Ward v. Astrue
MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Terry F. Moorer on 2/27/2012. (jg, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SUE ANN WARD,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CASE NO.: 1:11-cv-147-TFM
MEMORANDUM OPINION AND ORDER
Sue Ann Ward (“Complainant” or “Plaintiff” or “Ward”) filed applications under
Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83c,
respectively, on February 20, 2007, for a period of disability which allegedly began on
August 15, 2005. (Tr. 164-71, 180-86). Ward’s application was denied (Tr. 61-79) and
after missing the original court date on January 29, 2008, due to being hospitalized with
pneumonia (Tr. 437-41) she testified at a hearing before an Administrative Law Judge
(“ALJ”) on April 16, 2009. (Tr. 51-54, 29-50). The ALJ issued an unfavorable decision
on June 30, 2009. (Tr. 13-15). The Appeals Council considered additional information
after initially rejecting review on August 27, 2010, (Tr. 7-9) but affirmed its own decision
to reject any further review on February 4, 2011. (Tr. 1-3). The rejection of review made
the ALJ’s decision the final decision of the Commissioner of Social Security
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(“Commissioner”).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Ward
timely filed her administrative appeal.
The Court has jurisdiction over this lawsuit pursuant to 42 U.S.C. §§ 405(g) and
the parties consent to the undersigned rendering a final judgment in this lawsuit pursuant
to 28 U.S.C. § 636 (c)(1) and M.D. Ala. LR 73.1. See also Docs 12 and 13. For the
reasons that follow, the Court AFFIRMS the Commissioner’s decision.
I. NATURE OF THE CASE
Ward seeks judicial review of the Commissioner’s decision denying her
application for disability insurance benefits and supplemental security income. United
States District Courts may conduct limited review of such decisions to determine whether
they comply with applicable law and are supported by substantial evidence. 42 U.S.C. §
405 (2006). The Court may affirm, reverse and remand with instructions, or reverse and
render a judgment. Id.
Ward was born on February 5, 1956, and was 49 years old at the time of her
alleged onset date and 53 years old at the time of the ALJ’s decision. (Tr. 164, 28). Ward
has an eighth grade education and no GED. (Tr. 33). Ward testified that her disabilities
include chronic headaches occurring 5 or 6 times a month which last for “2 or 3 days at a
Pursuant to the Social Security Independence and program Improvements Act of 1994,
Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services
with respect to Social Security matters were transferred tot he Commissioner of Social Security.
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time.” (Tr. 31-50). Ward also testified to suffering from numbness in arms and legs, pain
in neck and shoulder, a chemical imbalance that affects her mental capacity, depression
and anxiety, and hepatitis C. Id.
The ALJ found Ward suffers from the following severe impairments: “Major
Depressive Disorder, Anxiety Disorder, Postherpetic Trigeminal Neuralgia, Headaches,
Borderline Intellectual Functioning, Hepatitis C, and back/neck pain.” (Tr. 19). The
ALJ found that none of these impairments, either individually or collectively, “meets or
medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1.” (Tr. 20).
Ward presented medical evidence which spans fifteen years. Ward was evaluated
by Dr. Charles R. Hicks, Jr., M.D., in July and November of 2001. Dr. Hicks opines that
ward suffers from Dysthymia, a “relational problem related to mental disorder.” (Tr. 24750). Dr. Hicks stated Ward has an “[o]ccupational problem” but is otherwise
“unremarkable” in multiple aspects of her evaluation. Id. From March 2004, through
May 2007, Ward was seen four times at the Southeast Alabama Medical Center
Emergency rooms for chronic headaches, chest pain, and neck/shoulder pain. (Tr. 25179, 409-15).
