Charles Wayne Cole v. Commissioner, Social Security Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10966
Non-Argument Calendar
____________________
CHARLES WAYNE COLE,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:20-cv-01695-JHE
____________________
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2 Opinion of the Court 22-10966
Before WILSON, B RANCH, and L UCK , Circuit Judges.
PER CURIAM:
Charles Wayne Cole appeals the district court’s order
affirming the Social Security Commissioner’s (“Commissioner”)
denial of supplemental security income (“SSI”). On appeal, Cole
argues that we should reverse the denial of his claim for SSI because
the Administrative Law Judge (“ALJ”) erroneously found the
medical opinions of two experts unpersuasive. After review, we
affirm.
I. Background
a.
Cole’s medical history
The following medical history was reviewed by the ALJ,
who denied Cole’s SSI claim, and by the magistrate judge, who
affirmed the ALJ’s decision.1 In early 2019, Cole applied for SSI,
asserting that his disability began on January 1, 2016. In his
disability report, Cole stated that his ability to work was limited
due to metal rods in his left leg, mental problems, and constant,
severe pain. He explained that he was employed as a carpenter
from 1991 to 2004 and stopped working on July 1, 2004, because of
his medical conditions.
1 Both parties consented to a magistrate judge conducting proceedings in the
case below, including the entry of final judgment.
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22-10966 Opinion of the Court 3
In December 2018, Cole was discharged from a mental
health center with a diagnosis of alcohol-induced depression. He
visited the mental health center again several days later, reporting
that he “self-medicated for pain with alcohol” and that “[h]e [was]
interested in seeking help in managing pain.” A week later, he
returned to the center and “reported that he [was] feeling well”
except for slight tightness in his chest, which began after he started
his medication. He reported that he was getting along well with
others and expressed no other concerns.
In April 2019, consulting psychologist Robert A. Storjohann,
Ph.D., examined Cole. In his report, Dr. Storjohann observed that
Cole was appropriately dressed and groomed and was “[o]riented
to person, place, situation, and time.” Dr. Storjohann’s report also
noted that Cole “appeared to be experiencing considerable pain
and discomfort throughout the exam” and Cole’s demeanor “was
that of being quite dysphoric and ill-at-ease.” During the
examination, Cole performed simple math calculations and various
cognitive exercises related to concentration and attention without
error. For example, Cole successfully counted backwards from 20
to 1; spelled “world” forwards and backwards; subtracted serial
sevens from 100; recalled two of three objects after a five-minute
delay; recalled his son’s birthday; described his activities from the
previous day without difficulty; and identified the United States
president, two states that bordered Alabama, the capital of
Alabama, and the number of months in a year. As to abstractions,
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4 Opinion of the Court 22-10966
Cole identified similarities amongst objects (
e.g., that an orange
and banana were both fruits) and the lessons of proverbs.
Dr. Storjohann found that Cole’s thoughts and speech were
logical, coherent, and goal-directed and without loose associations
or confusion. As to Cole’s thought content, Dr. Storjohann
observed no hallucinations or delusions. Nonetheless, Dr.
Storjohann opined that Cole had “significant mental health
difficulties” and that Cole was “markedly impaired” in his ability to
maintain effective social interactions in various settings and
“moderately to markedly impaired” in his “ability to understand,
carry out, and remember simple work-related instructions.”
The next month, James P. Temple, M.D., examined Cole.
Cole’s chief complaint to Dr. Temple was “[r]ight lower extremity
pain” and back pain from a motorcycle accident that occurred in
2011. Dr. Temple observed that Cole walked with a crutch, “had
a marked limp,” and was “unable to bend, squat, and stoop because
of pain and decreased range of motion of his hips and back.” In the
opinion section of his report, Dr. Temple wrote: “At the present
time, this patient is unemployable. He is in dire need of a family
physician for investigative purposes.”
