Raburn v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

MICHAEL RABURN, )

)

Plaintiff )

)

vs. ) Case No. 6:19-cv-0838-HNJ

)

SOCIAL SECURITYADMINISTRATION, )

COMMISSIONER, )

)

Defendant )

MEMORANDUM OPINION

Plaintiff Michael Raburn seeks judicial review pursuant to 42 U.S.C. § 405(g) of an

adverse, final decision of the Commissioner of the Social Security Administration

(“Commissioner”), regarding his claim for a period of disability and disability insurance

benefits. The undersigned carefully considered the record, and for the reasons expressed

herein, AFFIRMS the Commissioner’s decision.1

LAW AND STANDARD OF REVIEW

To qualify for benefits, the claimant must be disabled as defined by the Social

Security Act and the Regulations promulgated thereunder. The Regulations define

“disabled” as the “inability to do any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the

parties have voluntarily consented to have a United States Magistrate Judge conduct any and all

proceedings, including the entry of final judgment.

which has lasted or can be expected to last for a continuous period of not less than twelve

(12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to disability benefits,

a claimant must provide evidence of a “physical or mental impairment” which “results

from anatomical, physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

In determining whether a claimant suffers a disability, the Commissioner, through

an Administrative Law Judge (ALJ), works through a five-step sequential evaluation

process. See 20 C.F.R. § 404.1520(a)(4). The burden rests upon the claimant at the first

four steps of this five-step process; the Commissioner sustains the burden at step five, if

the evaluation proceeds that far. Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th

Cir. 2018).

In the first step, the claimant cannot be currently engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove the impairment is

“severe” in that it “significantly limits [the] physical or mental ability to do basic work

activities . . . .” Id. at § 404.1520(c).

At step three, the evaluator must conclude the claimant is disabled if the

impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part 404,

Subpart P, App. 1, §§ 1.00-114.02. Id. at § 404.1520(d). If a claimant’s impairment meets

the applicable criteria at this step, that claimant’s impairment would prevent any person

from performing substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1525.

2

That is, a claimant who satisfies steps one and two qualifies automatically for disability

benefits if the claimant suffers a listed impairment. See Williams v. Astrue, 416 F. App’x

861, 862 (11th Cir. 2011) (“If, at the third step, [the claimant] proves that [an] impairment

or combination of impairments meets or equals a listed impairment, [the claimant] is

automatically found disabled regardless of age, education, or work experience.”) (citing 20

C.F.R. § 416.920; Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)).

If the claimant’s impairment or combination of impairments does not meet or

medically equal a listed impairment, the evaluation proceeds to the fourth step, where the

claimant demonstrates an incapacity to meet the physical and mental demands of past

relevant work. 20 C.F.R. § 404.1520(e). At this step, the evaluator must determine

whether the claimant has the residual functional capacity (“RFC”) to perform the

requirements of past relevant work. See id. § 404.1520(a)(4)(iv). If the claimant’s

impairment or combination of impairments does not prevent performance of past relevant

work, the evaluator will determine the claimant is not disabled. See id.

If the claimant succeeds at the preceding step, the fifth step shifts the burden to the

Commissioner to provide evidence, considering the claimant’s RFC, age, education and

past work experience, that the claimant is capable of performing other work. 20 C.F.R.

§ 404.1520(g). If the claimant can perform other work, the evaluator will not find the

claimant disabled. See id. § 404.1520(a)(4)(v); see also 20 C.F.R. § 404.1520(g). If the

3

claimant cannot perform other work, the evaluator will find the claimant disabled. 20

C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g).

The court reviews the ALJ’s “‘decision with deference to the factual findings and

close scrutiny of the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec. Admin., 783

F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.

1991)). The court must determine whether substantial evidence supports the

Commissioner’s decision and whether the Commissioner applied the proper legal

standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Although

the court must “scrutinize the record as a whole . . . to determine if the decision reached is

reasonable . . . and supported by substantial evidence,” Bloodsworth v. Heckler, 703 F.2d 1233,

1239 (11th Cir. 1983) (citations omitted), the court “may not decide the facts anew, reweigh

the evidence, or substitute [its] judgment” for that of the ALJ. Winschel, 631 F.3d at 1178

(citations and internal quotation marks omitted). “Substantial evidence is more than a

scintilla and is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Id. (citations omitted). Nonetheless, substantial evidence exists

even if the evidence preponderates against the Commissioner’s decision. Moore v. Barnhart,

405 F.3d 1208, 1211 (11th Cir. 2005).

FACTUAL AND PROCEDURAL HISTORY

Mr. Raburn, ages 46 and 47 at the time of the two ALJ hearings, protectively filed

applications for a period of disability and disability insurance benefits on July 22, 2016,

4

alleging disability as of April 11, 2016. (Tr. 48, 83, 267). The Commissioner denied his

claims, and Raburn timely filed a request for hearing on September 22, 2016. (Tr. 128-32,

134-35). An Administrative Law Judge (“ALJ”) held two hearings, on May 25, 2017, and

November 7, 2017. (Tr. 41-105). The ALJ issued an opinion on June 27, 2018, denying

Raburn’s claim. (Tr. 7-27).

Applying the five-step sequential process, the ALJ found at step one that Raburn

did not engage in substantial gainful activity after April 11, 2016, his alleged onset date.

(Tr. 12). At step two, the ALJ found Raburn had the severe impairments of bipolar

depressive disorder and psoriatic arthritis. (Id.). At step three, the ALJ found that

Raburn’s impairments, or combination of impairments, did not meet or medically equal

any impairment for presumptive disability listed in 20 C.F.R. Part 404, Subpart P, Appendix

1. (Tr. 13).

