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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

PATRICIA KAREN McLEAN,

Plaintiff,

v. Case No: 5:11cv46/MCR/MD

MICHAEL J. ASTRUE

Commissioner of Social Security,

Defendant. 

_______________________________________________________________________

REPORT AND RECOMMENDATION

This case has been referred to the undersigned magistrate judge pursuant to

the authority of 28 U.S.C. § 636(b) and Rules 72.1(A), 72.2(D) and 72.3 of the local

rules of this court relating to review of administrative determinations under the

Social Security Act and related statutes. It is now before the court pursuant to 42

U.S.C. § 405(g) of the Social Security Act for review of a final determination of the

Commissioner of Social Security (Commissioner) denying claimant McLean’s

application for disability insurance benefits and Supplemental Security Income

benefits under Titles II and XVI of the Act.

Upon review of the record before this court, it is the opinion of the

undersigned that the findings of fact and determinations of the Commissioner are

supported by substantial evidence; thus, the decision of the Commissioner should

be affirmed.

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PROCEDURAL HISTORY

Plaintiff, Patricia Karen McLean, filed applications for benefits claiming an

onset of disability as of July 7, 2006. The applications were denied initially and on

reconsideration, and plaintiff requested a hearing before anadministrative law judge

(ALJ). A hearing was held on December 8, 2008 at which Ms. McLean was

represented by counsel and testified. A vocational expert also testified. The ALJ

entered an unfavorable decision (tr. 59-67) and Ms. McLean requested review by the

Appeals Council without submitting additional evidence. The Appeals Council

declined review (tr. 1-5). The Commissioner has therefore made a final decision, and

the matter is subject to review by this court. Ingram v. Comm’r of Soc. Sec. Admin,

496 F.3d 1253, 1262 (11 Cir. 2007); Falge v. Apfel, 150 F.3d 1320 (11 Cir. 1998). th th

This timely appeal followed.

FINDINGS OF THE ALJ

Relative to the issues raised on this appeal, the ALJ found that Ms. McLean

had not engaged in substantial gainful activitysince her claimed onset date; that she

had severe impairments of bipolar disorder, type II diabetes mellitus, and obesity,

but that she did not have and impairment or combination of impairments that met or

equaled on of the impairments listed in 20 C. F. R. Part 404, Subpart P, Appendix 1;

that she had the residual functional capacity to perform a reduced range of light

work; that she was capable of performing her past relevant work as an apartment

manager and janitorial services supervisor; and that she was not under a disability

as defined in the Act. 

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STANDARD OF REVIEW

In Social Security appeals, this court must review de novo the legal principles

upon which the Commissioner's decision is based. Moore v. Barnhart, 405 F.3d

1208, 1211 (11 Cir. 2005) (citing Chester v. Bowen, 792 F.2d 129, 131 (11 Cir. th th

1986)). There is no presumption that the Commissioner followed the appropriate

legal standards in deciding a claim for benefits, or that the legal conclusions

reached were valid. Miles v. Chater, 84 F.3d 1397, 1400 (11 Cir. 1996); Lewis v. th

Barnhart, 285 F.3d 1329, 1330 (11 Cir. 2002). Failure to either apply the correct law th

or to provide the reviewing court with sufficient reasoning for determining that the

proper legal analysis has been conducted mandates reversal. Ingram v. Comm’r of

Soc. Sec., 496 F.3d 1253, 1260 (11 Cir. 2007). th

The court must also determine whether the ALJ’s decision is supported by

substantial evidence. Moore, 405 F.3d at 1211 (citing Crawford v. Comm'r of Soc.

Sec., 363 F.3d 1155, 1158-59 (11 Cir. 2004)). Even if the proof preponderates th

against the Commissioner’s decision, if supported by substantial evidence, it must

be affirmed. Ingram, 496 F.3d at 1260; Miles, 84 F.3d at 1400. Substantial evidence

is more than a scintilla but less than a preponderance, and encompasses such

relevant evidence as a reasonable person would accept as adequate to support a

conclusion. Moore, 405 F.3d at 1211 (citation omitted). In determining whether

substantial evidence exists, the court must view the record as a whole, taking into

account evidence favorable as well as unfavorable to the Secretary's decision. 

Foote v. Chater, 67 F.3d 1553, 1560 (11 Cir. 1995). This limited review precludes th

deciding the facts anew, making credibility determinations, or re-weighing the

evidence. Moore, 405 F.3d at 1211 (citing Bloodsworth v. Heckler, 703 F.2d 1233,

1239 (11 Cir.1983); Miles v. Chater, 84 F.3d 1397, 1400 (11 Cir. 1996). Findings of th th

fact of the Commissioner that are supported bysubstantial evidence are conclusive. 