One month later, Amy Cooper, Ph.D., performed Cole’s
mental residual functional capacity (“RFC”) assessment. She found
that Cole could “understand and remember simple instructions
and work procedures,” “carry out simple tasks,” and “tolerate
ordinary work pressures.” She also found that he would benefit
from being in an environment with familiar coworkers, a flexible
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22-10966 Opinion of the Court 5
schedule, and regularly scheduled rest breaks “but [would] still be
able to maintain a work pace consistent for the mental demands of
competitive level work.” As part of her assessment, Dr. Cooper
evaluated Dr. Storjohann’s and Dr. Temple’s medical opinions on
Cole’s mental health. She concluded that Dr. Storjohann’s opinion
was “without substantial support” and only “somewhat consistent
with [the] evidence in file” and that Dr. Temple’s opinion was
“without substantial support” and “not fully consistent with [the]
evidence in file.”
Anthony Pitts, M.D., performed Cole’s physical RFC
assessment. After reviewing the record, Dr. Pitts found that Cole
could perform a range of light work with postural, manipulative,
and environmental limitations.
In the fall of 2019, Cole saw his family doctor, Robert W.
Bartel, M.D., twice. During both visits, Cole denied having
depression or anxiety. On examination during both visits, Dr.
Bartel observed that Cole was alert, awake, and oriented; that his
memory was intact; and that his judgment, mood, and affect were
normal. On the first visit, Dr. Bartel reported that Cole had normal
motor tone and coordination, normal range of motion, no motor
or sensory deficits, and an unsteady gait but that he should “have
minimal difficulty . . . using a walking stick [for his] leg weakness.”
On the second visit, Dr. Bartel observed that Cole used a walking
stick and had diminished range of motion. As to Cole’s
neurological examination, Dr. Bartel noted “[n]o [c]hanges” since
Cole’s last visit.
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6 Opinion of the Court 22-10966
In March 2020, Cole visited Dr. Bartel again. Dr. Bartel
examined Cole and described Cole as having normal judgment,
normal mood and affect, and an intact memory. Dr. Bartel also
observed that Cole was “pleasant” and “cooperative” and noted no
motor or sensory deficits.
In January 2020, Cole visited the emergency room for arm,
back, and leg pain. Cole explained that he had missed an
appointment with his primary care physician and had not taken his
pain medicine for three weeks.
Less than a week later, Cole visited the emergency room
again, this time for anxiety and shaking. He explained that his
physician had given him medication but that he had been out of
the medication for over six weeks.
b.
The ALJ hearing and decision
In April 2020, after the Commissioner denied Cole’s claim
for SSI, an ALJ held a hearing on Cole’s claim. At the hearing, Cole
testified, consistent with his application for SSI benefits, that he had
been a carpenter from 1991 to 2004 and that his disability “onset
date” was January 1, 2016. He testified that he could stand or sit at
a work chair for 5 to 10 minutes before his back started bothering
him and that he could walk 15 to 20 feet before needing to sit down
and rest. He also testified that he could lift five to ten pounds on a
frequent basis but that Dr. Bartel had told him not to do any lifting.
Cole reported that his pain was unbearable the majority of the time
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22-10966 Opinion of the Court 7
and that his medications did not help with the pain, despite trying
different medications prescribed by Dr. Bartel.
A vocational expert (“VE”) also testified at the hearing.
When asked to assume a hypothetical about an individual with the
same age, education, prior work experience, and physical and
mental limitations as Cole, the VE testified that the hypothetical
individual could not return to his past work as a carpenter but
could perform certain sedentary jobs—such as an unskilled,
sedentary inspector, assembly worker, or hand packager.
After employing the Commissioner’s five-step sequential
evaluation for determining whether a claimant is disabled, the ALJ
concluded that Cole was “not disabled” under the Social Security
Act and denied Cole’s claim for SSI.2
At step one, the ALJ found that Cole “ha[d] not engaged in
substantial gainful activity at any time pertinent to this decision.”
2 The Social Security regulations outline a five-step process that the ALJ uses
to determine whether a claimant is disabled.
Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1178 (11th Cir. 2011). The five steps are: (1) whether the
claimant is engaged in substantial gainful activity; (2) whether he “has a severe
impairment or combination of impairments”; (3) “whether th[at] impairment
[or combination of impairments] meets or equals the severity of the specified
impairments” in the regulations; (4) “whether the claimant can perform any
of his . . . past relevant work” in light of his RFC; and (5) “whether there are
significant numbers of jobs in the national economy that the claimant can
perform given the claimant’s RFC, age, education, and work experience.”
