WAYCASTER v. COLVIN

Filing 16

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 11/17/2017; that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment on the Pleadings [Doc. # 11 ] should be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 14 ] should be GRANTED, and that this action be DISMSSED with prejudice. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TIKA WAYCASTER,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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1:17CV31

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Tika Waycaster (“Plaintiff”) brought this action pursuant to Section 1631(c)(3)
of the Social Security Act (the “Act”), as amended (42 U.S.C. § 1383(c)(3)), to obtain judicial
review of a final decision of the Commissioner of Social Security denying her claim for
Supplemental Security Income Under Title XVI of the Act. The parties have filed crossmotions for judgment, and the administrative record has been certified to the Court for review.
I.

PROCEDURAL HISTORY
Plaintiff protectively filed her application for Social Security Income (SSI) on

November 1, 2012, alleging a disability onset date of May 2, 2012. (Tr. at 158-163, 174.) 2 Her
claim was denied initially (Tr. at 61-74, 93-96), and that determination was upheld on

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Carolyn W.
Colvin as the Defendant in this suit. No further action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
1

2

Transcript citations refer to the Administrative Record [Doc. #7].

reconsideration (Tr. at 75-92, 101-10).

Thereafter, Plaintiff requested an administrative

hearing de novo before an Administrative Law Judge (“ALJ”). (Tr. at 111-12.) Plaintiff
attended the subsequent hearing on August 12, 2015, along with her attorney, and an impartial
vocational expert attended via telephone. (Tr. at 18, 34, 36.)
The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of the
Act. (Tr. at 29.) On December 29, 2016, the Appeals Council denied Plaintiff’s request for
review of the decision, thereby making the ALJ’s conclusion the Commissioner’s final decision
for purposes of judicial review. (Tr. at 1-6.)
II.

LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the
scope of [the] review of [such an administrative] decision . . . is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must
uphold the factual findings of the ALJ [underlying the denial of benefits] if they are supported
by substantial evidence and were reached through application of the correct legal standard.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
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evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). In this context, “disability” means the “‘inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.’” Id. (quoting 42 U.S.C.
§ 423(d)(1)(A)). 3

“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program . . . provides benefits to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program . . . provides benefits to indigent disabled persons. The statutory
definitions and the regulations . . . for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).

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“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at each of the first two steps,
and establishes at step three that the impairment “equals or exceeds in severity one or more
of the impairments listed in Appendix I of the regulations,” then “the claimant is disabled.”
Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at
step three, i.e., “[i]f a claimant’s impairment is not sufficiently severe to equal or exceed a listed
impairment, the ALJ must assess the claimant’s residual function[al] capacity (‘RFC’).” Id. at
179. 4 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can

“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’s
ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing
basis . . . [which] means 8 hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis
and quotation marks omitted)). The RFC includes both a “physical exertional or strength limitation” that
assesses the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to be
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“perform past relevant work”; if so, the claimant does not qualify as disabled. Id. at 179-80.
However, if the claimant establishes an inability to return to prior work, the analysis proceeds
to the fifth step, which “requires the Commissioner to prove that a significant number of jobs
exist which the claimant could perform, despite [the claimant’s] impairments.” Hines, 453
F.3d at 563. In making this determination, the ALJ must decide “whether the claimant is able
to perform other work considering both [the claimant’s RFC] and [the claimant’s] vocational
capabilities (age, education, and past work experience) to adjust to a new job.” Hall, 658 F.2d
at 264-65. If, at this step, the Government cannot carry its “evidentiary burden of proving
that [the claimant] remains able to work other jobs available in the community,” the claimant
qualifies as disabled. Hines, 453 F.3d at 567.
III.

DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since her alleged onset date. She therefore met her burden at step one of the
sequential evaluation process. At step two, the ALJ further determined that Plaintiff suffered
from the following severe impairments:
lupus; fibromyalgia; obesity; lumbar radiculopathy; left foot impairment, status
post tarsal tunnel decompression and partial plantar faciectomy; knee
degenerative joint disease, status post right knee arthroscopic lateral release and
patellar debridement for patellofemoral arthritis; restricted visual fields; mood
disorder; and anxiety disorder.

determined by the ALJ only after [the ALJ] considers all relevant evidence of a claimant’s impairments and any
related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

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(Tr. at 20.) The ALJ found at step three that none of these impairments met or equaled a
disability listing. (Tr. at 20-22.) As part of the determination at step three, the ALJ determined
that Plaintiff had mild restrictions in activities of daily living, moderate difficulties in social
functioning, and moderate difficulties with concentration, persistence, or pace. The ALJ then
assessed Plaintiff’s RFC and determined that Plaintiff could perform light work but with a
sit/stand option at thirty minute intervals; no concentrated exposure to hazards such as
moving machinery and unprotected heights; unskilled work with no more than occasional
public contact in a stable work environment; and infrequent and no commercial driving. (Tr.
at 22.) The ALJ then determined at step five that, given Plaintiff’s age, education, work
experience, and RFC, she could perform other jobs available in the national economy. (Tr. at
27.) Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tr. at 28.)
Plaintiff now challenges the ALJ’s RFC assessment, contending that the ALJ failed to
properly weigh the opinion of Plaintiff’s treating psychiatrist, Dr. Barbara Lowry. (Pl.’s Br.
[Doc. #13] at 2-8.) Specifically, Plaintiff contends that the ALJ erred in failing to give
controlling weight to Dr. Lowry’s opinion and, alternatively, erred by giving more weight to
the opinions of State agency consultants than to the opinion of Dr. Lowry. After a thorough
review of the record, the Court finds that neither contention merits remand.
Plaintiff first contends that the ALJ erred in failing to give controlling weight to Dr.
Lowry’s July 1, 2013 Medical Source Statement. In a recent decision, the Fourth Circuit
reiterated that for claims, like Plaintiff’s, that are filed before March 24, 2017, the ALJ evaluates
medical opinion evidence in accordance with 20 C.F.R. §§ 404.1527(c) and 416.927(c) and the
“treating physician rule” embodied within the regulations. Brown v. Comm’r Soc. Sec., 873
6

F.3d 251, 255 (4th Cir. 2017). Under the regulations, “medical opinions” are “statements
from acceptable medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do
despite impairment(s), and your physical or mental restrictions.”

Id. (citing 20 C.F.R.

§ 404.1527(a)(1)); see also 20 C.F.R. § 416.927(a)(1). While the regulations mandate that the
ALJ evaluate each medical opinion presented to him, generally “more weight is given to the
medical opinion of a source who has examined you than to the medical opinion of a medical
source who has not examined you.”

Brown, 873 F.3d at 255 (quoting 20 C.F.R.

§ 404.1527(c)(1)); see also 20 C.F.R. § 416.927(c)(1). And, under what is commonly referred
to as the “treating physician rule,” the ALJ generally accords the greatest weight – controlling
weight – to the well-supported opinion of a treating source as to the nature and severity of a
claimant’s impairment, based on the ability of treating sources to
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
[which] 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.
20 C.F.R. § 416.927(c)(2). However, if a treating source’s opinion is not “well-supported by
medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the
other substantial evidence in [the] case record,” it is not entitled to controlling weight. Social
Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *5; 20 C.F.R. § 416.927(c)(2); see also
Brown, 873 F.3d at 255; Craig, 76 F.3d at 590; Mastro, 270 F.3d at 178. Instead, the ALJ
utilizes all of the factors provided in 20 C.F.R. § 416.927(c)(2)-(c)(6) to determine what lesser

7

weight to accord the treating source opinion. 5 Those factors include (1) the length of the
treatment relationship, (2) the frequency of examination, (3) the nature and extent of the
treatment relationship, (4) the supportability of the opinion, (5) the consistency of the opinion
with the record, (6) whether the source is a specialist, and (7) any other factors that may
support or contradict the opinion.

