(3) Evidence we use to assess your residual functional capacity. We will assess your
residual functional capacity based on all of the relevant medical and other evidence.
In general, you are responsible for providing the evidence we will use to make a
finding about your residual functional capacity. (See § 404.1512(c).) However,
before we make a determination that you are not disabled, we are responsible for
developing your complete medical history, including arranging for a consultative
examination(s) if necessary, and making every reasonable effort to help you get
medical reports from your own medical sources. (See §§ 404.1512(d) through (f).)
We will consider any statements about what you can still do that have been provided
by medical sources, whether or not they are based on formal medical examinations.
(See § 404.1513.) We will also consider descriptions and observations of your
limitations from your impairment(s), including limitations that result from your
symptoms, such as pain, provided by you, your family, neighbors, friends, or other
persons. (See paragraph (e) of this section and § 404.1529.)[.] 20 C.F.R. §
404.1545(a)(3).
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concentration, persistence or pace. He found marked episodes of “deterioration or
decompensation” in work or work-like settings. He noted moderate limitations in
claimant’s ability to understand, carry out, and remember instructions in a work
setting, marked limitations in ability to respond appropriately to supervision in a work
setting, and moderate limitation in ability to perform repetitive tasks in a work
setting. The ALJ afforded little weight to the foregoing conclusions, reasoning:
Dr. Chalasani’s assessments are inconsistent with corresponding
treatment records. The clinical findings illustrate a significantly higher
level of functioning. Treatment records reflect improvement in the
claimant’s condition, including progressively higher GAF scores
through the relevant period. These scores have remained in the range
indicative of moderate limitations in functioning. The psychiatric
opinion evidence provided by the claimant’s treating source, Dr.
Chalasani, is afforded little weight due to numerous inconsistencies with
Dr. Chalasani’s own treatment records.
T. 22.5
Without dispute, Dr. Chalasani is a treating physician in this case. Thus, the
issue, as phrased, implicates the treating physician rules. Absent good cause, the
opinion of a claimant’s treating physician must be accorded considerable or
substantial weight by the Commissioner. Phillips v. Barnhart, 357 F.3d 1232, 12401241 (11th Cir. 2004); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997);
5

A GAF between 51 and 60 indicates moderate symptoms or moderate difficulty in social,
occupational, or school functioning. The American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. 1994). However, the most recent edition of the
Diagnostic and Statistical Manual no longer recommends use of the GAF scale, acknowledging that
“[i]t was recommended that the GAF be dropped from DSM-5 for several reasons, including its
conceptual lack of clarity and questionable psychometrics in routine practice.” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013).
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Broughton v. Heckler, 776 F.2d 960, 960-961 (11th Cir. 1985); Jones v. Bowen, 810
F.2d 1001, 1005 (11th Cir. 1986). “Good cause” exists when: (1) the treating
physician’s opinion was not bolstered by the evidence; (2) the evidence supported a
contrary finding; or (3) the treating physician's opinion was conclusory or
inconsistent with the doctor’s own medical records. Phillips, 357 F.3d at 1241; see
also Lewis, 125 F.3d at 1440 (citing cases). If a treating physician’s opinion on the
nature and severity of a claimant’s impairments is well-supported by medically
acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with
other substantial evidence in the record, the ALJ will give it controlling weight. 20
C.F.R. § 404.1527(c)(2).6 Where a treating physician has merely made conclusory

6

The cited regulation embodies the treating physician rule:

(2) Treatment relationship. Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations, such
as consultative examinations or brief hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in your case record, we
will give it controlling weight. When we do not give the treating source's opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii)
of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this
section in determining the weight to give the opinion. We will always give good
reasons in our notice of determination or decision for the weight we give your
treating source's opinion.
(I) Length of the treatment relationship and the frequency of examination. Generally,
the longer a treating source has treated you and the more times you have been seen
by a treating source, the more weight we will give to the source's medical opinion.
When the treating source has seen you a number of times and long enough to have
obtained a longitudinal picture of your impairment, we will give the source's opinion
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statements, however, the ALJ may afford them such weight as is supported by clinical
or laboratory findings and other consistent evidence of the claimant’s impairments.
See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986); see also Schnor v.
Bowen, 816 F.2d 578, 582 (11th Cir. 1987).
The law concerning conclusory statements is particularly applied where a
doctor, even one who has treated the claimant, expresses opinions on a preprinted or
“check-off” form. Such opinion evidence will not bind the Commissioner. Indeed,
courts have found that such preprinted forms do not provide persuasive evidence of
the validity of the opinions expressed therein. See Hammersley v. Astrue, No. 5:08cv-245-Oc-10GRJ, 2009 WL 3053707, at *6 (M.D. Fla. Sept. 18, 2009) (“Check-off
forms . . . have limited probative value because they are conclusory and provide little
narrative or insight into the reasons behind the conclusions.” (citing Spencer ex rel.
Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985); Mason v. Shalala, 994
F.2d 1058, 1065 (3d Cir. 1993))). Although such forms certainly are admissible,
“they are entitled to little weight and do not constitute ‘substantial evidence’ on the
record as a whole.” O’Leary v. Schweiker, 710 F. 2d 1334, 1341 (8th Cir. 1983).
more weight than we would give it if it were from a nontreating source.
(ii) Nature and extent of the treatment relationship. Generally, the more knowledge
a treating source has about your impairment(s) the more weight we will give to the
source's medical opinion. We will look at the treatment the source has provided and
at the kinds and extent of examinations and testing the source has performed or
ordered from specialists and independent laboratories. For example, if your
ophthalmologist notices that you have complained of neck pain during your eye
examinations, we will consider his or her opinion with respect to your neck pain, but
we will give it less weight than that of another physician who has treated you for the
neck pain. When the treating source has reasonable knowledge of your
impairment(s), we will give the source's opinion more weight than we would give it
if it were from a nontreating source.
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These pronouncements suggest that where a party wishes to rely upon opinions
expressed in a check-off form, that party would be well-served to scour the record for
actual, supportive medical evidence, consistent with the short-hand conclusions. The
absence of such medical evidence may weaken or obliterate the probative value of the
form. Here, the ALJ specifically found that the form in question differed from the
observations recorded in Dr. Chalasani’s treatment records.
Dr. Chalasani works as a psychiatrist for Lakeview Center, Inc., a Pensacola
facility that treats and manages mental and emotional disorders, such as those that
afflict plaintiff.7 Claimant underwent group therapy at Lakeview and saw Dr.
Chalasani for diagnosis, treatment plan, and medication. During a visit on August 8,
2009, claimant reported stress relating to his application for SSI. T. 389. He had a
history of janitorial work, but left because of “dealing with chemicals.” T. 389. He
continued to maintain “treatment gains.” T. 389. Claimant was well groomed and
well spoken. His mood was “less irritable.” T. 389. He had goal oriented thought
process, fair cognitive ability, and fair insight and judgment. T. 389. Mr. Johnson
understood the treatment plan as described by Dr. Chalasani. T. 389.
In November, 2009, plaintiff saw Dr. Chalasani for medication management.
T. 388. During that visit, plaintiff offered he was “doing much better” on his
medication and denied any side effects. T. 388. He was alert, calm, and cooperative.
Thought was goal directed and affect was mood congruent and bright. T. 388.
Upon examination on November 24, 2009, Dr. Chalasani noted claimant was
maintaining treatment gains and tolerating his medication well. T. 387. Claimant

