Baldwin v. Berryhill

Filing 17

REPORT AND RECOMMENDATIONS that the Commissioner's final decision be affirmed, this civil action be closed, and a final judgment be entered in favor of the Commissioner. Objections to R&R due by 3/26/2018. Signed by Magistrate Judge Brian K. Epps on 03/07/2018. (jlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
TERESA ANN BALDWIN,

)
)
Plaintiff,
)
)
v.
)
CV 117-019
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security
)
Administration,
)
)
Defendant.
)
_________________________________________________________
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
_________________________________________________________
Teresa Ann Baldwin appeals the decision of the Acting Commissioner of Social Security
denying her application for Supplemental Security Income (“SSI”) under the Social Security
Act. Upon consideration of the briefs submitted by both parties, the record evidence, and the
relevant statutory and case law, the Court REPORTS and RECOMMENDS the
Commissioner’s final decision be AFFIRMED, this civil action be CLOSED, and a final
judgment be ENTERED in favor of the Commissioner.
I.

BACKGROUND
Plaintiff applied for SSI on July 8, 2013, alleging a disability onset date of January 3,

2012.1 Tr. (“R.”), pp. 20, 261-70. Plaintiff was forty-three years old at her alleged disability
onset date and was forty-six years old at the time the Administrative Law Judge (“ALJ”) issued
the decision currently under consideration. R. 31, 45, 261.
1

Although Plaintiff listed January 3, 2012 as the alleged disability date, SSI is not payable
prior to the month following the month in which the application was filed. 20 C.F.R. § 416.335.

Plaintiff applied for benefits based on allegations of anxiety NOS, mood disorder
NOS, dissociative identity, panic disorder, and rule out schizoaffective disorder. R. 301.
Plaintiff completed a GED. R. 45. Prior to her alleged disability, Plaintiff’s only work
history consisted of working one month at a bait shop. R. 308-15.
The Social Security Administration denied Plaintiff’s application initially, R. 68-79, and
on reconsideration, R. 80-92. Plaintiff requested a hearing before an ALJ, R. 133-35, and the
ALJ held a hearing on March 4, 2015 and a supplemental hearing on August 31, 2015. R. 38-67.
The ALJ heard testimony from Plaintiff, who appeared with counsel, as well as from Joseph
Atkinson, a Vocational Expert (“VE”).

Id.

On September 4, 2015, the ALJ issued an

unfavorable decision. R. 20-31.
Applying the sequential process required by 20 C.F.R. § 416.920, the ALJ found:
1.

The claimant has not engaged in substantial gainful activity since July 8,
2013, the application date (20 C.F.R. § 416.971 et seq.).

2.

The claimant has the following severe impairments: degenerative disc
disease of the lumbosacral spine and a mental impairment (variously
characterized) (20 C.F.R. § 416.920(c)).

3.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 416.920(d), 416.925, and 416.926).

4.

The claimant has the residual functional capacity (“RFC”) to lift, carry,
push, and/or pull 20 pounds occasionally and 10 pounds frequently;
occasional stooping, twisting, and crouching; and sitting, standing, and/or
walking for six hours each in an eight-hour workday. She retains the
ability to understand and follow simple instructions and directions;
perform simple tasks with supervision and independently; maintain
attention/concentration for simple tasks; regularly attend to a routine and
maintain a schedule; and can relate to and interact with others to the extent
necessary to carry out simple tasks but should avoid work requiring more
complex interaction or joint efforts to achieve work goals. She should not
have interaction with the public. She can handle reasonable levels of
simple work-related stress in that she can make simple decisions directly
2

related to the completion of her tasks and work in a stable, unchanging
work environment. The claimant has no past relevant work (20 C.F.R. §
416.965).
5.

Considering the claimant’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national economy
that the claimant can perform, including office helper, mail clerk, and
small products assembler (20 C.F.R. §§ 416.969, and 416.969(a)).
Therefore, the claimant was not under a disability, as defined in the
Social Security Act, since July 8, 2013, the date the application was
filed (20 C.F.R. § 416.920(g)).

R. 23-30.
When the Appeals Council denied Plaintiff’s request for review, R. 1-6, the
Commissioner’s decision became “final” for the purpose of judicial review. 42 U.S.C. § 405(g).
Plaintiff then filed this civil action requesting reversal or remand of that adverse decision.
II.