The regulations also reserve several issues to the

Commissioner, “including whether a claimant’s impairment matches a listed impairment, the
claimant’s RFC, and whether the claimant ultimately meets the statutory definition of
disabled.” Brown, 873 F.3d at 256 (citing 20 C.F.R. § 404.1527(d)); see also 20 C.F.R.
§ 416.927(d)(1)-(2). “Thus, for example, when a medical source renders an opinion that a
claimant is ‘disabled’ or ‘unable to work,’ the ALJ will consider ‘all of the medical findings and
other evidence that support’ the medical source’s opinion, but will not necessarily make a
favorable disability determination.”

Brown, 873 F.3d at 256 (citing 20 C.F.R.

§ 404.1527(d)(1)); see also 20 C.F.R. § 416.927(d)(1).
Where an ALJ declines to give controlling weight to a treating source opinion, he must
“give good reasons in [his] . . . decision for the weight” assigned, taking the above factors into
account. 20 C.F.R. § 416.927(c)(2). “This requires the ALJ to provide sufficient explanation
for ‘meaningful review’ by the courts.” Thompson v. Colvin, No. 1:09CV278, 2014 WL
185218, at *5 (M.D.N.C. Jan. 15, 2014) (quotations omitted); see also SSR 96-2p (noting that

The Court notes that for claims filed after March 27, 2017, the regulations have been amended and several of
the prior Social Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that
the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical
sources.” 20 C.F.R. § 416.920(c)(a). However, the claim in the present case was filed before March 27, 2017,
and the Court has therefore analyzed Plaintiff’s claims pursuant to the treating physician rule set out above.
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the decision “must contain specific reasons for the weight given to the treating source’s
medical opinion, supported by the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight”).
In this case, on July 1, 2013, Plaintiff’s treating psychiatrist, Dr. Lowry, completed a
Medical Source Statement regarding Plaintiff’s ability to do work-related activities in light of
Plaintiff’s mental impairments. (Tr. 317-319.) Dr. Lowry checked off responses to prompts
regarding Plaintiff’s degree of limitation in ten areas. She indicated that Plaintiff has moderate
restrictions in understanding, remembering, and carrying out simple instructions, as well as
moderate restrictions in her ability to make judgments on simple work-related decisions. Dr.
Lowry indicated that Plaintiff has marked restrictions in understanding, remembering, and
carrying out complex instructions, as well as marked restrictions in her ability to make
judgments on complex work-related decisions. In support of her assessment, Dr. Lowry noted
that Plaintiff has “severe depression and anxiety with panic attacks.” (Tr. at 317.) Dr. Lowry
also indicated that Plaintiff has marked restrictions interacting appropriately with the public,
supervisors, and co-workers, and in responding appropriately to work situations and changes
in a routine work setting. (Tr. at 318.) Dr. Lowry again pointed to Plaintiff’s “severe
depression, anxiety, and panic” as the reason for Plaintiff’s limitations. (Tr. at 318.)

With

regard to additional capabilities affected by Plaintiff’s limitations, Dr. Lowry wrote that
Plaintiff has “[p]oor attention and concentration, obsessional thinking about daily worries, lack
of energy and motivation.” (Tr. at 318.) Dr. Lowry included as support for her assessment -

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“mental status exam reveals depressed mood, anxious, irritable, mood unstable, distracted.”
(Tr. at 318.)
The ALJ assigned “less weight” to Dr. Lowry’s Medical Source Statement, finding that
Dr. Lowry’s opinion was not well supported by her treatment records and was inconsistent
with the record as a whole. (Tr. at 21, 26.) The ALJ explained his rationale for the weight
accorded to Dr. Lowry’s medical opinion, stating that:
[Dr. Lowry’s] treatment records are not particularly thorough or detailed outside
of listing the claimant’s subjective complaints. . . .
Dr. Lowry’s form is also inconsistent with the thorough and detailed
consultative psychological examination. . . .
(Tr. at 26.) The ALJ thus gave specific reasons for giving Dr. Lowry’s form less weight: (1)
Dr. Lowry’s opinion was not supported by her treatment records, where the treatment records
were not particularly thorough or detailed outside of listing Plaintiff’s subjective complaints,
and (2) Dr. Lowry’s opinion was inconsistent with the record as a whole, particularly the
consultative psychological examination.