42 U.S.C. § 405(g); Ingram, 496 F.3d at 1260.

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A disability is defined as an “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 

To qualify as a disability the physical or mental impairment must be so severe that

the claimant is not only unable to do his previous work, “but cannot, considering his

age, education, and work experience, engage in any other kind of substantial gainful

work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 

The social security regulations establish a five-step evaluation process to

analyze claims for both SSI and disability insurance benefits. See Moore, 405 F.3d

at 1211; 20 C.F.R. § 416.920 (2009) (five-step determination for SSI); 20 C.F.R. §

404.1520 (2009) (five-step determination for DIB). A finding of disability or no

disability at any step renders further evaluation unnecessary. See 20 C.F.R. §

416.920; 20 C.F.R. § 404.1520. The steps are:

1. Is the individual currently engaged in substantial gainful activity?

2. Does the individual have any severe physical or mental

impairment that meets the duration requirement?

3. Does the individual have any severe impairments that meet or 

equal those listed in Appendix 1 to subpart P of 20 C.F.R. Part

404 and meet the duration requirement?

4. Considering the individual’s residual functional capacity, can the

individual perform past relevant work? 

5. Can the individual perform other work given the individual’s

residual functional capacity, age, education and work

experience? 

Id.

These regulations place a very heavy burden on the claimant to demonstrate

both a qualifying impairment or disability and an inability to perform past relevant

work. Moore, 405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th

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Cir.1985)). If the claimant establishes such an impairment, the burden shifts to the

Commissioner at step 5 to show the existence of other jobs in the national economy

which, given the claimant’s impairments, the claimant can perform. Doughty v.

Apfel, 245 F.3d 1274, 1278 (11 Cir. 2001); Allen v. Bowen, 816 F.2d 600, 601 (11 Cir. th th

1987). If the Commissioner carries this burden, claimant must prove that she cannot

perform the work suggested by the Commissioner. Doughty, 245 F.3d at 1278 n.2;

Hale v. Bowen, 831 F.2d 1007, 1011 (11 Cir. 1987). th

PLAINTIFF’S MEDICAL HISTORY

Ms. McLean was treated at a family practice clinic located in Mississippi on

a few occasions between March 2005 and March 2006 (tr. 246-52), all prior to her

claimed onset of disability. Her complaints related to migraine headaches in

October 2005 and March 2006; in February 2006, her chief complaints related to

depression, diabetes, and high blood pressure (tr. 246-48).

Ms. McLean began seeing Leisa Bailey, M.D., as her primary healthcare

provider in mid-September 2006. Dr. Bailey’s initial assessment included diabetes

mellitus, reflux, obesity, and migraine headache. She prescribed medications and

ordered laboratory testing and recommended weight reduction and exercise. Ms.

McLean followed up with Dr. Bailey twice more that month and again in mid-October

2006. Dr. Baileyassessed hypertension in addition to diabetes, and again counseled

Ms. McLean on her diet, weight reduction, and exercise (tr. 254-64).

Ms. McLean filed her applications in September 2006. On November 13, 2006,

she was seen for a consultative psychological evaluation byGeorge L. Horvat, Ph.D. 

Dr. Horvatindicated that Ms. McLean’s attention and concentration appearednormal,

and that her facial expression, mood, and affect all appeared to be depressed. Dr.

Horvat’s diagnostic impressions included bipolar disorder, depressed and major

depressive disorder, recurrent (tr. 269). He stated that it would be difficult to predict

Ms. McLean’s potential for employment “[u]ntil we are able to determine her level of

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cognitive functioning,” and that she “has a severe depression” and could not handle

her finances (tr. 266-69).

On April 6, 2007, Ms. McLean was seen by Dr. Efiong Andem, M.D., for a

consultative examination. Dr. Eifong found full range of motion of all joints, with no

signs of inflammation or swelling; normal gait and station, and normal flexion and

extension of the spine. Ms. McLean was 100% mobile during passive and active

movements; could stand on one leg with good balance; appeared to be comfortable

and changed positions without any difficulty. Dr. Andem noted that Ms. McLean

“[wa]s in normal mental status without any anxiety or depression,” that she

“behaved very nicely with the clinic staff,” and “denied any emotional instability.”

(Tr. 303-04).

Between February 2007 and February 2009, Ms. McLean continued to see Dr.

Bailey for her primary healthcare needs, mostly to follow up on her diabetes (tr. 312-

70, 375-447, 501-47). She occasionally complained of depression and bipolar

disorder symptoms, and was also seen for complaints unrelated to her allegedly

disabling symptoms (tr. 264, 312-70, 375-447, 501-47). Ms. McLean was repeatedly

encouraged to loseweight and to exercise, and was counseled about the importance

ofprescription medication compliance on multiple occasions (tr. 254-56, 315-16, 318-

20, 355, 381, 387, 408, 411, 417). When she visited Dr. Bailey’s office in October

2007, Ms. McLean complained of increasing mental symptoms (tr. 350). Three weeks

later, Ms. McLean reported that she was doing better with medication changes and

stated that she was going to the Life Management Center for mental health care

services (tr. 354). Treatment notes from a January 2008 visit with Dr. Bailey indicate

that Ms. McLean stopped taking her insulin due to weight gain (tr. 415). 

