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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MARILYN K. HOWARD,

Plaintiff, 

v. Case No. 3:11cv129/RV/CJK

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 NORTHERN DISTRICT OF FLORIDA LOCAL RULES

72.1(A), 72.2(D), and 72.3, relating to review of administrative determinations under

the Social Security Act (“Act”) and related statutes, 42 U.S.C. §§ 401-1400v. The

case is now before the court pursuant to 42 U.S.C. § 405(g), for review of a final

determination of the Commissioner of Social Security (“Commissioner”) denying

claimant’s application for disability insurance benefits under Title II of the Act, 42

U.S.C. §§ 401-34.

Upon review of the record before this court, I conclude that the findings of fact

and determinations of the Commissioner are supported by substantial evidence. The

decision of the Commissioner, therefore, should be affirmed, and the application for

benefits denied.

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PROCEDURAL HISTORY

Marilyn K. Howard (who will be referred to by name, as plaintiff, or as

claimant) originally filed an application for disability insurance benefits (“DIB”) in

2002, T. 70-73, 87 , alleging disability due to a brain injury. T. 78. Claimant’s date 1

last insured (“DLI”) for the purpose of DIB, or the date by which her disability must

have commenced in order to receive benefits, was December 31, 2001. T. 24, 73.

Ms. Howard’s initial application for benefits was denied in May 2003, T. 51,

as was her request for reconsideration. T. 56. Following these denials, claimant

requested an administrative hearing. T. 58. Neither Ms. Howard nor her

representative attended the scheduled hearing in 2005, and the ALJ dismissed the

request for a hearing, leaving the original denial of claimant’s application intact. T.

302-03. Ms. Howard filed a second application for DIB in August 2006. T. 370-71. 

Claimant’s application was denied again initially and upon reconsideration. T. 304,

322. Ms. Howard requested an administrative hearing and one was held in December

2008. T. 24. In a decision dated April 16, 2009, the ALJ granted Ms. Howard’s

request to reopen her 2002 application, but found she was not disabled within the

meaning of the Act prior to the DLI. T. 21-39. The Social Security Appeals Council

denied claimant’s request for review, making the ALJ’s decision the Commissioner’s

final decision. T. 10. Plaintiff now seeks judicial review of the Commissioner’s

decision, arguing that “the ALJ erred in rejecting the opinions ofmultiple treating and

examining medical sources, and in adopting the opinion of the non-examining

The administrative record, as filed by the Commissioner, consists of four volumes (docs. 1

20-1 through doc. 20-4), and has 524 consecutively numbered pages. References to the record will

be by “T.” for transcript, followed by the page number.

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source.” (Doc. 24, p. 13).

2

FINDINGS OF THE ALJ

In a written decision, the ALJ made a number of findings relative to the issues

raised in this appeal:

1. The claimant last met the insured status requirements of the Social Security

Act on December 31, 2001.

2. The claimant did not engage in substantial gainful activity during the period

from her alleged onset date of November 17, 1998, through her date last insured of

December 31, 2001.

3. Through the date last insured, the claimant had the following severe

impairments: partial palsy of the left third cranial nerve, headaches and a cognitive

disorder (frontal lobe pathology) status-post closed head injury, and left orbital

fracture with left craniotomy and facial reconstruction (November 1998).

4. Through the date last insured, the claimant did not have an impairment or

combination of impairments that met or medically equaled one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

5. Through the date last insured, the claimant had the residual functional

capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) except

that she was restricted to simple, repetitive tasks and precluded from completing

complex or multi-task type work directives and thatshe needed to avoid work around

Ms. Howard’s brief concentrates only on the ALJ’s findings concerning her mental 2

impairment, though there are also complaints of back and upper extremity pain in her medical

record. E.g., T. 102, 116, 231, 387. Claimant’s brief also discusses whether remand or an award

of benefits is the appropriate remedy if the ALJ’s decision is found to be unsupported by substantial

evidence. (Doc. 24, pp. 22-23). The ALJ’s decision is found to be supported by substantial

evidence, so discussion of which remedy is appropriate is not necessary.

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moving machinery and at unprotected heights and avoid more than occasional ladder

climbing.

6. Through the date last insured, the claimant was unable to perform any past

relevant work.

7. The claimant was born on October 6, 1950, and was 51 years old, which is

defined as an individual closely approaching advanced age 50-54, on the date last

insured.

8. The claimant has at least a high school education and is able to

communicate in English.

10. Through the date last insured, considering the claimant’s age, education,

work experience, and RFC, there were jobs that existed in significant numbers in the

national economy that the claimant could have performed.

11. The claimant was not under a disability, as defined in the Social Security

Act, at any time from November 17, 1998, the alleged onset date, through December

31, 2001, the date last insured. T. 21-39 (bold in original; some citation references

deleted).

STANDARD OF REVIEW

A federal court reviews a Social Security disability case to determine whether

the Commissioner’s decision is supported by substantial evidence and whether the

correct legal standards were applied by the ALJ. See Lewis v. Callahan, 125 F.3d

1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th

Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only when

convinced that it is not supported by substantial evidence or that proper legal

standards were not applied.”). Substantial evidence is “‘such relevant evidence as a

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reasonable person would accept as adequate to support a conclusion.’” Richardson

v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197 (1938)). With reference to other standards of review, the Eleventh Circuit has

said, “‘Substantial evidence is more than a scintilla . . . .’” Somogy v. Comm’r of Soc.