Next, the ALJ found that Raburn exhibited the residual functional capacity (“RFC”)

to perform light work as defined in 20 CFR 404.1567(b) except: He can

occasionally (up to one-third of an eight-hour workday) lift and or carry,

including upward pulling of 20 pounds and frequently (up to two-thirds of

an eight-hour workday) lift and/or carry, including upward pulling of 10

pounds. He can sit for six hours in an eight-hour workday with all

customary work breaks. He can stand/and or walk for six hours in an eight-

hour workday with all customary work breaks. He has no limitations in the

ability to push and/or pull, including operation of hand or foot controls, up

to the lift and carry restriction of twenty and ten pounds. He has no

limitation in the upper or lower extremity except for the right upper

extremity is limited to frequently for pushing/pulling but is limited in the

right upper extremity to no overhead reaching and frequent pushing and

pulling [sic]. He can occasionally climb ramps and stairs, but no work on

ladders, ropes, or scaffolds. He cannot work around dangerous moving

5

machinery. He cannot [perform] work that involves commercial driving.

He can occasionally balance, stoop, kneel, and crouch, but no crawling. He

can frequently handle and finger bilaterally. He cannot work in

concentrated exposure to extreme cold. He cannot have a vibratory type of

job with vibrations involved. He can remember and perform work at simple

tasks for two-hour periods across an eight-hour workday, five-day

workweek, with all customary breaks. He can have occasional contact with

supervisors, co-workers, and the general public. Any changes in the work

environment should be infrequent.

(Tr. 15-16).

At step four, the ALJ determined Raburn did not retain the ability to perform his

past relevant work as a Fish and Game Warden. (Tr. 25). At step five, the ALJ

determined Raburn could perform a significant number of other jobs in the national

economy considering his age, education, work experience, and RFC. (Tr. 26).

Accordingly, the ALJ determined that Raburn has not suffered a disability, as defined by

the Social Security Act, since April 11, 2016. (Tr. 27).

Raburn timely requested review of the ALJ’s decision. (Tr. 260-63). On April 16,

2019, the Appeals Council denied review, which deems the ALJ’s decision as the

Commissioner’s final decision. (Tr. 1-3). On May 31, 2019, Raburn filed his complaint

with the court seeking review of the ALJ’s decision. (Doc. 1).

ANALYSIS

In this appeal, Raburn argues that the ALJ improperly considered the opinions of

his treating physician and improperly evaluated his complaints of subjective symptoms.

6

For the reasons discussed below, the undersigned concludes neither of the contentions

warrants reversal.

I. The ALJ Properly Considered the Treating Physician’s Opinion

Raburn argues the ALJ improperly considered the opinions of Dr. Terry Bentley,

his treating psychiatrist. As discussed below, the ALJ properly relied upon the remainder

of the record, including Dr. Bentley’s own treatment notes, the records of other medical

providers, and the testimony of medical expert Dr. Nathan Strahl, to reject Dr. Bentley’s

assessments.

The ALJ must give “substantial or considerable weight” to the opinion of a treating

physician “unless ‘good cause’ is shown.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir.

2003) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). Good cause exists

when: (1) the evidence did not bolster the treating physician’s opinion; (2) the evidence

supported a contrary finding; or (3) a treating physician’s opinion was conclusory or

inconsistent with the doctor’s own medical records. Id. An ALJ must clearly articulate the

reasons for affording less weight to a treating physician’s opinions. Id. An ALJ does not

commit reversible error when (1) he articulates specific reasons for declining to give the

treating physician’s opinion controlling weight, and (2) substantial evidence supports these

findings. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (per curiam).

To determine the weight given to any medical opinion, an ALJ must consider several

factors, including the examining relationship, the treatment relationship, the evidence

7

presented to support the opinion, the consistency of the opinion with other evidence, and

the specialization of the medical professional. 20 C.F.R. §404.1527(c); see Davis v. Comm’r

of Soc. Sec., 449 F. App’x 828, 832 (11th Cir. 2011) (stating that the ALJ will give more weight

to the medical opinions of a source who has examined the plaintiff and opinions that are

supported by medical signs and findings and are consistent with the overall “record as a

whole”). The ALJ may reject the opinion of any physician when the evidence supports a

contrary conclusion. Hearn v. Comm’r of Soc. Sec., 619 F. App’x 892, 895 (11th Cir. 2015)

(citing Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983)).

Dr. Bentley completed a Medical Source Opinion Form (Mental) on January 23,

2017. He checked boxes indicating Raburn experienced moderate limitations of his

abilities to use judgment in simple, one- or two-step work related decisions; understand,

remember, and carry out simple, one- or two-step instructions; and maintain activities of

daily living. Raburn experienced marked limitations of his abilities to respond

appropriately to supervisors, co-workers, customers, and other members of the general

public; deal with changes in a routine work setting; understand, remember, and carry out

detailed or complex instructions; respond to customary work pressures; maintain attention,

concentration, or pace for periods of at least two hours; and maintain social functioning.

Raburn retained the ability to manage benefits in his own best interest. Ceasing alcohol

consumption would not affect the extent of Raburn’s limitations. (Tr. 755-56).

8

On January 23, 2017, Dr. Bentley also provided a sworn statement, which took the

form of his sworn verbal responses to questions from Raburn’s attorney. Dr. Bentley

testified he had treated Raburn on seven occasions since May 18, 2016, for bipolar

depressive disorder and anxiety. Raburn reported erratic sleep, reduced need for sleep,

racing thoughts that prevented him from focusing, excessive spending, an increase in his

symptoms as the result of a pending divorce, and difficulties performing his work duties

and interacting with coworkers. Dr. Bentley treated him with mood stabilizers and other

medications for bipolar disorder, which helped his mood, energy level, and manic

symptoms. However, Dr. Bentley noted that Raburn’s symptoms also may have

decreased because he was not working and therefore experienced less stress. (Tr. 762-

769). Dr. Bentley opined that, despite his treatment, Raburn experienced “significant

mental illness.” (Tr. 769).