In October 2008, Dr. Bailey filled out a Medical Statement Regarding Diabetes

(MSRD) form, in which she stated that Ms. McLean could lift 20 pounds occasionally

and 10 pounds frequently; balance occasionally; stand for 60 minutes at a time; and

sit for 4 hours at a time (tr. 467). Dr. Bailey further indicated that Ms. McLean could

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not work any hours per day, specifically noting that her opinion in that regard was

“per patient” and was reportedly due to Ms. McLean’s anxiety and bipolar symptoms

(id.). In February 2009, Dr. Bailey completed a Physical Capacities Evaluation (PCE),

in which she opined that Ms. McLean could lift and carry 50 pounds occasionally and

25 pounds frequently; did not require an assistive device for walking; and had some

postural and environmental limitations (tr. 500). Dr. Bailey also indicated that Ms.

McLean would be likely to be absent from work more than 4 days per month, noting

that “P[atien]t has been diagnosed with bipolar disorder with depression which she

states has caused multiple missed days of work. I do not follow her for this

disorder” (id.). Dr. Bailey also stated that Ms. McLean had no pain present to any

significant degree; that physical activity would cause “[n]o increase in pain

whatsoever;” and that Ms. McLean’smedications might cause some limitations, “but

not to such a degree as to create serious problems in most instances” (Tr. 499).

Ms. McLean sought and received mental healthcare treatment at the Life

Management Center between October 2007 and October 2008. During that time,

counseling and medication management services were primarily rendered by

Stephen Chesser, a nurse practitioner. Ms. McLean’s treatment records show

assessments of adjustment disorder with depression and anxiety, as well as bipolar

disorder by history. Ms. McLean’s condition improved during the course of her

treatment, the record often indicating that Ms. McLean was “doing well” or “doing

quite well,” that her mood was stable, and that she reported suffering from only

occasional periods of depression (tr. 354, 469-97).

DISCUSSION

Ms. McLean contends that the ALJ erred in failing to make a proper credibility

finding, in failing to refer to or discuss a consultative psychological examination,

and in failing to evaluate the opinions of a treating physician properly, and that she

was disabled from her onset date. The Commissioner argues that the ALJ’s findings

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were supported by substantial evidence and must, therefore, be sustained. The

issue thus presented is whether the ALJ’s decision that Ms. McLean was not

disabled, in light of her physical and mental condition, age, education, work

experience, and residual functional capacity, is supported by substantial evidence

in the record.

1. Failure to make credibility finding.

Ms. McLean correctly states that an ALJ must properly support his ultimate

finding on credibility by explaining her reasoning on the record. Ms. McLean is not

correct in arguing that this ALJ failed to do so. Beginning on page 5 of her decision,

the ALJ pointed to each area of complaints of pain or other disabling condition

claimed by Ms. McLean, discussed what the appropriate treating professional said

about the condition and what the clinical records showed, and then explained why

the opinion or evidence was not convincing. Admittedly, the ALJ did not say “based

on these matters I find . . .” (or words to that effect), but she specifically rejected the

opinion of Dr. Bailey on Ms. McLean’s mental health as outside that physician’s area

of expertise. The ALJ also noted that treatment records from the Life Management

Center showed compliance with medication and resulting significant improvement

in Ms. McLean’s mental status, and concluded by pointing out that none of the

medical records or professional opinions suggested that Ms. McLean’s condition

was disabling. Contrary to Ms. McLean’s argument, this discussion was sufficient

to explain why the ALJ found Ms. McLean’s claims to be less than credible.

2. Failure to consider the report of Dr. Horvat.

Ms. McLean next contends that it was error for the ALJ to fail to refer to or

discuss the consultative psychological report of Dr. Horvat. It is true that the ALJ

either overlooked or ignored Dr. Horvat’s report. The question for this court is

whether that failure made a difference. A careful review of Dr. Horvat’s report

discloses that it did not. He diagnosed bipolar disorder, depression and major

depressive disorder, but offered no opinion on how these conditions affected Ms.

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McLean. He simply stated that it would be difficult to predict employability without

determining Ms. McLean’s level of cognitive functioning, which was not done. Dr.

Horvat did opine that Ms. McLean could not manage her finances, which would

ordinarily be relevant. However, the materiality of that statement disappeared with

Ms. McLean’s beginning treatment at the Life Management Center, her becoming

compliant with her medications, and, according to the Center’s progress notes, was

doing “pretty well” or “very well” over most of the year before the administrative

hearing (tr. 472-77). The ALJ did not err in not discussing Dr. Horvat’s report. 