STANDARD OF REVIEW
Judicial review of social security cases is narrow and limited to the following questions:

(1) whether the Commissioner’s findings are supported by substantial evidence, and (2) whether
the Commissioner applied the correct legal standards. Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997). When considering whether the Commissioner’s decision is supported by
substantial evidence, the reviewing court may not decide the facts anew, reweigh the evidence,
or substitute its judgment for the Commissioner’s. Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Notwithstanding
this measure of deference, the Court remains obligated to scrutinize the whole record to
determine whether substantial evidence supports each essential administrative finding.
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
The Commissioner’s factual findings should be affirmed if there is substantial evidence
to support them. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). Substantial evidence is
3

“more than a scintilla, but less than a preponderance: ‘[i]t is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.’” Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth, 703 F.2d at 1239). If the Court finds
substantial evidence exists to support the Commissioner’s factual findings, it must uphold the
Commissioner even if the evidence preponderates in favor of the claimant. Crawford v. Comm’r
of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). Finally, the Commissioner’s findings of
fact must be grounded in the entire record; a decision that focuses on one aspect of the evidence
and disregards other contrary evidence is not based upon substantial evidence. McCruter v.
Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986).
The deference accorded the Commissioner’s findings of fact does not extend to her
conclusions of law, which enjoy no presumption of validity. Brown v. Sullivan, 921 F.2d 1233,
1236 (11th Cir. 1991) (holding judicial review of Commissioner’s legal conclusions are not
subject to substantial evidence standard). If the Commissioner fails either to apply correct legal
standards or to provide the reviewing court with the means to determine whether correct legal
standards were in fact applied, the Court must reverse the decision. Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982).
III.

DISCUSSION
Plaintiff argues the ALJ (1) improperly cherry-picked through Plaintiff’s treating

psychiatrist’s findings to support non-disability and (2) failed to incorporate all of Plaintiff’s
mental limitations into her RFC. (Doc. no. 14 (hereinafter “Pl.’s Br.”), pp. 12-19.) As explained
below, the ALJ gave appropriate weight to Dr. Gregory Max’s opinions and findings. In
addition, the ALJ considered all of Plaintiff’s mental limitations when formulating her RFC.
Therefore, none of Plaintiff’s arguments form a valid basis for reversal or remand.
4

A.

Step Four Framework for Formulating Plaintiff’s RFC

At step four of the sequential process, the ALJ evaluates a claimant’s RFC and ability to
return to past relevant work. 20 C.F.R. § 416.920(e). RFC is defined in the regulations “as that
which an individual is still able to do despite the limitations caused by his or her impairments.”
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004) (citation omitted). Courts have
described RFC as “a medical assessment of what the claimant can do in a work setting despite
any mental, physical or environmental limitations caused by the claimant’s impairments and
related symptoms.” Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 870 n.5 (11th Cir.
2012).
Limitations are divided into three categories: (1) exertional limitations that impact the
ability to perform the strength demands of a job, i.e., sitting, standing, walking, lifting, carrying,
pushing or pulling; (2) non-exertional limitations that impact the ability to meet non-strength job
demands, i.e., tolerating dust and fumes, appropriately responding to supervision, co-workers
and work pressure, and difficulty performing manipulative or postural functions of jobs; and (3)
a combination of exertional and non-exertional limitations. Baker v. Comm’r of Soc. Sec., 384
F. App’x 893, 894 (11th Cir. 2010) (citing 20 C.F.R. § 404.1569a(b)-(d)). When determining
whether a claimant can return to his past relevant work, the ALJ must consider “all the relevant
medical and other evidence.” Phillips, 357 F.3d at 1238.
Here, the ALJ determined Plaintiff has the ability to perform the following:
[L]ift, carry, push, and/or pull 20 pounds occasionally and 10 pounds frequently;
occasional stooping, twisting, and crouching; and sitting, standing, and/or walking
for six hours each in an eight-hour workday. She retains the ability to understand
and follow simple instructions and directions; perform simple tasks with
supervision and independently; maintain attention/concentration for simple tasks;
regularly attend to a routine and maintain a schedule; and can relate to and
interact with others to the extent necessary to carry out simple tasks but should
avoid work requiring more complex interaction or joint efforts to achieve work
5

goals. She should not have interaction with the public. She can handle
reasonable levels of simple work-related stress in that she can make simple
decisions directly related to the completion of her tasks and work in a stable,
unchanging work environment.
R. 25. The ALJ further determined Plaintiff had no past relevant work, but at step five, after
consultation with a VE, determined that considering the claimant’s age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national economy
that the claimant can perform, including office helper, mail clerk, and small products assembler.
R. 29.
B.

The ALJ Properly Weighed the Medical Opinions.