Ward presented medical records from Family Practice of Abbeville from May
1993, through April 2006. (Tr. 280-338). The Family Practice of Abbeville records
indicate that Ward has headaches, was in a car wreck in May 2003, as well as complaints
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of pain in her neck and shoulder, plus a Hepatitis C diagnosis. Several records indicate
that Ward smokes one and a half packs of cigarettes a day. Id. Other items mentioned
are Ward’s “cold intolerance,” glasses, ulcers, rash, arm and hand pain, claims of
depression, and other ailments. Id. It is notable that the headaches are repeated several
times throughout these records, almost always accompanied by a request to be excused
from work, but “[b]rain parenchyma shows no signal abnormality or mass effect” with the
impressions or brain scans being “unremarkable.” (Tr. 334). The three heart
examinations note “no evidence of acute or active cardiac or pulmonary disease” between
December 1997 and December 2001. (Tr. 336-338).
Ward submitted medical records from SpectraCare concerning her mental health
treatment from October 2006, through January 2009. (Tr. 341-73, 475-89). A
reoccurring theme through these records is the development and implementation of
“coping skills.” Id. It is noted on August 22, 2006, after the alleged onset date when
Ward testified that she was no longer working that “[s]he reports not really interacting
with others with exception to talking to people at work.” (Tr. 346). Ward demonstrated a
“fluctuating self-esteem and poor relationship choices” including living “with addicted
roommate.” (Tr. 348, 354).
Dr. David C. Gostley, Psy.D., evaluated Ward on April 9, 2007, and diagnoses
Ward as one with “Borderline Intellectual Functioning” commenting that “her
intelligence is expected to remain the same.” (Tr. 374-76). Ward was seen on April 10,
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2007, by Dr. Sam R. Banner, M.D., for a physical evaluation for “chronic headaches,
neck and back pain.” (Tr. 377-82). Dr. Banner’s diagnoses Ward as suffering from
headaches, chronic neck and back pain, hepatitis C, and depression. Id. He also noted
that “claimant will need long term medical care.” (Tr. 380). Dr. Banner evaluated Ward
again on May 15, 2009. (Tr. 465). Dr. Banner’s diagnosis Ward with chronic cervical
spine and back pain, hepatitis C, and depression. Id. Notably the diagnosis did not
The Residual Functional Capacity Assessment performed on April 12, 2007, by
Dr. Amy Prisoc, M.D., put no limits on Ward’s manipulation skills, visual abilities, or
ability to communicate. (Tr. 383-90). Some limits were placed on Ward’s posture in that
she could not climb ladders, ropes, or scaffolds. Id. In view of the history of normal
exams on record Dr. Prisoc noted that “[c]laimant’s statements are considered partially
credible.” (Tr. 388). Furthermore, the RFC states
There is no documentation to support frequency and severity of headaches
and past CT of brain was normal. Statements are not fully supported by
MER in file.
The psychiatric review and RFC-Mental of Ward was done on May 9, 2007, Dr.
Gordon J. Rankart, Psy.D. (Tr. 391-409). Dr. Rankart found Ward suffers from
depression but found only moderate limitations in maintaining social functioning and
maintaining concentration, persistence, or pace. Id. Mild limitation was found in daily
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living activities and no episodes of decompensation were noted. Id. Dr. Rankart stated
that Ward’s “ability to understand remember and carry out instructions as well as respond
appropriately to supervisors, co-workers and work pressures in a work setting is mildly to
moderately impaired, ability to function independently and manage finances is
unimpaired.” (Tr. 403). Dr. Rankart also noted that there was “[n]o current psych meds
or counseling” and that Ward was “[c]apable of simple-task employment.” Id.
Ward was seen for evaluations from June 2008, through April 2009, at the Primary
Care of Southwest Georgia. (Tr. 415-26, 443-52). Ward met with Jane L. Gordon, FNP,
and Dr. Ruth Evans, M.D., wherein her depression with anxiety was noted but she was
also assessed multiple times for “[t]obacco use disorder” and pneumonia. Id.
A psychological evaluation on May 18, 2009, by Dr. J. Walter Jacobs, Ph.D.,
concludes Ward suffers from “Major Depression, Recurrent, Mild to Moderate.” (Tr.
