Jennifer Wrene Marshall v. Commissioner, Social Security Administration ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14592
Non-Argument Calendar
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D.C. Docket No. 4:14-cv-00081-JRH-GRS
JENNIFER WRENE MARSHALL,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(September 13, 2016)
Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Jennifer Marshall appeals the district court’s order affirming the
Commissioner’s denial of Supplemental Security Income (SSI), under 42 U.S.C.
§ 1383(c)(3), and Child’s Insurance Benefits, under 42 U.S.C. § 402(d)(1).
Marshall asserts two issues on appeal,1 which we address in turn. After review,2
we affirm.
I. DISCUSSION
A. ALJ’s discrediting of medical opinions
Marshall argues the Administrative Law Judge (ALJ) erred by discrediting
the opinions of her treating psychiatrist, Dr. Kevin Winders, and
psychopharmacologist, Dr. Patrice Butterfield, and by instead crediting the
evaluation of an examining psychiatrist, Dr. Thomas Pedigo.
Medical opinions are always considered when determining whether an
applicant qualifies for disability benefits. See 20 C.F.R. § 404.1527(b). Factors
that increase the weight of a medical opinion include, inter alia, whether the source
1
Marshall waived her argument the ALJ erred by failing to make explicit credibility
findings as to her mother’s testimony, as she did not preserve that argument by raising it in the
district court. See Stewart v. Dept. of Health and Human Serv’s, 26 F.3d 115, 115 (11th Cir.
1994) (explaining we will not consider an issue the Social Security claimant failed to raise and
preserve in the district court). Marshall only argued the ALJ erred in discrediting her own
testimony, which was consistent with her mother’s testimony. Accordingly, we decline to
consider this argument on appeal.
2
We review the ALJ’s decision for substantial evidence and its application of legal
principles de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). When the
Appeals Council denies review of the ALJ’s decision, we review the ALJ’s decision as the
Commissioner’s final decision. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
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of the opinion examined or treated the applicant, the length and nature of the
relationship between the source and the applicant, whether the evidence supports
the source’s opinion, and the degree of consistency between the opinion and the
record as a whole. See id. § 404.1527(c).
An ALJ must give a treating physician’s opinion “substantial or considerable
weight” unless there is good cause not to do so. Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1179 (11th Cir. 2011); see also 20 C.F.R. § 404.1527(c)(2)
(providing a treating source’s opinion is given controlling weight if it is supported
by medically acceptable techniques and is not inconsistent with the other
substantial evidence). Good cause exists when a treating physician’s opinion is not
supported by the evidence, the evidence supports a different conclusion, or the
treating physician’s opinion is conclusory or inconsistent with his own medical
records. Winschel, 631 F.3d at 1179; Phillips v. Barnhart, 357 F.3d 1232, 1240-41
(11th Cir. 2004) (finding “good cause” where treating physician’s assessment
conflicted with his treatment notes and the applicant’s admitted daily activities).
The ALJ must clearly articulate the reasons for disregarding a treating physician’s
opinion. Winschel, 631 F.3d at 1179. The ALJ must also state with particularity
the weight given to different medical opinions and the reasons therefor. Id.
The ALJ had “good cause” for rejecting Dr. Winders’ opinions because his
medical opinions that Marshall could not sustain gainful activity were inconsistent
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with his own treatment records. See Winschel, 631 F.3d at 1179. Dr. Winders’
statements in his impairment questionnaire that said Marshall was incapable of
gainful employment and did not have good days were inconsistent with his
treatment notes that indicated that Marshall was “doing fairly well,” “doing okay,”
and “doing good.” The ALJ specifically noted these inconsistencies, as well as
Dr. Winders’ repeatedly assessing Marshall with global assessment of functioning
(GAF) scores indicating only mild limitation.
Additionally, there was “good cause” for the ALJ to reject Dr. Butterfield’s
opinion because the GAF scores of 40 and findings that Marshall was markedly
limited were not consistent with the rest of the medical evidence, including
Marshall’s reported daily activities. See id. While Dr. Butterfield twice
determined that Marshall had a GAF score of 40, Dr. Pedigo assessed Marshall a
GAF score of 65, and Dr. Winders gave Marshall GAF scores between 55 and 75.3
Therefore, the disparity in Dr. Butterfield’s GAF scores and Drs. Pedigo’s and
Winders’ consistent GAF scores showed an inconsistency between
Dr. Butterfield’s opinion and the rest of the record evidence. See Winschel, 631
F.3d at 1179. The ALJ noted that Butterfield’s GAF score was inconsistent with
the rest of the record evidence, as well as Marshall’s self-reported activities.
