C. LYNWOOD SMITH, JR., District Judge.
Claimant, Mark Clough, commenced this action on July 9, 2018, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the Commissioner, affirming the decision of the Administrative Law Judge ("ALJ"), and thereby denying his claim for supplemental security income benefits. Claimant also filed a motion to correct the administrative record to include the September 12, 2017 evaluation of Dr. David Wilson.
The court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of review is limited to determining whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and whether correct legal standards were applied. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). Claimant contends that the Commissioner's decision is neither supported by substantial evidence nor in accordance with applicable legal standards. In addition to requesting a correction of the administrative record, claimant contends that the Appeals Council erroneously failed to review Dr. Wilson's report, and that the ALJ improperly considered the opinions of the treating and evaluating physicians.
Dr. David Wilson performed a consultative psychological examination on September 12, 2017, after the ALJ's July 3, 2017 hearing decision. Claimant's attorney submitted a letter to the Appeals Council on October 20, 2017, stating claimant's reasons why the Appeals Council should overturn the ALJ's denial decision. That letter summarized Dr. Wilson's September 12, 2017 evaluation and argued that it should be considered as new and material evidence,
After appealing the Commissioner's final denial decision to this court, claimant filed a motion on February 19, 2019, to correct the administrative record by including a copy of Dr. Wilson's September 12, 2017 evaluation.
The Commissioner filed two responses to claimant's motion. First, on March 20, 2019, she filed a "Supplementation to Correct Administrative Record."
The Commissioner filed a separate "Response in Opposition to Plaintiff's Motion to Correct the Record" on April 18, 2019, asserting that, because the Appeals Council received only one page of Dr. Wilson's September 12, 2017 evaluation, claimant failed to show that the entire evaluation was before the Appeals Council.
This court entered an order on April 19, 2019, requiring claimant to file a reply brief by May 3, 2019, addressing "the Commissioner's assertions that only one page from Dr. Wilson's assessment was presented to the Appeals Council, and that remand is not warranted under sentence six of 42 U.S.C. §405(g)."
The substantive briefs claimant filed in support of his claim argued that remand was warranted because the Appeals Council failed to consider Dr. Wilson's September 12, 2017 assessment.
Claimant also argues that the ALJ improperly considered the opinions of the consultative examining physicians. Social Security regulations provide that, in considering what weight to give any medical opinion, the Commissioner should evaluate: the extent of the examining or treating relationship between the doctor and patient; whether the doctor's opinion can be supported by medical signs and laboratory findings; whether the opinion is consistent with the record as a whole; the doctor's specialization; and other factors. See 20 C.F.R. § 416.927(c). See also Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) ("The weight afforded a physician's conclusory statements depends upon the extent to which they are supported by clinical or laboratory findings and are consistent with other evidence as to claimant's impairments."). Additionally, the ALJ is not required to accept a conclusory statement from a medical source that a claimant is unable to work, because the decision whether a claimant is disabled is not a medical opinion, but is a decision "reserved to the Commissioner." 20 C.F.R. § 416.927(d).
Dr. Daniel Prince conducted a consultative physical examination on August 31, 2012, and reviewed all of claimant's medical records. Claimant reported a history of epilepsy resulting in the loss of his driver's license, fractures of both legs from an automobile accident, and a broken back from a fall. The physical examination revealed sluggish reflexes in the legs, and straight leg raise tests were positive in the right leg but negative in the left. His cervical spine was nontender and fully mobile. There was mild deformity of the left clavicle, adequate shoulder mobility, and a grossly deformed left wrist, but grip and pinch strength were adequate. Claimant's lumbar flexion was reduced 35%, and he exhibited paraspinal muscle tenderness in the bilateral lower thoracic and upper lumbar areas. His hips were tender, with the right side worse than the left. Similarly, claimant experienced 40% impairment of his right hip mobility, but only 10-15% impairment of his left hip. His knees displayed slight crepitus but no fluid. His right leg extension was reduced by ten degrees, but his ankles and feet were normal except for some crepitus. Dr. Prince stated:
Tr. 454 (footnote supplied). Dr. Prince concluded that claimant experienced "[c]omplete, permanent, chronic and total disability secondary to residuals of multiple fractures, epilepsy, grand mal seizure activity, generalized anxiety disorder, and borderline intellectual function."
The ALJ afforded Dr. Prince's assessment little weight. He observed that Dr. Prince's opinion about claimant's ability to work was a decision reserved to the Commissioner, and he concluded that Dr. Prince's overall assessment was "inherently less persuasive" because it was "solicited on behalf of the claimant's representative."
