WOOTEN v. ASTRUE
Filing
17
MEMORANDUM OPINION AND ORDER. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 12/16/13. Clerk to enter judgment. (deb)
Page 1 of 20
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
WILLIE WOOTEN, JR.,
Plaintiff,
vs.
Case No. 4:12-CV-606-CAS
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
/
MEMORANDUM OPINION AND ORDER
This is a Social Security case referred to the undersigned United States
Magistrate Judge upon consent of the parties, doc. 8, and reference by Chief United
States District Judge M. Casey Rodgers. Doc. 9. See Fed. R. Civ. P. 73; 28 U.S.C.
§ 636(c). After careful consideration of the entire Record, the Court affirms the decision
of the Commissioner.
I. Procedural History
On August 7, 2008, Plaintiff, Willie Wooten, Jr., filed an application for
Supplemental Security Income (SSI) under Title XVI of the Social Security Act (Act),
alleging disability beginning January 31, 2007, due to his mental condition and gout.
R. 23, 135-36, 158, 163. (Citations to the Record shall be by the symbol “R.” followed
by a page number that appears in the lower right corner.)
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Plaintiff’s application was denied initially on March 24, 2009, and upon
reconsideration on May 29, 2009. R. 23, 77-83, 89-91. On June 12, 2009, Plaintiff
requested a hearing. R. 23, 92-93. On October 20, 2010, in Tallahassee, Florida,
Plaintiff appeared and testified at a hearing conducted by Administrative Law Judge
(ALJ) Stephen C. Calvarese. R. 23, 45-69. Robert N. Strader, an impartial vocational
expert, testified during the hearing. R. 23, 70-75, 126 (Resume). Plaintiff was
represented by David Sullivan, an attorney. R. 23, 43, 128. At the hearing, Plaintiff
amended his alleged disability onset date to August 7, 2008. R. 23, 41-42.
On November 12, 2010, the ALJ issued a decision and denied Plaintiff’s
application for benefits concluding that Plaintiff was not disabled through November 12,
2010, the date of the ALJ’s decision. R. 33. On July 27, 2012, the Appeals Council
denied Plaintiff’s request for review of the ALJ’s decision. R.4-7, 15-16, 18. In denying
relief the Appeals Council stated in part: “Also, the Appeals Council considered the fact
that since the date of the [ALJ’s] decision, you were found to be under a disability
beginning December 1, 2010, based on the application(s) you filed on December 1,
2010; however, the Council found that this information does not warrant a change in the
[ALJ’s] decision.” R. 4; Doc. 5.1
On October 12, 2012, the Appeals Council granted Plaintiff additional time to file
a civil action in the district court. R. 1-3. The ALJ’s decision stands as the final decision
1
Plaintiff filed a one-page memorandum in this Court. Doc. 15. Plaintiff
attached several documents to this memorandum including a February 4, 2011,
determination from the Social Security Administration notifying Plaintiff that he was
found disabled as of December 1, 2010, and eligible for SSI. He was advised of his
right to appeal, see pages 5 and 6. There is no indication in this record that Plaintiff
appealed this determination. See doc. 16 at n.3 (Commissioner’s memorandum).
Therefore, the subsequent determination is not subject to review in this case.
Case No. 4:12cv606-CAS
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of the Commissioner. The relevant period in this case begins on August 7, 2008, the
amended alleged onset date of disability, through November 12, 2010.
On November 20, 2012, Plaintiff, appearing pro se, filed a Complaint with the
United States District Court seeking review of the ALJ’s decision. Doc. 1. On
December 7, 2012, Plaintiff filed what is docketed as his first amended complaint. Doc.
5. The parties filed memoranda of law, doc. 15, see supra n.1, and doc. 16, which have
been considered.
II. Legal Standards Guiding Judicial Review
This Court must determine whether the Commissioner's decision is supported by
substantial evidence in the record and premised upon correct legal principles.
42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The Commissioner's factual
findings are conclusive if supported by substantial evidence.” Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002) (citations omitted). The court may not reweigh the
evidence or substitute its own judgment for that of the ALJ even if it finds that the
evidence preponderates against the ALJ’s decision. Moore, 405 F.3d at 1211.2
2
“If the Commissioner's decision is supported by substantial evidence we must
affirm, even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240, n.8 (11th Cir. 2004) (citations omitted). “A ‘substantial evidence’ standard,
however, does not permit a court to uphold the Secretary's decision by referring only to
those parts of the record which support the ALJ. A reviewing court 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).
