JOHN E. OTT, Chief Magistrate Judge.
Plaintiff Myra Nicole Evans brings this action, through counsel, pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Acting Commissioner of Social Security ("Commissioner") denying Plaintiff's applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSI"). (Doc.
Plaintiff protectively filed an application for DIB and SSI on January 19, 2012, alleging disability beginning June 28, 2010. (R. 20, 133, 135).
Plaintiff requested the Appeals Council review the ALJ's decision. She submitted additional argument on July 3, 2012. (R. 214-17). The Appeals Council declined Plaintiff's request for review on May 9, 2013. (R. 1). Therefore, the ALJ's decision represents the final decision of the Commissioner. (Id.) Plaintiff thereafter timely filed this action for judicial review under 42 U.S.C. § 405(g), asserting that the findings of the Commissioner are not based upon substantial evidence and that improper legal standards were applied. (Doc. 1).
In reviewing claims brought under the Social Security Act, this court's role is a narrow one: "Our review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner, and whether the correct legal standards were applied." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court gives deference to factual findings and reviews questions of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner], rather [it] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)) (internal quotations and other citation omitted). "The Commissioner's factual findings are conclusive if supported by substantial evidence." Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). "Substantial evidence" is "more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Winschel v. Comm'r of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and citations omitted). As just noted, conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936 F.2d at 1145. "No ... presumption of validity attaches to the [Commissioner's] conclusions of law." Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
At the time of the decision in this case, Plaintiff was forty years old with a high school education. (R. 164, 166). She has past relevant work as a cashier and salesperson. (Id. at 33). The ALJ determined she is able to perform her past work as a cashier. (Id.) She has not worked since June 28, 2010, the alleged onset date. (Id. at 22).
The ALJ found that Plaintiff had severe physical impairments of arthritis, back pain, generalized anxiety disorder, adjustment disorder, and major depressive disorder. (R. 22-23). He also found that Plaintiff had no impairment or combination of impairments that met or medically equaled any listing. (Id.) He further found that Plaintiff had the residual functional capacity ("RFC") to perform light work with some postural limitations that are not at issue in this matter, and that she (1) could not work around unprotected heights or dangerous or moving machinery, (2) could maintain attention and concentration up to two hours at a time if all customary breaks were given, (3) could understand, remember, and carry out simple work instructions, (4) should have only casual, non-confrontational contact with the public, co-workers, and supervisors, and (5) could handle changes in the workplace if they are introduced gradually and are well explained. (R. 24). As noted above, the ALJ determined that Plaintiff could return to her past relevant work as a cashier. (Id. at 33). He also concluded, based on vocational expert ("VE") testimony, that there was other work in significant numbers that Plaintiff could perform. (Id. at 33-34, 67-68). His final conclusion was that Plaintiff was not disabled. (Id. at 34).
Plaintiff argues the ALJ erred in that he rejected a treating therapist's opinion in favor of a vocationally inadequate assessment by a non-examining reviewing physician. (Doc. 11 at 5). As a part of this challenge, Plaintiff asserts that the ALJ erred in (1) giving dispositive weight to the opinion of a non-examining reviewing physician, (2) applying an erroneous hypothetical to the VE, (3) rejecting the opinion of a treating mental health therapist, and (4) failing to develop a record by obtaining acceptable medical input before deriving the RFC. The Commissioner responds that the ALJ's evaluation of the evidence and findings are supported by substantial evidence. (Doc. 12 at 4-21).
As noted above, the ALJ found that Plaintiff was capable of performing light work with certain limitations. (R. 24). Plaintiff's over-arching challenge to that determination is that this conclusion is wrong because her RFC is not based on medical opinion evidence. (Doc. 11 at 6-8).
An RFC is an "individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis ... [which] means 8 hours a day for 5 days a week, or an equivalent work schedule." SSR 96-8p, 1996 WL 374184 (July 2, 1996). It "involves determining the claimant's ability to do work in spite of his [or her] impairments in consideration of all relevant evidence." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the responsibility of the Commissioner to determine a claimant's RFC. See Robinson v. Astrue, 365 F. App'x 993, 999 (11th Cir. 2010) (stating that "the task of determining a claimant's residual functional capacity and ability to work is within the province of the ALJ, not of doctors").