In addition, in evaluating Plaintiff’s social

functioning, the ALJ noted that
Dr. Barbara Lowry checked on a medical source statement in July 2013 that the
claimant has marked limitations interacting appropriately; however, that is not
consistent with the record as a whole.
(Tr. at 21 (citing to consultative psychological examination).)

Similarly, in evaluating

concentration, persistence and pace, the ALJ noted that
Dr. Lowry wrote on a medical source statement in July 2013 that the claimant
has “poor attention and concentration” and is distractible; however, Dr.
Lowry’s treatment records do not show objective findings related to cognitive
functioning.
(Tr. at 21.)
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Plaintiff now challenges the ALJ’s assignment of less than controlling weight to Dr.
Lowry’s Medical Source Statement. As noted above, the ALJ first found that Dr. Lowry’s
opinion was not supported by her treatment records. While Plaintiff apparently concedes that
Dr. Lowry’s treatment records are not particularly detailed, Plaintiff contends that Dr. Lowry’s
records consistently diagnose Plaintiff with Bipolar Disorder and Panic Disorder. (Pl.’s Br.
[Doc. # 13] at 5.)

However, a diagnosis alone does not reflect the extent of a plaintiff’s

functional limitations, and the fact that Dr. Lowry’s treatment records consistently list the
same diagnoses would not negate the ALJ’s assessment regarding the substance of the
treatment records. “The more a medical source presents relevant evidence to support a
medical opinion, particularly medical signs and laboratory findings, the more weight [the ALJ]
will give that medical opinion.” 20 C.F.R. § 416.927(c)(3).

Here, the ALJ found that Dr.

Lowry’s opinion regarding Plaintiff’s purported limitations was not sufficiently supported by
findings in Dr. Lowry’s treatment records. Instead, the ALJ explained that Dr. Lowry’s
treatment notes were more reflective of Plaintiff’s subjective complaints:
The records document many situational stressors, such as [claimant’s] divorce
and conflict with husband, issues with her father’s illness, her relationship with
her mother, and negative preoccupation with her health.
(Tr. at 21, 26.) The fact that a physician memorializes a claimant’s subjective complaints in
treatment records does not transform the complaints into objective medical findings. Craig,
76 F.3d at 590 n.2. On review of the record, the Court notes that Dr. Lowry’s handwritten
treatment records consist of fill-in-the blank assessments that refer to Plaintiff’s subjective
complaints, mood, and appearance, and as noted by the ALJ, these records are not particularly
thorough, not particularly detailed, and contain primarily summaries of Plaintiff’s issues related
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to her divorce and her family interactions. (Tr. 262-73, 325-27, 402-13.) In addition, also as
noted by the ALJ, there are no objective findings related to cognitive functioning.
Plaintiff asserts, however, that Dr. Lowry has “particularly strong insight into the
nature and severity of Plaintiff’s mental health conditions” because of the length of her
treatment relationship with Plaintiff. (Pl.’s Br. [Doc. #13] at 5.)

However, the ALJ

acknowledged and considered the length of the treatment relationship, but also considered the
problems with the treatment records and the lack of sufficient supporting information in the
treatment records.

