LAWRENCE v. ASTRUE

Filing 16

MEMORANDUM ORDER. The decision of the defendant Commissioner is AFFIRMED and plaintiff's application for Supplemental Security Income is DENIED. The clerk is directed to close the file. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on January 30, 2013. (pmc)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
FREDDIE PAUL LAWRENCE,
Plaintiff,
v.

Case No. 5:12cv148/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 Freddie Paul Lawrence’s application for Supplemental Security Income
benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83. Plaintiff
will be referred to by name, as claimant, or as plaintiff. 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. (Doc. 10). Upon review of the record before this court, I conclude that the
findings of fact and determinations of the Administrative Law Judge (ALJ) are
supported by substantial evidence, and that the ALJ correctly applied the law. The
decision of the Commissioner, therefore, will be affirmed.

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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
correct legal standards were applied by the ALJ. 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, “‘Substantial 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).
Although the ALJ’s decision need not be supported by a preponderance of the
evidence, “it cannot stand with a ‘mere scintilla’ of support.” Hillsman v. Bowen, 804
F.2d 1179, 1181 (11th Cir. 1986). 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)). Nevertheless, a reviewing court 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
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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 recitation of medical and historical facts of this case, as set
out below, is based upon my independent review.
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.” 42 U.S.C. §
1382c(a)(3)(A). To qualify as a disability, the physical or mental impairment must
be so severe that the plaintiff is not only unable to do her 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. §

1382c(a)(3)(B).
Pursuant to 20 C.F.R. § 416.920(a)-(g), the Commissioner analyzes a
supplemental security income 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.

1

The Eleventh Circuit speaks not only of independent review of the administrative record,
but reminds us it conducts 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).
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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 (RFC) and vocational factors, he
is not disabled.
Claimant bears the burden at step two of establishing a severe impairment that
keeps him from performing his past work. Where this burden has been established,
but the impairment does not qualify as a listed impairment, the inquiry must move to
step five (or step four in cases where the ALJ decides a claimant can perform his past
work). This inquiry often is where the rubber meets the road. 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

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the ultimate vocational determination required by steps four and five.2 “[R]esidual
functional capacity is the most [claimant] can still do despite [claimant’s]
limitations.”3 20 CFR § 416.945(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 may lead, as in this case, to an adverse determination.
FINDINGS OF THE ALJ
The decision of the Administrative Law Judge (ALJ), affirmed by the Appeals
Council, determined that plaintiff is not eligible for benefits. T. 27-35.4 The ALJ

2

“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. § 404.920(a)(4).
3

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 § 416.912(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 §§ 416.912(d) through (e).)
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 § 416.913.) 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 § 416.929.)[.]
20 C.F.R. § 416.945(a)(3).
4

The administrative record, as filed by the Commissioner, consists of six volumes, (doc. 9-2
through 9-7), and has 439 consecutively numbered pages. References to the record will be by “T.”
for transcript, followed by the page number.
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acknowledged claimant has a number of severe impairments–osteoarthritis status post
fractures of right femur, ankle, and leg, hip disorder, chronic obstructive pulmonary
disorder (COPD), and depression. T. 29. Nevertheless, the ALJ assigned a residual
functional capacity of light work, with certain limitations. Because claimant could
not perform the full range of light work, a vocational expert provided opinion
evidence as to the step five determination. Based upon such testimony, the ALJ
found that claimant could perform work that existed in significant numbers in the
national and state economy. This finding led to a conclusion that plaintiff is not
disabled.
ISSUES ON REVIEW
On review of the decision, plaintiff argues that substantial evidence does not
support the ALJ’s decision because 1) the ALJ improperly rejected uncontradicted
opinions of the consulting medical experts, and 2) the ALJ failed to conduct a proper
assessment of plaintiff’s mental residual functional capacity. (Doc. 12, p. 4). Based
upon these assertions, plaintiff argues that the ALJ erred by concluding that plaintiff
has not been under a disability for at least twelve consecutive months.
Amplifying the first point, plaintiff contends that two consulting mental health
experts, Dr. Ghostley and Dr. McDowell, found “marked” limitations in multiple
areas of mental functioning. Plaintiff points out that the vocational expert, Mr.
Strader, testified at the hearing that an individual having such “marked” impairments
would be prohibited from employment. (Doc. 12, p. 4; T. 66-67). As to the second,
and related, point, plaintiff says that the rules of the Social Security Administration
require that assessment of residual functional capacity must include attention to