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It was not improper for the ALJ to consider the GAF scores in determining that
Dr. Butterfield’s opinion was inconsistent with the rest of the evidence because the ALJ was not
using the GAF scores to determine whether Marshall met one of the Listings. See Revised
Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. at
50,764-65.
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Further, it was not improper for the ALJ to discount Dr. Butterfield’s
opinion because he believed that Dr. Butterfield was trying to help Marshall obtain
benefits, even though he did not give independent reasons for this perceived bias
beyond his other “good cause” for rejecting Dr. Butterfield’s opinion. He did,
however, note that Dr. Pedigo, unlike Dr. Butterfield, rendered his opinion before
Marshall applied for benefits and thus could not have been biased by her
application. Marshall’s argument the ALJ mischaracterized her daily activities
also fails because the ALJ only noted her daily activities as one of the
inconsistencies between the level of ability that Dr. Butterfield’s GAF score
indicated and the rest of the medical evidence, rather than relying on them solely to
determine her level of impairment. Accordingly, the ALJ did not err in
discounting the opinions of Drs. Winders and Butterfield as they both were
internally inconsistent and inconsistent with the rest of the evidence.
Marshall’s argument the ALJ gave improper weight to Dr. Pedigo’s opinion
fails because the ALJ must consider medical opinions when determining whether a
claimant qualifies for disability benefits. See 20 C.F.R. § 404.1527(b). First,
Marshall’s argument that Dr. Pedigo did not render an “opinion” because he did
not address her functional capacity fails because the ALJ did not extrapolate
Dr. Pedigo’s opinion as to Marshall’s functional capacity. He instead relied solely
on Dr. Pedigo’s account of Marshall’s performance during her evaluation, her
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self-reported daily activities, GAF score of 65, and ADHD diagnosis. Second, the
ALJ properly accorded Dr. Pedigo’s opinion increased weight over other medical
evidence because he was an examining source and the ALJ discredited the only
treating sources’ opinions. See 20 C.F.R. § 404.1527(c). Finally, the ALJ
correctly noted that Dr. Pedigo’s opinion was the only one rendered before
Marshall applied for benefits. Therefore, the ALJ did not err in giving weight to
Dr. Pedigo’s opinion.
Accordingly, substantial evidence supported the ALJ’s decisions to discount
Drs. Winders’ and Butterfield’s opinions and to credit Dr. Pedigo’s opinion. See
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
B. Severity of impairment
Marshall further contends the ALJ erred by discrediting her testimony at the
hearing. When a claimant attempts to establish disability through his or her own
testimony of pain or other subjective symptoms, we apply a “pain standard” test,
which requires: (1) evidence that the claimant has an underlying medical condition;
and either (2) objective medical evidence that confirms the severity of the alleged
pain arising from that condition; or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably expected to give rise to the
alleged pain. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The
“pain standard” test is also applicable to other subjective symptoms. Dyer v.
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Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The ALJ must give specific
reasons for disbelieving the claimant’s subjective-symptom testimony. Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). We will not disturb a credibility
finding that is supported by substantial evidence. Foote v. Chater, 67 F.3d 1553,
1562 (11th Cir. 1995).
Substantial evidence supported the ALJ’s decision to discredit Marshall’s
testimony to the extent it was inconsistent with the ALJ’s determination of
Marshall’s residual functional capacity (RFC). The ALJ explained his reasons for
discounting Drs. Winders’ and Butterfield’s opinions, which supported Marshall’s
testimony but were inconsistent with their own treatment notes and the other
record medical evidence. Further, the ALJ stated that Marshall’s performance in
Dr. Pedigo’s evaluation, Dr. Pedigo’s assessed GAF score of 65 and Attention
Deficit Hyperactivity Disorder diagnosis, and the daily activities Marshall reported
to Dr. Pedigo were not consistent with her claimed severity of disability. The ALJ
noted Marshall had chosen to stop taking her medicine in favor of her art and had
not followed the recommendations of her Vocational Rehabilitation counselor,
even though they may have helped. The ALJ reasoned she had taken
regular-education classes, with the exception of math, and had graduated high
school with a diploma, indicating she had been able to maintain attention and
concentrate. Finally, the ALJ explained Marshall had been able to volunteer
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registering voters, indicating she had been able to maintain some level of social
functioning, concentration, persistence, and pace. Accordingly, substantial
evidence supported the ALJ’s decision to discredit Marshall’s subjective-symptom
testimony. See Holt, 921 F.2d at 1223; Foote, 67 F.3d at 1562.
II. CONCLUSION
The district court’s order affirming the Commissioner’s denial of SSI and
CIB is
AFFIRMED.
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