Claimant correctly points out that it is improper to reject a physician's assessment simply because the assessment was requested by the claimant's attorney. See Tavarez v. Commissioner of Social Security, 638 F. App'x 841, 847 (11th Cir. 2016) (quoting Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998); Moss v. Astrue, 555 F.3d 556 (7th Cir. 2009)) ("`[T]he mere fact that a medical report is provided at the request of counsel or, more broadly, the purpose for which an opinion is provided, is not a legitimate basis for evaluating the reliability of the report.'") (alteration supplied). Even so, that was not the sole basis for the ALJ's rejection of Dr. Prince's assessment. The ALJ's conclusion about the inconsistency of Dr. Prince's opinion with the remainder of the record is supported by substantial evidence.
Dr. Keith Morgan conducted a consultative physical examination on April 15, 2015. Claimant reported seizure disorder, back pain, and leg pain. Dr. Morgan's general examination findings revealed
Tr. 381. Claimant had full range of motion of the cervical and lumbar spine, but tenderness to palpation throughout the cervical and lumbar paraspinal muscles. He also had full range of motion in his bilateral upper and lower extremities, with no increased joint temperature, no ulnar deviation, and no varicosities, brawny edema, or claudication-like symptoms. His neurological examination was normal. Dr. Morgan assessed claimant as experiencing status-post motor vehicle accident with broken right femur and rod placement, epilepsy, and status post fractured back. Dr. Morgan concluded that claimant could only sit and stand for ten minutes each, walk for four to five minutes, travel for one hour, and lift and carry eight pounds for ten steps. All of his limitations were the result of lower back pain, and they were identical to the limitations claimant reported to Dr. Morgan at the beginning of the examination.
The ALJ afforded Dr. Morgan's assessment no weight, stating that "[t]he extreme restrictions assessed by Dr. Morgan are entirely inconsistent with the relatively benign findings noted on physical examination and are not consistent with the record as a whole."
Claimant asserts that the ALJ improperly substituted his opinion for Dr. Morgan's, but this court disagrees. To the contrary, the ALJ adequately articulated his reasons for rejecting Dr. Morgan's assessment, and his conclusions were in accordance with applicable law and supported by substantial evidence. In addition to the reasons articulated by the ALJ, this court notes that the restrictions imposed by Dr. Morgan seem to be based entirely upon claimant's subjective complaints, not upon any examination findings.
Dr. Jack Bentley provided two consultative psychological assessments. The first assessment occurred on October 7, 2010. Claimant reported increased depression since breaking his back in August of 2009. He also experienced dysphoric mood, excessive anxiety, periodic panic attacks, and grief over his loss of lifestyle. Claimant had never received formal psychiatric treatment or taken medication to treat anxiety or depression. During the mental status examination, claimant described no deterioration in his daily living skills, and he ambulated easily around the office. Dr. Bentley observed:
Tr. 432. Dr. Bentley's diagnostic impressions included generalized anxiety disorder with occasional panic attacks, mild depressive disorder, nicotine dependence, and borderline intellectual functioning. Claimant was "reasonably motivated and cooperative," and his prognosis was favorable.
Dr. Bentley examined claimant for the second time on April 8, 2015. Claimant reported "increasing symptoms of depression, anxiety, loss of coping skills, mood swings, irritability and a lack of coping skills since his back injury. He is not coping well with his change of lifestyle. The patient can no longer engage in many activities that he once performed routinely."
Tr. 376 (alterations supplied). Claimant reported moderate to severe sleep disturbance due to back and leg pain, headaches, and seizure disorder. His social activities were limited to interaction with immediate family, but he was able to complete his activities of daily living without assistance. Dr. Bentley's diagnostic impression was depressive disorder due to medical condition, and the prognosis for claimant's current level of functioning was favorable. Claimant displayed no indication of symptom exaggeration, and he would be capable of managing benefits if awarded. Dr. Bentley concluded that claimant's mental conditions would result in mild limitation of his ability to perform work related activities, but most of claimant's work-related restrictions stemmed from his physical health problems.
The ALJ afforded Dr. Bentley's 2010 assessment little weight because it was vague, remote in time to the claimant's January 15, 2015 alleged onset date, and lacked a function-by-function assessment of claimant's ability to do work related activities.
Prior to the September 12, 2017 report discussed above, Dr. David Wilson also examined claimant on September 5, 2012. During the clinical examination, claimant exhibited obvious pain behaviors like shifting and leaning in his chair. His thought processes were intact, his speech was clear and normal in rate, and he was cooperative and respectful. He was not hyperactive, and he denied hallucinations, delusions, ideas of reference, phobias, and obsessive-compulsive behavior. He had panic-related symptoms like tingling and tightness in his chest, and as a result, he sometimes avoided going out in public. His affect was appropriate and within normal limits. He reported feeling depressed about his inability to work and being unable to sleep as a result of pain. His appetite was good, but his energy was not. He denied crying spells and suicidal ideation, and his insight and judgment were fair. Claimant was able to count down from 20 with only one error. He could perform serial 3's to 24 with no errors, but he could not count down from 100 by 7's. He could do some math, and his mental control was adequate. His fund of general information was poor, and his abstract reasoning was below average, causing Dr. Wilson to conclude that his overall verbal skills were in the borderline range. Claimant displayed some problems with short-term memory, and he could read on only a sixth grade level. He had a valid pain profile with resulting depression and anxiety. Even though Dr. Wilson concluded that claimant's problems were mostly physical in nature,
Tr. 461. Dr. Wilson assessed claimant with panic disorder, depressive disorder, and borderline intelligence, in addition to other physical problems, and he assigned a GAF score of 50, indicating serious symptoms.