3. Failure to evaluate the opinions of Dr. Bailey.

Finally, Ms. McLean contends that the ALJ did not properly evaluate the

opinions of Dr. Bailey. Absent good cause, the opinion of a claimant’s treating

physician must be accorded considerable or substantial weight by the

Commissioner. Phillips v. Barnhart, 357 F.3d 1232, 1240-1241 (11 Cir. 2004); Lewis th

v. Callahan, 125 F.3d 1436, 1440 (11 Cir. 1997); Broughton v. Heckler, 776 F.2d 960,

th

960-961 (11 Cir. 1985); Jones v. Bowen, 810 F.2d 1001, 1005 (11 Cir. 1986). “Good th th

cause” exists when: (1) the treating physician’s opinion was not bolstered by the

evidence; (2) the evidence supported a contrary finding; or (3) the treating

physician's opinion was conclusory or inconsistent with the doctor’s own medical

records. Phillips, 357 F.3d at 1241; see also Lewis, 125 F.3d at 1440 (citing cases). 

If a treating physician’s opinion on the nature and severity of a claimant’s

impairments is well-supported by medically acceptable clinical and laboratory

diagnostic techniques, and is not inconsistent with other substantial evidence in the

record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(d)(2). Where

a treating physician has merely made conclusory statements, the ALJ may afford

them such weight as is supported by clinical or laboratory findings and other

consistent evidence of a claimant’s impairments. See Wheeler v. Heckler, 784 F.2d

1073, 1075 (11 Cir. 1986); see also Schnor v. Bowen, 816 F.2d 578, 582 (11 Cir. th th

1987). When a treating physician’s opinion does not warrant controlling weight, the

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ALJ must nevertheless weigh the medical opinion based on (1) the length of the

treatment relationship and the frequency of examination; (2) the nature and extent

of the treatment relationship; (3) medical evidence supporting the opinion; (4)

consistency with the record as a whole; (5) specialization in the medical

impairments at issue; and (6) other factors which tend to support or contradict the

opinion. 20 C.F.R. 404.1527(d). 

A brief and conclusory statement that is not supported by medical findings,

even if made by a treating physician, is not persuasive evidence of disability. Johns

v. Bowen, 821 F.2d 551, 555 (11 Cir. 1987); Warncke v. Harris, 619 F.2d 412, 417 (5 th th

Cir. 1980). And “[w]hen electing to disregard the opinion of a treating physician, the

ALJ must clearly articulate its reasons.” Phillips, 352 F.3d at 1241. Failure to do so

is reversible error. Lewis, 125 F.3d at 1440 (citing MacGregor v. Bowen, 786 F.2d

1050, 1053 (11 Cir. 1986)); see also Nyberg v. Comm’r of Soc. Sec., 179 Fed.Appx. th 1

589, 591 (11 Cir. 2006) (Table, text in WESTLAW)(also citing MacGregor). The ALJ

th

here noted Dr. Bailey’s opinions concerning Ms. McLean’s physical capacity and in

fact imposed more stringent physical limitations than Dr. Bailey recommended. 

However, the ALJ also noted that Dr. Bailey’s opinion on Ms. McLean’s mental

limitations were, by the doctor’s own admission, based on the patient’s statements

that she could not work (tr. 499-500). Dr. Bailey also stated that she was not

following Ms. McLean for any mental disorder (id.). The ALJ rejected Dr. Bailey’s

opinion because mental health was not in her area of expertise and because her

opinion was not consistent with her own records and the medical record as a whole

(tr. 64). Lack of specialization can support such a finding. 20 C.F.R. 404.1527(d). 

Dr. Bailey’s notes indicated that Ms. McLean was not compliant with instructions on

taking her medications, and the Life Management records showed that she was

MacGregor further held that “Where the [Commissioner] has ignored or failed properly to

1

refute a treating physician’s testimony, we hold as a matter of law that he has accepted it as true.”

786 F.2d at 1053.

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doing well when she took her medication. All of the reasons stated by the ALJ in

rejecting Dr. Bailey’s opinion were supported by substantial record evidence, and

were sufficient to support her finding that Dr. Bailey’s opinion was entitled to little,

if any, weight. 

Accordingly, it is respectfully RECOMMENDED that the decision of the

Commissioner be AFFIRMED, that this action be DISMISSED and that the clerk be

directed to close the file. 

At Pensacola, Florida this 17 day of February, 2012. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen (14) days after being served a copy hereof. Any different deadline

that may appear on the electronic docket is for the court’s internal use only, and

does not control. A copy of any objections shall be served upon any other parties. 

Failure to object may limit the scope of appellate review of factual findings. See 28

U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

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