These deficiencies are not negated by the length of the treatment

relationship.
Further, the ALJ provided an additional rationale for the weight he accorded Dr.
Lowry’s medical opinion, determining that it was inconsistent with the record as a whole. The
ALJ specifically pointed to the consultative examination and the consultative examiner’s
assessment of Plaintiff’s functionality. The ALJ summarized the consultative examiner’s
findings regarding claimant’s limitations as follows:
The consultative examiner diagnosed depressive disorder NOS and anxiety
disorder NOS, as well as ADHD per the claimant’s report. . . . The consultative
examiner found that claimant showed an adequate ability to understand, retain
and follow instructions. She demonstrated normal ability to concentrate long
enough to perform simple, repetitive tasks. The consultative examiner opined
that the claimant would likely encounter moderate difficulty tolerating the stress
and pressures associate with day-to-day work activity. The consultative
examiner opined that the claimant would likely encounter moderate difficulty
relating effectively with coworkers and supervisors.
(Tr. at 27, 284-85.) The ALJ gave “some weight” to the consultative examiner’s opinion.
In addition, the ALJ relied not simply on the consultative examiner’s conclusions, but
rather on the specific observations included in the report of the examination, and the
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inconsistencies between Dr. Lowry’s opinion and the observations at the consultative
examination. For example, the ALJ noted that Dr. Lowry indicated on her Medical Source
Statement that Plaintiff had marked limitations interacting appropriately, but the consultative
examination indicated that claimant presented with no distress, “she had good eye contact and
average energy,” “[h]er mood was pleasant and affect was congruent with thought content,
mood and situation.” (Tr. at 21, 281.) Similarly, with regard to Plaintiff’s concentration,
persistence, and pace, the ALJ noted that Dr. Lowry indicated that Plaintiff had “poor
attention and concentration and is distractible,” but the ALJ further noted that
[a]t the consultative psychological examination in February 2013, the claimant’s
concentration and comprehension abilities were adequate for evaluation
purposes. She reported being able to complete a variety of activities of daily
living. She was reasonably alert and oriented to time, place, self and situation.
She was able to follow simple commands without significant comprehension
problems. Her ability to recall aspects of her immediate, recent and remote
history appeared to be grossly intact. She made no errors on serial 3s testing.
She was able to count backwards by twos from 30 with no errors. The claimant
was able to recall three of three words immediately and two of three words after
a five and ten-minute delay.
(Tr. at 21-22, 283-84.)
The ALJ ultimately concluded that Dr. Lowry’s form was inconsistent with the record
of the consultative examination, and as support for that determination, the ALJ noted that at
the consultative examination:
claimant’s overall grooming and appearance was within normal limits. She was
casually dressed and appropriately groomed in blue jeans and a sweater. She
did not show any noticeable disturbance in gait or posture. Her speech was
clear and understandable. Eye contact was good. Energy level was average.
The claimant’s mood was pleasant and affect was congruent with thought
content, mood and situation. She did not present in any clinically significant
psychological distress. Concentration and comprehension abilities were
adequate for evaluation purposes.
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On the consultative examination, [Plaintiff] became mildly dysphoric and
somewhat anxious, but did not appear to be in any clinically significant
psychological distress. Her thought process was linear without loosening of
associations or flight of ideas. Thought content was negative for suicidal and
homicidal ideations, ideas of reference and delusions. She did not present with
any overt signs that would suggest an underlying psychotic process. She was
reasonably alert and oriented to time, place, self and situation. She was able to
follow simple commands without significant comprehension problems. Her
ability to recall aspects of her immediate, recent and remote history were grossly
intact. Insight and judgment appear to be poor. She made no errors on serial
3s. She counted backwards by 2s from 30 with no errors. The claimant was
able to recall three of three words immediately and two of three words after five
and ten-minute delay.
(Tr. at 26-27, 283-84.) The ALJ also specifically noted that the consultative examiner did not
have sufficient information to make a diagnosis of a “specific mood, anxiety, psychotic or
cognitive disorder,” but did diagnose “depressive disorder NOS and anxiety disorder NOS, as
well as ADHD per the claimant’s report” based on his findings. (Tr. at 26-27, 284-85.)
Plaintiff does not challenge the ALJ’s finding that Dr. Lowry’s opinion is inconsistent
with the consultative examination.