Plaintiff contends the ALJ improperly cherry-picked the medical opinions of Dr.
Gregory Max, Plaintiff’s treating psychiatrist, to support her finding of non-disability. As
discussed herein, the ALJ correctly assigned Dr. Max’s opinion great weight while discounting
those portions of his findings inconsistent with the medical record.
1.

Standard for Evaluating Medical Opinions

In the Eleventh Circuit, a treating physician’s opinion must be given substantial weight.
Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). Refusal to give a treating physician’s
opinion substantial weight requires the Commissioner show good cause. Crawford v. Comm’r
of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); Schnorr v. Bowen, 816 F.2d 578, 581 (11th
Cir. 1987). “The [Commissioner] must specify what weight is given to a treating physician’s
opinion and any reason for giving it no weight, and failure to do so is reversible error.”
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
The Commissioner, however, is not obligated to agree with a medical opinion if the
evidence tends toward a contrary conclusion. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.
1985). Indeed, a treating physician’s opinion may be properly discounted if it is unsupported by
6

objective medical evidence, is merely conclusory, or is inconsistent with the physician’s medical
records. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also Crawford, 363 F.3d
at 1159 (affirming ALJ’s rejection of treating physician’s opinion when such opinion conflicted
with the doctor’s treatment notes, was unsupported by the medical evidence, and was based
primarily on claimant’s subjective complaints); Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th
Cir. 2004) (affirming ALJ’s rejection of treating physician’s opinion when such opinion
conflicted with the doctor’s treatment notes and claimant’s testimony regarding daily activities).
When considering how much weight to give a medical opinion, the ALJ must consider a
number of factors:
(1) whether the doctor has examined the claimant; (2) the length, nature and
extent of a treating doctor’s relationship with the claimant; (3) the medical
evidence and explanation supporting the doctor’s opinion; (4) how consistent the
doctor’s “opinion is with the record as a whole”; and (5) the doctor’s
specialization.
Forsyth v. Comm’r of Soc. Sec., 503 F. App’x 892, 893 (11th Cir. 2013) (citing 20 C.F.R. §§
404.1527(c), 416.927(c)). Sources that can provide evidence to establish an impairment include
licensed physicians, but not physician’s assistants. See Farnsworth v. Soc. Sec. Admin., 636 F.
App’x 776, 783-84 (11th Cir. 2016); 20 C.F.R. § 416.913(a)(1).
Additionally, the Commissioner’s regulations require the opinions of examining
physicians be given more weight than non-examining physicians, the opinions of treating
physicians be given more weight than non-treating physicians, and the opinions of specialists (on
issues within their areas of expertise) be given more weight than non-specialists. See 20 C.F.R.
§ 404.1527(c)(1)-(2), (5). However, SSR 96-6p provides that findings of fact made by state
agency medical consultants regarding the nature and severity of an individual’s impairments
must be treated as expert opinion evidence of a non-examining source at the ALJ and AC levels
7

of administrative review. SSR 96-6p, 1996 WL 374180, at *1 (July 2, 1996). Moreover, state
agency medical consultants’ opinions may be entitled to greater weight than the opinions of
treating or examining sources if they are supported by evidence in the record. See id.; Jarett v.
Comm’r of Soc. Sec., 422 F. App’x 869, 872-74 (11th Cir. 2011) (holding ALJ properly gave
more weight to non-examining state consultants’ opinions over treating physician’s opinion); see
also 20 C.F.R. § 404.1527(e)(2)(i), (iii).
Lastly, under SSR 96-5p, the determination of disability regarding a Social Security
claim is reserved to the Commissioner, and treating and other medical source opinions on issues
reserved to the Commissioner are never entitled to controlling weight or special significance.
SSR 96-5p, 1996 WL 374183, at *1, 2 (July 2, 1996); see also 20 C.F.R. § 404.1527(d).
2.

The ALJ Properly Weighed Dr. Max’s Medical Opinion.

Plaintiff claims the ALJ erred by “cherry-picking through Dr. Max’s findings to support
non-disability.” Pl.’s Br., p. 13. The ALJ assigned Dr. Max “great weight . . . because he is a
treating specialist, and his assessment supports the conclusion that none of the claimant’s mental
functioning is precluded.” R. 27. However, the ALJ rejected Dr. Max’s opinions that Plaintiff
would be off-task more than twenty percent of the workday and would be absent from work
three days per month. (Id.)
Substantial evidence supports the ALJ’s decision to reject Dr. Max’s two opinions. First,
the ALJ noted Dr. Max’s opinion “was based in part on the claimant’s lower back disorder,
which is beyond the scope of the treatment he provided the claimant.” (Id.) Plaintiff argues as
an M.D., Dr. Max is competent to identify back pain and its corresponding limitations. (Pl.’s
Br., p. 15.) However, as the ALJ noted, Dr. Max is a psychiatrist associated with Oswego
Hospital Behavioral Services Division, and his treatment, as reflected by his treatment notes,
8