Dr. Wilson also completed a Mental Health Source Statement form. He indicated that claimant would experience mild limitation in his abilities to understand and carry out very short and simple directions, make simple work-related decisions, ask simple questions or request assistance, and be aware of normal hazards and take appropriate precautions. He would experience moderate limitation in his abilities to accept instructions, respond appropriately to criticism from supervisors, maintain socially appropriate behavior, adhere to basic standards of neatness and cleanliness, travel in unfamiliar places or use public transportation, and interact appropriately with the general public. He would experience marked limitation in his abilities to remember locations and work-like procedures, understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, perform within a schedule, sustain ordinary routines without special supervision, work in coordination or proximity to others without being distracted by them, complete a workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without unreasonable work breaks, get along with coworkers or peers without distracting them or exhibiting behavioral extremes, respond appropriately to changes in the work setting, and set realistic goals or make plans independently of others.
The ALJ afforded Dr. Wilson's September 5, 2012 assessment little weight because "[t]he marked limitations assessed by Dr. Wilson are not consistent with more recent consultative and treating source psychological evidence," and because the assessment was "remote and inconsistent with the record as a whole."
Dr. Robert Estock, a state agency physician, reviewed claimant's file on May 14, 2015, including the consultative opinions of Dr. Morgan and Dr. Bentley. He found that claimant was capable of occasionally lifting and carrying twenty pounds, and frequently lifting and carrying ten pounds. He could stand and/or walk for six hours in an eight-hour work day, and he could also sit for six hours in an eight-hour work day. He could perform unlimited pushing and pulling movements with his hands and feet. He could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but he could never climb ladders, ropes, or scaffolds. He had no manipulative, visual, or communicative limitations. Environmental limitations included avoiding concentrated exposure to extreme heat, extreme cold, wetness, and humidity, and avoiding all exposure to hazards such as machinery and heights. Claimant was not significantly limited in his abilities to remember locations and work procedures; understand, remember, and carry out very short and simple instructions; perform activities within a schedule; maintain regular attendance; be punctual within customary tolerances; sustain an ordinary routine without special supervision; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychological symptoms; perform at a consistent pace without unreasonable breaks; ask simple questions; request assistance; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; be aware of normal hazards and take normal precautions; travel in unfamiliar places or use public transportation; set realistic goals; and make plans independently of others. He was moderately limited in his abilities to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with or in proximity to others without being distracted by them; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and respond appropriately to changes in the work setting. Dr. Estock opined that claimant would have trouble with more detailed tasks and instructions, and that he would be able to maintain attention and concentration for two hours with customary rest breaks. He recommended a well-spaced work environment for maximum concentration. He also recommended that claimant's contact with the public should be infrequent and non-intensive, that supervision should be tactful, constructive, and non-threatening, and that changes in the workplace should be infrequent and gradually introduced. In addition to those non-exertional impairments, claimant would be limited to work at the light level of exertion.
The ALJ afforded significant weight to Dr. Estock's assessment because it was "supported with relevant evidence and . . . consistent with the record as a whole."
Tr. 20.
Claimant asserts that ALJ improperly gave more weight to Dr. Estock's opinion than the other consultative examiners' opinions because Dr. Estock only reviewed claimant's medical file and did not examine him. That argument is not supported by applicable law. To the contrary, Social Security regulations provide that the opinions of state agency psychological consultants are entitled to substantial consideration. See 20 C.F.R. §§ 416.913a(b)(1) & 416.927(e) (stating that, while the ALJ is not bound by the findings of a State Agency psychological consultant, the ALJ should consider such a consultant to be both "highly qualified" and an "expert" in Social Security disability evaluation). See also Stacy v. Commissioner, Social Security Admininistration, 654 F. App'x 1005, 1009 (11th Cir. 2016) ("The ALJ may consider the reports and assessments of state agency physicians as expert opinions."). Moreover, the record supports the ALJ's decision to afford Dr. Estock's opinion more weight than the other consultative physician opinions.
In accordance with the foregoing, this court concludes that the ALJ's decision was supported by substantial evidence and in accordance with applicable law. It will be affirmed. Claimant's motion to correct the administrative record will be denied. An appropriate order will be entered contemporaneously herewith.