Sec., 366 F. App’x 56, 62 (11th Cir. 2010) (quoting Lewis, 125 F.3d at 1439). 

Although the ALJ’s decision need not be supported by a preponderance of the

evidence, “it cannot stand with a ‘mere scintilla’ ofsupport.” Hillsman v. Bowen, 804

F.2d 1179, 1181 (11th Cir. 1986) (quoting Flynn v. Heckler, 768 F.2d 1273 (11th Cir.

1985)). The reviewing court “‘may not decide the facts anew, reweigh the evidence,

or substitute [its] judgment for that of the [Commissioner] . . . .’” Martin v. Sullivan,

894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d

1233, 1239 (11th Cir. 1983)). Nevertheless, a reviewing court may not look “only to

those parts of the record which support the ALJ[,]” but instead “must view the entire

record and take account of evidence in the record which detracts from the evidence

relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). 

In sum, review is deferential to a point, but the reviewing court conducts what has

been referred to as “an independent review of the record.” Flynn, 768 F.2d. at 1273;

3

see also Getty ex rel. Shea v. Astrue, No. 2:10–cv–725–FtM–29SPC, 2011 WL

4836220 (M.D.Fla.Oct. 12, 2011); Salisbury v. Astrue, No. 8:09-cv-2334-T-17TGW,

2011 WL 861785 (M.D. Fla. Feb. 28, 2011). The recitation of medical and historical

facts of this case, as set out below, is based upon my independent review.

The Eleventh Circuit speaks not only of independent review of the administrative record, 3

but reminds us it conducts de novo review of the district court’s decision on whether substantial

evidence supports the ALJ’s decision. See Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,

1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

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The Social Security Act defines a disability 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 plaintiff is not only unable to do her previous work, “but cannot,

considering [her] age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).

Pursuant to 20 C.F.R. § 404.1520(a)-(g), the Commissioner analyzes a

disability claim in five steps:

1. If the claimant is performing substantial gainful activity, she is not disabled.

2. If the claimant is not performing substantial gainful activity, her

impairments must be severe before she can be found disabled.

3. If the claimant is not performing substantial gainful activity and she has

severe impairments that have lasted or are expected to last for a continuous period of

at least twelve months, and if her impairments meet or medically equal the criteria of

any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is

presumed disabled without further inquiry.

4. If the claimant’s impairments do not prevent her from doing her past

relevant work, she is not disabled.

5. Even if the claimant’s impairments prevent her from performing her past

relevant work, if other work exists in significant numbers in the national economy

that accommodates her RFC and vocational factors, she is not disabled.

Claimant bears the burden of establishing a severe impairment that keeps her

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from performing her past work. See 20 C.F.R. § 404.1512. The Eleventh Circuit has

explained the operation of step five: 

In practice, the burden temporarily shifts at step five to the

Commissioner. The Commissioner must produce evidence that there is

other work available in significant numbersin the national economy that

the claimant has the capacity to perform. In order to be considered

disabled, the claimant must then prove that [she] is unable to perform

the jobs that the Commissioner lists. The temporary shifting of the

burden to the Commissioner was initiated by the courts, and is not

specifically provided for in the statutes or regulations. See Brown v.

Apfel, 192 F.3d 492, 498 (5th Cir. 1999) (quoting Walker v. Bowen, 834

F.2d 635, 640 (7th Cir. 1987) (‘The shifting of the burden of proof is not

statutory, but is a long-standing judicial gloss on the Social Security

Act’)).

Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).

Step five (or step four in cases where the ALJ decides a claimant can perform

her past work) is generally where the rubber meets the road. At that point, the ALJ

formulates the all-important RFC. Even where one or more severe impairments are

established, the claimant must show that she cannot perform work within that RFC. 

The ALJ establishes RFC, utilizing the impairments identified at step two, by

interpretation of (1) the medical evidence, and (2) the claimant’s subjective

complaints (generally complaints of pain). RFC is then used by the ALJ to make the

ultimate vocational determination required by step five. “[R]esidual functional

4

capacity is the most [claimant] can still do despite [claimant’s] limitations.” 20 5

“Before we go from step three to step four, we assess your residual functional capacity. 

4

(See paragraph (e) of this section.) We use this residual functional capacity assessment at both step

four and step five when we evaluate your claim at these steps.” 20 C.F.R. § 404.1520(a)(4).

In addition to this rather terse definition of residual functional capacity, the Regulations 5

describe how the Commissioner makes the assessment:

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C.F.R. § 404.1545(1).

FACT BACKGROUND AND MEDICAL HISTORY6

Marilyn K. Howard, born on October 6, 1950, was forty-eight years old at the

alleged onset of disability. T. 70. Ms. Howard speaks English, T. 77, and has

completed high school and attended some college courses. T. 84. She alleges

disability due to a head injury that resulted in a cognitive disorder, anxiety,

depression, and mood dysregulation. (Doc. 24, p. 13-22). Claimant’s DLI is

December 31, 2001. T. 73, 322. Her past relevant work includes positions as a

bookkeeper, administrative assistant, office manager, para-professional, and data

entry clerk. T. 90.

On November 17, 1998, claimant sustained a head injury in a bicycle accident. 

T. 369. She was awake when she arrived at the hospital but was confused and

(3) Evidence we use to assess your residual functional capacity. We will assess your

residual functional capacity based on all of the relevant medical and other evidence. 