“Unless the Secretary has analyzed all evidence and has sufficiently explained the
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“In making an initial determination of disability, the examiner must consider four
factors: ‘(1) objective medical facts or clinical findings; (2) diagnosis of examining
physicians; (3) subjective evidence of pain and disability as testified to by the claimant
and corroborated by [other observers, including family members], and (4) the claimant’s
age, education, and work history.’” Bloodsworth, 703 F.2d at 1240 (citations omitted).
A disability is defined as a physical or mental impairment of such severity that the
claimant is not only unable to do past relevant 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.” 42 U.S.C. § 423(d)(2)(A). A disability is 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.” 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1509 (duration requirement).
Both the “impairment” and the “inability” must be expected to last not less than 12
months. Barnhart v. Walton, 535 U.S. 212 (2002).
The Commissioner analyzes a claim in five steps. 20 C.F.R. § 416.920(a)(4)(i)(v).
1.
Is the individual currently engaged in substantial gainful activity?
2.
Does the individual have any severe impairments?
3.
Does the individual have any severe impairments that meet or
equal those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P?
weight he has given to obviously probative exhibits, to say that his 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
v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (citations omitted).
Case No. 4:12cv606-CAS
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4.
Does the individual have any impairments which prevent past
relevant work?
5.
Do the individual's impairments prevent other work?
A positive finding at step one or a negative finding at step two results in disapproval of
the application for benefits. A positive finding at step three results in approval of the
application for benefits. At step four, the claimant bears the burden of establishing a
severe impairment that precludes the performance of past relevant work. Consideration
is given to the assessment of the claimant’s RFC and the claimant’s past relevant work.
If the claimant can still do past relevant work, there will be a finding that the claimant is
not disabled. If the claimant carries this burden, however, the burden shifts to the
Commissioner at step five to establish that despite the claimant's impairments, the
claimant is able to perform other work in the national economy in light of the claimant’s
RFC, age, education, and work experience. Phillips, 357 F.3d at 1237; Jones v. Apfel,
190 F.3d 1224, 1229 (11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen,
786 F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R. § 416.920(a)(4)(v), (e) & (g). If the
Commissioner carries this burden, the claimant must prove that he or she cannot
perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987).
IV. Legal Analysis
A. The ALJ’s Decision
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
employment since August 7, 2008, the date of the SSI application and the amended
alleged onset date. R. 25. At step two, the ALJ found that Plaintiff had several severe
impairments such as gouty arthritis; s/p left patella tendon rupture repair (8/10); major
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depressive disorder with psychotic features; and DA&A (cocaine, marijuana, and
alcohol). The ALJ stated that these impairments are considered severe because they
cause more than minimal limitations on Plaintiff’s ability to perform basic work activities.
Id.
As noted, the ALJ determined that Plaintiff has a substance use disorder.
R. 25. This finding is a material finding that permeates the ALJ’s decision. R. 25-33.
For example, the ALJ ultimately determined that “because the claimant would not be
disabled if he stopped the substance use (20 CFR 416.920(f)), the claimant’s substance
use disorders is a contributing factor material to the determination of disability (20 CFR
416.935). Thus, the claimant has not been disabled within the meaning of the [Act] at
any time from the date the application was files through the date of this decision.
R. 33.
Regressing a bit, at step three, the ALJ made several findings:
3. The claimant’s impairments, including the substance use disorders, meet
sections 12.04 [Affective Disorders] and 12.09 [Substance Abuse Disorders] of
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d)).[3]
....
4. If the claimant stopped the substance use, the remaining limitations would
cause more than a minimal impact on the claimant’s ability to perform basic work
activities; therefore, the claimant would continue to have a severe impairment or
combination of impairments.
5. If the claimant stopped the substance use, the claimant would not have an
impairment or combination of impairments that meets or medically equals the
3
The ALJ determined that the “paragraph A” and “paragraph B” criteria of these
listings were satisfied and he stated: “Including the substance abuse disorders, the
claimant has moderate restrictions in activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration,
persistence or pace; and no episodes of decompensation.” R. 26 (emphasis added).