It is also well-settled that Plaintiff bears the burden of proving that she is disabled. See 20 C.F.R. § 416.912(a) ("In general, you have to prove to us that you are blind or disabled. This means that you must furnish medical and other evidence that we can use to reach conclusions about your medical impairment(s)."); 20 C.F.R. § 416.912(c) ("Your responsibility. You must provide medical evidence showing that you have an impairment(s) and how severe it is during the time you say that you are disabled. You must provide evidence, without redaction, showing how your impairment(s) affects your functioning during the time you say that you are disabled, and any other information that we need to decide your claim."); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (stating that "the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim").
The starting point in this case should be what the evidence in the record shows. After summarizing the relevant evidence, the court will address Plaintiff's individual claims.
Plaintiff first presented with complaints of anxiety and depression on July 6, 2010, during an initial visit to the Oasis Women's Counseling Center. (R. 26, 289). She stated that she was not taking any medications and had been treated previously as an inpatient as a teenager. (Id.) She also stated that her depression was related to family relationship and work issues, including that she was arrested for negotiating forged checks and that she was suspended from work for stealing money. (R. 26, 290). Her intake evaluation noted that she appeared depressed; her appearance, speech and concentration were normal; and she was restless. (Id.) She reported no sleep disturbances, but had a decreased appetite. (Id.) She was diagnosed with an adjustment disorder with depressed mood. She was assessed with a Global Assessment of Functioning ("GAF") score of 55.
Plaintiff was seen on July 30, 2010, by Lisa Allison, a licensed counselor. (R. 27, 304). Plaintiff stated that she was staying busy and that was helping her stress level. She also talked with Allison about issues with her partner and her mother. (Id.)
Plaintiff's next two sessions were cancelled when she either did not show or was late. (R. 27, 302-03). During her September 15, 2010 session, she discussed her emotions regarding her father and the loss of her mother. She reported that she had no motivation to get out and do anything. As "homework," Allison told her to write a letter to her deceased mother. (R. 300). Plaintiff's September 29, 2010 appointment was cancelled. (R. 299).
Plaintiff presented to Dr. Danika Hickman on September 23, 2010, with complaints of anxiety and stress at work. Hickman prescribed Valium and Paxil for Plaintiff. (R. 27, 259).
Plaintiff returned to Allison on October 6, 2010. She complained about her father calling her and how that upset her.
Plaintiff's next three counseling sessions were canceled. (R. 355-57). She saw Allison on February 2, 2011. (R. 354). Plaintiff stated that she was depressed and lacked focus because she had been out of medication for several weeks. (Id.) She also stated that her "lack of significant income [was] becoming overwhelming and that she often feels like she is barely making it." (Id.) Allison's "WHO" scoring of Plaintiff indicated that she was improving, but not significantly. (Id.) Plaintiff's next visit, February 21, 2011, was unremarkable. (R. 353). Plaintiff's March visit was cancelled by the counseling service. (R. 352). Her final visit on June 15, 2011, with another counselor, indicated that she was more anxious than depressed, having to deal with family issues and an upcoming court date in her criminal case. (R. 394). Plaintiff also stated that she was more aware of depressive symptoms and that she tends to sleep too much when she is depressed. Plaintiff and the counselor discussed strategies to help her cope with her symptoms. (Id.)
Plaintiff went to see Dr. Hickman on August 4, 2011, for a routine follow-up appointment. Hickman noted that Plaintiff informed her that her daughter had run away, but had returned. Otherwise, the visit was unremarkable. Plaintiff's medications were refilled. (R. 396).
H. Randall Griffith, Ph.D., evaluated Plaintiff on March 9, 2011, at the request of the Social Security Administration. (R. 314). He found that (1) Plaintiff was oriented as to person, place and time, (2) her speech was fluent, (3) her affect was normal and reactive, (4) her concentration and memory were intact, (4) her judgment and insight appeared fair, and (5) she was thought to have average to high average intelligence. (R. 29, 315-16). He further found that she had "major depressive disorder with mild to moderate symptoms, generalized anxiety disorder and polysubstance abuse by history." (Id.) He assessed her as follows:
(R. 317).
Robert Estock, M.D., completed a Psychiatric Review Technique form concerning Plaintiff, finding that her impairments — major depressive disorder and general anxiety disorder — "would cause only mild limitations in her ability to maintain social functioning, concentration, persistence and pace." (R. 30, 318, 328). In the Mental Residual Functional Capacity Assessment form, he found that despite Plaintiff's impairments, (1) she would still be capable of understanding, remembering and carrying out simple instructions over an eight-hour workday if all customary breaks were provided; (2) she could concentrate for two-hour periods; (3) she could handle casual and non-confrontational contact with coworkers, supervisors and the general public; and (4) she could adapt to changes in the work place provided they were introduced slowly. (R. 342).