In general, you are responsible for providing the evidence we will use to make a

finding about your residual functional capacity. (See § 404.1512(c).) However,

before we make a determination that you are not disabled, we are responsible for

developing your complete medical history, including arranging for a consultative

examination(s) if necessary, and making every reasonable effort to help you get

medical reports from your own medical sources. (See §§ 404.1512(d) through (f).) 

We will consider any statements about what you can still do that have been provided

by medical sources, whether or not they are based on formal medical examinations.

(See § 404.1513.) We will also consider descriptions and observations of your

limitations from your impairment(s), including limitations that result from your

symptoms, such as pain, provided by you, your family, neighbors, friends, or other

persons. (See paragraph (e) of this section and § 404.1529.)[.] 

20 C.F.R. § 404.1545(a)(3). 

Although intended to be thorough, and to provide an overview of claimant’s history of care

6

and treatment, the synopsis of medical evidence will be supplemented as called for in the Analysis

section.

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disoriented. T. 124, 126. She was admitted to the hospital with diagnoses of closed

head injury, left orbital tripod fracture, left orbital floor fracture, left upper eyelid

laceration, left cranial nerve III palsy, and left optic nerve contusion. T. 122. To treat

these injuries, Lynn Gaufin, M.D., performed a left craniotomy with optic nerve

decompression, and Todd Engen, M.D., performed a left tripod reduction and

stabilization, a left orbital floor fracture reduction, and a left upper eyelid laceration

repair. T. 122. Claimant was discharged from the hospital in good condition on

November 20, 1998. T. 123.

On December 16, 1998 Ms. Howard attended a follow-up appointment withDr.

Gaufin. T. 424. Dr. Gaufin reported claimant’s thinking wasimproving and claimant

was able to discuss instructions for running a computer program over the phone in

Spanish. T. 424. On March 10, 1999, Ms. Howard had another follow-up

appointment with Dr. Gaufin. T. 170. Dr. Gaufin noted claimant’s post-surgery

recovery was going well, but there was still some cognitive impairment. T. 170. Dr.

Gaufin further noted that Ms. Howard “has to be real careful. For the most part she

looks like she’s thinking properly and doing thingsright, but sometimes both she and 

her husband are aware that her judgment or insight may be altered.” T. 170. In an

August 23, 1999, follow-up with Dr. Gaufin’s office, claimant reported symptoms of

anxiety and problems with cursing but also that “her brain is working a lot better.” 

T. 169. 

At Dr. Gaufin’s request, Erin Bigler, Ph.D., performed a neuropsychological

examination of Ms. Howard on May 4, 1999. T. 156, 171. Dr. Bigler conducted

testing and concluded claimant had mild deficits in executive functioning with

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associated anxiety and distress. T. 159. Dr. Bigler noted difficulty with speed of 7

processing and attention/concentration. T. 155. At that time, Dr. Bigler felt Ms.

Howard’s problems could be treated with cognitive rehabilitation therapy and a

biofeedback treatment program that focused on stress and anxiety management. T.

155.

Judith Moore, D.O., wrote a letter on October 26, 1999, summarizing her

treatment of Ms. Howard from April 29, to August 31, 1999. T. 172. Dr. Moore

reported claimant complained of “headaches, third nerve palsy with double vision,

and mental symptoms such as poor short-term memory, difficulty concentrating and

difficulty reading and comprehending.” T. 172. Dr. Moore performed osteopathic

cranial manipulation on Ms. Howard with some success but noted claimant

experienced a worsening of symptoms around July 27, 1999. T. 172.

On October 4, 2000, Ms. Howard began seeing Dr. Richard Armond for a

continuation of the osteopathic manipulation treatment she had received from Dr. 

Moore. T. 184, 423. In the patient health history form, Ms. Howard reported

depression and anxiety attacks. T. 186. Dr. Armond’s notes also reveal claimant

reported an increase in her mood swings and depression following an incident on

December 25, 2000, where she hit her head on a freezer door. T. 196. In subsequent

appointments, Ms. Howard reported she was doing better and made no further

complaints of mood swings or depression. T. 190, 192, 193.

In May 2001, Susan Addison, Ph.D., provided neuro-linguistic programming

At the ALJ hearing, the medical expert, Dr. Griffin, described executive functioning as “the 7

ability to take different bits of information, put them together, [and] come up with a conclusion or

plan. . . . Things like balancing a checkbook, paying bills, maintaining the household, organizing the

household[.]” T. 480.

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therapy to Ms. Howard on a referral from Dr. Armond. T. 189. This therapy was

performed in two sessions. T. 189. Dr. Addison noted the therapy produced good

results, decreasing Ms. Howard’s anxiety and improving her outlook and ability to

cope. T. 189.

Ms. Howard received general medical care fromDennis W. Remington, M.D.,

from 1993 to 2002. T. 213-16. In April 1999, Dr. Remington reported complaints

of mood swings. T. 215. On April 3, 2002, Ms. Howard reported to Dr. Remington

that her anxietywas only moderately troublesome and her depression was only mildly

troublesome. T. 218. Subsequently, Ms. Howard reported to Dr. Remington that her

mood swings and depression had decreased and thatshe had been travelling. T. 213.

Dr. Remington did not recommend any treatment or prescribe any medication for

claimant’s mental condition.

Ms. Howard received treatment from Jason Thackeray, M.D., in October of

2002. T. 228-31. Dr. Thackeray provided treatment for complaints ofshoulder pain. 

Dr. Thackeray did not note any complaints of anxiety or depression. He did note that

Ms. Howard indicated she was employed doing consultations. T. 231.