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limitations resulting from mental impairments, which must be expressed in terms of
work-related functions. (Doc. 12, pp. 9-10).
FACT BACKGROUND AND MEDICAL HISTORY
Because the issues here concern only assessment of plaintiff’s mental
impairments, the overview of medical history will focus on the ALJ’s treatment of
that area. The ALJ noted the following with regard to Drs. McDowell and Ghostley,
and also commented upon the findings of two State Agency examiners:
In December 2009, the claimant was sent by his attorneys for a
psychiatry assessment with Ann McDowell, M.D. He reported a history
of spinal meningitis (1957), ORIF right femur (1980), wiring of his left
and right jaws (2000), and fracture collarbone (1976). The claimant's
mental status examination revealed no abnormal psychomotor activity;
fair articulation, thinking, thought of content, abstract reasoning, and
computation; no loose associations, suicidal or homicidal ideation,
obsession, phobias, or delusions; fair insight and judgment; good
orientation; intact memory; fair fund of knowledge, and sad affect.
Major depression, recurrent, moderate to severe was diagnosed. Dr.
McDowell suggested that the claimant increase his Celexa and
instructed him to follow-up at the mental health center. It appears as
though Dr. McDowell only examined the claimant on one occasion. She
completed a questionnaire and opined that the claimant had marked
limitations in the areas of “estimated degree of constriction of interests
of the claimant” and "estimated degree of restriction of the claimant's
daily activities, e.g., ability to attend meetings (church, school, lodge,
etc.), work around the house, socialize with friends and neighbors, etc.”
However, she opined that the claimant had only mild to moderate
limitations in all other areas.
The claimant underwent a consultative psychological evaluation with
David Ghotley, [sic] Psy.D. in May 2008. The claimant's chief
complaint was pain. He reported the ability to perform all activities of
daily living, though he indicated it sometimes took longer because he
rests. He confirmed he still socializes, but not as much as he used to.
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Dr. Ghostley diagnosed the claimant with a depressive disorder of
moderate severity. Dr. Ghostley opined that the claimant's ability to
function independently and manage finances was unimpaired. He
opined that the claimant's ability to understand, remember, and carry out
instructions, as well as to respond appropriately to supervisors, coworkers, and work pressures in a work setting was markedly impaired
at the time of the examination.
The claimant has symptoms of depression and lacks ability to handle
significant stress because of reduced energy (fatigue) and increased
frustration intolerance. However, at the residual functional capacity
level discussed above, the claimant is capable of sustaining work. The
undersigned gives little to no weight to the consultative examiner Dr.
Ghostley's opinion discussed above as it is too restrictive compared to
the objective clinical findings. The undersigned gives some weight to
Dr. McDowell’s findings/opinions.
Dr. McDowell’s mental
examination was essentially normal. However, Dr. McDowell opined
that the claimant was markedly limited in the areas of “estimated degree
of constriction of interests of the claimant” and “estimated degree of
restriction of the claimant's daily activities, e.g., ability to attend
meetings (church, school, lodge, etc.), work around the house, socialize
with friends and neighbors, etc.” The undersigned gives these findings
little to no weight as they are inconsistent with Dr. McDowell’s
notations and the claimant's own testimony regarding his limitations in
these areas. Furthermore, Dr. McDowell based her findings on one
examination of the claimant, and it appears that she never treated the
claimant on any other occasion.
Physicians contracted for by the State Agency reviewed the evidence
and offered their expert opinion that despite the claimant's medically
determined impairments, he retained the physical ability to perform the
exertional demands of at least “light” work as that term is defined in the
regulations. These physicians also opined that the claimant's psychiatric
conditions did not cause more than a “mild” functional limitation. The
opinions of these reviewing doctors have been carefully reviewed and