On April 1, 2011, Allison completed a Supplemental Questionnaire form provided by Plaintiff's counsel. Therein, she reported that Plaintiff would have "marked" difficulties with performing her activities of daily living, maintaining social functioning, responding to customary work pressures, and responding appropriately to co-workers and supervision in a work setting. (R. 372). She also stated that Plaintiff would have "moderate" difficulties with maintaining concentration, persistent and pace, which would result in frequent failures in completing tasks timely; with understanding, remembering and carrying out work instructions; with performing simple tasks in a work setting; and, with performing repetitive tasks in a work setting. (R. 373-74).
Plaintiff's first complaint is that the ALJ erred in giving dispositive weight to the opinion of Dr. Estock. (Doc. 11 at 10). She argues that it was error to "verbatim adopt[] his findings which were in any event non[-]specific, subjective and not vocationally interpretable." (Id.) In support of this argument, she states that the opinion of a reviewing physician is entitled to little weight. (Id. at 7 (citing Swindle v. Sullivan, 914 F.2d 222 (11th Cir. 1990)). The Commissioner retorts that "the regulations governing the evaluation of medical sources and state agency physicians [changed] after Swindle was decided." (Doc. 12 at 12 (citing 20 C.F.R. §§ 1527(c), (e); 416.927(c), (e); 65 Fed. Reg. 11866, 11867-68 (March 7, 2000), 56 Fed. Reg. 36932, 36936-3736953, 36969 (August 2, 1991)). The Commissioner goes on to state that "the Eleventh Circuit has held that `new regulations at variance with prior judicial precedent are upheld unless they exceed the [agency's] authority or are arbitrary or capricious.'" (Doc. 12 at 12 (citing Satellite Broad. & Communications Ass'n of Am. v. Oman, 17 F.3d 344, 348, n.8 (11th Cir. 1994) (quotations omitted); see Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (upholding an agency's interpretation of a statute over prior court interpretation)). Additionally, "[t]he Commissioner has also issued a ruling explaining that `[i]n appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.' SSR 96-6p, 1996 WL 374180, *3, (S.S.A.)." Mitchell v. Colvin, 2014 WL 1513274, *6 (N.D. Ala. 2014).
The one thing the ALJ must do is explain the weight given to his findings. Mitchell, 2014 WL 1513274, *6. The ALJ did exactly what was required in this instance. He stated he gave the findings of Estock substantial weight because
(R. 31). Absent an adequate challenge to the foregoing analysis and conclusion of the ALJ, Plaintiff's first assertion is without merit.
Plaintiff next argues that the hypothetical that was presented to the VE did not match the mental restrictions set forth in the RFC. (Doc. 11 at 6-7, 10). Specifically, she argues that Estock opined that Plaintiff's contact with coworkers, supervisors and the general public should be casual and non-confrontational. (Id. at 6 (citing R. 342)). However, the hypothetical posed to the VE provided that "[c]ontact with the general public, coworkers and supervisors should be casual. Supervision should be non-confrontational and supportive." (Id. at 7 (citing R. 67)). She concludes that the ALJ's failure to include the limitation that "contact with coworkers or the public should be non-confrontational" is error. (Id.) The Commissioner responds that "while the ALJ's hypothetical did not expressly include this limitation, the ALJ's decision indicates he did not base his finding that Plaintiff could return to her past relevant work on this series of questioning, but rather on his own comparison of Plaintiff's RFC with the VE's description of her past relevant work as a cashier as light, unskilled work." (Doc. 12 at 18 (citing R. 33, 67)).
"In order for a [VE's] testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments." Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). In Dial v. Comm'r of Soc. Sec., 403 F. App'x 420, 421 (11th Cir. 2010), the court fount that where "the ALJ failed to include all of Dial's employment limitations in the hypothetical questions posed to the VE, ... the VE's testimony did not constitute substantial evidence upon which the ALJ could rely." However, such an error may be harmless. See Dial, 403 F. App'x at 421 (stating that "we cannot say the ALJ's error was harmless" where the ALJ relied only on the faulty testimony of the VE).
To begin, it is clear that the hypothetical question posed to the VE herein was not factually correct.