On August 20, 2003, a Psychiatric Review Technique was completed by Jane

Cormier, Ph.D. T. 249-62. After reviewing Ms. Howard’s medical files, Dr. Cormier

concluded that insufficient evidence existed in the record to allow for adequate

assessment of claimant’s mental impairments. T. 261. On October 9, 2003, J. Patrick

Peterson, Ph.D., also completed a Psychiatric Review Technique. T. 263-276. Upon

review of Ms. Howard’s medical record, Dr. Peterson concluded claimant had no

medically determinable mental impairments. T. 263. Dr. Peterson based his

conclusion on the fact Ms. Howard had performed well on the 1999

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neuropsychological testing and on the fact she continued to perform all her ADLs

capably. T. 275.

James Snyder, Ph.D., performed a neuropsychological examination of Ms. 

Howard on December 15, 2006. T. 414. Dr. Snyder performed a number of tests on

claimant and found mild impairment in visual and auditory attention and

concentration. T. 419. He noted Ms. Howard showed some areas of improvement

from the 1999 neuropsychological examination but found her organic mood

regulation showed significant deterioration, resulting in panic attacks and suicidal

ideation. T. 419-20. Based on his neuropsychological evaluation, Dr. Snyder opined

that claimant was disabled and her mental limitations extended back to 1998. T. 393-

96.

On November 30, 2007, Brent Decker, Ph.D., issued a report summarizing

three psychological evaluation sessions he had with Ms. Howard. T. 398. The results

of the evaluations showed claimant performed in the average range in terms of

intellectual functioning and had only mild cognitive impairment. T. 401-04. Ms.

Howard reported that she had mild to moderate levels of emotional distress. T. 405. 

Claimant also reported she had thought about killing herself, but did not believe she

would carry this out. T. 406. Dr. Decker concluded Ms. Howard had some

difficulties with short term memory and cognitive functioning related to her inability

to stay focused and concentrate. T. 407. He noted thatshe presented moderate levels

of depression and had some difficulty with tasks of daily functioning. T. 407. He

found these problems would make it challenging for her to seek employment. T. 407. 

To address these problems, Dr. Decker recommended therapy and medication. T.

407.

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Dr. Bigler wrote two letters after the DLI regarding Ms. Howard’s mental

condition. T. 392, 520. In the first, composed on May 19, 2005, Dr. Bigler noted he

had not seen Ms. Howard since his 1999 neuropsychological evaluation, but offered

his opinion that she was disabled in 1999 based on deficits in executive function

revealed by his evaluation. T. 520. The second letter, written on December 18, 2007,

reiterated his belief that Ms. Howard was disabled but was also based on the

neuropsychological evaluation performed by Dr. Snyder in December 2006, with

which Dr. Bigler fully concurred. T. 392. Dr. Bigler opined that claimant suffered

frommood dysregulation, anxiety, and changes in personality and cognitive function.

T. 392. He noted there were treatment options available, but they were unlikely to

return Ms. Howard to her prior baseline of functioning. T. 392.

Rhonda Adkinson, Psy.D., conducted a psychological evaluation of Ms.

Howard in October 2008. T. 452-55. After reviewing Dr. Snyder’s

neuropsychological evaluation and examining claimant for four hours, Dr. Adkinson

diagnosed Ms. Howard with a Chronic Adjustment Disorder, with Mixed Anxiety and

Depressed Mood. T. 452. Based on this diagnosis, Dr. Adkinson believed that Ms.

Howard would not be able to hold gainful employment at any future date. T. 452.

HEARING BEFORE THE ALJ

Ms. Howard’s administrative hearing took place on December 2, 2008. T. 462. 

In consultation with her attorney, Thomas Furr, Ms. Howard chose not to attend the

hearing because of her mental disorders. T. 466. In addition to Mr. Furr, Medical

Expert Edward Griffin, M.D., and Vocational Expert Charles Heartsill, were also

present at the hearing. T. 462. The ALJ asked Dr. Griffin, based on a review of Ms.

Howard’s medical records, to offer his opinion of her condition as of December 31,

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2001. T. 470. Dr. Griffin noted claimant had headaches, and partial palsy to the left

third cranial nerve that limited her field of vision and caused photosensitivity. T.

470-71. Dr. Griffin next discussed the symptoms of plaintiff’s frontal lobe pathology. 

He noted that she presented with mood instability but tended to do well on IQ tests. 

T. 472. Dr. Griffin also noted inconsistencies in Ms. Howard’s claims of attempted

suicide. T. 472. He opined claimant would have some problems with attentiveness

and perhaps interaction with the public or supervisors. T. 472. Dr. Griffin opined

that Ms. Howard’s condition could have been improved with a mood stabilizer. T.

473. Dr. Griffin concluded that Ms. Howard would have no physical limitations other

than those caused by the condition of her left eye. T. 481-82. Dr. Griffin opined that,

because of the left eye, Ms. Howard should not work around moving machinery or

unprotected heights, and only occasionally climb ladders. T. 484. Despite the mental

impairments, Dr. Griffin felt Ms. Howard retained the capacity to perform simple,

rote, repetitive tasks. T. 484.