Dr. Bentley clarified that, when he or a staff member notes on a chart that a patient

is “doing good or fairly good,”

those [notations] are relative for us, and I will say that sometimes the person

that’s marking the mental status, in terms of how his mood is doing, is my

nurse, and often what they tell the nurse and what they then tell me when I

come in is not the same thing. But he, alone, with countless other patients,

have said they would be doing good, but they’ve done well because they’ve

removed themselves from pretty much all social interactions, be that work,

interacting with friends, whoever. With their anxiety and their depression,

they’re staying at home predominantly. They may have an occasional trip

or something and that will give them something to look forward to, which

may help their mood, but for the most part, they’re isolating themselves, and

I believe that’s what’s happening with [Raburn].

9

(Tr. 769-70).

Dr. Bentley reaffirmed, but did not explicate, the summary opinions he offered on

the Medical Source Opinion Form. He did not believe Raburn malingered, and he offered

an uncertain prognosis: “It’s fair, given the chronicity of the illness and the nature of

bipolar disorder, you know, it may respond favorably to treatment for some time, but

there’s a likelihood it won’t.” (Tr. 771).

On June 1, 2017, the ALJ sent Dr. Bentley a letter stating:

At request of Mr. Raburn’s attorney, you completed a “Mental

Residual Functional Capacity Questionnaire”[2] signed and dated on January

23, 2017. (Copy attached). This form consisted of prepared questions with

several responses for you to check from the definitions of the terms provided

on this form. This form also requested that you provide medical or clinical

findings (i.e. mental status examinations, behavior, intelligence test,

symptoms, etc.) which support your assessments or responses. However,

that portion of the form requesting “clinical findings” are [sic] all blank. A

review of your Deposition by Ms. Allison Jones on the same date, notes she

asked you if your responses were based upon your knowledge, information,

and belief, taking into account your experience, training, and your treatment

of Mr. Raburn. You responded, “They do.” However, again, no clinical

findings are noted on either this form or your response.

Enclosed are Interrogatories that we would appreciate your

responding to within the next ten (10) days regarding the form you

completed on January 23, 2017. If there are additional records, please attach

those records to your responses to these questions.

2 As stated above, the form actually bore the title “Medical Source Opinion Form (Mental).” (Tr.

755).

10

(Tr. 443). The attached interrogatories requested explanations for each of the “marked”

limitations Dr. Bentley identified on the Medical Source Opinion Form, along with any

objective testing, subjective assessments, and medical records. (Tr. 444-45).

On June 14, 2017, Dr. Bentley responded with a letter stating:

I received your letter regarding the “Mental Residual Functional

Capacity Questionnaire.” I apologize for taking a bit to reply but my

practice is rather large and I haven’t had an opportunity until now.

In the quarter century I have been practicing, I have never done more

than check the appropriate responses and have never given examples to the

side and frankly had never noticed it. All the information on the patient’s

chart is for my record keeping. I generally do not recommend a patient file

for disability unless they have been having trouble functioning in the

workplace. I do not, however, usually know the specifics of their job.

In the matter of Michael Lynn Raburn, I have treated him for the last

year for Bipolar Affective Disorder, also known as manic depression and an

anxiety disorder. I am well acquainted with his care. Details are in these

records. I do not have the time to go back through and reevaluate what is

there.

According to Social Security regulations he has both Bipolar Disorder

and Generalized Anxiety Disorder. He has had impairment in performing

both at the workplace and at home. He was at risk of losing his job and had

to medically retire. He has had considerable social dysfunction and has been

estranged from his wife and is now divorced. He socially isolates. He had

been unable to interact appropriately with his supervisor at work. He was a

game warden and therefore was alone much of the time. He has chronic

severe mood and anxiety disorders that have responded to some degree to

treatment but are persistent and have proven to deteriorate over time.

Psychiatric evaluation and treatment involve assessments over time.

He has been seen by me on 10 separate occasions and documentation is in

the chart that was sent to the state regarding his functioning. If that is not

in the records you have available, I will make sure to get them to you. At

11

this point in time, I do not anticipate him being able to function in any job

setting.

(Tr. 450).

The ALJ explained in the second administrative hearing, which occurred on

November 7, 2017, that he sent interrogatories to Dr. Bentley because he could not read

the doctor’s office notes. Because Dr. Bentley declined to respond to the interrogatories,

the ALJ engaged Dr. Nathan Strahl, a board-certified psychiatrist, to testify as a medical

expert during the second hearing. (Tr. 44-45).

Dr. Strahl reviewed Raburn’s psychiatric records and listened to Raburn’s hearing

testimony. He noted Raburn had received 12 to 16 months of treatment for bipolar

disorder, including a period of time when he experienced additional stress as a result of

relationship problems. (Tr. 65, 70). Dr. Strahl deduced that Raburn experienced a

“moderate level of clinical depression, bipolar disorder, whatever we want to call it,

uncontrolled. That’s not in disabling range, but isn’t insignificant either.” (Tr. 66). Dr.

Strahl acknowledged his review did not rise to the level of a clinical evaluation, but he

believed his observations of Raburn comported with the medical records and Raburn’s

positive response to medication. Dr. Strahl also opined Raburn suffered borderline

alcohol dependence until he quit drinking altogether in May 2017. (Tr. 66-67).

Dr. Strahl concluded the restrictions Dr. Bentley imposed “seemed to exceed what

the record itself shows.” (Tr. 67). Specifically, Dr. Strahl opined Raburn experienced

mild impairment in the ability to learn new tasks and deal with issues because the records

12

contained no indication of a cognitive or mental acuity impairment. He experienced mild

to moderate impairment in the ability to interact with others because his depression

impeded his sociability. Raburn experienced mild to moderate impairment in maintaining

concentration, persistence, and pace, and mild impairment in adapting and managing

himself. Dr. Strahl testified that, “once [Raburn] gets started with things, he could pick

up and do it okay,” and he opined that boredom was causing Raburn some emotional

problems. (Tr. 68-69). Raburn could do both simple and detailed work, but not “work

that is consistent with executive functioning or complex.” (Tr. 69). He could work

satisfactorily with supervisors and coworkers, and he experienced 50% capacity to work

with the public. Under those circumstances, Raburn could respond to workplace changes.