To the extent the Commissioner argues that the ALJ's decision is premised on his own comparison of her RFC with the VE's description of her past relevant work as a cashier as light, unskilled work, the court is not convinced. In finding 5, the ALJ did find that Plaintiff could perform light work if, inter alia, she had "only casual, non-confrontational contact with the public, co-workers and supervisors." (R. 24). Thereafter, he wrote as follows:
(R. 33). The ALJ's RFC did include the relevant limitation, but it did not include a conclusion that she could perform her past work as a cashier as suggested by the Commissioner. That conclusion is derived from the testimony of Russell as quoted above. Thus, there is no support for the contention that there is substantial evidence that Plaintiff could perform her past relevant work as a cashier with the RFC limitations articulated by the ALJ.
The next question is whether this error is harmless. The Commissioner argues that it is because the ALJ made the alternate finding that Plaintiff could perform other work. (Doc. 12 at 19 (citing R. 33-34)). Specifically, she asserts as follows:
(Doc. 12 at 20 (citing R. 33-34)). The court agrees. Because of this alternate finding, it is evident that Plaintiff can perform other work. None of these jobs include requirements that are inconsistent with the social limitations the ALJ determined were applicable to the Plaintiff and that were articulated in the RFC. Plaintiff has not demonstrated otherwise. Accordingly, any error is harmless.
To the extent the Commissioner also argues that Plaintiff is not entitled to any relief because she has not demonstrated that she is disabled (doc. 12 at 21), the court agrees. As just determined, and found by the ALJ, Plaintiff is capable of making a successful adjustment to other work that exists in significant numbers in the national economy. (R.34). Therefore, she is "not disabled."
Plaintiff next argues the ALJ erred in rejecting the opinion of Plaintiff's counselor, Ms. Allison. (Doc. 11 at 8-9, 10). Plaintiff asserts that the ALJ improperly rejected Allison's opinion even though she was in the best position to assess Plaintiff's functioning. (Doc.11 at 8). The Commissioner responds that the decision shows the ALJ considered the relevant factors and properly accorded no weight to Allison's opinion. (Doc. 12 at 14 (citing R. 31)).
Regarding Allison, the ALJ gave "[g]reat weight ... to [her] general
(Id.) He also considered her opinions detailed in the completed April 2011 questionnaire, but gave them "no weight." (Id.) In the questionnaire, Allison circled responses on the form indicating that Plaintiff had "marked" limitations in her activities of daily living, social functioning, responding to customary work pressures, and responding appropriately to supervision or co-workers in a work setting. (R. 372-73). She also circled responses indicating that Plaintiff had "moderate" limitations in concentration, persistence or pace; in understanding, carrying out and remembering instructions in a work setting; and in performing simple or repetitive tasks in a work setting. (Id.) The ALJ gave "no weight" to these opinions because they were "completely inconsistent with her own findings during her counseling sessions, where she indicated that [Plaintiff] was doing well" and the notes demonstrating that Plaintiff had a GAF score of 55 in July 2010. (R. 31). He also stated that the clinical notes indicated Plaintiff was steadily improving. (Id.) By way of example, he noted:
(Id. (underlining in original)). In this instance, the ALJ did exactly what was required in evaluating and weighing opinion evidence. He considered the treating relationship, the length of the same, the examiner's specialization, the supportability of the opinion, and the consistency of the opinion with the record as a whole. See 20 C.F.R. §§ 404.1527, 416.927. Plaintiff is entitled to no relief on this challenge.
Plaintiff also asserts that the ALJ should have obtained an additional consultative examination or medical expert opinion for clarification of her situation (see 20 C.F.R. §§ 404.1519a, 416.919a).
The applicable considerations were recently articulated by United States District Judge Virginia Emerson Hopkins:
Rollins v. Colvin, 2014 WL 3689787, *4 (N.D. Ala. July 22, 2014).
The record in this case includes Griffith's consultative examination. The ALJ discussed, analyzed, evaluated, and relied upon the opinion of Dr. Griffith. (R. 29-30). He concluded, in relevant part, "that there was no evidence to suggest that [Plaintiff] would have any problems responding appropriately to supervisors or co-workers, and that her ability to tolerate work stress and change appeared fair." (Id. at 30). Plaintiff has failed to show why this record evidence is insufficient to support the determination of the ALJ. Additionally, Griffith's opinion is consistent with and supported by Dr. Estock's assessment that Plaintiff was "capable of understanding, remembering and carrying out simple instructions over an eight-hour workday if all customary breaks were provided" and "that she would be able to handle casual and non-confrontational contact with the public, co-workers and supervisors." (R. 30). Accordingly, the court finds that the record is sufficient to support the ALJ's decision. Plaintiff has not demonstrated a need for an additional consultative examination.
For the reasons set forth above, the undersigned finds that the decision of the Commissioner is due to be