453-61). Dr. Jacobs stated that “Ward has a long history of depression and has been
treated intermittently throughout her life.” While assessing her daily activities Dr. Jacobs
Ms. Ward lives in a rent-free apartment. She arises early each morning
remarking that she is “used to working.” She has breakfast and starts
chores. During the morning, she will often nap in a chair or watch
television. She washes clothes and cleans house. Her favorite pastime is
listening to music and collecting coupons. In the past, she has enjoyed
reading, but has lost interest in this activity.
(Tr. 456). When commenting on her judgment and insight Dr. Jacobs said it was
“[g]rossly intact” and that relating to her thought process “[t]here was no loosening of
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association, confusion or tangentiality.” (Tr. 455). Ward was given a moderate
restriction on carrying out complex instructions, in her ability to make judgments on
complex work-related decisions, and understanding/remembering complex instructions.
(Tr. 458). Ward was mildly restricted in understanding and remembering simple
instructions, carrying out simple instructions, and making judgments on simple workrelated decisions. Id.
As noted above, Dr. Banner performed another medical evaluation on May 15,
2009, at which time his diagnoses of Ward was “Chronic Cervical Spine and Back Pain,”
Hepatitis C, and depression. (Tr. 465). There was no diagnosis for headaches in Dr.
Banner’s 2009 diagnosis, which is in contrast to a diagnosis for chronic headaches in his
2007 medical evaluation of Ward. Compare (Tr. 380) with (Tr. 465).
Ward attended therapy again from September 2008 until April 2009, at the
Wiregrass Mental Health Board, Inc., where Ward repeatedly stated that “things have
been going well with her and [she] didn’t have any personal issues to discuss.” (Tr. 49096).
III. STANDARD OF REVIEW
The Court reviews a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and based upon proper legal standards.
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The Court “may not decide the
facts anew, reweigh the evidence, or substitute [its] judgment for that of the
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Commissioner,” but rather it “must defer to the Commissioner’s decision if it supported
by substantial evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also Foote v. Chater,
67 F.3d 1553, 1560 (11th Cir. 1995) (stating the court should not re-weigh the evidence).
The Court must find the Commissioner’s decision conclusive “if it is supported by
substantial evidence and the correct legal standards were applied.” Kelly v. Apfel, 185
F.3d 1211, 1213 (11th Cir. 1999) (citing Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.
Substantial evidence is more than a scintilla – i.e., the evidence must do more than
merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing Richardson v. Perales,
402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) and MacGregor v.
Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)); Foote, 67 F.3d at 1560 (citing Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson, 402 U.S. at 401, 91 S.Ct.
If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the court finds that the evidence preponderates against the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). The district court
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must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester, 792 F.2d at 131).
The district court will reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (internal
citations omitted). There is no presumption that the Secretary’s conclusions of law are
valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).
IV. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.2 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line.3 Eligibility for SSI is based upon proof of indigence and disability. See
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security
taxes. See Social Security Administration, Social Security Handbook, § 136.1, available at
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by
general tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2,
2100, available at http://www.ssa.gov/OP_Home/handbook/handbook.html
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42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). Despite the fact they are separate programs,
the law and regulations governing a claim for DIB and a claim for SSI are identical;
therefore, claims for DIB and SSI are treated identically for the purpose of determining
whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n. 1 (11th Cir.
1986). Applicants under DIB and SSI must provide “disability” within the meaning of
the Social Security Act which defines disability in virtually identical language for both
programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§
404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is
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), 1382c(a)(3)(A). A “physical or mental impairment” is one
resulting from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§
404.1520, 416.920 (2010).
Is the person presently unemployed?
Is the person’s impairment(s) severe?
Does the person’s impairment(s) meet or equal one of the specific
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impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?4
Is the person unable to perform his or her former occupation?
Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A
negative answer to any question, other than step three, leads to a
determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines5 (“grids”) or hear testimony from a Vocational Expert (VE). Id. at
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in
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The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
V. STATEMENT OF THE ISSUES
Plaintiff’s brief is not a model of clarity. As best as the Court is able to determine,
the Plaintiff raises the following issues:
Whether the ALJ erred in his Residual Functional Capacity (RFC)
assessment by not considering Dr. Banners’ opinion regarding Ward’s
limitation on handling and fingering.