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their “expert opinion evidence” has been considered in accordance with
SSR 96-6p.
In this instance, these opinions are given significant weight for several
reasons. First, these are disability specialists who had the bulk of the
evidence from the treating sources and consultative examiners that now
comprise the official record in this case. They considered all of the
objective facts at the time they rendered their opinion. Secondly, though
they did not have at their disposal the claimant's testimony, that
testimony, specifically as it relates to the claimant's activities of daily
living, was consistent with the residual functional capacity opined by the
reviewing doctors to a significant degree. Finally, the evidence in total
does support in general the conclusions put forth by the State Agency
doctors. The evidence is part of the record and entitled to the same
probative value accorded “expert opinion” evidence.
T. 30-32.
The medical record reveals that on May 8, 2008, plaintiff met with a
psychologist, David Ghostley, Psy.D., for a consultative evaluation. T. 346-47.
Plaintiff stated that he was applying for disability benefits due to pain. T. 346. Dr.
Ghostley noted that plaintiff arrived unaccompanied to the office, having traveled
approximately thirty miles to the appointment. T. 346. He was appropriately dressed,
with acceptable grooming and personal hygiene. T. 346. Plaintiff had no history of
psychiatric treatment. T. 346. He reported that he could do “most everything” as far
as daily activities, but that he required frequent rest periods. T. 346. He also
endorsed a depressed mood. T. 347. While he did not socialize “as much as he used
to,” he did go out on occasion. T. 346.
Dr. Ghostley’s mental status examination revealed reduced motor activity and
productivity of speech, but good eye contact; good cooperation and attentiveness;
normal mannerisms; and normal flow of speech. T. 347. While plaintiff’s recent
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memory and concentration were impaired, he had no hallucinations, obsessions, or
compulsions; his fund of information was adequate; and his insight and judgment
were adequate. T. 347. Dr. Ghostley estimated that plaintiff functioned in the low
average range of intellectual functioning. T. 347. Dr. Ghostley recorded his
impression as major depression, moderate; and noted that prognosis was poor without
treatment. T. 347. The doctor recommended that plaintiff consult a psychiatrist to
address symptoms of depression and anxiety. T. 347. In a “Capability Statement,”
Dr. Ghostley indicated that plaintiff’s ability to understand, remember, and carry out
instructions, and respond appropriately to supervisors, co-workers, and work
pressures, was “markedly impaired.” T. 347. He also indicated that plaintiff’s ability
to function independently and manage finances was unimpaired. T. 347.
In December 2009, plaintiff was referred by his lawyer to Ann McDowell,
M.D., for a psychiatric assessment. T. 420-21. Plaintiff reported eye, leg, hip, jaw,
and ankle pain, and chronic anal itching. T. 420. He related a history of three
accidents resulting in a broken jaw (twice), a broken femur, and a fractured
collarbone. T. 420. He stated that he had been “very depressed” for years, and had
been taking Celexa for the past three months, which had helped “a little.” T. 420.
Plaintiff was living with his brother, who did not work, and his ex-girlfriend, who
provided the sole source of household income. T. 420.
Dr. McDowell’s mental status examination revealed no abnormal psychomotor
activity; normal speech; fair articulation, content of thought, rate of thinking, and
computation; fair to poor abstract reasoning; no loose associations, suicidal or
homicidal ideations, obsessions, phobias, or delusions; intact immediate, recent, and
remote memory; no language abnormalities; and fair insight, judgment, and fund of

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knowledge. T. 421. Dr. McDowell recommended that plaintiff increase his Celexa
dose in light of his positive response to the medication. T. 421.
Dr. McDowell completed a form for plaintiff’s attorneys that asked her to circle
the appropriate degree of limitation for each listed activity. T. 417-18. The scale
ranged from “none” to an “extreme” degree of limitation. T. 417. Dr. McDowell
circled “marked” for “degree of constriction of interests of the claimant;” and for
“degree of restriction of the claimant’s daily activities.” T. 417. She found a
“moderate” impairment in interacting with the public; maintaining personal habits;
maintaining extended attention and concentration; performing activities within a
schedule; and responding appropriately to changes in the work setting. T. 417-18.
Finally, she found “mild” impairment in the ability to ask simple questions; getting
along with coworkers; understanding, remembering, and carrying out simple and
complex instructions; understanding, remembering, and carrying out repetitive tasks;
sustaining a routine without special supervision; completing a normal workday and
workweek without interruptions from psychologically-based symptoms; performing
at a consistent pace; making simple work-related decisions; responding appropriately
to supervision; and being aware of normal hazards. T. 417-19.
As noted by the ALJ, two State Agency consultants, psychologists J. Peterson,
Ph.D., and James Cornier, Ph.D., reviewed the chart. Dr. Peterson concluded that
plaintiff did not have a severe mental impairment, as he had no restriction in daily
activities; no restriction in maintaining social functioning; only mild difficulties
maintaining concentration, persistence, or pace; and no episodes of decompensation.
T. 356-68. In so concluding, Dr. Peterson noted that Dr. Ghostley’s opinion was
contraindicative of the presence of any diagnosable mental disorder beyond a possible