Id.
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8 Opinion of the Court 22-10966
At step two, the ALJ identified Cole’s previously fractured
left leg, depressive disorder, and anxiety disorder as severe
impairments that significantly limited Cole’s ability to perform
basic work activities.
At step three, the ALJ found that despite Cole’s severe
impairments, Cole did not have an impairment or combination of
impairments that met one of the impairments listed in applicable
regulations.
At step four, after considering the record and medical
evidence, the ALJ found that Cole had the RFC to perform
sedentary work as defined in 20 CFR [§] 416.967(a)
except he could lift and carry twenty pounds
occasionally and ten pounds frequently; stand and
walk three hours per eight-hour day; sit six hours per
eight-hour day; frequently push and pull with the
bilateral upper and lower extremities; occasionally
climb ramps and stairs; never climb ladders, ropes,
and scaffolds; frequently balance and stoop;
occasionally kneel, crouch, and crawl; frequently
reach overhead, handle, and finger bilaterally; must
avoid concentrated exposure to extreme cold or heat,
vibration including power tools and air compression
tools; limit wet, slippery, icy surfaces and uneven
terrain; avoid even moderate exposure to hazards
including unprotected heights; can understand and
remember simple instructions and work procedures;
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22-10966 Opinion of the Court 9
should be able to concentrate and attend to simple
tasks for two hours and will need all customary rests
and breaks; could tolerate ordinary work pressures
but should avoid excessive workloads, quick decision
making, rapid changes, and multiple demands; is
likely to do best working with a small number of
familiar co-workers; and changes in the work
environment or expectations should be occasional
and presented gradually to give time for adjustment.
Travel should be restricted to local and familiar
environments.
Ultimately, the ALJ found that Cole was unable to perform his past,
relevant work as a carpenter because its workplace demands
exceeded his RFC.
The ALJ also found that Dr. Storjohann’s examination
reports contained “generally benign findings that [were] not
supportive of the marked limitations noted in his opinion.” After
considering all the medical evidence in the record, the ALJ
concluded that Dr. Storjohann’s opinion was unpersuasive and
“not consistent with the overall medical evidence which show[ed
that Cole] had normal mood and affect during most of his mental
status examinations.”
Likewise, the ALJ did not find Dr. Temple’s opinion
persuasive because it “was not supported with specific examination
findings, did not include any specific vocational limitations, and
[was] conclusory.” The ALJ also concluded that statements that a
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10 Opinion of the Court 22-10966
claimant is “disabled” or “unable to work”—like Dr. Temple’s
opinion that Cole was “unemployable”—were not medical
opinions. Rather, they were administrative findings reserved to the
Commissioner.
Finally, at step five, the ALJ concluded that considering
Cole’s RFC, age, education, and work experience, there were
significant numbers of jobs in the national economy that Cole
could perform. Specifically, the ALJ found that Cole could perform
sedentary, unskilled work as an inspector, an assembly line worker,
or a hand packager.
Cole appealed the ALJ’s decision to the Appeals Council, but
his request for review was denied.
c.
The magistrate judge’s order
Cole then filed a complaint in district court, arguing that the
ALJ’s determination that Cole was not disabled was not based on
substantial evidence and that the ALJ did not use the proper legal
standards.
The magistrate judge affirmed the Commissioner’s decision.
He noted that “Cole raise[d] a single objection to the ALJ’s
decision: the ALJ inappropriately rejected the opinions of
consultative psychological examiner Dr. Robert A. Storjohann and
consultative medical examiner Dr. James Temple.” The magistrate
judge concluded that the ALJ did not err because substantial
evidence supported the ALJ’s finding that the doctors’ opinions
were unpersuasive.
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22-10966 Opinion of the Court 11
Cole timely appealed to this Court.
II. Standards of Review
“When, as in this case, the ALJ denies benefits and the
[Appeals Council] denies review, we review the ALJ’s decision as
the Commissioner’s final decision.”