Whether the ALJ erred in giving greater weight to the state agency
assessments over a treating physician.
Whether the ALJ erred in failing to include any mental limitations in the
RFC without articulating why the mental limitations were excluded.
Whether the ALJ erred in finding Ward not credible.
Whether the ALJ erred by not providing adequate explanation as to the
difference between the Dictionary of Occupational Titles (DOT) reasoning
level and the RFC demands.
The Court will address the first three issues together as a matter of weight to be applied to
the evidence provided by the different medical sources, with the fourth and fifth issue
being handled individually. The issues and arguments turn upon this Court’s ultimate
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inquiry of whether the Commissioner’s disability decision is supported by the proper legal
standards and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622, 624-25 (11th
VI. DISCUSSION AND ANALYSIS
The ALJ followed established Eleventh Circuit requirements in the RFC
assessment, appointed credibility and weight of the evidence to medical
opinions, considered the mental imitations in the RFC all while providing
explanations supported by substantial evidence.
“The residual functional capacity is an assessment, based upon all of the relevant
evidence, of a claimant’s remaining ability to do work despite [her] impairments.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R.§ 404.1545 (a)). The
“determination of residual functional capacity is within the authority of the ALJ and the
assessment should be based upon all of the relevant evidence of a claimant’s remaining
ability to do work despite her impairments.” Beech v. Apfel, 100 F.Supp.2d 1323, 1330
(S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546, Lewis v. Callahan, 125 F.3d at 1440).
“The ALJ has a duty to make clear the weight accorded to each item of evidence and the
reasons for the decision so that a reviewing court will be able to determine whether the
ultimate decision is based on substantial evidence.” Freeman v. Barnhart, 220 Fed.
Appx. 957, 959-60 (11th Cir. 2007) (citing Cowart v. Schweiker, 662 F.2d 731, 735 11th
Cir. 1981) (when considering the specificity required the court stated, “[w]hile the ALJ
could have been more specific and explicit in his findings, he did consider all of the
evidence found that it did not support the level of disability [plaintiff] claimed.”).
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When considering treating physician’s opinions in relation to the RFC, this Court
looks also to the weight afforded each medical opinion. An ALJ “may reject any medical
opinion if the evidence supports a contrary finding.” Williams v. Astrue, 416 Fed. Appx.
861, 863 (N.D. Fla. 2011) (quoting Sharfarz v. Bowne, 825 F.2d 278, 280 (11th Cir.
1987)). That an ALJ discredits the opinion of a consulting physician, or even that of a
treating physician for good cause is not error. Phillips, 357 F.3d at 1241; Lewis, 125 F.3d
at 1439-41. Scrutiny of the evidentiary record compels this Court to conclude that the
ALJ did not err in according less weight to the opinion of Dr. Banner about Ward's health
and functional limitations.
Substantial weight must be given to the opinion, diagnosis, and medical evidence
of a treating physician unless there is good cause to do otherwise. Phillips, 357 F.3d at
1241. Good cause exists if the opinion is not bolstered by the evidence, the evidence
supports a contrary finding, or the opinion is conclusory or inconsistent with the
physician's own medical records. Id. at 1241-42. The ALJ must give “explicit and
adequate reasons for rejecting the opinion of a treating physician.” Elam v. R.R. Ret. Bd.,
921 F.2d 1210, 1215 (11th Cir. 1991) (emphasis added).
When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless weigh the medical opinion based on the length of the treatment
relationship and the frequency of examination; the nature and extent of the treatment
relationship; the medical evidence supporting the opinion; consistency with the record as
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a whole; specialization in the medical issues at issue; and other factors which tend to
support or contradict the opinion. 20 C.F.R. § 404.1527.
After a thorough review of the medical records and the opinion of the ALJ, the
Court agrees with the ALJ’s statement that Dr. Banner’s opinion is “drastically
inconsistent with the entire treatment record and is only supported, according to his own
notes, by the claimant’s reported history.” (Tr. 26). After scrutinizing the medical
records, the ALJ properly noted that Dr. Banner examined Ward on two occasions but
that “[h]is own examination report does not even support the extent of his opinions.” Id.