(Id.). Dr. Strahl acknowledged the importance of a longitudinal relationship with the

patient when a doctor offers an opinion about the patient’s functional abilities. (Tr. 71-

72). He also suggested the possibility of engaging a consultative examiner because Dr.

Bentley’s office records were limited and sometimes illegible. (Tr. 67, 73).

The ALJ did not heed Dr. Strahl’s suggestion to engage a consultative examiner.

The ALJ afforded no significant weight to Dr. Bentley’s statement that Raburn could not

function in any job setting because that statement constituted an administrative finding

instead of a medical opinion. Raburn did not raise a specific challenge to that finding,

which finds support in applicable law:

According to 20 C.F.R. § 404.1527(d), the determination of whether an

individual is disabled is reserved to the Commissioner, and no special

13

significance will be given to an opinion on issues reserved to the

Commissioner. Section (d)(2) provides that although the Commissioner

will consider opinions from medical sources on issues such as the RFC

and the application of vocational factors, the final responsibility for

deciding those issues is reserved to the Commissioner.

Pate v. Comm’r, Soc. Sec. Admin., 678 F. App’x 833, 834 (11th Cir. 2017). That is, “the

task of determining a claimant’s . . . ability to work is within the province of the ALJ,

not of doctors.” Robinson v. Astrue, 365 F. App’x 993, 999 (11th Cir. 2010).

The ALJ also afforded no weight to the opinions Dr. Bentley stated on the Medical

Source Opinion Form because those opinions were “inconsistent with what the other

medical providers observed.” (Tr. 21). He further stated:

The doctor’s treatment notes do not reflect that he ever talked to

[Raburn] about his ability to work. There was no testing and it was prepared

based upon the subjective statements of [Raburn] where Dr. Bentley

accepted without question [Raburn’s] statements. However, his treatment

notes, which lack even cursory objective tests, do not support limitations to

the subjective statements of [Raburn]. This check form assessment is not a

medical opinion, but instead an opinion on residual functional capacity as

stated by [Raburn]’s attorney, an issue reserved to the Commissioner. His

opinion differed from that of the other examining physicians and of a state

agency medical doctor who is familiar with the rules and regulations as well

as the definitions of limitations. He failed to provide medical findings that

supported his assessment. Dr. Bentley responded to this check form at the

request of [Raburn]’s attorney rather than in the course of treatment, and this

form is not part of his medical records. Cumulatively, these reasons explain

why the undersigned gives little weight to Dr. Bentley’s “opinions.” These

opinions offer little more than a conclusory and speculative responses are

unsupported [sic] by the medical evidence. As to missing days from work

or the need for excessive breaks if [Raburn] were to return to work is pure

speculation of a possible future limitation. [sic]

Moreover, Dr. Bentley’s own observations of [Raburn] contradicts

[sic] these extreme findings. Dr. Bentley consistently noted that [Raburn]

14

was dressed “neat,” was “cooperative,” his speech was “clear,” his thought

process was “coherent,” his judgment and insight were “good,” [and] he was

oriented “x4.” . . . . Dr. Bentley also observed that [Raburn] did not have

any delusions, hallucinations, paranoia, grandiose thoughts, suicidal

ideations, and homicidal ideations. . . . Therefore, the undersigned gives

little weight to the opinions of Dr. Bentley and no weight to the check form

residual functional capacity.

(Tr. 23).

Contrastingly, the ALJ characterized Dr. Strahl’s medical expert testimony as

consistent with the medical evidence, and he “considered [Dr. Strahl’s] opinion with the

other records and findings to determine [Raburn’s] residual functional capacity.” (Tr. 24).

Even though the ALJ did not specifically state the weight he afforded to Dr. Strahl’s

testimony, the ALJ’s comment that he considered Dr. Strahl’s testimony to construct

Raburn’s residual functional capacity indicates he afforded it significant weight.

The ALJ satisfied his obligation to articulate detailed reasons for rejecting Dr.

Bentley’s opinions and affording more weight to Dr. Strahl’s testimony. He permissibly

relied on the conclusory nature of Dr. Bentley’s opinions, the lack of support in Dr.

Bentley’s own medical records, and the inconsistency between Dr. Bentley’s opinions and

those of other medical providers. See Phillips, 357 F.3d at 1240 (citing Lewis, 125 F.3d at

1440).

The ALJ also properly assessed the “check-box” nature of Dr. Bentley’s assessment.

Social Security regulations state that “[t]he better an explanation a source provides for a

medical opinion, the more weight we will give that medical opinion.” See 20 C.F.R. §

15

404.1527(c)(3). Even so, the Eleventh Circuit recently clarified that an ALJ should not

discount a physician’s opinion simply because he checked boxes on a pre-prepared form.

Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1262 (11th Cir. 2019). Rather, an ALJ should

interpret treating physicians’ “answers to the questionnaires in light of their treatment

notes.” Id. Here, the ALJ compared Dr. Bentley’s form responses to his treatment notes,

and he attempted to elicit further explanation for Dr. Bentley’s opinions by submitting

interrogatories. When Dr. Bentley declined to directly respond to those interrogatories,

the ALJ evaluated the letter Dr. Bentley drafted and engaged Dr. Strahl to testify as a

medical expert during the administrative hearing.