Next, the ALJ questioned the vocational expert, Charles Heartsill. T. 504. The

ALJ asked Mr. Heartsill if a person could perform any of Ms. Howard’s past relevant

work if they had the following limitations: inability to work around moving

machinery or heights, ability to climb ladders only occasionally, ability to perform

only simple repetitive tasks, inability to look up with her left eye, and inability to

work in bright environments due to photosensitivity. T. 508-09. Mr. Heartsill

reported such a person would not be able to perform any of Ms. Howard’s past

relevant work. T. 509. He did find, however, such a person would be able to perform

work asticketer, ticket taker, addresser, order caller, and route clerk. T. 509-10. Ms.

Howard’s attorney, Thomas Furr, then asked Mr. Heartsill whether a person would

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be able to perform any work if they had the following: marked limitations accepting

instructions and responding to criticism from supervisors; marked limitations in the

ability to respond to work pressures, respond to changes in work routine, and perform

activities at a consistent pace; and marked limitations in the ability to respond

appropriately to the pressures of daily living. T. 512. Mr. Heartsill responded that

such a person could not perform any of the jobs previously mentioned. T. 512.

ANALYSIS

Ms. Howard’s appeal asserts “the ALJ erred in rejecting the opinions of

multiple treating and examining sources, and in adopting the opinion of the nonexamining source.” (Doc. 24, p. 13). A discussion of the ALJ’s decision to reject

claimant’s treating physicians will begin this section, followed by a brief discussion

of the ALJ’s decision to rely on Dr. Griffin, the medical expert at the hearing.

Treating physician testimony must be given substantial weight unless good

cause is shown to the contrary. Lewis v. Callahan, 125 F.3d 1435, 1440 (11th Cir.

1997). “Good cause exists when the: (1) treating physician’s opinion was not

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

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

records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). “The ALJ

must clearly articulate the reasons for giving less weight to the opinion of a treating

physician, and the failure to do so is reversible error.” Lewis, 125 F.3d at 1440. 

Ms. Howard’s DLI was December 31, 2001. T. 26, 73. She has the burden of

establishing she was disabled prior to her DLI. See Mason v. Comm’r of Soc. Sec.,

430 F. App’x 830, 831 (11th Cir. 2001) (“DIB applicants must show that they were

disabled on or before their last-insured date.” (citing Moore v. Barnhart, 405 F.3d

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1208, 1211 (11th Cir. 2005))); see also 20 C.F.R. § 404.1512(c) (“[Claimant’s]

responsibility. [Claimant] must provide medical evidence showing that [claimant

has] an impairment(s) and how severe it is during the time [claimant] says that

[claimant is] disabled.”). In attempting to establish her disability, Ms. Howard relies

mainly on the opinions of doctors who examined claimant long after the DLI. The

ALJ must consider these retrospective opinions when determining whether a claimant

is disabled, but, like any treating physician testimony, the ALJ can give the

retrospective opinions no weight if there is good cause. See Dempsey v. Comm’r of

Soc. Sec., 454 F. App’x 729, 733 n.7 (11th Cir. 2011) (“Absent good cause, a treating

physician’s opinion is entitled to substantial weight even if the physician did not treat

the claimant during the relevant period of time.” (citing Boyd v. Heckler, 704 F.2d

1207, 1211 (11th Cir. 1983))); see also Garvey v. Astrue, No. 1:07-cv-00021-MPWCS, 2007 WL 4403525, at *7 (N.D. Fla. Dec. 12, 2007) (noting retrospective

opinion may be discounted if not supported by the medical records from the relevant

time period (citing Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998))).

In light of these principles, Ms. Howard must establish she was disabled

between November 17, 1998, the alleged disability onset date, and December 31,

2001, the DLI. Ms. Howard relies primarily on the opinions of Drs. Bigler, Snyder,

Decker, and Adkinson to support her assertion of disability due to problems with

mood dysregulation, anxiety, depression, and a cognitive disorder. (Doc. 24, p. 13-

8

Ms. Howard briefly mentions the failure of the ALJ to address a comment from another 8

doctor, Lynn Gaufin, that claimant “has to be real careful. For the most part she looks like she’s

thinking properly and doing things right, but sometimes . . . her judgment or insight may be altered.”

T. 170. This comment neither suggests Ms. Howard is disabled nor suffices to render the ALJ’s

decision unsupported by substantial evidence. This statement is consistent with the ALJ’s

recognition that claimant suffers from a cognitive disorder.

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22). The ALJ recognized claimant’s cognitive disorder as a severe impairment but

did not find that Ms. Howard’s other alleged mental impairments were severe. T. 27-

32. Of the doctors mentioned above, Dr. Bigler wasthe only one to examine plaintiff

prior to the DLI. T. 157-60. Dr. Bigler, however, did not examine claimant at all

after the DLI and did not opine Ms. Howard was disabled until several years after the

DLI. T. 392, 520. As an initial matter, then, claimant’s doctors’ opinions do not offer

a longitudinal picture of Ms. Howard’s health that spans across the period of alleged

disability. See 20 C.F.R. § 404.1527(c)(2) (2012) (“Generally, we give more weight 9

to opinionsfromyour treating sources, since these sources are likely to be the medical

professionals most able to provide a detailed longitudinal picture of your medical

impairments(s)[.]”).

The ALJ considered these doctors’ opinions concerning claimant’s mental

condition and the record as a whole and determined Ms. Howard retained the RFC to

perform substantial gainful activity prior to her DLI. T. 26-39. The ALJ rejected the

opinions of claimant’s doctors because the medical record prior to the DLI showed

a paucity of complaints or observations of severe mental impairments, continued

From the record, it is unclear whether these doctors should even be accorded the status of 9

treating physicians. It appears Dr. Bigler only examined claimant during the 1999

neuropsychological evaluation. T. 520. Dr. Snyder seems to have only examined claimant during

his 2006 neuropsychological evaluation of claimant. T. 414-20. Dr. Decker conducted only one

psychological evaluation of claimant but it was completed in three separate sessions. T. 398. 