See Phillips, 357 F.3d at 1241; see also Heppell-Libsansky v. Comm’r of Social Security,
170 Fed. Appx. 693 (11th Cir. 2006) (ALJ did not err in refusing to accord controlling
weight to treating physician's opinion because physician only saw claimant twice after the
alleged onset date and other evidence in record showed periods of improvement).
Furthermore, the ALJ notes that Dr. Banner’s opinion “is also contradicted by the
claimant’s own reported activities of daily living, and the other medical opinion evidence
and medical treatment notes.” Id. Consequently, Dr. Banner’s opinion is not entitled to
be given controlling weight and the ALJ properly followed Eleventh Circuit requirements
for explaining why a treating physician’s medical opinion is not given controlling weight.
See Elam, 921 F.2d at 1215. See also 20 C.F.R. § 404.1527.
After finding that Dr. Banner’s opinion should be accorded no weight, the ALJ
properly found that Ward’s limitations on handling and fingering should not be
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considered as limitations in the RFC. The ALJ also noted that “the claimant has no other
treatment or treating medical opinion to suggest such limitations.” (Tr. 24). Additionally,
the ALJ, as well as the examining physicians, took into consideration all mental
limitations. (Tr. 25-26). The ALJ noted Ward’s mental limitations are minor in that “Dr.
Jacobs states that the claimant is only mildly impaired in her ability to interact
appropriately with the public, with supervisors, or with coworkers.” (Tr. 25). The Court
recognizes that Ward claims severe mental health impairments; however, “there is little
evidence to support substantial limitations other than her allegations of psychological
limitations.” Id. The Court finds that the ALJ properly established the RFC, assigned
medical weight to the treating physicians opinions, and included mental limitations with
the physical ones in the overall RFC assessment when he stated:
In sum, the above residual functional capacity assessment is supported by
the claimant’s infrequently reported physical symptoms, the lack of
substantial prescribed pain medications, the lack of substantiating clinical
signs or diagnostic test results, the significant activities of daily living
reported, the lack of psychological treatment, the effectiveness of
psychological medications, the mild reported psychological symptoms, the
psychological opinion of Dr. Ghostly, the psychological opinion of Dr. 
Rankart, and the psychological opinion of Dr. Jacobs.
The ALJ did not error in rejecting Ward’s testimony concerning the pain and
resulting limitations imposed by the combination of her medically determinable
The Court finds the ALJ’s assessment of Ward’s credibility to be proper and
supported by substantial evidence where in the complaints are incompatible with the
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claimant’s testimony and records of daily activities. Brown v. Astrue, 298 Fed. Appx. 851,
853 (11th Cir. 2008) (the court rejected a challenge to the ALJ’s finding that the claimant’s
allegations of pain and fatigue were not credible in citing the incompatibility of the
claimant’s testimony and the medical records in evidence.).
The Eleventh Circuit stated “there is no rigid requirement that the ALJ specifically
refer to every piece of evidence in his decision so long as [his] decision . . . is not a broad
rejection which is ‘not enough to enable [a court] to conclude that the ALJ considered [a
claimant’s] medical condition as a whole.’” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th
Cir. 2005) (quoting Foote, 67 F.3d at 1561, see also Mixon v. Astrue, 2011 WL 867213, *6
(M.D. Ala. 2011) (quoting Dyer). In Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir.
1983), the Eleventh Circuit held “this circuit does not require an explicit finding as to
credibility,” but will accept the implications which are obvious to the reviewing court. It is
the duty of the ALJ to develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272,
1275 (11th Cir. 2003). The burden of proving disability still rests on the claimant, and the
claimant is responsible for producing evidence that supports her claim and allows the ALJ
and the Commissioner to reach the proper conclusion. Id. at 1276; 20 C.F.R. § 416.912(a).