(The “paragraph B” criteria are satisfied because Plaintiff has two marked limitations.)
Id.
Case No. 4:12cv606-CAS
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impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d)).
R. 26. Under Finding 5, the ALJ determined that if the Plaintiff “stopped the substance
abuse, the remaining limitations would not meet or medically equal a listing criteria of
listing 12.04” because then Plaintiff would have mild restrictions in activities of daily
living; moderate difficulties in social functioning; moderate difficulties in regard to
concentration, persistence or pace; and no episodes of decompensation. Id.
Prior to step four, the ALJ determined Plaintiff’s residual functional capacity
(RFC). R. 27. The ALJ’s RFC assessment follows:
6. If the claimant stopped the substance use, the claimant would have the
residual functional capacity to perform medium work as defined in 20 CFR
416.967(c) except he would have moderate limitations in his ability to maintain
attention and concentration for extended periods; complete a normal workday
and workweek without interruptions from psychologically based symptoms;
perform at a consistent pace without an unreasonable number and length of rest
periods; maintain socially appropriate behavior and adhere to basic standards of
neatness and cleanliness; and set realistic goals or make plans independently of
others. However, he is able to understand and carry out simple and detailed
tasks, and can focus for 2-hour periods; persist over a normal 8 hour/5 day task
schedule with customary breaks; has adequate social skills to function in a task
situation although he may need occasionally re-direction to cleanliness/hygiene;
and needs assistance in developing task goals. The claimant is able to learn and
engage in simple, routine, repetitive tasks and perform on a sustained basis in a
socially appropriate manner.
R. 27. The ALJ discussed relevant evidence including Plaintiff’s testimony, several
consultative physical and mental examinations and medical record evaluations, and
Plaintiff’s examination and treatment at the Veterans Administration (VA) Clinic. In
particular, the ALJ discussed Plaintiff’s treatment with Marie B. Go, M.D., Staff
Psychiatrist at the VA Clinic, and her opinions regarding Plaintiff’s diagnosis, prognosis,
and ability to work. R. 28-32. The ALJ concluded the RFC discussion as follows:
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If the claimant stopped the substance use, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
produce the alleged symptoms; however, the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not credible
to the extent they are inconsistent with the residual functional capacity
assessment for the reasons explained below.
The claimant has described daily activities, which are not limited to the extent
one would expect, given the complaints of disabling symptoms and limitations.
Although the claimant has received various forms of treatment for the allegedly
disabling symptoms, which would normally weigh somewhat in the claimant's
favor, the record also reveals that the treatment has been generally successful in
controlling those symptoms. The claimant has been prescribed and takes
appropriate medications for the alleged impairments, which weighs in the
claimant's favor, but the medical records reveal that the medications have been
relatively effective in controlling the claimant's symptoms. The record also
reveals that the claimant's allegedly disabling impairment(s) was present at
approximately the same level of severity prior to the alleged onset date. The
evidence of record shows that the claimant has been suffering from mental
health problems since 2004; however, he continued to work without any
significant problems. The fact that the impairment(s) did not prevent the claimant
from working at that time strongly suggests that it would not currently prevent
work. Furthermore, the description of symptoms and limitations, which the
claimant has provided throughout the record, has generally been inconsistent
and unpersuasive. Another factor influencing the conclusions reached in this
decision is the claimant’s generally unpersuasive appearance and demeanor
while testifying at the hearing. It is emphasized that this observation is only one
among many being relied on in reaching a conclusion regarding the credibility of
the claimant’s allegations and the claimant’s residual functional capacity. The
Administrative Law Judge notes that the record contains an opinion from an
examining physician, which supports the residual functional capacity reached in
this decision. Furthermore, the residual functional capacity conclusions reached
by the physicians employed by the State Disability Determination Services also
support a finding of ‘not disabled.’ Although those physicians were nonexamining, and therefore their opinions do not as a general matter deserve as
much weight as those of examining or treating physicians, those opinions do
deserve some weight, particularly in a case like this in which there exist a
number of other reasons to reach similar conclusions. These physicians
concluded that the claimant could perform unskilled, medium work.