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mild adjustment reaction, arising within a generally unhappy and avoidant individual.
T. 368. Dr. Peterson noted that plaintiff lived independently with his brother, and
continued to function adequately in a full range of daily activities within his physical
and motivational parameters–he shopped, prepared food, handled some financial
matters, attended church, watched television, listened to music, read, played chess,
went fishing, rode his bicycle, and socialized with others. T. 368.
At the reconsideration level of review, the other state agency psychologist, Dr.
Cormier, reviewed the evidence of record and also concluded that plaintiff did not
have a severe mental impairment as he had no restriction in daily activities; only mild
difficulties in maintaining social functioning and in concentration, persistence, or
pace; and no episodes of decompensation. T. 388, 398. In so concluding, Dr.
Cormier noted that Dr. Ghostley’s opinion of marked limitations was not supported
by the record and that plaintiff was still not receiving any treatment for a mental
impairment. T. 400.
In a Disability Report, dated March 26, 2008, completed in support of his
application, claimant said he had pain in the right leg, right collarbone, and jaw. T.
196. In a Function Report, dated April 22, 2008, claimant reported that typically he
watched television; performed some chores such as sweeping, mopping, laundry,
dusting, and washing dishes; made light meals; read “a lot” and listened to music;
raked; and walked around the yard. T. 233, 235. His hobbies and interests included
reading, playing chess, fishing, and riding a bike. T. 237. He spoke on the phone
with family and friends every day, and once a week visited a friend and played cards.
T. 237. He also went to church once a week. T. 237. Claimant handled stress by
taking a walk or listening to soft music. T. 239. He reported an excellent attention

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span and said he had good ability to follow written and spoken instructions. T. 238.
In addition claimant said he got along very well with authority figures. T. 238.
At the administrative hearing, claimant said he was taking anti-depressant
medication, and did not now worry as much about his health or finances. T. 52. He
did not participate in any mental health therapy. T. 51-52.
In formulating residual functional capacity, the ALJ concluded that
nonexertional limitations precluded a full range of light work. With regard to mental
limitations, claimant would be able to perform only routine and uncomplicated work
tasks. T. 64-65. As set out in the material from the ALJ’s order, quoted above, the
ALJ gave little or no weight to Drs. Ghostley and McDowell.
ANALYSIS
Plaintiff argues the ALJ erred by “arbitrarily” rejecting “uncontroverted
medical testimony.” (Doc. 12, p. 4). Citing Freeman v. Schweiker, 681 F.2d 727,
731 (11th Cir. 1982), plaintiff infers that the ALJ impermissibly substituted his
opinion for that of the medical experts. In Freeman, however, the court reversed
because the “record indicates that the ALJ relied on the appearance of the claimant
at the time of the hearing.” Id. Such was error because the decision “improperly
suggests that unless pain is visible to the ALJ at the hearing, it is proper to deny the
claim.” Id. Thus plaintiff proceeds upon the assumption that the ALJ here ignored
the medical evidence in favor of his own observations of claimant at the hearing.
This assumption is not supported by the record and is completely erroneous.
Inherent in the judging function of an ALJ is the need to weigh and evaluate
the range of medical opinions appearing in the record. Plaintiff is correct that an ALJ
may not simply pick and choose among medical evidence without explanation. “The