Similarly, Dr. Adkinson spent four hours evaluating claimant in 2008, but it is unclear how many

days or weeks this occurred over. T. 520. See Swann v. Astrue, No. 3:07cv129/LAC/EMT, 2008

WL 818500, at *8 (N.D. Fla. March 26, 2008) (“Because much of the rationale underlying the

treating physician rule involves the physician’s familiarity with his patient, it does not apply to a

physician who bases his opinion of a claimant’s limitations upon a single visit.” (citing Gibson v.

Heckler, 779 F.2d 619, 623 (11th Cir. 1986))). Claimant’s arguments will, nevertheless, be analyzed

on their merits.

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performance of most ADLs, and inconsistencies in Ms. Howard’s doctors’ reports. 

The ALJ also noted an apparent worsening of claimant’s condition subsequent to her

DLI, and a lack of medical treatment for her allegedly disabling impairments. T. 27-

36.

As the ALJ saw it, the lack of complaints or observations of Ms. Howard’s

mental impairments prior to her DLI undermined the claim that she was disabled. T.

28-30. At times the ALJ indicates that there were no complaints of anxiety,

depression, or mood dysregulation between Dr. Bigler’s neuropsychological

evaluation in May 1999 and the DLI in 2001. The record, however, suggests three

instances where Ms. Howard complained about her anxiety, depression, or mood

swings. The inconsistent nature and scant number of these complaints does not

undermine the ALJ’s assertion that these symptoms were not severe. The first such

complaintshowed up in a report from Dr. Gaufin’s office dated August 23, 1999, and

noted that Ms. Howard had some problems with anxiety but was still doing fairly

well. T. 169. Ms. Howard also filled out a health history form for Dr. Armond in

October 2000 and reported symptoms of depression and anxiety. T. 186. Another

report from Dr. Armond’s office on April 13, 2001 noted Ms. Howard complained of

mood swings and depression. T. 196. In subsequent visits, however, Dr. Armond did

not note any complaints of anxiety, depression, or mood swings, T. 190, 192-93. The

only treatment Dr. Armond recommended for these complaints was counseling with

Dr. Addison,who reported a marked decrease in anxiety and increased ability to cope. 

T. 189. No indication of particular severity can be gleaned from these entries. If Ms.

Howard’s anxiety, depression, or mood dysregulation were severe impairments prior

to her DLI, one might reasonably expect consistent reports of these conditions

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throughout the notes of Ms. Howard’s doctors. Dr. Moore’s letter summarizing her

treatment of claimant form April 1999 to August 1999 describes only complaints of

headaches and mental problems related to the cognitive disorder. T. 172. Dr.

Moore’s report contains no complaints of anxiety, depression, or mood dysregulation.

T. 172. A key indication that these mental impairments were not disabling comes

from a form Ms. Howard completed in 2002, shortly after the DLI. T. 218. On the

form, Ms. Howard indicated depression was only mildly troublesome and anxietywas

only moderately troublesome. T. 218. She also reported panic attacks were only

mildly troublesome. T. 218. If Ms. Howard experienced these symptoms to the

extent they significantly limited her ability to perform basic work activities, one

would expect these would be reported as more severe. 

The ALJ also supported his decision by noting that Ms. Howard continued to

perform most of her ADLs. T. 32-34. In 2003, Ms. Howard reported she took her

mother-in-law to the doctor. T. 106. She also cooked for her in-laws and made sure

they took the right medications. T. 106. Claimant reported being very active in her

church, attending at least once a week, as well as performing genealogical research

at the church’s family history center. T. 99. Claimant also reported she was capable

of cooking, cleaning, shopping, and managing money with supervision from her

husband. T. 98-99. In a telephone conversation with the Social Security

Administration in May 2003, claimant reported performing yard work helped calm

her down. T. 105. Dr. Gaufin reported claimant was capable of discussing computer

problems in Spanish only one month after her accident. T. 424. Dr. Thackeray

reported that claimant told him she was employed doing consultations. T. 231. Ms.

Howard’s performance of a variety of ADLs supports the ALJ’s finding that Ms.

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Howard’s was not disabled. 

The ALJ noted several inconsistencies in Ms. Howard’s treating physicians’

reports that undermined their credibility. First, Dr. Bigler’s 2007 opinion that

claimant was disabled claimed he “had the opportunity to evaluate, follow, and track”

Ms. Howard since 1999. T. 36, 392. The ALJ noted, however, Dr. Bigler had not

actually seen claimant at all since the 1999 neuropsychological evaluation. T. 383. 

It appears Dr. Bigler relied on the more recent neuropsychological evaluation

performed by Dr. Snyder in 2006 to form his opinion that Ms. Howard was disabled,

noting he fully concurred with Dr. Snyder’s assessment. T. 392. 

To be sure, Drs. Snyder and Adkinson both noted Ms. Howard reported trying

to kill herself on multiple occasions. T. 415, 430. As the ALJ observed, however,

there was no evidence of emergency room visits, psychiatric inpatient treatment, or

mental health treatment for these suicide attempts. T. 30. The ALJ also noted

claimant told Dr. Decker she had thought about killing herself but did not believe she

would carry it out. T. 31, 406. This inconsistency suggests that Ms. Howard’s

description of her mental condition to her doctors was not entirely credible, indicating

their opinions could be based on inaccurate information.