If a claimant is represented by counsel, the ALJ does not have a heightened duty to develop
the record. Leiter, 377 Fed. Appx. at 949. An impairment is not severe if it does not
significantly limit the claimant's physical or mental ability to do basic work activities. 20
C.F.R. § 404.1521(a); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). Once
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again, “a clearly articulated credibility finding with substantial supporting evidence in the
record will not be disturbed by a reviewing court.” Foote, 67 F.3d at 1562 (citing
MacGregor, 786 F.2d 1050).
“[T]hough the ALJ did not specifically reference the reports, his statement that his
findings were made after consideration of the entire record are sufficient to support this
Court’s finding that he did, in fact, consider the information.” Mixon, 2011 WL 867213, *6.
When the Court, after reviewing the entirety of the record of proceedings, is able to
determine that the ALJ considered Ward’s medical condition as a whole, it is then considered
to be substantially supported and is not the purview of the Court to simply overrule the ALJ’s
decision. Newsome ex rel. Bell. v. Barnhart, 444 F.Supp.2d 1195, 1197-98 (M.D. Ala. 2006)
(quoting Dyer, 395 F.3d at 1211). “An ALJ’s failure to cite specific evidence does not
indicate that such evidence was not considered.” McCray v. Massanari, 175 F.Supp.2d
1329, 1336 (M.D. Ala. 2001) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).
The Court recognizes that the ALJ may use its discretion to apply the amount of credit
to Ward’s testimony of pain and other symptoms so long as the ALJ articulates the reasons
for that decision. See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (wherein the
court held that because the ALJ did not set out why the testimony was discredited, the
complainant’s testimony was held to be true). When using his discretion, the ALJ must
articulate the reasons for discrediting a witness’ testimony. See Jones v. Dep’t. of Health and
Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991) (stating that the ALJ must give reasons
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that are based on substantial evidence if he or she choose to discredit the claimant’s
testimony). The ALJ discussed the inconsistencies within the medical records as well as
found that Ward’s daily activities also suggest capability to perform significant work activity.
(Tr. 23-27). Furthermore, the ALJ found that a functional capacity evaluation demonstrated
Ward’s ability to perform the physical demands of her previous employment. Id.
The Court holds that the ALJ explicitly detailed why he chose to discredit Ward's
subjective testimony in compliance with Eleventh Circuit law. (Tr. 25). When discussing
the limitations due to frustration or anxiety, the ALJ stated “her allegations are not supported
by the medical evidence.” Id. The ALJ also found Ward provided no substantiation or
record of treatment, that Dr. Jacobs stated that “the claimant is only impaired in her ability
to interact appropriately with [others]” and that Ward lost her position as an egg sorter
because the plant closed, not due to her mental or physical impairments as she claimed in her
testimony. Id. Furthermore, the ALJ notes that Ward’s “allegations are unsubstantiated by
her lack of treatment.” Id. Dr. Jacobs, the most recent examiner, was directly quoted by the
ALJ in relation to the validity of the assessments conducted by himself as well as other
treating physicians and the results were “‘most likely, it is a combination of deliberately
exaggerating symptoms and random responding.’” Id. The ALJ quotes Dr. Jacobs again
when the profile is labeled as a “‘fake bad’ profile causing the assessment of severity to be
inaccurate.” Id. It was found by the ALJ that “all of the psychologists fail to support the
extent of her allegations of her mental impairments.” Id.
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It is true that the ALJ in this case did not employ any signal phrases such as “Ward
is not credible because . . .” or “objective medical findings indicate untruthful testimony. .
.” A full reading of the opinion with respect to the credibility of Ward indicates the ALJ had
sufficient evidence to discount the testimony from Ward that she is disabled and cannot
work. Notwithstanding the ALJ's failure to highlight her credibility with specific language,
the juxtaposition of Ward’s testimony compared to the balance of the medical evidence
convinces this Court that the ALJ articulates adequate grounds for his findings. The ALJ's
reasons to reject Ward’s testimony were implicit, and do not provide grounds for reversal.