R. 32.
At step four, the ALJ determined that if Plaintiff stopped the substance use, he
“would be able to perform past relevant work as a construction worker and
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groundskeeper. This work does not require the performance of work-related activities
precluded by the [RFC] the claimant would have if he stopped the substance use (20
CFR 416.965).” R. 32 (Finding 7).
Ultimately, the ALJ concluded that Plaintiff was not disabled:
8. Because the claimant would not be disabled if he stopped the substance use
(20 CFR 416.920(f)), the claimant’s substance use disorders is a contributing
factor material to the determination of disability (20 CFR 416.935). Thus, the
claimant has not been disabled within the meaning of the [Act] at any time from
the date the application was filed through the date of this decision.
R. 33.
B. Substantial evidence supports the ALJ’s determination that Plaintiff has
not been disabled at any time from the date the application was filed on
August 7, 2008, through the date of the ALJ’s decision entered on
November 12, 2010.
In his memorandum, doc. 15, Plaintiff does not directly address the ALJ’s
decision. Doc. 15. Rather, Plaintiff argues that he should have been found to be
disabled as of “August 12, 2008 and not December, 2010.” Id. He further argues that
his “health did not improve to allow [him] to seek gainful employment it only got became
worser.” Id. Plaintiff requests retroactive benefits for the period at issue in this case -August 7, 2008, through November 12, 2010. Id.
1.
As noted above, Plaintiff was awarded SSI effective December 1, 2010. See
supra n.1. Decisions of the ALJ are reviewed to determine whether the claimant is
entitled to benefits during a specific period of time, which period is prior to the date of
the ALJ’s decision, here November 12, 2010. The relevant period for this Court’s
consideration is the time-period prior to the ALJ’s decision. See Wilson v. Apfel, 179
F.3d 1276, 1279 (11th Cir. 1999) (per curiam); Cassidy v. Comm’r of Soc. Sec., 383 F.
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App’x 840, 842 (11th Cir. 2010) (unpublished); Anderson v. Astrue, Case No.
5:06cv192/SPM/EMT, 2007 U.S. Dist. LEXIS 96621, at *31-32 (N.D. Fla. Nov. 9, 2007).
Moreover, sentence six of 42 U.S.C. § 405(g) provides that the district court may
remand the case to the Commissioner for “additional evidence to be taken before the
Commissioner . . . but only upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such evidence into the record
in a prior proceeding.” See Allen v. Comm'r of Soc. Sec., 561 F.3d 646, 653 (6th Cir.
2009); see also Bradley v. Bowen, 809 F.2d 1054, 1057-58 (5th Cir. 1987). Plaintiff has
not provided the required good cause. As a result, the subsequent award is not
relevant. Also, the Appeals Council considered this issue, but “found that this
information does not warrant a change in the [ALJ’s] decision.” R. 4. Remand for reconsideration of the subsequent award of benefits is not required.
2.
Plaintiff filed a first amended complaint, doc. 5, and claimed he is entitled to SSI
because of his psychotic disorder, NOS. Id. He attached to the first amended
complaint a copy of the decision of the Appeals Council of July 27, 2012, and three “to
whom it may concern” letters written by Plaintiff’s treating psychiatrist, Dr. Go. Id. (May
21, 2010, October 20, 2009, and September 4, 2008).4 These letters generally state
that they were written at the request of Plaintiff and that Plaintiff was applying for Social
Security benefits. See doc 5; R. 346, 585, 588, 755. In the first three letters mentioned
above, Dr. Go states that she has been treating Plaintiff since December 3, 2004; his
prognosis was poor in 2009 and 2010 and guarded in 2008; his diagnosis was psychotic
4
Dr. Go wrote a fourth letter on April 8, 2009. R. 373. His GAF score was 55.
R. 375.
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disorder, NOS; he has poor concentration and stress coping skills; he is generally
unemployable; and his Global Assessment of Functioning (GAF) scores were 50 in
2009 and 2010.5 Id. In light of his first amended complaint, it appears Plaintiff argues
that the ALJ should have given the opinions of Dr. Go significant weight.