The evidence in the medical record suggeststhat Ms. Howard’s condition may

well have worsened after her DLI, possibly explaining why reports of claimant’s

condition several years after her DLI do not correspond with records prior to the DLI. 

The ALJ noted that a form completed on November 27, 2006, indicated that Ms.

Howard’s condition had worsened at the end of 2004. T. 34, 381, 388. The

document also noted her headaches, depression, and anxiety had increased. T. 387. 

Also, in a form completed sometime after September 2003, Ms. Howard indicated

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thatshe was having increasing problems with headaches and depression. T. 115. Dr.

Snyder’s 2006 neuropsychological evaluation noted claimant had a “significant

deterioration of organic mood regulation.” T. 419. This evidence suggeststhat if Ms.

Howard’s condition matched the severity indicated by Drs. Bigler, Snyder, Decker,

and Adkinson in 2005 to 2008, it reached that level after 2001, the DLI. See Mason,

430 F. App’x at 831 (quoting Demandre v. Califano, 591 F.2d 1088, 1090 (5th

Cir.1979) (‘If a claimant becomes disabled [after the DLI], [the] claimmust be denied

despite [the] disability.’)). 

The final reason the ALJ provided to support the finding claimant was not

disabled concerned the lack of treatment Ms. Howard pursued either before or after

the DLI. T. 27-31. The amount and type of treatment a claimant receives is relevant

to determining the severity of a claimant’s symptoms. See 20 C.F.R. §

404.1529(c)(3)(iv)-(v) (2012). If Ms. Howard’s problems with her cognitive

disorder, anxiety, depression, and mood dysregulation were so severe as to be

disabling, the ALJ reasonably noted one would expect to see regular treatment to

address these problems. Yet the only evidence of treatment consists of two

counseling sessions with Dr. Addison in May 2001. T. 189. Dr. Addison performed 10

neuro-linguistic programming with claimant and noted a marked decrease in anxiety

and an increase in positive outlook and ability to cope. T. 189. No record appears

of any other attempts to treat Ms. Howard’s cognitive disorder, anxiety, depression,

or mood dysregulation. Ms. Howard did receive osteopathic manipulation treatment

between November 17, 1998, and December 31, 2001, fromDrs. Moore and Armond,

Claimant also reported receiving biofeedback treatment from Dr. Robert Dallas for a short 10

time with successful results. T. 85, 103. There are, however, no notes from Dr. Dallas in the record.

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but this was apparently provided to treat claimant’s headaches and body pains. T.

172, 191-211. Ms. Howard also received general medical care from Dr. Remington

prior to her DLI but there is no indication that he attempted to treat her mental

impairments. T. 213-17. The lack of treatment evidenced by the record suggests Ms.

Howard’s mental impairments were not disabling.

Ms. Howard’s brief provides several justifications for her lack of treatment. 

First, plaintiff alleges treatment would not have allowed her to return to her previous

functional capacity. (Doc. 24, p. 17). In his December 2007 letter, Dr. Bigler stated,

“While there are potential treatment options, I don’t believe that they would allow

this patient to return to [her] prior baseline level of function.” T. 392. Plaintiff relies

on thisstatement to demonstrate that her lack of ongoing mental health treatment does

not undermine her allegations. (Doc. 24, p. 17). Although claimant may not be able

to return to her pre-accident level of functioning, this does not necessarily mean

treatment would have been futile or should not have been attempted if her condition

were severe. In fact, several doctors recommended some form of treatment for

claimant’s condition both before and after the DLI.

Ms. Howard’s brief contends that the ALJ “failed to consider the possibility

that no treatment wasrecommended, because [p]laintiff’s residual problems were not

treatable.” (Doc. 24, p. 18). This assertion is belied by the record, though, because

Drs. Bigler, Snyder, and Decker all recommended some form of treatment. After the

1999 neuropsychological evaluation, Dr. Bigler recommended cognitive

rehabilitation therapy and a biofeedback program. T. 154-55, 160. After Dr.

Snyder’s 2006 neuropsychological evaluation, he recommended claimant pursue a

combination of medication and counseling services. T. 420. In his psychological

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evaluation report in November 2007,Dr.Decker likewise recommended that claimant

pursue a combination of medication and therapy. T. 407. Claimant’s brief

specifically notes none of Ms. Howard’s doctors recommended the actual treatment

Dr. Griffin advised at the administrative hearing. (Doc. 24, p. 18). Although Dr.

Decker and Dr. Snyder did not recommend the specific drugs that Dr. Griffin did,

they did recommend medication to help Ms. Howard’s condition. The fact Ms.

Howard chose not to pursue any of these recommended treatments supports the

inference her mental impairments were not disabling.

Ms. Howard also asserts treatment had not been effective. (Doc. 24, p. 17-

18). A letter from Dr. Snyder in January 2008 notes that “varioustreatments have not

been effective and Mrs. Howard remains permanently impaired.” T. 393. Neither the

letter nor medical record, however, indicate which treatments Dr. Snyder is referring

to. The only treatment for mental health detailed in the record, the counseling

provided by Dr. Addison, was reported to be successful. T. 189. 