Substantial record evidence also supports the ALJ’s decisions. On an intake form

dated May 18, 2016, Dr. Bentley described Raburn’s appearance, psychomotor functions,

and affect as “appropriate.” Raburn demonstrated moderate anxiety, depression, and

guilt; full orientation as to time, place, and person; adequate insight; logical thoughts;

satisfactory attention span; undisturbed memory; concrete speech; and no delusions,

hallucinations, homicidal ideations, suicidal ideations, obsessions, or compulsions. (Tr.

688). As the ALJ stated, during 14 office visits from May 31, 2016 to October 11, 2017,

Dr. Bentley consistently noted neat dress, cooperative demeanor, good eye contact, clear

speech, euthymic affect, coherent thought processes, good insight and judgment, no

memory deficits, and full orientation, with the following exceptions: on January 24, 2017,

Raburn demonstrated dysphoric affect; on June 29, July 20, and October 11, 2017, he

16

demonstrated constricted affect; and on August 21 and September 21, 2017, he

demonstrated flat affect. (Tr. 690-94, 754, 887-89, 944-48).

Dr. Bentley’s descriptions of Raburn’s mood varied. On May 31, 2016, Dr. Bentley

noted “depressed” mood. (Tr. 690). On June 14, 2016, he noted “swings” in mood.

(Tr. 691). On June 28, 2016, he noted “good” mood. (Tr. 692). On July 28, 2016, he

noted “pretty good” mood. (Tr. 693). On October 24, 2016, he noted “good” mood at

times, and “fair” mood at other times. (Tr. 754). On January 24, 2017, he noted

“depressed” mood. (Tr. 887). On February 7, 2017, and April 6, 2017, he noted “good”

mood. (Tr. 888-89). On June 29, 2017, he noted “not good” mood. (Tr. 944). On July

20, 2017, he noted “a little better” mood. (Tr. 945). On August 21, 2017, he noted “fair”

mood. (Tr. 946). On August 25, 2017, he noted “ok” and “good” mood. (Tr. 694).

On September 21, 2017, he noted “depressed” mood. (Tr. 947). On October 11, 2017,

he noted “better” mood. (Tr. 948). As the ALJ observed, Dr. Bentley’s records do not

contain any objective test results.

Records from other medical professionals also support the ALJ’s findings. During

February 15 and March 21, 2016, visits to the Heart Health Center, Raburn reported no

psychological problems, and Dr. Ghassan Abusaid noted normal affect upon examination.

(Tr. 667-74). On December 26, 2016, Raburn reported no depression or anxiety to Dr.

Brent Boyett, his primary care provider, and the doctor noted Raburn displayed pleasant

mood and affect. (Tr. 745).

17

On January 9, 2017, Dr. Boyett conducted a depression screening. Raburn denied

losing interest or pleasure in doing things, or feeling down, depressed, or helpless. Dr.

Boyett assessed a 15% chance of Raburn experiencing depression. Dr. Boyett described

Raburn’s anxiety as stable. (Tr. 746). On May 8, 2017, Dr. Boyett noted Raburn lost

interest in activities and felt depressed, down, and hopeless several days during the last two

weeks. However, Dr. Boyett noted Raburn’s medication controlled his depression. (Tr.

891).

During an admission to North Mississippi Medical Center – Tupelo on January 10,

2017, Raburn did not report symptoms of anxiety or depression. (Tr. 841). During an

admission to North Mississippi Medical Center – Hamilton on January 26, 2017, the

physical examination reflected normal psychiatric findings, and Raburn displayed full

orientation with normal affect. (Tr. 780, 789, 799, 806).

The opinions of the state agency psychologist also support the ALJ’s decision.

[T]he opinions of State agency medical and psychological

consultants and other program physicians and psychologists can be given

weight only insofar as they are supported by evidence in the case record,

considering such factors as the supportability of the opinion in the

evidence including any evidence received at the administrative law judge

and Appeals Council levels that was not before the State agency, the

consistency of the opinion with the record as a whole, including other

medical opinions, and any explanation for the opinion provided by the

State agency medical or psychological consultant or other program

physician or psychologist.

SSR 96-6p, 1996 WL 374180, *2 (July 2, 1996). As stated in Duncan v. Berryhill, No.

3:15-cv-02164-LSC, 2017 WL 3969578 (N.D. Ala. Sept. 8, 2017):

18

[M]edical consultants or medical experts are highly qualified medical

specialists who are experts in the Social Security disability programs, and

their opinions may be entitled to great weight if the evidence supports

their opinions. See 20 C.F.R. §[§ 404.1527(e), 404.1513a]; SSR 96-6p.

Indeed, a medical expert’s opinion may be entitled to greater weight than

the opinions of treating or examining sources in appropriate

circumstances, such as when the medical expert has reviewed the

complete case record. See SSR 96-6p. In short, an ALJ “may reject the

opinion of any physician when the evidence supports a contrary

conclusion.” McCloud v. Barnhart, 166 Fed. Appx. 410, 418-19 (11th Cir.

2006) (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983)).

Id. at *4.

Kirstin J. Bailey, Ph.D., reviewed Raburn’s records for the stage agency on

September 8, 2016. She concluded Raburn suffered no understanding and memory

limitations, and he could understand and remember both simple and detailed instructions.

He experienced no significant limitation of his abilities to carry out short and simple

instructions, perform activities within a schedule, maintain regular attendance, be punctual

within customary tolerances, sustain an ordinary routine without special supervision, work

in coordination with or in proximity to others without being distracted by them, and make

simple work-related decisions. He experienced moderate limitation of his abilities to carry

out detailed instructions, maintain attention and concentration for extended periods,

complete a normal workday and workweek without interruptions from psychologically

based symptoms, and perform at a consistent pace without an unreasonable number and

length of rest periods. (Tr. 119-20).

Dr. Bailey declared further:

19

[Raburn] should be able to concentrate and attend to familiar tasks

for extended periods and will need all customary rests and breaks. [Raburn]

should be able to complete an ordinary routine without additional

supervision. [Raburn] could tolerate ordinary work pressures. [Raburn]

would benefit from a familiar work routine but should avoid excessive work

loads, quick decision making, and multiple demands.