The Court finds that the ALJ gave sufficient weight and consideration to all evidence in
accordance with 20 C.F.R § 404.1529 and SSR 96-7p, as well as gave sufficient reasoning
within the opinion as to why the ALJ chose not to credit Ward’s testimony. See Holt, 921
F.2d at 1223.
There was no conflict between the Vocational Expert’s testimony and the
Dictionary of Occupational Titles.
The ALJ correctly addressed the Vocational Expert’s (“VE”) testimony and the
Dictionary of Occupational Titles (“DOT”). Ward contends that there was not sufficient
explanation as to any differences between the DOT and the RFC demands but the Court finds
that no conflict exists and any potential conflict was resolved during the hearing.
The ALJ “has the obligation of developing a full and fair record regarding the
vocational opportunities available to a claimant.” Allen v. Sullivan, 880 F.2d 1200, 1201
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(11th Cir. 1989); Welch v. Bowen, 854 F.2d 436, 440 (11th Cir. 1988). This burden may
sometimes be met through exclusive reliance on the grids. Id. at 1201-02. However,
“‘exclusive reliance on the grids is not appropriate either when the claimant is unable to
perform a full range of work at a given residual functional level or when a claimant has a
non-exertional impairment that significantly limits basic work skills.’” Id. at 1202 (quoting
Walker v. Bowen, 826 F.2d 996, 1002–03 (11th Cir. 1987) (quoting Francis v. Heckler, 749
F.2d 1562, 1566 (11th Cir. 1985). Normally, when nonexertional limitations are alleged,
“the preferred method of demonstrating that the claimant can perform specific work is
through the testimony of a vocational expert.” MacGregor v. Bowen, 786 F.2d 1050, 1054
(11th Cir. 1986) (citing Cowart v. Shweiker, 662 F.2d 731, 736 (11th Cir. 1981). “‘It is only
when the claimant can clearly do unlimited types of light work, ... that it is unnecessary to
call a vocational expert to establish whether the claimant can perform work which exists in
the national economy.’” Allen v. Sullivan, 880 F.2d 1200, 1202 (11th Cir. 1989) (quoting
Ferguson v. Schweiker, 641 F.2d 243, 248 (5th Cir. Unit A, March 1981)). “The burden of
showing by substantial evidence that a person who can no longer perform his former job can
engage in other substantial gainful activity is in almost all cases satisfied only through the
use of vocational expert testimony.” Chester v. Bowen, 792 F.2d 129, 132 (11th Cir.1986).
If an ALJ finds that a claimant cannot perform a full range of work within a given
exceptional level, VE testimony is the preferred method to determine whether the claimant's
non-exceptional impairments further diminish her ability to work at that level 20 C.F.R. §§
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404.1561, 416.961; Social Security Ruling (SSR) 83–12; see also Foote v. Chater, 67 F.3d
1553, 1559 (11th Cir.1995).
In Jones v. Apfel, the court addressed the issues surrounding conflicts between the
DOT and the testimony of a VE. Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) (The
ALJ relied upon VE testimony regarding the range of sedentary work available to the
plaintiff, even those that conflicted with the DOT, while considering the specific limitations
of the plaintiff). The Eleventh Circuit noted that in the Sixth Circuit the “social security
regulations do not require the Commissioner or the VE to rely on classifications in the DOT.”
Id. (citing Con v. Sec’y of Health and Human Services, 51 F.3d 607, 610 (6th Cir. 1995).
This frees courts to rely on the VE’s testimony “even if it is inconsistent with the DOT.”
Id. The Eleventh Circuit also noted that the Eighth and the Ninth Circuits “hold that the
DOT controls unless it can be ‘rebutted ... with VE testimony that shows that ‘particular jobs,
whether classified as light or sedentary, may be ones that a claimant can perform.’” Id.
(quoting Montgomery v. Chater, 69 F.3d 273, 276 (8th Cir. 1995) (quoting Johnson v.
Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). If the VE can “determine whether there are
jobs in the region which the claimant can perform with [their] precise disabilities or
limitations” the court then held that “the DOT does not control.” Id.(citing Montgomery, 69
F.3d at 277) (emphasis added).