The final reason Ms. Howard offers for her failure to seek treatment is that she

had trouble obtaining insurance coverage and thus could not afford treatment. (Doc.

24, p. 19). If the ALJ’s primary basis for denying disability benefits is that the

claimant failed to seek treatment and there is evidence in the record that the failure

to seek treatment was predicated on a lack of money or insurance coverage, then the

ALJ must determine whether the claimant had sufficient funds to receive treatment. 

See Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (citing Dawkins v.

Bowen, 848 F.2d 1211, 1213-14 (11th Cir. 1988)). Though the record does contain

instances suggesting Ms. Howard had trouble obtaining insurance coverage for

treatment, T. 102-03, 107, 115, 400, this was not the only basis for the ALJ’s

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determination claimant was not disabled. The ALJ provided a number of reasons for

finding claimant was not disabled prior to the DLI, including: the lack of observations

or complaints ofsevere mental impairment, the continual performance ofmost ADLs,

the inconsistencies in claimant’s doctors’ reports, and the apparent worsening in

claimant’s condition after her DLI. Therefore, the ALJ should not be reversed for

failure to specifically address the claimant’s financial ability to seek treatment. See

11

Ellison, 355 F.3d at 1275 (holding ALJ’s failure to consider claimant’s ability to

afford treatment did not constitute reversible error when ALJ did not rely primarily

on lack of treatment to find claimant was not disabled).

The ALJ’s decision to discount the opinions of Ms. Howard’s treating

physicians was permissible because the doctors’ opinions regarding claimant’s

condition were not corroborated by the medical record prior to the DLI. The lack of

observations or complaints of severe mental impairment, the continued performance

of ADLs, the inconsistencies in the doctors’ reports, an apparent worsening of

claimant’s condition after the DLI, and the claimant’s lack of treatment provided

substantial evidence for the ALJ to reject claimant’s doctors’ opinions. 

The second part of claimant’s argument asserts the ALJ’s reliance on the

testimony of the medical expert, Dr. Griffin, was improper. Dr. Griffin testified,

consistent with Dr. Bigler’s 1999 and Dr. Snyder’s 2006 neuropsychological

evaluations, that claimant’s cognitive disorder would cause some difficulties with

executive functioning and therefore she should be limited to simple, rote, repetitive

tasks. T. 484-85. Griffin also noted that the condition of claimant’s left eye posed

Ms. Howard’s brief devotes only one sentence to this justification for lack of treatment 11

(Doc. 24, p. 19).

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some limitations and therefore she should be precluded from work around moving

machinery and unprotected heights and also should avoid more than occasional ladder

climbing. T. 482-84. Dr. Griffin also noted that claimant had no exertional

limitations. T. 481. Dr. Griffin’s opinion concerning claimant’s limitations prior to

the DLI was corroborated by the evidence available fromthat time period. Therefore,

the ALJ’s decision to reject the treating physician testimony and instead rely on Dr.

Griffin’s testimony was permissible. See Forrester v. Comm’r of Soc. Sec., 455 F.

App’x 899, 902 (11th Cir. 2012) (holding ALJ did not err when he did not give

treating physician opinion controlling weight, because it was unsupported by medical

record, and instead chose to give significant weight to non-examining physician

opinions because they were consistent with record). 

Although the ALJ’s decision is supported by substantial evidence, he appears

to have made a slight misstatement in his analysis. When examining the reports of

Drs. Decker and Snyder, the ALJ noted that “[c]ontrary to Dr. Snyder’s conclusion

that the claimant had a ‘permanent’ short term memory impairment, Dr. Decker

subsequently reported that his examination showed that the claimant experienced

some improvement in intellectual and short termmemory function.” T. 29. It appears

this observation of improvement was actually made by Dr. Snyder and not Dr.

Decker. T. 408-13. Also, these two statements regarding Ms. Howard’s condition

12

are not necessarily mutually exclusive, asimplied by the ALJ. The report recognized

improvement in claimant’s short term memory between Dr. Bigler’s 1999

neuropsychological evaluation and Dr.Snyder’s 2006 neuropsychological evaluation.

 The report was erroneously attributed to Dr. Decker on the List of Exhibits. T. 9. 12

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T. 410-11. It is certainly possible that there wasimprovement over that time, but that

the short term memory impairment was still permanent in that it would never return

to pre-accident levels. This mistake, discovered with the luxury of appellate review

of the paper record, is not significant enough to constitute reversible error, because,

as noted above, the ALJ still identified substantial evidence to reject the opinion of

Dr. Snyder concerning Ms. Howard’s limitations prior to her DLI. In truth, the fact

that Dr. Snyder charted the improvement may provide further reason to doubt the

significance of the earlier statement concerning permanent loss.

Based on the foregoing analysis, the ALJ’s decision to reject the opinions of

Ms. Howard’s doctors, and rely on the medical expert’s opinion, was supported by

substantial evidence in the record. Where, as here, the ALJ has conducted a thorough

examination of the record and properly considered claimant’s medical condition as

a whole to reach a determination supported by substantial evidence, this court may

not reverse the Commissioner’s decision. See Carnes v. Sullivan, 936 F.2d 1215,

1218 (11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner]

only when convinced that it is not supported by substantial evidence or that proper

legal standards were not applied.”). It is therefore respectfully RECOMMENDED:

That the application for a period of disability and disability insurance benefits

be DENIED and the Commissioner’s decision be AFFIRMED.

At Pensacola, Florida, this16th day of July, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen 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 (11th Cir. 1988).

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