(Tr. 120). Raburn did not suffer any social interaction limitations. He experienced

moderate limitation of his abilities to respond appropriately to changes in the work setting,

set realistic goals, and make plans independently of others. He experienced no significant

limitation of his abilities to travel in unfamiliar places, use public transportation, and be

aware of normal hazards and take appropriate precautions. He could adapt to infrequent,

well-explained changes, but he would need help with long-term planning and goal setting.

(Tr. 120-21).

The ALJ afforded Dr. Bailey’s findings only “some” weight, because some of her

assessments lacked sufficient specificity to support a residual functional capacity finding.

In fact, the ALJ ultimately assessed an even more restrictive residual functional capacity

than Dr. Bailey recommended. For example, while Dr. Bailey stated Raburn experienced

no significant social limitations, the ALJ found Raburn could tolerate only occasional

contact with co-workers, supervisors, and the general public. (Tr. 19-20). Thus, even

though the ALJ did not fully credit Dr. Bailey’s assessment, that assessment still provides

support for the ALJ’s residual functional capacity finding.

Raburn asserts the ALJ should have discredited Dr. Bailey’s assessment as

incomplete because Dr. Bailey did not have the benefit of any medical records dated after

20

September 2016. However, that statement holds true for any opinion from a state agency

physician, as such physicians always assess claimants during the earliest stages of the

administrative process. Despite that fact, relevant authority allows the ALJ to give weight

to state agency physician opinions when those opinions find support in the remainder of

the medical evidence, including evidence gathered after the state agency physician’s review.

See SSR 96-6p, 1996 WL 374180, *2; Duncan, 2017 WL 3969578, at *4. The medical

record, as explicated above, supported the ALJ’s decisions to give some weight to Dr.

Bailey’s opinions, and to impose even more restrictions than Dr. Bailey imposed.

Moreover, Dr. Strahl did have the benefit of more records when he assessed

Raburn’s condition during the administrative hearing, so the ALJ did not rely solely upon

Dr. Bailey’s earlier observations to reject Dr. Bentley’s opinions. The medical record,

including Dr. Bentley’s own records and Raburn’s reports to other treating physicians,

supported the ALJ’s decision to reject Dr. Bentley’s opinion in favor of Dr. Strahl’s.

Despite Raburn’s suggestion, Dr. Strahl’s failure to conduct a clinical examination does

not, by itself, undermine Dr. Strahl’s opinion. The ALJ followed applicable law when he

credited Dr. Strahl’s opinion after determining it found support in the medical record as a

whole.3

As Dr. Strahl suggested, a consultative examination would have provided additional

insight, but even without such an examination, the record suffices to support the ALJ’s

3 Even though the ALJ did not specifically state the weight he afforded Dr. Strahl’s opinions, he clearly

gave them more weight than he did Dr. Bentley’s opinions.

21

decision. Dr. Bentley’s handwriting, though not always entirely clear, did not present a

complete barrier to understanding his office notes, and the other medical records provided

additional insight into Raburn’s condition. See Castle v. Colvin, 557 F. App’x 849, 853 (11th

Cir. 2014) (quoting Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007))

(The ALJ “’has a duty to develop the record where appropriate but is not required to order

a consultative examination as long as the record contains sufficient evidence for the [ALJ]

to make an informed decision.’”); see also 20 C.F.R. § 404.1519a(b) (“We may purchase a

consultative examination to try to resolve an inconsistency in the evidence, or when the

evidence as a whole is insufficient to allow us to make a determination or decision on your

claim.”).

Finally, the ALJ permissibly relied on Raburn’s daily activities to support his

decision to reject Dr. Bentley’s opinions. See 20 C.F.R. § 404.1529(c)(3)(i) (stating that an

ALJ may consider a claimant’s daily activities in evaluating the limiting effects of his

impairments). The ALJ characterized Raburn’s daily activities as

inconsistent with Dr. Bentley stating patients remove themselves from pretty

much all social interactions be at work or friends [sic] and staying home

predominantly, isolating themselves and he believe [sic] that was a condition

of [Raburn]. It also contradicts Dr. Bentley’s statement that [Raburn] has

racing thoughts, which he felt means very difficult to stay on task, stay

oriented, and do tasks and not being able to be productive, as he cannot stay,

[sic] focused. “He was experiencing some of that.” However, [Raburn]’s

father notes [Raburn] drives, goes to the Post Office, watches TV, reads, uses

the computer, handles money, shops at stores for food and clothing, and can

go out alone. Moreover, as it relates to driving, it is noted that driving an

automobile for any distance requires sufficient concentration and mental

skills to follow directions, read traffic signs, avoid routine road hazards, as

22

well as appreciate and evaluate on-coming and same-directional traffic. It

also requires significant physical abilities such as sitting in one place for a

period of time, turning the steering wheel, and maneuvering one’s body in

positions as to see in all directions and angles, while simultaneously operating

foot controls. Performance of activities such as these tends to erode any

opinion that the [Raburn] is total disabling lack of concentration [sic].

(Tr. 24).

While Raburn’s abilities to shop, drive, run errands, watch television, read, use the

computer, and handle money may not directly equate to an ability to perform full-time

gainful employment, they did constitute permissible factors for the ALJ to consider in

determining the weight to afford Dr. Bentley’s opinions. See Harrison v. Comm’r of Soc. Sec.,

569 F. App’x 874, 877 (11th Cir. 2014) (citing Phillips, 357 F.3d at 1241) (“[A]n ALJ does

not need to give a treating physician’s opinion considerable weight if the claimant’s own

testimony regarding her daily activities contradicts that opinion.”).

In summary, the ALJ properly considered Dr. Bentley’s opinions.