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ALJ must state with particularity the weight given to different medical opinions and
the reasons therefor.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th
Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). “In the
absence of such a statement, it is impossible for a reviewing court to determine
whether the ultimate decision on the merits of the claim is rational and supported by
substantial evidence.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
“Therefore, when the ALJ fails to ‘state with at least some measure of clarity the
grounds for his decision,’ we will decline to affirm ‘simply because some rationale
might have supported the ALJ’s conclusion.’” Winschel, 825 F.3d at 1179 (quoting
Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)). A reviewing court may not
ignore the error and proceed to determine whether the decision is supported by
substantial evidence. See id. To simply “say that [the ALJ’s] decision is supported
by substantial evidence approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are rational.”
Cowart, 662 F.2d at 735 (quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir.
1979) (internal quotation marks omitted)). The question here is whether the ALJ’s
order has followed the admonition to state with some measure of clarity the grounds
for assigning weight to various opinions.
In recognition of the need for guidance applicable to the ALJ’s treatment of
medical issues, the Commissioner has promulgated a rule to guide evaluation of
medical opinions:
Evaluating opinion evidence.
****

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(c) How we weigh medical opinions. Regardless of its source, we will
evaluate every medical opinion we receive. Unless we give a treating
source's opinion controlling weight under paragraph (c)(2) of this
section, we consider all of the following factors in deciding the weight
we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the
opinion of a source who has examined you than to the opinion of a
source who has not examined you.
(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
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opinion 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.
(3) Supportability. The more a medical source presents relevant
evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that opinion. The
better an explanation a source provides for an opinion, the more weight
we will give that opinion. Furthermore, because nonexamining sources
have no examining or treating relationship with you, the weight we will
give their opinions will depend on the degree to which they provide
supporting explanations for their opinions. We will evaluate the degree
to which these opinions consider all of the pertinent evidence in your
claim, including opinions of treating and other examining sources.
(4) Consistency. Generally, the more consistent an opinion is with the
record as a whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of a
specialist about medical issues related to his or her area of specialty than
to the opinion of a source who is not a specialist.

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(6) Other factors. When we consider how much weight to give to a
medical opinion, we will also consider any factors you or others bring
to our attention, or of which we are aware, which tend to support or
contradict the opinion. For example, the amount of understanding of our
disability programs and their evidentiary requirements that an acceptable
medical source has, regardless of the source of that understanding, and
the extent to which an acceptable medical source is familiar with the
other information in your case record are relevant factors that we will
consider in deciding the weight to give to a medical opinion.
****
(e) Opinions of nonexamining sources. We consider all evidence from
nonexamining sources to be opinion evidence. When we consider the
opinions of nonexamining sources, we apply the rules in paragraphs (a)
through (d) of this section. In addition, the following rules apply to State
agency medical and psychological consultants, other program physicians
and psychologists, and medical experts we consult in connection with
administrative law judge hearings and Appeals Council review:
****
(2) Administrative law judges are responsible for reviewing the evidence
and making findings of fact and conclusions of law. They will consider
opinions of State agency medical or psychological consultants, other
program physicians and psychologists, and medical experts as follows:
(i) Administrative law judges are not bound by any findings made by
State agency medical or psychological consultants, or other program
physicians or psychologists. State agency medical and psychological
consultants and other program physicians, psychologists, and other
medical specialists are highly qualified physicians, psychologists, and
other medical specialists who are also experts in Social Security
disability evaluation. Therefore, administrative law judges must consider
findings and other opinions of State agency medical and psychological
consultants and other program physicians, psychologists, and other
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medical specialists as opinion evidence, except for the ultimate
determination about whether you are disabled (see § 404.1512(b)(8)).
(ii) When an administrative law judge considers findings of a State
agency medical or psychological consultant or other program physician,
psychologist, or other medical specialist, the administrative law judge
will evaluate the findings using the relevant factors in paragraphs (a)
through (d) of this section, 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.
Unless a treating source's opinion is given controlling weight, the
administrative law judge must explain in the decision the weight given
to the opinions of a State agency medical or psychological consultant or
other program physician, psychologist, or other medical specialist, as the
administrative law judge must do for any opinions from treating sources,
nontreating sources, and other nonexamining sources who do not work
for us.
20 CFR § 416.927.
Neither Dr. Ghostley nor Dr. McDowell are treating source physicians. Each
saw claimant once, and each visit was directly connected to the application for Social
Security benefits. In at least the case of Dr. McDowell, the visit was arranged by
counsel, who also provided the check list, portions of which claimant emphasizes
now. In evaluating the ALJ’s treatment of opinions offered by these doctors, the
question is whether the ALJ followed the law as set out above, not simply whether
she rejected, or gave little weight to, certain opinions.
Turning first to Dr. Ghostley, plaintiff would credit the doctor’s capability
statement that, his “ability to understand, remember, and carry out instructions, as
well as to respond appropriately to supervisors, coworkers, and work pressures in a