7

Relevant to this appeal, the ALJ determined that Mr. Johnson has a severe impairment of
“major depressive disorder.” T. 14-15.
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was alert and oriented. He was calm and cooperative, well-dressed, and wellgroomed. He displayed “goal directed” thought process, with fair cognitive ability
and fair insight and judgment. T. 387.
In February 2010, Dr. Chalasani completed a Treating Source Mental status
Report for the state agency. T. 390-392. This report required the doctor to answer
specific questions. As in the exam notes, Dr. Chalasani said claimant was goal
directed with no overt psychotic symptoms. Claimant was well-oriented to person,
place, and time and displayed “grossly intact” memory – immediate, recent, and
remote. T. 391. He was calm and cooperative. Dr. Chalasani diagnosed major
depressive disorder, mild, with no psychotic features. T. 391. Asked to address what
the patient can “still do despite. . .mental impairments” and to comment on “capacity
for understanding and memory, sustained concentration and persistence, social
interaction, and adaption,” the doctor stated simply “does comprehend.” T. 392. Dr.
Chalasani believed claimant could work part time, under supervision. T. 392.
On February 1, 2011, several months after completing the Supplemental
Questionnaire, Dr. Chalasani saw plaintiff for medication management. T. 434. Mr.
Johnson continued to maintain treatment gains and tolerate his medication. He had
no hallucinations. He was alert and oriented in three spheres and was calm and
cooperative. Plaintiff’s mood was “euthymic.”8 His affect was bright and, as before,
his thought process was goal-directed.
Based upon the foregoing, the ALJ properly found the Supplemental
Questionnaire deviated from the actual treatment observations.

8

Significantly,

“Euthymia” connotes “a state of mental tranquility and well-being; neither depressed nor
manic.” DORLAND ’S ILLUSTRATED MEDICAL DICTIONARY (32D ED .)
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although Dr. Chalasani predicted constant deficiencies of cooperation, persistence,
or pace and marked episodes of decompensation9, nothing in the treatment chart
comports with such prognosis. Even more to the point, Dr. Chalasani consistently
noted a patient with goal-directed thought and no overt psychotic symptoms, who was
maintaining, if not improving.
The ALJ also noted other medical evidence and treating third-party
assessments of record. T. 9-11. Plaintiff’s “life coach” stated he was able to
“constantly” pay attention. T. 200. He followed spoken instructions “pretty good.”
T. 200. He did not handle stress well, but he was very respectful of authority figures.
T. 201. The disability determinations office reported contact with plaintiff’s therapist
at Lakeview in January 2010. The therapist, Ms. Killam, said that claimant was doing
“amazingly well.” T. 222. He was able to concentrate on tasks and follow simple
instructions. His memory was intact. T. 222.

9

In psychiatry, “decompensation” means “failure of defense mechanisms resulting in
progressive personality disintegration.” DORLAND ’S ILLUSTRATED MEDICAL DICTIONARY (32D ED.)
Under the Commissioner’s regulations:
Episodes of decompensation are exacerbations or temporary increases in symptoms
or signs accompanied by a loss of adaptive functioning, as manifested by difficulties
in performing activities of daily living, maintaining social relationships, or
maintaining concentration, persistence, or pace. Episodes of decompensation may be
demonstrated by an exacerbation in symptoms or signs that would ordinarily require
increased treatment or a less stressful situation (or a combination of the two).
Episodes of decompensation may be inferred from medical records showing
significant alteration in medication; or documentation of the need for a more
structured psychological support system (e.g., hospitalizations, placement in a
halfway house, or a highly structured and directing household); or other relevant
information in the record about the existence, severity, and duration of the episode.
20 CFR Pt. 404, Subpt. P, App. 1, § 12.00(C)(4).
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The ALJ also noted assessments by state agency psychologists, Dr. Meyers and
Dr. Carter. T. 21. As to Dr. Meyers, the ALJ found that claimant’s limitations were
actually more severe than those assessed by Dr. Meyers and therefore afforded “lesser
weight” to that assessment. T. 21. The ALJ, however, did not discount entirely
Meyers’ assessment, which concluded claimant had few significant limitations in
those areas germane to work activities. T. 358-360.
The ALJ found the assessment performed by Dr. Carter to be consistent with
the full record regarding claimant’s limitations. T. 21. Dr. Carter noted a few
moderate limitations, but as to the great majority of work-related functions, found no
significant limitation. T. 393-394. Under the functional capacity assessment, Dr.
Carter concluded plaintiff could understand, remember, and carry out routine
instructions. He could go out and socialize, and he could cope with routine activities
and adapt to change. T. 395.
The ALJ did not err by making reference to the state agency consultants.
Under the regulations and case law, an ALJ may rely upon, and must consider, the
opinions of state agency consultants. See 20 C.F.R. § 404.1527(e)(2); see also
Voronova v. Astrue, 2012 WL 2384414, *4 (M.D. Fla. 2012) (acknowledging that
ALJ is required to consider opinions of non-examining state agency medical and
psychological consultants.). Although not bound by such opinions, the ALJ “must
consider findings and other opinions of State agency medical and psychological
consultants and other program physicians, psychologists, and other medical
specialists as opinion evidence, except for the ultimate determination about whether
[claimant is] disabled. . . 20 C.F.R. § 404.1527(e)(2)(i).