Instead, Plaintiff attempts to negate the noted

inconsistencies by discrediting the consultative exam as “not particularly reliable.” (Pl.’s Br.
[Doc. #13] at 6). Plaintiff notes that the consultative examiner examined Plaintiff only once
and did not indicate whether he had access to Plaintiff’s medical records.
Plaintiff’s contentions, however, appear to bear on the nature and extent of the
consultative examiner’s relationship with Plaintiff and the amount of support underlying his
opinions regarding Plaintiff’s functionality, matters the ALJ considered in accordance with
§ 416.927(c).

While the consultative examiner’s report was the result of a one-time

examination, the ALJ clearly took that into account but also found that the consultative
examiner’s assessment was “thorough and detailed.” (Tr. at 281-285.) “The better an
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explanation a source provides for a medical opinion, the more weight [the ALJ] will give that
medical opinion.” 20 C.F.R. § 416.927(c)(3). In addition, Plaintiff has failed to indicate what
relevant medical records the consultative examiner did not receive.

The consultative

examiner’s report reflects that Plaintiff was referred for examination based on a history of
“[b]ipolar, panic disorder, OCD, depression, [and] ADD.” (Tr. at 281.) The consultative
examiner’s report also includes information regarding the medications Plaintiff was prescribed
at the time, including Xanax, Adderall, Celexa, Seroquel, and Geodon. (Tr. at 281.) Plaintiff
has failed to establish what “necessary background information” had not been provided. 20
C.F.R. § 416.917.
Ultimately, as set out in detail above, the ALJ expressly considered the evidence,
recounted the results of the consultative examination, recounted the consultative examiner’s
findings, and determined the weight he deemed appropriate to accord the opinion evidence.
(Tr. at 27.) The ALJ gave specific reasons for finding Dr. Lowry’s Medical Source Statement
lacking in support and inconsistent with the evidence in the record, including the consultative
examiner’s thorough examination. The ALJ found that the consultative examiner’s assessment
was better grounded in objective medical findings and that it more fully tied Plaintiff’s
impairments to her functional limitations. It is not the role of the Court to now re-weigh the
§ 416.927(c) factors and substitute its judgment for that of the ALJ. The ALJ’s determination
is supported by substantial evidence and was sufficiently explained. 6
Plaintiff also contends that the consultative examination was conducted by Alexander Lopez, who is “not a
physician, psychiatrist or licensed psychologist.” (Pl.’s Br. [Doc. #13] at 6.) However, the consultative
examination is also signed by Patrick C. Quinn, Ph.D., and the ALJ noted Lopez’s and Quinn’s respective
qualifications when he addressed the consultative examiner’s assessment. (Tr. at 26.) Plaintiff does not appear
to dispute that Dr. Quinn is an acceptable medical source under the applicable regulations for consideration of
opinion evidence. See also 20 C.F.R. § 416.929g. Plaintiff points to no statutory provision, regulatory provision,