The opinion of the claimant’s treating physician must be accorded considerable
weight by the Commissioner unless good cause is shown to the contrary. Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir.1997). This is so because treating physicians “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
5
The American Psychiatric Association: Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV-TR) (4th Ed. Text Revision 2000) includes the GAF Scale
that is primarily used by mental health practitioners. The GAF Scale is used to report
“the clinician’s judgment of the individual’s overall level of functioning” (with regard to
only psychological, social, and occupational functioning) and “may be particularly
useful in tracking the clinical progress of individuals in global terms, using a single
measure.” See DSM-IV-TR 32-34. The GAF scale is divided into 10 ranges of
functioning, each with a 10-point range in the GAF scale. Id. See Nichols v. Astrue,
Case No. 3:11cv409/LC/CJK, 2012 U.S. Dist. LEXIS 119347, at *26-29 (N.D. Fla.
Aug. 7, 2012) (discussing the GAF scale). A GAF scale rating of 31-40 is indicative of
some impairment in realty testing or communication or major impairment in several
areas, such as work or school family relations, judgment, thinking, or mood. DSM-IVTR at 34. A GAF scale rating of 41-50 is indicative of serious symptoms or any
serious impairment in social, occupational or school functioning. Id. A GAF scale
rating of 51 to 60 indicates moderate symptoms or moderate difficulty in social,
occupational, or school functioning. Id. A GAF scale rating of 61 to 70 indicates
some mild symptoms or some difficulty in social, occupational, or school functioning,
but generally functioning pretty well, has some meaningful interpersonal relationships.
Id. The “Commissioner has declined to endorse the GAF scale for ‘use in the Social
Security and SSI disability programs,’ and has indicated that GAF scores have no
‘direct correlation to the severity requirements of the mental disorders listings.’” Wind
v. Barnhart, 133 F. App’x 684, 692 n.5 (11th Cir. 2005) (citing 65 Fed. Reg. 50746,
50764-65 (Aug. 21, 2000)).
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cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief hospitalizations.” 20
C.F.R. § 416.927(d)(2). Conversely, “[a] statement by a medical source that [a claimant
is] “disabled” or “unable to work” does not mean that [the claimant is] disabled.” 20
C.F.R. § 416.927(d)(1).
An ALJ has good cause not to afford substantial or considerable weight to a
treating physician’s opinion “where (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 his own medical records.”
Caldwell v. Barnhart, 261 F. App’x 188, 191 (11th Cir. 2008) (unpublished). In this
case, good cause exists because, as the ALJ explained, Dr. Go’s opinions were
conclusory, did not reveal significant clinical abnormalities expected of a disabled
patient, were not supported by objective medical findings, and were inconsistent with
the evidence. R. 29, 31. Substantial evidence supports this rationale.6
Dr. Go’s three letters made no reference to the treatment records, objective
medical tests, or Plaintiff’s symptoms. Dr. Go provided no opinion on the precise extent
of Plaintiff’s functional limitations in the workplace setting such as mild, moderate, or
severe limitations on concentration, social functioning, or daily activities. R. 346, 585,
588, 755.
6
The ALJ also explained his rationale, which is supported by substantial
evidence, for affording no weight to the opinion of consulting examining psychologist
Michael G. Railey, Sr., Ph.D. R. 30. The ALJ noted that the low IQ scores assessed by
Dr. Railey, R. 432-35 (Exhibit 7F), were inconsistent with Plaintiff's education and past
work experience and there was no mention of low average intelligence functioning in
any treatment notes. Id. Plaintiff does not challenge this analysis nor has Plaintiff
challenged the ALJs credibility findings. R. 27-33.
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Dr. Go opined that Plaintiff was unemployable and unable to hold job; however,
this did not amount to a medical opinion and instead was a conclusion reserved to the
Commissioner and thus entitled to no deference or significant weight. 20 C.F.R.
§ 416.927(d)(1); Forsyth v. Comm’r of Soc. Sec., 503 F. App’x 892, 894 (11th Cir. 2013)
(unpublished).