When considering the

findings of a state agency medical or psychological consultant, the ALJ will look to
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factors “such as the consultant's medical specialty and expertise in our rules, the
supporting evidence in the case record, supporting explanations the medical or
psychological consultant provides, and any other factors relevant to the weighing of
the opinions.” 20 C.F.R. § 404.1527(e)(2)(ii). The ALJ determines the weight
afforded to consultants and, if the ALJ affords controlling weight to such a
consultant, rather than to a treating source, the ALJ must explain the weight given to
such opinion, just as with other medical sources. Id. The regulations provide that
agency medical and psychological consultants are “highly qualified physicians,
psychologists, and other medical specialists who are also experts in Social Security
disability evaluation.” Id. Acknowledging this expertise, the Eleventh Circuit has
explained that, in a proper case, the ALJ does not err by giving substantial weight to
the opinions of non-examining physicians, including state agency medical and
psychological consultants. See Milner v. Barnhard, 275 Fed. Appx. 947, 948 (11th
Cir. 2008).10 Having properly afforded little weight to Dr. Chalasani’s Supplemental
Questionnaire, the ALJ also found appropriate support in the other source opinions
discussed above.
Plaintiff next urges that the ALJ’s determination that plaintiff can perform his
past work as a kitchen helper lacks support in substantial evidence. Plaintiff points
to the testimony of vocational expert Leslie Gillespie and argues that his “marked”