focused on Plaintiff’s mental condition. R. 495-99, 544-46. A doctor’s specialty is one of the
factors the ALJ can consider in assessing the weight assigned to an opinion. See 20 C.F.R.
§ 416.927(c)(5); see also Huntley v. Soc. Sec. Admin., Comm’r, 683 F. App’x 830, 832 (11th
Cir. 2017) (“When assessing medical opinions, the administrative law judge must consider . . .
the physician’s specialty.”). Thus, the ALJ properly considered Dr. Max’s psychiatric specialty
when discounting his opinion regarding Plaintiff’s back impairment.
Plaintiff further argues Dr. Max’s opinion regarding Plaintiff’s back was corroborated by
Plaintiff’s treating physician, Dr. Marie Desravines, and physician’s assistant (“PA”), Samantha
Sheggrud. Pl.’s Br., p. 15. However, the ALJ only accepted PA Sheggrud’s and Dr. Desravines’
opinion “to the extent she [Plaintiff] is limited to occasional stooping, twisting, and crouching”
because only minimal abnormalities were identified in diagnostic images of Plaintiff’s lumbar
spine and PA Sheggrud noted Plaintiff put forth poor effort during physical exams. R. 26.
Indeed, at Plaintiff’s first visit with PA Sheggrud in April 2014, Plaintiff reported no
physical disabilities and normal activities of daily living. R. 469. On examination, Plaintiff had
some tenderness in her lumbosacral spine, but no spasms and negative straight leg raises on both
sides. (Id.) Moreover, as PA Sheggrud detailed in her treatment notes during an October 2014
visit, Plaintiff’s October 2014 lumbar spine MRI showed only a small tear at L4-L5 and a small
protrusion at L5-S1 causing only moderate lateral recess stenosis. R. 429, 478-79. At that same
visit, PA Sheggrud observed Plaintiff could barely walk, but had no trouble getting on the exam
table. R. 443. During an exam in November 2014, Plaintiff reported she exercises lightly three
times a week, and PA Sheggrud noted Plaintiff had no physical disabilities and her daily living
activities were normal. R. 437, 442, 468. One month later in December 2014, PA Sheggrud
observed Plaintiff had some tenderness on her lumbar spine and a positive straight leg raise on
9

the left, but no spasms and a negative straight leg raise on the right. R. 432. She further
observed Plaintiff had decreased response to stimulation on her lower extremities and an
inability to stand on her toes or heels, but was in no acute distress. R. 432. Evidence from other
orthopedics providers also does not support Plaintiff’s back pain causing her to be off-task or
miss work. R. 547-48, 550-53. Thus, the underlying evidence shows the opinion that Plaintiff’s
back pain limits her ability to remain on task or regularly attend work, whether opined by PA
Sheggrud or Dr. Max, are not supported in the record.
The ALJ also rejected Dr. Max’s opinions because “[w]hile Dr. Max noted that the
claimant experienced auditory hallucinations, counseling records do not reflect such abnormal
clinical findings. Instead, Dr. Max indicated that the claimant had no evidence of hallucinations
in January 2015.” R. 27. Plaintiff argues the record is replete with medical evidence that
Plaintiff experiences hallucinations. Pl.’s Br., p. 16. However, as the ALJ noted, Dr. Max’s own
treatment notes undermine Dr. Max’s opinion that hallucinations interfered with Plaintiff’s
ability to work. R. 495-96, 498.
In December 2014, Dr. Max noted Plaintiff’s report of occasional auditory hallucinations,
but no command auditory hallucinations. R. 496. While there are some indications in the record
Plaintiff has had auditory hallucinations, R. 483, 485, 491, 493, 537, 539, notes from other
mental health counselors and doctors at the Oswego Hospital Behavioral Services Division also
indicate no hallucinations in the months prior to and after Dr. Max’s opinion. R. 501, 503, 506,
508, 511, 512, 514, 517, 518, 520. Thus, there is substantial evidence supporting the ALJ’s
decision to discount Dr. Max’s opinions regarding Plaintiff’s hallucinations. See Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (“Even if the evidence preponderates against the
Commissioner’s findings, the court must affirm if the decision reached is supported by
10

substantial evidence.”) (citation omitted).
Accordingly, the ALJ decision to give little weight to the Dr. Max’s opinions that
Plaintiff would be off-task more than twenty percent of the workday and would be absent from
work three days per month was supported by substantial evidence. In addition, the ALJ cited
many mental treatment records to support with substantial evidence his overall conclusion that
“the objective evidence in record undermines Dr. Max’s conclusion that the claimant would
experience significant off-task behavior and unscheduled absences.” R. 28.
C.