II. The ALJ Properly Considered Raburn’s Subjective Complaints and

Resulting Limitations

Raburn also argues that the ALJ improperly considered his subjective complaints

and resulting limitations. The court concludes the ALJ properly applied the Eleventh

Circuit’s standard for evaluating subjective limitations, and substantial evidence supported

his decision.

“To establish disability based on testimony of pain and other

symptoms, the claimant must satisfy two parts of a three-part test by

showing: ‘(1) evidence of an underlying medical condition; and (2) either (a)

objective medical evidence confirming the severity of the alleged pain; or (b)

23

that the objectively determined medical condition can reasonably be

expected to give rise to the claimed pain.’”

Zuba-Ingram v. Comm’r of Soc. Sec., 600 F. App’x 650, 656 (11th Cir. 2015) (quoting Wilson v.

Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam)). A claimant’s testimony coupled

with evidence that meets this standard “is itself sufficient to support a finding of disability.”

Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation omitted).

Social Security Ruling (“SSR”) 16-3p, effective March 28, 2016, eliminated the use

of the term “credibility” as it relates to assessing the claimant’s complaints of pain and

clarified that the ALJ “will consider any personal observations of the individual in terms

of how consistent those observations are with the individual’s statements about his or her

symptoms as well as with all of the evidence in the file.” SSR 16-3p, 2016 WL 1119029, *7

(Mar. 16, 2016). An ALJ rendering findings regarding a claimant’s subjective symptoms

may consider a variety of factors, including: the claimant’s daily activities; symptom

location, duration, frequency, and intensity; precipitating and aggravating factors; type,

dosage, effectiveness, and side effects of medication taken to alleviate the symptoms; and

other factors concerning functional limitations and restrictions due to symptoms. See 20

C.F.R. §§ 404.1529(c)(3), (4).

SSR 16-3p further explains that the ALJ’s decision “must contain specific reasons

for the weight given to the individual’s symptoms, be consistent with and supported by the

evidence, and be clearly articulated so the individual and any subsequent review can assess

how the adjudicator evaluated the individual’s symptoms.” SSR 16-3p, at *9; see also Wilson,

24

284 F.3d at 1225 (if an ALJ discredits a claimant’s subjective testimony, the ALJ “must

articulate explicit and adequate reasons for doing so.”).

Raburn testified during the first administrative hearing that he left his previous job

because he could not handle the stress of interacting with others. He did not think he

could do a job that required little interaction with others because any job requirements

would cause him too much stress. (Tr. 84-85). His medications helped his mental

symptoms, but he was “not to the point where [he] used to be.” (Tr. 86). He rarely gets

out of bed and dresses himself because he does not see the point in doing so. His

symptoms did not improve after he quit working. (Tr. 91).

He testified during the second hearing that general stress and anxiety caused him to

quit his previous job. He did not think he could do any other jobs because he could not

maintain any job responsibilities. He testified he had experienced problems with his

supervisors, but he could not provide any examples of those problems. He had panic

attacks at work approximately once a month. On a bad day, he does not get out of bed,

brush his teeth, eat, or do anything else. Those depressive episodes last a couple of days,

and they occur ten to 15 times a month, even with medication.

Raburn also described manic episodes occurring approximately five times a month,

and lasting one to two days, when he does not sleep, goes on spending sprees, and

experiences racing thoughts. He cannot predict when he will experience a depressive or

manic episode. He drives approximately ten miles a week, sometimes watches television,

25

uses the internet an hour a day to read the news and talk to a friend, and shops for frozen

food items at the grocery store. He recently suffered a panic attack in Wal-Mart, and he

experiences similar episodes approximately once a month. (Tr. 49-60).

The ALJ accurately summarized Raburn’s hearing testimony. (Tr. 16-17). He

appropriately applied the Eleventh Circuit’s pain standard, finding Raburn suffered

medically determinable impairments that could reasonably cause his alleged symptoms, yet

determining his statements regarding the intensity, persistence, and limiting effects of those

impairments did not comport with the medical and other evidence. (Tr. 17).

The ALJ also articulated sufficient reasons to support his finding. He accounted

for Raburn’s psoriatic arthritis by imposing limitations on his abilities to reach, push, pull,

climb, balance, stoop, kneel, crouch, crawl, handle, finger, work around dangerous

machinery, drive commercially, and endure exposure to extreme cold and vibrations. He

accounted for Raburn’s psychological symptoms by limiting him to remembering and

performing simple tasks for two-hour periods, with customary breaks; occasional contact

with supervisors, co-workers, and the general public; and infrequent changes in the work

environment.

To the extent that [Raburn] has alleged greater limitations than

assessed in this decision, such allegations are inconsistent with the relatively

stable medical findings and largely conservative treatment. The undersigned

notes that [Raburn] does have psoriatic arthritis, but this impairment is under

control with the Stelara injections. Moreover, the undersigned notes that

[Raburn] has sought treatment for his depression, but he has also reported

that it is under control with medication. Finally, the undersigned observes

that [Raburn’s] own reported activities of daily living suggest functional

26

abilities beyond those that he has alleged. In his function Report, [Raburn]

stated that he is able to prepare sandwiches and frozen meals for himself on

a daily basis, he is able to do laundry and iron, and he is able to go shopping,

to the post office, and to Walmart by himself. Most notably, despite his

alleged debilitating depression, [Raburn] was able to work until the third

quarter of 2016, which suggests his symptoms are not as severe as has been

alleged, as the evidence does not support a worsening of [Raburn’s]

symptoms around the time he[] stopped working. Additionally, treatment

notes from when he was taking medication report that it controlled his

symptoms . . . . Such wide-ranging activities are clearly inconsistent with

the degree of symptoms and limitations that he has alleged.

(Tr. 18).