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In her second argument, Plaintiff contends that the ALJ erred in assigning greater
weight to the State agency consultants’ opinions than to the opinion of Dr. Lowry. (Pl.’s Br.
[Doc. #13] at 6.) As discussed above, opinions from treating sources are generally entitled to
greater weight “since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [a claimant’s] medical impairments.” 20 C.F.R.
§ 416.927(c)(2). However, in some cases, “opinions from State agency . . . psychological
consultants . . . may be entitled to greater weight than the opinions of treating or examining
sources,” for example, when the state agency consultant’s opinion is based on a review of the
medical record that includes a report with more detailed information not considered by the
treating source. SSR 96-6p.
In this case, the ALJ considered two State psychological consultants’ reports when
evaluating Plaintiff’s claim: Dr. Ben Williams’ March 3, 2013 opinion and Dr. Sharon Skoll’s
October 24, 2013 opinion. (Tr. at 61-73, 75-91.) The ALJ afforded their opinions “more
weight” and indicated that the “residual functional capacity is consistent with their opinions
that the claimant can do unskilled work in a stable work setting with occasional public
contact.” (Tr. at 27.) Plaintiff now contends that a proper weighing of the factors listed in 20
C.F.R. § 416.927 demonstrates that Dr. Lowry’s opinion is entitled to greater weight than the
opinions of the State agency consultants and that their opinions are not supported by
substantial evidence because they “provide very minimal explanation for their findings and
[their] findings are purely based on their review of the medical records in the exhibit file which
or judicial decision that would preclude the ALJ from considering the consultative examination in this case. As
discussed above, to the extent that Plaintiff is essentially asking the Court to re-weigh the evidence, the Court
concludes that the ALJ’s decision is supported by substantial evidence and the Court will not substitute its
judgment for that of the ALJ.
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do not even include the most recent treatment notes from Dr. Lowry.” (Pl.’s Br. [Doc. #13]
at 7.)
To the extent that Plaintiff invites the Court to re-weigh the factors the ALJ considered
when assigning weight to various medical opinions, the Court declines to do so. See Mastro,
270 F.3d at 176 (“In reviewing for substantial evidence, the court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that
of the [ALJ].” (internal brackets and quotation marks omitted)). As discussed above, the ALJ
weighed the relevant factors and provided legally sufficient reasons for discounting Dr.
Lowry’s opinion. The ALJ found Dr. Lowry’s medical opinion both deficient in support and
inconsistent with the record as a whole, entitling the ALJ to accord not only less than
controlling weight to Dr. Lowry’s Medical Source Statement but to accord more weight to the
state agency consultants’ opinions, which the ALJ found more consistent with the record as a
whole.
The State consultants’ opinions are set out in detail and include specific reasons and
bases for the opinions, based on review of Plaintiff’s medical records and other information
in the record. The State consultants found Plaintiff’s limitations resulting from mental
impairments to range from mild to moderate, which is consistent with the consultative
examination. (Tr. at 61-73, 75-91.) Specifically, both Williams and Skoll noted that “[c]laimant
is able to interact with others appropriately with occasional general public contact,” “[c]laimant
is able to maintain concentration and persistence limitations to perform simple work
functions,” that she is moderately limited in her ability to carry out detailed instructions and
in her ability to “maintain attention and concentration for extended periods,” and that she is
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moderately limited in interacting with the general public. (Tr. at 69-71, 86-88.) The basis for
the determination is set out in narrative form and includes specific reference to functional
limitations. (Tr. at 82-83, 86-87.) These conclusions are also consistent with the findings of
the consultative examiner that Plaintiff “shows an adequate ability to understand, retain, and
follow instructions,” and that “she would likely encounter mild to moderate difficulty relating
effectively with coworkers and supervisors.” (Tr. at 27, 285.)
Plaintiff contends, however, that the State psychiatric consultants’ opinions are not
supported by substantial evidence because they do not consider Dr. Lowry’s most recent
treatment notes. (Pl.’s Br. [Doc. #13] at 7-8.) Dr. Skoll’s opinion, however, did consider Dr.
Lowry’s July 1, 2013 Medical Source Statement. (Tr. 75-91.) Neither Plaintiff nor the
treatment record suggest any subsequent changes in Plaintiff’s mental condition that would
render the State agency consultants’ opinions unsupported. (Tr. at 401-413.) In addition, as
noted above, the ALJ considered Dr. Lowry’s later treatment records, including those
subsequent to Dr. Skoll’s assessment, and found as to all of Dr. Lowry’s treatment records
that the records were not particularly thorough or detailed outside of listing Plaintiff’s
subjective complaints. (Tr. at 26 (citing Exhibit 21F), 401-13.) Plaintiff has pointed to no
basis to conclude that the lack of Dr. Lowry’s most recent treatment notes rendered the state
consultants’ opinions unsupported.
Thus, substantial evidence supports the ALJ’s assignment of weight to the State
consultants’ opinions, and the Court will not re-weigh the opinion evidence in this case.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Judgment on the Pleadings [Doc.
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#11] should be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc.
#14] should be GRANTED, and that this action be DISMSSED with prejudice.
This, the 17th day of November, 2017.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

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