Doughty v. Apfel, 245 F.3d
1274, 1278 (11th Cir. 2001). “[W]e review
de novo the legal
principles upon which the Commissioner’s decision is based,” and
“we review the resulting decision only to determine whether it is
supported by substantial evidence.”
Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005).
In the Social Security context, the threshold for substantial
evidence is “not high.”
Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019). It is “more than a mere scintilla” and “means only . . . such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”
Id. (quotations omitted). “Substantial
evidence is less than a preponderance, and thus we must affirm an
ALJ’s decision even in cases where a greater portion of the record
seems to weigh against it.”
Simon v. Comm’r, Soc. Sec. Admin., 7
F.4th 1094, 1103 (11th Cir. 2021) (quotation omitted). “We may
not decide the facts anew, reweigh the evidence, or substitute our
judgment for that of the [Commissioner].”
Winschel v. Comm’r
of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (alteration in
original) (quotation omitted).
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12 Opinion of the Court 22-10966
III. Discussion
On appeal, Cole argues that we should reverse the ALJ’s
denial of SSI because the ALJ erred in rejecting the opinions of Dr.
Storjohann and Dr. Temple.3 We disagree and affirm because
there was substantial evidence to support the ALJ’s conclusion that
Dr. Storjohann’s and Dr. Temple’s opinions were unpersuasive.
To qualify for SSI, a claimant must be unable “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). The Social Security regulations outline a
five-step process that the ALJ must use to determine whether a
claimant is disabled.4
Winschel, 631 F.3d at 1178. The regulations
3 To the extent Cole challenges any other aspects of the ALJ’s decision, he has
forfeited those arguments. An appellant’s brief must address his contentions
and the reasons for them with citations to the authorities and parts of the
record on which he relies. Fed. R. App. P. 28(a)(8)(A). An appellant forfeits
an issue when he “raises it in a perfunctory manner without supporting
arguments and authority.”
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681 (11th Cir. 2014). Cole’s brief, which is replete with block quotes and
cursory mentions of various court decisions, falls into this snare.
See Harner
v. Soc. Sec. Admin., Comm’r, 38 F.4th 892, 898–99 (11th Cir. 2022).
4 As a reminder, the five steps are: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether he “has a severe impairment or
combination of impairments”; (3) “whether th[at] impairment [or
combination of impairments] meets or equals the severity of the specified
impairments” in the regulations; (4) “whether the claimant can perform any
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22-10966 Opinion of the Court 13
also explain what evidence is permitted for admission before an
ALJ and how an ALJ should consider certain evidence.
As relevant to this case, the regulations provide that any
statement about whether a claimant is disabled, able to work, or
able to perform regular or continuing work is a statement on an
issue reserved to the Commissioner and is considered “inherently
neither valuable nor persuasive.” 20 C.F.R. § 416.920b(c)(3)(i).
With respect to medical opinions, for claims filed on or after March
27, 2017, the ALJ “will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) or
prior administrative finding(s), including those from [the
claimant’s] medical sources.”5
Id. § 416.920c(a). Instead, the ALJ
must “articulate in [his or her] determination or decision how
persuasive [he or she] find[s] all of the medical opinions,” taking
into account five factors: (1) “supportability,” (2) “consistency,” (3)
the “relationship with the claimant,” (4) “specialization,” and (5)
“other factors that tend to support or contradict” the opinion.
Id.
§ 416.920c(c). The regulations explain that supportability and
of his . . . past relevant work” in light of his RFC; and (5) “whether there are
significant numbers of jobs in the national economy that the claimant can
perform given the claimant’s RFC, age, education, and work experience.”
Winschel, 631 F.3d at 1178.
5 The regulations relating to the evaluation of medical evidence were revised
in 2017. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82
Fed. Reg. 5844 (Jan. 18, 2017) (to be codified at 20 C.F.R. pts. 404 & 416)
(technical errors corrected by 82 Fed. Reg. 15,132 (Mar. 27, 2017)). Because
Cole filed his claim in 2019, these revised regulations apply to his claim.
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14 Opinion of the Court 22-10966
consistency are the two most important factors.
Id.
§ 416.920c(b)(2).
Cole argues that the ALJ erred by refusing to accept Dr.
Storjohann’s and Dr. Temple’s opinions.6 We disagree.