Further, the ALJ was required to consider the extent of Plaintiff’s limitations and
whether Plaintiff would be disabled, absent his substance use, an issue that Dr. Go did
not address. R. 346, 585, 588, 755. The Act precludes an award of SSI where
alcoholism or drug addiction was a contributing factor material to the determination of
disability. See 42 U.S.C. § 1382c(a)(3)(J) (“Notwithstanding subparagraph (A), an
individual shall not be considered to be disabled for purposes of this title [42 USCS §§
1381 et seq.] if alcoholism or drug addiction would (but for this subparagraph) be a
contributing factor material to the Commissioner’s determination that the individual is
disabled.”) (SSI); 42 U.S.C. § 432(d)(2)(C) (“An individual shall not be considered to be
disabled for purposes of this subchapter if alcoholism or drug addiction would (but for
this subparagraph) be a contributing factor material to the Commissioner’s
determination that the individual is disabled.”) (DIB). The Commissioner must consider
whether a claimant’s “current physical and mental limitations, which we based our
current disability determination, would remain if [the claimant] stopped using drugs or
alcohol.” 20 C.F.R. § 416.935(b)(2); Pearson v. Astrue, 271 F. App’x 979, 981 (11th
Cir. 2008) (unpublished) (holding ALJ properly determined claimant’s alcoholism was
contributing factor material to disability determination).
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Dr. Go’s opinions do not address the effect of Plaintiff’s alcohol or drug use on
his functioning, R. 346, 585, 588, 755, although her treatment notes routinely mention
Plaintiff’s reported drinking of alcohol. See, e.g., R. 300, 308, 317, 338, 513, 520, 574.
Plaintiff testified that he is a different person when he drinks and when he is drinking he
gets “carried away sometime,” such as he will “[s]tart arguing with his girlfriend or
friend,” but when he does not drink, he is a “normal person.” R. 65-66. In fairness to
Plaintiff, Plaintiff’s reported amounts of drinking alcohol to Dr. Go and others vary
throughout his treatment history. See, e.g., R. 300 (March 14, 2008--2 to 3 beers a
day); 308 (November 8, 2007--about a quart of beer a day); 317 (July 7, 2007--1 beer a
day).
On April 8, 2009, Plaintiff was counseled to discontinue alcohol use and “he said
he will try.” He reported drinking one beer a day. On this date, Dr. Go wrote one of her
“to whom it may concern” letters, which is more cryptic than the others, although Dr. Go
noted Plaintiff’s prognosis remained guarded. R. 373-74. On October 20, 2009,
Plaintiff reported drinking one to two beers daily. He was hoping to quit nicotine and
alcohol “altogether someday.” R. 756; see R. 737 (January 21, 2010--Plaintiff cut back
to one to two beers daily). By October 20, 2009, according to Dr. Go, Plaintiff’s
prognosis was poor and his GAF score was 50. R. 585.
In May 21, 2010, treatment notes, and in her May 21, 2010, letter, Dr. Go did not
mention Plaintiff’s arrest for cocaine possession in and around March 2010, although he
testified he only held it and did not use it. R. 28, 69, 588, 728-31. As of May 21, 2010,
Dr. Go indicated in treatment notes that Plaintiff “is continuing to cut back on alcohol
use.” R. 729. The alcohol screen indicates that Plaintiff reported having had a drink
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with alcohol monthly or less during the past year; he consumed five or six drinks
containing alcohol when he was drinking in the past year; and had six or more drinks on
one occasion in the past year on a less than monthly basis. R. 732-33. As of August
25, 2010, it is noted that Plaintiff drank a beer a few times a week and denied any
relapses on cocaine. R. 608; see R. 265 (Dr. Holloman (January 28, 2008)--drinks
three beers a day and a history of going to rehabilitation for ethanol abuse).
The ALJ properly relied on evidence contrary to Dr. Go’s opinions, particularly
the opinion of Lawrence V. Annis, Ph.D., who performed a consultative psychological
evaluation on January 8, 2009. R. 29, 349-52. Plaintiff reported to Dr. Annis that his
medications were helpful, R. 349, and he last worked three days before cleaning up a
church. R. 350. Under the category of substance abuse history, Dr. Annis noted that
“[d]rug use and problems with alcohol are denied. He says he last drank alcohol on
Monday (three days ago).” R. 349; see R. 29. Dr. Annis’s examination established
Plaintiff’s attention was normal and his thought expression was rational and coherent.