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work setting, is markedly impaired.” T. 347. Such statement, however, is not the
entirety of what Dr. Ghostley reported, and claimant makes no mention of the
remainder of Dr. Ghostley’s remarks. Moreover, the remainder of the report is
instructive, as recognized by the ALJ. Dr. Ghostley documented no objective medical
findings supportive of an inability to perform basic mental work-related activities.
See 20 C.F.R. § 416.921(b). Dr. Ghostley found claimant to be alert, cooperative, and
attentive. He had good eye contact, and exhibited no abnormal mannerisms. He had
normal flow of speech and was fully coherent and understandable. Claimant was
fully oriented to all relevant spheres, and had adequate attention for conversational
purposes. He had an average fund of information, with below average abstract
thinking. The doctor found no evidence of hallucinations, delusions, phobias,
obsessions, or compulsions. Claimant had adequate insight into acknowledging
problems, and adequate judgment with regard to social functioning and family
relationships. His intellectual functioning was at low average. Also, claimant’s
“ability to function independently and manage finances is unimpaired.” T. 347.
As noted by claimant, the ALJ gave little to no weight to Dr. Ghostley’s
opinion of marked impairment. T. 31. The ALJ found this opinion too restrictive
compared to the objective clinical findings. These findings are set out in full in Dr.
Ghostley’s report and repeated in the preceding paragraph. With reference to the
factors adopted for evaluating medical opinions, the record will bear out that Dr.
Ghostley is not a treating source and has no established relationship with Mr.
Lawrence. No signs, evidence, or clinical findings have been offered to support the
opinion of marked impairment. Perhaps most important, the opinion is not consistent

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with the actual clinical findings, reported in some detail, by Dr. Ghostley. See 20
C.F.R. § 416.927(c).
In addition to these matters, plaintiff himself made statements inconsistent with
the opinion in question. According to claimant, he gets along “very good” with
authority figures. He has fair ability to deal with changes in routine. He can finish
what he starts. He finds he can handle stress by taking a walk or listening to soft
music. T. 238-239. Here, the ALJ’s statement that Dr. Ghostley’s opinion does not
comport well with the clinical findings is completely substantiated and does not
constitute error.
As to Dr. McDowell, claimant once again focuses upon a shard of the entire
report. The doctor diagnosed “major depression, recurrent, moderate to severe.” T.
421. She also marked on a checklist that claimant had a level of “marked” in his
constriction of interests and his degree of restriction of daily activities, including
attending meetings, work around the house, and socializing with friends. T. 417-419.
The ALJ gave some weight to Dr. McDowell’s opinions, but gave little weight to the
findings of marked restriction. T. 31. According to the ALJ, these findings are
inconsistent with Dr. McDowell’s other notations and with the claimant’s own
testimony concerning his abilities in these areas. The ALJ also noted that Dr.
McDowell never treated claimant and based her findings on one examination. T. 31.
Plaintiff complains that the ALJ’s rationale is inadequate, because the ALJ failed to
specify what “notations” would be inconsistent. Truly, this is not an insurmountable
obstacle.
Dr. McDowell’s report of clinical mental status examination shows that
claimant was alert. He was fairly neat. He had no abnormal psychomotor activity.

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He was cooperative. His speech was at normal volume, with fair coherence,
articulation, and spontaneity. His rate of thinking was fair, content of thought was
fair, abstract reasoning was fair to poor, and computation was fair. Claimant was
oriented to person, place, time, and fairly well oriented to situation. His immediate,
recent, and remote memory was intact. He had no language abnormalities and had
a fair fund of knowledge. T. 421. To say, as did the ALJ, that the opinion regarding
areas of marked restriction is not consistent with the clinical findings would be no
overstatement.
Similarly, the ALJ’s finding that claimant’s own statements do not comport
with Dr. McDowell’s opinion finds ample support. On his application, claimant
reported, as set out above, his ability to deal with stress, authority, changes in routine,
and the like. At the hearing, he alleged disability based upon right leg pain and
breathing problems. T. 47-48; 50. He takes medication for depression and does not
go to counseling. T. 51-52. These medications help him, and he finds he doesn’t
worry as much about his health and finances. T. 52. Under examination by leading
questions from his attorney, claimant said he doesn’t like to be around a lot of people,
but he gets along with people. T. 58. On further questioning claimant clarified that
he doesn’t like being around people because he prefers the peace and quiet of the
country. T. 58. Arguably commenting on his mental issues, claimant said sometimes
when reading, he will lose his train of thought, and have to read the material over.
T. 61.
The ALJ did not err by concluding that Dr. McDowell’s opinion was
inconsistent with her own findings. She also did not err by turning to claimant’s own
statements concerning his abilities.