The record does not support the ALJ’s finding about Raburn’s work during the

third quarter of 2016. Raburn earned $13,034.00 during that quarter from the Alabama

Department of Conservation (Tr. 294), but he began receiving disability retirement from

the State effective August 1, 2016. (Tr. 298). His retirement payments would explain any

“third quarter” earnings during the months of August and September 2016. The record

does not contain a clear explanation as to why Raburn received earnings from the State

during July 2016. Perhaps Raburn accrued sufficient paid sick leave to cover his salary

through July, or perhaps the State voluntarily continued to pay his salary until it approved

his disability retirement. Whatever the explanation for the July earnings, the record

consistently states Raburn last worked on April 11, 2016. (Tr. 16, 84, 351). Thus, the

ALJ erred in finding Raburn’s work activity after the alleged disability onset date conflicted

with his allegations of disabling impairments.

27

Despite that error, substantial evidence supports the ALJ’s decision as a whole.

Raburn has not challenged any of the ALJ’s findings regarding his physical abilities. As

discussed above, the ALJ properly discredited Dr. Bentley’s assessments of disabling

mental impairments, properly relied upon the other medical evidence of record in

determining Raburn’s residual functional capacity, and properly considered Raburn’s daily

activities. Moreover, as the ALJ stated, Raburn’s treatment records reflect that medication

controlled Raburn’s mental health symptoms (although it did not eliminate them). (Tr.

66-67, 891). All of those facts constitute legitimate considerations in evaluating the

consistency of Raburn’s allegations with the record as a whole. See SSR 16-3p, at *7; 20

C.F.R. §§ 404.1529(c)(3), (4).

Raburn advances general assertions that the ALJ improperly relied only on facts that

supported a finding of no disability, while ignoring other facts that would have supported

a finding of disability; he failed to consider Raburn’s longitudinal treatment history; and he

improperly substituted his own opinions for those of Raburn’s medical providers. The

court disagrees with those conclusory assertions. To the contrary, the ALJ thoroughly

considered all of Raburn’s medical records, rejected facts for which the record contained

no support, and properly evaluated the opinions from Raburn’s medical providers.

Moreover, the mere presence of depressive and manic symptoms, even if they persist over

a number of years, does not warrant a finding of disability because symptoms alone do not

28

determine a claimant’s ability to perform work-related activities. Moore, 405 F.3d at 1213

n.6 (citing McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)).

Raburn offers substantive argument regarding only one of the ALJ’s allegedly

erroneous findings:

In interacting with others, [Raburn] has a moderate limitation.

[Raburn] stated in his Function Report that he has become very withdrawn

and he has not been able to participate in social activities that require strength

and endurance . . . . He testified that due to his depression, on “bad days”

he does not get out of bed for up to two days, and his “bad days” occur 10

to 15 times a month. However, [Raburn] reported in his Function Report

that he socializes daily by chatting online and he does not have any problems

getting along with others . . . . He also indicated that the has never been

fired from a job because of problems getting along with other people . . . .

Dr. Bentley noted that [Raburn] was “cooperative” during his treatment

sessions . . . . Other treating sources have observed [Raburn] as being

“pleasant” . . . .

(Tr. 14-15).

The court observes at the outset that the ALJ made that finding when assessing

whether Raburn satisfied a step three listing requirement, not when evaluating Raburn’s

residual functional capacity. Raburn did not challenge the ALJ’s finding regarding his

failure to satisfy a listing; he only challenged the ALJ’s residual functional capacity finding.

In addition, Raburn’s arguments do not undermine the ALJ’s finding. Raburn

complains that the ALJ relied upon a Function Report that predated the ALJ’s decision by

21 months because that report did “not reflect [Raburn’s] current ability to interact with

others.” (Doc. 11, at 26-27). But the ALJ did not rely solely on the Function Report to

gauge Raburn’s daily activity level; he also considered Raburn’s more recent administrative

29

hearing testimony, which essentially reiterated the activity levels Raburn stated on the

Function Report.

Raburn also challenges the ALJ’s observation of Raburn’s ability to communicate

with a friend via the internet because it “does not reflect his ability to engage in face-to-

face communication.” (Id. at 27). The court agrees internet communication does not

necessarily equate to face-to-face communication, but as a form of socialization, it bears at

least some relevance to Raburn’s ability to relate to others. In addition, the court disagrees

with Raburn’s argument that the ALJ should not have considered Dr. Bentley’s treatment

notes reflecting Raburn’s cooperative attitude during treatment sessions. While

cooperating with voluntary mental health treatment might not necessarily equate to

cooperation in a workplace environment, Dr. Bentley’s observations nonetheless bear at

least some relevance to the assessment of Raburn’s ability to relate to others.

In summary, Raburn’s arguments relate only to his ability to relate to others, and

they say nothing of his abilities in other mental functional areas, such as understanding,

remembering, and applying information; concentrating, persisting, and maintaining pace;

and adapting and managing himself. Even though Raburn disagrees with how the ALJ

treated some of the facts, he has not offered any argument or pointed to any facts that

undermine the substantial evidence supporting the ALJ’s decision. The court “may not

decide the facts anew, reweigh the evidence, or substitute [its] judgment” for that of the

ALJ. See Winschel, 631 F.3d at 1178 (holding that the court “may not decide the facts anew,

30

reweigh the evidence, or substitute [its] juadgment” for that of the ALJ); Werner v. Comm’r of

Soe. Se, 421 F. App’x 935, 939 (11th Cir. 2011) (“The question is not... whether AL]

could have reasonably credited [the claimant’s] testimony, but whether the ALJ was clearly

wrong to discredit it.”).

The ALJ properly considered Raburn’s complaints of subjective symptoms.

CONCLUSION

For the foregoing reasons, the court AFFIRMS the Commissioner’s decision.

The court will enter a separate final judgment.

DONE this 27 day of May, 2020.

4 N. fay (et

UNITED STATES MAGISTRATE JUDGE

31