R. 350. Plaintiff was limited in social interactions, but would be able to interact with
people he did not know to a limited degree. R. 351. Dr. Annis opined that Plaintiff
would not do well in occupations requiring frequent, protracted, or demanding social
interaction and would require more encouragement than most people in encountering
work difficulties. He should avoid employment at occupations requiring technical
precision, driving and operating machinery, and avoid contact with dangerous
substances. Id. This opinion is consistent with the state agency physicians, who found
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that Plaintiff retained the capacity to perform unskilled work. R. 32, 452 (Dr. Cormier,
March 20, 2009), 469 (Richard K. Lyon, Ph.D., May 22, 2009).7
Moreover, Plaintiff’s treatment records, including Dr. Go’s treatment notes, are
more consistent with the findings of Drs. Annis, Lyons, and Cormier than Dr. Go’s
letters. In each of Dr. Go’s approximately thirteen examinations over a period of nearly
four years, with little variance, she found Plaintiff was alert and oriented, with an
organized thought process, intact judgment and insight, and no suicidal/homicidal
ideations, delusions or hallucinations. See, e.g., R. 287-88, 301, 309, 317, 332, 337,
375, 403, 410, 552, 610, 731, 739, 758. These examination findings were the same in
Plaintiff’s visits with Dr. Go both before, and after, he stopped working in his
construction clean-up job in and around January 2007. Id. (Plaintiff was reported
working in construction on or about October 16, 2006, “not the framing part but he sorts
out the leftover wood in different piles.” R. 336.) When Dr. Go first opined that Plaintiff
could not work on September 4, 2008, Dr. Go found that Plaintiff was alert and oriented,
with an organized thought process, intact judgment and insight, and no
suicidal/homicidal ideations, delusions or hallucinations. R. 410. Dr. Go also assessed
a GAF of 55 on that day, indicating only moderate symptoms. Id. In the visits both
before and after the September 4, 2008, visit, Dr. Go assessed Plaintiff’s GAF as 65,
indicating only mild symptoms. R. 287 (June 4, 2008), 403 (October 2, 2008); see
7
The ALJ discusses the January 28, 2008, consultative physical examination
performed by Carol Holloman, D.O., at the request of the Social Security Administration.
R. 28, 265-70 (Exhibit 2F). Dr. Holloman’s assessment reiterated Plaintiff’s past
medical history namely gout, depressive disorder with psychotic features, ethanolim,
tobaccoism, and head injury. R. 265. The results of the physical examination were
generally normal. R. 28, 266-67.
Case No. 4:12cv606-CAS
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R. 363, 497. Overall, in 10 out of Dr. Go’s approximately 13 examinations, she
assessed a GAF score of 55 or 65, indicating moderate or mild symptoms. R. 288, 301,
309, 317, 332, 337, 375, 403, 410, 552, 610; see R. 363, 497 (summaries of eight GAF
scores); see also supra n.4. Only in October of 2009, January of 2010, and May of
2010, did Dr. Go assess a GAF score of 50. R. 731, 739, 758. Significantly, this period
starts and ends, with the other two of Dr. Go’s letters in support of Plaintiff’s application
for SSI. R. 585, 588. After this period, Plaintiff’s GAF score went back up to 55.
R. 608, 610. Even though Dr. Go lowered Plaintiff’s GAF score for these three visits,
she still made similar examination findings as all of the other visits--Plaintiff was alert
and oriented, with an organized thought process, intact judgment and insight, and no
suicidal/homicidal ideations, delusions, or hallucinations. R. 731, 739, 758. Therefore,
substantial evidence supports the ALJ’s finding that Dr. Go’s conclusory opinions were
not supported by her treatment records. R. 29-31.
In addition, Plaintiff’s treatment records demonstrate a positive response to
conservative treatment and that his symptoms were controlled with medication.
Plaintiff’s treatment was intermittent and conservative. He received medication and
presented to Dr. Go for treatment several times a year, see, e.g., R. 28-31, 287, 301,
309, 317, 331, 337, 375, 403, 410, 608, 731, 739, 758, although he received on-going
evaluations and treatment from medical personnel at the VA Clinic other than Dr. Go.
See, e.g., R. 272-79, 354-61, 491-99. However, he responded well to the treatment he
received. Plaintiff experienced hallucinations in June of 2008 when he was not
consistently taking his medication, but thereafter reported no hallucinations. R. 28-31.