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In truth, the opinions valued most by claimant are reflected in checklist form,
where Dr. McDowell circled one of a series of potential responses to various
questions. T. 417-419. This document is interesting in more than the two responses
identified by claimant. Although plaintiff does not focus upon the entire document,
Dr. McDowell found mild impairment in claimant’s ability to ask simple questions
or request assistance. She also found mild impairment in claimant’s ability to get
along with coworkers and peers. He had mild restriction in his ability to understand,
remember, and carry out simple, or complex, instructions. He was mildly restricted
in his ability to understand and carry out repetitive tasks, and to sustain a routine
without supervision. T. 417-418.
In terms of matters directly related to the workplace, Dr. McDowell’s findings
are particularly at odds with the somewhat isolated conclusions favored by plaintiff.
Claimant had mild restriction of ability to complete a normal work day and work
week “without interruptions from psychologically based symptoms.” T. 418.
Similarly, he was but mildly restricted in ability to make simple work-related
decisions. Consistent with claimant’s own statements about authority, Dr. McDowell
assessed mild impairment in ability to respond appropriately to supervision. T. 418.
As with Dr. Ghostley, the ALJ’s treatment of Dr. McDowell’s opinions is more
than supported by the evidence. Even with a treating physician, the ALJ may reject
or afford less weight to opinions for good cause. “‘[G]ood cause’ exists when the:
(1) treating physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d

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1232, 1241 (11th Cir. 2004). Each of these factors may fairly be said to apply to the
opinions in question.
In addition, as noted above, the opinions we find ourselves concerned with do
not appear in Dr. McDowell’s clinical narrative, but, instead, in a check list provided
by counsel. Courts have found such preprinted forms do not provide persuasive
evidence of the validity of the opinions expressed therein. See Hammersley v. Astrue,
No. 5:08-cv-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))). I agree, as did the ALJ, that in the
context of all the evidence, including Dr. McDowell’s own notes, the check off form
here is not particularly helpful. Further justification for affirmance may be found in
the lack of any explanation for the opinions of marked impairment.
As a final observation, the ALJ did not err by relying upon the opinions offered
by the state agency reviewers, Dr. Peterson and Dr. Cormier. As the Commissioner’s
regulations provide, such agency reviewing sources are “highly qualified physicians
and psychologists who are also experts in Social Security disability evaluations.” 20
C.F.R. § 416.927(e)(2)(i). The Eleventh Circuit has recognized the import of
opinions of consulting physicians who did not themselves examine the claimant. See
Edwards v. Sullivan, 937 F.2d 580, 585 (11th Cir. 1991) (observing that the ALJ may
rely on a non-examining physician's opinion if it does not contradict the examining
physician's medical findings or test results in the medical report). No error appears

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in the ALJ’s finding that the agency physicians found no more than mild functional
limitations attributable to claimant’s psychiatric condition.
For the reasons set out in the foregoing analysis, plaintiff’s second point,
alleging the ALJ failed to account for all mental limitations, must also fail. The
limitations adopted by the ALJ, i.e., light work limited to routine, uncomplicated
tasks, are supported by the evidence. In particular, the adjustments to residual
functional capacity are supported by the limitations imposed by Dr. McDowell with
specific reference to work activities. T. 417-419. Plaintiff has shown no error in the
Commissioner’s determinations.
ACCORDINGLY, it is ORDERED:
1. The decision of the defendant Commissioner is AFFIRMED and plaintiff’s
application for Supplemental Security Income is DENIED.
2. The clerk is directed to close the file.
At Pensacola, Florida, this 30th day of January, 2013.

/s/

Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE

Case No.: 5:12cv148/CJK