The ALJ Properly Considered All Impairments in Formulating Plaintiff’s
RFC.

Plaintiff contends the ALJ erred by not specifically identifying each mental impairment
diagnosed at step two of the sequential evaluation and failing to incorporate the corresponding
limitations into Plaintiff’s RFC. Pl.’s Br., pp. 17-18. However, as the ALJ noted, “[W]hat [a
mental] impairment is called is of no real consequence; rather how a given impairment affects
mental functioning is the central inquiry under the Act.” R. 23; see 20 C.F.R. §416.920a
(focusing on “degree of functional limitation” in evaluating mental impairments). Throughout
her discussion of the evidence, the ALJ identified Plaintiff’s various diagnoses related to
Plaintiff’s mental condition and properly considered all of the opinions and treatment notes
supporting the functional limitations included in the RFC. R. 23-29. Thus, the ALJ did not err
in failing to separately evaluate each mental impairment diagnosis at step two in order to
formulate Plaintiff’s RFC.
Plaintiff further contends the ALJ should have included more limitations in her RFC
formulation from the opinions of Dr. Max and non-examining state agency psychologist Dr.
Mercedes DeCubas.

Pl.’s Br., pp. 18-19.

The ALJ fully considered Dr. Max’s mental

impairment opinions, as discussed in detail supra, and incorporated those limitations into the
11

RFC. R. 26-27. Furthermore, although the ALJ gave some weight to Dr. DeCubas’ opinion, R.
26, she was not required to adopt all of Dr. DeCubas’ findings. See Forsyth, 503 F. App’x at
893 (detailing factors ALJ must consider in weighing medical opinions). Moreover, although
Dr. DeCubas responded Plaintiff would be “moderately limited” to the question regarding
Plaintiff’s ability to complete a normal workday and workweek without interruptions, when
asked to explain in narrative form Plaintiff’s concentration and persistence limitations, Dr.
DeCubas opined Plaintiff “is able to carry out simple instructions. She can follow a schedule
and can sustain goal-directed activity in a routine setting.” R. 74-75. The ALJ incorporated
these limitations into the RFC. R. 25-26.
Finally, Plaintiff contends the ALJ should have explicitly included the moderate
limitations in concentration, persistence, and pace she found at step two of the sequential
evaluation process in the RFC and subsequent hypothetical question to the VE. Pl.’s Br., p. 19.
Plaintiff argues the ALJ’s limitation to simple, routine tasks failed to adequately account for
these moderate limitations. Id. However, Plaintiff fails to explain why this limitation does not
take into account all of Plaintiff’s struggles with concentration, persistence, and pace. Indeed,
the ALJ’s RFC finding sufficiently accounted for Plaintiff’s moderate limitations because the
medical record supports the ALJ’s assessment of Plaintiff’s mental limitations. R. 25-29; see,
e.g., Ybarra v. Comm’r of Soc. Sec., 658 F. App’x 538, 542 (11th Cir. 2016) (holding limitation
to “short, simple instructions . . . with only occasional contact with co-workers and the general
public on routine matters” accounted for moderate limitations in ability to maintain
concentration, pace, and persistence); Carpenter v. Comm’r of Soc. Sec., 614 F. App’x 482, 490
(11th Cir. 2015) (holding limitation to “simple, unskilled, routine, and repetitive tasks”
accounted for “at most moderate difficulties with regard to concentration, persistence, or
12

pace[]”); see also Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)
(“[W]hen medical evidence demonstrates that a claimant can engage in simple, routine tasks or
unskilled work despite limitations in concentration, persistence, and pace, . . . limiting the
hypothetical to include only unskilled work sufficiently accounts for such limitations.”).
In sum, the ALJ properly found that Plaintiff’s mental impairments were not disabling,
and that determination was supported by substantial evidence.
IV.

CONCLUSION
For the reasons set forth above, the Court REPORTS and RECOMMENDS the

Commissioner’s final decision be AFFIRMED, this civil action be CLOSED, and a final
judgment be ENTERED in favor of the Commissioner.
SO REPORTED and RECOMMENDED this 7th day of March, 2018, at Augusta,
Georgia.

13