10

The consultant’s report alone does not constitute good cause for the ALJ to discredit
treating physician opinions. See Lamb v. Bowen, 847 F. 2d 698, 703. Where the ALJ does articulate
good cause, however, the opinions of consultants may take on particular significance. See Voronova
2012 WL at *6 (explaining that the “rule” suggesting that non-examining doctors are entitled to little
weight is most often stated in the face of treating physician opinions that “have not otherwise been
validly discounted.”). Here, as explained above, the ALJ articulated good cause by finding that Dr.
Chalasani’s opinions were not consistent with the doctor’s chart as a whole.
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limitations in ability to interact with supervisors and co-workers would preclude his
returning to his past work as a kitchen helper. Ms. Gillespie did testify, in response
to a hypothetical question, that an individual with the marked limitation claimed by
plaintiff would not be able to work as a kitchen helper, which is a “somewhat
crowded circumstance.” T. 57. Under this point, plaintiff also argues that the ALJ
erred by failing to “obtain detailed information about the actual job duties, physical
and mental demands, and requirements of Plaintiff’s kitchen helper work as required
by SSR 82-62.”
Ms. Gillespie qualified as a vocational expert by stipulation. T. 49. She is
familiar with the definitions used by the Commissioner for various levels of
work–unskilled, semi-skilled, skilled, sedentary, light, medium, heavy, and very
heavy. T. 49. Gillespie identified kitchen helper as work claimant had performed
within the last fifteen years. T. 49-50. She described the level of skill and exertion
required for that position. T. 50. Claimant confirmed he had once worked full-time
as a kitchen helper. T. 54.
The ALJ posed a number of hypothetical situations to Ms. Gillespie. As to the
first hypothetical individual described by the ALJ, the potential worker would have
a number of limitations related to psychological and emotional factors: he would be
able to understand, remember, and carry out simple routine tasks but not complex or
detailed tasks; he should interact or communicate with the public on not more than
an occasional basis; and he would have mild to moderate impairment in terms of
concentration, persistence, or pace (defined by the ALJ as “being off task or at a nonproductive pace for up to five percent of the work day.”). T. 54-55. Gillespie
identified kitchen helper as the claimant’s only past work consistent with such
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limitations. T. 55.
The ALJ then described a similar hypothetical worker but with “more of a
marked impairment in terms of concentration, persistence, or pace, which [the ALJ]
would define as sufficient to cause the individual to be off task for up to fifteen to
twenty percent of the work day.” T. 56. Gillespie testified that she could not identify
an occupation that such a person could sustain on a full-time basis. T. 56.
The ALJ proceeded to describe a potential worker who had a “marked
impairment in terms of his ability to respond appropriately to supervision and
coworkers” and who would need a job “pretty much in isolation.” T. 56. Ms.
Gillespie concluded that such a person could not work as a kitchen helper because
“those jobs generally are going to be in a somewhat crowded circumstance. . .” T. 57.
She went on to observe that unskilled work would generally be performed in a setting
that includes other workers. T. 57. She affirmed that her opinions were consistent
with the Dictionary of Occupational Titles. T. 58.
Claimant’s lawyer then asked Ms. Gillespie to consider Dr. Chalasani’s
Supplemental Questionnaire, described above.

Given the marked impairments

circled by Dr. Chalasani on the form, Gillespie could not identify any work that such
an individual could sustain. T. 58-59.
The present point on review, just like the individual described by claimant’s
lawyer, depends on whether the Supplemental Questionnaire accurately portrayed the
plaintiff’s vocational limitations. As set out above, the ALJ did not err by rejecting
the conclusory opinions proffered by Dr. Chalasani. Specifically, and in contrast to
those conclusory opinions, the record shows that plaintiff was able to pay attention
and follow instructions. T. 200-201. He was alert and attentive in a group setting.
Case No. 3:13cv49/CJK

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T. 491. He was able to interact well with peers and staff at the Lakeview facility. T.
494. Even after completing the form that takes on so much significance to the present
argument, Dr. Chalasani noted that Mr. Johnson was alert and oriented. Even more
pertinent with regard to the vocational issue, claimant was calm and cooperative. T.
434. He had a bright affect and exhibited goal oriented thought process. T. 434.
Accordingly, the ALJ did not err in ultimately relying upon expert testimony that did
not take into account the supposed “marked” limitations circled by Dr. Chalsani.
Plaintiff’s claim that the ALJ did not obtain sufficient information about he
physical and mental demands of the kitchen helper job also does not avail. The
shortcoming of the argument is that it relies not on the details of the job in question,
but upon acceptance of the Supplemental Questionnaire. The ALJ declined to accept
the form, and this order has found no error in the ALJ’s decision in that regard. In
fact, Ms. Gillespie provided significant information concerning the kitchen helper
position, noting, most importantly, that the job would be performed in a setting
involving coworkers and a crew supervisor. T. 56. The record here contains
substantial evidence of plaintiff’s abilities to function in such a setting.
The actions of the Commissioner are supported by substantial evidence. No
legal error has been show in the denial of benefits.

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ACCORDINGLY, it is ORDERED:
1. The decision of the defendant Commissioner is AFFIRMED and plaintiff’s
applications for Disability Insurance Benefits and Supplemental Security Income are
DENIED.
2. The clerk is directed to close the file.
At Pensacola, Florida, this 13th day of February, 2014.

/s/

Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE

Case No. 3:13cv49/CJK