Subsequent to the Jones v Apfel, decision the Social Security Administration passed
SSR 00-4p: Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence,
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and Other Reliable Occupational Information in Disability Decisions. In the pertinent
history of this administrative regulation it states that, “[q]uestions have arisen about how we
ensure that conflicts between occupational evidence provided by a VE or a VS and
information in the DOT  are resolved.” SSR 00-4p. “Social Security Rulings are agency
rulings ‘published under the authority of the Commissioner of Social Security and are
binding on all components of the Administration.’” Leonard v. Astrue, 487 F.Supp.2d 1333,
1339 (M.D. Fla. 2007) (citing Sullivan v. Zebley, 493 U.S. 521, 531 n. 9, 110 S.Ct. 885, 891
n. 9, 107 L.Ed.2d 967 (1990) (quoting 20 C.F.R. § 422.408)(1989)).
Leonard v. Astrue, arose after both the Jones v. Apfel, case as well as the issuance of
SSR 00-4p. Id. In Leonard, the plaintiff argued that because SSR 00-4p was enacted after
the Jones opinion, that the new law “requires the ALJ to elicit a ‘reasonable explanation’ for
a conflict between the VE testimony and the DOT.” Id. at 1338. The court noted that in SSR
00-4p “the Social Security Administration recognized that the VE’s testimony should
generally be consistent with the information contained in the DOT” but when a conflict
between the two arises that “the SSR directs that the ALJ ‘must elicit a reasonable
explanation for the conflict before relying on the VE[’s testimony].’” Id. at 1338-39.
“Moreover, the ALJ is obligated to inquire on the record as to whether there are any
inconsistencies between a VE’s testimony and the DOT.” Id. at 1339. Finally, any conflict
must be addressed and resolved by the adjudicator and explained how the conflict was
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The ALJ and the VE discussed multiple deviations in Ward’s case. (Tr. 47-50). After
directly answering the questions presented by the ALJ counsel for Ward was able to directly
ask the VE any questions and stated:
The only question I was going to ask him, is, is – if the Claimant’s testimony
was deemed to be credible by the judge, would she be able to do her past work,
or any work, on a sustained basis?
(Tr. 49) (emphasis added). No questions were raised regarding the DOT coding of the job,
the nature of it being “unskilled work in the light category” or the SVP number 2 being
applied to the job. Id. at 47-48. The ALJ specifically questioned the VE about the
limitations of the fingering and handling limitations, as presented by Ward, and the impact
of those limitations on the VE’s overall assessment. Id. Through the detailed examination
of the VE, as well as the specific questions from the ALJ, it was clearly established that there
is no conflict but rather more than the VE’s assessment the issue balanced on the claimant’s
credibility, which, as discussed above, was found to be less credible. The ALJ did not
assume the that the VE’s testimony “trumps” the DOT in this conflict, but rather applied the
greater scrutiny of the SSR 00-4p by stating “[i]n accordance with SSR 00-4p, the vocational
expert’s testimony is consistent with the information contained within the Dictionary of
Occupational Titles.” (Tr. 27). See Leonard, 487 F.Supp.2d at 1338-39.
In Leonard, “the ALJ did not acknowledge the apparent conflict between the VE’s
testimony and the DOT.” 487 F.Supp.2d at 1340. Due to this fault in questioning, the case
was remanded to resolve the existing conflict. Id. Such is not the case. Indeed, no conflict
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exists as alleged. Moreover, there was ample opportunity to question the VE. Substantial
evidence exists to find that the ALJ reasonably relied on the VE’s testimony, along with all
of the other evidence in the record to conclude that Ward’s credibility was diminished and
no further limitations need be placed on her ability to perform previous employment. The
Court finds that there is no reversible error.
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the
Court concludes that the ALJ’s non-disability determination is supported by substantial
evidence and proper application of the law. It is, therefore, ORDERED that the decision of
the Commissioner is AFFIRMED. A separate judgment will be entered.
DONE this the 27th day of February, 2012.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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