Substantial evidence supports the finding that Dr. Storjohann’s and
Dr. Temple’s opinions are unpersuasive.7 First, the ALJ did not err
6 Cole also asks this Court (1) to “issue a published decision in this case
reversing the denial of benefits based on [
McClurkin v. Soc. Sec. Admin.,
Comm’r, 625 F. App’x 960 (11th Cir. 2015)] and affirming the holding of
[
McClurkin] as precedent” and (2) to “embrace”
Wilder v. Chater, 64 F.3d.
335, 337–38 (7th Cir. 1995).
As to
McClurkin, first, Cole has not explained why
McClurkin, an
unpublished case, would compel reversal of the ALJ’s decision in this case.
Second, as a 2015 case,
McClurkin applied the pre-2017 version of the
regulations when assessing how an ALJ should evaluate medical opinions and
its analysis is thus inapposite here.
See McClurkin, 625 F. App’x at 962–63.
And third, even if
McClurkin were otherwise applicable, it is factually
distinguishable because—unlike this case—the ALJ failed to explain his
grounds for discounting a medical opinion.
See id.
Similarly,
Wilder—an out-of-circuit, 1995 decision that applies
outdated Social Security regulations and is factually distinguishable—is
inapplicable.
See 64 F.3d at 337–38.
7 Cole contends that the ALJ should have requested additional information if
the ALJ was not satisfied with the reports of Dr. Storjohann and Dr. Temple.
But the regulations do not require an ALJ to reach out to doctors for additional
information in these circumstances, and it was not error for the ALJ not to do
so.
See 20 C.F.R. § 416.920b(b)(2) (explaining that it is the ALJ’s prerogative
to determine the “best way to resolve [an] inconsistency or insufficiency” in
the evidence).
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22-10966 Opinion of the Court 15
by finding that Dr. Storjohann’s examination reports contained
“generally benign findings that are not supportive of the marked
limitations noted in his opinion.” Dr. Storjohann’s reports
documented that Cole was oriented as to person, place, time, and
situation and could perform various cognitive exercises related to
concentration, attention, and memory. For example, Cole
successfully performed simple mathematical calculations,
described activities from the previous day without difficulty, and
recalled his son’s birthday and the capital of Alabama, among other
facts—demonstrating intact recent and remote memory. In the
realm of abstractions, he successfully identified similarities and the
lessons of proverbs. And Dr. Storjohann found that Cole’s
thoughts and speech were logical, coherent, and goal-directed and
without loose associations or confusion.
Despite these findings, Dr. Storjohann concluded that Cole
had “significant mental health difficulties” and that Cole was
“markedly impaired” in his ability to maintain effective social
interactions in various settings and “moderately to markedly
impaired” in his “ability to understand, carry out, and remember
simple work-related instructions.” Under these facts, the ALJ did
not err in finding Dr. Storjohann’s opinion unpersuasive and
inconsistent with Dr. Storjohann’s own benign findings and the
other medical evidence in the record—such as the evidence from
Dr. Bartel and Dr. Cooper, who observed Cole’s normal mood and
affect and found that he was able to “understand and remember
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16 Opinion of the Court 22-10966
simple instructions and work procedures” and “carry out simple
tasks.”
Second, the ALJ did not err in finding that Dr. Temple’s
opinion that Cole was “unemployable” was an administrative
finding reserved to the Commissioner—not a medical opinion.
The ALJ was correct. The Social Security regulations provide that
any statement about whether a claimant is disabled or able to work
is a statement on an issue reserved to the Commissioner and is
“inherently neither valuable nor persuasive” evidence. 20 C.F.R.
§ 416.920b(c)(3)(i). Moreover, where Dr. Temple did not provide
any explanation for his opinion, the ALJ did not err in finding that
Dr. Temple’s opinion “was not supported with specific
examination findings, did not include any specific vocational
limitations, and [was] conclusory.”
IV. Conclusion
Because substantial evidence supports the ALJ’s conclusion
that Dr. Storjohann’s and Dr. Temple’s opinions were
unpersuasive, the ALJ did not err. Accordingly, we affirm the
denial of Cole’s claim.
AFFIRMED.
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