Plaintiff acknowledged that his medication was helpful, and in October of 2008 he
Case No. 4:12cv606-CAS
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improved with a medication change. R. 28, 30, 402. In his last visit before the ALJ
hearing, Dr. Go decided to decrease his medication, and besides his physical problems
stemming from his basketball injury, Dr. Go said he was “doing fine otherwise” and
“coping with his physical limitations.” R. 608. Therefore, Plaintiff’s response to
conservative treatment supports the ALJ’s assessment of the medical source opinions.
See Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008) (unpublished) (finding
ALJ decision supported by substantial evidence where plaintiff’s condition responded to
treatment); Freeman v. Barnhart, 220 F. App’x 957, 961 (11th Cir. 2007) (unpublished)
(finding evidence of improvement with treatment demonstrated depression was not
severe).
The ALJ also noted that Plaintiff’s daily activities were inconsistent with
completely debilitating functional limitations. Prior to injuring his leg/knee playing
basketball in and around August 2010, R. 608, he used to play basketball “all the time.”
R. 49-50, 57. He did “okay” around other people, was able to grocery shop by himself,
went to church two times a month and visited friends. R. 28, 58, 174-76. During the
day, he cleaned up, swept, washed clothes, and rode his bicycle “all the time.” R. 28,
58, 174. He regularly went to the community recreation center and the park, he went
fishing, and walked his dog. R. 58, 174, 176, 208-09.
Moreover, Plaintiff’s work activity prior to, and during, the period of alleged
disability demonstrates that his mental condition did not prevent him from performing his
past relevant work. The ALJ noted that Plaintiff had been experiencing mental health
difficulties since 2004, and managed to work without significant problems. R. 32. The
ALJ reasoned that the fact Plaintiff was able to work despite his impairments previously,
Case No. 4:12cv606-CAS
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suggested that his impairments did not prevent him from working during the time period
relevant to the ALJ’s decision. Id.
Plaintiff stopped working as a construction laborer in and around January of
2007, not due to his mental condition, but because he was “laid off because work was
slow.” R. 163-64. See, e.g., Pendlebury v. Colvin, 1:12cv104-CAS, 2013 U.S. Dist.
LEXIS 52462, at *35 (N.D. Fla. Apr. 11, 2013) (“Plaintiff did not stop working in October
2007 because of his allegedly disabling back impairment. Rather, Plaintiff stated that
he was laid-off from his job.”). Thereafter, during the period of alleged disability, Plaintiff
continued to work at times. R. 28. Plaintiff testified that as of the date of his hearing
before the ALJ, he had been out of work for six weeks and that was following his
basketball injury. Id. Prior to that, he performed odd jobs such as cleaning pools,
helping with things around the house, mowing the church grass, and washing cars. R.
28, 49-50, 208. When his work washing cars slowed down, he did other work. R. 50.
Plaintiff’s work during the period of alleged disability contributes to the substantial
evidence demonstrating he was able to perform some work existing in the national
economy. 20 C.F.R. § 416.971 (“Even if the work you have done was not substantial
gainful activity, it may show that you are able to do more work than you actually did.”).
In summary, the ALJ considered the relevant evidence in the record, including
the treatment notes and opinions of Dr. Go, Plaintiff’s main treating physician from a
mental status viewpoint. Dr. Go’s opinions were considered in light of other evidence of
record. Under the circumstances of this case, the ALJ did not err in giving her opinions
“little weight.” R. 29, 31. Substantial evidence supports the ALJ’s determination that if
Plaintiff “stopped the substance use,” Plaintiff “would be able to perform past relevant
Case No. 4:12cv606-CAS
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work” and that “[t]his work does not require the performance of work-related activities
precluded by the [RFC].” R. 32.
V. Conclusion
Considering the record as a whole, the findings of the ALJ are based upon
substantial evidence and the ALJ correctly applied the law. Accordingly, the decision of
the Commissioner to deny Plaintiff's application for Social Security benefits is
AFFIRMED. The Clerk shall enter JUDGMENT for Defendant.
IN CHAMBERS at Tallahassee, Florida, on December 16, 2013.
s/ Charles A. Stampelos__________
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
Case No. 4:12cv606-CAS
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